Split 9th Circuit: Not illegal for Congress to allow Tohono O'odham reservation at edge of Glendale - East Valley Tribune: Capitol Media Services

Split 9th Circuit: Not illegal for Congress to allow Tohono O'odham reservation at edge of Glendale

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Posted: Tuesday, September 11, 2012 2:57 pm | Updated: 4:22 pm, Tue Sep 11, 2012.

Congress did not act illegally in allowing a tribe to create reservation land on the edge of Glendale, a federal appeals court ruled Tuesday.

In a split decision, the majority of the three-judge panel of the 9th U.S. Circuit Court of Appeals rejected arguments by attorneys for the state and Glendale that a 1986 law allowing the Tohono O'odham Nation to acquire reservation land infringes on the sovereign rights of the state. The judges said there is no basis for such an argument.

The majority also brushed aside the contention that the land at issue was within the corporate limits of the city of Glendale. That issue is crucial, as that 1986 law permits the tribe to expand its reservation, but only in unincorporated areas.

Both the state and city concede that the 54 acres at issue are not in the city of Glendale itself. But they argued that the property is surrounded by the city, making the island "within'' the city's limits.

But Judge Margaret McKeown, writing for the majority, said even if that is a plausible argument -- something he is not conceding -- the courts must defer to the decision the U.S. Department of Interior, which approved the tribe's acquisition of the land and creating reservation status, that the property is not within Glendale's limits.

Tuesday's ruling is the latest victory for the Southern Arizona tribe in its efforts to eventually construct a $550 million complex, featuring a casino, on the west side of the Phoenix area. Various state and federal courts have rebuffed other efforts to halt the plans, including some last-minute legislation signed by Gov. Jan Brewer, a Glendale resident, to allow her city to annex the site -- and deny reservation status -- over the tribe's objections.

State Gaming Director Mark Brnovich said the impact of the decision cannot be understated.

"It's a real game changer,'' he said.

"You are likely to have a casino right in the middle of a large metropolitan area,'' Brnovich said. "And I think that creates a certain dynamic and I think a lot of pressure for additional gaming.''

Brnovich said when voters approved tribal gaming in 2002 it was with the understanding that it would be limited to existing reservations. What they did not anticipate, he said, was a casino virtually next to the Arizona Cardinals stadium.

He figures that once there is gaming near commercial and residential development, lawmakers may decide there is no need to maintain the existing monopoly that tribes have on operating casinos.

There already have been moves in that direction.

House Speaker Andy Tobin, R-Paulden, has proposed to allow slot machines, blackjack and poker games to be run at up to 10 non-reservation locations, starting horse and dog tracks in Phoenix, Tucson, Prescott Valley and Apache Junction. He figures the plan, which has the backing of track owners, would help the state with its finances, as the track owners would give Arizona a bigger share than the current deal with the tribes.

The move would do more than end the monopoly tribes have on casino-style gambling. It could give racetracks a competitive advantage because they are generally located closer to where people live than tribal casinos are.

Tuesday's ruling, however, is unlikely to be the last word. It is likely the state and city -- along with the Gila River Indian Community which also opposes the casino -- will appeal.

That possibility annoyed Tohono tribal Chairman Ned Norris Jr.

"It's time for those special interests behind the delay tactics that have held up this project to step aside and allow for job growth and economic opportunity to come to the West Valley,'' he said, saying the project has "widespread public support'' in the area.

Any appeal could be helped by an extensive dissent by appellate Judge N. Randy Smith. He argued that the majority's interpretation of what is within corporate limits is "contrary to the plain language of the statute.''

He said Arizona law always has granted cities some powers to regulate zoning in the areas outside of their incorporated areas. And Smith said that is justified -- and should be given deference by the courts.

"It is Arizona state citizens that will be affected by (the parcel) being taken into trust just across the street from their neighborhoods,'' Smith wrote.

He said the majority decision "effectively renders political protections afforded to states in our federalism system virtually nonexistent.''

The fight traces its roots to a 1986 law which gave the tribe money to compensate for the loss of nearly 10,000 acres in its San Lucy District near Gila Bend flooded because of a federal dam project. The law also permitted the tribe to buy replacement property in Pima, Maricopa or Gila counties and make it part of the reservation.

The tribe bought about 135 acres near Glendale in 2003. But that was done under a corporate name which Tohono officials acknowledged was designed to hide the true ownership.

That became obvious only three years ago when the tribe asked the Department of Interior to add 54 acres of that to its reservation. That is a necessary precursor to having tribal gaming on the property.

When Interior gave the go-ahead two years ago, the city of Glendale sued.

A separate lawsuit was filed by the Gila River Indian Community. It's interest, at least in part, is because it currently has the closest casinos to the area and would likely lose business if the Tohonos were allowed to conduct gaming on the site.

The state subsequently joined the challenge, raising the argument about its sovereign rights.

McKeown acknowledged that the Tenth Amendment spells out that powers not delegated to the federal government by the U.S. Constitution are reserved to the states or the people.

But the judge said the Constitution specifically empowers Congress "to regulate commerce ... within the Indian tribes.'' And she said the Supreme Court has interpreted this broadly, saying that language gives Congress complete power to legislate Indian affairs.

McKeown wrote that, in this case, Congress "acted within its authority'' in approving the 1986 law. And she said that law itself spelled out that Congress was fulfilling its responsibility to find alternative land for the tribe.

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