PHOENIX — State officials are trying to delay a federal appellate court hearing on the question of whether the Tohono O'odham Nation can build a casino on the edge of Glendale.
Assistant Attorney General Michael Tryon wants any action pushed back until the U.S. Supreme Court rules in another case on the scope of tribal immunity. Tryon said the outcome of that case could affect whether the state will be able to block the casino.
But attorneys for the tribe are telling the 9th U.S. Circuit Court of Appeals they see something more sinister in the move.
Danielle Spinelli, lead counsel on the case, said the move by the state has nothing to do with the legal issue of tribal immunity before the high court. Instead, she said, what the state wants would push the Glendale case, being briefed next month, back until at least next May.
That, she said, will give foes of the casino new opportunities, unable to win in court, to find other ways to try to block the casino. She pointed out the various efforts to do that, including trying to let Glendale annex the property and federal legislation to overturn the tribe's right to build a casino there.
“Arizona should not be permitted to delay the progress of this case in order to continue these efforts,” she wrote.
Hanging in the balance is the tribe's plan for a $550 million complex near the Arizona Cardinals football stadium that would include shopping, a hotel and, most notably, a casino.
Foes, including the state, the city and other nearby tribes have fought the move since it was made public. They contend the 2002 voter-approved initiative which gives tribes the exclusive right to operate casinos in Arizona specifically precluded new ones from being built in the Phoenix area.
But the Tohono Nation is relying on a little-noticed provision which permits new casinos on property that any tribe acquires as part of a land settlement with the federal government. A 1986 federal law to compensation for other property flooded by a dam project specifically permitted the tribe, based in Pima County, to purchase land in Maricopa County.
More to the point, that federal law allows the tribe to seek reservation status for that land, a necessary precursor to operating a casino.
Federal courts have rebuffed various legal challenges.
In this case, U.S. District Court Judge David Campbell rebuffed the contention by foes that it the intent of a provision allowing the Tohono Nation to build an additional casino was to have that located on land already part of its existing reservation. The judge said the actual language in what voters approved — and what the tribes and the state all signed — does have that escape clause for land settlement deals.
Campbell also ruled it's legally irrelevant whether the state — or even voters — thought the deal they were approving precluded a new casino in Glendale.
Opponents, including the state, took the case to the 9th Circuit, but Tryon wants the appeal he filed delayed.
In legal filings, he pointed out to the appellate judges that the U.S. Supreme Court will be hearing a case next month in a dispute between the state of Michigan and the Bay Mills Indian Community over that tribe's bid to build a casino. And an issue there is whether the concept of the tribe's sovereign immunity prohibits the state from even suing the tribe to block the casino.
“Whatever decision the Supreme Court makes ... is highly likely to influence if not control the outcome of the sovereign immunity questions presented in this appeal,” Tryon wrote.
“The questions presented (in the Bay Mills case) have very little, if anything, to do with the core issues in this case,” she wrote. Spinelli said the key issue surrounds the interpretation of the 2002 law and whether it precludes the Tohono Nation from building a casino on the land it bought near Glendale.
More to the point, Spinelli said a delay would be "exceptionally unfair'' to the Tohono Nation.
“Holding the appeal in abeyance would needlessly prolong resolution of this case and give Arizona the opportunity to resort once again to extrajudicial tactics to frustrate the Nation's pursuit of vital economic development,” Spinelli said. She said the casino “will provide desperately needed employment for tribal members and funds to support civic, educational and health initiatives.”
One of those “tactics” to get around the losses in court so far involves legislation crafted by U.S. Rep. Trent Franks, R-Ariz., to specifically alter then 1986 law to bar gaming on the site until at least 2027. Franks pushed the measure through the House in September on a voice vote; its future is uncertain in the Senate which refused to approve a similar measure last year.
The Legislature had approved a measure allowing Glendale to annex the property without the consent of the tribe, a move that would have thwarted the casino because the 1986 law precludes a reservation from being established within any city. That action was ruled illegal.