Repeatedly rebuffed in court, the state and multiple Indian tribes are now banking on last-minute federal legislation to block the Tohono O'odham Nation from building a casino on the edge of Glendale.
HR 1410 introduced Tuesday by Republican Rep. Trent Franks would spell out that any tribe which has acquired new trust lands cannot build a casino in Maricopa or Pinal counties until at least 2027.
Franks' legislation mentions no names. But its wording -- and the lobbyist for the Gila River Indian Community who asked for it -- makes it clear the goal is to ensure that a fourth casino which the Tohono Nation is entitled to build goes only in Pima County.
While Franks was introducing his legislation Tuesday, attorneys for the state and other tribes were in federal court asking U.S. District Court Judge David Campbell to bar the Tohono casino.
They contend the initiative approved by voters in 2002 allowing for tribal gaming never was intended to allow the Tucson-area tribe to have a casino so far from its own home. They cite language in the initiative limiting gaming to existing reservations.
But the initiative itself has an escape clause: It allows casinos on lands that tribes acquire as part of the settlement of a land claim. And the property the Tohono Nation acquired in Glendale did settle a claim the tribe had against the federal government for damages caused by a dam to part of the reservation, though there is some legal dispute over that.
Franks' measure, if approved, would pull the rug out from under the Tohono O'odham efforts and make whatever Campbell rules irrelevant. It also would block until 2027 any other tribe's efforts to improve its finances by finding a way to build a casino in the Phoenix area.
The fight traces its roots to a federal dam project that flooded the 10,000-acre San Lucy District of the reservation. As compensation, the 1986 law gave the tribe $30 million, which it could use to buy land anywhere in Pima, Pinal or Maricopa counties and eventually have it become part of the reservation.
The tribe bought a parcel on the edge of Glendale in 2003, less than a year after voters approved a measure giving tribes the exclusive right to conduct casino gaming. But the ownership and the plans for a casino did not become public until 2009 when the tribe asked the Department of Interior to make it part of the reservation, a necessary precursor for gaming.
Attorneys for other tribes and the state contend voters were told in 2002 that gaming would be limited to existing reservations and there would be no more than seven casinos in the Phoenix metro area. So far, though, the courts have rebuffed those efforts.
Last year the 9th U.S. Circuit Court of Appeals rejected arguments the 1986 law infringes on the sovereign rights of the state. The court also dismissed the contention the land at issue was within the corporate limits of the city of Glendale, a crucial point because the law permits the tribe to expand its reservation only in unincorporated areas.
On the political front, Franks introduced legislation in 2011 to retroactively change that 1986 law, leaving intact the right of the Tohono O'odham Nation to buy the land in Glendale but spelling out that no gaming would be permitted on the new property. That measure cleared the House but faltered in the Senate.
This new version simply bars the Tohono from gaming on its land until at least 2027.
In a prepared statement, Tohono Chairman Ned Norris Jr. called this "another attempt to unilaterally break the promise made by the federal government to recompense the nation for flooding our lands.'' He said the measure, if approved, not only affects the tribe's economic development for the $550 million complex, including a casino, but "sets a dangerous precedent for tribes across America.''
But Jason Hauter, attorney and lobbyist for the Gila River Indian Community, said it is the Tohono Nation that is breaking a promise to voters.
He said the issue of how tribes would divide up the Phoenix market was "heavily negotiated'' in 2002.
"The Tohono O'odham was perfectly capable and could have participated in that,'' Hauter said. "They chose to actively conceal their true intentions'' until long after the election.
That is the same issue argued in court. Attorneys for the state contend it was widely understood by all that any fourth casino sought by the Tohono Nation would be limited to the Tucson area.
"The nation knew of and endorsed this interpretation while deliberately concealing its contrary plans,'' they argued in their legal briefs.
"Nobody knew or could have known that the nation asserted or had the means to assert any claim to a gaming property in the Phoenix market,'' they wrote. In fact, they said when Tohono officials were asked by the state and other tribes where it might locate casinos they "mentioned only the Tucson metropolitan area and rural areas of its existing reservation, rather than decline to answer to candidly mention its west Phoenix plans.''
Franks echoed that in his own prepared statement.
"Both the voters and tribes of Arizona were promised one thing, while ultimately receiving something else entirely,'' he said. Franks denied this is a "vendetta'' against the Tohono O'odham Nation and said it will not end tribal gaming.
"It is, very specifically, about ensuring that the limits on casinos specifically promised back in 2002 during debate on Proposition 202 are realized,'' he said.
But attorneys for the Tohono Nation said it was a matter of public record in 2002 that, because of the 1986 law, the initiative would allow the tribe to build a casino anywhere in Maricopa, Pinal or Pima counties. And Tohono officials have said any promises made to voters in 2002 came from public relations statements and not from anything said by tribal officials.
The tribe's move has angered Glendale officials, in part because the location is near a high school. But the site also is not far from the city's Westgate retail and sports complex, meaning the development could siphon business -- and sales-tax revenues -- from the city.
Objections also have come from the Gila River Indian Community which contends the intent of the 2002 measure was to limit gaming to existing reservation lands. But that tribe also has a financial interest: It currently has the closest casino to the West Valley area and offers free bus service to its casinos -- buses that now drive right past the Tohono O'odham site.
Opposition, however, has also come from other tribes.
In a prepared statement, Sherry Counts, chairwoman of the Hualapai tribe, said the Frank legislation would "preserve and maintain the gaming policy made between the tribes and Arizona voters to liit the number of casinos in the Phoenix metropolitan area.''