A federal judge on Tuesday slapped down the latest efforts by the state to block the Tohono O'odham from building a casino on the edge of Glendale.
U.S. District Court Judge David Campbell threw out claims by Attorney General Tom Horne and two Maricopa County tribes that construction of a casino on the site violates the specific terms of the 2002 voter-approved deal approving a compact that would allow gaming on Indian reservations.
"The written compact contains no such limitation,'' Campbell wrote in his 28-page ruling. "The court concludes that the parties did not reach such an agreement and that the (Tohono) Nation's construction of a casino on the Glendale-area land will not violate the compact.''
Tuesday's ruling is a major setback for foes of the casino who had thrown every legal theory they could into the mix in a bid to stop construction of the casino by the tribe which is based in the Tucson area.
It also comes about six months after the 9th U.S. Circuit Court of Appeals, in a separate challenge by the state, ruled that Congress did not illegally allow the tribe to create a reservation on the land on the edge of Glendale. That ruling is important because the tribe needs reservation status to allow casino construction.
But Campbell, in Tuesday's ruling, did offer foes one glimmer of hope.
He said those challenging the casino contend that the Tohono Nation knew that the publicity surrounding the 2002 election clearly indicated "the voters understood there would be no such casino'' built in the Phoenix metro area.
And Campbell said, the state and the other tribes say the Tohono "actively encouraged this understanding of the compact while secretly planning to build a casino.'' That was backed with notes taken by Tohono tribal council officials ahead of the 2002 vote about acquiring some land west of Phoenix, putting it into a shell company, and stressing the "need to keep it quiet'' during negotiations.
Campbell said he wants to hear more legal arguments before deciding whether this claim is legally sufficient to support a lawsuit to halt the casino.
Zuzette Kisto, publicist for the Gila River Indian Community, one of the challengers, expressed disappointment at the ruling. She said at least part of Campbell's decision was based on his conclusion that some issues were outside his authority.
Kisto said that underscores the importance of federal legislation introduced last month by Congressman Trent Franks, R-Ariz. While not mentioning the Tohono O'odham plans by name, it would effectively block the tribe from building on the Glendale site until at least 2027.
But Tohono Nation Chairman Ned Norris Jr., who opposes the federal legislation, said Tuesday's ruling "underscores the fact that opponents are only interested in preserving their market share.'' And the Gila River community does have the closest casino to the Glendale site.
The 2002 initiative pushed by a consortium of tribes gave them the exclusive right to operate casinos in the state in exchange for a share of the profits.
Of note in this case is that the measure was promoted as saying gaming would be limited to existing reservations, with specific limits on the number of casinos each tribe could possess.
The following year the Tohono purchase a parcel of land near Glendale, near where the Arizona Cardinals stadium eventually would be built. That deal was authorized under a 1986 federal law designed to compensate the tribe for flooding from the Painted Rock Dam.
Federal officials eventually agreed to make the land part of the reservation.
Attorneys for the state and the other tribes contend that land purchased after the 2002 initiative cannot legally have gaming under the terms of what voters had approved.
But Campbell pointed out that a strict reading of the compact entitles the Tohono Nation to do exactly what it did.
Voters did in fact require gaming to be "located on the Indian lands of the tribe.'' That also mirrors federal law.
But the initiative also specifically says that gaming can be allowed on lands acquired later if they were "taken into trust as part of a settlement of a land claim.'' And Campbell said that, no matter how you look at it, the property the Tohono acquired in 2003 was, in fact, part of such a land claim.
Challengers also point to language in the initiative which said the Tohono O'odham would be limited to four casinos, at least one of which would have to be located at least 50 miles from Tucson. That, they argued, was designed to give the tribe three casinos in the Tucson area with the fourth at Why.
But Campbell said nothing in what voters approved specifically limited the tribe to a single casino away from Tucson.
Tuesday's ruling leaves the issue of what the parties understood. And that goes, in part, to the publicity surrounding the 2002 vote.
Part of the claim of challengers is based on a brochure of "common questions'' distributed ahead of the election. One asks whether the measure would limit the number of tribal casinos in Arizona.
Its answer: Under Prop 202, there will be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson.
Attorneys for the Tohono conceded the brochure was produced in part with funds it provided. But they said it was inaccurate because it was drafted by "public relations consultants'' who "did not necessarily seek to depict the compact with legal precision.''
But Jane Hull, who was governor at that time, made similar statements.
The state is also relying on notes taken by members of the tribe's legislative council at meetings ahead of the 2002 vote which not only suggest buying land west of Phoenix but putting it in a "shell company'' to "keep it quiet'' while compact negotiations were taking place.
All that, Campbell wrote, requires him to look further about what the state understood when the gaming compacts were negotiated -- and what the tribe knew about the state's understanding -- in determining whether the tribe effectively agreed not to build a casino near Glendale.
Campbell said this is not a simple question, if for no other reason than it requires him to figure out who is "the state.'' He said that could be the governor, the Legislature, individuals who represented the state in negotiations or even the voters themselves.