Federal officials on Thursday gave the Tohono O'odham Nation final permission to make land it owns near Glendale part of the reservation, a crucial step toward the tribe's plans to build a casino there.
Kevin Washburn, assistant secretary of Indian affairs for the Department of Interior, said his agency has no choice but to agree to the tribe's request to take the property “into trust.” He said the tribe has met the legal requirements of a 1986 law allowing it to see reservation status for the land and there are no legal obstacles.
Chairman Ned Norris Jr. hailed the ruling as allowing his tribe to finally fully replace lands that were destroyed decades ago by a federal dam project. More to the point, he said it paves the way for the tribe to build a $550 million complex near the Arizona Cardinals stadium anchored by a hotel and casino.
The project has been in limbo since a preliminary decision four years by a lower-level official at the Department of Interior was challenged.
Thursday's action was panned by officials of several other tribes which already have casinos in Maricopa County — and could be financially harmed if the Tohono O'odham project goes forward.
Gregory Mendoza, governor of the Gila River Indian Community, also pointed out that Washburn's ruling is silent on the question of gaming. Mendoza said nothing in Thursday's action allows the Tohono O'odham to erect and operate a casino on the site.
“The majority of tribe in Arizona, including non-gaming tribes, remain opposed to the nation's casino because it poses a direct threat to the balance of tribal gaming in our state,” Mendoza said in a prepared statement. “We will review this decision thoroughly in the coming days and decide whether to take legal action.”
Foes, however, have had little success in getting the courts to halt plans for the casino.
In a separate legal action, U.S. District Court Judge David Campbell specifically rejected arguments by the opposing tribes, the city of Glendale and the state that the 2002 voter-approved measure giving tribes the exclusive right to operate casinos in Arizona specifically prohibits construction of any new casinos in the Phoenix area. Campbell also brushed aside arguments by the state that the original 1986 law and any action to grant reservation status illegally infringe on the state's sovereignty.
That could leave foes with only one move: congressional intervention.
Last year the U.S. House voted to deny the Tohono O'odham Nation the right to build a casino on the property until at least 2027 even if it got reservation status. But the fate of the measure is uncertain as the Senate has yet to take up the issue.
The fight traces its roots to that 1986 federal law which gave the tribe $30 million to compensate for the loss of nearly 10,000 acres of reservation land in its San Lucy District, near Gila Bend, that was flooded by a federal dam project. That same law gave the tribe permission to purchase replacement property in Pima, Pinal or Maricopa counties and, if desired, have that made part of the reservation.
Using that money and law, the tribe bought about 135 acres near Glendale in 2003, albeit under a corporate name. In 2009, when the true ownership was disclosed, the tribe announced its casino plans and asked the Department of the Interior to add the property to the reservation.
The tribe ended up seeking reservation status for only 53.5 acres where the casino would go.
One legal hang-up was that the 1986 law said while the tribe could buy land where it wanted, reservation status was available only if the land were not within the corporate limits of any city.
Glendale had, in fact, annexed land around the site, arguing that made it “within” its limit, but Washburn, in his ruling, was not buying that.
“Based on our extensive experience with the acquisition of land in trust for Indian tribes, the Department concludes that the phrase ‘within the corporate limits’ is intended to apply only to lands that have actually been incorporated by a municipality,” he wrote.
“This is consistent with ordinary expectations in our work as to what it means to ‘incorporate’ lands,” he continued, meaning doing things like providing government services and levying taxes or fees to pay for that service. “In this case, Glendale has neither incorporated the land at issue nor taken on the substantial responsibilities that would accompany incorporation.”
Anyway, Washburn said, allowing the Tohono O'odham to make the land part of the reservation is consistent with the goals of the 1986 law “to support the nation's economic development and self-sufficiency.” He said having reservation lands at this site make sense.
“Such lands have an increased likelihood of being close to a significant population base, which opens the door for significant economic development opportunities across a range of industries,” he wrote.