The Tohono O’odham won’t be annexing land into the reservation for a new casino this month as tribal officials had hoped.
U.S. District Court Judge David Campbell on Tuesday barred the U.S. Department of Interior from giving the final go-ahead for the parcel on the western edge of Glendale to be taken “into trust.’’ His order gives foes, including the city of Glendale, the Gila River Indian Community and some state legislators a chance to appeal his earlier order saying the Tohono were legally entitled to make the land part of the reservation.
That status is crucial to the tribe’s plans: Reservation status is necessary before a casino can be built on the site.
But Campbell simultaneously barred Glendale from using a new state law that allows Glendale to annex the property without the consent of the Tohono O’odham. That law, approved by lawmakers and signed by Gov. Jan Brewer over the objections of the Tohono, takes effect July 20.
That issue is crucial because the 1986 law that permitted the Tohono to purchase the property says reservation status is possible only if the land is in an unincorporated area.
Campbell said his order keeps everything as is while the 9th U.S. Circuit Court of Appeals reviews the issue. More to the point, it denies either side an advantage.
In a separate development Tuesday, the Arizona Court of Appeals rejected arguments by the city of Glendale that it had previously annexed part of the 135-acre parcel the Tohono had purchased in 2003.
Judge Lawrence Winthrop, writing for the court, said a legal challenge at that time to that annexation put the action on hold. More to the point, Winthrop noted that Glendale subsequently withdrew its annexation plans before that lawsuit ever was resolved.
Here, too, the issue of incorporation arises because only unincorporated areas can become part of the Tohono reservation -- and gaming can be conducted only on reservation lands.
The main battle playing out in Campbell’s court is whether the Department of Interior acted legally in giving the Tohono permission to make the land part of the reservation.
That 1986 law gave the tribe money to compensate for the loss of nearly 10,000 acres in its San Lucy District near Gila Bend flooded in 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, 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.
When Interior gave the go-ahead last year, separate lawsuits were filed by Glendale and the Gila River Indian Community, which has the closest casinos to the area. The state joined the challenge.
Campbell said their objections have no legal basis. That led to the appeal -- and the request to keep Interior from going ahead with reservation status while that appeal proceeds.
The judge, in granting the injunction, said that’s only fair. He said once the land becomes part of the reservation, it effectively kills any challenge by Glendale and others.
But Campbell also said it would not be fair to let Glendale go ahead and annex the land, precluding reservation status, even as it slowed up the process.
samkat posted at 9:06 pm on Tue, May 3, 2011.
There is nothing to preclude Glendale from denying the tribe access to utilities, roadways, etc. that would come from the city. I imagine the city could even charge a toll for access.
manini posted at 5:39 pm on Wed, May 4, 2011.
Ummm, just a minor delay in the Tohono o'odam Indian Tribe's Casino_Shopping Center_Hotel Resort Complex plans. OBAMANATION's DOJ "waterboy" U.S. Atty-General Eric Holder will lose the alphabet_soup FBI/CIA/NSA/NCIS/XYZ on poor AZ & Glendale again & the result will still be infavor of the Indians. It's called "jurisdictional standing", legal precedence, or just plain ole "Political Muscle"....$$$$$, the mother's milk of all POLITIC$$$...LOL!!
Equalitylaw posted at 8:20 am on Thu, May 5, 2011.
Under current federal law, when an Indian tribes seeks to annex or transfer land into reservation or trust status for purposes of class II or class III gambling then prior to such a transfer the Department of Interior must determine if the land is elligible for gambling under the Indian Gaming and Regulatory Act of 1988 (IGRA). That Act prohibited gambling on any land acquired by any Indian tribe after October 17th 1988. The Tohono O'odham purchased the Glendale parcel in 2003 and it is not elligible for gambling activity. Nor is it elligible for one of the narrow exceptions to the IGRA prohibition as the tribe is trying to claim. It is not land "acquired as a result of the settlement of a land dispute". There was no dispute over the tribal lands inundated periodically by backwaters from the Painted Rock Dam. It is land purchased with money paid to the trtibe as damages for the tribal farmland damaged by the backwaters from the Painted Rock Dam. This is what is called in the law, payment for inverse condemnation and by the terms of the 1986 Gila River Settlement Act, the tribe could use the money damages they were paid for any economic development either to purchase replacement farm land or any other economic development project OTHER THAN GAMBLING. They cannot avoid the strict prohibiton of the very specific and later enacted IGRA prohibiting gambling on land after acquired by any Indian tribe after October 17th 1988.