Litigation | Openings & Closings

Tohono O'odham Nation wins yet another decision on new casino

Tuesday, March 29, 2016

Patrons waited in long lines on December 20, 2015, for the opening of the Desert Diamond Casino – West Valley in Glendale, Arizona. Photo from Facebook

The Tohono O'odham Nation can use newly acquired lands for a casino, the 9th Circuit Court of Appeals ruled on Tuesday.

The unanimous decision supported the tribe on two major fronts. On the first, the court determined that an exception in the Indian Gaming Regulatory Act applies to the Desert Diamond West Valley Casino and Resort because the property was acquired in connection with a land claim settlement.

"The flooding of the nation’s reservation due to the federal government’s construction of the Painted Rock dam gave rise for a trespass claim severe enough to constitute an unlawful taking without just compensation," Judge Carlos Bea wrote for the court.

The flooding led Congress to enact the Gila Bend Indian Reservation Lands Replacement Act in 1986, which authorized the tribe to select up to 9.880 acres and to have those lands placed in trust, the court noted. Pursuant to that law, the Bureau of Indian Affairs approved the tribe's application in July 2014.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Arizona v. Tohono O'odham Nation

On a second issue, the court determined that the Class III gaming compact does not bar the tribe from engaging in Class III gaming at the site. The holding is significant because the Arizona Department of Gaming is refusing to certify the West Valley facility under the compact.

"In short, the duly-executed compact negotiated at length by sophisticated parties expressly authorizes the nation to conduct gaming on its 'Indian Lands,' subject to the requirements of IGRA," Bea wrote.

The tribe has a separate lawsuit against the state that will likely be resolved in its favor as a result of the 9th Circuit's decision. That would pave the way for Class III games at the West Valley casino, which opened on December 20, 2015, despite opposition from the state and rival tribes with existing facilities.

Those opponents have been trying to block the casino through the federal and state courts but they have lost every single ruling on the merits. They also have been trying to get Congress to pass a bill that would single out the Tohono O'odham Nation and prevent the tribe from engaging in any forms of gaming at the site.

Arizona Casino Wars: Tribes battle over new gaming facility in the Phoenix area

The House, however, refused to advance H.R.308, the Keep the Promise Act, last November. The Senate has never taken up the measure.

The West Valley casino is located in Glendale, a suburb on the western side of Phoenix. The Gila River Indian Community and the Salt River Pima-Maricopa Indian Community operate casinos on the southern and eastern sides, respectively.

Both tribes have spent millions of dollars in hopes of stopping the new casino. The Tohono O'odham Nation also has ramped up its lobbying expenditures in response to the campaign.

Oral arguments in the case were heard on December 7, 2015. Turtle Talk has posted briefs from the case, Arizona v. Tohono O'odham Nation.

Get the Story:
Federal court sides with tribal nation over Glendale casino (Capitol Media Services 3/29)
West Valley casino wins in 9th Circuit ruling (The Arizona Republic 3/29)
Court Rules in Favor of Tohono O’odham Casino (Arizona Public Media 3/29)
US court rules Arizona tribe can have casino in Glendale (AP 3/29)

An Opinion:
EJ Montini: Tohono O'odham win in Ninth Circuit on casino (The Arizona Republic 3/29)

9th Circuit Court of Appeals Decision:
Arizona v. Tohono O'odham Nation (March 29, 2016)