Tohono O'odham Nation: Court ruling removes limits on West Valley casino
- 9th Circuit Court ruling rejects claims by rival tribes to halt casino.
- West Valley casino opened before Christmas with limited gaming.
- Rival Gila River Indian Community vows to continue legal fight against Tohono O'odham Nation.
In a strongly worded ruling, the 9th U.S. Circuit Court of Appeals on Tuesday rejected legal challenges by the state and two rival tribes to impede the Tohono O'odham Nation's new West Valley casino.
The ruling marked the 19th decision by courts and federal agencies in favor of the project.
The Tohono O'odham Nation, which is based in southern Arizona, opened the Desert Diamond Casino West Valley near Glendale on Dec. 20, but with limited Class 2 gaming machines.
Tribal Chairman Edward D. Manuel said the latest ruling left no doubt that the tribe has the right to move forward with Class 3 gaming.
"We call on our opponents to drop all outstanding, misguided challenges so that we can work together in partnership to create positive economic development for the Tohono O’odham Nation, the West Valley, and all of Arizona,” Manuel said in a statement released by the tribe.
Tribal leaders intend to work with state gaming officials to implement Class 3 operations, he said.
Class 3 gaming features games against the casino, such as blackjack and slot machines; Class 2 gaming pits competitors against one another, as in poker or bingo-based slot games.
The state, Salt River Pima-Maricopa Indian Community and the Gila River Indian Community filed a federal lawsuit in 2011 against Tohono O'odham in an attempt to block the West Valley casino, arguing that the gaming compact passed by Arizona voters in 2002 capped the number of casinos in the Valley.
The Gila River tribe has three Valley casinos south of Phoenix, and the Salt River tribe has two casinos east of Scottsdale.
The Tohono O'odham tribe has three southern Arizona casinos.
Gov. Doug Ducey is not ready to concede the fight, said his spokesman Daniel Scarpinato.
"We've reviewed the 9th Circuit Court of Appeals' decision and we encourage the attorney general's office to explore all options to make sure Arizona's interests are considered," he said.
"Meanwhile, it's more important than ever that Congress pass the Keep the Promise Act, because that would prevent the proliferation of casinos in metro Phoenix, and that's something voters were assured when they approved gaming in 2002," Scarpinato said.
The latest version of the proposal would bar the West Valley casino from operating until Arizona's current gaming compact expires in 2027. The Senate version of the measure, introduced by Sens. John McCain and Jeff Flake, both R-Ariz., is stalled.
A House version introduced by Reps. Trent Franks and Paul Gosar, both R-Ariz., failed last fall. Rep. Raúl Grijalva, D-Ariz., worked to derail the measure by requesting a roll-call vote, which prevented it from advancing with a bundle of non-controversial bills.
A spokeswoman for the Arizona Department of Gaming deferred comment to the governor's office.
The Court of Appeals affirmed a decision by the U.S. District Court of Arizona in favor of the Tohono O'odham in 2011.
The courts found that the Tohono O'odham properly acquired a tract of unincorporated land near Glendale for the casino, and complied with terms of the gaming pact several tribes reached with the state in 2002 that regulates tribal casinos.
As the legal maneuvering wore on, the Tohono O'odham built and opened its $200 million casino with bingo-based gaming machines that look and operate like traditional slot machines but have different inner workings.
State officials have refused to certify the West Valley casino for Class 3 gaming, alleging the tribe committed fraud by opening a casino in metro Phoenix without disclosing during negotiations for the compact that it intended to acquire property outside of its historical reservation land.
The court flatly rejected the claim, stating, "This argument is without merit."
The compact allowed, but limited, tribal casinos, by capping the number of slot machines tribes can operate, for example.
The Court of Appeals found it unreasonable for the plaintiffs to believe that the agreement prohibits the Tohono O'odham from running a casino on the 54-acre site at Loop 101 and Northern Avenue.
"The Nation’s choice to conduct Class 3 gaming in accordance with the express terms of the compact does not deviate from the agreed common purpose of the compact, and therefore does not breach the implied covenant of good faith and fair dealing,” the court stated.
Furthermore, the Court of Appeals ruled that lower courts correctly rejected prior claims of fraud.
Gila River spokesman Manuel Johnson said in a statement that the tribe will continue to explore all legal options to ensure the Tohono O'odham is "held accountable for its actions."
"Simply put, the Nation broke its promise to Arizona voters and to its sister tribes across the state by negotiating in bad faith and opening a casino off traditional reservation lands — something Nation leaders for years assured one and all they would not do," he said in the statement.
The Tohono O'odham quietly purchased the property near the University of Phoenix Stadium and the Westgate Entertainment District to replace land destroyed by a federally constructed dam years earlier. The tribe had the land legally converted into reservation land or "Indian lands."
The court stated: "The duly-executed compact negotiated at length by sophisticated parties expressly authorizes the Nation to conduct game on its 'Indian Lands.' ... This language is unambiguous and not reasonably susceptible to plaintiffs' interpretation that the compact implicitly bars the Nation from gaming in the Phoenix metropolitan area."