PHOENIX -- Congress did not act illegally in allowing a tribe to create reservation land on the edge of Glendale, a federal appeals court ruled Tuesday.
In a split decision, the majority of the three-judge panel of the 9th U.S. Circuit Court of Appeals rejected arguments by attorneys for the state and Glendale that a 1986 law allowing the Tohono O'odham Nation to acquire reservation land infringes on the sovereign rights of the state. The judges said there is no basis for such an argument.
The majority also brushed aside the contention that the land at issue was within the corporate limits of the city of Glendale. That issue is crucial, as that 1986 law permits the tribe to expand its reservation, but only in unincorporated areas.
Both the state and city concede that the 54 acres at issue are not in the city of Glendale itself. But they argued that the property is surrounded by the city, making the county island "within'' the city's limits.
But Judge Margaret McKeown, writing for the majority, accepted the determination by the U.S. Department of Interior that the property is outside of Glendale -- and therefore eligible for reservation status.
Tuesday's ruling is the latest victory for the Southern Arizona tribe in its efforts to construct a $550 million complex, featuring a casino, on the west side of the Phoenix area. Various state and federal courts have rebuffed other efforts to halt the plans.
State Gaming Director Mark Brnovich called Tuesday's decision "a real game changer.''
"You are likely to have a casino right in the middle of a large metropolitan area,'' he said. "And I think that creates a certain dynamic and I think a lot of pressure for additional gaming.''
Brnovich said when voters approved tribal gaming in 2002 it was with the understanding it would be limited to existing reservations. What they did not anticipate, he said, was a casino virtually next to the Arizona Cardinals stadium and across the street from a high school.
He figures that once there is gaming near commercial and residential development, lawmakers may decide the tribes should not keep their existing monopoly on operating casinos.
House Speaker Andy Tobin, R-Paulden, already has proposed to allow slot machines, blackjack and poker games to be run at up to 10 non-reservation locations, starting horse and dog tracks in Phoenix, Tucson, Prescott Valley and Apache Junction. He figures the plan would help the state with its finances, as the track owners would give Arizona a bigger share of profits than do the tribes.
Gregory Mendoza, governor of the Gila River Indian Community, also argued that there was a "public promise'' made to voters in 2002 that there would be no gaming beyond current reservations.
The Gila River community, however, has a particular interest in the fight because it currently operates the closest casino to the area. A new casino in Glendale likely would draw off customers.
An appeal is being weighed. That possibility annoyed Tohono tribal Chairman Ned Norris Jr.
"It's time for those special interests behind the delay tactics that have held up this project to step aside and allow for job growth and economic opportunity to come to the West Valley,'' he said.
Any appeal could be helped by an extensive dissent by appellate Judge N. Randy Smith. He argued that the majority's interpretation of what is within corporate limits is "contrary to the plain language of the statute.''
He said Arizona law gives cities some powers to regulate land use outside their incorporated areas. And Smith said that is justified -- and should be given deference by the courts.
"It is Arizona state citizens that will be affected by (the parcel) being taken into trust just across the street from their neighborhoods,'' Smith wrote. And he said the majority decision "effectively renders political protections afforded to states in our federalism system virtually nonexistent.''
That 1986 law gave Tohono O'odham Nation money to compensate for the loss of nearly 10,000 acres in its San Lucy District near Gila Bend flooded because of 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. But that was done under a corporate name which Tohono officials acknowledged was designed to hide the true ownership.
Plans became public three years ago when the tribe asked the Department of Interior to add 54 acres of that to its reservation, a necessary precursor to having tribal gaming on the property. When Interior gave the go-ahead two years ago, the city of Glendale sued, joined by the Gila River community; the state joined the challenge, raising argument about its sovereign rights.
McKeown acknowledged that the Tenth Amendment spells out that powers not delegated to the federal government by the U.S. Constitution are reserved to the states or the people.
But the judge said the Constitution specifically empowers Congress "to regulate commerce ... within the Indian tribes.'' And she said the Supreme Court has interpreted this broadly, saying that language gives Congress complete power to legislate Indian affairs.
McKeown wrote that, in this case, Congress "acted within its authority'' in approving the 1986 law. And she said that law itself spelled out that Congress was fulfilling its responsibility to find alternative land for the tribe.