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Arizona Casino Dispute Hits Legislative Snag

PHOENIX, Ariz. – An effort by the Arizona State Legislature to defeat a tribal casino from being built within the Phoenix urban area was signed by Arizona Gov. Jan Brewer on February 1. The legislation, which would allow the annexation of county land owned by the tribe into a neighboring city (which would then render the land ineligible for a casino), is seen by some tribal leaders as a step toward halting any new lands being taken into trust for tribes. However, others feel that the bill is a flash in the pan and likely won’t affect future land-into-trust procedures.

The bill (HB 2534) would allow land bordering a municipality in a county with a population of more than 350,000 persons to be annexed if the landowner submits a request to the federal government to take the land into trust.

Sponsors of the measure wanted to incorporate an emergency clause into the legislation; in Arizona, an emergency clause means that the law would have taken effect immediately after the governor’s signature. The clause would kick in if the bill passed with a two-thirds majority, which seemed likely given that Republicans hold 40 of the House’s 60 seats.

One Republican lawmaker, Rep. Eddie Farnsworth (R-Mesa), broke ranks and voted against the bill, thus nixing the emergency clause. The law will likely take effect in the fall, 90 days after the end of the legislative session.

Tohono O’odham Chairman Ned Norris said in a phone interview that he fears larger implications of the law for Indian Country: “The annexation bill [if enacted and signed by the governor] will take away DOI’s ability to take land into trust for tribes.”

The Tohono O’odham Nation purchased the 135-acre plot, which is bordered on three sides by Glendale, Arizona, near Phoenix, in 2003 several years after Congress enacted a land settlement to compensate the 28,000-member tribe for lands lost to the construction of a dam in the noncontiguous San Lucy District . The Gila Bend Indian Reservation Lands Replacement Act also requires that the purchased land be taken into trust, and in July 2010, the U.S. Department of the Interior acted upon 54 acres. In 2009, the nation announced that it would build a casino-resort on the land, located near the University of Phoenix Stadium and an entertainment district. An initiative approved by Arizona voters in 2002 stipulates that all casinos in the state must be on trust lands. The proposal was immediately opposed by local and state officials as well as the Gila River Indian Community, which operates a casino about 10 miles south of the proposed Tohono O’odham site. Both tribes are of the same cultural group, the O’odham.

The city and Brewer recently filed two lawsuits to block the casino portion of the project, and a public relations war has erupted between several parties, including the two sister tribes, Glendale and Arizona. Norris said, “[The casino opponents’] legal position is weak so they’re trying to change the conditions.”

The Arizona Capitol Times quoted Farnsworth as saying, “We are walking into unprecedented territory, and that territory is that we are going to grant a municipality the right to force annexation when not a single property owner has requested it, and in fact opposes it,” while casting his no vote. Farnsworth is noted as a strong private property rights supporter.

However, the bill’s sponsor, Glendale Republican Rep. Jerry Weiers, expressed concern for the property rights of neighboring landowners. And the City of Glendale released a statement supporting Weiers’ sentiments: “Governor Jan Brewer today signed HB 2534, sending a strong message that the state of Arizona supports states' rights, individual private-property rights and the voices of local communities. “

After signing the bill, Brewer also released a statement, saying, "This legislation assures that local officials will continue to have a say in local development matters that affect their community. I encourage this kind of transparent discussion because the public interest is best served when communities work together."

The Gila River Indian Community issued its own press statement: "Our community agrees with Governor Brewer and the many foes of what the Tohono O'odham Nation has proposed. We believe it's wrong for a tribe to go 'reservation shopping' and poach another tribe's aboriginal land in secret, just as it's wrong to open a huge casino in the middle of a neighborhood.… The balance of tribal gaming is at stake here.”

The Arizona Indian Gaming Association, the tribal gaming body to which both tribes in the dispute belong, declined comment about the legislation or the intertribal dispute.

Professor Robert Clinton of the Indian Legal Program at Arizona State University’s Sandra Day O’Connor College of Law is skeptical that Tohono O’odham has a legal leg to stand on. “The tribe should have expected push-back,” says Clinton, a noted expert on federal Indian law. Clinton also does not feel that Tohono O’odham’s stance falls within 25 CFR § 292.5, which sets out criteria to allow gaming to occur on newly-acquired trust land resulting from a land claims trust.

The Tohono O’odham Nation has repeatedly stated that they are in compliance with these provisions.

Clinton also believes that Tohono O’odham “may have killed their project,” because the governor must sign off on any new casinos according to both federal and state law. In fact, Clinton avers that “this is a case study on how not to propose an off-reservation casino.”

In any case, Clinton says that the Arizona bill was simply a response to one tribe attempting to site a casino in an area where local leaders didn’t want it, and that legislators who opposed the bill are far more concerned about protecting landowners’ ability to resist “gobbled up” by cities, who could then impose property taxes.

In the meantime, oral arguments will be heard on February 17 in federal court over the question of whether DOI acted within the law in approving Tohono O’odham’s trust application.