Tohono O'Odham Casino Plan Wages On in the 9th
(CN) - Arizona had its feet before the 9th Circuit fire over a law it allegedly drafted solely to prevent the Tohono O'Odham Nation from building a casino near Glendale.
"Is there any serious contention on the part of the state or the city that HB 2534 was passed for any reason other than to frustrate what the tribe wanted to do?" Judge Milan Smith asked at a hearing Tuesday.
Arizona Assistant Attorney General Evan Hiller said, "It's important to draw a line between frustration of the nation's plan for this particular plot of land and frustration of Congress' purposes."
The O'Odham bought 54 acres on the outskirts of Glendale in 2003 using a straw company, Rainier Resources of Delaware, and announced plans to build a casino there in 2009.
HB 2534, which Arizona passed in early 2011, allows cities and towns within its three largest counties to annex land surrounded or almost surrounded by the city or town, if the landowner has asked the federal government to take ownership of the land or to take it into trust.
The Tohono O'Odham Nation sued to stop enforcement of the statute, arguing that the law contradicted the federal Gila Bend Indian Reservation Lands Replacement Act, which was passed in 1986 to replace land the O'Odham had lost to a federal dam, and to promote their economic self-sufficiency.
Under the act, the secretary of the Interior is required to take up to 9,880 acres of purchased land into trust for the benefit of the O'Odham, effectively making the purchased land part of the reservation.
The case went before a three-judge panel of the 9th Circuit this week after U.S. District Judge David Campbell found pre-emption of HB 2534 under federal law.
Because Arizona enacted the law after the federal government took the land into trust for the Tohono O'odham, its application "to the nation's land thus would stand as an 'obstacle to the accomplishment and execution of the full purposes and objectives of Congress," the June 2011 decision states.
Campbell found that application of the new law to this land would clearly "frustrate Congress' purpose in the Gila Bend Act," and "would deprive the Nation of traditional annexation hearing and voting rights solely because it exercised its right under the act."
Deflecting a barrage of questions from Judge Smith about the narrowness of HB 2534, Arizona's Hiller told the three-judge appellate panel that HB 2534 could be applied to circumstances besides that of the O'Odham's 54-acre tract.
The law would "give Glendale a seat at the table" if an Indian tribe sought to apply for a discretionary trust acquisition of land not covered by the Gila Bend Act, Hiller said. He added that the statute would also govern land swaps between private land owners and the federal government.
Tohono O'Odham attorney Danielle Spinelli said that the combination of pre-emption and equal protection rights "makes this an easy case."
HB 2534 is necessarily pre-empted because the Arizona Legislature intended to disrupt a federal law, she argued.
"It's crystal clear that the sole purpose of this legislation was to prevent this particular trust acquisition from going forward and the legislators were completely open about that," Spinelli said.
She added that lawmakers designed the statute solely to thwart the secretary of the Interior's obligation to take the O'Odham's property into trust.
The statute "uses the nation's invocation of its rights under the [Gila Bend Act] as a trigger to deprive the nation of rights afforded all other Arizona landowners," she added.
Arizona has created a law that gives every landowner but the O'Odham a right to vote on whether to accept annexation by a city or county, while the O'Odham's "land can be annexed unilaterally without its consent," Spinelli said.
The Washington-based Wilmer Hale lawyer also argued that the statute could not be applied to the O'Odham, as voters had approved the law two years after the O'Odham asked the secretary of the Interior to have the land placed in trust.