PHOENIX (CN) - Arizona's lawsuit to ban the Tohono O'odham Nation from building a casino in the suburbs of Glendale may proceed, a federal judge ruled.
The state's complaint is not barred by sovereign immunity because District Courts have jurisdiction over "'any' lawsuits 'initiated' by a State or Indian tribe to enjoin gaming activity on Indian lands, but without specifying when the lawsuit must be 'initiated,'" U.S. District Court Judge David Campbell wrote Wednesday.
In March, Campbell paved the way for the casino by deciding that Arizona, Glendale, the Gila River Indian Community and 11 others had no basis to stop the U.S. Department of Interior from accepting a 54-acre parcel of land surrounded by Glendale into trust for the Tohono O'odham. By May, Campbell found that the Tohono O'odham must halt plans to build the casino because Glendale would suffer irreparable harm and "lose its right to annex the land" once the United States takes it into trust.
Glendale and the Gila River Indian Community claim the new O'odham casino would violate a voter-approved proposition that incorporated multiple provisions of the Indian Gaming Regulatory Act and limited casinos to gaming facilities already on existing tribal lands.
Even though the parcel of land had not been taken into trust when the state and tribes' lawsuit was filed, Campbell found that Arizona's claims against the Tohono O'odham are ripe for adjudication because it "does not alter the nature of the claim asserted by plaintiffs - to enjoin gaming on Indian lands."
The length of time it will take for gaming to happen on the land also "does not make the claims unfit for judicial review in this case," Campbell wrote.
To ensure that the state's "settlement of a land claim" issue is "addressed in the first instance by the agencies charged with expertise in this area," Campbell stayed the adjudication of the claim for 100 days from May 27. The Indian Gaming Regulatory Act allows gaming on lands acquired after 1988 if they fall within this exception.
Campbell said he cannot "determine what source of law governs the parol evidence issue, what parol evidence might be relevant, and what law should be used to construe the integration clause and other terms of the compact" because "the parties have conducted no discovery to date, and the parol evidence that might support plaintiffs' interpretation of the compact has not been marshaled for the court."
Until the parol, or oral, evidence is determined, Campbell said the court cannot determined if the implied covenant exists in this case or if the tribal plaintiffs "have no claims for breach-of-Compact against the Nation," Campbell wrote.
The ruling dismisses the state and tribes' fraudulent-inducement claim that the Tohono O'odham negotiated a state gaming compact with other Arizona tribes while planning "to build a gaming facility in the Phoenix metropolitan area" because the claims are barred by sovereign immunity.
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