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Arizona Fights Tribe Over New Casino

PHOENIX (CN) - The Arizona attorney general claims the Tohono O'odham Nation plans to violate a voter-approved proposition that allows casinos only on existing tribal lands by building a casino near the Phoenix suburb of Glendale. The O'odham, whose 3 million-acre on the Mexican border is one of the largest in the nation, is the only Native American tribe that lives on its ancestral homelands and has never been at war with the U.S. government.

The Gila River Indian Community joined as plaintiffs with Attorney General Tom Horne, claiming the new O'odham casino would violate the 2002 Proposition 202, which incorporated multiple provisions of the Indian Gaming Regulatory Act and limited "casino-type gaming" to gaming facilities on existing tribal lands, "unless those lands qualify under an IGRA exception."

The O'odham already run a profitable casino on their San Xavier reservation near Tucson. Tohono O'odham means Desert People in the tribe's Uto-Aztecan language. Anglos once referred to them as Papago.

The O'odham's announcements about the casino "have already destabilized the political relationships among tribes and between those tribes and the state that are embodied in the compact and in other identical compacts with other tribes," Horne says in his federal complaint.

Horne says that in 2002, 17 tribes, including the Gila River Indian Community and the O'odham, formed the "Arizonans for Fair Gaming and Indian Self Reliance" to urge Arizona voters to approve Proposition 202 and reject Proposition 201. Proposition 202 was offered to defeat Proposition 201, which sought "authorization of racetrack-based gaming (or racinos')," Horne says in the complaint.

The tribes claimed that under Proposition 202, "there will be no additional facilities authorized in Phoenix, and only one additional facility permitted in Tucson," and the O'odham "both expressly and impliedly represented to the state, to other tribes, and to the voters of Arizona that the compacts would not authorize any tribe, including the Nation, to open a casino in the Phoenix area," Horne claims.

But Horne says that now the O'odham tribe "has a definite and concrete plan for violating [the proposition] within as little as 21 days by beginning unauthorized gaming activities on a parcel of land in suburban Phoenix."

The O'odham announced their plans to build the casino in January 2009; in July 2009 the tribe withdrew its request for a "gaming-eligibility" determination under the Indian Gaming Regulatory Act in order to speed up the casino's construction, Horne says.

In August 2003, the O'odham bought about 135 acres of land near Glendale through a Delaware corporation, Rainier Resources. Horne says the tribe concealed its ownership of the land for more than 5 years, during which time restaurants, hotels, and a public high school were built near the land, "all without the knowledge that the tribe had future plans to establish an Indian reservation and develop Indian gaming in the neighborhood," the complaint states.

On Jan. 28, 2009, the O'odham filed an application asking the Department of the Interior to take the property "in trust for the benefit of the Nation pursuant to the Gila Bend Act," and arguing - incorrectly - that the Gila Bend Act "is the congressional enactment of a settlement of a 'land claim,'" Horne says.

A Native American land claim is a tribe's "claim to superior title to land as against a non-Indian entity, whether private or governmental," Horne says.

The Gila River Indian Community sued the Department of the Interior in September 2010, claiming its decision to take the land into trust for the O'odham "arbitrarily and capriciously fails to address whether the lands qualify for gaming activities under the Indian Gaming Regulatory Act."

The Department of the Interior responded that an Indian Gaming Regulatory Act determination on the gaming eligibility of the land "need not ever be issued by [the] Interior," according to the complaint.

The complaint continues: "Moreover, the United States has stated that during the pendency of that litigation, it may still take the land into trust, and thereby effectively allow the Nation to begin gaming, with only 21 days advance notice. Therefore, absent an injunction, illegal gaming on Parcel 2 is imminent."

Horne claims the O'odham Nation has "stated publicly that it intends to conduct gaming operations on the parcel as soon as it is in trust without seeking any determination that the land is eligible for gaming."

Horne seeks a finding that gaming on the property near Glendale is prohibited by Prop. 202, and wants the O'odham enjoined from building a casino there.

(EDITOR'S NOTE: After this story was posted, an Arizona attorney with knowledge of Native American issues informed Courthouse News that this dispute involves a sort of competing land grab: "While the tribe's legal right to build a casino on newly purchased land is the issue here, it is uncontested that casinos can't be built within city limits. The state passed an enabling act for Glendale to annex it ... before final federal approval of the casino.")

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