Tohono O’odham Win Casino Land Dispute

(CN) - The federal government properly added a 54-acre parcel of land in the middle of a Phoenix suburb to the Tohono O'odham Nation, the 9th Circuit ruled Tuesday.

After a dam project flooded farm land near Gila Bend, Ariz., belonging to the Tohono O'odham Nation in the 1980s, Congress enacted the Gila Bend Act so that the Secretary of the Interior could take 9,880 acres of land into trust for the tribe's future use. Several decades later, in 2003, the tribe bought a 135-acre plot of unincorporated land surrounded by the city of Glendale, part of the greater Phoenix metro area, and sought it have designated as part of their reservation.

The O'odham tribe were known as Papagos before they reclaimed their name.

When the tribe announced plans to build a casino on the land, the city tried to annex a portion, and the parties went to state court over the matter. The House of Representatives even got involved and passed the Gila Bend Indian Reservation Lands Replacement Clarification Act this year. Eventually, the Department of the Interior, at the tribe's request, accepted into trust only a 54-acre portion of the land not at issue in state court, thus allowing gambling on the site.

Arizona, Glendale and the Gila River Indian Community challenged the move, arguing that it violated the Indian Commerce Clause and the 10th Amendment. They also claimed that the land was within Glendale's city limits and so not eligible under the Gila Bend Act. The Gila River Indian Community operates its own casinos in the Phoenix area.

The Secretary of the Interior concluded that the lot was within Maricopa County, outside Glendale's corporate limits.

After a federal judge in Phoenix rejected the constitutional arguments, the divided 9th Circuit affirmed from San Francisco.

The majority noted that the narrowness of its decision.

"This case illustrates the nuances of our federalist system of government, pitting Indian tribe against Indian tribe, and state and local governments against the federal government and an Indian tribe," Judge M. Margaret McKeown wrote, joined by U.S. District Judge Jacqueline Nguyen who sat on the court by designation from the Central District of California.

"To say this plan has been controversial is an understatement," she added. "But the strong feelings and emotional drama of the casino fight do not dictate the outcome here."

Under Glendale's own interpretation of "county islands," the trust land is clearly not within the city limits, according to the decision.

"In practice, Glendale's own local treatment of county islands strongly supports the secretary's view that county islands are not'within the corporate limits," McKeown wrote. "The city of Glendale does not treat county islands as falling within its control: County islands are not assessed municipal tax and receive no municipal services."

There is also no evidence that the Gila Bend Act infringes on Arizona's sovereignty.

"Passage of the Gila Bend Act was well within congressional power under the Indian Commerce Clause and is not trumped by the 10th Amendment," McKeown wrote.

But Judge N.R. Smith questioned this interpretation in a long dissent. He said that Tuesday's ruling "effectively renders political protections afforded to states in our federalism system virtually nonexistent."

"The majority holds that it was permissible for an agency to exercise what Chief Justice Roberts has called 'an extraordinary assertion of power' by taking land into trust for an Indian reservation in the middle of one of Arizona's most populated cities, contrary to the plain language of the Gila Bend Indian Reservation Lands Replacement Act," Smith wrote. "The statutory text of the Gila Bend Act clearly prohibits the Secretary's ability to take land, that is 'within the corporate limits' of a city, into trust when the city's limits wholly surround that land, such as the parcel at issue in this case."

Most Tohono O'odham reservation land is in rural southern Arizona west Tucson, far from the small urban plot on which it hopes to build a casino.

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