PHOENIX (CN) – Arizona officials need not immediately certify a casino near Glendale that the Tohono O’odham Nation plans to open in December, a federal judge ruled Thursday.
The tribe said it will open it as planned, as a Class II casino, without slot machines.
U.S. District Judge David Campbell denied the tribe an injunction, finding it failed to prove state law does not allow Arizona Gaming Director Daniel Bergin to block the casino by refusing to certify vendors or employees or to approve the facility.
The O’odham filed suit in June against Bergin, Gov. Doug Ducey and Attorney General Mark Brnovich, claiming they are violating the Indian Gaming Regulatory Act and the Supremacy Clause of the Constitution.
The opening of the West Valley Resort, which is estimated to employ about 1,000 people, has been tied up in legal proceedings since 2011 when then-Attorney General Tom Horne sued the tribe, claiming the casino would violate a state law that allows casinos only on existing tribal lands.
The resort, which also will house a convention center and spa, is on land about 160 miles away from tribal headquarters in Sells.
Campbell ultimately ruled for the O’odham in that dispute, writing in 2013 that “the state could not reasonably expect a ban on Phoenix-area casinos to flow from the compact.”
The tribe says it will have to open the casino as a Class II facility with bingo-style games, instead of a Class III facility with slot machines, as a Class II operation will not require approval from the Arizona Department of Gaming (ADG).
“The Nation asserts that the State’s actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the State due to sovereign immunity. The court finds, however, that the Nation has not shown that ADG’s actions will cost it substantial sums,” Campbell ruled Thursday.
Campbell said whether Arizona can withhold certifications depends on what authority the state was granted in a compact between the Nation and Arizona that allows the Nation to open four casinos.
“The complaint asserts generally that the compact does not authorize ADG’s action, but the Nation does not address the terms of the compact in any detail in the complaint or the preliminary injunction briefing,” Campbell found. “Likewise, defendant Bergin asserts generally that his actions are authorized by the compact and makes reference to a few general compact provisions, but he provides no detailed explanation of the compact provisions he relies upon or how they authorize his denial of certifications.”
Campbell allowed the Nation to proceed in its action against Bergin, but dismissed the claims against Ducey and Brnovich, and part of the lawsuit that says the state cannot regulate Class II gambling, which Arizona conceded.
“The Nation is comfortable with the court’s decision today and we remain confident that the court will ultimately rule in our favor,” Tohono O’odham Chairman Edward Manuel said. “We remain focused on creating jobs and economic opportunity in the West Valley as our project nears completion.”
About 20,000 Tohono O’odham (Desert People) live on the main reservation west of Tucson. Its headquarters are in Sells. The 3 million-acre reservation is the largest in the nation, after the Navajos’. The O’odham are the only tribe in the Lower 48 that never were displaced from their ancestral homeland and never were at war with the U.S. government. They were known as Papago until they reclaimed their name in the late 20th century.
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