Tribe’s Arizona Casino Plan Upheld by 9th Circ.

PHOENIX (CN) - The Tohono O'odham Nation's plan to build a casino in Glendale did not violate a gaming compact between the nation and Arizona, the Ninth Circuit ruled Tuesday.

Two other Arizona-based tribes and then-Arizona Attorney General Tom Horne sued the Tohono O'odham Nation in 2011, claiming its plans to build a casino nearly 160 miles north of the nation's headquarters in Sells, Ariz. was a violation of a 2002 voter-approved initiative prohibiting new Phoenix-area casinos.

Proposition 202 incorporated multiple provisions of the Indian Gaming Regulatory Act and limited class III gaming to facilities on existing tribal lands previously qualified under the Act.

Class III gaming typically consists of casino games like blackjack, roulette and slot machines.

The ruling, written by U.S. Circuit Judge Carlos Bea, affirms a 2013 decision by U.S. District Judge David Campbell that the Tohono O'odham plan complies with the compact.

"The court finds that the state could not reasonably expect a ban on Phoenix-area casinos to flow from the compact," Campbell wrote.

While class III gaming is usually banned on tribal land taken into trust after the effective date of the IGRA, that ban does not apply to land taken into trust as part of a settlement of a land claim, Bea found.

After the approval of the compact, the nation bought land in Glendale with settlement funds it had acquired under the Gila Bend Indian Reservation Lands Replacement Act after reservation lands were destroyed in flooding.

"The flooding of the nation's reservation due to the federal government's construction of the Painted Rock dam gave rise for a trespass claim severe enough to constitute an unlawful taking without just compensation," Bea wrote on behalf of a three-judge panel. "The Nation had a claim that the continual flooding of its lands due to the Painted Rock Dam exceeded the scope of the government's flowage easement, which allowed the government 'occasionally' to 'overflow, flood, and submerge' the nation's lands, because the flooding rendered 'all of the arable land of the reservation - 5,962 acres - to be unsuitable for agriculture.'"

Arizona argued that the nation was present for a 1993 meeting between state legislative staff and tribal officials where a handout was distributed that allegedly said the "settlement of a land claim" exception to the Act's prohibition of gaming on tribal lands would not affect the state.

"There is nothing in the record that shows that representatives of the nation either drafted or distributed the handout or were primary speakers at this meeting," Bea found. "Plaintiffs instead support their waiver claim by arguing that the Nation was present at the meeting and did not voice disagreement with the handout."

The Glendale casino - Desert Diamond West Valley Casino and Resort - opened in December, but with limited gambling after Arizona Gaming Director Daniel Bergin refused to certify tribal employees. The nation filed suit against Bergin, Gov. Doug Ducey and Attorney General Mark Brnovich in that dispute in June.

A spokeswoman for the attorney general's office was not immediately available to comment.

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