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Glendale Casino Doesn't Violate Gaming Compact, 9th Rules

By Casey C. Sullivan, Esq. on March 30, 2016 | Last updated on March 21, 2019

The Tohono O'odham Nation did not violate a gaming compact between it and the state of Arizona when it planned to build a casino in Glendale, the Ninth Circuit ruled yesterday. Arizona and two other tribes claimed that the tribe's casino plans were in violation of a 2002 gaming compact between the tribe and the state, which allowed gaming on native land but barred casinos on lands taking into trust after 1988. But, that bar did not extend to lands acquired as part of a settlement of a land claim, the court ruled, allowing the casino to go forward.

The ruling is the 19th federal court decision in favor of the project, The Arizona Republic reports. But despite the tribes' winning streak, continued litigation is expected.

The Fight Over the West Valley Casino

The 2002 gaming compact, made pursuant to the Indian Gaming Regulatory Act, limited the lands the tribe could use for Class III gaming, which includes table games, like poker and blackjack, as well as slot machines. The state and two other tribes argued that the compact created a limit to the number of casinos that could be operated in the Phoenix area.

Under the compact, Class III gaming can only be authorized on "Indian Lands," as defined in the IGRA. The IGRA, in turn, prohibits Class III gaming on lands acquired in trust after the act went into effect in 1988.

But, the Tohono O'odham Nation argued and the Ninth Circuit agreed, there were important exceptions to that general bar. That bar does not apply to land "taken into trust as part of a settlement of a land claim," according to the IGRA. And that's just where the tribe had built its new casino.

What Counts as a Settlement of a Land Claim

In 2003, the tribe purchased a parcel of land on the boundaries of Glendale. They financed that purchase with $30 million in settlement funds acquired via the Gila Bend Indian Reservation Lands Replacement Act -- restitution for the federal government's flooding of the tribe's reservation lands. Part of that purchase was then taken into trust by the federal government and became the site of the new gaming casino.

The purchase of that land with funds from the Lands Replacement Act, the Ninth Circuit ruled, qualified the lands as land "taken into trust as part of a settlement of a land claim."

While the IGRA doesn't define a "settlement of a land claim," the court found the term to be broad and general enough to encompass a claim for impairment of title, damage to land, and dispossession of land, applying the generalia verba sunt generaliter intelligenda canon of statutory construction." (That's "general words are to be understood in a general sense," for those of you who left your Latin dictionaries at home.)

In short, the 2003 purchase counted, allowing the tribe to subvert the IGRA's bar to gaming on newly acquired trust lands.

Arizona Continues to Roll the Dice

That does not mean the end to litigation around the casino, however.

While the West Valley casino opened in December, the Arizona Gaming Director has refused to certify tribal employees, according to Courthouse News Service. The tribe sued over that denial last June, which means they may need to get 20 or more courthouse victories before the casino can kick into high gear. At this point though, it seems like their victory is a safe bet.

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