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Real Estate and Construction in Indian Country: West Valley Casino Challenged — Again

 

In the 1970s and 1980s, some flooding caused by the federal Painted Rock Dam covered some lands owned by the Tohono O’odham Nation in Southern Arizona. As a response, the Gila Bend Indian Reservation Lands Replacement Act was signed into law in 1986.

Under the Land Act, the T.O. Nation surrendered title to the flood-prone lands in exchange for $30M and the ability to acquire land in unincorporated portions of Maricopa, Pima, or Pinal counties. The Land Act also authorized the Secretary of the Interior to take the acquired lands into trust and treat such lands as the T.O. Nation’s Indian Reservation.

In 1988, the federal Indian Gaming Regulatory Act was enacted. Among other things, this Gaming Act authorized the governors of each state to negotiate gaming compacts with the Indian Tribes in their respective state. A handful of Arizona tribes negotiated compacts with the State of Arizona that began in 1993 and were set to expire in 2003.

Foreseeing the expiration of these initial gaming compacts, negotiations between a majority of Arizona Tribes and the State of Arizona resulted in a standard gaming compact in 2002. The T.O. Nation, the Gila River Indian Community, and the Salt River Pima-Maricopa Indian Community were three of the Tribes that participated in these negotiations with the State.

And in the fall of 2002, Arizona voters authorized the governor to execute the standard gaming compact with the various Tribes. The compacts determine the Tribes’ abilities to put casinos on their reservation lands.

Meanwhile, the T.O. Nation had begun the process of acquiring land under the Land Act. In 2003, acting through its wholly-owned corporation, Rainier Resources, Inc., the T.O. Nation acquired a parcel of unincorporated land at 91st and Northern avenues, adjacent to Glendale. The Secretary of the Interior ultimately took the land into trust as part of the T.O. Nation’s Indian Reservation.

This land acquisition and the Secretary’s “land into trust” decision did not sit well with some of the Tribes in Metro Phoenix. The Salt River Pima-Maricopa Indian Community and the Gila River Indian Community, along with the State of Arizona, challenged the T.O. Nation in federal court.

In 2012, the federal Ninth Circuit Court of Appeals upheld the Secretary of the Interior’s “land into trust” decision. In November of 2012, the T.O. Nation filed a motion for summary judgment for the rest of the case.

But in January of 2013, apparently still eager to prevent the T.O. Nation from locating a casino on the property near Glendale, the plaintiffs filed a cross motion. Among other things, the plaintiffs allege that a casino on the Glendale property would violate the 2002 gaming compact and that the T.O. Nation violated the Nation’s duty of good faith and fair dealing by negotiating the 2002 gaming compact without informing the other Tribes and the State about its intent to place a casino near Glendale.

Though the T.O. Nation has certainly had a string of wins in this case, the case is not yet over. If the T.O. Nation ultimately succeeds, then Indian Gaming may become a reality in the west Phoenix metro area. Wagers, anyone?

The case is The State of Arizona, et al., v. The Tohono O’Odham Nation, docketed at Case No. 2:11-cv-296-DGC.

This article is intended for general information only. It should not be construed as legal advice with respect to any particular situation. Readers should not act upon information contained in this article without first consulting their lawyer.

rsz_roger_owersRoger S. Owers is the Managing Partner of the Kaibab Law Offices of Roger S. Owers, LLC. He provides legal representation in the areas of design law, construction law, and Indian law. Roger holds a Ph.D. in civil engineering, is a registered professional civil engineer, and is a licensed attorney. He can be reached via e-mail at rogerowers@kaibablaw.com or kaibablaw.com.