U.S. Court of Appeals Decision Favors Tohono O'odham Nation but Requires Feds to Better Explain Decision to Approve West Valley Reservation

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TON-Gravesite-Flooded.jpg
A portion of the Tohono O'odham reservation subject to constant flooding after the feds built a dam in the area.
If you're keeping score in the Tohono O'odham Nation's epic -- and seemingly endless -- battle against state and local officials to build a resort-style casino in the West Valley, chalk up another point for the Nation.

The Nation unveiled in 2009 plans to build the West Valley Resort and Casino near 95th and Northern avenues, and met with immediate opposition. The Nation became enmeshed in lawsuits from the city of Glendale, the state of Arizona, and fellow Indian tribes, primarily the Gila River Indian Community.

As with various other legal rulings that have trickled down from U.S. Ninth Circuit Court of Appeals, the latest opinion has not been a precise jackpot for the Nation. However, it does follow in a string of favorable legal decisions for the TO and improves the Nation's odds of eventual victory by knocking down opponent's arguments.

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In its decision issued today, the appellate court threw out a few of the opposition's arguments. It declined opponents' request for the case to be heard en banc, which means considered by all the appellate court judges.

And it asked the Department of Interior to explain how it arrived at the decision to take the Nation's West Valley land into trust, effectively converting the land into a reservation.

Regarding the latter, consider: The Gila Bend Indian Reservation Lands Replacement Act is a law adopted in 1986 that allows the TO to replace about 10,000 acres of lands destroyed by a federal dam project in the 1960s.

That law says the replacement lands can be located in Pinal, Pima, and Maricopa counties, but can not be "within the corporate limits" of a city.

The Department of Interior looked at the land and decided that because it sits on an unincorporated section of Marciopa County, it was not "within" those corporate limits. As a result, they accepted Nation-owned land near 95th and Northern avenues (site of the future casino) into trust, effectively turning the land into a reservation.

Glendale and Gila River Indian Community officials argue that the Nation's land is "within" the City of Glendale because, although a county island, it is surrounded by incorporated Glendale properties.

The appellate court is looking for a better explanation from the Department of Interior on how they arrived at that decision.

Some of the arguments knocked off the table -- opponents claim the Nation has already exceeded the number of acres it was allowed to buy as part of the Gila Bend Act.

The appellate court disagreed, stating in its majority opinion today that even with the 54-acres in the West Valley land being accepted as a reservation, the Nation "remain(s) well below the 9,880-acre cap on trust land."

There were other opposition arguments dismissed by the court, including a couple claiming that the Gila Bend Act exceeds Congress's power under the Indian Commerce Clause and violates the 10th Amendment.

Out those went, partly because even the Glendale's lawyers making those arguments "agreed" they were asking the "court to break new ground on this issue -- to depart from every court decision that has previously addressed it."


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