Casino Ruling

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The U.S. Department of Interior issued a ruling last Thursday, giving the Tohono O’odham tribe final approval to make land it owns near Glendale part of the Tucson-area reservation. That removes a major obstacle for a casino to be built on the land. Heidi McNeil Staudenmaier, a partner in the Snell and Wilmer law firm and an expert on Indian and gaming law, discusses the ruling.

Ted Simons: The U.S. Department of Interior ruled last week that the Tohono O'odham tribe can claim that land the tribe owns near Glendale is part of the tribe's reservation. Here to tell us what the ruling means regarding plans to build a tribal casino on the land, is Heidi Mcneil Staudenmaier, a partner in the law firm of Snell and Wilmer and an expert on Indian and gaming law. Good to see you again.

Heidi Mcneil Staudenmaier: Thank you.

Ted Simons: We always ask you in when something happens and it always seems to side with the tribe. What did the department of interior exactly decide?

Heidi Mcneil Staudenmaier: The department had issued a ruling several years ago which said that the tribe had the legal right to take this particular land, the 54 acres in Glendale into trust. That decision was then the subject of a lawsuit in Arizona federal court. The Arizona federal court judge said you're right, you can take it in a trust. It was then appealed to the ninth circuit Court of Appeals. The ninth circuit also generally agreed with that but they said you know what? We don't think the secretary of the interior addressed an issue of whether or not the land at issue lies within the corporate limits and that's what's important here, the language of corporate limits of Glendale and so they said okay, secretary of the interior, I want you to look at this again, and look at it specifically in the context of does this land lie within the corporate limits of Glendale? That was the sole issue that the secretary was to look at.

Ted Simons: They basically were looking for clarification?

Heidi Mcneil Staudenmaier: Yes.

Ted Simons: So the -- what does that mean? I think everyone can figure out a county island is not involved in a city. What's going on here?

Heidi Mcneil Staudenmaier: Well, the arguments that were made by the opponents is that this land, it is a county island. There are three sides of it that are under the jurisdiction of Glendale and they said well, you know what, that really was not intended by this act to let this little island escape and therefore, the tribe should not be permitted to take this county island into trust. And so the secretary said we have to figure out what does within the corporate limits mean, and went through a very -- the ruling is 19 pages. It's very detailed in terms of the analysis, looking at policy issues and legal issues and case law. And at the end of the day, the secretary of the interior actually -- actually, it was the assistant secretary of Indian affairs Kevin Washburn who determined that what they needed look at was had the city of Glendale actually annexed this land into the city? And the assistant secretary said no. Didn't annex the land, end of story.

Ted Simons: So 19 pages of clarification there for the ninth circuit and I would imagine the ninth circuit now has enough clarification. What exactly will they be deciding on?

Heidi Mcneil Staudenmaier: Well, this was now ruled on by the secretary of the interior. Whether it goes back to the ninth circuit again to look at or whether or not the city of Glendale may have to start another lawsuit over again on this issue, I guess procedurally, I'm not quite sure other than I know it will probably continue to be litigated by someone, whether it's by the city of Glendale or the other tribes that are opposing this.

Ted Simons: Everybody's looking at the compacts regarding Indian gaming and the legality of opening that casino in the metro Phoenix area. Those seem to be overriding principles here. Where do they stand with this decision? Does anything change along those lines?

Heidi Mcneil Staudenmaier: I think in terms of the casino again, we've talked about this in the past. There are a lot of different challenges that the tribe, the Tohono O'odham tribe has faced in trying to get a casino off the ground. This is just one more step that they've taken forward. This decision is very careful to say that we are not making a decision on gaming. Basically the decision says you have the right, tribe, to take the land into trust and what that means is that the tribe will have jurisdiction over the land. They can exercise all rights over it as if it is new reservation land but it doesn't necessarily mean from that opinion that the secretary of the interior has made a decision that they can conduct gaming on it.

Ted Simons: Salt river tribe president said that this decision could lead the tribe, Tohono O'odham, any tribe, acquiring other county islands and building casinos on those county islands. Is that valid?

Heidi Mcneil Staudenmaier: Well, I understand the arguments being made. But the thing that you have to keep in mind here is that the underlying background for giving the tribe their legal rights for taking the land into trust is the gila bend act. There are very strict conditions and requirements for what the tribe needed to do in order to qualify for being able to take land into trust. The gila bend act is only applicable to the Tohono O'odham tribe. This is very fact specific. So in terms of the slippery slope argument of whether this is going to lead to other tribes or other instances of tribes taking land into trust in the middle of Los Angeles or New York City, I understand those arguments, but I think they're going to be extremely difficult legal challenges for that to ever occur.

Ted Simons: What about in parts of the Phoenix area, as opposed to New York and Los Angeles and those sorts of places?

Heidi Mcneil Staudenmaier: In terms of other tribes or the Tohono O'odham?

Ted Simons: The Tohono O'odham tribe.

Heidi Mcneil Staudenmaier: The gila bend act was very specific in terms of what the requirements and conditions were. They were limited to how many parcels that they could take into trust. They were limited by how much land they could take into trust and they were limited by the counties. So I think that with those sort of restrictions in mind, it would be very difficult for this same situation to occur again.

Ted Simons: Last question. We've heard critics of this whole thing saying if the Tohono O'odham tribe are allowed to do this, it blows up the gaming compact and all sorts of mayhem will result. Is that valid?

Heidi Mcneil Staudenmaier: There is a separate lawsuit that's pending on that compact issue of whether or not the tribe is allowed to game under the compact because if they want to have class three gaming, they have to have a compact. But that lawsuit is now at the ninth circuit and it is being fully briefed, and I think there probably will be oral argument held later this year. There may be a decision on that next year. So I think that one is in the courts and who knows how that's going to end up?

Ted Simons: It's always good to have you here to explain what is a very complicated and never-ending it seems situation. Thanks for joining us. We appreciate it.

Heidi Mcneil Staudenmaier: Thank you.

Ted Simons: And that is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.

Heidi McNeil Staudenmaier:Partner, Snell and Wilmer;

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