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Analysts Say Questions Over West Valley Casino Could Take Years To Settle

Ned Norris
(Photo by Carrie Jung - KJZZ)
Tohono O'odham Nation Chairman Ned Norris addresses the crowd before breaking ground on the tribe's casino project.

In August the Tohono O’odham Nation officially broke ground on The West Valley Resort and Casino. Getting to this point hasn’t been easy. The casino has faced significant pushback in the community. And it may not be over yet.

More than 300 people gathered for the casino’s groundbreaking ceremony.

"Today was a day that was a long time in coming," said Tohono O'odham Chairman Ned Norris. "The result of a long struggle."

Much of the controversy over the casino can be traced back to where it will be built. The land is on a county island near Phoenix, about 100 miles north of the Tohono O’odham Nation’s main reservation just outside of Tucson. The tribe purchased it in 2003.

This purchase happened about a year after a tribal-state gaming compact was passed by voters. It’s caused a rift amongst the state’s gaming tribes in the area ever since.

Diane Enos is the President of the Salt River Pima-Maricopa Indian Community. Enos’ community operates two casinos in the Phoenix Valley. Her tribe, the state, and another local tribe have been involved in litigation to stop construction.

"The proposal by the Tohono O’odham Nation’s West Valley Casino is a direct violation of the spirit of the compact," Enos said.

Enos argues that one of the main purposes of the 2002 state compact was to limit the expansion of Vegas style gaming within the state with a special focus on Maricopa County. It did this by limiting the number of casinos that could be built and confining them to tribal land.

But there’s a loophole. The compact does not include explicit language prohibiting where new casinos can be built. And when it was approved by voters in 2002 Enos says no one knew the Tucson-area Tohono O’odham tribe would buy this land near Glendale.

"That’s really a critical piece here," she said. "The fact that we all relied on their promises is the point here with the misrepresentation."

But Norris argues that's not true.

"In the mid 1990s, the nation informed the President of the Salt River Pima Maricopa Indian Community that the nation was looking to take land into trust in west Phoenix for gaming purposes," he said.

Wherever the truth lies, Enos has another concern. The compact also includes a clause that would open the state up to non-Indian gaming if it’s violated. She worries that this new casino could be seen as a violation.

"The Tohono O’odham have learned very well from the non-Indians, the federal government, the United States, how you do Indian people dirty and then smile at the same time," she said.

Enos says the Tohono O’odham Nation is now part of those dirty tricks because the tribe bought the land in question through a shell company, a company that exists primarily on paper to make financial maneuvers. But Norris said there was a good reason for that.

"Once the nation identified certain lands that it may have been interested in, the property owners, in one case, valued their property at $30 million," he said. "We were not getting a fair market price for any of the property. And so that was the only way we were able to get that fair market value was to remove the tribe’s name."

So far, more than a dozen rulings have been made in the casino's favor.

Another argument against it that could prevent construction may be a federal law. That’s according to Carl Artman, a law professor at Arizona State University and a former U.S. Assistant Secretary of Indian Affairs during the Bush Administration

He explains that Vegas-style, or Class III, gaming is generally prohibited on Indian land acquired after 1988, with a few exceptions. One of them being if the land was part of a land settlement. That’s what the Tohono O’odham tribe is arguing.

"The land was acquired after 1988, but it was acquired with funds that were given to the tribe to help them replace lands lost by the development of a dam on the Gila River," Artman said.

But Artman argues that was an amicable agreement and not a controversial settlement.

"There is case law out there which states that if there is not a case in controversy, how can you have a settlement of a land claim," Artman said.

Last May a district court in Phoenix ruled the land near Glendale can be considered part of a "land claim," though there is a possibility that decision could be appealed, which would protract the issue even further.

For the time being though, the project is going forward.

Updated 10/20/2014 at 1:32 p.m.

Carrie Jung was a senior field correspondent from 2014 to 2018.