The chairman said the casino has been redesigned to fit in architecturally with its surroundings, namely University of Phoenix Stadium. It is currently drawn at 55,000 square feet, which is about a third of the original size. Tribal leaders say it could grow in future phases.(Photo: Courtesy of Hnedak Bobo Group)
Story Highlights
- The Tohono O'odham Nation announced last week that it has hired four construction- and project-management firms for its proposed resort and casino near Glendale's sports and entertainment district.
- The tribe could start construction now, depending on the level of risk it is willing to take, according to legal experts.
- The biggest legal question is whether the tribe can open a casino on its new reservation.
The tribal casino and resort planned near Glendale's sports and entertainment district still faces some court battles as well as a new effort by Arizona's U.S. senators to scuttle the project, but legal experts say the Tohono O'odham Nation could take a gamble and start construction now.
The Tohono O'odham Nation announced last week that it had hired four construction- and project-management firms for the mega-project. That came one day after U.S. Sens. John McCain and Jeff Flake of Arizona introduced a bill to block the casino.
Some experts say the Tohono O'odham would be wise to get specific approval from the National Indian Gaming Commission before opening a casino. And although most court battles have gone in favor of the Tohono O'odham, a few remain.
Heidi McNeil Staudenmaier, an attorney with Snell & Wilmer in Phoenix, said whether to build now depends on how big a risk of being shut down the Tohono O'odham are willing to take.
"The safest route is to wait until everything's done," said Staudenmaier, who specializes in Indian and gambling law. "Now, how long is that going to be? Two months? A year? Several years? Or are there certain risks that the people involved are willing to take?"
So far, the tribe is not showing its cards.
The project has generated controversy since the tribe announced it five years ago. At the time, Tohono O'odham leaders began seeking federal approval to designate tribal land in the West Valley as a reservation.
That designation from the U.S. Department of Interior came in July. The 54 acres bordering Glendale and Peoria are now part of the reservation.
How the West Valley got a reservation
The small reservation, a stone's throw from University of Phoenix Stadium and Jobing.com Arena, is the West Valley's first.
Glendale leaders were shocked when they learned of the plan in 2009. City leaders had someday hoped to annex the county island near 95th and Northern avenues, adding tax revenue to city coffers. A reservation takes that off the table.
Glendale spent more than $3 million fighting the tribe's plans, but elected leaders recently changed their position and began negotiating with tribal leaders.
The Tohono O'odham relied on a congressional settlement, approved during President Ronald Reagan's administration, to replace reservation land near Gila Bend that was damaged by flooding. The settlement allowed the tribe to acquire other reservation land in Maricopa County or two other counties, as long as it was outside of a municipality.
Federal regulations typically prohibit gambling on Indian lands acquired after 1988, but there are a few exceptions, including if the land was acquired as part of a settlement in a land claim. The Tohono O'odham believe they meet that exception.
Is gambling allowed?
The biggest legal question is whether the tribe can open a casino on its new reservation.
"They can build whatever they want. Whether they can game in the casino they build is another question," said Robert Clinton, a law professor at Arizona State University. "And that, nothing has been resolved on."
Clinton said the issue would gain clarity if the tribe sought approval from the National Indian Gaming Commission. However, such approval is not legally required, he said.
"They may not require it, but it's a great risk to open a casino without one. Of course, that's gambling," Clinton said.
The tribe previously sought commission approval, but the commission said it was premature because the land was not designated as a reservation at that time.
Staudenmaier said there are other ways to determine whether the tribe can open a casino on the land. Rather than seek the commission's approval, the tribe could use its success in past court rulings as proof enough.
At a recent Senate hearing in Washington, D.C., Tohono O'odham Chairman Ned Norris Jr. discussed the tribe's ability to open a casino on the land.
"The Nation's right is based on the promises the United States made in the 1986 Gila Bend Act and in the 1987 Settlement Agreement," he said, referring to the congressional settlement.
During the hearing, McCain questioned Kevin Washburn, U.S. Bureau of Indian Affairs assistant secretary and the person who issued trust status for the tribe's land.
"Unless Congress acts in a way to prohibit what's happening now, it is inevitable that you will see the Tohono O'odham tribe operating a casino in Glendale?" McCain asked with a tone of resignation.
While Washburn acknowledged that the hurdles to opening a casino were small, he told McCain, "Nothing's ever a sure thing in Indian gaming, Senator."
Years of court battles
The tribe is still waiting on a final ruling from the 9th U.S. Circuit Court of Appeals on the compacts governing Indian gaming and the issue of additional casinos in metro Phoenix.
The 9th Circuit judges had placed the Arizona case on hold earlier this year pending a U.S. Supreme Court decision in a separate case dealing with tribal sovereign immunity, which protects tribes from getting sued in most cases. The U.S. Supreme Court ruled in that tribe's favor in May, but the 9th Circuit judges have yet to issue a final ruling in the Tohono O'odham case.
The recently introduced Senate bill adds to the Tohono O'odham's risk. The measure is patterned after a bill that Rep. Trent Franks introduced in the U.S. House of Representatives last fall. Franks' bill passed in the House but was not taken up in the Senate.
This was Franks' second attempt at introducing legislation to stop the West Valley casino. In 2012, the House passed a similar bill, which was opposed by the Obama administration and never taken up in the Democrat-controlled U.S. Senate.
Moving forward
The casino resort team hired by the tribe consists of Hunt Construction Group and PENTA Building Group for construction and Rider Levett Bucknall and Summit Project Management for representation.
Despite announcing its construction team, a Tohono O'odham spokesman refused to say when it might break ground.
Once construction starts, it will take about 18 months to complete, according to Ward Simpson, a principal at Rider Levett Bucknall and a project director for the resort and casino.
The company was hired last October and has been working on the project ever since, Simpson said, helping to select contractors, create the budget and more.
"All the legal issues around this project are nothing like I've ever seen, and I've worked on projects from the Pentagon to school districts and universities and art museums," he said. "This is a very big project for us, so we are thrilled to be part of it."
Glendale City Councilman Gary Sherwood said that, in terms of the tribe being able to have a casino, "They're clear to go."
Council members will publicly announce what the tribe has offered and the city has negotiated at their next workshop today. The council then will likely vote on entering into a financial arrangement with the tribe next Tuesday.
"At that point, it's over with as far as the city's concerned," Sherwood said.
Gov. Gregory Mendoza of the Gila River Indian Community spoke out against the Tohono O'odham's announcement. The Gila River tribe owns the only other casino in the West Valley, Vee Quiva Hotel & Casino in Laveen.
"The Nation surely will continue to put out one press release after another claiming they're ready to go full speed ahead on their neighborhood casino. However, this project still faces the possibility of congressional action, a lawsuit in federal court and the strong potential for future litigation," Mendoza said.
July 3, 2014
The Tohono O'odham Nation's land is taken into trust
The U.S. Department of the Interior reaffirms its decision that the tribe's land at 95th and Northern avenues is not within Glendale's city boundaries and took the land into trust. Therefore, the 54-acre parcel became part of the Tohono O'odham Reservation, on which the tribe can build anything.
July 28, 2014
McCain, Flake introduce bill to stop casino
U.S. Sens. John McCain and Jeff Flake of Arizona introduce a bill to prohibit any new casinos in metropolitan Phoenix. The legislation is a companion bill to U.S. House Bill 1410, which was introduced by Rep. Trent Franks of Arizona and approved by the House in September.
August 5, 2014
Glendale City Council to announce details of casino negotiations
The council will publicly announce what the tribe has offered and the city has negotiated at their next workshop at 1:30 p.m. Tuesday, Aug. 5, in the council chambers. Then, the council will likely vote on entering into a financial arrangement with the tribe at their Aug. 12 meeting.
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