Gila River Indian Community v. United States , 697 F.3d 886 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILA RIVER INDIAN COMMUNITY, a 
federally recognized Indian Tribe;
DELVIN JOHN TERRY; CELESTINO
RIOS; BRANDON RIOS; DAMON RIOS;
CAMERON RIOS,
Plaintiffs,
JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona Legislature,
Senate Majority Leader; STATE OF
ARIZONA; KIRK ADAMS, Arizona
Legislature, Speaker of the House,
Intervenor-Plaintiffs,
and No. 11-15631
D.C. Nos.
CITY OF GLENDALE; MICHAEL
SOCACIU; GARY HIRSCH,  2:10-cv-01993-DGC
Plaintiffs-Appellants, 2:10-cv-02017-DGC
2:10-cv-02138-DGC
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; KENNETH LEE SALAZAR,
in his official capacity as United
States Secretary of the Interior;
LARRY ECHO HAWK, in his official
capacity as the Assistant Secretary
for Indian Affairs of the United
States Department of the Interior,
Defendants-Appellees,
TOHONO O’ODHAM NATION,
Intervenor-Defendant-Appellee.

10951
10952 GLENDALE v. UNITED STATES
GILA RIVER INDIAN COMMUNITY, a 
federally recognized Indian Tribe;
CITY OF GLENDALE; MICHAEL
SOCACIU; DELVIN JOHN TERRY;
CELESTINO RIOS; BRANDON RIOS;
DAMON RIOS; CAMERON RIOS; GARY
HIRSCH,
Plaintiffs,
JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona Legislature,
Senate Majority Leader; KIRK
ADAMS, Arizona Legislature,
Speaker of the House,
Petitioners-intervenors,
No. 11-15633
and
 D.C. No.
STATE OF ARIZONA, 2:10-cv-01993-DGC
Intervenor-Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; KENNETH LEE SALAZAR,
in his official capacity as United
States Secretary of the Interior;
LARRY ECHO HAWK, in his official
capacity as the Assistant Secretary
for Indian Affairs of the United
States Department of the Interior,
Defendants-Appellees,
TOHONO O’ODHAM NATION,
Intervenor-Defendant-Appellee.

GLENDALE v. UNITED STATES 10953
GILA RIVER INDIAN COMMUNITY, a 
federally recognized Indian Tribe,
Plaintiff-Appellant,
and
CITY OF GLENDALE; MICHAEL
SOCACIU; DELVIN JOHN TERRY;
CELESTINO RIOS; BRANDON RIOS;
DAMON RIOS; CAMERON RIOS, GARY
HIRSCH,
Plaintiffs,
JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona Legislature, No. 11-15639
Senate Majority Leader; STATE
D.C. Nos.
OF ARIZONA, KIRK ADAMS, Arizona
Legislature, Speaker of the House,  2:10-cv-01993-DGC
Intervenor-Plaintiffs, 2:10-cv-02017-DGC
2:10-cv-02138-DGC
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; KENNETH LEE SALAZAR,
in his official capacity as United
States Secretary of the Interior;
LARRY ECHO HAWK, in his official
capacity as the Assistant Secretary
for Indian Affairs of the United
States Department of the Interior,
Defendants-Appellees,
TOHONO O’ODHAM NATION,
Intervenor-Defendant-Appellee.

10954 GLENDALE v. UNITED STATES
GILA RIVER INDIAN COMMUNITY, a 
federally recognized Indian Tribe;
CITY OF GLENDALE; MICHAEL
SOCACIU, GARY HIRSCH,
Plaintiffs,
JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona Legislature,
Senate Majority Leader; STATE
OF ARIZONA, KIRK ADAMS, Arizona
Legislature, Speaker of the House,
Intervenor-Plaintiffs,
and
No. 11-15641
DELVIN JOHN TERRY; CELESTINO
D.C. Nos.
RIOS; BRANDON RIOS; DAMON RIOS;
CAMERON RIOS,  2:10-cv-01993-DGC
Plaintiffs-Appellants, 2:10-cv-02017-DGC
2:10-cv-02138-DGC
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; KENNETH LEE SALAZAR,
in his official capacity as United
States Secretary of the Interior;
LARRY ECHO HAWK, in his official
capacity as the Assistant Secretary
for Indian Affairs of the United
States Department of the Interior,
Defendants-Appellees,
TOHONO O’ODHAM NATION,
Intervenor-Defendant-Appellee.

GLENDALE v. UNITED STATES 10955
GILA RIVER INDIAN COMMUNITY, a 
federally recognized Indian Tribe;
CITY OF GLENDALE; MICHAEL
SOCACIU; DELVIN JOHN TERRY;
CELESTINO RIOS; BRANDON RIOS;
DAMON RIOS; CAMERON RIOS, GARY
HIRSCH,
Plaintiffs,
STATE OF ARIZONA,
Intervenor-Plaintiff,
and
JOHN MCCOMISH, Arizona
Legislature, Majority Leader,
CHUCK GRAY, Arizona Legislature, No. 11-15642
Senate Majority Leader, KIRK D.C. Nos.
ADAMS, Arizona Legislature,
Speaker of the House, Andy  2:10-cv-01993-DGC
2:10-cv-02017-DGC
Tobin, House Majority Whip, 2:10-cv-02138-DGC
Intervenor-Plaintiff-Appellants, OPINION
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; KENNETH LEE SALAZAR,
in his official capacity as United
States Secretary of the Interior;
LARRY ECHO HAWK, in his official
capacity as the Assistant Secretary
for Indian Affairs of the United
States Department of the Interior,
Defendants-Appellees,
TOHONO O’ODHAM NATION,
Intervenor-Defendant-Appellee.

10956 GLENDALE v. UNITED STATES
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
April 16, 2012—San Francisco, California
Filed September 11, 2012
Before: M. Margaret McKeown, N. Randy Smith, and
Jacqueline H. Nguyen,* Circuit Judges
Opinion by Judge McKeown;
Dissent by Judge N.R. Smith
*The Honorable Jacqueline H. Nguyen was a District Judge for the U.S.
District Court for the Central District of California sitting by designation
at the time of argument and submission.
10958 GLENDALE v. UNITED STATES
COUNSEL
Patricia A. Millet, Akin Gump Strauss Hauer & Feld, Wash-
ington, D.C., for plaintiff-appellant Gila River Indian Com-
munity; Catherine E. Stetson, Hogan Lovells, Washington,
D.C., for plaintiff-appellant City of Glendale; David R. Cole,
Dep. State Atty. Gen., Phoenix, Arizona, for plaintiff-
intervenor-appellant State of Arizona.
Aaron P. Avila, Dep’t of Justice, Washington, D.C., for
defendants-appellees the United States of America, et. al.;
Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr,
Washington, D.C., for defendant-intervenor-appellee the
Tohono O’Odham Nation.
GLENDALE v. UNITED STATES 10959
OPINION
McKEOWN, Circuit Judge:
This case illustrates the nuances of our federalist system of
government, pitting Indian tribe against Indian tribe, and State
and local governments against the federal government and an
Indian tribe. The City of Glendale and various other parties
(“Glendale”) seek to set aside the Department of the Interior’s
decision to accept in trust, for the benefit of the Tohono
O’odham Nation (“the Nation”), a 54-acre parcel of land
known as Parcel 2. The Nation hopes to build a destination
resort and casino on Parcel 2, which is unincorporated county
land, entirely surrounded by the City of Glendale. To say this
plan has been controversial is an understatement. But the
strong feelings and emotional drama of the casino fight do not
dictate the outcome here. This appeal relates only to the status
of the land as trust land and does not involve the particulars
of Indian gaming, which are the subject of separate proceed-
ings and pending legislation. The district court granted sum-
mary judgment for the government after concluding that the
Secretary of the Interior reasonably applied the Gila Bend
Indian Reservation Lands Replacement Act (“Gila Bend
Act”), and that the Act did not violate the Indian Commerce
Clause or the Tenth Amendment. We affirm.
BACKGROUND
I. THE GILA BEND ACT
The Nation, earlier known as the Papago Tribe of Arizona,
is a federally recognized Indian Tribe with over 28,000 mem-
bers. The Gila Bend Reservation was established as early as
1882. Today, the reservation includes non-contiguous land
located near Tucson, Phoenix, and the town of Gila Bend, as
well as points in between. In 1960, the federal government
completed construction of the Painted Rock Dam ten miles
downstream from the Gila Bend Reservation. During the late
10960 GLENDALE v. UNITED STATES
1970s and early 1980s, the reservation was plagued by flood-
ing from the dam, which eventually destroyed a large farm
developed by the Nation, leaving the land unsuitable for eco-
nomic use.
Congress responded to the flooding and the Nation’s peti-
tion for a new reservation with the Gila Bend Act. The pur-
pose of the Act was to “facilitate replacement of reservation
lands with lands suitable for sustained economic use which is
not principally farming . . . and promote the economic self-
sufficiency of” the Nation. Pub. L. No. 99-503, 100 Stat.
1798, § 2(4). Under § 4 of the Act, the Nation transferred
9,880 acres of reservation land to the United States in return
for $30 million and the right to replace the lost reservation
acre-for-acre. Id. at §§ 4(a), 6(c). Subject to the requirements
and limitations of the Act, the Secretary of the Interior is
required to take up to 9,880 acres of land into trust for the
benefit of the Nation, effectively making the land part of the
Nation’s reservation. Id. at § 6(d).
The Act permits the Nation to use the funds for various
purposes, including the purchase of land, and economic and
community development. § 6(a).1 Section 6(c) imposes acre-
age limits.2 Section 6(d) establishes that trust land refers to
land under subsection (c), and that such land cannot be taken
into trust as reservation land if it is (i) outside certain coun-
ties, or (ii) “within the corporate limits of any city or town.”3
1
“The Tribe shall invest sums received under section 4 in interest bear-
ing deposits and securities until expended. The . . . [Nation] may spend the
principal and the interest and dividends accruing on such sums . . . for land
and water rights acquisition, economic and community development, and
relocation costs.” § 6(a).
2
“The Tribe is authorized to acquire by purchase private lands in an
amount not to exceed, in the aggregate, nine thousand eight hundred and
eighty acres.” § 6(c).
3
“The Secretary, at the request of the Tribe, shall hold in trust for the
benefit of the Tribe any land which the Tribe acquires pursuant to subsec-
GLENDALE v. UNITED STATES 10961
Over the decades after passage of the Act, the Nation
acquired land in Arizona but only one parcel has been taken
into trust. Then, in 2003, the Nation purchased the disputed
land as part of a 135-acre acquisition. The land is a “county
island,” surrounded entirely by the City of Glendale. A county
island is unincorporated land surrounded entirely by lands
incorporated by the municipality. See Town of Gilbert v.
Maricopa Cnty., 141 P.3d 416, 418 n.1 (Ariz. Ct. App. 2006)
(describing county island).
In 2009, the Nation announced plans to use the land for
gaming purposes and filed an application with the Department
of the Interior to have the land held in trust under the Gila
Bend Act. In response, the City of Glendale sought to annex
a portion of the 135 acres. The Nation filed suit in state court
challenging the annexation effort.4 Due to ongoing state litiga-
tion, without relinquishing its claim to the full 135 acres, the
Nation requested that the Department of the Interior accept
into trust only a 54-acre portion of the land not at issue in
state court: Parcel 2, the subject of this appeal.5
tion (c) which meets the requirements of this subsection. Any land which
the Secretary holds in trust shall be deemed to be a Federal Indian Reser-
vation for all purposes. Land does not meet the requirements of this sub-
section if it is outside the counties of Maricopa, Pinal, and Pima, Arizona,
or within the corporate limits of any city or town.” § 6(d).
4
The Nation ultimately prevailed on appeal. See Tohono O’odham
Nation v. City of Glendale, 253 P.3d 632 (Ariz. Ct. App. 2011), petition
for review denied Oct. 25, 2011.
5
The dissent recounts various facts at length to provide, in its view, “the
rest of the story.” In effect, the dissent along with the parties opposing the
trust designation, infuse the appeal with the Nation’s economic motives
and plans for Indian gaming on the trust land. But those issues are not on
appeal. We do not and are not called upon to express an opinion as to the
availability of the trust land for use as a casino. That question is tied up
in other litigation and the legislation that recently passed the House of
Representatives. See Gila Bend Indian Reservation Lands Replacement
Clarification Act. H.R. REP. No. 112-440 (2012). This issue does not bear
on our interpretation of the Gila Bend Act.
10962 GLENDALE v. UNITED STATES
II. PRIOR PROCEEDINGS AND DECISIONS
Although the Department of the Interior treated the
Nation’s trust application as an ex parte filing, in March 2009,
both the City of Glendale and the Gila River Indian Community6
filed lengthy submissions opposing the trust application. Their
submissions argued that Parcel 2 fell “within the corporate
limits” of the City of Glendale and was therefore ineligible for
trust status under § 6(d) of the Gila Bend Act.
The Secretary of the Interior concluded that the require-
ments of the Gila Bend Act were met. Specifically, Parcel 2
is wholly within Maricopa County and is outside the City of
Glendale’s corporate limits. In considering whether the land
qualified for trust status under § 6(d), the Secretary explained
that “[t]he Western Regional Director of the BIA, acting
under authority of the Secretary, issued a waiver under Sec-
tion 6(d) . . . that allowed the Nation to purchase up to five
(5) separate areas of replacement land, rather than three, and
further waived the requirement that one of these areas be con-
tiguous to the San Lucy reservation.” In any event, since Par-
cel 2 is only the second replacement land area to be held in
trust under the Act, those waivers do not directly implicate the
analysis here. Thus, in accord with the mandate of the Act, the
Secretary determined that Parcel 2 must be held in trust for
the Nation.
In upholding the Secretary of the Interior’s decision, in a
careful, comprehensive opinion, the district court concluded
that Glendale had waived its argument regarding a total acre-
age cap under § 6(c) of the Act, because it failed to raise the
issue in the administrative proceeding.7 The district court then
6
The Gila River Indian Community is a separate tribe whose gaming
interests are implicated by the Nation’s plans to develop a casino on Parcel
2.
7
We note that, according to the Secretary, the normal “notice and com-
ment provisions of 25 C.F.R. §§ 151.10 and 151.11(d), requiring that the
BIA [Bureau of Indian Affairs] notify state and local governments of the
land-into-trust application, are not applicable” to this transaction.
GLENDALE v. UNITED STATES 10963
deemed the statutory language “within the corporate limits” in
§ 6(d) to be ambiguous as to county islands like Parcel 2, and
concluded that Arizona law was inconclusive. Applying
Chevron, the court deferred to the agency’s interpretation of
the statute and affirmed the trust decision as “based on a per-
missible construction of the statute.” See Chevron, U.S.A.,
Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843
(1984). Finally, the district court rejected the constitutional
arguments under the Tenth Amendment and the Indian Com-
merce Clause.
“We review the grant of summary judgment de novo, thus
reviewing directly the agency’s action under the Administra-
tive Procedure Act’s (APA) arbitrary and capricious stan-
dard.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife
Serv., 378 F.3d 1059, 1065 (9th Cir. 2004).
ANALYSIS
We first consider two questions of statutory interpretation:
Whether the Gila Bend Act’s trust land acreage limits are
implicated, and whether Parcel 2 is “within” the corporate
limits of the City of Glendale. The remaining issues pertain
to the limits of congressional power under the Indian Com-
merce Clause and the Tenth Amendment.8
I. THE ACREAGE LIMIT IN SECTION 6(C)
Section 6(c) of the Gila Bend Act provides that the Nation
“is authorized to acquire by purchase private lands in an
amount not to exceed, in the aggregate, 9,880 acres.” In turn,
the following subsection, 6(d), describes trust land as being
land acquired “pursuant to subsection (c).” Before the district
8
The Gila River Indian Community and the Terry and Rios appellants
appeal only as to the acreage issue. The City of Glendale and the various
Arizona appellants (collectively “Arizona appellants”) appeal as to all of
the issues.
10964 GLENDALE v. UNITED STATES
court, Glendale argued for the first time that § 6(c) precludes
the Nation from acquiring more than 9,880 acres with money
from the Act and that the Nation already had exceeded that
acreage cap before acquiring Parcel 2. The Nation responds
that the cap only applies to land held in trust via § 6(d), and
not to land remaining in fee status.
While the Secretary of the Interior did not squarely con-
sider the acreage cap because the issue was never framed as
a barrier to taking Parcel 2 in trust, reading the Secretary’s
decision in context is telling. In determining whether the
§ 6(d) trustee requirements were met, the Secretary read the
statute as creating a cap on land that could be held in trust
under the Gila Bend Act, not as a cap on the total acreage that
the Nation could acquire. The Secretary explained the basis of
this reading, noting that “[t]he first, and so far only, land
acquired in trust for the Nation” was 3,200.53 acres acquired
in September 2004. The decision goes on to state that there
was another trust application for 3,759.52 acres but that the
land was still held in fee. Therefore, the Secretary did not
consider land held in fee as relevant to the analysis of the
acquisition limitations under the Gila Bend Act. The decision
explicitly counts only the fee-to-trust lands, not lands remain-
ing in fee status.
During agency proceedings, the Gila River Indian Commu-
nity, one of the parties now raising the acreage cap argument,
noted, in contrast to its current position, that “[s]ection 6(c)
limits the number of acres that may be placed into trust to no
more than 9,880 acres.” Appellants, including the Gila River
Indian Community, now take the opposite position and argue
that because the agency proceedings were non-adversarial, the
issue should be considered on the merits. The Nation and the
government maintain that the acreage cap argument was
waived. The ultimate question is one of statutory construction.
[1] Assuming, without deciding, that the argument was not
waived, we hold that the statute read as a whole is unambigu-
GLENDALE v. UNITED STATES 10965
ous and that § 6(c) creates a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the
Act.
Our goal is to understand the statute “as a symmetrical and
coherent regulatory scheme” and to “fit, if possible, all parts
into a harmonious whole.” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120,133 (2000) (citations omitted).
Section 6(a) authorizes the Nation to use funds received under
the Gila Bend Act “for land and water rights acquisition, eco-
nomic and community development, and relocation costs.”
This authorization is broader than land acquisition and does
not address trust acreage to replace the Nation’s lost reserva-
tion land.
Apart from the general provisions of § 6(a), three provi-
sions of the Act concern the divestment and replacement of
reservation land. Section 4 concerns the original 9880-acre
reservation, and specifies the conditions under which the
Nation would forfeit its “right, title, and interest . . . in nine
thousand eight hundred and eighty acres of [reservation]
land.” Subsections 6(c) and 6(d) provide for the replacement
of this precise number of acres of reservation land. Section
6(d) explains the mechanism for restoring reservation land,
which requires placing land in trust, and limits the location of
reservation land. More specifically, § 6(d) provides:
The Secretary, at the request of the Tribe, shall hold
in trust for the benefit of the Tribe any land which
the Tribe acquires pursuant to subsection (c) which
meets the requirements of this subsection. Any land
which the Secretary holds in trust shall be deemed to
be a Federal Indian Reservation for all purposes.
Section 6(c), in turn, limits the size of newly acquired trust
land to that of the previous reservation: 9880 acres. Thus,
§ 6(c) imposes a limit upon the size of land placed in trust for
reservation purposes, under § 6(d), rather than upon total land
10966 GLENDALE v. UNITED STATES
acquisition under § 6(a). Subsection 6(c) and 6(d) are inter-
nally cross-referenced and must be read together.
Aside from its inapplicability to non-reservation land, treat-
ing § 6(c) as a limit on land acquired under § 6(a) is problem-
atic for other reasons. Congress crafted the Gila Bend Act to
allow the Nation substantial autonomy in the use of funds and
the acquisition of new reservation land. Because Congress did
not expect the Nation to spend the Gila Bend Act funds
immediately or all at once, Congress provided that the funds
be invested in “interest bearing deposits and securities until
expended.” § 6(a). This requirement underscores that Con-
gress did not intend for the tribe to spend a fixed dollar
amount, or to spend a specific amount on land, or to acquire
the land at any particular time. Rather, the Nation was to have
broad discretion in the use of Gila Bend Act funds, and the
yield on those funds. The ability to buy land without regard
to the cap on trust acreage and then designate the parcels for
conversion to trust is well within the “great flexibility” Con-
gress authorized for the Nation. See H.R. Rep. No. 99-851, at
10 (1986) (envisioning the Nation to “have great flexibility in
determining the use of funds provided under the Act.”).
Of course, the Nation does not need statutory authorization
to acquire and hold land in fee simple. The Nation has the
right to buy and sell land just like other persons or entities.
Cohen’s Handbook of Federal Indian Law § 15.04 (describ-
ing various forms of tribal land acquisition, including the pur-
chase of fee simple title). Glendale’s reading would mean that
the Gila Bend Act purported to curtail the Nation’s indepen-
dent right to buy and sell land, an outcome we do not endorse
and one that is inconsistent with decades of Indian law.
Further, § 6(b) relieves the Secretary of any audit or over-
sight responsibility for expenditure of funds under § 6(a):
“The Secretary [of the Interior] shall not be responsible for
the review, approval, or audit of the use and expenditure” of
the replacement land funds. § 6(b). If § 6(a) were cabined by
GLENDALE v. UNITED STATES 10967
§ 6(c), the Secretary would necessarily undertake a monitor-
ing function as to expenditure of money for trust lands, a
responsibility specifically disclaimed by the Act.
Finally, as a practical matter, even Glendale’s interpretation
would permit the Secretary to accept Parcel 2 in trust. This
argument boils down to the view that the first 9,880 acres
acquired must go into trust. Nothing in the Act specifies that
the lands must go into trust in a chronological order pegged
to the time of acquisition. There is no FIFO (first in, first out)
principle incorporated in the Act. The Act allows the Nation
to replace, acre-for-acre, the 9,880 acres of reservation land
it relinquished to federal control under § 4(a). To date, the
Secretary of the Interior has taken just one parcel into trust for
the Nation, a 3,200 acre parcel known as San Lucy Farms.
Acquisition in trust of the 54 acres in Parcel 2 would be the
Nation’s second trust acquisition and, after acquisition, the
Nation would remain well below the 9,880 acre cap on trust
land. That the Nation may have purchased other land is irrele-
vant to the clear limitation that only 9,880 acres may be held
in trust.
[2] Even if the statute were ambiguous, the Secretary of
the Interior’s implicit reading of the 9,880 acre limit as a cap
on land-to-trust rather than on land acquisition is supported by
the text, structure, history, and factual background of the Act.
The Supreme Court teaches that courts should “defer to an
interpretation which was a necessary presupposition of the
[agency]’s decision.” Nat’l R.R. Passenger Corp. v. Boston &
Maine Corp., 503 U.S. 407, 420 (1992). The Secretary of the
Interior’s implicit interpretation was a reasonable one and
enjoys Chevron deference. 467 U.S. at 842-43.9
9
The Nation also argues that the Department of the Interior’s trust deci-
sion is compelled by the Indian Canon which requires that when there is
doubt as to the proper interpretation of an ambiguous provision in a fed-
eral statute enacted for the benefit of an Indian tribe, “the doubt [will] ben-
efit the Tribe.” (quoting Artichoke Joe’s Cal. Grand Casino v. Norton, 353
F.3d 712, 729 (9th Cir. 2003)). Because we affirm on alternate grounds,
we need not reach this argument or the Gila River Indian Community’s
claim that the canon is inapplicable when there are competing tribal inter-
ests.
10968 GLENDALE v. UNITED STATES
II. THE CORPORATE LIMITS RESTRICTION IN SECTION 6(D)
[3] Section 6(d) of the Gila Bend Act prohibits the Secre-
tary of the Interior from taking land into trust “if it is outside
the counties of Maricopa, Pinal, and Pima, Arizona, or within
the corporate limits of any city or town.” (emphasis added).
It is undisputed that Parcel 2 is in Maricopa county; the issue
is whether Parcel 2, located on a county island fully sur-
rounded by city land, is within the City of Glendale’s corpo-
rate limits.
The Arizona appellants contend the phrase “within the cor-
porate limits” should have a geographical meaning: Any land
entirely surrounded by a city’s corporate limits is “within” the
city. The government argues for a jurisdictional meaning:
Any land not subject to a city’s corporate jurisdiction is not
“within” the city.10 Giving the key phrase “within the corpo-
rate limits” its plain, natural, and common meaning does not
solve the dilemma. United States v. Romo-Romo, 246 F.3d
1272, 1275 (9th Cir. 2001) (“[W]e should usually give words
their plain, natural, ordinary and commonly understood mean-
ings.”). Here, either reading of the term as used in the statute
is plausible, so we conclude that the statute is ambiguous.
[4] In the trust decision, the Secretary opted to analyze the
corporate limits restriction based on the jurisdictional nature
of fee land rather than its geographical location, and found the
term “corporate limits” to have a plain meaning: “The use of
‘corporate limits’ shows a clear intent to make a given piece
of property eligible under the [Gila Bend] Act if it is on the
unincorporated side of the city’s boundary line.” The Secre-
tary reasoned that, had Congress intended to exclude county
10
The dissent’s suggestion that the government took a differing view in
prior litigation is not borne out by the record. In totally unrelated litigation
the government made passing reference to geographical restrictions on
trust land. But, in doing so, the brief did not consider the distinction under
§ 6(d) nor was this section at issue in the litigation.
GLENDALE v. UNITED STATES 10969
islands from possible trust acquisition, it could have done so
by using language such as “exterior boundary,” “within one
mile of any city” or “city limits.” Congress knows how to use
the phrase “exterior boundaries” when it intends to include
jurisdictional “islands” within another entity’s borders. See,
e.g., 16 U.S.C. § 485 (Secretary of Agriculture may accept
“title to any lands within the exterior boundaries of the
national forests”); 25 U.S.C. § 465 (certain funds may not be
“used to acquire additional land outside of the exterior bound-
aries of the Navajo Indian Reservation”). Significantly, the
trust decision also considered the possibility that the language
was ambiguous. The Secretary concluded, in the alternative,
that “[e]ven if Congress’s intent was less clear . . . we inter-
pret the term not to support a conclusion that Parcel 2 is ineli-
gible under the Act, with or without consideration of the
[Indian] canon.”
We defer to the agency’s interpretation as long as it is a
reasonable one. Chevron, 467 U.S. at 842-43. The Supreme
Court has clarified that where an agency interpretation is rea-
sonable, courts may invoke Chevron step two at the outset to
uphold the agency decision. See Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 218 (2009). In considering an
Environmental Protection Agency final rule, the Court in
Entergy Corp. explained that the presumption of deference to
a reasonable agency opinion applies at the outset of the
reviewing court’s analysis: “[W]e invoke this proposition
(that a reasonable agency interpretation prevails) at the outset,
omitting the supposedly prior inquiry of whether Congress
has directly spoken to the precise question at issue. . . .
[S]urely if Congress has directly spoken to an issue then any
agency interpretation contradicting what Congress has said
would be unreasonable.” Id. at 218 n.4 (internal quotations
and citations omitted).
The fact that the Secretary of the Interior found the statute
to be clear and unambiguous is of no moment and does not
undermine the scope of our deference. Not only did the Secre-
10970 GLENDALE v. UNITED STATES
tary exercise his judgment and discretion on that point, he
affirmatively considered and invoked his expertise on an
alternate basis, construing the statute as ambiguous.11 See
Local Union 1261, United Mine Workers of Am. v. FMSHRC,
917 F.2d 42, 47 (D.C. Cir. 1990) (upholding agency’s inter-
pretation at Chevron step two even where the court disagreed
with the agency’s conclusion that the meaning of the statute
was “plain” because the agency reasonably construed the stat-
ute and “exercise[d] its discretion in interpreting the statutory
scheme in light of its policy judgment and expertise.”). Chev-
ron deference is based, in part, on the “long recognized [prin-
ciple] that considerable weight should be accorded to an
executive department’s construction of a statutory scheme it
is entrusted to administer.” Chevron, 467 U.S. at 844. Here,
the agency entrusted to administer the Gila Bend Act faced an
issue of pure statutory interpretation, carefully considered
alternative approaches in construing the statutory scheme, and
reached a reasonable interpretation.
[5] The Secretary’s construction of § 6(d) is consistent
with congressional intent and the structure of the statute itself,
and is supported by the City of Glendale’s laws and conduct,
and Arizona state law. By precluding the Nation from obtain-
ing in trust land within a city’s jurisdiction, Congress took a
step to protect municipal interests. The Act protects cities
from losing territory over which they exercise authority and
from which they generate tax revenue once the Nation obtains
such land. But this protection only applies to land actually
incorporated by a city or town. When a city surrounds a
county island, there are two relevant boundaries: The city’s
exterior boundary and the interior boundary between the city
and the county island. Both of these boundaries are corporate
11
The dissent takes the view that § 6(d) is not ambiguous but surpris-
ingly comes to an interpretation at odds with the Secretary. Were we to
go that route, we would agree with the Secretary—the “corporate limits”
restriction means property is eligible for trust status “if it is on the unin-
corporated side of the city’s boundary line.”
GLENDALE v. UNITED STATES 10971
limits, because both divide incorporated city land from unin-
corporated county land. Only land that is between the inner
and outer corporate boundaries, incorporated land is “within”
the city’s “corporate limits.” Even under the Arizona appel-
lants’ reading, nothing would prevent the Secretary from
holding in trust for the Nation land immediately adjacent to
a city’s outermost boundary, or even an octagonally shaped
parcel that was encircled by corporate land on seven of its
eight sides. A county island is no different in principle or
practice. Finally, the Secretary’s interpretation gives meaning
to the term “corporate” as part of the phrase “within the cor-
porate limits” and also avoids the sovereignty issues raised by
the dissent.
The trust decision discusses in detail the Secretary’s con-
sideration of city and state provisions affecting county
islands. In practice, Glendale’s own local treatment of county
islands strongly supports the Secretary’s view that county
islands are not “within the corporate limits.” The City of
Glendale does not treat county islands as falling within its
control: County islands are not assessed municipal tax and
receive no municipal services.
Until this litigation, the City of Glendale characterized
county islands as lying outside its corporate limits and requir-
ing annexation to be included within the City’s limits. For
example, when the City of Glendale incorporated a strip of
land that surrounds Parcel 2 and other unincorporated terri-
tory, the annexation ordinance provided that “the present cor-
porate limits [are] extended and increased to include” only the
strip of land precisely described with metes and bounds. City
of Glendale, AZ, Ordinance 986 New Series, (July 26, 1977).
Similarly, numerous City of Glendale annexation ordinances
addressing county islands use the language “located within an
existing county island” and confirm that as a result of the
annexation, the newly annexed county island land is “to be
included within the corporate limits of the City of Glendale.”
See, e.g., City of Glendale, AZ, Ordinance 2693 New Series,
10972 GLENDALE v. UNITED STATES
(Sept. 23, 2009); City of Glendale, AZ, Ordinance 2674 New
Series, (Mar. 18, 2009); City of Glendale, AZ, Ordinance
2668 New Series, (Mar. 11, 2009).
As the Secretary observed, Arizona statutes also refer to
county islands as falling outside corporate limits.12 See, e.g.,
Ariz. Rev. Stat. Ann. § 9-500.23 (authorizing a city to “pro-
vide fire and emergency medical services outside its corporate
limits to a county island.”). Finally, the Secretary considered
an Arizona Supreme Court case that Glendale relies on heav-
ily in this appeal. In Flagstaff Vending Co. v. City of Flag-
staff, the Arizona Supreme Court held that Northern Arizona
University is “within” the city limits of Flagstaff for the pur-
poses of local tax ordinances. 578 P.2d 985, 987 (Ariz. 1978).
However, that case is not instructive in interpreting § 6(d) or
the land configuration of Parcel 2.
To begin, Flagstaff did not consider a county island.
Rather, the land in question had undisputedly been incorpo-
rated by the city. The issue was whether a municipal tax could
extend to activity conducted on a university campus owned by
the state. For that limited question, the record did “not make
it clear whether the campus of Northern Arizona University
[was] part of the City of Flagstaff.” Id. at 990 (Cameron, C.J.
concurring). The record did make clear, however, that unlike
Parcel 2 the campus received services from the city. Id. at
989. Finally, the ordinances at issue referred primarily to the
phrases “within this city,” “without the city” and on one occa-
sion “without the corporate limits” of the city. The term
“within the corporate limits of any city or town” does not
appear and was not construed. The Flagstaff opinion, like the
ordinances, appears to use without precision or definition the
various terms referring to city boundaries. In the end, the
12
Although Arizona appellants cite other Arizona and out-of-state
authorities that suggest an alternate reading, Chevron deference requires
that the agency interpretation be permissible, not the only plausible con-
struction. See Entergy Corp., 556 U.S. at 218.
GLENDALE v. UNITED STATES 10973
issue of statutory interpretation may not be crystal clear but
the outcome is made easy by our adherence to Chevron defer-
ence, and the Secretary’s reasonable interpretation.13
We are puzzled by the dissent’s invocation of the clear
statement rule. To begin, in the nine briefs filed with the
court, it is no surprise that not a single brief referenced this
argument.14 It is also telling that no party argued that the Sec-
retary’s construction of § 6(d), in particular, raised serious
constitutional problems or implicated state sovereignty. Ari-
zona appellants’ effort at oral argument to reframe the rule to
one of constitutional avoidance is unavailing because § 6(d)
does not implicate constitutional sovereignty concerns. Not
only is this recharacterization of the claim an eleventh hour
effort to change gears, but this canon of construction does not
bear on our interpretation of the Gila Bend Act.
The clear statement rule, which is a canon of statutory con-
struction, not a rule of constitutional law, applies where courts
“confront[ ] a statute susceptible of two plausible interpreta-
tions, one of which . . . alter[s] the existing balance of federal
and state powers.” Salinas v. United States, 522 U.S. 52, 59
(1997); see also Hilton v. South Carolina Pub. Ry. Comm’n,
502 U.S. 197, 205-06 (1991) (distinguishing between a rule
of constitutional law and a rule of statutory construction and
using the plain statement rule as an example of a rule of statu-
tory construction).
[6] Neither the dissent nor the Arizona appellants have
articulated a state sovereignty or constitutional interest vis-a-
vis § 6(d). Whatever our interpretation of the phrase “within
the corporate limits of any city or town,” it does not raise a
13
As with the acreage cap issue under § 6(c), because we affirm under
Chevron, we need not consider the alternative basis of the Indian Canon
of construction.
14
In an order from the panel after briefing and just before argument, the
parties were asked to discuss the clear statement rule at oral argument.
10974 GLENDALE v. UNITED STATES
question of federal encroachment on state power. In short, the
Gila Bend Act does not implicate an “existing balance of fed-
eral and state powers.” In Gregory, the Court does not indi-
cate that the clear statement rule applies to any and all
regulation of state governmental functions. Justice White, in
his partial concurrence, partial dissent in Gregory raises this
issue explicitly: “The majority’s approach is also unsound
because it will serve only to confuse the law. First, the major-
ity fails to explain the scope of its rule. . . . Second, the major-
ity does not explain its requirement that Congress’ intent to
regulate a particular state activity be ‘plain to anyone reading
[the federal statute].’ ” 501 U.S. at 478. Virtually any federal
legislation could be construed to have at least minor, deriva-
tive implications for traditional state functions. For example,
does federal legislation appropriating funds for building and
maintaining interstate highways require a plain statement of
Congressional intent to interfere with the traditional state
functions of zoning and land use that the dissent flags in this
case? The plain statement rule should not be applied in a way
that makes it into a useless tautology. To the extent one is
searching for a clear statement, Congress was clear: The
Nation is entitled to swap out 9,880 acres of trust land ceded
to the federal government for land of equivalent total acreage.
This swap does not implicate state interests nor can Arizona
appellants seriously argue that state sovereign interests restrict
the Secretary from establishing a reservation on trust land.15
As we know, “[s]tate sovereignty does not end at a reserva-
tion’s border.” Nevada v. Hicks, 533 U.S. 353, 361 (2001).
See also Surplus Trading Co. v. Cook, 281 U.S. 647, 651
(1930) (citing Indian reservations as examples of federally
managed land within state territory).
15
To the extent the Arizona appellants argue that the Gila Bend Act
impermissibly interferes with the state’s interest in maintaining its taxable
land base, the text of the Act provides a definitive answer: “With respect
to any private land acquired by the Tribe under section 6 and held in trust
by the Secretary, the Secretary shall make payments to the State of Ari-
zona and its political subdivisions in lieu of real property taxes.” § 7(a).
GLENDALE v. UNITED STATES 10975
Even under the dissent’s reading of the statute, nothing
would prevent the Nation from acquiring land in trust imme-
diately adjacent to a city’s outermost boundary or even land
that was almost, but not entirely encircled by corporate land.
This circumstance is not one in which “an administrative
interpretation of a statute invokes the outer limits of Con-
gress’ power.” Solid Waste Agency of N. Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159, 172 (2001). Neither
plausible construction of the statute “raise[s] serious constitu-
tional problems” that counsel invocation of the clear state-
ment rule. Id. The dissent’s real concern about a casino
abutting the City of Glendale is revealed in its effort to trans-
form statutory interpretation of a federal trust land provision
into a blocking effort by the city. At this stage, no one knows
whether a casino will be approved. The Nation faces regula-
tory and court battles that are beyond the scope of this appeal.
To convert this issue from one of Chevron deference to a sov-
ereignty battle over regulation of Indian gaming distorts the
clear statement rule.
III. THE INDIAN COMMERCE CLAUSE AND THE TENTH
AMENDMENT
The final issue is the claim that the Gila Bend Act exceeds
Congress’s power under the Indian Commerce Clause and
violates the Tenth Amendment. In rejecting this argument, the
district court noted that “counsel for Glendale agreed during
oral argument [that] Plaintiffs ask the Court to break new
ground on this issue—to depart from every court decision that
has previously addressed it.” See, e.g., Carcieri v. Kemp-
thorne, 497 F.3d 15, 39-40 (1st Cir. 2007) (en banc), rev’d on
other grounds, 555 U.S. 379 (2009) (emphasizing that powers
expressly delegated to Congress do not implicate the Tenth
Amendment, and that “[b]ecause Congress has plenary
authority to regulate Indian affairs, [the challenged act] does
not offend the Tenth Amendment.”). On appeal, the Arizona
appellants offer no such acknowledgment. The gist of their
argument is that the Gila Bend Act infringes on Arizona’s
10976 GLENDALE v. UNITED STATES
sovereignty. Their effort to invoke Seminole Tribe of Florida
v. Florida, 517 U.S. 44 (1996), which considered the Eleventh
Amendment’s express grant of state sovereign immunity, is
unpersuasive and fails in the face of the broad powers dele-
gated to Congress under the Indian Commerce Clause. U.S.
Const. art. I, § 8, cl. 3.
[7] The Tenth Amendment provides that “powers not dele-
gated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or
to the people.” U.S. Const. amend. X. The Supreme Court has
read this Amendment as a “tautology”: “If a power is dele-
gated to Congress in the Constitution, the Tenth Amendment
expressly disclaims any reservation of that power to the
States.” New York v. United States, 505 U.S. 144, 156-57
(1992). The question here is straightforward: Did Congress
act within its powers under the Indian Commerce Clause in
passing the Gila Bend Act? If so, the Tenth Amendment is not
implicated, and the constitutional challenge fails.
[8] The Indian Commerce Clause empowers Congress
“[t]o regulate Commerce . . . with the Indian Tribes.” U.S.
Const. art. I, § 8, cl. 3. The Supreme Court has interpreted this
clause broadly: “the central function of the Indian Commerce
Clause is to provide Congress with plenary power to legislate
in the field of Indian affairs.” Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 192 (1989). That “Indian relations
[are] the exclusive province of federal law” is beyond dispute.
Cnty. of Oneida v. Oneida Indian Nation of New York State,
470 U.S. 226, 234 (1985). See also Morton v. Mancari, 417
U.S. 535, 552 (1974) (holding that the Indian Commerce
Clause empowers Congress to “single[ ] Indians out as a
proper subject for separate legislation.”).
[9] In passing the Gila Bend Act, Congress acted within its
authority and expressly stated that it was fulfilling “its respon-
sibility to exercise plenary power over Indian affairs to find
alternative land for the [Nation].” H.R. Rep. 99-851 at 7. As
GLENDALE v. UNITED STATES 10977
we learned from Garcia v. San Antonio Metro. Transit Auth.,
courts “have no license to employ freestanding conceptions of
state sovereignty when measuring congressional authority
under” a constitutionally enumerated power. 469 U.S. 528,
550 (1985). Passage of the Gila Bend Act was well within
congressional power under the Indian Commerce Clause and
is not trumped by the Tenth Amendment.
AFFIRMED.
N.R. SMITH, Circuit Judge, dissenting:
“Of all the attributes of sovereignty, none is more indispu-
table than that of [a State’s] action upon its own territory.”
Green v. Biddle, 21 U.S. 1, 43 (1823). Yet today, the majority
holds that it was permissible for an agency to exercise what
Chief Justice Roberts has called “an extraordinary assertion of
power”1 by taking land into trust for an Indian reservation in
the middle of one of Arizona’s most populated cities, contrary
to the plain language of the Gila Bend Indian Reservation
Lands Replacement Act, Pub. L. No. 99-503, 100 Stat. 1798(1986) (“Gila Bend Act”). The statutory text of the Gila Bend
Act clearly prohibits the Secretary’s ability to take land, that
is “within the corporate limits” of a city, into trust when the
city’s limits wholly surround that land, such as the parcel at
issue in this case.
Furthermore, even if the Gila Bend Act is “ambiguous,” as
the majority argues, the Supreme Court has made clear that
courts should “not extend Chevron deference” to an agency
decision where the “administrative interpretation alters the
federal-state framework by permitting federal encroachment
upon a traditional state power” such as the regulation of a
1
Carcieri v. Kempthorne, No. 07-526, Oral Arg. Tr. 36:13-17 (Nov. 3,
2008).
10978 GLENDALE v. UNITED STATES
State’s land not authorized by “a clear statement from Con-
gress.” Solid Waste Agency of N. Cook Cnty. (SWANCC) v.
U.S. Army Corps of Engineers, 531 U.S. 159, 172-74 (2001);
see also Gregory v. Ashcroft, 501 U.S. 452, 460-64 (1991).
Rather, courts should assume that, “the background principles
of our federal system . . . belie the notion that Congress would
use . . . an obscure grant of authority to regulate areas tradi-
tionally supervised by the States’ police power.” Gonzalez v.
Oregon, 546 U.S. 243, 274 (2006). These concerns are partic-
ularly relevant here, where the Department of Interior made
its decision in an ex-parte proceeding that did not involve the
participation of the State of Arizona and without formal pro-
ceedings or a hearing for any other protesting parties.
Because the majority’s decision upholds an agency inter-
pretation (1) that is contrary to the plain language of a statute
and (2) that effectively renders political protections afforded
to States in our federalism system virtually nonexistent, I
must respectfully dissent.
I.
I generally agree with the facts and procedural history as
set forth by the majority. Nevertheless, additional facts are
relevant to my analysis in Part II. Thus, as the late Paul Har-
vey would say, “here’s the rest of the story.”
A.
The Tohono O’odham Nation (“the Nation”) is a federally
recognized Indian tribe with the second largest Tribal land
base in the United States at 2.8 million acres. That land base
amounts to 4,375 square miles of reservation in South and
Central Arizona. To put this size in perspective, the State of
Connecticut is only slightly larger, at 5,006 square miles in
area. The State of Delaware is less than half the size, at 2,026
square miles.
GLENDALE v. UNITED STATES 10979
The Gila Bend Reservation had previously been part of the
Nation’s land base. The reservation was nearly 10,000 acres
—less than .4 percent of the Nation’s total land holdings.
When part of the Nation’s land was flooded as a result of
problems with a federal dam project, Congress enacted the
Gila Bend Act in 1986 to “replace[ ] . . . [Gila Bend Indian
Reservation] lands with lands suitable for sustained economic
use which is not principally farming . . . .” Pub. L. No. 99-
503, § 2(4) 100 Stat. 1798. Under this Act, the Nation
assigned to the United States all rights and title to 9,880 acres
of the Gila Bend Reservation for $30 million. Id. at § 4(a).
The Nation was then authorized to purchase replacement land,
and the Secretary was authorized to take 9,880 acres of
replacement land into trust, which would create a new Indian
reservation. Id. at § 6.
In 2002, the Nation, along with many other tribes, publicly
supported Proposition 202—a ballot measure designed to pre-
vent construction of new casinos in Arizona cities. The Nation
publicly asserted that it would not authorize additional Indian
casinos in any cities.
Then in 2003, the Nation bought Parcel 2 within the City
of Glendale through a series of complex transactions using a
shell company with an out-of-state address. Parcel 2 is land
that is physically within Glendale’s corporate limits, but as a
“county island,” it is unincorporated land under the jurisdic-
tion of Maricopa County. County islands stem from a once-
common practice called “strip annexation.” This type of
annexation occurs when a city “extend[s its] boundaries by
annexing long strips of property” that encircle other, unincor-
porated areas. Republic Inv. Fund I v. Town of Surprise, 800
P.2d 1251, 1254-55 (Ariz. 1990) (en banc).
The practical benefits a city enjoys once unincorporated
land is surrounded by the city’s jurisdictional boundaries are
two-fold. First, cities are able to “exercise a strong degree of
control over zoning and development” of county islands,
10980 GLENDALE v. UNITED STATES
because a city’s land-use planning documents and zoning
ordinances are able to guide the zoning and subdivision of
county islands. Carefree Improvement Ass’n v. City of Scotts-
dale, 649 P.2d 985, 986-87, 992 (Ariz. Ct. App. 1982); Ariz.
Rev. Stat. § 11-814(G) (“The rezoning or subdivision plat of
any unincorporated area completely surrounded by a city or
town shall use as a guideline the adopted general plan and
standards as prescribed in the subdivision and zoning ordi-
nances of the city or town after April 10, 1986.” (emphasis
added)). Second, generally no other municipality can annex
unincorporated land such as Parcel 2 that is within a city’s
geographic limits. See Carefree Improvement Ass’n, 649 P.2d
at 986; Ariz. Rev. Stat. § 9-101.01.
The City of Glendale’s exterior corporate boundary was
extended to encircle Parcel 2 in 1977. Since that time, Glen-
dale has controlled and guided the zoning and subdivision
development of Parcel 2 and the surrounding land. Indeed,
Parcel 2 is part of Glendale’s Municipal Planning Area and is
included in Glendale’s General Plan. Currently, Parcel 2 has
a rural zoning designation (R-43) that would allow only lim-
ited development.
The City of Glendale developed the surrounding area in
reliance on its ability to control the zoning designation and
land-use of Parcel 2 under this legal scheme. For instance, in
2005 Glendale finished building a new public high school
directly across the street from what Glendale later learned was
the Nation’s acreage. Glendale, as well as private parties, has
also invested significant resources in the area by building a
$450 million stadium, a $240 million arena, and a $120 mil-
lion Major League Baseball training facility.
In January 2009, the Nation transferred ownership of Parcel
2 to itself. Only days later, it filed its application asking the
Secretary to take the property into trust and grant the Nation
permission to establish a Class III, Las Vegas-style gambling
facility. 25 U.S.C. § 2703. The Nation has advertised that this
GLENDALE v. UNITED STATES 10981
“new casino will be the largest in the state.” There are cur-
rently no gaming facilities within the City of Glendale. More
than 30,000 people live within two miles of the proposed
casino in what is currently described as a “family friendly”
area.
B.
Pursuant to usual practices, the Department of Interior
treated the Nation’s land-into-trust application as an ex parte
filing. It never notified the public of the application, created
a docket, set a pleading schedule, or held a hearing, because
it was not required to do so under the notice and comment
provisions of 25 C.F.R. §§ 151.10 and 151.11(d). Opponents
of the application (who happened to be aware of the proceed-
ings) were able to submit arguments against the application
by letter only. Though the majority makes much of these
“lengthy submissions,” Maj. Op. 10962, the length of the let-
ters submitted by these parties hardly improved the process by
which these parties could contest the Secretary’s actions. The
opposing parties were never alerted when the Secretary filed
amendments to its application. Further, the State of Arizona
did not even participate in this limited fashion.
In 2010, the Secretary concluded that Parcel 2 was eligible
to be taken into trust under the Gila Bend Act. The Secretary
determined that “the meaning of ‘corporate limits’ is plain”
and “shows a clear intent to make property eligible under the
Act if it is on the unincorporated side of a city’s boundary
line.” The Department of Interior then published a Federal
Register notice announcing its final determination “to acquire
Parcel 2 consisting of 53.54 acres of land into trust for the
Tohono O’odham Nation . . . .” 75 Fed.Reg. 52550-01, 52550
(Aug. 26, 2010). The Secretary has stayed the acquisition for
litigation proceedings.
Plaintiffs sought review in district court. There, they raised
both statutory and constitutional arguments that had been
10982 GLENDALE v. UNITED STATES
raised before the agency. The district concluded that the
“within the corporate limits” phrase was “ambiguous” and
applied Chevron deference to uphold the agency’s decision.
See Chevron U.S.A. Inc. v. Natural Res.Def. Council, Inc.,
467 U.S. 837 (1984).2 Plaintiffs sought an injunction to block
the Secretary from taking Parcel 2 into trust during the appeal;
the district court granted the injunction, concluding that Plain-
tiffs raised “difficult” and “substantial legal questions war-
ranting more deliberative consideration on appeal.” The
district court also concluded there would be irreparable harm,
because Glendale would lose its right to annex the land if it
were taken into trust, which would lead to “irreparable
quality-of-life injuries from gaming activities on Parcel 2.”3
II.
The majority concludes that the phrase “within the corpo-
rate limits” in the Gila Bend Act is “ambiguous,” and thus
that deference was owed to the Secretary’s interpretation of
an ambiguous statute. Maj. Op. 10968-69. I disagree for two
reasons.
A.
First, as the Supreme Court has held, “the susceptibility of
2
The majority says that the district court “conclud[ed] that the Secretary
of the Interior correctly applied the” Gila Bend Act. Majority Op. 10959.
This is a slight misstatement. The district court found “the meaning of
‘within the corporate limits’ to be ambiguous” in the Gila Bend Act. Gila
River Indian Cmty. v. United States, 776 F. Supp. 2d 977, 987 (D. Ariz.
2011). After conducting its own analysis and finding both parties’ inter-
pretation plausible, the district court contemplated what it must do when
“both sides advocate reasonable interpretations” and concluded that it
“must defer to the agency’s interpretation.” Id. at 989. Thus, the court
deferred to the agency’s interpretation because it was reasonable, but it did
not necessarily find that it was the correct interpretation.
3
The district court also enjoined Glendale from annexing Parcel 2 to
preserve the status quo.
GLENDALE v. UNITED STATES 10983
[a] word . . . to alternative meanings does not render the word
whenever it is used, ambiguous, particularly where all but one
of the meanings is ordinarily eliminated by context.” Carcieri
v. Salazar, 555 U.S. 379, 390 (2009) (alterations and internal
quotation marks omitted). In Carcieri, the Supreme Court
ruled in favor of the State and prevented an Indian tribe from
taking land into trust in the middle of a city by concluding
that the statute was “clear.” Id. The Court arrived at this con-
clusion despite the conclusion of the court of appeals below
that the statute was ambiguous.
Here, as in Carcieri, the statutory context makes clear that
“within the corporate limits” refers to land that is geographi-
cally enclosed in the jurisdictional limits of a city. Under the
Gila Bend Act, the Secretary can only take land into trust
upon the completion of certain statutory conditions, the most
important of which are in Section 6(d) and relate to the size
and location of land parcels:
The Secretary, at the request of the Tribe, shall hold
in trust for the benefit of the Tribe any land which
the Tribe acquires pursuant to subsection (c) which
meets the requirements of this subsection. . . . Land
does not meet the requirements of this subsection if
it is outside the counties of Maricopa, Pinal, and
Pima, Arizona, or within the corporate limits of any
city or town. Land meets the requirements of this
subsection only if it constitutes not more than three
separate areas consisting of contiguous tracts, at
least one of which areas shall be contiguous to San
Lucy Village. The Secretary may waive the require-
ments set forth in the preceding sentence if he deter-
mines that additional areas are appropriate.
Pub. L. No. 99-503, § 6(d) 100 Stat. 1798 (emphasis added).
Thus, the plain language of the Gila Bend Act makes clear
that it was aimed at allowing the Nation to assemble new res-
10984 GLENDALE v. UNITED STATES
ervation land consisting of a few large tracts of land, none of
which were within a city. While the Secretary could waive the
contiguity and three-tract requirements where “appropriate,”
the committee report indicates that Congress anticipated “ap-
propriate” circumstances to include only those situations
where parcels were “not entirely contiguous,” but were “suffi-
ciently close to be reasonably managed as a single economic
unit or residential unit.” H.R. Rep. No. 99-851, at 11 (1986).
Parcel 2 is more than 100 miles from the Nation’s existing
reservation. Nothing in the text of Section 6(d) anticipates that
Arizona expected trust land to be purchased in little patches
sprinkled throughout the State, and particularly not inside the
exterior boundary of cities. Rather, the Gila Bend Act makes
land ineligible to be taken into trust if it lies physically inside,
or within, the boundary, or limits of a city.
When there is “no evidence that the words . . . have
acquired any special meaning in trade or commerce, they
must receive their ordinary meaning” based on “the common
language of the people . . . .” Nix v. Hedden, 149 U.S. 304,
306-07 (1893). The ordinary meaning of “within” is defined
as “[i]n or into the inner part; inside.” The American Heritage
Dictionary 1471 (1976). “Limit” means “the final or furthest
confines, bounds, or restriction of something.” Id. at 758.
Thus, Parcel 2 is within Glendale’s corporate limits, because
it is “inside” the “final or furthest confines” or “bounds” of
the City.4 This is the obvious, plain meaning of the text that
Congress likely understood when enacting Section 6(d) of the
Gila Bend Act.
4
In its cross motion for summary judgment, the United States also
agreed to the Black’s Law Dictionary definition “within” and “limit.”
“Within” is defined as “[i]n inner or interior part of.” Black’s Law Dictio-
nary 1602 (6th ed. 1990). “Limit” is defined as “[b]oundary, border, or
outer line of a thing.” Id. at 926. These definitions also support a plain
meaning interpretation of the Gila Bend Act supporting the City’s inter-
pretation, because Parcel 2 is in the “inner or interior part of” the City’s
“[b]oundary, border, or outer line.”
GLENDALE v. UNITED STATES 10985
In contrast to this natural reading of the statute, the United
States and the Nation argue that there are “two relevant
boundaries: the city’s exterior boundary and the interior
boundary,” and “only land that is between those two bounda-
ries” is within corporate limits. Such an interpretation strains
common sense, and is certainly not the obvious reading of the
statute based on the “common language of the people.” Nix,
149 U.S. at 307. If Congress had wanted to refer to two
boundaries, or to incorporated land only, it could have easily
made that distinction.
Indeed, other statutes by Congress in similar circumstances
indicate that, if Congress only wished to refer to a municipali-
ty’s incorporated or annexed land, it knew how to do so. See,
e.g., 25 U.S.C. § 1724(i)(2) (allowing Indian tribe to use
government-provided funds to purchase “acreage within . . .
unincorporated areas of the State of Maine” (emphasis
added)); see also Pub. L. No. 102-402, § 4(d)(1), 106 Stat.
1961, 1965 (1992) (referring to “annexation of lands within
the refuge by any unit of general local government” (empha-
sis added)); Pub. L. No. 101-514, 104 Stat. 2074, 2076 (1991)
(referring to “all incorporated units within the town of Mate-
wan” (emphasis added)); Pub. L. No. 100-693, § 3(a), 102
Stat. 4559 (1988) (referring to “the incorporated area of the
cities of Union City and Fremont” (emphasis added)). This
contradicts the argument of the United States and the Nation
that “within the corporate limits” means both within the exte-
rior and the interior corporate limits of a city.
Furthermore, even if the “within the corporate limits”
phrase does have a specific “settled meaning,” (as the United
States and the Nation contend), the background legal norms,
against which Congress is presumed to be aware when it leg-
islates, most clearly supports the City of Glendale’s interpre-
tation of the statute. The most relevant background legal norm
to the Gila Bend Act is Arizona state law, because the Gila
Bend Act only affects Arizona, and it is “a fair and reasonable
presumption . . . that [C]ongress” is aware of “state legisla-
10986 GLENDALE v. UNITED STATES
tion” when the act of Congress has an effect on that law. See
Prigg v. Commw. of Pa., 41 U.S. 539, 598-99 (1842); see also
Brock v. Writers Guild of Am., W., Inc., 762 F.2d 1349, 1358
n.8 (9th Cir. 1985) (“[B]ecause Congress is composed pre-
dominately of lawyers, court[s] may assume that Congress is
aware of existing law.”).
Notably, Arizona’s zoning ordinances use the “within cor-
porate limits” phrase in the geographical sense. For instance,
Arizona Revised Statutes Section 9-461.11(A) allows a
municipality to exercise its “planning powers” over “unincor-
porated territory” that is “within its corporate limits . . . .”
(emphasis added). See also id. § 9-462.07(A) (same).
The Arizona Supreme Court has also interpreted the words
“corporate limits” to refer to a municipality’s “exterior boun-
dar[ies],” holding that a state university campus was located
“within” the City of Flagstaff’s corporate limits, because it
was “completely surround[ed]” by the “exterior boundary of
Flagstaff.” Flagstaff Vending Co. v. City of Flagstaff, 578
P.2d 985, 987 (Ariz. 1978) (in banc). The court emphasized
that “the ordinary meaning of ‘within’ ” is “on the innerside
. . . inside the bounds of a region.” Id. (internal quotation
marks omitted) (quoting Webster’s Third New International
Dictionary 2627 (1965)). Notably, the Arizona Supreme
Court’s interpretation turned on the geographic location of the
campus, not its jurisdictional status.
The majority’s attempt to distinguish this case, based on the
fact that the campus had previously been annexed, is unavail-
ing, because the campus’s jurisdictional status was irrelevant
to the Arizona Supreme Court’s analysis. As a concurring jus-
tice observed, “[t]he record . . . d[id] not make it clear
whether the campus of Northern Arizona University is part of
the City of Flagstaff.” Flagstaff Vending, 578 P.2d at 990(Cameron, C.J., concurring). That justice was willing to con-
cur in the opinion even if the land at issue was “beyond the
corporate limits” of Flagstaff. Id. at 991.
GLENDALE v. UNITED STATES 10987
While not binding on this court, Flagstaff Vending is per-
suasive authority that Congress understood “within the corpo-
rate limits” to refer to the geographic boundaries of a city
when the Gila Bend Act was passed. This is particularly
likely, because Flagstaff Vending was decided only eight
years before two of Arizona’s representatives (Representative
Morris K. Udall and then Representative John McCain) spon-
sored the Gila Bend Act.
Though the majority relies on situations where Congress
has used the phrase “exterior boundaries,” these statutes are
completely inapposite. Maj. Op. 10969 (citing 16 U.S.C.
§ 485; 25 U.S.C. § 465). These statutes are in no way refer-
ring to unincorporated islands of land surrounded by an outer
corporate limit, and thus there is nothing to indicate these stat-
utes would have any bearing on this factually distinct situa-
tion. Rather, they merely refer to the “exterior boundary” of
an area, such as a national forest. Furthermore, as discussed
above, the Arizona Supreme Court had already interpreted
“corporate limit[ ]” to be synonymous with “exterior bounda-
ry.” Flagstaff Vending Co., 578 P.2d at 987. It is likely that
Congress also viewed these phrases as synonymous, so there
is nothing significant about Congress using the “exterior
boundaries” phrase in these statutes.
The Nation is correct that Arizona’s 1977 annexation ordi-
nance “extended” the City of Glendale’s “present corporate
limits . . . to include” a strip of land surrounding Parcel 2. But
that merely meant that the annexed strip then formed part of
the “corporate limits.” The encircled land (Parcel 2) still fell
within those limits. Nothing about this ordinance defined the
term “within” in a way that would detract from this plain mean-
ing.5
5
The majority cites to Arizona Revised Statutes Section 9-500.23, a
non-zoning ordinance about fire and safety, which “outside corporate lim-
its” in a jurisdictional sense. However, the jurisdictional usage makes
sense in this context, because which entity is authorized to provide fire
10988 GLENDALE v. UNITED STATES
Notably, in a 1992 Legal Brief, the Department of the Inte-
rior itself recognized that Section 6(d) created “geographical
requirements” to take the land into trust only if it was “outside
the corporate limits of any city or town.” Brief for Appellee
at 4, Tohono O’Odham Nation v. Bureau of Indian Affairs, 22
IBIA 220 (I.B.I.A. Aug. 14, 1992). This position is directly
contrary to the Department’s July 2010 position in this case
that the “within the corporate limits” phrase is “jurisdictional
in nature.”
“If the plain language of [the Act] renders its meaning rea-
sonably clear,” the court “will not investigate further unless
its application leads to unreasonable or impracticable results.”
United States v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir. 2006)
(internal quotation marks omitted). Therefore, because the
meaning of the Act is clear at step one of the Chevron analy-
sis, no deference is owed to the Secretary’s interpretation. See
Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600
(2004) (“Even for an agency able to claim all the authority
possible under Chevron, deference to its statutory interpreta-
tion is called for only when the devices of judicial construc-
and safety services is an issue of authority and jurisdiction. In fact, this
ordinance is entitled “Authority to provide fire protection and emergency
services outside corporate limits.” Thus, the jurisdictional nature of the
“corporate limits” phrase used there is distinguishable from the geographic
nature of the phrase used in a zoning context, and the majority’s reliance
on this ordinance is misplaced.
Other state cases interpreting identical “within the corporate limits” lan-
guage have come to the same conclusion as the Supreme Court of Ari-
zona. See, e.g., Village of Frankfort v. Ill. EPA, 852 N.E.2d 522, 524 (Ill.
App. Ct. 2006) (referring to unincorporated land “within the corporate
limits of Frankfort”); City of Des Moines v. City Dev. Bd., 335 N.W.2d
449, 450 (Iowa Ct. App. 1983) (city “notified respondent . . . that the city
would not provide essential services to isolated unincorporated areas
within the corporate limits of the city”); Town of Germantown v. Village
of Germantown, 235 N.W.2d 486, 491 (Wis. 1975) (interpreting statute as
giving municipalities an opportunity to annex islands “lying within the
corporate boundaries”).
GLENDALE v. UNITED STATES 10989
tion have been tried and found to yield no clear sense of
congressional intent.”).
B.
Even if the majority is correct that the statute is ambiguous,
there is a second reason that the majority’s decision to defer
to the Secretary is incorrect. The Supreme Court’s federalism
canon of construction,6 which operates at step one of the
Chevron analysis7 as a normal tool of judicial interpretation,8
6
The United States argues that the Indian canon of construction, requir-
ing a liberal interpretation of statutes in favor of Indians, requires a ruling
for the Nation if the Gila Bend Act is ambiguous. See Montana v. Black-
feet Tribe of Indians, 471 U.S. 759, 766 (1985). However, the district
court found that the Secretary’s interpretation would adversely affect the
economic interests of other Indian tribes in Arizona. This canon does not
appear to apply when it will benefit one tribe at the expense of other
Indian tribes. See Confederated Tribes of Chehalis Indian Reservation v.
Washington, 96 F.3d 334, 340 (9th Cir. 1996) (declining to apply canon
where multiple tribes dispute fishing rights); see also Northern Cheyenne
Tribe v. Hollowbreast, 425 U.S. 649, 655 n.7 (1976) (declining to apply
canon because the “contesting parties are an Indian tribe and a class of
individuals consisting primarily of tribal members”).
Furthermore, Supreme Court precedent suggests that when the Indian
canon conflicts with the federalism canon, the federalism canon prevails.
See, e.g., William N. Eskridge, Jr. et. al., Legislation and Statutory Inter-
pretation 374-75 (2d ed. 2006) (“[T]he canon promoting interpretations
favoring Native Americans has weakened considerably in recent years, in
the aftermath of jurisdictional disputes where states have prevailed over
tribes.” (citing South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998);
Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991); Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989)); Philip P. Frickey,
A Common Law for Our Age of Colonialism: The Judicial Divestiture of
Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1 (1999)); Wil-
liam N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law:
Clear Statement Rules As Constitutional Lawmaking, 45 Vand. L. Rev.
593, 628 (1992) (“Gregory, and the federal criminal cases also may have
dramatically deflated the longstanding canon presuming that states have
no regulatory role in Indian country.”).
7
Generally, “canons of interpretation are considered to be part of the tra-
ditional tools available to the Court at Step One” of the Chevron analysis.
10990 GLENDALE v. UNITED STATES
makes clear that this court is required to interpret an ambigu-
ous statute in favor of substantial state interests absent a clear
indication that Congress intended otherwise. See SWANCC,
531 U.S. at 172-74; Pa. Dep’t of Corr. v. Yeskey, 524 U.S.
206, 208-09 (1998); BFP v. Resolution Trust Corp., 511 U.S.
531, 544-45 (1994); Gregory v. Ashcroft, 501 U.S. 452; see
also Gonzalez v. Oregon, 546 U.S. at 295-300 (discussing the
clear statement rule); Will v. Mich. Dep’t of State Police, 491
U.S. 58, 65 (1989) (“The language of § 1983 also falls far
short of satisfying the ordinary rule of statutory construction
that if Congress intends to alter the usual constitutional bal-
ance between the States and the Federal Government, it must
make its intention to do so unmistakably clear in the language
of the statute.” (internal quotation marks omitted)); United
States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress
conveys its purpose clearly, it will not be deemed to have sig-
nificantly changed the federal-state balance.”). A discussion
of the background justifications for this clear statement rule
illustrates the relevance of this canon here.
The debate over what constitutes the appropriate balance of
power between the states and federal government and—more
relevant to this case—how that balance of power should be
enforced, dates back to the founding of this nation. Regarding
the specific interpretation that should be given to the Tenth
Amendment, one position in this debate has been that it is the
See William N. Eskridge, Jr. et al., Legislation and Statutory Interpreta-
tion 335 (2d ed. 2006); see also Kenneth A. Bamberger, Normative Can-
ons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 77
(2008) (“The largest group of cases to consider the place of normative
canons in review of agency interpretations treats them as the type of ‘tradi-
tional tools’ that courts may use to resolve textual ambiguity, even when
faced with an agency construction that might otherwise be entitled to def-
erential Chevron review.”).
8
“In determining if Congress has ‘an intention on the precise question
at issue,’ [the Court] employ[s] ‘traditional tools of statutory construc-
tion.’ ” Hamilton v. Madigan, 961 F.2d 838, 840 n.3 (9th Cir. 1992) (quot-
ing Chevron, 467 U.S. at 843 n.9).
GLENDALE v. UNITED STATES 10991
role of the judiciary to protect state interests by interpreting
the Tenth Amendment as a substantive limit on federal power.
The competing argument is that States are able to adequately
protect their interests through the political process, so no addi-
tional judicial protections should be provided. Over the course
of American history, federal courts have not always taken
consistent positions on this issue.9
For instance, prior to Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985), the Supreme Court
had, from time to time, employed the Tenth Amendment as a
substantive limit on the federal government’s ability to exer-
cise power.10 The case of National League of Cities v. Usery,
426 U.S. 833 (1976) was a Supreme Court case that used the
Tenth Amendment in this manner.
In Garcia, the Court expressly overruled National League
of Cities, because using the Tenth Amendment as a substan-
tive limit on Congress proved “unworkable in practice,” even
if it had some basis in Constitutional theory. 469 U.S. at 545-
47. The Court in Garcia did argue for judicial restraint when
it came to rules that “look[ed] to the ‘traditional,’ ‘integral,’
or ‘necessary’ nature of governmental functions . . . .” Id. at
546. The Court also emphasized that States continue to “oc-
9
Compare Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that a
federal law prohibiting interstate shipment of goods that utilized child
labor violated the Constitution, because “[t]he power of the States to regu-
late their purely internal affairs by such laws as seem wise to the local
authority is inherent and has never been surrendered to the general govern-
ment”); Bailey v. Drexel Furniture Co., 259 U.S. 20, 38 (1922) (same),
with United States v. Darby, 312 U.S. 100, 124 (1941) (holding that a fed-
eral law prohibiting shipment of goods made by children was Constitu-
tional, because the Tenth Amendment was merely a reminder that “all is
retained which has not been surrendered”).
10
See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating
the Bituminous Coal Conservation Act of 1935 on federalism grounds);
United States v. Butler, 297 U.S. 1 (1936) (striking down part of the Agri-
cultural Adjustment Act that imposed taxes on agricultural processors
under the Tenth Amendment).
10992 GLENDALE v. UNITED STATES
cupy a special and specific position in our constitutional sys-
tem and that the scope of Congress’ authority under the
Commerce Clause must reflect that position.” Id. at 556.
However, the Court explained that the protection of State
interests occurred through the political process and not the
judiciary. “[T]he principal and basic limit on the federal com-
merce power is that inherent in all congressional action—the
built-in restraints that our system provides through state par-
ticipation in federal governmental action. The political pro-
cess ensures that laws that unduly burden the states will not
be promulgated.” Id. (emphasis added) The Court observed
that “[i]n the factual setting of these cases the internal safe-
guards of the political process have performed as intended.”
Id.
Only six years after Garcia, the Supreme Court apparently
sought to strike a compromise between these competing posi-
tions when it decided Gregory v. Ashcroft, 501 U.S. 452.
There, the Court used the Tenth Amendment and federalism
considerations as a rule of construction preventing federal
laws from being interpreted in a way that burdened substantial
state interests unless Congress clearly authorized such an
interpretation of the law. The Court explained, “inasmuch as
this Court in Garcia has left primarily to the political process
the protection of the States against intrusive exercises of Con-
gress’ Commerce Clause powers, we must be absolutely cer-
tain that Congress intended such an exercise.” 501 U.S. at
464; see also 1 Laurence Tribe, American Constitutional Law
1176 (3d ed. 2000) (“[T]o give the state-displacing weight of
federal law to mere constitutional ambiguity would evade the
very procedure for lawmaking on which Garcia relied to pro-
tect states’ interests.”).
In other words, to the extent that Garcia anticipated that
States would be protected by “the internal safeguards of the
political process” when the political process “performed as
intended,” Gregory created a rule of construction aimed at
GLENDALE v. UNITED STATES 10993
ensuring that these political safeguards actually had “per-
formed as intended” before significant state interests would be
burdened. Garcia, 469 U.S. at 556. Thus, the Gregory Court
explained that Congress’s authority under the Supremacy
Clause to preempt state law “in areas traditionally regulated
by the States” is “an extraordinary power in a federalist sys-
tem” that “we must assume Congress does not exercise light-
ly.” 501 U.S. at 460.
A canon of construction favoring a State’s sovereign inter-
ests is not new. The Supreme Court has long explained that
when federal law is arguably inconsistent with state law,
courts must “start with the assumption that the historic police
powers of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of Con-
gress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947).11 However, the Supreme Court’s decision in Gregory
appears to have transformed this presumption into a much
more exacting clear statement rule requiring additional clarity
from Congress.12
As the dissent in Gregory noted, to overcome a federalism
presumption, Congress would be required both to make clear
1) that the statute was intended to extend “to the States” at all,
and 2) Congress must also be clear as to whether “the precise
details of the statute’s application” were meant to apply to the
11
See also Employees of the Dep’t of Pub. Health & Welfare v. Dep’t
of Pub. Health & Welfare, 411 U.S. 279, 284-85 (1973); Bass, 404 U.S.
at 349.
12
See William N. Eskridge, Jr. et al., Legislation and Statutory Interpre-
tation 368 (2d ed. 2006); Note, Federalism—Clear Congressional Man-
date Required to Preempt State Law: Gregory v. Ashcroft, 105 Harv. L.
Rev. 196, 201-02 (1991) (“The Court has long required Congress to state
clearly its intent to upset the usual balance of power between the states
and the federal government. . . . Gregory’s plain statement rule, however,
represents a new, more exacting rule of statutory construction.”).
10994 GLENDALE v. UNITED STATES
specific state activities at issue. 501 U.S. at 476 (White, J., dis-
senting).13
Thus, even if the Gila Bend Act is, as the majority con-
cludes, “ambiguous” and “less than crystal clear,” this only
means that Congress never actually considered the issue of
creating an Indian reservation on an unincorporated island
within the geographic limits of a city. While statutory
ambiguity in other contexts generally requires courts to defer
13
See also Federalism—Clear Congressional Mandate Required to Pre-
empt State Law: Gregory v. Ashcroft, supra note 11, at 202 (“In Gregory,
the Court created a two-tier inquiry. First, Congress must clearly intend to
extend a law to the states . . . . Second, Congress must delineate which
specific state governmental functions it wishes to include within the sweep
of the federal law.”).
That this two-tier analysis exists is demonstrated by the fact that the
Supreme Court has upheld the imposition of the exact same federal statute
against states in some instances where the statute’s application was clear,
but not in other instances where the statute’s application was less than
clear. For example, in SWANCC, 531 U.S. at 162, the statutory interpreta-
tion question was whether an abandoned sand and gravel pit constituted
“navigable waters,” as interpreted by the United States Army Corps of
Engineers. The Supreme Court struck down the application of the “naviga-
ble waters” provision in the Clean Water Act to a land-locked gravel pit
in one instance. 531 U.S. at 162 (“We are asked to decide whether the pro-
visions of § 404(a) may be fairly extended to these waters . . . .” (emphasis
added)). This was because, though it was clear that the Clean Water Act
could be applied by agencies against the states in general, the intrusive
application in SWANCC was not clearly authorized by Congress in that
case, where the application raised heightened federalism concerns. But the
Court noted that, in United States v. Riverside Bayview Homes, Inc., 474
U.S. 121, 134 (1985), the Court upheld the application of the exact same
statute to water that was adjacent to and “inseperably bound up with” nav-
igable waters. Id. at 167.
Similarly, in Gregory, the Supreme Court struck down the application
of the ADEA to potentially include retirement requirements on state
judges. 501 U.S. 452. But in Kimel v. Florida Bd. of Regents, 528 U.S. 62(2000), the Supreme Court found the same statute, the ADEA, satisfied the
clear statement rule regarding Congress’s intention to abrogate states’
Eleventh Amendment immunity.
GLENDALE v. UNITED STATES 10995
to an agency’s interpretation, Chevron, 467 U.S. 837, the fed-
eralism clear statement rule prevents Congress from punting
this highly charged political decision to the less politically
accountable agency, SWANCC, 531 U.S. at 172; Gregory,
501 U.S. 452.14
For instance, in SWANCC, the agency specifically
requested that Chevron deference be provided, because Con-
gress “did not address the precise question of [the statute’s]
scope with regard to nonnavigable, isolated, intrastate waters,
and that, therefore, [the Court] should give deference to the
[agency’s] ‘Migratory Bird Rule.’ ” 531 U.S. at 172. The Sev-
enth Circuit had deferred to the agency’s interpretation after
determining that the interpretation was “reasonable.” Id. at
166. However, the Court reversed the Seventh Circuit and
explicitly stated that, “even were we to agree with respon-
dents, we would not extend Chevron deference here.” Id. at
172. The Court invoked the federalism cannon of statutory
interpretation and explained that its concern with the agency’s
interpretation was “heightened where the administrative inter-
pretation alters the federal-state framework by permitting fed-
eral encroachment upon a traditional state power.” Id. at 173
(citing Bass, 404 U.S. at 349 (“[U]nless Congress conveys its
purpose clearly, it will not be deemed to have significantly
changed the federal-state balance.”)). Thus, because the Court
found “nothing approaching a clear statement from Congress
that it intended” the statute to be applied as it was in the pres-
ent case, the Court “read the statute as written to avoid the
significant constitutional and federalism questions . . . and
therefore reject[ed] the request for administrative deference.”
Id. (emphasis added).
14
Clear statement canons “trump Chevron,” because “Executive inter-
pretation of a vague statute is not enough when the purpose of the canon
is to require Congress to make its instructions clear.” Bamberger, supra
note 6, at 80 (quoting Cass R. Sunstein, Nondelegation Canons, 67 U. Chi.
L. Rev. 316, 331 (2000)).
10996 GLENDALE v. UNITED STATES
Similarly, in Gregory, 501 U.S. 452, the majority rejected
the EEOC’s interpretation of the statute without even men-
tioning deference to the agency. It was only in Justice Black-
man’s dissent where Chevron was discussed, and he argued
that the Court should have deferred to the EEOC’s interpreta-
tion of a vague statute. Id. at 493 (Blackmun, J., dissenting);
see also Gonzalez v. Oregon, 546 U.S. at 264, 274 (finding
that the Attorney General’s interpretive rule was “not
entitle[d] . . . to Chevron deference,” based on, inter alia,
“background principles of our federal system”). In other
words, in areas where federalism concerns are implicated, it
appears that a clear authorization of Congressional authority
is a preliminary requirement for any deference to be accorded
to the agency’s interpretation of a statute.15
Contrary to the majority’s concerns about hypothetical
applications of this rule, the federalism canon of construction
does not preclude deference to any agency interpretation of
“any and all . . . federal legislation [that] could be construed
to have at least minor, derivative implications for traditional
state functions.” Maj. Op. 10974. Rather, the Supreme Court
has only applied this rule in narrow circumstances when the
following three types of specific concerns arise. First, this rule
has only been used by the Supreme Court in particular sub-
stantive legal “areas traditionally supervised by the States’
police power.” Gonzalez v. Oregon, 546 U.S. at 274. The
Supreme Court has demonstrated its commitment to protect-
ing a State’s ability to regulate the land use and private prop-
15
Clear statement “canons reflect a singular requirement that certain
important issues be addressed by legislative deliberation alone. More spe-
cifically, they operate as clear statement rules that bar the interpretation of
a statute to push the bounds of federal power absent an unambiguous dec-
laration of intent by Congress.” Bamberger, supra note 6, at 79 (citing
Cass R. Sunstein, Beyond Marbury: The Executive’s Power To Say What
the Law Is, 115 Yale L.J. 2580, 2607 (2006)). The canons also “force a
democratically elected Congress to deliberate on, and then raise, a ques-
tion via explicit statement by operating in a manner that constrains any
interpretive discretion on the part of courts and agencies.” Id. at 80.
GLENDALE v. UNITED STATES 10997
erty rights within its own territory. For instance, in SWANCC,
the Supreme Court recognized that the agency’s interpretation
would result in “a significant impingement of the States’ tra-
ditional and primary power over land and water use” as a jus-
tification for invoking the clear statement rule. 531 U.S. at
174; see also Hess v. Port Auth. Trans-Hudson Corp., 513
U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function
traditionally performed by local governments.”). Similarly, in
BFP, 511 U.S. at 544-45, the majority opinion invoked the
Gregory clear statement rule in support of a reading that pre-
vented federal law from trumping state law concerning the
regulation of private property rights.
Second, the clear statement rule only applies when “a stat-
ute [is] susceptible of two plausible interpretations, one of
which would have altered the existing balance of federal and
state powers.” Salinas v. United States, 522 U.S. 52, 59, 118
S. Ct. 469, 474, 139 L. Ed. 2d 352 (1997); see also United
States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (applying
a similar rule of construction where a was “susceptible of at
least two interpretations,” one of which was more intrusive on
a state’s interests). For instance, in Coeur Alaska, Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261, 265,
273 (2009), the clear statement rule did not apply, because the
question was merely about which agency had authority to
issue discharge permits, rather than whether an agency had
authority to perform the action at all. Though the Court
explained that the statute may be ambiguous, either interpreta-
tion had a similar effect on the State’s interests, and thus the
Court deferred to the agency’s interpretation rather than
applying the clear statement rule. Id. at 274-75.
In contrast, in Gregory, one interpretation of the ADEA
would have allowed an agency to regulate retirement require-
ments for state judges—a significant intrusion on state inter-
ests, whereas the other interpretation would not allow such
regulation. 501 U.S. at 469. Similarly in SWANCC, the poten-
tial ambiguity in the Clean Water Act was over whether or not
10998 GLENDALE v. UNITED STATES
the Army Corps could regulate a land-locked, abandoned
gravel pit “wholly located within two Illinois counties,”
despite the fact that the agency did clearly have authority
under the same statute to regulate other state land that “actu-
ally abutted on a navigable waterway.” 531 U.S. at 167, 171.
The Court noted that, while the text of the Clean Water Act
supported the latter interpretation, there was nothing to indi-
cate that Congress had supported the former “more expan-
sive” interpretation of “navigable waters.” Id. at 168-171. In
other words, the type of ambiguity in the statute must be such
that it is not clear that the State was able to protect its signifi-
cant interests through the political process, because the State
may not have been on notice that its important interests were
at stake.
Third (and this factor applies only in the administrative
context), the Supreme Court seems more likely to apply this
clear statement requirement when the agency interprets the
scope of its own statutory authority to regulate in the tradi-
tional state realm at issue. For instance, in Gonzalez v. Ore-
gon, the Supreme Court explained that it is a “commonsense
conclusion” that “[j]ust as the conventions of expression indi-
cate that Congress is unlikely to alter a statute’s obvious
scope and division of authority through muffled hints, the
background principles of our federal system also belie the
notion that Congress would use such an obscure grant of
authority to regulate areas traditionally supervised by the
States’ police power.” 546 U.S. at 274. The Court thus
explained that “[t]he idea that Congress gave the Attorney
General such broad and unusual authority through an implicit
delegation . . . is not sustainable.” Id. at 267. The Court
quoted Whitman v. American Trucking Associations, Inc., 531
U.S. 457, 468 (2001), where it had previously explained that
“Congress, we have held, does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary
GLENDALE v. UNITED STATES 10999
provisions—it does not, one might say, hide elephants in
mouseholes.” Id.16
This concern regarding the agency’s interpretation of its
own statutory authority compounds when the agency’s inter-
pretation of the authority-granting statute itself strains the
bounds of Congress’s constitutional authority. For example,
in SWANCC, the Court explained that “[w]here an administra-
tive interpretation of a statute invokes the outer limits of Con-
gress’ power, we expect a clear indication that Congress
intended that result.” 531 U.S. at 172. The Court explained
that this concern stems from the “assumption that Congress
does not casually authorize administrative agencies to inter-
pret a statute to push the limit of congressional authority.” Id.
at 172-73. However, while constitutional limits may heighten
concerns about authority, clear statement rules “cannot be
defended as a simple invocation of the rule about avoiding
serious constitutional questions,” because these rules apply
even in situations where, “if Congress acted with the requisite
clarity, the statute would be constitutional.” William N.
Eskridge, Jr., et. al., Legislation and Statutory Interpretation
368 (2d ed. 2006).
Under this third concern, the federalism clear statement
rule is satisfied when a statutory grant of authority to an
16
See also Wyeth v. Levine, 555 U.S. 555, 576-77 (2009) (the Court
gave no weight to the agency’s conclusion that state law is pre-empted);
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)
(“[W]e are confident that Congress could not have intended to delegate a
decision of such economic and political significance to an agency in so
cryptic a fashion.”); Robin Kundis Craig, Administrative Law in the Rob-
erts Court: The First Four Years, 62 Admin. L. Rev. 69, 171 (2010) (“The
Roberts Court’s track record to date indicates that it will generally accord
far less deference to a federal agency when the agency is determining the
scope of its own jurisdictional authority. This inclination is particularly
strong when the agency is expanding its authority into realms that the
Court perceives as the states’—for example, regulation of doctors, reten-
tion of legal authority over land, and land-use planning.” (emphasis
added)).
11000 GLENDALE v. UNITED STATES
agency is without reservation and clearly encompasses the
scope of the subject matter. See Yeskey, 524 U.S. at 208-210.
But when there is some reservation of authority and it is not
clear if the agency’s interpretation is statutorily authorized,
the clear statement rule applies in full force. SWANCC, 531
U.S. at 172-74; Gregory, 501 U.S. 452; see also Gonzalez v.
Oregon, 546 U.S. at 295-300.
All three of the specific concerns related to the federalism
canon are present in this case. First, the Secretary’s interpreta-
tion of the Gila Bend Act clearly implicates Arizona’s “tradi-
tional and primary power over land . . . use” and private
property rights within its territory. See SWANCC, 531 U.S. at
174. I am surprised by the majority’s argument that no “en-
croachment on state power” is at issue in this case. Maj. Op.
10973-74 (emphasis added). Although the City of Glendale is
a municipality, in SWANCC, the land at issue was only a “mu-
nicipal landfill,” and yet the Supreme Court still determined
that the federal government’s attempt to regulate this land
constituted “a significant impingement of the States’ tradi-
tional and primary power.” Id. at 173-74 (emphasis added).
Moreover, as discussed below, it is Arizona’s state-wide zon-
ing scheme created under Arizona state law (a scheme that
allows cities to develop and lay claim to land enclosed within
a cities corporate limits, even if that land is not incorporated)
that will be interrupted by the Secretary’s application of the
Gila Bend Act in this case. It is Arizona state citizens that will
be affected by Parcel 2 being taken into trust just across the
street from their neighborhoods. It is also land located within
Arizona’s “own territory” that will be effectively transferred
to another sovereign. Green v. Biddle, 21 U.S. at 43. Even the
Federal Government’s brief recognizes that “jurisdiction over
Indian lands involves ‘an accommodation between the inter-
ests of the Tribes and the federal government, on the one
hand, and those of the State, on the other.’ ” Federal Appel-
lees’ Answering Br. 48 (emphasis added) (quoting Nevada v.
Hicks, 533 U.S. 353, 361-62 (2001)). The Federal Govern-
ment’s brief also notes that the Secretary’s decision to take
GLENDALE v. UNITED STATES 11001
Parcel 2 into law will result in a “[d]isplacement of state law
. . . .” Id. at 50 (emphasis added).
The majority’s argument that Arizona never “articulated a
state sovereignty or constitutional interest vis-a-vis § 6(d)”
also “puzzled” me. Maj. Op. 10973. Arizona clearly argued
(multiple times throughout both the opening and reply brief)
that the Gila Bend Act, which includes Section 6(d), “as
applied violates the Tenth Amendment” and invades “essen-
tial attributes inhering in [Arizona’s] sovereign status.” Ari-
zona Appellants’ Opening Br. 49, 51. All parties were also
ordered by our panel to discuss the application of the federal-
ism clear statement rule to this case at oral argument, at which
time Arizona argued that the clear statement rule specifically
applies to an interpretation of Section 6(d), and state sover-
eignty concerns require construing any ambiguity in the Gila
Bend Act in Arizona’s favor.17 I do not address Arizona’s
argument that the Tenth Amendment and state sovereignty
concerns create a substantive constitutional limit that prevents
the Secretary from “tak[ing Parcel 2] into trust in the first
place,” Arizona Appellants’ Reply Br. 27, nor do I address
Arizona’s other concerns with the Gila Bend Act and the Sec-
retary’s interpretation of it, because I conclude that the feder-
alism canon’s procedural requirement for added clarity, as
17
It is worth noting that, in BFP, 511 U.S. 531, the Supreme Court
invoked the clear statement canon in favor of the State despite the fact that
neither the Ninth Circuit nor any party had discussed the clear statement
rule. Our precedent is also clear that, even if Arizona did make a conces-
sion about a question of law, there is “no reason why we should make
what we think would be an erroneous decision, because the applicable law
was not insisted upon by one of the parties.” United States v. Miller, 822
F.2d 828, 832 (9th Cir. 1987) (quoting Smith Engineering Co. v. Rice, 102
F.2d 492, 499 (9th Cir.1938)). “The rule has been repeated in a variety of
circumstances. Even if a concession is made by the government, we are
not bound by the government’s ‘erroneous view of the law.’ ” Id. (quoting
Flamingo Resort, Inc. v. United States, 664 F.2d 1387, 1391 n. 5 (9th
Cir.1982)). This is particularly true where all parties had the chance to
address this issue at oral argument.
11002 GLENDALE v. UNITED STATES
applied to Section 6(d)’s language alone, requires a ruling for
Arizona and Glendale.
Second, the statutory interpretation debate over the Gila
Bend Act is over one interpretation that would significantly
burden Arizona’s substantial state interests and another inter-
pretation that is much less intrusive. The Secretary’s applica-
tion of the Gila Bend Act would interfere with Arizona’s
sovereign powers more than the typical creation of an Indian
reservation, regardless of whether a casino is ever actually
built on Parcel 2. It is a commonsense conclusion that a state
has a greater concern about how land within its cities is used
than land outside its cities. SWANCC, 531 U.S. at 167, 171
(recognizing a heightened concern over land “wholly located
within two Illinois counties” compared to land that “actually
abutted on a navigable waterway”).
Furthermore, ordinary land use concerns are heightened by
the fact that in Arizona, municipalities expect to be able to
“exercise a strong degree of control over zoning and develop-
ment” over land within their geographic boundaries, even if
the land is not incorporated. Carefree Improvement Ass’n, 649
P.2d at 987; Ariz. Rev. Stat. § 11-814(G). A city’s land-use
planning documents and zoning ordinances are able to guide
the zoning and subdivision of county islands. Carefree
Improvement Ass’n, 649 P.2d at 986-987, 992. In addition, in
Arizona, generally no other municipality can annex unincor-
porated land such as Parcel 2 that is within a city’s geographic
limits. Id. at 986; Ariz. Rev. Stat. § 9-101.01; see also Kane
v. City of Beaverton, 122 P.3d 137, 142 (Or. Ct. App. 2005)
(“[T]here are a number of rational and legitimate reasons for
disparate treatment of ‘island’ territories . . . .”). Thus, Glen-
dale had reasonable expectations that it would be able to
guide and control Parcel 2’s development, and that this land
could not be claimed by any other entity capable of changing
the land use development. In reliance on this zoning scheme,
the City of Glendale zoned Parcel 2 as residential and devel-
oped the surrounding area consistent with that zoning desig-
GLENDALE v. UNITED STATES 11003
nation. These reliance interests would not exist to the same
extent in the hypothetical the majority poses, regarding “ac-
quiring land in trust immediately adjacent to a city’s outer-
most boundary or even land that was almost, but not entirely
encircled by corporate land.”18 Maj. Op. 10975.
The State’s territorial control—the ability to tax, to regu-
late, and to control land use—is effectively eliminated when
state land is taken into trust. As courts have noted, “federally-
recognized reservations . . . are, in many ways, separate juris-
dictions from the state in which they are located.” Tworek v.
United States, 46 Fed. Cl. 82, 87 (2000). Importantly for this
case, tribal sovereignty blocks “state action that impairs the
ability of a tribe to exercise traditional governmental func-
tions such as zoning . . . or the exercise of general civil juris-
diction over the members of the tribe.” Crow Tribe of Indians
v. Montana, 650 F.2d 1104, 1110 (9th Cir. 1981) (emphasis
added); see also Segundo v. City of Rancho Mirage, 813 F.2d
1387, 1390-94 (9th Cir. 1987) (rejecting a State’s attempts to
apply local laws such as zoning ordinances to reservation
lands). The Supreme Court has explained that one of the inde-
pendent “barriers to the assertion of state regulatory authority
over tribal reservations and members” is the sovereign “right
of reservation Indians to make their own laws and be ruled by
them.” White Mountain Apache Tribe v. Bracker, 448 U.S.
136 (1980); see also United States v. Wheeler, 435 U.S. 313,
322 (1978) (“The powers of Indian tribes are, in general,
inherent powers of a limited sovereignty which has never
been extinguished.”). Thus, upholding the Secretary’s inter-
18
Furthermore, the question of whether land immediately adjacent to
Parcel 2 and outside Glendale’s city limits could be taken into trust is not
a question before this court, given that it is not clear whether such land
would meet other requirements of the Gila Bend Act, including that the
land be “three separate areas consisting of contiguous tracts, at least one
of which areas shall be contiguous to San Lucy Village,” Pub. L. No. 99-
503, § 6(d) 100 Stat. 1798, or else that non-contiguous parcels are “suffi-
ciently close to be reasonably managed as a single economic unit or resi-
dential unit.” H.R. Rep. No. 99-851, at 11 (1986).
11004 GLENDALE v. UNITED STATES
pretation would strip Glendale of its long-standing authority
to control land use on Parcel 2 and transfer that control to a
separate sovereign.
The transfer of Arizona’s sovereign authority, over land
enclosed within one of its major cities, is a significant
encroachment on Arizona’s state interests, regardless of how
Parcel 2 is ultimately developed. Moreover, the fact that tak-
ing Parcel 2 into trust would create the very real potential that
a new casino would be built across the street from a high
school, a quarter-mile from churches, and within Glendale’s
carefully developed residential area (where millions of dollars
have been invested) understandably heightens the State’s con-
cerns.
Furthermore, not only would the Secretary’s decision affect
the State’s ordinary land use powers, the agency’s decision
here will likely implicate major budgetary decisions. For
example, if a casino is built, city officials estimate that the
casino complex will require Glendale to build significant
additional infrastructure in the area (e.g., fire, police, etc.), as
well as to spend millions of additional dollars of expenditures
for public safety outlays. The Supreme Court has explained
that “[f]ederalism concerns are heightened when, as in these
cases, a federal court decree has the effect of dictating state
or local budget priorities.” Horne v. Flores, 557 U.S. 433, 448
(2009).
The political process justifications for the federalism clear
statement rule are also particularly relevant here. In contrast
to Garcia, “[i]n the factual setting of [this case] the internal
safeguards of the political process” have not “performed as
intended.” Garcia, 469 U.S. at 556. As discussed above, the
text of the Gila Bend Act readily lends itself to an interpreta-
tion that would prevent any reservations from being created
within the geographic boundaries of a city. Thus, when two
of Arizona’s own representatives sponsored the Gila Bend
Act in the House of Representatives, there was nothing from
GLENDALE v. UNITED STATES 11005
the text of the statute that would have alerted Arizona to the
fact that it was consenting, through the political process, to
legislation that would be adverse to its significant state inter-
ests. Indeed, the Arizona Supreme Court’s recent decision in
Flagstaff Vending, 578 P.2d at 987, as well as Arizona’s zon-
ing ordinances discussing unincorporated territory “within the
corporate limits,” Ariz. Rev. Stat. § 9-461.11(A); id. § 9-
462.07(A), likely reinforced Arizona’s understanding that
land like Parcel 2 would not be eligible to be taken into trust.
To further complicate Arizona’s dilema, when the Depart-
ment of Interior was considering the Nation’s land-into-trust
application, Arizona did not participate in this ex parte filing
and had no way to formally do so. There was no public notifi-
cation, no docket, no pleading schedule, and no hearing for
interested parties. Opponents of the application who happened
to be aware of the proceedings were able to submit arguments
against the application by letter only, but they were not
alerted when the Secretary filed amendments to its applica-
tion. Thus, the statutory interpretation tools and facts of this
case indicate that the ambiguity at issue in the “within the cor-
porate limits” phrase was of the type that prevented Arizona
from adequately protecting its state interests through the polit-
ical process.
Third and lastly, the Secretary’s interpretation here con-
cerns the scope of its own authority to take this land into trust.
While the Gila Bend Act clearly provides authority for the
Secretary to take land into trust to create Indian reservations
in certain locations, this grant of authority is based on signifi-
cant limitations, including that such reservations not be cre-
ated “within the corporate limits” of a city. The majority
concedes that the Gila Bend Act is “ambiguous” regarding
whether the “within the corporate limits” language was meant
to authorize the Secretary’s action of taking Parcel 2 into
trust. Maj. Op. 10968. As in Gregory, SWANCC, and Gonza-
lez v. Oregon, courts should not defer to an agency’s interpre-
tation of an ambiguous grant of authority when the
11006 GLENDALE v. UNITED STATES
interpretation buts up against the limit of the agency’s own
authority. This is especially true where such an interpretation
may also press the outer limits of Congress’s authority under
the Indian Commerce Clause. See United States v. Lara, 541
U.S. 193, 205 (2004) (indicating that Congress could run up
against “constitutional limits” if its Indian legislation “inter-
fere[d] with the power or authority of any State”).
Therefore, even assuming the Gila Bend Act is ambiguous,
ambiguity of this nature can only be interpreted in a State’s
favor. Though the majority is correct that this “case illustrates
the nuances of our federalist system of government,” Maj. Op.
10959, the majority misunderstands that Arizona’s sovereign
interests must prevail in this case, and this court is precluded
from applying Chevron deference to the Secretary’s interpre-
tation. The majority’s ruling to the contrary eviscerates the
very political protections on which the Supreme Court relied
when it decided in Garcia that States can protect their sover-
eign interests through the political process.
III.
Because both the plain language of the Gila Bend Act and
the canon of construction favoring a State’s interests requiring
an interpretation of “within the corporate limits” contrary to
that of the Secretary, I must respectfully dissent.