Tohono O'Odham Nation v. State of Arizona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOHONO O’ODHAM NATION, No. 11-16811
Plaintiff-Appellee,
D.C. No.
v. 2:11-cv-00279-
DGC
CITY OF GLENDALE,
Defendant,
and
STATE OF ARIZONA,
Defendant-Appellant.
TOHONO O’ODHAM NATION, No. 11-16833
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-00279-
DGC
STATE OF ARIZONA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
2 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
Argued and Submitted February 12, 2013
Submission Vacated June 21, 2013
Resubmitted October 30, 2015
San Francisco, California
Filed November 6, 2015
Before: DOROTHY W. NELSON, STEPHEN
REINHARDT, and MILAN D. SMITH, JR., Circuit
Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Indian Law
The panel affirmed the district court’s summary judgment
in an action challenging the constitutionality of H.B. 2534, an
Arizona law that allows a city or town within populous
counties to annex certain surrounding, unincorporated lands.
The Tohono O’odham Nation purchased unincorporated
land in Maricopa County, Arizona. The Nation alleged that
H.B. 2534 was enacted in order to block the federal
government from taking the land it purchased into trust on
behalf of the Nation, a process that would render the land part
of the Nation’s reservation pursuant to the Gila Bend Indian
Reservation Lands Replacement Act. H.B. 2534 was enacted
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 3
after the Nation announced its intention to build a casino on
“Parcel 2” of the land, and after the Secretary of the Interior
decided to take Parcel 2 into trust.
The panel affirmed the district court’s holding that H.B.
2534 is preempted by the Gila Bend Indian Reservation
Lands Replacement Act because it stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of the Act¯namely, to enable the Secretary to take
Parcel 2 into trust and thereby incorporate the land into tribal
land. The panel concluded that under H.B. 2534, the City of
Glendale, Arizona, purportedly had the authority¯at the
point when the Nation filed a trust application¯to
preemptively annex unincorporated land and effectively block
the trust application.
The panel thus affirmed the legality of the Secretary’s
taking of Parcel 2 into trust pursuant to the Act. It did not
reach the Nation’s other challenges to H.B. 2534.
COUNSEL
Danielle Spinelli (argued), Seth P. Waxman, and Sonya
Lebsack, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.; Jonathan L. Jantzen and Laura Berglan,
Tohono O’odham Nation Office of the Attorney General,
Sells, Arizona, for Plaintiff-Appellee / Cross-Appellant.
4 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
Evan F. Hiller (argued) and Michael Tryon, Arizona Office
of the Attorney General, Phoenix, Arizona, for Defendant-
Appellant State of Arizona / Cross-Appellee.
Audrey E. Moog (argued), Hogan Lovells US,
LLP, Washington, D.C., for Defendant City of Glendale.
OPINION
M. SMITH, Circuit Judge:
This appeal involves a dispute concerning 135 acres of
unincorporated land within Maricopa County, Arizona that
was purchased by Plaintiff, the Tohono O’odham Nation (the
Nation). The Nation filed suit against the City of Glendale
and the State of Arizona (collectively, Defendants),
challenging the constitutionality of H.B. 2534, a law passed
by the Arizona legislature that allows a city or town within
populous counties to annex certain surrounding,
unincorporated lands.
The Nation alleges that H.B. 2534 was enacted to block
the federal government from taking the 135 acres it purchased
into trust on behalf of the Nation—a process that would
render the land part of the Nation’s reservation pursuant to
the Gila Bend Indian Reservation Lands Replacement Act,
Pub. L. No. 99-503, 100 Stat. 1798 (1986) (the Act). The
Nation asserts that H.B. 2534 is preempted by the Act,
violates the Equal Protection and Due Process Clauses of the
U.S. and Arizona Constitutions, and violates the Arizona
Constitution’s prohibition against special legislation. The
parties filed cross summary judgment motions. The district
court ruled in favor of the Nation as to the federal preemption
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 5
claim, and ruled in favor of Defendants as to the remaining
claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Tribal Land
The Tohono O’odham Nation, formerly known as the
Papago Tribe, is a federally recognized Indian tribe with over
28,000 members. The tribe is descended from Native
Americans who resided for centuries along the banks of the
Gila River in Arizona. In 1882, by executive order, President
Chester A. Arthur set aside for the Nation a 22,400-acre Gila
Bend Reservation in southwestern Arizona. The size of the
reservation was later reduced to 10,297 acres by executive
order of President William Howard Taft. In 1960, in order to
provide flood protection to non-tribal areas, the federal
government completed construction of the Painted Rock
Dam, located on the Gila River approximately ten miles from
the Gila Bend Reservation. In subsequent decades, flooding
from the dam caused major damage to the reservation,
destroying farm land and rendering the reservation land
economically unviable. The Nation was left with “a
reservation which for all practical purposes [could not] be
used to provide any kind of sustaining economy.” The
Nation sought a legislative remedy, rather than engaging in
lengthy litigation, and petitioned Congress for a new
reservation on lands that would be suitable for agriculture.
II. Gila Bend Indian Reservation Lands Replacement Act
In 1982, pursuant to section 308 of the Southern Arizona
Water Rights Settlement Act, Pub. L. No. 97-293, 96 Stat.
1261 (1982), Congress recognized its trust responsibility to
6 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
find a different land base for the Nation. Section 308
authorized the Secretary of the Interior (the Secretary) to
conduct a study of the reservation, and to find lands suitable
for a tribal reservation. The ensuing study concluded that the
reservation land had little economic value and was unsuitable
for agriculture or grazing. Another study found that there
were no public lands within a 100-mile radius of the
reservation that were suitable as potential exchange properties
for the reservation.
In 1986, Congress passed the Act to facilitate the
replacement of the reservation lands, and to promote the
economic self-sufficiency of the Nation. Pub. L. No. 99-503,
§ 2. The Act (1) authorized the Nation to assign 9,880 acres
of tribal land within the Gila Bend Indian Reservation to the
federal government in exchange for $30,000,000; (2)
authorized the Nation to purchase up to 9,880 acres of private
land, which would, at the request of the Nation, be held in
trust for the tribe, and thereby be incorporated into tribal land;
and (3) released the Nation’s claims against the United States
for past injuries to land and water rights. Pub. L. No. 99-503,
§§ 4(a), 6(c)-(d), 9(a). The Act requires that purchased
private land be held in trust and not be “outside the counties
of Maricopa, Pinal, and Pima, Arizona, or within the
corporate limits of any city or town.” Id. § 6(d). In 1987, the
Nation assigned its rights in the reservation lands and
relinquished its claims against the United States.
III. Acquisition of Land and Trust Application
In August 2003, the Nation purchased 135 acres of
unincorporated land within Maricopa County, Arizona (the
Replacement Lands) for $13.8 million. The Replacement
Lands are wholly located in an unincorporated “county
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 7
island,” surrounded on all sides by land incorporated within
the City of Glendale (the City), and include, among other
properties, a 54-acre portion known as Parcel 2.
On January 28, 2009, the Nation filed an application with
the Bureau of Indian Affairs, requesting that the Replacement
Lands be taken into trust pursuant to the Act. At the same
time, the Nation publicly revealed its plan to build a casino on
Parcel 2 of the Replacement Lands pursuant to the authority
of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-
2721 (IGRA). Pursuant to the IGRA, gaming activities may
only take place on land that is part of an Indian reservation.
Thus, having at least some portion of the Replacement Land
held in trust—which transforms the land into tribal land—is
a precondition to the Nation’s conducting gaming operations
on that portion of the land. On March 12, 2010, as a result of
an ongoing state-court action, the Nation modified its
application to request that only Parcel 2 of the Replacement
Lands be taken into trust, and that the Department of the
Interior hold in abeyance the rest of the Nation’s application
for the transfer of the Replacement Lands.
On July 23, 2010, the Secretary determined that Parcel 2
satisfied all the legal requirements of the Act, and that taking
Parcel 2 into trust was mandatory. The Secretary adopted the
position that, under Arizona law, the Replacement Lands are
not part of the City because they are not within the City’s
“corporate limits.” He expressly concluded that Parcel 2 is
not “within the corporate limits of any city or town” based on
the plain and jurisdictional meaning of “corporate limits”
under the Act. The Secretary also agreed that the trust
application concerning the remaining portions of the
Replacement Lands would be held in abeyance, pending a
new request by the Nation. The Secretary published notice of
8 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
his decision on August 26, 2010. 75 Fed. Reg. 52,550. He
was then permitted to take Parcel 2 into trust 30 days after
publication of notice of his decision. See 25 C.F.R.
§ 151.12(b).
IV. Opposition and Litigation
The Nation’s trust application and subsequent plans to
build a gaming casino on Parcel 2 have been vigorously
opposed by Defendants, the Gila River Indian Community,
and others.
Shortly after the Secretary’s July 2010 decision, the City,
the Gila River Indian Community, and others filed lawsuits
against the Department of the Interior in the District of
Arizona, challenging the Parcel 2 decision as a violation of
the Administrative Procedure Act and the U.S. Constitution.
The Nation subsequently intervened as a defendant, and the
State of Arizona and various state legislators intervened as
plaintiffs. The lawsuits were consolidated into one
proceeding, denominated Gila River Indian Community v.
United States, No. 10-cv-1993. In March 2011, the district
court in Gila River Indian Community upheld the Secretary’s
decision and rejected statutory and constitutional challenges
brought by the City, the State of Arizona, and others. The
plaintiffs in that case appealed. The district court enjoined
the United States from taking Parcel 2 into trust and enjoined
the City from annexing Parcel 2 during the pendency of the
appeal.
In an opinion issued on July 9, 2013, we affirmed the
district court’s decision in part and reversed in part. See Gila
River Indian Community v. United States, 729 F.3d 1139 (9th
Cir. 2013). We concluded that the phrase “within the
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 9
corporate limits” under section 6(d) of the Act was
ambiguous, and we instructed that the matter be remanded to
the Secretary to reconsider the phrase in light of the
ambiguity we identified. Id. at 1147. Once our mandate
issued, and the district court remanded Gila River Indian
Community v. United States to the Secretary “consistent with
the Ninth Circuit’s opinion and mandate,” it terminated the
case, thereby dissolving its injunction.
On June 21, 2013, we vacated submission of the present
appeal pending the Secretary’s determination on remand. In
response to our remand, on July 3, 2014, the Secretary
reaffirmed that the phrase “within the corporate limits” has a
jurisdictional rather than geographical meaning and was
meant to describe “lands that have actually been incorporated
by a municipality.” Applying this definition, the Secretary
determined that Parcel 2 was not “within the corporate limits”
of the City and that “the legal requirements under the Act for
acquiring Parcel 2 in trust have been satisfied.” Consistent
with the Secretary’s ruling, the United States took Parcel 2
into trust for the Nation on July 7, 2014.
V. H.B. 2534
On February 1, 2011, while the district court proceedings
in Gila River Indian Community were pending, the governor
of Arizona signed H.B. 2534 into law. The bill was scheduled
to take effect on July 20, 2011. A lead sponsor of H.B. 2534
stated that the bill was made necessary by a “power grab by
the federal government,” and that the legislature was
“fighting an overreaching, intrusive Federal Government.”
The bill, codified at A.R.S. § 9-471.04, provides as follows:
10 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
A. Notwithstanding any other provision of
this article:
1. A city or town located in a county with a
population of more than three hundred fifty
thousand persons may annex any territory
within an area that is surrounded by the city or
town or that is bordered by the city or town on
at least three sides if the landowner has
submitted a request to the federal government
to take ownership of the territory or hold the
territory in trust.
2. The annexation of territory pursuant to this
section is valid if approved by a majority vote
of the governing body of the city or town. The
annexation becomes immediately operative if
it is approved by at least two-thirds of the
governing body of the city or town.
B. For the purposes of this section, “submitted
a request to the federal government” means
the landowner has made an application to the
federal government as required by a specific
federal statute or regulation.
A.R.S. § 9-471.04.
VI. Procedural History
Shortly after passage of H.B. 2534, the Nation filed suit
against Defendants. In the operative complaint, the Nation
alleged that H.B. 2534 was specifically intended to frustrate
the operation of the Act by permitting the City to annex the
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 11
Nation’s land and bring it within the City’s “corporate
limits,” thereby rendering that land ineligible to be taken into
trust under the Act. The Nation alleges that H.B. 2534 is
preempted by federal law, and is unconstitutional. In total,
the Nation asserts six claims against Defendants: federal
preemption (Count I); violation of the Due Process Clause
under the U.S. and Arizona Constitutions (Counts II, V);
violation of the Equal Protection Clause under the U.S. and
Arizona Constitutions (Counts III, VI); and violation of the
Arizona Constitution’s prohibition on special legislation
(Count IV).
The parties filed cross motions for summary judgment,
which the district court granted in part and denied in part.
Specifically, the district court ruled that H.B. 2534 directly
conflicts with Congress’ intent that the Nation’s land be taken
into trust pursuant to the Act, and is therefore preempted by
the Act. The district court also determined that H.B. 2534 is
preempted because it would cause the Nation to lose
important voting and hearing opportunities that would
otherwise be available under Arizona’s general annexation
law, A.R.S. § 9-471, thereby impermissibly burdening a
federal right. The district court denied the Nation’s due
process claims because the Nation did not meet its burden of
showing that H.B. 2534 is clearly arbitrary and unreasonable
and unconnected to a legitimate state interest. It also denied
the Nation’s equal protection claims finding that H.B. 2534
survives the “very lenient” rational-basis inquiry. Finally, the
district court held that the Nation has not shown beyond a
reasonable doubt that H.B. 2534 constitutes special
legislation.
On June 30, 2011, the district court entered judgment in
favor of the Nation on its preemption claim, declaring that
12 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
H.B. 2534, as applied in this case, is preempted by the Act,
and in favor of Defendants on the remaining claims. The
parties timely filed cross appeals, which were consolidated.
The judgment of the district court was not stayed pending this
appeal.
STANDARD OF REVIEW AND JURISDICTION
“We review a district court’s legal determinations,
including constitutional rulings, de novo.” Berger v. City of
Seattle, 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc). A
district court’s grant or denial of summary judgment is also
reviewed de novo. Wright v. Incline Vill. Gen. Improvement
Dist., 665 F.3d 1128, 1133 (9th Cir. 2011).
The district court may grant summary judgment on “each
claim or defense – or the part of each claim or defense – on
which summary judgment is sought.” Fed. R. Civ. P. 56(a).
Summary judgment is proper where the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
ANALYSIS
Defendants challenge the district court’s ruling that the
Act preempts H.B. 2534. Congress’ power to preempt state
law derives from the Supremacy Clause, which provides that
the “Constitution, and the Laws of the United States . . . and
all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of
the Land; . . . any Thing in the Constitution or Laws of any
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 13
State to the Contrary notwithstanding.” U.S. Const. art. VI,
cl. 2; see also Kurns v. R.R. Friction Products Corp., 132 S.
Ct. 1261, 1265 (2012) (“Pre-emption of state law . . . occurs
through the direct operation of the Supremacy Clause.”
(quotation marks omitted)); Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 372 (2000) (“A fundamental principle
of the Constitution is that Congress has the power to preempt
state law.”).
There are three types of preemption: express, field, and
conflict preemption. Kurns, 132 S. Ct. at 1265–66. Conflict
preemption consists of impossibility and obstacle preemption.
Crosby, 530 U.S. at 372–73. In this case, the Nation asserts
obstacle preemption. Obstacle preemption arises when a
challenged state law “stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Crosby, 530 U.S. at 373 (quoting
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
A. Presumption Against Preemption
In conducting a preemption analysis, courts are guided by
two bedrock principles: (1) the purpose of Congress, which
is the “ultimate touchstone in every pre-emption case,” and
(2) “the assumption that the historic police powers of the
States were not to be superseded by the [f]ederal [a]ct unless
that was the clear and manifest purpose of Congress.” Wyeth
v. Levine, 555 U.S. 555, 565 (2009) (quotation marks
omitted).1
1
The Supreme Court in United States v. Locke, 529 U.S. 89 (2000),
held that the presumption against preemption “is not triggered when the
State regulates in an area where there has been a history of significant
federal presence.” Id. at 108. In UFO Chuting of Hawaii, Inc. v. Smith,
14 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
Following Wyeth, the district court concluded that the
presumption against preemption applies and, as a result, the
Act preempts H.B. 2534 only if preemption was “the clear
and manifest purpose of Congress.” Wyeth, 555 U.S. at 565
(quotation marks omitted). Although legislation related to
Indian tribes is the exclusive province of Congress, H.B. 2534
implicates a city’s authority to extend its corporate limits
through annexation—an area of law historically subject to
state regulation. See, e.g., Hussey v. City of Portland, 64 F.3d
1260, 1263 (9th Cir. 1995) (citing Hunter v. City of
Pittsburgh, 207 U.S. 161, 178–79 (1907)).
B. The Act Preempts H.B. 2534
Despite the presumption against preemption, the district
court properly concluded that H.B. 2534 is preempted by the
Act. “What is a sufficient obstacle is a matter of judgment,
to be informed by examining the federal statute as a whole
and identifying its purpose and intended effects . . . .”
Crosby, 530 U.S. at 373. As required by Crosby then, we
proceed to examine the “purpose and intended effects” of the
Act. The Act was passed in recognition of the federal
government’s trust responsibility to the Nation and to
compensate it for the destruction of tribal land by flooding.
The Act recognized that “[t]he lack of an appropriate land
base severely retards the economic self-sufficiency of the
O’odham people of the Gila Bend Indian Reservation,
contributes to their high unemployment and acute health
problems, and result in chronic high costs for Federal services
and transfer payments.” Pub. L. No. 99-503, § 2(3). As
508 F.3d 1189 (9th Cir. 2007), we distinguished Locke by limiting its
holding to cases of field preemption, where “Congress leaves no room for
state regulation.” Id. at 1194–95.
 TOHONO O’ODHAM NATION V. STATE OF ARIZONA 15
eponymously expressed by the “Gila Bend Indian
Reservation Lands Replacement Act,” the Act was meant to
“facilitate replacement of reservation lands with lands
suitable for sustained economic use which is not principally
farming and do not require Federal outlays for construction,
and promote the economic self-sufficiency of the O’odham
Indian people.” Id. § 2(4).
Under the Act, replacement land is to be obtained by
enabling the Nation to purchase private land that, under
certain conditions, the Secretary is to hold in trust for the
Nation. Pub. L. No. 99-503, § 6(c)-(d). The Act describes
the mechanism and requirements by which the federal
government is to take purchased land into trust and thereby
incorporate the land into tribal land:
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.
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
requirements set forth in the preceding
16 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
sentence if he determines that additional areas
are appropriate.
Id. § 6(d). Parsing this provision, several conditions must be
satisfied before purchased land can be taken into trust by the
Secretary. First, the phrase “at the request of the Tribe”
indicates that the Nation must request that the Secretary take
purchased land into trust. Second, the section imposes two
limitations: (a) the purchased land cannot be “outside the
counties of Maricopa, Pinal, and Pima” in Arizona, and (b)
the purchased land cannot be “within the corporate limits of
any city or town.” Third, the purchased land must
“constitute[] not more than three separate areas consisting of
contiguous tracts, at least one of which areas shall be
contiguous to San Lucy Village.” Once these requirements
are satisfied, the provision commands that the Secretary
“shall” take the land into trust, and any such land “shall” be
deemed to be tribal land. Thus, the Secretary’s taking of
eligible land is mandatory, not permissive.
Here, it is undisputed that the Nation purchased the 54
acres of land constituting Parcel 2 and, on January 28, 2009,
filed a trust application with the Secretary. It is also
undisputed that the Secretary issued a decision on July 23,
2010, concluding that Parcel 2 was not “within the corporate
limits of any city or town,” and that, having satisfied all the
legal requirements under the Gila Bend Act, acquisition of the
land into trust was mandatory. Following our remand in Gila
River Indian Community, 729 F.3d 1139 (9th Cir. 2013), the
Secretary has since reconsidered and reconfirmed the
jurisdictional interpretation of the phrase “within the
corporate limits.” But for the stay imposed by the district
court in Gila River Indian Community pending appeal of that
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 17
case, Parcel 2 could have been taken into trust after
September 25, 2010.
H.B. 2534 was passed two years after the Secretary’s
decision was handed down. H.B. 2534 clearly stands as an
obstacle to the implementation of the Act because, “under the
circumstances of [this] particular case,” the effect of the state
law is to thwart “the accomplishment and execution of the
full purposes and objectives” of the Act—namely, to enable
the Secretary to take Parcel 2 (and the remainder of the
Replacement Lands) into trust and thereby incorporate the
land into tribal land. Crosby, 530 U.S. at 373 (quotation
marks omitted). Specifically, H.B. 2534 provides that “[a]
city or town located in a county with a population of more
than three hundred fifty thousand persons may annex any
territory within an area that is surrounded by the city or town
or that is bordered by the city or town on at least three sides
if the landowner has submitted a request to the federal
government to take ownership of the territory or hold the
territory in trust.” A.R.S. § 9-471.04. This provision applies
to the Replacement Lands because they are located within
Maricopa County, which exceeds the population threshold of
350,000 people,2 and are fully “surrounded” by lands
incorporated by the City. Moreover, H.B. 2534 authorizes
the annexation of adjacent lands—i.e., the placing of land
within [the City’s] corporate limits—upon the landowner’s
[the Nation’s] request that the land be taken into trust. This
language in H.B. 2534 was triggered when the Nation
requested that the Secretary take land purchased by the
2
According to the U.S. Census Bureau, the estimated population of
Maricopa County in 2011 was over 3 million. See U.S. Census Bureau,
http://quickfacts.census.gov/qfd/states/04/04013.html (last visited Oct. 16,
2015).
18 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
Nation [Parcel 2] into trust. Pub. L. No. 99-503, § 6(d). H.B.
2534 further specifies that “‘submitted a request to the federal
government’ means the landowner has made an application
to the federal government as required by a specific federal
statute or regulation.” The Act is such a “specific federal
statute.” Accordingly, at the very moment the Nation files an
application with the Secretary to take any of the Replacement
Lands into trust, the City is permitted, pursuant to H.B. 2534,
to annex the same land by either a majority vote of the
governing body or by two-thirds vote of the governing body,
in which case the annexation “becomes immediately
operative.” A.R.S § 9-471.04, § A.2.
It is abundantly clear that H.B. 2534 applies to the
Nation’s trust application to the Secretary, filed in January
2009, and would, if not preempted, enable the City to
effectively veto any portion of that application not already
brought to fruition. This is so because once the land is
annexed, it would no longer be outside “the corporate limits”
and therefore would be ineligible to be taken into trust. In
this case, the Secretary has already determined that Parcel 2
fulfills the statutory requirements of the Act and must be
taken into trust, and took Parcel 2 into trust once the district
court’s injunction in Gila River Indian Community was
dissolved. The trust application for the remainder of the
Replacement Lands has been held in abeyance, but if the
Nation renews its application, the Secretary has an obligation
to take it into trust, since it also satisfies the requirements
under Section 6(d) of the Act. Unless preempted, H.B. 2534
would permit the City to bar the taking of any of the
remaining Replacement Lands into trust by the federal
government, thereby blocking the Nation’s effort to find
replacement land, all in direct contravention of the express
purpose of the Act.
TOHONO O’ODHAM NATION V. STATE OF ARIZONA 19
Defendants challenge the district court’s preemption
analysis primarily on the ground that the district court
erroneously read a temporal freezing provision into Section
6(d) of the Act. The district court interpreted the phrase “at
the request of the Tribe” to mean that “when the Nation asks
[the agency] to take land into trust that is not at that time
within the corporate limits of any city or town, [the agency]
has a mandatory obligation to take the land into trust provided
the other requirements . . . are satisfied” (emphasis added).
Section 6(d) does not specify a precise time at which the
Secretary assesses whether the purchased land is or is not
within corporate limits. The point in time could be at the
time of purchase, at the time the trust application is filed, or
anytime after the application is filed but before a decision by
the Secretary is issued.
However, we need not decide this issue, since it does not
affect our preemption analysis. Under H.B. 2534, the City
purportedly has the authority—at the point when the Nation
files a trust application—to preemptively annex
unincorporated land and effectively block the trust
application. This directly bars the Nation’s effort to
incorporate purchased land into tribal land, regardless of the
moment in time at which the Secretary decides whether the
land is within corporate limits. Under the circumstances of
this case, H.B. 2534 stands as a clear and manifest obstacle to
the purpose of the Act because it was enacted after the
Nation’s trust application was filed, and it uses that
application itself to thwart the taking of purchased land into
trust. Accordingly, we hold that H.B. 2534 is preempted by
the Act.
20 TOHONO O’ODHAM NATION V. STATE OF ARIZONA
CONCLUSION
We affirm the decision of the district court. Because we
hold that H.B. 2534 is invalid based on federal preemption,
we need not reach the remaining challenges to H.B. 2534.
The legality of the Secretary’s taking of Parcel 2 into trust
pursuant to the Act is affirmed, and the Nation is free to
petition the Secretary to have the remainder of the
Replacement Lands taken into trust, pursuant to the Act.
AFFIRMED.