697 F.3d 886 (9th Cir. 2012), 11-15631, Gila River Indian Community v. United States

Docket Nº:11-15631, 11-15633, 11-15639, 11-15641, 11-15642.
Citation:697 F.3d 886
Opinion Judge:McKEOWN, Circuit Judge:
Party Name:GILA RIVER INDIAN COMMUNITY, a federally recognized Indian Tribe; Delvin John Terry; Celestino Rios; Brandon Rios; Damon Rios; Cameron Rios, Plaintiffs, 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 cap
Attorney:Patricia A. Millet, Akin Gump Strauss Hauer & Feld, Washington, D.C., for plaintiff-appellant Gila River Indian Community; Catherine E. Stetson, Hogan Lovells, Washington, D.C., for plaintiff-appellant City of Glendale; David R. Cole, Dep. State Atty. Gen., Phoenix, AZ, for plaintiff-intervenor-a...
Judge Panel:Before: M. MARGARET McKEOWN, N. RANDY SMITH, and JACQUELINE H. NGUYEN,[*] Circuit Judges. Opinion by Judge McKEOWN; Dissent by Judge N.R. SMITH. N.R. SMITH, Circuit Judge, dissenting:
Case Date:September 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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697 F.3d 886 (9th Cir. 2012)

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

City of Glendale; Michael Socaciu; Gary Hirsch, Plaintiffs-Appellants,

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.

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,

and

State of Arizona, 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.

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, Senate Majority Leader; State of Arizona, Kirk Adams, Arizona Legislature, Speaker of the House, Intervenor-Plaintiffs,

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.

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

Delvin John Terry; Celestino Rios; Brandon Rios; Damon Rios; Cameron Rios, Plaintiffs-Appellants,

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.

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, Senate Majority Leader, Kirk Adams, Arizona Legislature, Speaker of the House, Andy Tobin, House Majority Whip, Intervenor-Plaintiff-Appellants,

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.

Nos. 11-15631, 11-15633, 11-15639, 11-15641, 11-15642.

United States Court of Appeals, Ninth Circuit.

September 11, 2012

Argued and Submitted April 16, 2012.

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Patricia A. Millet, Akin Gump Strauss Hauer & Feld, Washington, D.C., for plaintiff-appellant Gila River Indian Community; Catherine E. Stetson, Hogan Lovells, Washington, D.C., for plaintiff-appellant City of Glendale; David R. Cole, Dep. State Atty. Gen., Phoenix, AZ, 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.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. Nos. 2:10-cv-01993-DGC, 2:10-cv-02017-DGC, 2:10-cv-02138-DGC.

Before: M. MARGARET McKEOWN, N. RANDY SMITH, and JACQUELINE H. NGUYEN,[*] Circuit Judges.

Opinion by Judge McKEOWN; Dissent by Judge N.R. SMITH.

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 proceedings and pending legislation. The district court granted summary 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 members. 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

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late 1970s and early 1980s, the reservation was plagued by flooding from the dam, which eventually destroyed a large farm developed by the Nation, leaving the land unsuitable for economic use.

Congress responded to the flooding and the Nation's petition for a new reservation with the Gila Bend Act. The purpose 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 acreage 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 counties, or (ii) " within the corporate limits of any city or town." 3

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., 213 Ariz. 241, 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 litigation, 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

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