Gila River Indian Community v. United States

ORDER

The opinion filed on September 11, 2012, and appearing at 697 F.3d 886 (9th Cir. 2012) is withdrawn.

A superseding opinion will be filed concurrently with this order.

With the filing of the superseding opinion, Judge McKeown and Judge Nguyen vote to deny the petition for panel rehearing. Judge N.R. Smith votes to grant the petition.

The full court has been advised of the petitions for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for rehearing and rehearing en banc are denied.

OPINION

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 Toho-no 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…

dissenting:

“Of all the attributes of sovereignty, none is more indisputable than that of [a State’s] action upon its own territory.” Green v. Biddle, 21 U.S. 1, 43 , 8 Wheat. 1 , 5 L.Ed. 547 (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…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GILA RIVER INDIAN COMMUNITY, No. 11-15631 a federally recognized Indian Tribe; DELVIN JOHN TERRY; D.C. Nos. CELESTINO RIOS; BRANDON RIOS; 2:10-cv-01993-DGC DAMON RIOS; CAMERON RIOS, 2:10-cv-02017-DGC Plaintiffs, 2:10-cv-02138-DGC

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, No. 11-15633 a federally recognized Indian Tribe; CITY OF GLENDALE; D.C. No. MICHAEL SOCACIU; DELVIN JOHN …