                 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
2     GILA RIVER INDIAN CMTY. V. UNITED STATES

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           2:10-cv-01993-DGC
TERRY; CELESTINO RIOS;
BRANDON RIOS; DAMON RIOS;
CAMERON RIOS; GARY HIRSCH,
                         Plaintiffs,

JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona
Legislature, Senature Majority
Leader; KIRK ADAMS, Arizona
Legislature, Speaker of the
House,
           Petitioners-Intervenors,

                and

STATE OF ARIZONA,
   Intervenor-Plaintiff-Appellant,
      GILA RIVER INDIAN CMTY. V. UNITED STATES          3

                 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. 11-15639
a federally recognized Indian
Tribe,                                      D.C. Nos.
                Plaintiff-Appellant,   2:10-cv-01993-DGC
                                       2:10-cv-02017-DGC
                and                    2:10-cv-02138-DGC

CITY OF GLENDALE; MICHAEL
SOCACIU; DELVIN JOHN TERRY;
CELESTINO RIOS; BRANDON RIOS;
DAMON RIOS; CAMERON RIOS,
GARY HIRSCH,
                     Plaintiffs,
4     GILA RIVER INDIAN CMTY. V. UNITED STATES

JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona
Legislature, Senature 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 CMTY. V. UNITED STATES          5

GILA RIVER INDIAN COMMUNITY,             No. 11-15641
a federally recognized Indian
Tribe; CITY OF GLENDALE;                    D.C. Nos.
MICHAEL SOCACIU; GARY                  2:10-cv-01993-DGC
HIRSCH,                                2:10-cv-02017-DGC
                         Plaintiffs,   2:10-cv-02138-DGC

JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona
Legislature, Senature 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
6     GILA RIVER INDIAN CMTY. V. UNITED STATES

Affairs of the United States
Department of the Interior,
             Defendants-Appellees,

TOHONO O’ODHAM NATION,
  Intervenor-Defendant-Appellee.



GILA RIVER INDIAN COMMUNITY,             No. 11-15642
a federally recognized Indian
Tribe; CITY OF GLENDALE;                    D.C. Nos.
MICHAEL SOCACIU; DELVIN JOHN           2:10-cv-01993-DGC
TERRY; CELESTINO RIOS;                 2:10-cv-02017-DGC
BRANDON RIOS; DAMON RIOS;              2:10-cv-02138-DGC
CAMERON RIOS; GARY HIRSCH,
                         Plaintiffs,

STATE OF ARIZONA,                        ORDER AND
            Intervenor-Plaintiff,         OPINION

                and

JOHN MCCOMISH, Arizona
Legislature, Majority Leader;
CHUCK GRAY, Arizona
Legislature, Senature Majority
Leader; KIRK ADAMS, Arizona
Legislature, Speaker of the
House; ANDY TOBIN, House
Majority Whip,
  Intervenor-Plaintiff-Appellants,
      GILA RIVER INDIAN CMTY. V. UNITED STATES       7

                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.


      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 May 20, 2013
8       GILA RIVER INDIAN CMTY. V. UNITED STATES

      Before: M. Margaret McKeown, N. Randy Smith,
         and Jacqueline H. Nguyen,* Circuit Judges.

                              Order;
                   Opinion by Judge McKeown;
                   Dissent by Judge N.R. Smith


                            SUMMARY**


                            Indian Tribes

    The panel withdrew its prior opinion and published a
superseding opinion affirming in part, and reversing and
remanding in part, the district court’s summary judgment in
favor of federal defendants in an action by the City of
Glendale seeking to set aside the United States Department of
Interior’s decision to accept in trust, for the benefit of the
Tohono O’odham Nation, a 54-acre parcel of land known as
Parcel 2 on which the Nation hoped to build a resort and
casino.

    The panel held the Gila Bend Indian Reservation Lands
Replacement Act, read as a whole, was unambiguous and that
§ 6(c) of the Act created a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the


 *
   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.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       GILA RIVER INDIAN CMTY. V. UNITED STATES              9

Act. The panel held that § 6(d) of Act was ambiguous as to
whether Parcel 2, located on a county island fully surrounded
by city land, was within the City of Glendale’s corporate
limits. The panel held further that the Secretary of the
Interior was mistaken in concluding that the term has a plain
meaning, and remanded for the agency to consider the
question afresh in light of the ambiguity the panel saw.
Finally, the panel held that passage of the Act was within
congressional power under the Indian Commerce Clause and
was not trumped by the Tenth Amendment

    Judge N.R. Smith dissented. Judge Smith would hold
that the statutory text of the 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.
Judge Smith would also hold that a remand to the agency is
improper because the case should be resolved against the
agency under step one of the Chevron analysis.


                         COUNSEL

Patricia A. Millett (argued), Akin Gump Strauss Hauer &
Feld, Washington, D.C. for Plaintiff-Appellant Gila River
Indian Community; Catherine E. Stetson (argued), Hogan
Lovells, Washington, D.C. for Plaintiff-Appellant City of
Glendale; David R. Cole (argued), Dep. State Atty. Gen.,
Phoenix, Arizona, for Plaintiff-Intervenor-Appellant State of
Arizona.
10     GILA RIVER INDIAN CMTY. V. UNITED STATES

Aaron P. Avila (argued), Dep’t of Just., Washington, D.C.,
for Defendants-Appellees the United States of America, et.
al.; Seth P. Waxman (argued), Wilmer Cutler Pickering Hale
and Dorr, Washington, D.C., for Defendant-Intervenor-
Appellee the Tohono O’odham Nation.


                          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.
       GILA RIVER INDIAN CMTY. V. UNITED STATES             11

                         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 in part, reverse in part, and remand.

                       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
12      GILA RIVER INDIAN CMTY. V. UNITED STATES

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 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 an


  1
      “The Tribe shall invest sums received under section 4 in interest
bearing 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).
        GILA RIVER INDIAN CMTY. V. UNITED STATES                       13

acreage limit.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., 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




  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
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.” § 6(d).
14       GILA RIVER INDIAN CMTY. V. UNITED STATES

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 of this
appeal.5

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.


     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.
  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.
        GILA RIVER INDIAN CMTY. V. UNITED STATES                    15

    The Secretary of the Interior concluded that the
requirements 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
[Bureau of Indian Affairs], acting under authority of the
Secretary, issued a waiver under Section 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 contiguous to the San
Lucy reservation.” In any event, since Parcel 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
acreage cap under § 6(c) of the Act, because it failed to raise
the issue in the administrative proceeding.7 The district court
then 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 permissible construction of the statute.” See
Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc.,


  7
    We note that, according to the Secretary, the normal “notice and
comment provisions of 25 C.F.R. §§ 151.10 and 151.11(d), requiring that
the BIA notify state and local governments of the land-into-trust
application, are not applicable” to this transaction.
16     GILA RIVER INDIAN CMTY. V. UNITED STATES

467 U.S. 837, 843 (1984). Finally, the district court rejected
the constitutional arguments under the Tenth Amendment and
the Indian Commerce Clause.

    “We review the grant of summary judgment de novo, thus
reviewing directly the agency’s action under the
Administrative Procedure Act’s (APA) arbitrary and
capricious standard.” 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 limit is implicated, and whether Parcel 2 is “within”
the corporate limits of the City of Glendale. We evaluate an
agency’s interpretation of a statute it is entrusted to
administer by first determining “whether Congress has
directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842. If Congress has directly spoken, “the agency
(and the court) must give effect to Congress’s clearly
expressed intent.” Adams v. U.S. Forest Serv., 671 F.3d
1138, 1143 (9th Cir. 2012). If, on the other hand, a statute is
ambiguous, we defer to the agency’s interpretation where the
“interpretation was ‘a reasonable policy choice for the agency
to make.’” Id. (quoting Chevron, 467 U.S. at 845).
        GILA RIVER INDIAN CMTY. V. UNITED STATES                      17

    The remaining issues pertain to the limits of
congressional power under the Indian Commerce 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
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
consider 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


 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.
18     GILA RIVER INDIAN CMTY. V. UNITED STATES

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
remaining in fee status.

    During agency proceedings, the Gila River Indian
Community, 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.

    Assuming, without deciding, that the argument was not
waived, we hold that the statute read as a whole is
unambiguous 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, economic and community development, and
relocation costs.” This authorization is broader than land
       GILA RIVER INDIAN CMTY. V. UNITED STATES                  19

acquisition and does not address trust acreage to replace the
Nation’s lost reservation land.

    Apart from the general provisions of § 6(a), three
provisions of the Act concern the divestment and replacement
of reservation land. Section 4 concerns the original
9,880-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: 9,880 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
acquisition under § 6(a). Subsection 6(c) and 6(d) are
internally cross-referenced and must be read together.

    Aside from its inapplicability to non-reservation land,
treating § 6(c) as a limit on land acquired under § 6(a) is
problematic for other reasons. Congress crafted the Gila
20     GILA RIVER INDIAN CMTY. V. UNITED STATES

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 Congress 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” Congress 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. See Cohen’s Handbook of Federal Indian
Law § 15.04 (describing various forms of tribal land
acquisition, including the purchase of fee simple title).
Glendale’s reading would mean that the Gila Bend Act
purported to curtail the Nation’s independent 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
oversight 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
       GILA RIVER INDIAN CMTY. V. UNITED STATES               21

§ 6(c), the Secretary would necessarily undertake a
monitoring 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, an approximately 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 irrelevant to the clear
limitation that only 9,880 acres may be held in trust.

II. THE CORPORATE LIMITS RESTRICTION IN SECTION
    6(D)

    Section 6(d) of the Gila Bend Act prohibits the Secretary
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 surrounded
by city land, is within the City of Glendale’s corporate limits.
22      GILA RIVER INDIAN CMTY. V. UNITED STATES

    The Secretary, invoking plain meaning, interpreted the
phrase “within the corporate limits” as “show[ing] a clear
intent to make a given piece of property eligible under the
Act if it is on the unincorporated side of a city’s boundary
line,” and concluded Parcel 2 therefore could be taken into
trust. Similarly, the government and the Nation argue for a
jurisdictional meaning: Any land not subject to a city’s
corporate jurisdiction is not “within” the city.9 The Arizona
appellants contend the phrase should have a geographical
meaning: Any land entirely surrounded by a city’s corporate
limits is “within” the city. Who knew that such a
straightforward sounding phrase, “within the corporate
limits,” could generate such competing views.

    As explained below, we conclude the statute is
ambiguous. The Secretary’s decision reflects a failure to
grapple with the ambiguity and prompts us to remand for the
Secretary to bring his expertise to bear to interpret the
provision anew. See Negusie v. Holder, 555 U.S. 511, 523
(2009) (“[I]f an agency erroneously contends that Congress’
intent has been clearly expressed and has rested on that
ground, we remand to require the agency to consider the
question afresh in light of the ambiguity we see.”) (internal
quotation marks omitted).

   The Department of the Interior’s treatment of the
provision is telling. The Department’s Office of the Solicitor
prepared a memorandum for the Secretary on the meaning of


 9
    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.
       GILA RIVER INDIAN CMTY. V. UNITED STATES               23

“corporate limits” and concluded the term was ambiguous.
The Field Solicitor, considering submissions from both the
Nation and the City, explained: “A close review of the
statutes and case law of the State of Arizona reveals that this
question has no clear or dispositive answer, and that there is
ambiguity about it, even to the point of one of the Justices of
the Arizona Supreme Court admitting as much.” Although
the Field Solicitor was inclined to accord the term a
jurisdictional meaning in reliance on Speros v. Yu, 83 P.3d
1094 (Ariz. Ct. App. 2004), he emphasized that such a
position was “reached with some degree of caution, since the
concepts of ‘exterior boundaries’ and ‘corporate limits’ are
neither expressly defined nor used with any real consistency
under Arizona law.” Ultimately, the Field Solicitor
determined that to resolve the inconsistency he was “obliged
to invoke the rule regarding canons of construction regarding
Federal Indian law and Indian jurisprudence,” which counsels
that ambiguous statutes are to be construed in favor of
Indians. See Cnty. of Yakima v. Confederated Tribes and
Bands of Yakima Nation, 502 U.S. 251, 269 (1992).
Applying that canon, the Field Solicitor interpreted the term
to have a jurisdictional meaning.

    In the trust decision, the Secretary referenced but parted
ways with the Field Solicitor’s report and concluded that the
term “corporate limits” was not ambiguous. The Secretary
determined the term had the plain meaning of indicating the
jurisdictional status of fee land: “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.” (emphasis
added). The Secretary reasoned that, had Congress intended
to exclude county islands from possible trust acquisition, it
could have done so by using language such as “exterior
24      GILA RIVER INDIAN CMTY. V. UNITED STATES

boundary,” “within one mile of any city” or “city limits.”
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
boundaries of Navajo Indian Reservation”). In a footnote of
the trust decision, the Secretary added, in the alternative, that
“[e]ven if Congress’s intent was less clear. . . we interpret the
term not to support a conclusion that Parcel 2 is ineligible
under the Act, with or without consideration of the [Indian]
canon.”

    We hold that the Secretary was mistaken in concluding
that the term has a plain meaning.10 Giving the key phrase
“within the corporate limits” its plain, natural, and common
meaning does not resolve the ambiguity. 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 meanings.”). Here, either reading of
the term as used in the statute is plausible. Further, we agree
with the Field Solicitor’s conclusion that Arizona law does
not conclusively solve the dilemma.

    The history of Arizona’s treatment of county islands
underscores the lack of uniformity of interpretation and
uncertainty that carries over to the Gila Bend Act’s use of the
“within the corporate limits” designation. In past ordinances,
the City of Glendale has characterized county islands as lying
outside its corporate limits and requiring annexation to be


 10
    Curiously, the dissent takes the view that the text of § 6(d) has a plain
meaning but then surprisingly comes to an interpretation at odds with the
Secretary. Even the division within our panel underscores the lack of
clarity in the statute.
       GILA RIVER INDIAN CMTY. V. UNITED STATES             25

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 territory, the annexation ordinance
provided that “the present corporate 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 address
land “located within an existing county island” and confirm
that as a result of the annexation, the newly annexed county
island will “be included within the corporate limits of the
City of Glendale.” See, e.g., City of Glendale, AZ, Ordinance
2693 New Series, (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).
Some Arizona statutes also refer to county islands as falling
outside corporate limits. See, e.g., Ariz. Rev. Stat. Ann. § 9-
500.23 (authorizing a city to “provide fire and emergency
medical services outside its corporate limits to a county
island”). However, Arizona statutes do not explicitly define
the term and Arizona courts have used “corporate limits” and
“exterior boundaries” interchangeably. See, e.g., Flagstaff
Vending Co. v. City of Flagstaff, 578 P.2d 985, 987 (Ariz.
1978) (holding that a state-owned university campus was
“within” city limits for purposes of local tax ordinances).

   Having resolved that the statute is ambiguous, the
question is how to treat the Secretary’s decision under
Chevron. We conclude that the Secretary’s interpretation
warrants no deference because it rests on a mistaken
conclusion that the language has a plain meaning.

    Were the statute clear, we would simply “stop the music
at step one,” as we did with § 6(c), supra, in order to “give
26      GILA RIVER INDIAN CMTY. V. UNITED STATES

effect to [Congress’s] unambiguously expressed intent.”
Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir.
2005) (internal quotation marks omitted). Here, we must
move to step two because Congress’s intent is not clear. At
this stage, normally we would defer as a matter of course to
the agency’s expertise and discretion in interpreting the
statute. However, because the agency misapprehended the
clarity of the statute, such deference is not in order.
“[D]eference to an agency’s interpretation of a statute is not
appropriate when the agency wrongly ‘believes that
interpretation is compelled by Congress.’” PDK Labs. Inc. v.
DEA, 362 F.3d 786, 798 (D.C. Cir. 2004) (quoting Arizona v.
Thompson, 281 F.3d 248, 254 (D.C. Cir. 2002)).

    The principle that Chevron deference does not apply
where an agency mistakenly determines that its interpretation
is mandated by plain meaning, or some other binding rule, is
best illustrated by the Supreme Court’s decision in Negusie.
There, the Court declined to uphold the BIA’s interpretation
of an ambiguous provision of the Immigration and
Nationality Act where the BIA mistakenly thought itself
bound by Supreme Court precedent construing similar
language in a different statute. Negusie, 555 U.S. at 518–19.
Although the Court explained that the chosen interpretation
might ultimately be reasonable, it declined to apply Chevron
deference and remanded because the agency “deemed its
interpretation to be mandated by [precedent], and that error
prevented it from a full consideration of the statutory
question here presented.” Id. at 521 (emphasis added);11 see


 11
    The Nation and the government view Negusie as inapposite because
the Secretary here only believed himself bound by plain meaning rather
than by precedent. This is a distinction without a difference. If the
agency fails to bring its expertise to bear because it believes itself
        GILA RIVER INDIAN CMTY. V. UNITED STATES                    27

also Delgado v. Holder, 648 F.3d 1095, 1103 & n.12 (9th Cir.
2011) (en banc) (upholding BIA interpretation of ambiguous
statute despite its reliance on plain text because the BIA’s
decision “did not rely on plain text alone” but also
“emphasized that its interpretation is supported by the history
and background” of the statute) (internal quotation marks
omitted).

     The present case has a twist that bears further
consideration. Unlike in Negusie, the agency here did not rest
entirely on the purportedly clear congressional intent, but
added that it would reach the same conclusion “[e]ven if
Congress’s intent was less clear.” This one-sentence caveat
in a footnote is not entitled to Chevron deference, because the
Secretary did not provide any explanation for this decision.
In short, the passing footnote reflects “that the [Department
of the Interior] has not yet exercised its Chevron discretion to
interpret the statute in question” and thus “the proper
course . . . is to remand to the agency for additional
investigation or explanation.” Negusie, 555 U.S. at 523
(internal question marks omitted).

    The essence of Chevron deference at step two is to give
meaning to the “delegation[] of authority to the agency to fill
the statutory gap in reasonable fashion” through resolution of
“difficult policy choices that agencies are better equipped to
make than courts.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 980 (2005). Without
an explanation of the agency’s reasons, it is impossible to
know whether the agency employed its expertise or “simply


constrained for whatever reason from fully considering policy and
practical considerations, the rationale for Chevron—agency expertise—is
absent.
28     GILA RIVER INDIAN CMTY. V. UNITED STATES

pick[ed] a permissible interpretation out of a hat.” Vill. of
Barrington v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C.
Cir. 2011) (holding that an agency warrants deference at
Chevron step two “only if the agency has offered a reasoned
explanation for why it chose that interpretation” judged
according to “only the rationales the [agency] actually offered
in its decision”) (emphasis added); see also Local Union
1261, United Mine Workers of Am. v. FMSHRC, 917 F.2d 42,
43 (D.C. Cir.1990) (upholding agency’s interpretation at
Chevron step two even where the court disagreed with the
agency’s conclusion that the meaning of the statute was
“plain” because the court concluded that the agency’s
decision “adequately stated the practical and policy
considerations ultimately motivating its interpretation”)
(emphasis added).

    The Secretary’s discussion focuses on why the statutory
text is clear and does not articulate any other factors
counseling in favor of adopting the alternative position
dropped into the footnote. The government argues that the
Field Solicitor’s report suffices to show that the Secretary
grappled with the ambiguity of the statute. But the
Secretary’s decision merely referenced the Field Solicitor’s
determination that (some) Arizona law supports the
conclusion that Parcel 2 is not within the corporate limits in
support of the proposition that the statutory text was plain.
The Secretary’s decision goes out of its way to disclaim the
ambiguity that the Field Solicitor highlighted, asserting
repeatedly that the meaning is “plain” and that the language
shows a “clear intent” to adopt a jurisdictional meaning. The
Secretary declined to consider the impact of the Indian
canon—even though the Field Solicitor concluded application
of the canon was necessary because Arizona law was too
        GILA RIVER INDIAN CMTY. V. UNITED STATES                      29

unsettled on the issue to yield a straightforward answer—and
mentioned no policy or practical concerns.

    The Supreme Court has explained that, although the
“scope of review under the arbitrary and capricious standard
is narrow,” “the agency must . . . articulate a satisfactory
explanation for its action.” Motor Veh. Mfrs. Ass’n v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal
quotation marks and citation omitted). In this situation,
deferring to the Secretary’s unexplained caveat would permit
the agency to sidestep its duty to bring its expertise to bear on
the “difficult policy choices” it is tasked with making.
Negusie, 555 U.S. at 523.

     Because the Secretary relied on the text alone, we
“remand to require the agency to consider the question afresh
in light of the ambiguity we see.” Delgado, 648 F.3d at 1103
n.12 (quoting Negusie, 555 U.S. at 523); see also PDK Labs.,
Inc., 362 F.3d at 797–98 (holding that where there is
ambiguity in the statutory text “it is incumbent upon the
agency not to rest simply on its parsing of the statutory
language. It must bring its experience and expertise to bear
in light of competing interests at stake.”) (footnote and
citation omitted).12


 12
    Aside from the issue of Chevron deference, the Nation argues that the
Department of the Interior’s trust decision is compelled by the Indian
canon’s requirement that when there is doubt as to the proper
interpretation of an ambiguous provision in a federal statute enacted for
the benefit of an Indian tribe, “the doubt [will] benefit the Tribe.”
(quoting Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 729
(9th Cir. 2003)). The Gila River Indian Community counters that the
canon is inapplicable when there are competing tribal interests.
30      GILA RIVER INDIAN CMTY. V. UNITED STATES

    We are puzzled by the dissent’s invocation of the clear
statement or “federalism” canon. The clear statement rule,
which is a canon of statutory construction, not a rule of
constitutional law, applies where courts “confront[] a statute
susceptible of two plausible interpretations, 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. Rys. 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
statutory construction). The rule counsels that “absent a clear
indication of Congress’ intent to change the balance, the
proper course [is] to adopt a construction which maintains the
existing balance.” Salinas, 522 U.S. at 59.




     If by application of canons, or other “traditional tools of statutory
construction,” we could “ascertain[] that Congress had an intention on the
precise question at issue,” we would resolve the ambiguity at step one.
Chevron, 467 U.S. at 843 n.9. However, the application of the Indian
canon in these circumstances is unsettled. We therefore leave it to the
Secretary to consider application of the Indian canon, and other relevant
canons of statutory construction, in the first instance on remand. “The
canons of construction applicable in Indian law are rooted in the unique
trust relationship between the United States and the Indians.” Oneida
County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985). The Secretary
is best positioned to take stock initially of whether and how to weigh the
competing interests. At this stage, the job of considering the statutory
ambiguity in light of the conflicting interests “is not a task we ought to
undertake on the agency’s behalf.” Dep’t of Treasury, IRS v. Fed. Labor
Relations Auth., 494 U.S. 922, 933 (1990).
        GILA RIVER INDIAN CMTY. V. UNITED STATES                       31

    To begin, in the nine briefs filed with the court, it is no
surprise that not a single brief referenced this argument.13 It
is also telling that no party argued that the Secretary’s
construction of § 6(d), in particular, raised serious
constitutional problems or implicated state sovereignty. The
Arizona 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.

    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
question of federal encroachment on state power. In short,
the Gila Bend Act does not implicate an “existing balance of
federal and state powers.” In Gregory v. Ashcroft, 501 U.S.
452 (1991), the Court does not indicate 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 majority fails
to explain the scope of its rule. . . . Second, the majority does
not explain its requirement that Congress’ intent to regulate
a particular state activity be ‘plain to anyone reading [the
federal statute].’” Id. at 478. Virtually any federal legislation
could be construed to have at least minor, derivative
implications for traditional state functions. For example,

 13
    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.
32      GILA RIVER INDIAN CMTY. V. UNITED STATES

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 the Arizona appellants seriously argue that
state sovereign interests restrict the Secretary from
establishing a reservation on trust land.14 As we know,
“[s]tate sovereignty does not end at a reservation’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).

    Even under the dissent’s reading of the statute, nothing
would prevent the Nation from acquiring land in trust
immediately 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 Congress’ power.” Solid Waste Agency of N. Cook

  14
     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
Arizona and its political subdivisions in lieu of real property taxes.”
§ 7(a).
       GILA RIVER INDIAN CMTY. V. UNITED STATES              33

County v. U.S. Army Corps of Engineers, 531 U.S. 159, 172
(2001). Neither plausible construction of the statute “raise[s]
serious constitutional problems” that counsel invocation of
the clear statement rule. Id. The dissent’s real concern about
a casino abutting the City of Glendale is revealed in its effort
to transform 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 regulatory and court battles that are beyond the scope of
this appeal. To convert this issue from one of Chevron
deference to a sovereignty battle over regulation of Indian
gaming distorts the clear statement rule.

    Although we disagree with the dissent’s position that the
clear statement rule is dispositive here, the agency is free on
remand to consider the rule, along with the Indian canon and
other canons of statutory construction, to assist it in
dispatching its duty to bring its policy and practical expertise
to bear in interpreting § 6(d). Because we do not consider a
jurisdictional interpretation of the provision to be foreclosed,
“the agency has the option of adhering to its decision” on
remand. Negusie, 555 U.S. at 525 (Scalia, J., concurring).

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. Kempthorne, 497 F.3d 15, 39–40 (1st Cir. 2007) (en banc),
34     GILA RIVER INDIAN CMTY. V. UNITED STATES

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 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 delegated to Congress under the Indian Commerce
Clause. U.S. Const. art. I, § 8, cl. 3.

    The Tenth Amendment provides that “powers not
delegated 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 delegated 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.

     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
       GILA RIVER INDIAN CMTY. V. UNITED STATES             35

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.”).

    In passing the Gila Bend Act, Congress acted within its
authority and expressly stated that it was fulfilling “its
responsibility to exercise plenary power over Indian affairs to
find alternative land for the [Nation].” H.R. Rep. 99-851 at
7. As 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 in part, REVERSED AND REMANDED
in part as to the interpretation of § 6(d).

   Each party shall bear its own expenses on appeal.



N.R. SMITH, Circuit Judge, 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 (1823). Yet today,
the majority holds that it was permissible for an agency to
36      GILA RIVER INDIAN CMTY. V. UNITED STATES

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
State’s land not authorized by “a clear statement from
Congress.” 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 traditionally supervised by the States’ police
power.” Gonzalez v. Oregon, 546 U.S. 243, 274 (2006).
These concerns are particularly 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 proceedings or a hearing for
any other protesting parties.

 1
   Carcieri v. Kempthorne, No. 07-526, Oral Arg. Tr. 36:13-17 (Nov. 3,
2008).
       GILA RIVER INDIAN CMTY. V. UNITED STATES              37

    The majority’s decision to remand to the agency is
improper, because “Congress has directly spoken to the
precise question” before us. See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
We should resolve this case against the agency under
Chevron step one, because the Secretary’s interpretation (1)
is contrary to the plain language of the statute and (2)
effectively renders political protections afforded to States in
our federalism system virtually nonexistent. Thus, 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
Harvey 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.

    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
38     GILA RIVER INDIAN CMTY. V. UNITED STATES

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 prevent 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
jurisdiction 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,
unincorporated 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,
because a city’s land-use planning documents and zoning
       GILA RIVER INDIAN CMTY. V. UNITED STATES             39

ordinances are able to guide the zoning and subdivision of
county islands. Carefree Improvement Ass’n v. City of
Scottsdale, 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
ordinances 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,
Glendale 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 limited 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 million Major League Baseball training facility.

   In January 2009, the Nation transferred ownership of
Parcel 2 to itself. Only days later, it filed its application
40     GILA RIVER INDIAN CMTY. V. UNITED STATES

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 “new casino will be the largest in the
state.” There are currently 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
proceedings) were able to submit arguments against the
application by letter only. Though the majority makes much
of these “lengthy submissions,” Maj. Op. 14, the length of the
letters 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
        GILA RIVER INDIAN CMTY. V. UNITED STATES                         41

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 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, 467 U.S. at 842–43.2 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 Plaintiffs raised “difficult” and
“substantial legal questions warranting 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



 2
    The majority says that the district court “conclud[ed] that the Secretary
of the Interior correctly applied the” Gila Bend Act. Majority Op. 11.
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’
interpretation 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.
42     GILA RIVER INDIAN CMTY. V. UNITED STATES

                              II.

    The majority concludes that the phrase “within the
corporate limits” in the Gila Bend Act is “ambiguous,” and
thus remands to the agency to allow the Secretary “to bring
his expertise to bear to interpret the provision anew.” Maj.
Op. 22. I disagree that the phrase is ambiguous for two
reasons.

                              A.

    First, as the Supreme Court has held, “the susceptibility
of [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 conclusion 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
geographically 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
       GILA RIVER INDIAN CMTY. V. UNITED STATES              43

       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 requirements set
       forth in the preceding sentence if he
       determines 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 reservation 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 “appropriate” circumstances to include only those
situations where parcels were “not entirely contiguous,” but
were “sufficiently 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
44      GILA RIVER INDIAN CMTY. V. UNITED STATES

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.

    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
boundaries” 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



  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
Dictionary 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
interpretation, because Parcel 2 is in the “inner or interior part of” the
City’s “[b]oundary, border, or outer line.”
       GILA RIVER INDIAN CMTY. V. UNITED STATES             45

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 municipality’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” (emphasis added)); Pub. L. No. 101–514, 104
Stat. 2074, 2076 (1991) (referring to “all incorporated units
within the town of Matewan” (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 exterior 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
legislates, most clearly supports the City of Glendale’s
interpretation 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 legislation” 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.,
46     GILA RIVER INDIAN CMTY. V. UNITED STATES

762 F.2d 1349, 1358 n.8 (9th Cir. 1985) (“[B]ecause
Congress is composed predominately of lawyers, court[s]
may assume that Congress is aware of existing law.”).

      Notably, Arizona’s zoning ordinances use the “within
corporate 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
“unincorporated 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
boundar[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.

    While not binding on this court, Flagstaff Vending is
persuasive authority that Congress understood “within the
corporate 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) sponsored the Gila Bend Act.
        GILA RIVER INDIAN CMTY. V. UNITED STATES                        47

    Though the majority relies on situations where Congress
has used the phrase “exterior boundaries,” these statutes are
completely inapposite. Maj. Op. 24 (citing 16 U.S.C. § 485;
25 U.S.C. § 465). These statutes are in no way referring to
unincorporated islands of land surrounded by an outer
corporate limit, and thus there is nothing to indicate these
statutes would have any bearing on this factually distinct
situation. 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 boundary.” 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
ordinance “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 meaning.5


  5
    The majority cites to Arizona Revised Statutes Section 9-500.23, a
non-zoning ordinance about fire and safety, which “outside corporate
limits” in a jurisdictional sense. However, the jurisdictional usage makes
sense in this context, because which entity is authorized to provide fire
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.
48      GILA RIVER INDIAN CMTY. V. UNITED STATES

     Notably, in a 1992 Legal Brief, the Department of the
Interior 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
reasonably 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 analysis, 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 interpretation is called for only when the devices of
judicial construction have been tried and found to yield no
clear sense of congressional intent.”).


      Other state cases interpreting identical “within the corporate limits”
language have come to the same conclusion as the Supreme Court of
Arizona. 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”).
         GILA RIVER INDIAN CMTY. V. UNITED STATES                         49

                                     B.

    Even if the majority is correct that the statute is
ambiguous, there is a second reason that the majority’s
decision to remand is incorrect. The Supreme Court’s
federalism canon of construction,6 which operates at step one



   6
      The United States argues that the Indian canon of construction,
requiring 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.
Blackfeet 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
Interpretation 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)); William 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.”).
50      GILA RIVER INDIAN CMTY. V. UNITED STATES

of the Chevron analysis7 as a normal tool of judicial
interpretation,8 makes clear that this court is required to
interpret an ambiguous 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 balance
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
significantly changed the federal-state balance.”). A



  7
    Generally, “canons of interpretation are considered to be part of the
traditional tools available to the Court at Step One” of the Chevron
analysis. See William N. Eskridge, Jr. et al., Legislation and Statutory
Interpretation 335 (2d ed. 2006); see also Kenneth A. Bamberger,
Normative Canons 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 ‘traditional tools’ that courts may use to resolve textual
ambiguity, even when faced with an agency construction that might
otherwise be entitled to deferential Chevron review.”).
 8
   “In determining if Congress has ‘an intention on the precise question
at issue,’ [the Court] employ[s] ‘traditional tools of statutory
construction.’” Hamilton v. Madigan, 961 F.2d 838, 840 n.3 (9th Cir.
1992) (quoting Chevron, 467 U.S. at 843 n.9).
        GILA RIVER INDIAN CMTY. V. UNITED STATES                         51

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 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 additional 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




 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
regulate their purely internal affairs by such laws as seem wise to the local
authority is inherent and has never been surrendered to the general
government”); 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 federal law prohibiting shipment of goods made by children was
Constitutional, because the Tenth Amendment was merely a reminder that
“all is retained which has not been surrendered”).
52        GILA RIVER INDIAN CMTY. V. UNITED STATES

exercise 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
substantive 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 “occupy a special and specific position in
our constitutional system 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
commerce power is that inherent in all congressional
action—the built-in restraints that our system provides
through state participation in federal governmental action.
The political process 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 safeguards of the political process have performed as
intended.” Id.


     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 Agricultural Adjustment Act that imposed taxes on agricultural
processors under the Tenth Amendment).
       GILA RIVER INDIAN CMTY. V. UNITED STATES             53

    Only six years after Garcia, the Supreme Court
apparently sought to strike a compromise between these
competing positions 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 Congress’ Commerce Clause
powers, we must be absolutely certain 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 protect 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
ensuring that these political safeguards actually had
“performed 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 system” that “we must assume Congress does not
exercise lightly.” 501 U.S. at 460.

    A canon of construction favoring a State’s sovereign
interests is not new. The Supreme Court has long explained
54         GILA RIVER INDIAN CMTY. V. UNITED STATES

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
Congress.” 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
specific state activities at issue. 501 U.S. at 476 (White, J.,
dissenting).13


 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
Interpretation 368 (2d ed. 2006); Note, Federalism—Clear Congressional
Mandate 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.”).
  13
     See also Federalism—Clear Congressional Mandate Required to
Preempt 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.”).
         GILA RIVER INDIAN CMTY. V. UNITED STATES                         55

    Thus, even if the Gila Bend Act is, as the majority
concludes, “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
to an agency’s interpretation, Chevron, 467 U.S. 837, the
federalism clear statement rule prevents Congress from
punting this highly charged political decision to the less




       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
interpretation 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 “navigable 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 provisions 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” navigable 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.
56        GILA RIVER INDIAN CMTY. V. UNITED STATES

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
Congress “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 Seventh 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 respondents, 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 interpretation alters the
federal-state framework by permitting federal 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 present
case, the Court “read the statute as written to avoid the
significant constitutional and federalism questions . . . and



     14
       Clear statement canons “trump Chevron,” because “Executive
interpretation 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)).
         GILA RIVER INDIAN CMTY. V. UNITED STATES                          57

therefore reject[ed] the request for administrative deference.”
Id. (emphasis added).

     Similarly, in Gregory, 501 U.S. 452, the majority rejected
the EEOC’s interpretation of the statute without even
mentioning deference to the agency. It was only in Justice
Blackmun’s dissent where Chevron was discussed, and he
argued that the Court should have deferred to the EEOC’s
interpretation 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. 31. Rather, the Supreme Court has


  15
     Clear statement “canons reflect a singular requirement that certain
important issues be addressed by legislative deliberation alone. More
specifically, they operate as clear statement rules that bar the interpretation
of a statute to push the bounds of federal power absent an unambiguous
declaration 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
question via explicit statement by operating in a manner that constrains
any interpretive discretion on the part of courts and agencies.” Id. at 80.
58     GILA RIVER INDIAN CMTY. V. UNITED STATES

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
substantive 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
protecting a State’s ability to regulate the land use and private
property 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’ traditional and primary power over land and water
use” as a justification 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 prevented federal law from trumping state law
concerning the regulation of private property rights.

    Second, the clear statement rule only applies when “a
statute [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.
       GILA RIVER INDIAN CMTY. V. UNITED STATES              59

Though the Court explained that the statute may be
ambiguous, either interpretation 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
requirements for state judges—a significant intrusion on state
interests, whereas the other interpretation would not allow
such regulation. 501 U.S. at 469. Similarly in SWANCC, the
potential ambiguity in the Clean Water Act was over whether
or not 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 “actually 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 indicate that Congress had supported the former
“more expansive” interpretation of “navigable waters.” Id. at
168–71. 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 significant 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
traditional state realm at issue. For instance, in Gonzalez v.
Oregon, the Supreme Court explained that it is a
“commonsense conclusion” that “[j]ust as the conventions of
60      GILA RIVER INDIAN CMTY. V. UNITED STATES

expression indicate 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 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
interpretation 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

  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
Roberts 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, retention of legal authority over land, and land-use planning.”
(emphasis added)).
       GILA RIVER INDIAN CMTY. V. UNITED STATES               61

administrative interpretation of a statute invokes the outer
limits of Congress’ 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 interpret 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
agency is without reservation and clearly encompasses the
scope of the subject matter. See Yeskey, 524 U.S. at 208–10.
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
interpretation of the Gila Bend Act clearly implicates
Arizona’s “traditional 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 “encroachment on state power” is at issue in this case.
Maj. Op. 31 (emphasis added). Although the City of
Glendale is a municipality, in SWANCC, the land at issue was
62     GILA RIVER INDIAN CMTY. V. UNITED STATES

only a “municipal 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’
traditional and primary power.” Id. at 173–74 (emphasis
added). Moreover, as discussed below, it is Arizona’s state-
wide zoning 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 interests of the Tribes and the
federal government, on the one hand, and those of the State,
on the other.’” Federal Appellees’ Answering Br. 48
(emphasis added) (quoting Nevada v. Hicks, 533 U.S. 353,
361-62 (2001)). The Federal Government’s brief also notes
that the Secretary’s decision to take 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. 30–31. 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
“essential attributes inhering in [Arizona’s] sovereign status.”
Arizona Appellants’ Opening Br. 49, 51. All parties were
also ordered by our panel to discuss the application of the
        GILA RIVER INDIAN CMTY. V. UNITED STATES                         63

federalism 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 sovereignty 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 Secretary’s interpretation of it, because I conclude
that the federalism canon’s procedural requirement for added
clarity, as 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
interpretation that is much less intrusive. The Secretary’s
application of the Gila Bend Act would interfere with
Arizona’s sovereign powers more than the typical creation of

  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
concession 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.
64     GILA RIVER INDIAN CMTY. V. UNITED STATES

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
development” 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 986–87, 992. In
addition, in Arizona, generally no other municipality can
annex unincorporated 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, Glendale 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 developed the
surrounding area consistent with that zoning designation.
These reliance interests would not exist to the same extent in
the hypothetical the majority poses, regarding “acquiring land
in trust immediately adjacent to a city’s outermost boundary
        GILA RIVER INDIAN CMTY. V. UNITED STATES                        65

or even land that was almost, but not entirely encircled by
corporate land.”18 Maj. Op. 32.

    The State’s territorial control—the ability to tax, to
regulate, 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 jurisdictions 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 functions such as zoning . . . or the exercise of
general civil jurisdiction 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 independent “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


  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
“sufficiently close to be reasonably managed as a single economic unit or
residential unit.” H.R. Rep. No. 99-851, at 11 (1986).
66     GILA RIVER INDIAN CMTY. V. UNITED STATES

of a limited sovereignty which has never been
extinguished.”).       Thus, upholding the Secretary’s
interpretation 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
taking 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
concerns.

    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
       GILA RIVER INDIAN CMTY. V. UNITED STATES              67

intended.” Garcia, 469 U.S. at 556. As discussed above, the
text of the Gila Bend Act readily lends itself to an
interpretation 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 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 interests. Indeed, the Arizona Supreme
Court’s recent decision in Flagstaff Vending, 578 P.2d at 987,
as well as Arizona’s zoning 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 dilemma, when the
Department 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 notification, 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 application. Thus, the statutory interpretation tools and
facts of this case indicate that the ambiguity at issue in the
“within the corporate limits” phrase was of the type that
prevented Arizona from adequately protecting its state
interests through the political process.

   Third and lastly, the Secretary’s interpretation here
concerns the scope of its own authority to take this land into
68     GILA RIVER INDIAN CMTY. V. UNITED STATES

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 significant limitations, including that such
reservations not be created “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. 22. As in
Gregory, SWANCC, and Gonzalez v. Oregon, courts should
not defer to an agency’s interpretation of an ambiguous grant
of authority when the 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 “interfere[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. 11, 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 interpretation. The majority’s decision to
remand (and set the stage for unwarranted Chevron
deference) eviscerates the very political protections on which
the Supreme Court relied when it decided in Garcia that
States can protect their sovereign interests through the
political process.
       GILA RIVER INDIAN CMTY. V. UNITED STATES             69

                             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.
