ELR Citation: 43 ELR 20115
No(s). 11-15631 et al (9th Cir. May 20, 2013)

The Ninth Circuit affirmed in part and reversed and remanded in part a lower court decision granting summary judgment in favor of the government in a city's lawsuit seeking to set aside DOI's decision to accept in trust, for the benefit of the Tohono O’odham Nation, a 54-acre parcel of land on which the Nation hopes to build a resort and casino. The land, known as Parcel 2, is located on a county island fully surrounded by city land. The city argued that §6(c) of the Gila Bend Indian Reservation Lands Replacement Act 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 court disagreed. The Act, as a whole, is ambiguous, and the limit set forth in §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. However, §6(d) of Act, which prohibits DOI from taking land into trust if it is "within the corporate limits" of a city or town, was ambiguous as to whether Parcel 2 was within the city's corporate limits. DOI and the Nation argued that any land not subject to a city’s corporate jurisdiction is not “within” the city, while the city argued that any land entirely surrounded by a city’s corporate limits is “within” the city. DOI's conclusion that the term "within the corporate limits" has a plain meaning reflects a failure to grapple with this ambiguity. The issue was therefore remanded for further consideration. But the court agreed with the lower court that the Act was within congressional power under the Indian Commerce Clause and was not trumped by the Tenth Amendment.