specially concurring:
I concur in the result reached by the court on the issues raised in the Petition and Response but write separately to express a cautionary note with respect to what I perceive as a substantial federal-state conflict between the federal statute, IGRA, which mandates tribal-state negotiation in defined circumstances, and the Arizona “Fairness” initiative, Ariz.Rev.Stat. Ann. § 5-601.01, which authorizes tribes in Arizona to obtain, on demand, “standard-form” gaming compacts with the state.
The issues raised by the parties are narrow and do not acknowledge or implicate any federal restriction on the authority of a tribe to engage in class III gaming in this state. Indeed, the position urged by the tribe assumes unrestricted tribal authority, subject only to obtaining a signed compact. In its simplest terms, the question put to the court is whether section 5-601.01, a state law, effectively satisfies IGRA’s mandate that the state “negotiate with the Indian Tribe in good faith” for a compact governing class III gaming on the reservation. See 25 U.S.C.A. § 2710(d)(3)(A). As a matter of state law, I believe that it does and that the Salt River Pima-Maricopa Indian Community is entitled to the standard-form compact as demanded.
But this conclusion does not answer the more dispositive federal question, neither raised nor argued before us — whether, in Arizona, a tribe is authorized under IGRA to engage in class III gaming. Clearly, the state has no power to grant such authority. Only the Congress can so authorize, and, in my view, the statute’s express language provides strong indication that the Congress has declined to do so:
*106Class III gaming activities shall be lawful on Indian lands only if such activities are—
(B) located in a State that permits such gaming for any purpose, by any person, organization, or entity____
IGRA, 25 U.S.C.A. § 2710(d)(1)(B) (emphasis added).
IGRA thus places an absolute prohibition on tribal authority to engage in class III gaming unless such gaming is otherwise permitted on non-tribal land within the state in which the tribal gaming is proposed.
The United States Court of Appeals for the Ninth Circuit in Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (1995) cert. denied, — U.S. -, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997) addressed two federal issues: (a) whether IGRA confers authority on a tribe to engage in class' III gaming in California, a state which generally prohibits such gaming, and (b) whether, notwithstanding California’s class III prohibition, the state has a duty under IGRA to negotiate over such gaming with the tribe. The Ninth Circuit, interpreting and applying IGRA, responds negatively to both questions:
The state contends that IGRA does not obligate it to negotiate with the Tribes over the Proposed Gaming Activities. IGRA provides that “Class III gaming activities shall be lawful on Indian lands only if such activities are ... located in a State that permits such gaming for any purpose by any person, organization, or entity.... ”25 U.S.C. § 2710(d)(1)(B). Consequently, where a state does not “permit” gaming activities sought by a tribe, the tribe has no right to engage in these activities, and the state thus has no duty to negotiate with respect to them.
Id. at 1256 (emphasis added).
Arizona, like California, maintains a general statutory prohibition against class III gaming. A.R.S. §§ 13-3301, et seq. The initiative statute, section 5-601.01, neither abolishes nor modifies Arizona’s prohibition, nor has the tribe in the instant case made any such argument. Arizona’s anti-gaming statutes clearly forbid, even criminalize, class III gaming activity and are validly enforced on non-tribal land throughout the state.
I concur in today’s decision to uphold the tribe’s right to a compact because the decision deals properly with the only issue presented — the effect of section 5-601.01 on the state’s obligation to negotiate. The people have spoken, and the tribe, by initiating its demand on the Governor, has done what is legally required to obtain the “standard-form.” While this conclusion brings the instant suit to an end, it does not reach the over-arching federal question raised in Rumsey. And, though federal preemption was argued on behalf of the Governor, it did not touch upon the matter of tribal authority. Preemption was argued only in the sense that section 5-601.01 somehow robbed the state of its authority to negotiate under IGRA. That argument was flawed, however, because section 5-601.01 became the voice of the state, thereby satisfying the requisite element of negotiation in the compacting process.
Under Rumsey, the question must ultimately be posed whether the State of Arizona, which prohibits class III gaming generally, has a federally imposed duty to negotiate, and, more importantly, whether any tribe in Arizona, in the face of Rumsey ’s interpretation of IGRA’s congressional mandate, has the right to engage in such gaming. Rumsey held that the state had no duty and that the tribe was without authority. Because the parties before this court have neither raised nor argued the Rumsey issue, the court, correctly, does not address it. One must nevertheless wonder, in the post-Rumsey era, whether under the current application of federal law the Salt River Pima-Maricopa compact anticipated as the result of this decision, as well as the sixteen existing tribal compacts governing class III gaming in Arizona, can remain viable.