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Patrick Sullivan: Indian Country watches Big Lagoon casino suit


Filed Under: California | Litigation | Opinion
More on: 9th circuit, bia, big lagoon, california, land-into-trust
   

An aerial view of the Big Lagoon Rancheria in northern California. Image from Google Maps

Attorney Patrick Sullivan highlights the intense tribal interest in Big Lagoon Rancheria v. California, an Indian gaming case that's being reheard by the 9th Circuit Court of Appeals:
First, the 2009 Carcieri decision placed hard limits on the ability of the Bureau of Indian Affairs ("BIA") to restore land to tribes that could not prove they were "under federal jurisdiction" as of the date upon which the Indian Regulatory Act became law in 1934. Then, the 2012 Patchak v. Salazar decision subjected BIA fee-to-trust decisions to review under the Administrative Procedure Act, expanding the litigation exposure of every new trust acceptance from the previous 30-day challenge period to the 6-year APA statute of limitations.

And now, Big Lagoon threatens to roll back all of the rights associated with trust status for post-1934 tribes even those that have held land in trust status for decades. This threat to the Indian land restoration process set off alarm bells throughout Indian Country. Big Lagoon Rancheria responded with a motion for en banc rehearing, and a flurry of amicus briefs supporting rehearing and reversal were filed. Those submitting briefs as amici included the United States Department of Justice, the National Congress of American Indians, the Navajo Nation, California Indian Legal Services, and the United South and Eastern Tribes, a coalition of 26 federally recognized Indian tribes in 12 states.

The 2-1 majority opinion was written by a visiting Judge Block from the Eastern District of New York. The panel decision is widely seen as overreaching and poorly executed, with one Native American legal writer calling Block's analysis "stunningly and thoroughly poor." The dissenting judge noted that the decision contradicted 9th Circuit precedent holding that the State could not collaterally attack the BIA's designation of trust lands years after the expiration of administrative and legal remedies.

On June 11, the Court granted the Tribe's petition for en banc review. The order granting rehearing ordered that the panel opinion should not be cited as precedent by or to any court in the 9th Circuit. In most federal appeals courts, en banc rehearing involves rehearing by the entire bench. But, because the Court is by far the largest with 29 active judges, en banc review will be performed by a randomly selected 11-judge panel.

Get the Story:
Patrick Sullivan: Indian Country Awaits 9th Circuit’s En Banc Rehearing In Big Lagoon Case (Mondaq.Com 6/27)
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9th Circuit Decision:
Big Lagoon Rancheria v. California (January 21, 2014)

Related Stories:
9th Circuit to reconsider Big Lagoon Rancheria gaming dispute (06/12)

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