An aerial view of Big Lagoon, home to the Big Lagoon Rancheria in California. Photo by Jim Popenoe

California | Compacts | Land Acquisitions | Litigation

9th Circuit sides with Big Lagoon Rancheria in gaming site dispute

Thursday, June 4, 2015

In a major victory for tribal interests, the 9th Circuit Court of Appeals today sided with the Big Lagoon Rancheria in a closely-watched gaming dispute.

By a unanimous vote, an en banc panel of the court blocked the state of California from challenging the status of land that the Bureau of Indian Affairs placed in trust for the tribe in 1994. The state never filed a timely challenge to that agency action under the Administrative Procedures Act, the slate of 11 judges determined.

"Allowing California to attack collaterally the BIA’s decision to take the eleven-acre parcel into trust outside the APA would constitute just the sort of end-run that we have previously refused to allow, and would cast a cloud of doubt over countless acres of land that have been taken into trust for tribes recognized by the federal government," Judge Diarmuid O'Scannlain wrote for the court.

The court also said the state cannot question the tribe's federally recognized status. Again, the judges referred back to the APA, which places a six-year statute of limitations on challenges to a federal agency's actions.

Indianz.Com SoundCloud: Oral arguments in Big Lagoon Rancheria v. California

"California has not brought an APA challenge to the BIA’s determination, and, like the challenge to the BIA’s entrustment decision with respect to the eleven-acre parcel, such a challenge would be time-barred," O'Scannlain wrote.

Finally, the 9th Circuit upheld a federal judge's determination that the state has failed to negotiate in good faith under the Indian Gaming Regulatory Act. The tribe has been trying to enter into a Class III gaming compact for a casino on the 11-acre site in question as far back as 1999.

"While California asserts that Big Lagoon Rancheria lacks standing to invoke the IGRA, it necessarily argues that the BIA exceeded its authority when it took the eleven-acre parcel into trust," O'Scannlain wrote. "The proper vehicle to make such a challenge is a petition for review pursuant to the APA, and that is the typical method employed in prior litigation challenging entrustment decisions."

YouTube: Big Lagoon Rancheria v. California

The decision marks a dramatic reversal from a January 2014 ruling that placed the tribe's trust site and indeed its federally recognized status in doubt. Tribes across the nation rushed to defend the Big Lagoon Rancheria and asked the 9th Circuit to take another look at the case due to its significance.

"The Carcieri decision from the Supreme Court was probably one of the worst decisions in a long time because it impacted a lot of tribes across the nation," National Congress of American Indians President Brian Cladoosby said in his 2014 State of Indian Nations address, just a few days after the earlier decision sent shock waves across Indian Country.

"The decision that just came down -- the Big Lagoon -- that really is scary for tribes that have had land-into-trust," Cladoosby said.

California cited the U.S. Supreme Court decision in Carcieri v. Salazar as grounds for refusing to negotiate with the Big Lagoon Rancheria. In that 2009 case, the justices said the BIA can only place land into trust for tribes that were "under federal jurisdiction" in 1934, when the Indian Reorganization Act became law.

California Attorney General Kamala Harris (D). Photo from Facebook

Attorney General Kamala Harris, who is running for U.S. Senate, argued that the tribe was not "under federal jurisdiction" in 1934. So she claimed that the BIA lacked authority to place that 11-acre site in trust, a challenge that the 9th Circuit roundly rejected in today's decision.

Harris now faces a crucial decision of her own. She could admit defeat and let Gov. Jerry Brown (D) negotiate with the tribe or she could ask the Supreme Court to hear the case, a move that's likely to draw intense interest in Indian Country.

Oral arguments from the en banc panel can be found on the Indianz.Com SoundCloud. Turtle Talk has posted documents from the case, Big Lagoon Rancheria v. California.

En Banc 9th Circuit Decision:
Big Lagoon Rancheria v. California (June 4, 2015)

Original 9th Circuit Decision:
Big Lagoon Rancheria v. California (January 21, 2014)