California’s Big Lagoon Rancheria has won an appeals court ruling that may have ripples affecting many other tribes seeking to put land into trust for a casino. The tribe is based near Eureka, in Northern California.
The 9th Circuit Court of Appeals ruled that the state of California’s challenge to a previous decision by the Bureau of Indian Affairs to put land into trust long after the decision was made is. It ruled that the state couldn’t use the same process for challenging a decision to put land into trust that it uses to negotiate with a tribe. The two processes must be separate, the 11-judge panel ruled.
The court’s ruling prevents California from challenging the legal status of land that the BIA put in trust in 1994. It also ruled that the state did not file a timely challenge to the action. Federal statute puts a six-year statute of limitation on such challenges, according to the court.
The court ruling states: “Allowing California to attack collaterally the BIA’s decision to take the eleven-acre parcel into trust outside the APA (Administrative Procedure Act) 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.”
The ruling also says that states cannot challenge the federally recognized status of a tribe once six years have elapsed. The court declared, “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.”
The judges said California failed to negotiate in good faith with the tribe, as required by the Indian Gaming Regulatory Act. The state had cited the U.S. Supreme Court’s Carcieri v. Salazar ruling to back up its refusal to negotiate. Attorney General Kamala Harris argued that the tribe was not under federal jurisdiction in 1934. The high court has ruled that tribes recognized after 1934 can’t put land into trust.
The state used that decision as the basis for refusing to negotiate a gaming pact with the state. The appeals court ruled that this is impermissible and agreed with the tribe that the state had not negotiated in good faith.
Just last year a three judge panel of the 9th Circuit had placed the 11 acres owned by the tribe and its federal status in doubt, which caused many alarmed tribes to ask the full appeals court to review the decision.
Harris has not said whether she plans to appeal the 9th Circuit ruling to the U.S. Supreme Court.
The decision theoretically affects about half of the 566 tribes that have legal recognition, the number recognized after 1934.
The U.S. Justice Department assisted the tribe’s challenge. Acting Assistant Attorney General in charge of environmental litigation Sam Hirsch commented after the decision, “The principles at stake in this case matter for scores of tribes and millions of acres of tribal land. We had a responsibility to stand up for those American Indians whose interests were endangered.”
Peter Engstrom, the tribe’s attorney, added, “It’s a meaningful decision. And it’s the right decision, by a unanimous and obviously thoughtful en banc panel.” He said the tribe would pursue the next steps toward final approval of the casino.
The state and tribe spread out over many years, beginning in 1994 when the BIA put the 11 acres into trust. Several years later the Rancheria declared its intent to seek the right to build a casino. After several years of failed negotiations and court battles the tribe finally sued in federal court. This prompted the state’s challenge to the 1994 land grant.
