California | Compacts | Land Acquisitions | Litigation

9th Circuit poses tough questions in Big Lagoon casino case

Thursday, September 18, 2014

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

The 9th Circuit Court of Appeals held oral arguments in Big Lagoon Rancheria v. California, an Indian gaming case that's being watched across the nation, on Wednesday.

The case will determine whether the Big Lagoon Rancheria can pursue a casino on land that was placed in trust by the Bureau of Indian Affairs on June 29, 1994. Several judges questioned the state for waiting more than a decade to challenge the status of the 11-acre site.

"Why didn't the state raise the issues of the tribe's status early on?" Judge Susan Graber asked during the en banc hearing in San Francisco.

California deputy attorney general Peter Kaufman acknowledged that the state didn't challenge the 1994 acquisition or the BIA's decision to place the tribe on the list of federally recognized way back in 1979. Instead he said the case was about the agency's potential issuance of Class III gaming procedures for the tribe.

That prompted even more critical questions from the judges. More than one noted that the BIA has yet to take any action in that respect.

"When did that happen?" asked Chief Judge Alex Kozinski. "Give me a date," he added.

Kaufman refused to answer the question.

The judges appeared to be more receptive to the tribe, whose attorney said the casino will help its membership, and to the Department of Justice, whose acting assistant attorney general Sam Hirsch appeared as a friend of the court. Hirsch stated flatly that the time to challenge the trust land acquisition passed long ago and didn't seem to get much push back on that matter.

But at the end of the hearing, Kozinski suggested the state, the tribe and the federal government get together and resolve their differences. He said the courthouse steps might have provided some neutral ground to end the dispute.