California | Compacts | Litigation

9th Circuit won't reconsider victory in Big Lagoon Rancheria case

Friday, July 10, 2015

An aerial view of the Big Lagoon Rancheria in California. The tribe began construction of a gaming facility in the late 1990s, seen on the right portion of the image, but stopped work after the state objected. Photo from Humboldt County via Stand Up For California

A closely-watched case involving the Big Lagoon Rancheria of California could be headed to the U.S. Supreme Court.

The tribe won a major victory in June, when the 9th Circuit Court of Appeals blocked the state from challenging the status of land that was placed in trust in 1994. The ruling from the en banc panel of 11 judges was unanimous.

Attorney General Kamala Harris (D), who is campaigning for the U.S. Senate, hasn't commented publicly about the decision. But she asked the court to rehear the case for a third time.

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

In an order issued on Wednesday, the court denied the request. That means Harris can now ask the nation's highest court to take up the matter.

The move would likely draw significant opposition in Indian Country. Tribal interests were instrumental in getting the 9th Circuit to hear the case for a second time after an earlier decision opened the floodgates for anyone to challenge the status of land placed in trust years or even decades ago.

The dispute arose when the tribe started building a casino in the late 1990s. The 11-acre trust site is located in Big Lagoon, an environmentally-sensitive area on the Pacific coast.

To sway the tribe away from developing the land, former governor Arnold Schwarzenegger (R) signed a compact for an off-reservation casino in Barstow, more than 550 miles from Big Lagoon. The Bush administration rejected the proposal in January 2008, prompting the tribe to walk away from the project and revive plans for the Big Lagoon site.

That's when the state, for the first time, challenged the trust status of the parcel. Harris cited the U.S. Supreme Court decision in Carcieri v. Salazar, which held that the Bureau of Indian Affairs can only place land in 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

The 9th Circuit, however, said the state never filed a timely challenge to that agency action under the Administrative Procedures Act. The statute of limitation passed six years after the land was placed in trust in 1994, the court noted.

"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.

En Banc 9th Circuit Decisions:
Big Lagoon Rancheria v. California (July 8, 2015)
Big Lagoon Rancheria v. California (June 4, 2015)

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