9th Circuit bars Big Lagoon Rancheria from pursuing casino

Tuesday, January 21, 2014  

The Big Lagoon Rancheria cannot pursue a casino on recently acquired trust land, the 9th Circuit Court of Appeals ruled today in a potentially devastating case for Indian Country.

The tribe accused the state of California of engaging in bad faith negotiations for a Class III gaming compact . A federal judge agreed but the 9th Circuit reversed on appeal and brought up the U.S. Supreme Court decision in Carcieri v. Salazar.

The decision restricts the land-into-trust process to tribes that were "under federal jurisdiction" as of 1934. The Big Lagoon Rancheria was not on a Bureau of Indian Affairs list at the time, the court determined.

"Big Lagoon’s undisputed absence from the list, combined with other facts in the record, leads us to the conclusion that the tribe was not under federal jurisdiction in 1934," the 9th Circuit stated in a 2-1 decision.

That means Big Lagoon can't use an 11-acre site that was placed in trust in 1994 for a casino. And since the tribe has no "Indian lands" to speak of, it can't sue the state under the Indian Gaming Regulatory Act, the court said.

"Carcieri holds that the BIA’s authority to take lands in trust for a tribe extends only to tribes under federal jurisdiction in 1934. Thus, the effect of our conclusion that Big Lagoon is not such a tribe is that Big Lagoon cannot demand negotiations to conduct gaming on the eleven-acre parcel, and cannot sue to compel negotiations if the state fails to negotiate in good faith," the decision stated.

The decision reconfirms a major fear for tribes in the post-Carcieri era. States and other parties can use the ruling to challenge a land-into-trust acquisition long after it has been finalized.

"We appreciate that Big Lagoon has spent an enormous amount of time attempting to negotiate for a casino on the eleven-acre parcel," the 9th Circuit wrote. "And we do not doubt that the State’s negotiation position was defined, at least in part, by its belief that the casino should be sited elsewhere."

"But Carcieri, however fortuitously, gives the state the right to refuse to negotiate the siting issue," the court continued.

It's not clear what will happen to the 11-acre site now that the court has declared it was not validly placed in trust.

Turtle Talk has posted briefs from the case, Big Lagoon Rancheria v. California.

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

Big Lagoon Rancheria set to open gaming facility on reservation (05/23)