Bryan Newland: Big Lagoon decision bad for Indian Country

The Ninth Circuit has effectively created a new test under the Carcieri decision. To meet this test, a tribe would have to show two things:

That its members must have been residing on the parcel of land in 1934; and,
That it was one of the 258 tribes listed in the 1947 Haas Report.

There are a lot more than 258 federally recognized tribes in the United States. A lot of them would be left out if the reasoning in this case was adopted elsewhere as a basis for lands to be placed into trust.

The 9th Circuit’s Carcieri analysis looks nothing like the analysis that the Department of the Interior has adopted to determine whether a tribe was “under federal jurisdiction” in 1934 for purposes of having land acquired in trust. The Court didn’t even look to the Department to guide its consideration of this issue (in footnote 8, on page 28, the Court denied the State’s request to implead the BIA).

Moreover, this decision invites collateral attacks on the status of tribal trust lands long after the federal Administrative Procedures Act’s six-year statute of limitations has passed. The trust lands at issue in Big Lagoon were acquired in 1918 and 1994, respectively. More than two decades has passed since the Tribe’s lands were acquired in trust (Laches? Settled expectations?). The State was able to challenge the status of those lands through a lawsuit about gaming compacts under IGRA. Who knows what other avenues may be used for a collateral attack on tribal jurisdiction over trust lands?