Law Article: Decision raises questions about tribal gaming

Until this decision, it has been almost universally assumed that any land taken into trust for a tribe constituted "Indian lands" for purposes of IGRA, subject only to a successful challenge against the BIA seeking to have the land removed from trust. In general, challenges to administrative actions, such as the BIA's decision to accept land into trust, must be filed within six years of the final agency action that is the subject of the challenge. Because Big Lagoon's 11-acre parcel was accepted into trust in 1994, the six-year challenge period likely expired sometime during or prior to 2000. Nevertheless, the court concluded that the State of California had promptly challenged the authority of the United States to take the land into trust following Big Lagoon's suit to compel negotiations of a gaming compact, presumably due to the level of the State's interest in the question.

Because the Ninth Circuit's decision reinterprets what constitutes "Indian land" for purposes of IGRA, the decision could have implications beyond actions seeking to compel states to negotiate compacts, and could be possibly interpreted to allow new challenges to the right of other tribes that were not under federal jurisdiction in 1934 to conduct gaming operations on existing trust lands.

The decision leaves unanswered certain questions, including (1) will the decision affect the gameability of lands taken into trust under the IRA for tribes not under federal jurisdiction in 1934, (2) who can legally challenge such gameability, and (3) is there a time limitation on raising such a challenge? The answers to these questions may heavily depend on the exact facts and circumstances of any particular challenge.