Jack Duran: State's 'shocking' attack on Big Lagoon Rancheria

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

Attorney Jack Duran recaps oral arguments before the 9th Circuit Court of Appeals in Big Lagoon Rancheria v. California, an Indian gaming case that's being watched closely by tribes across the nation:
During the 9th Circuit enbanc hearing on September 16, the Court appears to have grave concerns with the State’s position that it could challenge, years after the six year statute had run, the 1994 trust acquisition. Judges characterized the State’s action as a “collateral attack” on a prior award, which is barred by the Court. State attorney, Peter Kauffman, was evasive, refusing even to pinpoint for the Court the year the six year statute of limitations began to run when asked by Presiding Judge, Alex Kozinzky. Kozinsy’s later pounced on Kauffman, concerning his statement that “the Carceari decision prompted the State’s challenge to the trust acquisition.” Kozinski retorted, “If that were true we would have to reopen cases after every Supreme Court decision.” Other 9th circuit court judges challenged the State’s position in depth on the issue of notice and the Tribe’s history, with Judge, Harry Preggerson, in exasperation stating “What is State’s hidden agenda here.”

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The Tribe and US attorneys fared somewhat better with the Court. The Tribe’s lead attorney, Michael Pollard, was questioned about the applicability of a statute of limitations exception, that would extend the trust challenge period and the environmental issues. Pollard responded that the exception was not applicable to this case and the compact selected by the arbitrator included “all applicable federal environmental laws, including applicable state law.” Pollard also stated that should the court ratify the lower court finding, the Secretary of Interior would, as required by federal law, address all required environmental issues, including state law issues.

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The United States attorney, Sam Hershman, appearing on behalf of the Interior Department, recited the Tribe’s history including the fact that its recognition dated back to the early 1900’s. Hershman explained that Tribes do not have to descend from direct bloodlines, and that the 1934 Indian Reorganization Act defined a tribe in the broadest of terms “as a group of Indians living together. Finally, Hershman explained when asked about challenging the trust acquisition after the six year statute had run, that “Congress has that ability.”

Get the Story:
Jack Duran: California's Attack on Big Lagoon Is Absurd (Indian Country Today 9/30)

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

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9th Circuit poses tough questions in Big Lagoon casino case (09/18)

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