On January 21, the Ninth Circuit Court of Appeals launched the latest federal assault on tribal land, ruling 2 -1 in Big Lagoon Rancheria v. California that the state has no obligation under the Indian Gaming Regulatory Act (IGRA) to negotiate in good faith with the tribe on a new gaming compact because the court said the tribe did not have jurisdiction over the eleven-acre trust land parcel on which the tribe wanted to conduct gaming.
In short, the court ruled that the tribe was not under federal jurisdiction in 1934, so its acreage, placed into trust by Interior in 1994, cannot be considered Indian lands under IGRA based on the 2009 Carcieri v Salazar Supreme Court decision. That decision, long unpopular in Indian country due to the economic and sovereignty uncertainties it imposes, called into question the Department of the Interior’s Bureau of Indian Affairs (BIA) ability to take lands into trust for tribes recognized by the federal government after the 1934 Indian Reorganization Act.
The federal bench ruling has major implications for Indian country beyond the California tribe because it provides precedent for legal challenges that could remove and/or prevent development on trust lands from all tribes federally recognized after 1934—no matter how long such lands have been entrusted to tribes. There are currently 566 federally recognized tribes, and 258 of these were recognized after 1934, according to a list referred to in the Ninth Circuit decision. The Interior Department under the Obama administration has continued since Carcieri to place thousands of acres of land into trust for tribes regardless of when they were federally recognized.
Indian affairs lawyer Lael Echo-Hawk explains the ramifications of the decision in a recent alert issued by her law firm, Garvey Schubert Barer. “Any tribe who was recognized post-1934 or is otherwise subject to a Carcieri challenge and had land placed into trust by the BIA prior to or after the Carcieri decision, is now vulnerable to having that administrative action challenged even though the time for an appeal under the [Administrative Procedures Act] has expired,” she writes. “As some country singer once said, “Jesus, take the wheel.”
Many Indian legal experts, especially those focused on gaming, agree this decision is dangerous. “The case is clearly a blow to the tribe and to all of Indian country,” according to a recent National Indian Gaming Association (NIGA) legislative alert. “It not only sets negative precedent with regard to the application of IGRA's good faith negotiation requirement, but it also will serve to encourage litigants seeking to undermine tribal sovereignty and/or the status of trust lands to assert Carcieri-related claims in all lawsuits involving federal laws or federal actions relating to Indian lands.”
Despite the dire situation, some Indian-focused legal experts are still hopeful that the Big Lagoon decision will be reviewed and vacated by an en banc Ninth Circuit panel. NIGA notes that the decision could be reversed at a hearing where at least 11 judges in the Ninth Circuit would reevaluate the merits of the case. Howard Bashman, an appellate law expert, has suggested on his legal blog that this case is a good candidate for such a review because the majority opinion was written by a senior U.S. district judge visiting from outside of the Ninth Circuit and joined in by a senior Ninth Circuit judge, while the third judge on the panel, a Ninth Circuit judge in active service, dissented. He says that scenario means the case has a better than average chance for an en banc review.
In the case that the decision is not vacated, the Big Lagoon Rancheria could choose to appeal it to the Supreme Court, although the current make-up of the high court has already shown its unfriendly-to-Indian-country cards here.
Despite the possibility that the ruling could be vacated, it has some tribal advocates who have long been wary of Carcieri congressional compromise that does not treat all tribes equally thinking more about what such a compromise could look like.
“I do think that that Big Lagoon decision has finally shaken everyone in Indian country, even those whom in the past pushed back or even fought against a fix,” says Joe Valandra, a tribal consultant who has been cautious of non-clean Carcieri comprises proposed in the years since the initial Supreme Court decision.
Valandra says a clean fix is still possible in Congress, but not likely because some Democratic senators want trade-offs in exchange for their support. Rhode Island legislators want the Narragansett Tribe, the tribe involved in the initial Carcieri decision, to be left out of a fix. And Sen. Dianne Feinstein (D-Calif.) has made clear that she wants a Carcieri solution to include gaming limitations for tribes recognized after 1934, even though Indian country advocates have long argued that gaming and trust issues are distinct.
Sen. Maria Cantwell (D-Wash.), outgoing Senate Committee on Indian Affairs chair, has worked in recent months on draft discussion Carcieri legislation that would exclude the Narragansetts from a legislative fix, while also appeasing senators like Feinstein who want off-reservation gaming limits. Tribal leaders and advocates have been widely displeased with Cantwell’s efforts.
Valandra says that one compromise that could be attractive to enough senators to achieve passage in the Senate would be a new definition of Indian land that is at least as restrictive as the Big Lagoon case outcome for gaming. “In other words, those that have [gaming] keep what they have and those that don’t have [gaming] will never have,” he says. Such a solution would likely be widely unpopular in Indian country, since it would treat tribal sovereignty unequally based on the whims of federal legislators.