Tribal advocates anxiously await a meeting of an en banc panel of federal judges who will soon decide whether a legal opinion that could have a negative impact on millions of acres of tribal lands should be overturned.
The judges of the 11-member panel will scrutinize a January 21 opinion of a three-judge panel of the Ninth Circuit Court of Appeals in Big Lagoon Rancheria v. California. In that 2 -1 opinion, the judges ruled that the state of California was not required under the Indian Gaming Regulatory Act (IGRA) to negotiate in good faith with Big Lagoon on a new gaming compact.
The en banc panel will hear oral arguments by the tribe and state on September 17, according to an order announced on August 22 by the U.S. Court of Appeals for the Ninth Circuit.
In coming to the original decision, the court ruled that the tribe was not under federal jurisdiction in 1934, so 11 of the acres it proposed for gaming could not be considered Indian lands under IGRA as a result of the 2009 Carcieri v Salazar U.S. Supreme Court decision. The acres were placed into trust by the Department of the Interior in 1994.
Carcieri limited Interior’s ability to take lands into trust for tribes recognized by the federal government after the Indian Reorganization Act (IRA) of 1934. The decision has been widely controversial in Indian country, and U.S. Congress members and the Obama administration have been vowing since 2009 to remedy it through legislation, but that has not happened to date.
A major concern for tribal advocates is that the Big Lagoon precedent could be applied to all tribes formally recognized after 1934 if it holds, thus limiting Indian lands, sovereignty and gaming. According to a list referred to in the original decision, 258 of the 566 tribes that are currently federally recognized were recognized after 1934.
An amicus brief in support of the en banc review filed by the National Congress of American Indians, the United South and Eastern Tribes, and the Navajo Nation said that the decision “threatens tribal jurisdiction over millions of acres of land acquired in trust pursuant to the IRA.”
The Department of Justice has also expressed alarm, noting in its own amicus brief that since 1934, the United States has acquired millions of acres of land in trust for Indian tribes.
“The majority’s ruling in this case would open the door to time-barred lawsuits, allowing parties to litigate the validity of decades-old trust acquisitions and challenge the United States’ property interest in these lands,” the Justice Department argued in its brief. “The decision is particularly troubling because it suggests that parties may litigate the propriety of longstanding decisions to accept land in trust in the absence of the United States and where a challenge is not timely brought under the Administrative Procedure Act.”
A victory for those opposed to the decision came in June when the appeals court announced that there would be an en banc review, which means enough judges on the court thought scrutiny was necessary, and now with oral arguments coming soon, hope abounds.
“I’m optimistic the entire Ninth Circuit will overturn the original three-judge panel,” says Michael McBride III, chair of Crowe & Dunlevy’s Indian Law & Gaming Practice Group. “[T]he decision was so poorly decided and out of touch with relevant legal precedent.”
One criticism of the original decision by leaders with the National Indian Gaming Association (NIGA) was that the majority opinion was written by a senior U.S. district judge visiting from outside of the Ninth Circuit and joined by a senior Ninth Circuit judge, while the third judge on the panel, a Ninth Circuit judge in active service, dissented.
“The case is clearly a blow to the tribe and to all of Indian country,” NIGA leaders said in a legislative alert issued earlier this year. “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.”