Ninth Circuit Decision Raises New Questions about Indian Trust Lands

On Tuesday, January 21, 2014, the Ninth Circuit Court of Appeals decided Big Lagoon Rancheria v. California, a case involving the Big Lagoon Rancheria (Big Lagoon), a federally recognized Indian tribe, seeking to compel the State of California to negotiate a new class III gaming compact in good faith under the Indian Gaming Regulatory Act of 1988 (IGRA).

Case Background

Big Lagoon proposed to operate a new casino on an 11-acre parcel of land which the United States accepted into trust for the Tribe in 1994. Under IGRA, Big Lagoon may operate class III gaming on Indian land only if authorized in a tribal gaming compact between Big Lagoon and the State of California. When compact negotiations between Big Lagoon and California stalled, the Tribe brought an action in the Northern District of California under IGRA to compel California to negotiate with them in good faith. The district court found that California had not negotiated in good faith and ordered the parties to conclude a compact within 60 days.

On appeal, the Ninth Circuit found that Big Lagoon was not under federal jurisdiction in 1934, and therefore, in light of the United States Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009), the Bureau of Indian Affairs (BIA) was not authorized to accept the land into trust for Big Lagoon in 1994 under the Indian Reorganization Act (IRA). The Ninth Circuit concluded that the BIA's acceptance of the land into trust should be disregarded and of no effect, and that the land was therefore not "Indian lands" for purposes of IGRA. Because it found that the land was not Indian land, the Ninth Circuit held that Big Lagoon could not compel California to negotiate a new compact.

Implications for Tribes Not Under Federal Jurisdiction in 1934

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.