En Banc Ninth Circuit Ruling Restores Certainty to Federal Recognition of "Indian Lands"

On June 4, 2015, the Ninth Circuit Court of Appeals issued its en banc decision in Big Lagoon Rancheria v. California, a case in which Big Lagoon Rancheria, a federally recognized Indian tribe, sought to compel the State of California to negotiate a new Class III gaming compact under the Indian Gaming Regulatory Act of 1988 (IGRA). The en banc court affirmed the decision of the District Court, which held that California had failed to negotiate in good faith with Big Lagoon as required by IGRA. The ruling restores certainty to the federal government’s recognition of “Indian lands” and states’ obligations to negotiate gaming compacts in good faith with tribes.

Case Background

Big Lagoon sought to build and operate a new casino on an 11-acre parcel of land which the United States accepted into trust for Big Lagoon in 1994. Under IGRA, however, Big Lagoon could only operate Class III gaming (slot machines and table games) on the 11-acre parcel if a compact between Big Lagoon and California authorized such gaming. When Big Lagoon and California failed to reach an agreement, Big Lagoon sued the state in the U.S. District Court for the Northern District of California. The District Court found that California had failed to negotiate in good faith under IGRA and ordered the parties to conclude a compact within 60 days.

Both Big Lagoon and California appealed the decision. On January 21, 2014, in a 2-1 decision, the Ninth Circuit reversed the District Court’s order compelling negotiations and remanded the case for entry of judgment in favor of California. The three-judge panel held that Big Lagoon must have jurisdiction over a particular piece of “Indian lands” in order to compel negotiations with California under IGRA, and it concluded that Big Lagoon’s 11-acre parcel was not “Indian lands.” According to the three-judge panel, Big Lagoon was not a tribe under federal jurisdiction in 1934. As such, pursuant to the 2009 Supreme Court decision in Carcieri v. Salazar, the Bureau of Indian Affairs (BIA) lacked authority to take that land into trust for Big Lagoon in 1994. Thus, the 11-acre parcel did not qualify as “Indian lands” under IGRA, and Big Lagoon could not compel California to negotiate a new gaming compact.

The Ninth Circuit granted Big Lagoon’s petition for rehearing en banc, vacating the three-judge panel decision, and heard oral argument on September 17, 2014. On June 4, 2015, the en banc court affirmed the District Court’s ruling, rejecting California’s argument that Big Lagoon could not compel California to negotiate in good faith. According to the en banc court, California’s challenge of the BIA’s acceptance into trust of the 11-acre parcel amounted to an improper collateral attack on the BIA’s action, because California failed to challenge the action under the Administrative Procedure Act (APA). Even if California had attempted to bring an APA claim, the APA’s six-year statute of limitations would have barred it. Likewise, because California failed to bring a timely APA claim, the en banc court rejected California’s argument that the BIA improperly recognized Big Lagoon as an Indian tribe. Accordingly, the 11-acre parcel qualified as “Indian lands” under IGRA, and Big Lagoon had a right to compel California to negotiate a compact.

Implications for Gaming Under IGRA

The Ninth Circuit’s en banc decision largely restores the status quo. The decision re-establishes that land the United States has taken into trust for an Indian tribe constitutes “Indian lands” under IGRA, subject only to an APA challenge filed within the six-year statute of limitations. As a result, the Ninth Circuit effectively barred collateral attacks on the status of tribal trust lands after the expiration of the six-year statute of limitations, thereby returning certainty to tribes and others invested in the gameability of tribal lands.