California's Bar Against Indian Casino Justified

     SAN FRANCISCO (CN) - Barring a big casino from environmentally sensitive land in California did not violate federal Indian gaming regulations, the 9th Circuit ruled Tuesday.
     The Big Lagoon Rancheria and California have been embroiled in a tug-of-war over a proposed Humboldt County casino since 1998 when the tribe rejected a statewide tribal gaming compact. The tribe claimed in a federal complaint that the compact violated the Indian Gaming Regulatory Act's requirement of good-faith negotiations for any proposed casinos.
     After years of fruitless negotiations over the size and scope of Big Lagoon's resort - and revenue sharing with the state - the tribe filed a second federal lawsuit in 2009. California argued that Big Lagoon had no right to build on an 11-acre parcel the tribe claimed to own because the federal government had never granted such right to them.
     U.S. District Judge Claudia Wilken found a year later that California officials had failed to negotiate with the tribe in good faith, and that the true owner of the 11 acres was irrelevant to the case. Negotiations continued, but revenue sharing and environmental mitigation remained sticking points to any agreement on the Big Lagoon casino request.
     A divided three-judge panel of the 9th Circuit found Tuesday, however, that ownership of the 11 acres in question - the only place the Big Lagoon Rancheria has ever intended to build - is completely relevant to the state's good-faith negotiations.
     In this case, because the federal government had not recognized Big Lagoon as a tribe in 1934, the Bureau of Indian Affairs had no authority to grant the 11 acres in 1999, according to ruling penned for the majority by U.S. District Judge Frederic Block, sitting by designation from Brooklyn, N.Y.
     "There was no family or other group on what is now the Big Lagoon Rancheria in 1934," Block wrote. "The central purpose of the IRA was to give 'any Indian tribe, or tribes, residing on the same reservation the right to organize for its common welfare.' Since no one resided on what is now the rancheria, there was no group to organize. The absence of Big Lagoon from the 258-tribe list was not an intentional or inadvertent omission; it was a reflection of reality."
     The authority of the Bureau of Indian Affairs to take lands in trust for a tribe extends only to tribes under federal jurisdiction in 1934, according to the ruling, citing precedent from the Supreme Court's 2009 decision Carcieri v. Salazar.
     "Thus, the effect of our conclusion that Big Lagoon is not such a tribe is that Big Lagoon cannot demand negotiations to conduct gaming on the 11-acre parcel, and cannot sue to compel negotiations if the State fails to negotiate in good faith," Block wrote.
     Judge Johnnie Rawlinson said in dissent that federal Indian gaming law views any land held in trust by the government as Indian land, regardless of whether a tribe was formally recognized or organized in 1934.
     For Rawlinson, California failed to mount a timely challenge of the BIA's land grant administratively.
     "It is undisputed that until this case, almost 18 years after the 11-acre parcel was acquired in trust for Big Lagoon Rancheria, California has not challenged the legality of the trust designation, despite the administrative and judicial avenues available for just that purpose," the dissent states. "Surely it cannot be the case that the state can launch a collateral attack upon the designation of trust lands years after its administrative and legal remedies have expired. Carcieri certainly does not come anywhere close to such a holding. Indeed, we cannot say how the Supreme Court would have ruled if the challenger in Carcieri had not filed a timely challenge under the Administrative Procedure Act or had sued under a different statute entirely."