Small Native American Tribe and|U.S. Duke It Out at the 9th Circuit

     SAN FRANCISCO (CN) – Judges on the 9th Circuit’s en banc panel hearing California’s challenge of the Big Lagoon Rancheria’s plans to build a casino in Humboldt County lambasted the state Wednesday for resurrecting stale claims that the tribe is not federally recognized and doesn’t own the land it intends to develop.
     California and the tribe have been embroiled in a tug-of-war over the proposed casino since 1998, when the tribe rejected a statewide tribal gaming compact.
     The tribe claimed in Federal Court that the compact violated the Indian Gaming Regulatory Act’s requirement of good-faith negotiations for any proposed casino.
     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 claimed 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.
     A three-judge panel on the 9th Circuit held in January this year that California did not violate federal Indian gaming regulations when it blocked the tribe’s casino plans. The panel reversed a federal judge’s finding that the state did not negotiate with the tribe in good faith, another requirement of the Indian Gaming Regulatory Act.
     The majority opinion, by U.S. District Judge Frederick Block – sitting in by designation from Brooklyn – also concluded that the tribe was not under federal jurisdiction in 1934, nor was it included then on a list of 258 tribes, so the Bureau of Indian Affairs had no authority to take the 11-acre parcel in trust for the tribe in 1999.
     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.
     Rawlinson said the issue was that the state failed to mount a timely administrative challenge of the BIA’s land grant to the Big Lagoon tribe.
     The 9th Circuit agreed to revisit its panel’s decision in its en banc hearing Wednesday.
     Right out of the gate, the 11-judge bench vigorously questioned Deputy Attorney General Peter Kaufman about the statute of limitations to challenge the land grant – and why the state had chosen to sue the tribe rather than the federal government.
     “Why didn’t the state raise the issues of the tribe’s status early on?” Judge Susan Graber asked.
     “We didn’t know,” Kaufman replied. “We took the tribe on its word that the land was held in trust.”
     “But that’s not true,” Judge Milan Smith said. “You were involved as an amici years before in another case about this land.”
     “This has nothing to do with earlier court cases or a challenge of them,” Kaufman answered. “This is purely over the Interior Department’s decision to grant a federal gaming permit, so the statute of limitations does not apply.”
     “How would a decision by the Interior to approve a gaming permit give you the right to challenge a different decision from a different time, in a different decade?” Judge Jay Bybee asked.
     “The decision to approve the permit is dependent on those earlier decisions,” Kaufman said. He said that case law supports later attacks of incorrect decisions regardless of prior knowledge and that the statute of limitations clock starts running when those decisions are applied – not when they’re made.
     Judge Pregerson suggested that the real issue of the case should be the environmental impact of a casino resort on land with state and federal protections.
     “That’s what’s driving the state,” Kaufman answered. “We have always tried to deal with sensitive environmental issues when negotiating with the tribe.”
     The lawyer for the state acknowledged that previous compacts offered to the tribe died in legislative committee, with revenue-sharing and environmental mitigations always the sticking points.
     “The lobbyists got in on it, right?” Pregerson asked.
     “Other tribes also lobbied heavily against it,” Kaufman said.
     Big Lagoon Rancheria attorney Michael Pollard said the 6-year statute of limitations to fight the land grant started running in 1994, when the United States accepted the parcel in trust for the tribe. At the latest, the clock began running in 1997 when the state got involved in another case against the tribe, Pollard said.
     Pregerson questioned the 28-member tribe’s motives, which Pollard said was simply the self-sufficiency a casino would bring.
     “The environmental issues are pretty overwhelming,” Pregerson said. “So what would it take to make the tribe happy?”
     “They want this court to affirm the lower court’s decision of bad faith,” Pollard answered. “If that happens, they are one step away from gaming, from building a casino.”
     “I think you’re farther away than that, with these environmental issues,” Pregerson said.
     Pollard acknowledged that an affirmation would uphold a mediator’s approval of a compact that did not include California’s environmental concerns.
     He said the tribe will address those concerns “voluntarily,” with the Interior Department’s input.
     As to who exactly the dueling 9-acre and 11-acre parcels belong to, Pollard said the 9th Circuit panel got the issue “absolutely wrong,” when it held that the tribe owns only the smaller parcel outright and is allowed to use the larger piece of land to house homeless Indians.
     “They both belong to the tribe, and the tribe intends to use them both for gaming,” Pollard said.
     U.S. Attorney Sam Hirsch, weighing in as a friend of the court, told the judges that Big Lagoon Rancheria has “been on every list since we started making them, in 1979.”
     Hirsch said that when the tribe achieved federal recognition is not clear, but that there are references to the tribe in federal documents going back to 1904.
     Removing tribes from federal lists is extremely rare, Hirsch said.
     As to claims that the tribe doesn’t own the land it wants to build on, Hirsch said that the state skipped an opportunity to comment on the BIA’s land trust decision before it happened.
     He also said that the mediated gaming agreement has extensive environmental considerations, and that “all the Clean Air, Clean Water Acts that also apply to Indians would apply here as well.”
     “The compact the mediator has chosen has extensive environmental protections built into it,” Hirsch said.
     After Kaufman’s rebuttal, which suggested that the BIA did not follow proper procedure when it listed the tribe in 1979, both Pregerson and Kozinski urged the parties to consider solving their issues through mediation.
     “Have you thought about mediation? Somewhere along the line you’re going to have to work out a compromise,” Pregerson said.
     “We have good judges.”
     Chief Judge Alex Kozinski agreed: “Why don’t you all go to lunch and chat about it? We have a celebrated mediation unit, and I join Judge Pregerson in suggesting that mediation might well calm the waters here.”

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