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.
