In a historical live streamed court hearing concerning the Big Lagoon Tribe’s gaming project, the 9th circuit court slammed the State of California over many points of law and procedure concerning their challenge to the federal governments acquisition of tribal lands. Before I discuss the Court drama, a bit of Big Lagoon history, that will reveal the irony with the State’s shifting positions and pursuit of this case, is in order.
The Big Lagoon Rancheria is a federally recognized tribe in Northern California, located off Hwy 101. Big Lagoon has attempted, on several occasions, beginning in 1999, to advance a class III gaming project. The State has, on almost every occasion, cited environmental concerns with the location of the Tribe’s proposed reservation gaming project.
In 2006, Governor Arnold Schwarzenegger successfully negotiated a class III gaming compact with Big Lagoon and a Southern California Tribe, the Los Coyotes Band of Cahuilla Indians for a joint casino in Barstow, California. The compact was marketed as a “win-win” by the Governor as a proposed solution to the state’s environmental concerns, would generate state revenues and create employment for the Barstow area. When the State legislature failed to ratify the compact, due to the intervention of myriad gaming interests, including gaming tribes, Big Lagoon then focused on a class III casino on a Reservation parcel taken into trust by Interior in 1994. The 1994 trust action itself was challenged by a group of neighbors. The State also filed an amicus brief in that action, which was followed also by an IBIA appeal concerning the 1994 trust acquisition. Both trust challenges failed.
In 2008, the state and Big Lagoon resumed class III gaming compact negotiations for a casino located on the Tribe’s reservation. However, when the state required severe environmental restrictions, not found in other state gaming compacts, the Tribe balked. The Tribe then filed suit against the State (Big Lagoon Rancheria v. State of California, No. 99-4995 CW (N.D. Cal.) for bad faith compact negotiations under the Indian Gaming Regulatory Act (IGRA). The District court sided with the Tribe finding the state negotiated in bad faith in 2010.
The District court thereafter sent the case for baseball style arbitration concerning the compact terms. After the Tribe prevailed at mediation, the state filed suit challenging the mediator’s compact award. Surprisingly In its moving papers, the State not only challenged the Tribe’s 1994 trust acquisition, but the Tribe’s placement on the federal list of recognized Tribes-its existence as a federally recognized Tribe. The state pointed to documents it says demonstrates that the current tribe is not the same as the Tribe identified by the federal government in the early 1900’s. Thus, because Big Lagoon was allegedly not under federal jurisdiction in 1934, as required by Carcieri v. Salazar, 555 U.S. 379, 129 S.Ct. 1058 (2009), for trust land acquisition purposes, the state was under no obligation to negotiate a class III gaming compact with Big Lagoon.
During the 9th Circuit enbanc hearing on September 16, the Court appears to have grave concerns with the State’s position that it could challenge, years after the six year statute had run, the 1994 trust acquisition. Judges characterized the State’s action as a “collateral attack” on a prior award, which is barred by the Court. State attorney, Peter Kauffman, was evasive, refusing even to pinpoint for the Court the year the six year statute of limitations began to run when asked by Presiding Judge, Alex Kozinzky. Kozinsy’s later pounced on Kauffman, concerning his statement that “the Carceari decision prompted the State’s challenge to the trust acquisition.” Kozinski retorted, “If that were true we would have to reopen cases after every Supreme Court decision.” Other 9th circuit court judges challenged the State’s position in depth on the issue of notice and the Tribe’s history, with Judge, Harry Preggerson, in exasperation stating “What is State’s hidden agenda here.”
The Tribe and US attorneys fared somewhat better with the Court. The Tribe’s lead attorney, Michael Pollard, was questioned about the applicability of a statute of limitations exception, that would extend the trust challenge period and the environmental issues. Pollard responded that the exception was not applicable to this case and the compact selected by the arbitrator included “all applicable federal environmental laws, including applicable state law.” Pollard also stated that should the court ratify the lower court finding, the Secretary of Interior would, as required by federal law, address all required environmental issues, including state law issues.
The United States attorney, Sam Hirsch, appearing on behalf of the Interior Department, recited the Tribe’s history including the fact that its recognition dated back to the early 1900’s. Hirsch explained that Tribes do not have to descend from direct bloodlines, and that the 1934 Indian Reorganization Act defined a tribe in the broadest of terms “as a group of Indians living together. Finally, Hirsch explained when asked about challenging the trust acquisition after the six year statute had run, that “Congress has that ability.”
In rebuttal, the State’s attorney, Mr. Kauffman, challenged Big Lagoon’s placement on the 1979 List of recognized Tribe’s, telling the Court that the State can challenge the List and the Secretary should remove the Tribe from the List because it failed to meet any legitimate recognition criteria, such as Part 83, a court order or recognition by Congressional act. Prior to the hearing’s conclusion, Judge Preggerson and Judge Kozinski strongly urged the State’s attorney to “consider mediation”, before abruptly closing the hearing.
The State’s attempt to torpedo Big Lagoon’s compact negotiations by challenging Big Lagoon’s status as a federally recognized Indian tribe is bold, bordering on shocking, and a call to arms for all Tribes to closely watch this cases outcome. The State’s attempt to attack the 1994 land acquisition, via the Tribe’s recognition, has a small likelihood of success and a feeble basis in law. More importantly, if the State of California, can, after negotiating and agreeing to earlier compacts with an Indian tribe, challenge a tribes very existence, all California compacted Tribe’s, especially ones compacting now or in the future, need to take heed to protect themselves. If the 9th Circuit allows this absurdity to continue by finding in favor of the State on its legal theory, or any part of it, Tribes everywhere could be doomed.
After listening to the State’s argument one would think all tribal attorneys should be considering work outside of Indian Country. However, in my humble opinion, when a Judge strongly tells one party to consider mediation, at the end of their argument, it is a strong indication they have not only lost the Court’s attention, but have lost the argument.
Jack Duran is a descendant of the Ysleta Del Sur Pueblo, a tribal attorney and owner of Duran Law Office, a Roseville, California, based Indian law and policy firm.