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Ninth Circuit's En Banc Decision In 2120 L Street, NW, Suite 700 T 202.822.8282 HOBBSSTRAUS.COM Washington, DC 20037 F 202.296.8834 MEMORANDUM June 4, 2015 TO: TRIBAL CLIENTS FROM: HOBBS, STRAUS, DEAN & WALKER, LLP RE: Ninth Circuit’s En Banc Decision in Big Lagoon Rancheria v. State of California — A Resounding Victory for Indian Country This memorandum is to report to you on today’s en banc decision of the United States Court of Appeals for the Ninth Circuit in Big Lagoon Rancheria v. State of California, Nos. 10-17803, 10-17878. In a unanimous decision, the eleven member en banc Court1 upheld the district court’s decision that the State of California had failed to negotiate a gaming compact in good faith. Importantly, in so ruling, the Court held that the State could not collaterally attack the acquisition of trust lands for Big Lagoon Rancheria by the Unites Stated in 1997, or the United States’ recognition of the Rancheria as an Indian tribe, and that in any event the six-year statute of limitations would have barred any such attack. The decision will protect trust acquisitions and tribal recognition decisions from collateral attack, and will subject any direct action challenging any such decision to the 6-year statute of limitations applicable to Administrative Procedure Act claims. Brief Recap - Original Panel Decision On January 21, 2014, a panel of the Ninth Circuit, by a 2-1 vote, reversed a decision of the district court in Big Lagoon Rancheria v. State of California, Nos. 10- 17803, 10-17878. Relying on the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009), the panel held that the State of California (the “State”) was under no obligation to enter into negotiations for a compact with the Big Lagoon Rancheria (“Big Lagoon”) pursuant to the Indian Gaming Regulatory Act (“IGRA”) because one of the parcels upon which Big Lagoon proposed to conduct gaming had been unlawfully taken into trust in 1994. 1 In the Ninth Circuit, a case decided en banc is not heard by the full Ninth Circuit, but by the Chief Judge of this circuit and 10 additional judges drawn by lot from the active judges of the Court. The en banc judges were: Chief Judge Alex Kozinski, and Circuit Judges Harry Pregerson, Stephen Reinhardt, Diarmuid O’Scannlain, Susan Graber, William Fletcher, Richard Paez, Jay S. Bybee, Milan Smith, Morgan Christen, and Jacqueline Nguyen. None of the judges on the original panel decision were on the en banc court. Judge O’Scannlain authored en banc the decision. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA MEMORANDUM June 4, 2015 Page 2 In so ruling, the panel engaged in a Carcieri analysis, and found (on an admittedly incomplete record) that Big Lagoon was not “under federal jurisdiction” in 1934. Accordingly, the panel found that the Bureau of Indian Affairs (“BIA”) was not authorized to make the 1994 trust acquisition. The panel concluded that Big Lagoon’s disputed lands are not “Indian lands” as defined by the IGRA and Big Lagoon had no right to request the State to enter Class III compact negotiations, or to sue to compel the State to enter good-faith negotiations, on those lands. The panel decision was very problematic for tribal interests, in that it subjected a trust acquisition to collateral attack, without the United States as a party, without regard to the passage of time or the doctrine of exhaustion of tribal remedies, and without a complete record or the views of the Department of the Interior. Most notably the decision raised the real possibility of collateral attacks to the status of tribal trust lands well beyond the six-year Administrative Procedure Act (“APA”) statute of limitations. For numerous Indian tribes this decision places at risk trust acquisitions previously believed to be final and beyond challenge. Rehearing Petition and Amicus Briefs Big Lagoon Rancheria petitioned the Ninth Circuit for rehearing, with a suggestion for rehearing en banc. Amicus briefs supporting the petition were filed by (1) the United States, (2) the National Congress of American Indians (“NCAI”), the United South and Eastern Tribes (“USET”), and the Navajo Nation, and (3) California Indian Legal Services (“CILS”). On June 11, 2014, the Ninth Circuit granted the petition for rehearing en banc, and vacated the panels’ decision. Oral argument was held on September 17, 2014. En Banc Decision The Court noted that while the State framed its challenge to the 1994 trust acquisition and tribal recognition in terms of Big Lagoon’s standing to sue, “the State’s arguments amount to collateral attacks on the BIA’s 1994 decision to take the eleven- acre parcel into trust and its pre-1979 designation of Big Lagoon Rancheria as an Indian tribe.” The Court distinguished Carcieri, on the grounds that that case “involved a timely administrative challenge brought against the Secretary of the Interior,” while “the instant case is a belated collateral attack.” The Court noted that it had held in earlier decisions that parties cannot use collateral attacks to “end-run the procedural requirements governing appeals of administrative determinations.” The proper vehicle for challenging the land in trust determination, the Court held, was a petition for review under the Administrative Procedure Act (“APA”). The Court further held that had the state brought an APA claim, it would have been barred by the six-year statute of limitations applicable to APA claims. The court expressly rejected the reasoning of the panel decision which had applied an exception to HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA MEMORANDUM June 4, 2015 Page 3 the application of the statute of limitations, reasoning that the exception did not apply because the State “understood the true state of affairs concerning the BIA’s decision to take the eleven-acre parcel into trust by, the very latest, 1997.…” 2 The Court addressed the challenge to Big Lagoon’s recognition3 very briefly, noting that like the trust determination challenge it constituted an impermissible collateral attack, and that in any event it would also be time-barred.4 Significance The decision establishes important precedents for Indian tribes. In the Ninth Circuit, at least, litigants cannot collaterally attack the acquisition of trust lands for tribes, or tribal recognition decisions. Further, a direct action challenging any such decision will be subject to the 6-year statute of limitations applicable to APA claims. The decision should also be of precedential value in other circuits as well, especially given that it was decided by a vote of 11-0. # # # For further information on this decision, please contact Michael Roy ([email protected]) 2 The panel recognized that “the government’s interest in finality outweighs a late-comer’s desire to protest the agency’s action as a matter of policy or procedure,” but held that under Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991), “[i]f … a challenger contests the substance of an agency decision as exceeding constitutional authority, the challenger may do so later than six years following the decision … . The government should not be permitted to avoid all challenges to its actions, even if ultra vires, simply because the agency took the action long before anyone discovered the true state of affairs.” The panel inexplicably determined that the State may have had no interest in challenging the trust acquisition when made for housing purposes in 1994, and that therefore under Wind River the six-year time limit runs from the “agency’s application of the disputed decision to the challenger.” Further, since there “is no direct agency involvement in this case” the “most apt analogue to application of/enforcement of the 1994 entrustment” is the Tribe’s 2009 “suit to compel negotiations.” 3 Big Lagoon first appeared on the list of federally-recognized tribes in 1979, and it was identified as a “Rancheria” long before that. 4 The Court addressed two other issues of lesser significance nationally. First, it upheld the district court’s decision to decide the case without allowing the State to engage in further discovery, and second, it decided that it did not need to reach the issue of whether environmental mitigation measures were a permissible subject of negotiation under IGRA, since the issue was moot (the mediator having chosen Big Lagoon’s proposed compact as the one to govern gaming). HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA .
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