Ninth Circuit Sitting En Banc Rules in Favor of Big Lagoon Rancheria in Gaming Dispute with California

Here is the opinion in Big Lagoon Rancheria v. State of California:

10-17803

From the court’s syllabus:

The en banc court affirmed the district court’s summary judgment in favor of a tribe that alleged that the State of California had failed to negotiate in good faith for a gaming compact under the Indian Gaming Regulatory Act for Class III gaming on a parcel of land taken into trust for the tribe by the Bureau of Indian Affairs.

Rejecting California’s argument that the tribe lacked standing to compel it to negotiate in good faith under the IGRA, the en banc court held that the State’s argument amounted to an improper collateral attack on the BIA’s decisions to take the parcel of land into trust and to designate the tribe as a federally recognized Indian tribe. The en banc court held that the district court did not abuse its discretion in failing to grant a continuance for additional discovery under Fed. R. Civ. P. 56(f).

The en banc court dismissed the tribe’s cross-appeal as moot.

Links to oral argument and briefs here.

Big Lagoon En Banc Oral Argument Materials

Here is “Small Native American Tribe and U.S. Duke It Out at the 9th Circuit.”

This seems like a misleading headline since the tribe and Feds were on the same side. In short, argument seemed to go well for tribal interests.

You can access the argument here.

Materials here.

Ninth Circuit to Video Stream En banc Arguments in Big Lagoon Rancheria Gaming Matter (Sept. 17, 2014)

Here is the news release. An excerpt:

On Wednesday, September 17, 2014, beginning at 10 a.m., the court will hear oral arguments in Big Lagoon Rancheria v. State of California, in which the state appeals the summary judgment by the U.S. District Court for the Northern District of California in favor of Big Lagoon Rancheria, an Indian reservation near Eureka.  The lower court determined that the state violated the Indian Gaming Regulatory Act by failing to negotiate in good faith for a tribal-state gaming compact.

Here is the panel: Alex Kozinski, Harry Pregerson, Stephen Reinhardt, Diarmuid O’Scannlain, Susan Graber, William Fletcher, Richard Paez, Jay S. Bybee, Milan Smith, Morgan Christen, and Jacqueline Nguyen

En banc materials here.

Panel materials here.

Ninth Circuit to Re-Hear Big Lagoon Rancheria Appeal Sept. 17, 2014

Here:

Big Lagoon — CA9 Order Setting Oral Argument

En banc materials here.

Panel materials here.

Ninth Circuit Grants En Banc Review in Big Lagoon Rancheria v. State of California

Here:

2014 0611 Order Granting Petition for Rehearing En Banc

En banc petition here. Supporting amicus briefs here.

Lower court materials here.

Amici Supporting Big Lagoon Rancheria’s En Banc Petition

Here:

Big Lagoon v California – 64 – US brief

Big Lagoon v California – 67-2 – NCAI USET brief

Big Lagoon v California – 68 – CILS Ltr

The en banc petition is here.

The panel materials are here.

Split Ninth Circuit Panel Reverses Big Lagoon Rancheria v. California

Here is today’s opinion. The court’s syllabus:

Reversing the district court’s summary judgment, the panel held that the State of California did not violate the Indian Gaming Regulatory Act by failing to negotiate in good faith for a tribal-state gaming compact with Big Lagoon Rancheria.

The panel held that a tribe must have jurisdiction over “Indian lands” in order to file suit to compel negotiations under IGRA. Specifically, the tribe must have jurisdiction over the Indian lands upon which the gaming activity is to be conducted.

The panel held that although the State’s objection to the “Indian lands” requirement could be waived because it was not a matter of subject matter jurisdiction, the State preserved this issue for review. The panel held that the parcel at issue was not Indian lands, which include lands held in trust for a tribe, because under Carcieri v. Salazar, 555 U.S. 379 (2009), the Bureau of Indian Affairs’ authority to take lands in trust for a tribe extends only to tribes under federal jurisdiction in 1934. Because Big Lagoon was not such a tribe, the BIA lacked authority to purchase the parcel in trust for Big Lagoon in 1994. Accordingly, Big Lagoon could not demand negotiations to conduct gaming on the parcel, and it could not sue to compel negotiations if the State fails to negotiate in good faith.

Dissenting, Judge Rawlinson wrote that the parcel was Indian lands under IGRA because under Guidiville Band of Pomo Indians v. NGV Gaming, 531 F.3d 767 (9th Cir. 2008), the State could not collaterally attack the BIA’s designation of trust lands years after its administrative and legal remedies had expired.

Briefs are here.

Complete Briefing in Big Lagoon Rancheria Class III Compact Dispute with California

Here are the briefs:

California Brief

Big Lagoon Brief

California Reply

Big Lagoon Reply

Lower court materials here.