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.