June 26, 2014 • Volume 7, Number 10
GAMING LEGAL NEWS EDITORIAL BOARD
Robert W. Stocker II, Gaming Law
517.487.4715 • rstocker@dickinsonwright.com
Dennis J. Whittlesey, Gaming Law/Indian Law
202.659.6928 • dwhittlesey@dickinsonwright.com
Michael D. Lipton, Q.C., Gaming Law
416.866.2929 • mdliptonqc@dickinsonwright.com
Peter H. Ellsworth, Gaming Law
517.487.4710 • pellsworth@dickinsonwright.com
Glenn M. Feldman, Gaming Law/Indian Law
602.285.5138 • gfeldman@dickinsonwright.com
Peter J. Kulick, Gaming Law/Taxation
517.487.4729 • pkulick@dickinsonwright.com
Kevin J. Weber, Gaming Law
416.367.0899 • kweber@dickinsonwright.com
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MdME, Macau (www.mdme.com.mo)
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GAMING WEB SITES OF INTEREST
www.indianz.com www.pechanga.net
www.indiangaming.org www.nigc.gov
www.michigan.gov/mgcb www.gaminglawmasters.com
www.ggbmagazine.com
www.casinoenterprisemanagement.com
Disclaimer: Gaming Legal News is published by Dickinson Wright PLLC to
inform our clients and friends of important developments in the elds of
gaming law and federal Indian law. The content is informational only and
does not constitute legal or professional advice. We encourage you to consult
a Dickinson Wright attorney if you have specic questions or concerns relating
to any of the topics covered in Gaming Legal News.
INDIAN COUNTRY AWAITS 9TH CIRCUIT’S EN BANC REHEARING IN
BIG LAGOON CASE
by Patrick Sullivan
In January, a split 9th Circuit panel shocked Indian Country with its
holding in Big Lagoon Rancheria v. California that the State’s failure
to negotiate in good faith for a tribal-state gaming compact with the
Big Lagoon Rancheria of California did not violate the Indian Gaming
Regulatory of 1988 Act (“IGRA”) because the lands at issue were not
“Indian lands” under Carcieri. The Court held that the proposed
gaming parcel was improperly accepted into trust due to the Supreme
Court precedent of Carcieri v. Salazar, which held that the Indian
Reorganization Act of 1934 only authorizes the Government to take
land into trust status for those tribes “under federal jurisdiction” as of
June 18, 1934. Because IGRA only requires good-faith negotiations for
gaming on Indian lands, the Ninth Circuit dismissed the good-faith suit.
The panel decision threatens a Pandora’s box of litigation by opening
the door to collateral Carcieri attacks on agency fee-to-trust decisions.
But Big Lagoon is only the latest in a litany of decisions which threaten
Indian tribes’ ability to restore land.
First, the 2009 Carcieri decision placed hard limits on the ability of the
Bureau of Indian Aairs (“BIA”) to restore land to tribes that could not
prove they were “under federal jurisdiction” as of the date upon which
the Indian Regulatory Act became law in 1934. Then, the 2012 Patchak
v. Salazar decision subjected BIA fee-to-trust decisions to review under
the Administrative Procedure Act, expanding the litigation exposure of
every new trust acceptance from the previous 30-day challenge period
to the 6-year APA statute of limitations.
And now, Big Lagoon threatens to roll back all of the rights associated
with trust status for post-1934 tribes even those that have held land
in trust status for decades. This threat to the Indian land restoration
process set o alar m bells throughout Indian Country. Big Lagoon
Rancheria responded with a motion for en banc rehearing, and a urry
of amicus briefs suppor ting rehearing and reversal were led. Those
submitting briefs as amici included the United States Department of
Justice, the National Congress of American Indians, the Navajo Nation,
California Indian Legal Ser vices, and the United South and Eastern
Tribes, a coalition of 26 federally recognized Indian tribes in 12 states.
The 2-1 majority opinion was written by a visiting Judge Block from
the Eastern Distric t of New York. The panel decision is widely seen as
overreaching and poorly executed, with one Native American legal
writer calling Block’s analysis “stunningly and thoroughly poor.” The
dissenting judge noted that the decision contradicted 9th Circuit
precedent holding that the State could not collaterally attack the BIA’s
designation of trust lands years after the expiration of administrative
and legal remedies.
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