BIG LAGOON RANCHERIA, a federally recognized Indian tribe, Plaintiff-Appellee/Cross-Appellant,
STATE OF CALIFORNIA, Defendant-Appellant/Cross-Appellee
Argued and Submitted En Banc, San Francisco,
California September 17, 2014
Appeal from the United States District Court, for the Northern District of California. D.C. No. 4:09-cv-01471-CW. Claudia Wilken, Chief District Judge, Presiding.
Indian Gaming Regulatory Act
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.
Michael A. Pollard, Baker & McKenzie, Chicago, Illinois, argued the cause for the plaintiff-appellee/cross-appellant. Bruce H. Jackson, Baker & McKenzie, San Francisco, California filed the briefs for the plaintiff-appellee/cross-appellant Big Lagoon Rancheria. With him on the briefs were Peter J. Engstrom and Irene V. Gutierrez, San Francisco, California.
Peter H. Kaufman, Deputy Attorney General for the State of California, San Diego, California, argued the cause for defendant-appellant/cross-appellee the State of California. Kamala D. Harris, Attorney General of California, filed the briefs for the defendant-appellant/cross-appellee. With her on the briefs were Sara J. Drake, Senior Assistant Attorney General, and Randall A. Pinal, Deputy Attorney General, San Diego, California.
Samuel Hirsch, Acting Assistant Attorney General, Washington, D.C., argued the cause for amicus curiae the United States of America. Robert G. Dreher, Acting Assistant Attorney General filed the brief on behalf of amicus curiae the United States of America in support of the plaintiffappellee/ cross-appellant. With him on the brief were Jennifer Turner and Rebecca Ross, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., and Amber B. Blaha, Elizabeth A. Peterson, and Kate R. Bowers, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.
Kenneth J. Pfaehler, Dentons U.S. LLP, Washington, D.C., filed the brief on behalf of amici curiae National Congress of American Indians, United South and Eastern Tribes, Inc., and The Navajo Nation in support of plaintiff-appellee/cross-appellant. With him on the brief were V. Heather Sibbison and Samuel F. Daughety, Dentons U.S. LLP, Washington, D.C., and Riyaz A. Kanji, Kanji & Katzen PLLC, Ann Arbor, Michigan.
Dorothy Ann Alther, California Indian Legal Services, Escondido, California, filed the brief on behalf of amici curiae California Indian Legal Services and California Association of Tribal Governments in support of plaintiff-appellee/cross-appellant.
Before: Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Susan P. Graber, William A. Fletcher, Richard A. Paez, Jay S. Bybee, Milan D. Smith, Jr., Morgan Christen and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge O'Scannlain.
We must decide whether, in the course of negotiations under the Indian Gaming Regulatory Act, a state can challenge a Bureau of Indian Affairs decision to hold a parcel of land in trust for an Indian tribe and whether it can challenge the tribe's federally recognized status.
This litigation is between a small federally recognized Indian tribe which wishes to build and to operate a class III gaming casino and hotel on tribal trust land and the State of California, which seeks to regulate or to oppose such activity.
To regulate gaming on Indian lands, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. § § 2701 et seq. (the " IGRA" ), which created a " cooperative federalis[t]" framework that " balance[d] the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme." In re Indian Gaming Related Cases, 331 F.3d 1094, 1096 (9th Cir. 2003) (quoting Artichoke Joe's v. Norton, 216 F.Supp.2d 1084, 1092 (E.D. Cal. 2002)). The IGRA assigns authority to regulate gaming to tribal and state governments depending on the class of gaming involved.
Class I gaming includes " 'social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations,' 25 U.S.C. § 2703(6), and its regulation is left exclusively within the jurisdiction of the Indian tribes, id. § 2710(a)(1)." Id. at 1096-97. " Class II gaming includes bingo . . . and certain card games . . . but excludes any banked card games, electronic games of chance, and slot machines." Id. at 1097. Class III gaming includes " all forms of gaming that are not class I gaming or class II gaming." 25 U.S.C. § 2703(8). Class III gaming, which is contemplated by the tribe here, often ...