Does the 9th Circuit Have Buyer’s Remorse? Carcieri in the Context of IGRA’s “Good Faith” Requirement of States

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In a move heartening to many in the field of Indian Law, the 9^th Circuit has decided to rehear en banc the appeal of the Big Lagoon Indian Gaming Regulatory Act (IGRA) case.  The previous hearing in front of a three-judge panel resulted in a decision against the Tribe founded on the Carcieri principle, apparently applied retroactively.  The decision caused concerns among the Native American Bar, and now the 9^th Circuit is reconsidering its decision.

Despite 10 years of negotiation history with the Big Lagoon Rancheria Tribe wherein the State of California claimed State interests trumped Tribal interests, the State switched its legal position to a brand new position adopted for litigation purposes — that the land on which the Tribe proposed to build a casino was not legally taken into trust, according to Carcieri.  The Carcieri decision stated that Tribal Governments not specifically recognized when the Indian Reorganization Act was adopted in 1934 were unable to have land taken into Trust by the BIA on their behalf.  Carcieri v. Salazar, 555 U.S. 379 (2009).  The Tribe filed an action in Federal District Court alleging that the State had violated the good faith negotiation requirements in its Compact.  The State reasoned that the Compact good faith bargaining requirement was irrelevant if gaming could not occur on the proposed land.

The lower District Court saw through this newfound position of the State and held that they could not be acting in good faith by ignoring past negotiations and now rely on a legal theory to justify their behavior in compact negotiations; after all, negotiations began around 1998 and Carcieri wasn’t decided until 2009! Big Lagoon Rancheria v. State of California, No. 09-01471 CW (2010).

However. the 9^th Circuit panel held in favor of the State, ruling  that valid Tribal jurisdiction over property on which a casino is proposed under an IGRA compact is a necessary prerequisite in order for the Tribe to rely on its Compact requirement that the State engage in good faith dealings.   On second thought, perhaps the 9^th Circuit has recognized the extraordinary limitations this decision would have on Tribal-State compacts and relations, and is now rehearing the matter.  Stay tuned!

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law. 

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

It’s Just that Simple: Carcieri Fix Passes Senate Committee Vote

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Attorneys and scholars like to wax poetic about theories of interpretation and jurisprudence, but sometimes all it takes to change the law is a vote. In the context of Native American Law, the “Plenary Power of Congress” has become almost a throw-away phrase—one often referenced but far less frequently relied upon. That Power can be destructive or productive, depending upon the direction in which the winds of political change blow. Congress could and is providing Tribes with just enough wind at their backs to make up the ground recently lost in the courts, most recently in the 9^th Circuit’s decision against the Big Lagoon Rancheria. Big Lagoon Rancheria v. California, 4:09-CV-01471-CW (2014).

Enter Senator Jon Tester and his bill proposing simple changes to the text of the Indian Reorganization Act that would effectively overturn the Supreme Court’s Carcieri v. Salazar opinion. That decision interpreted the Act’s original language to disallow those Tribes who were recognized after the time of the law’s passage from participating in the fee-to-trust process. Carcieri, 555 U.S. 379 (2009). Not only did the ruling prevent Tribes later recognized from enjoying the full benefits of sovereignty, but it also caused a significant disruption for those Tribes who had not been recognized at the time of the IRA’s passage but whose land had been taken into trust by the BIA and developed prior to Carcieri.

All it takes to overturn Carcieri is the will of Congress to exercise its plenary power by passing an amendment to the IRA. While this bill has Republican and Democrat co-sponsors from states across the country and was just unanimously passed out of the Senate’s Indian Affairs Committee, there is still opposition on the part of many states and their Attorneys General. It remains to be seen whether or not that opposition can gain a foothold somewhere in the arduous process of Federal lawmaking.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.