N. Calif. tribe wins right to de­velop casino

U.S. 9th Cir­cuit panel over­turns ear­lier rul­ing in­volv­ing 1994 land grant.

Los Angeles Times - - THE STATE - By Ti­mothy M. Phelps tim.phelps@la­times.com @tim­phelp­sLAT

WASH­ING­TON — A tiny Amer­i­can In­dian tribe in North­ern Cal­i­for­nia has won the right to pur­sue devel­op­ment of a casino in Hum­boldt County thanks to a fed­eral ap­peals court de­ci­sion clar­i­fy­ing the legal rights of more than 200 tribes to mil­lions of acres in the West and across the na­tion.

A pre­vi­ous rul­ing by a three-judge panel of U.S. 9th Cir­cuit Court of Ap­peals had threat­ened the land own­er­ship claims of tribes rec­og­nized by the fed­eral gov­ern­ment af­ter 1934, roughly half of the 566 tribes with legal recog­ni­tion.

The 2014 rul­ing agreed with Cal­i­for­nia’s po­si­tion that the fed­eral gov­ern­ment had im­prop­erly given an en­vi­ron­men­tally sen­si­tive 11acre par­cel on Big La­goon, north of Eureka, to a tribe known as Big La­goon Rancheria.

But the tribe, backed by the U.S. Depart­ment of Jus­tice, ap­pealed. And last week, in a lit­tle-no­ticed rul­ing, a larger 11-judge en banc panel of the 9th Cir­cuit unan­i­mously over­turned last year’s rul­ing.

Tribes across the na­tion breathed a sigh of re­lief.

“The prin­ci­ples at stake in this case mat­ter for scores of tribes and mil­lions of acres of tribal land,” said Sam Hirsch, who ar­gued the case as act­ing as­sis­tant at­tor­ney gen­eral in charge of en­vi­ron­men­tal lit­i­ga­tion at the Jus­tice Depart­ment. “We had a re­spon­si­bil­ity to stand up for those Amer­i­can In­di­ans whose in­ter­ests were en­dan­gered.”

Cal­i­for­nia Atty. Gen. Ka­mala D. Har­ris’ of­fice de­clined to com­ment Tues­day.

John Dos­sett, gen­eral coun­sel for the Na­tional Congress of Amer­i­can In­di­ans in Wash­ing­ton, said the pre­vi­ous de­ci­sion meant states or oth­ers “could go back in time and re­visit the sta­tus of fed­eral In­dian trust land.” Even the legal sta­tus of na­tional forests and na­tional parks might have been open to chal­lenge un­der that rea­son­ing, he said.

The fed­eral gov­ern­ment pur­chased the par­cel in 1994 for Big La­goon Rancheria, a small tribe con­sist­ing pri­mar­ily of one ex­tended fam­ily that had owned an ad­join­ing prop­erty since 1918.

When the tribe in­di­cated that it wanted to build a ca- sino and re­sort on the land, Cal­i­for­nia of­fi­cials re­sisted, trig­ger­ing years of failed ne­go­ti­a­tions and lit­i­ga­tion over the state’s de­mands for en­vi­ron­men­tal mit­i­ga­tion and a share of the casino’s fu­ture prof­its.

The tribe sued, ac­cus­ing Cal­i­for­nia of fail­ing to ne­go­ti­ate in good faith to per­mit the casino.

Cal­i­for­nia re­sponded by chal­leng­ing the le­gal­ity of the orig­i­nal 1994 fed­eral grant.

Cit­ing a 2009 Supreme Court de­ci­sion lim­it­ing new land trans­fers to tribes rec­og­nized be­fore 1934, the three-judge ap­pel­late panel ruled last year that be­cause the fed­eral gov­ern­ment had not rec­og­nized Big La­goon Rancheria as a tribe un­til 1979, the trans­fer of the rights to the prop­erty was im­proper.

Last Thurs­day, in an opin­ion by con­ser­va­tive Judge Diar­muid F. O’Scannlain, the 9th Cir­cuit said al­low­ing retroac­tive chal­lenges to long-set­tled land trans­fers “would con­sti­tute just the sort of end-run that we have pre­vi­ously re­fused to al­low, and would cast a cloud of doubts over count­less acres of land that have been taken into trust for tribes rec­og­nized by the fed­eral gov­ern­ment.”

The court said that Cal­i­for­nia had the right to chal­lenge the fed­eral trans­fer within six years af­ter it oc­curred, but that the state could not no use such a claim now to stop the casino.

O’Scannlain said that if the casino plan is ap­proved by the U.S. Depart­ment of In­te­rior — which made the orig­i­nal trans­fer of the Big La­goon land — the tribe will be free to build the casino and start gam­ing.

“It’s a mean­ing­ful de­ci­sion,” said Peter Engstrom, a lawyer for the tribe. “And it’s the right de­ci­sion, by a unan­i­mous and ob­vi­ously thought­ful en banc panel.” He said the tribe would pur­sue the next steps to­ward fi­nal ap­proval of the casino.

‘The prin­ci­ples at stake in this case mat­ter for scores of tribes and mil­lions of acres of tribal land.’

— Sam Hirsch, at­tor­ney ar­gu­ing for the U.S. Jus­tice Depart­ment on be­half of Na­tive Amer­i­cans

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