N. Calif. tribe wins right to develop casino

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

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