*1 RANCHERIA, a feder- BIG LAGOON tribe,
ally Plain- recognized Indian
tiff-Appellee-Cross-Appellant, CALIFORNIA, Defendant-
Appellant-Cross-Appellee. 10-17803,
Nos. 10-17878. Appeals,
United States Court
Ninth Circuit. Dec.
Argued and Submitted
Filed Jan. *2 and Randall (argued) H. Kaufman
Peter General, Pinal, Attorneys San Deputy A. CA, Defendant-Appellant- Diego, Cross-Appellee. Baker & McKenzie Engstrom,
Peter J. Francisco, CA, LLP, Plaintiff-Ap- San pellee-Cross-Appellant. village homes for the purchase TROTT and land for
Before: STEPHEN S. RAWLINSON, landless Indians of California.” B. Circuit JOHNNIE BLOCK, Judges, and FREDERIC By Charley had died and his wid- Judge.* District moved, children, Trin- ow had with their *3 idad, Charley’s California. son Robert BLOCK;. by Opinion by Judge Dissent may parcel have lived on the nine-acre Judge RAWLINSON. 1946, from 1942 to but the land was other- years. more than In
wise vacant for thereabouts, OPINION 1954 or Thomas Williams— nephew by marriage Robert’s his —and BLOCK, Judge: District wife, Lila, permission received the BIA’s (“the State”) The State of California land, camp on the but made claim to agreement allowing Big entered into an ownership. (“Big Lagoon”) oper- Ranchería major change The 1950s in a in ushered parcel ate a casino an eleven-acre of on policy, Indian from isolation to assimila- in County, land Humboldt California. It change, tion. of the part As the federal so, however, only did because the district government moved dissolve reservations court ordered it to La- and other tribal entities and distribute goon Gaming Regulatory under the Indian their lands to individual tribe members. (“IGRA”), §§
Act 2701-2721. U.S.C. policy The came to with the California and, appeals The State that order for the enactment of the California Ranchería Ter- reasons, following we reverse. Act, 85-671, mination Pub.L. No. 72 Stat. mandatorily The Act 1958. dis- solved some 43 rancherías —the term for
I
small Indian settlements
California—
A.
Background
Historical
and Carcieri
although some were later restored. See
States,
Tillie Hardwick v. United
No. 79-
parcels
is situated
on two
(N.D.
stipulated judgment
Cal.
en-
along
eponymous
land
the shore of the
1983). A
tered
to the
amendment
lagoon Northern California. The elev-
any
request
Act allowed
ranchería to
dis-
parcel
Big Lagoon pro-
en-acre
on which
solution and distribution. See Pub.L. No.
by
poses
operate
acquired
casino was
88-419, 78 Stat. 390.
States, acting through
the Bu-
(“BIA”),
apparently
reau of Indian Affairs
in 1994.1
The Williamses
came to
However,
background
to understand the
parcel
consider
nine-acre
a ranchería
case,
go
we must
further back in time
they applied
because
for dissolution and
purchased
when the BIA
another
A
distribution
1968 BIA memo-
randum,
contrast,
adjacent
nine-acre tract
to' the
par-
*4
Salazar,
379, 129
555 U.S.
Lagoon as it exists
In Carcieri
membership Big
in
for
(2009),
1979
appeared
1058,
on a
791
today. The tribe first
172 L.Ed.2d
S.Ct.
Entities That Have
“Indian Tribal
phrase
list of
that the
“now
Supreme Court held
Relationship
Government-to-government
jurisdiction” “unambiguous
under Federal
Fed.Reg.
44
States.”
With
that were under
ly
to those tribes
refers
1979).
(Feb. 6,
consistently
It has
7325
jurisdiction of the United
the federal
See, e.g.,
on similar lists since.
appeared
in
IRA
enacted
1934.”
when the
States
2013) (“Indi-
6,
(May
Fed.Reg. 26384-02
Thus,
395,
under
1058.
Id. at
S.Ct.
to Re-
Recognized
Eligible
and
an Entities
Carderi,
authority to ac
the BIA lacks
Bu-
From the United States
ceive Services
that were not
land in trust for tribes
quire
Affairs”).
two
roughly
Its
of Indian
reau
jurisdiction in 1934. See id.
under federal
ancestry, not to
trace their
dozen members
(“[T]he Secretary’s
388,
at
2. The Court above, grant reject application of independent § is an tribal members cited “Rather, Carcieri, § 2202 authority acquire land: at 555 U.S. tribe.” IRA to their may simply that tribes by ensures its terms 129 S.Ct. they opted § out of 465 even if benefit from IGRA, responded by enacting place “having are to take and it is the tribe Congress jurisdiction” assigns authority regulate gaming requests over those lands that which and, necessary, if governments according negotiations institutes to tribal and state legal action. defines “Indian lands” gaming IGRA to the class of involved. .“Class III” includes gaming the casino- —which (A) type gambling at issue here —is allowed on any all lands within the limits of only reservation; Indian lands “conducted conform- Indian compact ance with Tribal-State entered (B) any lands title to which is ... held by into the Indian tribe and the State.” in trust the United States for the 2710(d)(1)(C). compacts U.S.C. Such are benefit of Indian tribe or individual negotiations requested by the result of ... and over which an Indian tribe exer- having “Indian tribe over the governmental power. cises upon gam- a class III lands which 2703(4). §Id. conducted, ing activity being or is to be Negotiation History C. 2710(d)(3)(A). “Upon conducted.” Id. proposed 1998 and receiving request, such a the State shall compact seeking model to tribes to offer good with the Indian tribe *5 lands, gaming class III on including their compact.” faith to enter into such a Id. Big Lagoon. accepted Most tribes the successful, If negotiations are the result- State’s compact; Big Lagoon model did ing compact BIA goes approval. to the Instead, not. it in filed suit the district 2710(d)(3)(B). § not, If See id. the tribe court, alleging the State had failed to may in sue the district court. See id. negotiate in good faith under IGRA. 2710(d)(7)(A)®. § If the court district litigation As the proceeded, nego- concludes that the State has failed and continued to faith, good tiate in it must par- order the mutually an effort to acceptable reach agreement. ties to reach an id. See agreement. negotiations Those bore fruit 2710(d)(7)(B)(iii). § If agreement parties agreed when the that Big days, reached after 60 the court orders Lagoon, along group, with another would party proposed compact each to submit a operate be allowed to a casino on non- mediator, to a court-appointed who selects part lands Barstow. As of the comports “the one which best with the settlement, the lawsuit was with- dismissed terms of and applicable [IGRA] other prejudice. out findings Federal law and with the and order the court.” Id. however, proved illusory, The settlement 2710(d)(7)(B)(iv). If the State is unwill- Legislature because the California did not ing selection, to accept the mediator’s the ratify agreement, required by the state BIA, matter is referred to the which must law. Compact The so-called Barstow then' develop procedures “under which lapsed by in September its own terms may III gaming class be conducted on the 2007. Indian lands over which the Indian tribe 18, 2007, September On Big Lagoon sent jurisdiction.” Id. the State a request negoti- written for new 2710(d)(7)(B)(vii)(II). ations “for purpose entering the into a
A unifying
running through
thread
compact governing
Tribal-State
the con-
statutory provisions relating
gaming
to class III
duct of Class III
on
activities
gaming
concept
is the
of “Indian
Big Lagoon
lands.”
trust lands that constitute the
gaming
Such lands are where the
activities
A principal point
Ranchería.”
of conten-
measures, as well
mitigation
environmental
negoti-
the resultant
during
arose
tion
sharing.
as revenue
casino.
site
concerned the
ations
allow the casino
was reluctant
The State
In a
rejected
proposal.
“environmentally sig-
near
be built
6, 2008, it demanded
October
letter dated
adjacent
located
resources
nificant State
casino
operate
850-device
permission
ranchería.”
hotel on the eleven-acre
and 100-room
siting preferences
environ-
principle
ranked
agreed
The State
It
parcel.
measures, but,
re-
mitigation
as follows:
mental
pay
“to
sharing, refused
spect to revenue
and a
casino
locating a 500-device
1.
to a tax.”
simply amounts
what
State
approxi-
a site
hotel on
100-room
suit
that it would file
informed the State
It
the ranche-
five
from
mately
miles
by No-
reached
agreement
if an
ría;
vember 7.
on the
casino
locating a 250-device
on
hotel
parcel, a 50-room
nine-acre
to allow
agreed
response,
State
parking
and
parcel,
the eleven-acre
and hotel
operate a casino
Big Lagoon to
by Big
parcel owned
separate
aon
Ranchería,”
distinguishing
“on the
without
and
Lagoon;
par-
the nine-acre and
between
in the size of
Although
acquiesced
casino on
it
locating a 175-device
cels.
hotel, it ob-
hotel on
and
proposed
a 50-room
casino
parcel,
nine-acre
both
dividing
in a tower of
parcel,
jected
housing
and
them
the eleven-acre
by Big Lagoon.
parcels.
the two
height proposed
parking between
insist on revenue
also continued to
third
second
The State conditioned
*6
environmental
specific
sharing, as well
list of envi-
with a
compliance
on
options
measures.
In addi-
measures.
mitigation
ronmental
tion,
proviso
included a
options
three
all
History
Litigation
D.
percentage
Lagoon would share a
Big
that
exchange
revenue with the
of its
with
State’s
unsatisfied
Apparently
operate a casino
right to
for an exclusive
offer,
filed a second
latest
within a 50-mile radius.
answer,
In its
April
lawsuit on
“possible
Lagoon is
“Big
that
Big Lagoon responded
admitted that
the State
existing
federally recognized
trust
Tribe’s
currently
than the
on a list
sites other
It noted
consid-
rejected.”
tribes,
States
have to
that the
[and]
lands would
be
United
to site the
the trust beneficia-
always planned
that
it had
the Ranchería
be
ers
development
government
on
federal
all
lands the
ry
casino and
related
of certain
County,
“continue[d]
that it
California.”
parcel, and
in Humboldt
eleven-acre
owns
defense,” however,
it
utilization
that this is the best
believe
As an “affirmative
alleged
Tribe’s trust lands.”
injunctive
not
Big Lagoon is
entitled
reiterated
response, the State
In its
Arnold
Governor
compelling
eligi-
relief
on the
opinion
parties’ “difference
Compact
a
negotiate
Schwarzenegger
gaming.”
for
parcel
bility of
11-acre
on land
gaming
class III
authorizing
Lagoon’s
in Big
acquiesced
apparently
It
subse-
Ranchería
in trust for the
taken
on that
development
all
to site
demand
17, 1988,
Big
because
quent to October
casino
a 99-device
proposed
but
parcel,
beneficiary
eligible to be
Lagoon is not
proposal
hotel. The State’s
and 50-room
to 25
pursuant
conveyance
of a trust
with
compliance
on
again
was
conditioned
and, thus,
U.S.C.
was never enti-
does not dispute
[Big
[T]he State
interest in that land.
tled to beneficial
Lagoon]
currently, recognized by
is
government
federal
or that it has lands
discovery,
Big
both
Lagoon
After
and
gaming activity
on which
could be con-
summary judgment.
the State moved for
facts, [Big
ducted. On these
Lagoon] is
law,
In its memorandum of
the State ar-
good
negotiation
entitled to
faith
alia,
gued,
against
that “[i]t
inter
is
gaming
the State toward a
compact.
public
gaming
interest
to allow
on land
That the status of
parcel
the eleven-acre
unlawfully
...
States
ac-
may
question
change
be
does not
this
quired
[Big Lagoon].” Citing
in trust for
result.
Carcieri,
argued
it
the eleven-acre
eligible
was “not ‘Indian lands’
The district court also
addressed
gaming
because
under IGRA”
proposal
State’s
sharing.
revenue
In
federal
was not
tribe under
doing,
so
it cited Rincon Band
Luiseño
entering
in 1934. As an alternative to
Mission Indians v. Schwarzenegger, 602
favor,
summary judgment
(9th Cir.2010),
F.3d 1019
in which we held
deny
asked the district court to
or contin-
that “a
may,
acting
state
without
in bad
Big Lagoon’s
pending
ue
motion
further
faith, request revenue sharing
the reve-
discovery pursuant to Federal Rule of Civ-
(a)
sharing provision
nue
is
for uses ‘di-
56(f) (now
il Procedure
Federal Rule of
rectly
operation
related to the
of gaming
56(d)).
Civil Procedure
(b)
...,
activities’
pur-
consistent with the
argument
motions,
At oral
on the
(c)
IGRA,
poses of
‘imposed’
not
be-
opined
district court
that the status of the
it
bargained
cause
for in exchange for a
”
an
separate
issue
‘meaningful concession.’
Id. at 1033
obligation
from the State’s
(quoting In re Indian Gaming Related
good faith: “Whether it’s in
public
Cases,
(9th Cir.2003)).
parcel. sharing mitiga- revenue and environmental 22, 2010,
In a decision dated tion appropriate topics November could be negotia- the district court held that the State had tion under the circumstances described not, law, a negotiated as matter of in good Rincon, but that the State’s nonnegotiable faith. It addressed the status of the eleven- insistence on them amounted to bad faith. parcel acre as bearing good both on the Implementing rulings, its the district negotiation faith of the position State’s and court granted Big Lagoon’s motion for aas stand-alone issue. respect With to summary judgment and denied the State’s. faith, good the district court that reasoned It denied request the State’s for a Rule rely the State could not on Carcieri as 56(f) continuance because “the status of good evidence of its faith because the case [Big Lagoon] and its parcel post-dated the negotiations: “The State bearing on whether the nego- State cannot negotiated establish that it in good in good tiated faith.” It par- ordered the faith through post hoc rationalization of ties to either issue, compact conclude within 60 its actions.” As a- stand-alone it days, concluded that respective propos- the status of the or to submit their eleven- parcel acre was irrelevant: als a court-appointed to mediator. Both materi- issues of any genuine there are ty, timely appeal- Lagoon Big and the State cor- the district court whether fact and al ed.3 substantive the relevant rectly applied to initially court declined district Smith, F.3d v. Lopez law.” According- appeal. pending stay its order (en banc). Cir.2000) chal- (9th The State Un- negotiate. to continued parties ly, con- legal court’s the district only lenges submit- they agreement, an to reach able to entitled Lagoon was Big clusion that to a mediator. last, proposals best ted their IGRA, and under negotiation good-faith forgo agreed the State proposal, In its accordingly. review confine our would sharing revenue all environ- specified essence, argues with that comply In agree Lagoon, negotia- Big compelling measures. mitigation court erred mental district hand, elev- prepare offered that the other in the face evidence on the tions report “Indian impact qualify non-binding environmental does not en-acre an environmental the issue raises negotiate towards IGRA. It and to lands” under the appropriate of whether agreement question as a mitigation principally reve- more given to contribute it agreed It also should have court agency. district that supporting trust funds. the facts gaming-related develop nue to time that the responds Lagoon Big argument. envi- sharing and revenue from Apart its discretion did not abuse court district were proposals both mitigation, ronmental ample State had because the regard that both particular, substantially similar. discovery. time conduct “within the casino as site of identified Indi- eligible Tribe’s the boundaries view, at stake more there is In our does language Although an lands.” dispute. We discovery than a this case or eleven-acre the nine-acre specify ques- three answer us to it requires think suggests record nothing in the parcel, over jurisdiction tribe Must a have tions: build plan to has altered negotiations? compel lands” “Indian latter. on the casino lands” the “Indian waived Has Is the eleven-acre requirement? light of “[i]n found The mediator ques- those We answer “Indian lands”? very broad, and substantial stringent, in turn. tions design requirements” and environmental compact “the proposal, in the State’ over have tribe A. Must a IGRA, terms with the comports best negotiations? compel lands” law, district [the federal applicable clearly [Big Lagoon’s].” order] court’s Pomo Indians Band In Guidiville pro- stayed further court then The district Ltd., F.3d 767 Gaming, *8 NGV ceedings. requiring Cir.2008), IGRA described we lands’ ‘Indian has that it to “show a tribe
II
filing
time
the
by IGRA at
as defined
agreed
further
at 778. We
Id.
[suit].”
sum
court’s
the district
review
We
“it
statement
Circuit’s
the Sixth
novo,
deter
“and must
de
mary judgment
an
not have
does
the State
is clear that
in the
whether, viewing the evidence
mine
tribe
an
negotiate with
obligation to
nonmoving par-
the
favorable to
light most
R.App. P.
Fed.
premature. See
appeal were
to
was reduced
order
court’s
3. The district
4(a)(2).
remedy-
February
thus
judgment on
notices of
that the
ing any possible concern
until
has
tribe
Indian lands.”
Engler,
Id.
negotiations Has conduct gaming on waived the partic- ular piece lands” requirement? Indian land which over it jurisdiction. addressing Before whether The Sixth Circuit practical described State has waived the “Indian lands” re significance 2710(d)(3)(A) §of as follows: quirement, briefly respond to the purposes State’s requirement this contention that a lack ap- of Indian
pear to be
lands deprives
to ensure that
the casino
district
subject-
will
court of
be inside
jurisdiction
State,
borders of
matter
to compel
negotiations
give the State notice of
be,
where it
under IGRA.
objection
will
An
subject-mat
require
the tribe to
have a
ter
place
cannot be waived. See Ar
for the casino that has been federally
baugh v. Y H Corp.,
&
500, 514,
546 U.S.
*9
approved.
1235,
126
(2006).
S.Ct.
A district
omitted). Thus,
that
state
we conclude
the
arising under
actions
civil
“all
over
requirement.5
Unit
the
may
of the
waive
Constitution, laws,
treaties
or
A
claim
1381.
28 U.S.C.
ed States.”
out,' the State
points
Big Lagoon
As
of
construction
particular
aon
depending
ten
almost
negotiations
engaged
federal-ques
this
within
law falls
federal
the status
challenging
without ever
years
ultimate
if the court
even
jurisdiction,
tion
may
a state
What
tribe’s lands.
See
construction.
plaintiff’s
the
rejects
ly
however,
than
do,
is different
voluntarily
685,
678,
66 S.Ct.
Hood, 327 U.S.
v.
Bell
to do under
compelled
it can be
what
(“[T]he
(1946)
of
right
773,
L.Ed.
for exam-
Compact,
In the Barstow
IGRA.
their com
recover under
to
petitioners
that the
request
agreed
ple,
if the Constitution
will be sustained
plaint
Yet
into trust.
site
proposed
BIA take
given
are
States
of the United
laws
and
Guidiville, it could
decision
under our
be defeated
will
construction
one
the State
compelled
not have
this reason
For
another.
given
are
they
(“[T]he
at 778
531 F.3d
that site. See
over
A
jurisdiction.”).
has
court
the district
has
that it
‘Indian
show
tribe must
a fed
over
jurisdiction
court lacks
district
at the time
by IGRA
as defined
lands’
alleged
“the
only if
claim
eral-question
filing.”).
or federal
Constitution
under the
claim
argues that
further
to be immaterial
appears
clearly
statutes
appeal
on
point now
conceded the
State
of obtain
purpose
solely for the
and made
answer,
two months
was filed
which
its
whol
a claim is
such
or
jurisdiction
[if]
ing
view,
In our
decided.
after Carderi was
at
Id.
682-
and frivolous.”
ly insubstantial
the State’s
however, the answer manifests
66 S.Ct.
rely on
and intent
of Carderi
awareness
under
negotiations
A claim
“the United
that
State admitted
it. The
definition,
arises under
law
IGRA, by
be the
[Big Lagoon]
considers
States
claim
Big Lagoon’s
States.
the United
the feder-
certain lands
beneficiary of
trust
That
nor
immaterial
frivolous.
neither
County,
in Humboldt
government owns
al
construction
proper
dispute
parties
Any
doubt
California.”
dispute
their
transform
does not
IGRA
its
dispelled by
carefully is
its words
chose
jurisdic
subject-matter
question
into a
eligible
Lagoon is
“Big
allegation
addition,
from IGRA’s
infer
In
tion.
conveyance
beneficiary of a trust
to be
not intend
Congress
did
structure
While
25 U.S.C.
465.”
pursuant
an im
to be
requirement
lands”
allega-
inartfully characterized
State
court’s gen
the district
on
restriction
plicit
defense,
a clear
it is
an affirmative
tion as
Ar
See
jurisdiction.
federal-question
eral
of Carderi.
invocation
515,
ly why the BIA’s 1994 trust acquisition
ous challenge to an entrustment under the
was unlawful under
sure,
Carden. To be
(“APA”).
Administrative Procedure Act
argument
was cast
bearing
on the
385,
See
mand negotiation IGRA, under the site types of challenges to agency actions raise the proposed gaming must be “Indian different concerns: lands” at the time of the demand. See supra However, Part II.A. its usefulness If a person wishes to challenge a mere to us ends there. procedural violation in adoption of a regulation or Guidiville, action, other agency we held that land to be challenge must be brought entrusted in the within did not six qualify as future years lands,” see Here, F.3d at decision.... The grounds by contrast, we are such challenges called upon to will usually decide be ap- past whether a parent entrustment qualifies if it interested citizen within a turns out have six-year period been invalid. Guidiville following promulgation does speak to that issue. Nor does the decision.... The government’s Carcieri, which involved a contemporane- interest in finality outweighs a late-eom- Thus, imply we do not that Carcieri over- ruled Guidiville.
1043
wrong
(“A
suffering legal
person
§ 702
action
agency’s
the
protest
to
desire
er’s
af-
action,
adversely
or
agency
of
because
procedure.
or
policy
of
matter
as a
with-
action
by agency
aggrievéd
or
fected
the
challenger contests
however, a
If,
statute,
is
relevant
of a
meaning
in the
as ex-
decision
agency
of an
substance
thereof.”).7
judicial review
entitled to
statutory au-
or
constitutional
ceeding
later
may do so'
challenger
thority, the
true&emdash;at
cir
in this
least
It is
by
decision
the
following
years
six
than
cuit&emdash;that
unauthorized
to
challenge
a
the ad-
for review
complaint
filing
six-year
subject to
is still
action
agency
the
decision
of the
application
verse
Semicon
v. Tower
Schiller
time limit. Cf.
challenges,
challenger. Such
particular
(2d
Ltd.,
293
Cir.
449 F.3d
ductor
nature,
require
often
will
their
2006) (“The
explained
Circuit
D.C.
generally
than
person
“interested”
more
ac
agency
challenges to
...
substantive
large....
at
public
found
will be
tion&emdash;for
ac
agency
claims that
example,
permit-
not be
should
government
The
unconstitutional, that it exceeds
tion is
actions,
to its
challenges
to avoid all
ted
authori
substantive
agency’s
scope of the
vires, simply because
if ultra
even
on an erroneous
premised
it is
or that
ty,
any-
long before
action
took
agency
term&emdash;have
statutory
of a
interpretation
of affairs.
state
the true
discovered
one
River, we
”).
In Wind
time
no
bars....
spoke
River
Although Wind
Id. at
agency’s
“the
from
time runs
said that
affirmatively
right
party’s
of a
terms
decision
disputed
application
action, the
agency
challenge unauthorized
again
at 716. Once
F.2d
946
challenger.”
Circuit&emdash;whose
approach
D.C.
no direct
there is
mind that
bearing in
the dis
it clear
made
adopted&emdash;has
case, we think
in this
agency involvement
to defensive
applicable
“equally
is
tinction
application/en
analogue to
apt
the most
proceedings.”
in enforcement
attacks
is
entrustment
the 1994
forcement
Rela
Labor
v. Federal
Union
N.L.R.B.
As
negotiations.
compel
suit
Lagoon’s
n. 6
Auth.,
F.2d
tions
U.B.,
above,
Part
supra
see
noted
recognize
(D.C.Cir.1987). While we
entrustment
challenged the
promptly
State
enforcement
an
not involve
does
this case
must, there
suit. We
to that
response
sense,
we see
usual
in the
proceeding
the merits.
challenge on
fore,
address
enforcement
party’s
a third
treat
reason
lands”
noted,
defines
IGRA
As
agency action
stemming from
right
aof
agen
by the
enforcement
differently from
the limits
(A)
lands within
all
cy itself.
reservation; and
Indian
River
in Wind
we raised
concerns
... held
is
(B)
to which
title
any lands
entrustment,
The 1994
here.
present
are
United States
by the
in trust
alone,
have caused
might not
standing
individual
or
tribe
any Indian
benefit
County
North
any concern.
Cf.
tribe exer-
Indian
an
over which
...' and
Salazar,
Alliance,
Inc.
Community
power.
governmental
cises
Cir.2009).
might
One
738, 743
F.3d
2703(4).
25 U.S.C.
had
the State
whether
question
even
further
“reservation”
The term
challenge
time
at
standing
.Historically,
it referred
defined.
5 U.S.C.
See
the APA.
action under
BIA’s
"free[ing]
purpose of
express
with the
Carcieri,
Tribe
in which
7. Contrast
regulations.”
local
compliance with
itself from
the entrustment
aware that
Island was
Rhode
S.Ct.
at
U.S.
5
Narragansett
by the
proposed
*12
land “reserved” from a cession of
finally
lands
or
determinative- source.” See also
from
Carcieri,
a tribe to the
398,
United States. See
There
suppose,
cases in which
members of the
Tribe,
Lower Klamath
land
in
is,
held
trust for a tribe
for some
today known as the Yurok Tribe. The
reason, not part of the tribe’s “reserva-
BIA
in
confirmed
1968 that the
acqui-
tion.” But whether we call the eleven-acre
sition was “not set aside
any specific
for
parcel part
Big
Lagoon’s reservation or
tribe, band
group
or
of Indians.”
not, its status unquestionably stems from
the BIA’s acquisition of the
in
trust
Even if
acquisition
the 1918
amounted to
for the tribe.
recognition Charley
and his family as a
distinct
group, Big
tribal
Lagoon does not
again,
Once
under Carcieri
trace its
group.
roots
Membership
government’s
federal
authority to acquire
is,
in Big Lagoon
noted,
based on de-
land for
is
Indians
limited
acquisitions
scent from
Williams,
Thomas
the nephew,
for tribes that “were under the federal
by marriage, of Charley’s' son Robert. Ac-
jurisdiction of the United States when the
BIA,
cording to the
Williams and his fami-
IRA was
in
enacted
1934.” 555 U.S. at
ly
formally
were “not
organized” in 1968.
395,
from in held eleven-acre that the sion omission; it was inadvertent tional or the for benefit States by the United trust reality. of reflection consti- not Ranchería does Lagoon Big of Gam- Indian under the lands” tute “Indian right to the held, predicate have As we (IGRA). Act Regulatory ing is the IGRA under negotiations request to upon matters, lands Indian IGRA the gaming over jurisdiction of purposes For III conduct class to proposes a tribe lands” as: which defines “Indian as lands” “Indian defines IGRA gaming. any of limits (A) the lands within all for a tribe. in trust lands held including reservation; and Indian authority to the BIA’s holds that Carden is ... held (B) to title which any lands only extends a tribe in for trust take lands the for States by the United trust in in 1934. jurisdiction under federal to tribes individual tribe or any Indian of benefit Big that our conclusion Thus, the effect of Big that is a tribe is such Lagoon added). 2703(4) (emphasis § 25 U.S.C. negotiations demand cannot Lagoon of the definition “is” in the of verb Use parcel, the eleven-acre gaming on conduct is context that lands” embodies “Indian if negotiations compel sue to and cannot case. of this resolution to the important good in faith. negotiate fails to Indians Band In Guidiville Pomo of Cir. Gaming, F.3d NGV Ill deter similarly 2008), tasked were we as lands” of “Indian meaning the mining Big that appreciate We ad statute § That in U.S.C. used at- of time amount an enormous spent tribes with Indian contracts dresses the casino on negotiate tempting the title “lands as lands” defines do not doubt And we parcel. trust in States by the United held which position negotiation State’s the U.S.C. ...” tribe an Indian belief by its defined, part, at least added). 81(a)(1) (emphasis But sited be elsewhere. should the casino analysis to statutory Applying Carderi, however fortuitously, gives unequivocal the “statute’s concluded refuse to right deny Accordingly, we IGRA. rights under tive opinion to whether express as no 8. We implead the for remand request the nine- jurisdiction over State’s Lagoon's conceded challenge to request good- part entitle it a wholesale acre would BIA bring to com suit negotiations ;and faith entrustment. — necessary a casi negotiations, pel such —for we address Nor need that site. no on unnecessary to ad- makes it disposition 9. Our other entrustment validity cross-appeal. Big Lagoon's dress respec parties' effect on the respect than its present tense use the word ‘is’ does a challenge to the Secretary’s decision under tremendous amount of legwork” in dis- Act, Administrative Procedure the Su cerning the meaning of “Indian lands.” preme Court ruled that the Secretary had Id. at 774. We determined that use authority to take land into trust for a 81(a) present §in “unambiguously tense tribe unless that tribe was under federal prescribe^]” that the real estate must be when the Reorganiza held the United States trust at the tion Act was enacted 1934. See id. at time of the contract. Id. at 391,129 775. We S.Ct. 1058. noted Congress’ use of verb tense is Importantly, says Carderi nothing significant to process statutory con- about a collateral challenge legitima to the struction. See id. at 776. We ob- also cy of a designation of trust out property *14 served Congress’ that present use of the side parameters of the Administrative
tense to define Indian
unambiguous-
lands
Procedure Act.
Guidiville,
As we noted in
ly provided that we look to the present,
777,
if the Administrative under the challenge
timely under a differ had sued or
Procedure Act reason, we entirely. For statute
ent ruling in Guidiville. to our
must adhere directly over does not
Because Carderi NEGRETE-RAMIREZ, Guidiville, rely on Carderi we cannot Juana rule Petitioner, controlling precedent our negate See us. the issue before directly answers Gammie, 335 F.3d Miller v. Attorney HOLDER, Jr., H. Eric held, banc). Cir.2003) (en “as we have As General, Respondent. prior circuit our apply can long as we in running afoul precedent without No. 10-71322. so.” Lair do authority, must
tervening Appeals, *15 States Court Bullock, Cir. F.3d Ninth Circuit. (citation 2012) quotation and internal omitted). au intervening Even marks Dec. and Submitted Argued our with “some tension” creates thority 21, 2014. Filed Jan. prece on our doubt” “cast[s] precedent or prece our dent, still adhere we must intervening Indeed, Id. unless
dent. standard” of “high
authority meets with our prec “clearly inconsistent”
being
edent, from our authori depart we cannot omitted). (citations
ty. Id. overruled wise
Because Carderi of 25 U.S.C. interpretation prior
our IGRA in to address purported challenge untimely an
way, or considered lands, it of trust the designation precedent, our
inconsistent ruling Guidiville by our
are bound in IGRA purpose of for the
Indian lands for a tribe at held in trust lands
cludes See Guidi gaming contract.
time of the
ville, F.3d at 774-75. view, in Guidiville our my decision le- challenge to the State’s
forecloses the I would affirm trust.
gality summary judg- entry of
district court’s Ranchería
ment in favor motion for State’s
and its denial notes —a any a homestead for cel “was not set aside for specific —as Charley tribe, family. According group James and his band or it Indians” when records, contemporaneous pur- acquired BIA was in 1918. It further notes paid out an appropriation occupants formally chase “to that the “have not or- * Block, The Honorable Frederic Senior United distinction between the two. We therefore bureau, Judge States District for the Eastern District agency, use “BIA” to refer to the York, sitting by designation. Newof agency's secretary. and the part Department 1. The BIA is of the case, meaningful Interior. this there is no jurisdiction, and all now under Federal or not have “allotments and did ganized” of such The BIA neverthe- are descendants persons who assignments.” formal were, 1, 1934, distribution on June approved less members who and son-in- daughter their present Williamses boundaries residing within the living on the land—in also law—who were reservation, and ... all Indian of one-half or more persons other blood. took never distribution proposed unknown, because, reasons place (codified at 25 U.S.C. Id. 48 Stat. But request. their withdrew Williamses 479). forms the basis list the 1968 distribution