Bethany C. Sullivan & Jennifer L. Turner on Carcieri
I agree Enough is Enough …good article
Bethany C. Sullivan and Jennifer L. Turner have published “Enough Is Enough: Ten Years of Carcieri v. Salazar” in the Public Land & Resources Law Review. Here is the abstract:
Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward…
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Victory for Big Lagoon Rancheria: Restoring Certainty for Challenging Lands into Trust after 1934
The Big Lagoon Rancheria had a major victory this month after an en banc decision granted Big Lagoon the authority to pursue the construction of a casino on tribal land in trust. In 1994, the United States accepted into trust an 11-acre parcel of land on which the Tribe sought to build a casino. The Indian Gaming Regulation Act (IGRA) allows tribes to operate class III gaming only after entering into a tribal gaming compact with the state. When negotiations stalled, Big Lagoon brought suit against California, and in 2007 the district court ordered the parties to come to an agreement after finding that the state had not negotiated in good faith.
California appealed, and pursuant to the Supreme Court’s decision in Carcieri (2009), the Ninth Circuit found that because Big Lagoon was not federally recognized in 1934, the Bureau of Indian Affairs (BIA) lacked authority under the Indian Reorganization Act (IRA) to accept land into trust for Big Lagoon. The three-judge panel concluded that since the 11-acre parcel was not tribal land, Big Lagoon lacked standing to compel California to negotiate.
However, the Ninth Circuit’s recent en banc panel vacated the previous decision and reinstated the district court’s holding that state violated IGRA by failing to negotiate in good faith. If California had wanted to contest the original acceptance of the parcel, the state would have had to do so under the Administrative Procedure Act within the six-year statute of limitations. The en banc panel’s ruling helps restore some certainty to tribes recognized after 1934 by preventing collateral attacks on tribal land in trust beyond the statute of limitations.