I’ve tried to bring this up in comments about Kamala Harris in other diaries and have been attacked and said I was just trying to smear Harris. I’m calling bullshit and I hope those attacking me will take time to study the issue I am bringing up or at least read my diary. Kamala Harris is no friend to American Indians. As California's attorney general Kamala Harris has been fighting to invalidate Indian Trust Lands. Governor Brown apparently had no idea she was doing this. (That does not score Gov. Brown any points in my book.)
Brown and outgoing senior aide Jacob Appelsmith both told tribes they were unaware Harris’ office had sent at least 15 land/trust objection letters to the BIA since Brown took office in 2010.
This may at least partially explain why Brown has worked cooperatively with Indian tribes on tribal-state compacts and other matters while the AG’s office has been rejecting land/trust applications on legal grounds that leave Indian law scholars shaking their heads in dismay.
Harris won the first round in court. Thankfully, with the support of the Obama administration and others tribes, Big Lagoon Rancheria appealed the decision.
Tribes across the nation, as well as the Obama administration, are paying close attention toBig Lagoon Rancheria v. California, an Indian gaming case that will be reheard by the 9th Circuit Court of Appeals next month.
RECENT DEVELOPMENTS IN THE BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA CASE
In the case of Big Lagoon Rancheria v. State of California, the Ninth Circuit of Appeals ruled 2 to 1 that the state had no obligation to negotiate with the tribe on this parcel of land. The tribe wanted to use the land for a new gaming concept and wanted to negotiate under the Indian Gaming Regulatory Act.
This ruling meant that the court decided the land was not under federal jurisdiction in 1934, so the land placed in trust in 1994 was not considered Indian land. This recent decision cast doubt on the Bureau of Indian Affairs ability to protect and put land into trusts for tribes recognized by the federal government after the Indian Reorganization Act was enacted in 1934.
This ruling has major legal implications for all tribes because it will allow legal challenges for all land trusts and tribes. It can remove land trusts made after 1934, and prevent tribes from developing land they were given by the government. Currently, there are 566 federally recognized tribes, and 258 were recognized after 1934. Tribes and the Obama administration joined an appeal of the decision. Thankfully it was overturned on appeal. (No thanks to Kamala Harris)
An en banc panel of the court will determine whether the Big Lagoon Rancheria can pursue a casino on land that was placed in trust by the Bureau of Indian Affairs in 1994. Tribes, tribal organizations and the Department of Justice have submitted briefs in hopes of preventing land acquisitions from being challenged long after they have been finalized.
“The majority’s ruling in this case would open the door to time-barred lawsuits, allowing parties to litigate the validity of decades-old trust acquisitions and challenge the United States’ property interest in these lands,” DOJ attorneys wrote in a brief.
The decision was overturned.
The decision marks a dramatic reversal from a January 2014 ruling that placed the tribe's trust site and indeed its federally recognized status in doubt. Tribes across the nation rushed to defend the Big Lagoon Rancheria and asked the 9th Circuit to take another look at the case due to its significance.
"The Carcieri decision from the Supreme Court was probably one of the worst decisions in a long time because it impacted a lot of tribes across the nation,"National Congress of American Indians President Brian Cladoosby said in his 2014 State of Indian Nations address, just a few days after the earlier decision sent shock waves across Indian Country.
"The decision that just came down -- the Big Lagoon -- that really is scary for tribes that have had land-into-trust," Cladoosby said.
California cited the U.S. Supreme Court decision in Carcieri v. Salazar as grounds for refusing to negotiate with the Big Lagoon Rancheria. In that 2009 case, the justices said the BIA can only place land into trust for tribes that were "under federal jurisdiction" in 1934, when the Indian Reorganization Act became law.
Attorney General Kamala Harris, who is running for U.S. Senate, argued that the tribe was not "under federal jurisdiction" in 1934. So she claimed that the BIA lacked authority to place that 11-acre site in trust, a challenge that the 9th Circuit roundly rejected in today's decision.
Other commentary on the cases:
Status of the Land
California argued that BIA went outside the Administrative Procedure Act (APA) when it took the land into trust. The Ninth Circuit disagreed with this criticism, explaining that California failed to file a timely challenge to the BIA's action.
This holding is important for many Indian tribes: if the BIA wasn't allowed to take this land into trust for Big Lagoon, then this would "cast doubt over countless acres of land that have been taken into trust for tribes." Notably, the court distinguished California's "collateral attack" from the 2009 case of Carcieri v. Salazar, which the court characterized as "a timely administrative challenge brought against the Secretary of the Interior."
Many tribes can now breathe a sigh of relief for any number of properties that might have been impacted if California had won this argument.
Big Lagoon's Federally Recognized Status
California challenged the federal recognized status of Big Lagoon, pointing out that there's no clear documentation for how Big Lagoon came to be included in the 1979 list of "Indian Tribal Entities."
The court was unimpressed with this argument because California hadn't brought an appropriate challenge under the APA. Even if an appropriate challenge had been brought, California's argument would have failed because they waited too long: the statute of limitations for the APA runs out after six years.
Jack Duran: State's 'shocking' attack on Big Lagoon Rancheria
The Bureau of Indian Affairs is responsible for the administration and management of 55.7 million acres of land held in trust by the United States for American Indians, Indian tribes, and Alaska Natives, and maintains a list of the 562 Federally recognized tribal governments.
So this was a big fucking deal and if anybody fails to see my concern about Kamala Harris as President is being willfully blind.