Mere Speculation: Overextending Carcieri V. Salizar in Big Lagoon Rancheria V. California

On January 21, 2014, in Big Lagoon Rancheria v. California, a divided panel of the U.S. Court of Appeals for the Ninth Circuit reversed the order of the U.S. District Court for the Northern District of California directing the State of California to negotiate with the Big Lagoon Rancheria toward the development of a gaming facility on the tribe’s trust lands. The issues in Big Lagoon arose from a collateral attack, long after land had been taken into trust and administrative and legal avenues to challenge that decision had expired. This Comment argues that the Ninth Circuit’s reliance on the 2009 U.S. Supreme Court decision Carcieri v. Salazar was improper, as that decision dealt with a timely challenge under the Administrative Procedure Act (“APA”). Further, this Comment urges the en banc panel of the Ninth Circuit to rely on the 2008 U.S. Court of Appeals for the Ninth Circuit’s decision in Guidiville Band of Pomo Indians v. NGV Gaming. This Comment also asserts that, beyond the legal reasoning, there are a myriad of public policy reasons for which the Ninth Circuit should decline to extend Carcieri to Big Lagoon.