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BIG LAGOON RANCHERIA v. CALIFORNIA

Nos. 10-17803, 10-17878.

789 F.3d 947 (2015)

BIG LAGOON RANCHERIA, a federally recognized Indian tribe, Plaintiff-Appellee/Cross-Appellant, v. State of CALIFORNIA, Defendant-Appellant/Cross-Appellee.

United States Court of Appeals, Ninth Circuit.

As Amended on Denial of Rehearing En Banc July 8, 2015.

Attorney(s) appearing for the Case

Michael A. Pollard , Baker & McKenzie, Chicago, IL, argued the cause for the plaintiff-appellee/cross-appellant. Bruce H. Jackson , Baker & McKenzie, San Francisco, CA filed the briefs for the plaintiff-appellee/cross-appellant Big Lagoon Rancheria. With him on the briefs were Peter J. Engstrom and Irene V. Gutierrez , San Francisco, CA.

Peter H. Kaufman , Deputy Attorney General for the State of California, San Diego, CA, argued the cause for defendant-appellant/cross-appellee the State of California. Kamala D. Harris , Attorney General of California, filed the briefs for the defendant-appellant/cross-appellee. With her on the briefs were Sara J. Drake , Senior Assistant Attorney General, and Randall A. Pinal , Deputy Attorney General, San Diego, CA.

Samuel Hirsch , Acting Assistant Attorney General, Washington, D.C., argued the cause for amicus curiae the United States of America. Robert G. Dreher , Acting Assistant Attorney General filed the brief on behalf of amicus curiae the United States of America in support of the plaintiff-appellee/cross-appellant. With him on the brief were Jennifer Turner and Rebecca Ross , Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., and Amber B. Blaha , Elizabeth A. Peterson, and Kate R. Bowers , United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.

Kenneth J. Pfaehler , Dentons U.S. LLP, Washington, D.C., filed the brief on behalf of amici curiae National Congress of American Indians, United South and Eastern Tribes, Inc., and The Navajo Nation in support of plaintiff-appellee/cross-appellant. With him on the brief were V. Heather Sibbison and Samuel F. Daughety , Dentons U.S. LLP, Washington, D.C., and Riyaz A. Kanji , Kanji & Katzen PLLC, Ann Arbor, MI.

Dorothy Ann Alther , California Indian Legal Services, Escondido, CA, filed the brief on behalf of amici curiae California Indian Legal Services and California Association of Tribal Governments in support of plaintiff-appellee/cross-appellant.

Argued and Submitted En Banc September 17, 2014-San Francisco, California.

Before: HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, WILLIAM A. FLETCHER, RICHARD A. PAEZ, JAY S. BYBEE, MILAN D. SMITH, JR., MORGAN CHRISTEN and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

We must decide whether, in the course of negotiations under the Indian Gaming Regulatory Act, a state can challenge a Bureau of Indian Affairs decision to hold a parcel of land in trust for an Indian tribe and whether it can challenge the tribe's federally recognized status.

I

A

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