                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 BIG LAGOON RANCHERIA, a                           Nos. 10-17803
 federally recognized Indian tribe,                     10-17878
                   Plaintiff-Appellee–
                     Cross-Appellant,                  D.C. No.
                                                   4:09-CV-01471-
                      v.                                 CW

 STATE OF CALIFORNIA,
              Defendant-Appellant–                     OPINION
                   Cross-Appellee.


         Appeal from the United States District Court
           for the Northern District of California
          Claudia Wilken, District Judge, Presiding

                  Argued and Submitted
        December 6, 2012—San Francisco, California

                      Filed January 21, 2014

    Before: Stephen S. Trott and Johnnie B. Rawlinson,
    Circuit Judges, and Frederic Block, District Judge.*

                    Opinion by Judge Block;
                   Dissent by Judge Rawlinson

  *
    The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
2    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

                           SUMMARY**


                Indian Gaming Regulatory Act

    Reversing the district court’s summary judgment, the
panel held that the State of California did not violate the
Indian Gaming Regulatory Act by failing to negotiate in good
faith for a tribal-state gaming compact with Big Lagoon
Rancheria.

    The panel held that a tribe must have jurisdiction over
“Indian lands” in order to file suit to compel negotiations
under IGRA. Specifically, the tribe must have jurisdiction
over the Indian lands upon which the gaming activity is to be
conducted.

    The panel held that although the State’s objection to the
“Indian lands” requirement could be waived because it was
not a matter of subject matter jurisdiction, the State preserved
this issue for review.

    The panel held that the parcel at issue was not Indian
lands, which include lands held in trust for a tribe, because
under Carcieri v. Salazar, 555 U.S. 379 (2009), the Bureau of
Indian Affairs’ authority to take lands in trust for a tribe
extends only to tribes under federal jurisdiction in 1934.
Because Big Lagoon was not such a tribe, the BIA lacked
authority to purchase the parcel in trust for Big Lagoon in
1994.     Accordingly, Big Lagoon could not demand
negotiations to conduct gaming on the parcel, and it could not

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA               3

sue to compel negotiations if the State fails to negotiate in
good faith.

     Dissenting, Judge Rawlinson wrote that the parcel was
Indian lands under IGRA because under Guidiville Band of
Pomo Indians v. NGV Gaming, 531 F.3d 767 (9th Cir. 2008),
the State could not collaterally attack the BIA’s designation
of trust lands years after its administrative and legal remedies
had expired.


                         COUNSEL

Peter H. Kaufman (argued) and Randall A. Pinal, Deputy
Attorneys General, San Diego, California, for Defendant-
Appellant–Cross-Appellee.

Peter J. Engstrom, Baker & McKenzie LLP, San Francisco,
California, for Plaintiff-Appellee–Cross-Appellant.


                          OPINION

BLOCK, District Judge:

    The State of California (“the State”) has entered into an
agreement allowing Big Lagoon Rancheria (“Big Lagoon”)
to operate a casino on an eleven-acre parcel of land in
Humboldt County, California. It did so, however, only
because the district court ordered it to negotiate with Big
Lagoon under the Indian Gaming Regulatory Act (“IGRA”),
25 U.S.C. §§ 2701–2721. The State appeals that order and,
for the following reasons, we reverse.
4       BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

                                    I

A. Historical Background and Carcieri

    Big Lagoon is situated on two parcels of land along the
shore of the eponymous lagoon in Northern California. The
eleven-acre parcel on which Big Lagoon proposes to operate
a casino was acquired by the United States, acting through the
Bureau of Indian Affairs (“BIA”), in 1994.1 However, to
understand the background of the case, we must go further
back in time to 1918, when the BIA purchased another
parcel—a nine-acre tract adjacent to the eleven-acre
parcel—as a homestead for James Charley and his family.
According to contemporaneous BIA records, the purchase
was paid out of an appropriation “to purchase land for village
homes for the landless Indians of California.”

   By 1921, Charley had died and his widow had moved,
with their children, to Trinidad, California. Charley’s son
Robert may have lived on the nine-acre parcel from 1942 to
1946, but the land was otherwise vacant for more than 30
years. In 1954 or thereabouts, Thomas Williams—Robert’s
nephew by marriage—and his wife, Lila, received the BIA’s
permission to camp on the land, but made no claim to
ownership.

    The 1950s ushered in a major change in Indian policy,
from isolation to assimilation. As part of the change, the
federal government moved to dissolve reservations and other
tribal entities and distribute their lands to individual tribe


    1
    The BIA is part of the Department of the Interior. In this case, there
is no meaningful distinction between the two. We therefore use “BIA” to
refer to the bureau, its agency, and the agency’s secretary.
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA               5

members. The policy came to California with the enactment
of the California Rancheria Termination Act, Pub. L. No. 85-
671, 72 Stat. 619, in 1958. The Act mandatorily dissolved
some 43 rancherias—the term for small Indian settlements in
California—although some were later restored. See Tillie
Hardwick v. United States, No. 79-1710 (N.D. Cal. stipulated
judgment entered 1983). A 1964 amendment to the Act
allowed any rancheria to request dissolution and distribution.
See Pub. L. No. 88-419, 78 Stat. 390.

    The Williamses apparently came to consider the nine-acre
parcel a rancheria because they applied for dissolution and
distribution in 1967. A 1968 BIA memorandum, by contrast,
notes that the parcel “was not set aside for any specific tribe,
band or group of Indians” when it was acquired in 1918. It
further notes that the occupants “have not formally
organized” and did not have “allotments or formal
assignments.” The BIA nevertheless approved distribution to
the Williamses and their daughter and son-in-law—who were
also living on the land—in 1968.

     The proposed distribution never took place because, for
reasons unknown, the Williamses withdrew their request. But
the 1968 distribution list forms the basis for membership in
Big Lagoon as it exists today. The tribe first appeared on a
1979 list of “Indian Tribal Entities That Have a Government-
to-government Relationship With the United States.” 44 Fed.
Reg. 7325 (Feb. 6, 1979). It has consistently appeared on
similar lists since. See, e.g., 78 Fed. Reg. 26384-02 (May 6,
2013) (“Indian Entities Recognized and Eligible to Receive
Services From the United States Bureau of Indian Affairs”).
Its roughly two dozen members trace their ancestry, not to
Charley, but to his son’s wife’s nephew.
6   BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    As noted, the BIA purchased the eleven-acre parcel in
1994. It took the land “in Trust for Big Lagoon Rancheria, a
Federally Recognized Indian Rancheria” pursuant to
25 U.S.C. § 2202. That statute, in turn, is based on 25 U.S.C.
§ 465, which authorizes the BIA to acquire land “for the
purpose of providing lands to Indians.” Title is “taken in the
name of the United States in trust for the Indian tribe or
individual Indian for which the land is acquired.” Id.

   Section 465 was enacted as part of the Indian
Reorganization Act of 1934 (“IRA”), ch. 576, 48 Stat. 985.
Another section of the IRA defines “Indian” as including

        all persons of Indian descent who are
        members of any recognized Indian tribe now
        under Federal jurisdiction, and all persons
        who are descendants of such members who
        were, on June 1, 1934, residing within the
        present boundaries of any Indian reservation,
        and . . . all other persons of one-half or more
        Indian blood.

Id. § 19, 48 Stat. 988 (codified at 25 U.S.C. § 479).

    In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme
Court held that the phrase “now under Federal jurisdiction”
“unambiguously refers to those tribes that were under the
federal jurisdiction of the United States when the IRA was
enacted in 1934.” Id. at 395. Thus, under Carcieri, the BIA
lacks authority to acquire land in trust for tribes that were not
under federal jurisdiction in 1934. See id. at 388 (“[T]he
Secretary’s authority to take the parcel in question into trust
       BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA                      7

depends on whether the Narragansetts are members of a
‘recognized Indian Tribe now under Federal jurisdiction.’”).2

B. Indian Gaming and IGRA

    Beginning in the 1970s, the State and several Indian tribes
came into conflict over the operation of bingo halls on Indian
lands. The conflict culminated in California v. Cabazon
Band of Mission Indians, 480 U.S. 202 (1987), in which the
Supreme Court held that state regulation of gaming on Indian
lands “would impermissibly infringe on tribal government.”
Id. at 222.

    Congress responded by enacting IGRA, which assigns
authority to regulate gaming to tribal and state governments
according to the class of gaming involved. “Class III”
gaming—which includes the casino-type gambling at issue
here—is allowed on Indian lands only if “conducted in
conformance with a Tribal-State compact entered into by the
Indian tribe and the State.” 25 U.S.C. § 2710(d)(1)(C). Such
compacts are the result of negotiations requested by the
“Indian tribe having jurisdiction over the Indian lands upon
which a class III gaming activity is being conducted, or is to
be conducted.” Id. § 2710(d)(3)(A). “Upon receiving such
a request, the State shall negotiate with the Indian tribe in
good faith to enter into such a compact.” Id.




   2
     The Court rejected the argument that § 2202, cited above, is an
independent grant of authority to acquire land: “Rather, § 2202 by its
terms simply ensures that tribes may benefit from § 465 even if they opted
out of the IRA pursuant to § 478, which allowed tribal members to reject
the application of the IRA to their tribe.” Carcieri, 555 U.S. at 394.
8   BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    If negotiations are successful, the resulting compact goes
to the BIA for approval. See id. § 2710(d)(3)(B). If not, the
tribe may sue in the district court. See id. § 2710(d)(7)(A)(i).
If the district court concludes that the State has failed to
negotiate in good faith, it must order the parties to reach an
agreement. See id. § 2710(d)(7)(B)(iii). If no agreement is
reached after 60 days, the court orders each party to submit a
proposed compact to a court-appointed mediator, who selects
“the one which best comports with the terms of [IGRA] and
any other applicable Federal law and with the findings and
order of the court.” Id. § 2710(d)(7)(B)(iv). If the State is
unwilling to accept the mediator’s selection, the matter is
referred to the BIA, which must then develop procedures
“under which class III gaming may be conducted on the
Indian lands over which the Indian tribe has jurisdiction.”
Id. § 2710(d)(7)(B)(vii)(II).

    A unifying thread running through the statutory
provisions relating to class III gaming is the concept of
“Indian lands.” Such lands are where the gaming activities
are to take place and it is the tribe “having jurisdiction” over
those lands that requests negotiations and, if necessary,
institutes legal action. IGRA defines “Indian lands” as

       (A) all lands within the limits of any Indian
       reservation; and

       (B) any lands title to which is . . . held in trust
       by the United States for the benefit of any
       Indian tribe or individual . . . and over which
       an Indian tribe exercises governmental power.

Id. § 2703(4).
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA              9

C. Negotiation History

    In 1998 and 1999, the State proposed a model compact to
tribes seeking to offer class III gaming on their lands,
including Big Lagoon. Most tribes accepted the State’s
model compact; Big Lagoon did not. Instead, it filed suit in
the district court, alleging that the State had failed to
negotiate in good faith under IGRA.

    As the litigation proceeded, the State and Big Lagoon
continued to negotiate in an effort to reach a mutually
acceptable agreement. Those negotiations bore fruit in 2005,
when the parties agreed that Big Lagoon, along with another
group, would be allowed to operate a casino on non-Indian
lands in Barstow. As part of the settlement, the lawsuit was
dismissed without prejudice.

    The settlement proved illusory, however, because the
California Legislature did not ratify the agreement, as
required by state law. The so-called Barstow Compact lapsed
by its own terms in September 2007.

    On September 18, 2007, Big Lagoon sent the State a
written request for new negotiations “for the purpose of
entering into a Tribal-State compact governing the conduct of
Class III gaming activities on the trust lands that constitute
the Big Lagoon Rancheria.” A principal point of contention
that arose during the resultant negotiations concerned the site
of the casino. The State was reluctant to allow the casino to
be built near the “environmentally significant State resources
located adjacent to the rancheria.”
10 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    The State ranked its siting preferences as follows:

    1. locating a 500-device casino and a 100-room hotel on
       a site approximately five miles from the rancheria;

    2. locating a 250-device casino on the nine-acre parcel,
       a 50-room hotel on the eleven-acre parcel, and
       parking on a separate parcel owned by Big Lagoon;
       and

    3. locating a 175-device casino on the nine-acre parcel,
       a 50-room hotel on the eleven-acre parcel, and
       dividing parking between the two parcels.

The State conditioned the second and third options on
compliance with a list of environmental mitigation measures.
In addition, all three options included a proviso that Big
Lagoon would share a percentage of its revenue with the State
in exchange for an exclusive right to operate a casino within
a 50-mile radius.

    Big Lagoon responded that “possible sites other than the
Tribe’s existing trust lands would have to be rejected.” It
noted that it had always planned to site the casino and all
related development on the eleven-acre parcel, and that it
“continue[d] to believe that this is the best utilization of the
Tribe’s trust lands.”

    In its response, the State reiterated the parties’ “difference
of opinion on the eligibility of the 11-acre parcel for gaming.”
It apparently acquiesced in Big Lagoon’s demand to site all
development on that parcel, but proposed a 99-device casino
and 50-room hotel. The State’s proposal was again
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 11

conditioned on compliance with environmental mitigation
measures, as well as revenue sharing.

    Big Lagoon rejected the proposal. In a letter dated
October 6, 2008, it demanded permission to operate a 350-
device casino and 100-room hotel on the eleven-acre parcel.
It agreed in principle to environmental mitigation measures,
but, with respect to revenue sharing, refused “to pay the State
what simply amounts to a tax.” It informed the State that
it would file suit if an agreement was not reached by
November 7.

     In response, the State agreed to allow Big Lagoon to
operate a casino and hotel “on the Rancheria,” without
distinguishing between the nine-acre and eleven-acre parcels.
Although it acquiesced in the size of both the proposed casino
and hotel, it objected to housing them in a tower of the height
proposed by Big Lagoon. The State also continued to insist
on revenue sharing, as well as specific environmental
measures.

D. Litigation History

     Apparently unsatisfied with the State’s latest offer, Big
Lagoon filed a second lawsuit on April 3, 2009. In its
answer, the State admitted that “Big Lagoon is currently on
a list of federally recognized tribes, [and] that the United
States considers the Rancheria to be the trust beneficiary of
certain lands the federal government owns in Humboldt
County, California.” As an “affirmative defense,” however,
it alleged that

       Big Lagoon is not entitled to injunctive relief
       compelling Governor Arnold Schwarzenegger
12 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

       to negotiate a Compact authorizing class III
       gaming on land taken in trust for the
       Rancheria subsequent to October 17, 1988,
       because Big Lagoon is not eligible to be a
       beneficiary of a trust conveyance pursuant to
       25 U.S.C. § 465 and, thus, was never entitled
       to a beneficial interest in that land.

    After discovery, both Big Lagoon and the State moved for
summary judgment. In its memorandum of law, the State
argued, inter alia, that “[i]t is against the public interest to
allow gaming on land that . . . the United States unlawfully
acquired in trust for [Big Lagoon].” Citing Carcieri, it
argued that the eleven-acre parcel was “not ‘Indian lands’
eligible for gaming under IGRA” because Big Lagoon was
not a tribe under federal jurisdiction in 1934. As an
alternative to entering summary judgment in its favor, the
State asked the district court to deny or continue Big
Lagoon’s motion pending further discovery pursuant to
Federal Rule of Civil Procedure 56(f) (now Federal Rule of
Civil Procedure 56(d)).

    At oral argument on the motions, the district court opined
that the status of the eleven-acre parcel was an issue separate
from the State’s obligation to negotiate in good faith:
“Whether it’s in the public interest or not, it might not be
legal.” In addition, the State conceded that it was not
challenging the status of the nine-acre parcel.

    In a decision dated November 22, 2010, the district court
held that the State had not, as a matter of law, negotiated in
good faith. It addressed the status of the eleven-acre parcel
as both bearing on the good faith of the State’s negotiation
position and as a stand-alone issue. With respect to good
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 13

faith, the district court reasoned that the State could not rely
on Carcieri as evidence of its good faith because the case
post-dated the negotiations: “The State cannot establish that
it negotiated in good faith through a post hoc rationalization
of its actions.” As a stand-alone issue, it concluded that the
status of the eleven-acre parcel was irrelevant:

       [T]he State does not dispute that [Big Lagoon]
       is currently recognized by the federal
       government or that it has lands on which
       gaming activity could be conducted. On these
       facts, [Big Lagoon] is entitled to good faith
       negotiation with the State toward a gaming
       compact. That the status of the eleven-acre
       parcel may be in question does not change this
       result.

    The district court also addressed the State’s proposal for
revenue sharing. In so doing, it cited Rincon Band of Luiseño
Mission Indians v. Schwarzenegger, 602 F.3d 1019 (9th Cir.
2010), in which we held that “a state may, without acting in
bad faith, request revenue sharing if the revenue sharing
provision is (a) for uses ‘directly related to the operation of
gaming activities’ . . . , (b) consistent with the purposes of
IGRA, and (c) not ‘imposed’ because it is bargained for in
exchange for a ‘meaningful concession.’” Id. at 1033
(quoting In re Indian Gaming Related Cases, 331 F.3d 1094
(9th Cir. 2003)).” The district court extended the reasoning
of Rincon to the State’s proposal for environmental
mitigation. It concluded that both revenue sharing and
environmental mitigation could be appropriate topics of
negotiation under the circumstances described in Rincon, but
that the State’s nonnegotiable insistence on them amounted
to bad faith.
14 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    Implementing its rulings, the district court granted Big
Lagoon’s motion for summary judgment and denied the
State’s. It denied the State’s request for a Rule 56(f)
continuance because “the status of [Big Lagoon] and its
eleven-acre parcel has no bearing on whether the State
negotiated in good faith.” It ordered the parties to either
conclude a compact within 60 days, or to submit their
respective proposals to a court-appointed mediator. Both the
State and Big Lagoon timely appealed.3

    The district court initially declined to stay its order
pending appeal. Accordingly, the parties continued to
negotiate. Unable to reach an agreement, they submitted their
last, best proposals to a mediator. In its proposal, the State
agreed to forgo all revenue sharing if Big Lagoon would
agree to comply with specified environmental mitigation
measures. Big Lagoon, on the other hand, offered to prepare
a non-binding environmental impact report and to negotiate
towards an environmental mitigation agreement with the
appropriate agency. It also agreed to contribute revenue to
gaming-related trust funds.

    Apart from revenue sharing and environmental
mitigation, both proposals were substantially similar. In
particular, both identified the site of the casino as “within the
boundaries of the Tribe’s eligible Indian lands.” Although
that language does not specify the nine-acre or eleven-acre
parcel, nothing in the record suggests that Big Lagoon has
altered its plan to build the casino on the latter.



  3
   The district court’s order was reduced to judgment on February 1,
2012, thus remedying any possible concern that the notices of appeal were
premature. See Fed. R. App. P. 4(a)(2).
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 15

    The mediator found that “[i]n light of the stringent, broad,
and very substantial environmental and design requirements”
in the State’ proposal, “the compact that best comports with
the terms of IGRA, applicable federal law, and [the district
court’s order] is clearly [Big Lagoon’s].” The district court
then stayed further proceedings.

                               II

    We review the district court’s summary judgment de
novo, “and must determine whether, viewing the evidence in
the light most favorable to the nonmoving party, there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). The
State challenges only the district court’s legal conclusion that
Big Lagoon was entitled to good-faith negotiation under
IGRA, and we confine our review accordingly.

    In essence, the State argues that the district court erred in
compelling negotiations in the face of evidence that the
eleven-acre parcel does not qualify as “Indian lands” under
IGRA. It raises the issue principally as a question of whether
the district court should have given it more time to develop
the facts supporting that argument. Big Lagoon responds that
the district court did not abuse its discretion in that regard
because the State had ample time to conduct discovery.

    In our view, there is more at stake in this case than a
discovery dispute. We think it requires us to answer three
questions: Must a tribe have jurisdiction over “Indian lands”
to compel negotiations? Has the State waived the “Indian
lands” requirement? Is the eleven-acre parcel “Indian lands”?
We answer those questions in turn.
16 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

A. Must a tribe have jurisdiction over “Indian lands” to
   compel negotiations?

    In Guidiville Band of Pomo Indians v. NGV Gaming, Ltd,
531 F.3d 767 (9th Cir. 2008), we described IGRA as
requiring a tribe to “show that it has ‘Indian lands’ as defined
by IGRA at the time of filing [suit].” Id. at 778. We further
agreed with the Sixth Circuit’s statement that “it is clear that
the State does not have an obligation to negotiate with an
Indian tribe until the tribe has Indian lands.” Id. (quoting
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Engler, 304 F.3d 616, 618 (6th Cir. 2002)).

    Although Guidiville did not involve a claim for
negotiation under IGRA,4 we stand by its reasoning. We
hold, therefore, that a state need not negotiate with a tribe
under IGRA unless the tribe has jurisdiction over Indian
lands. As a corollary, jurisdiction over Indian lands is a
prerequisite to a suit to compel negotiation under IGRA.

    The district court concluded that this prerequisite was
satisfied because the State conceded that the nine-acre parcel
acquired by the BIA was Indian land. This concession, the
court continued, entitled Big Lagoon to good-faith
negotiations regardless of the status of the eleven-acre parcel.

    We disagree. The IGRA grants the right to request
negotiations to the tribe having jurisdiction over “the Indian
lands upon which a class III gaming activity is being
conducted, or is to be conducted.” 25 U.S.C. § 2710(d)(3)(A)


  4
     The issue in Guidiville was whether a contract violated a statute
requiring BIA approval of contracts encumbering Indian lands for more
than seven years. See 531 F.3d at 774–75 (citing 25 U.S.C. § 81(a)).
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 17

(emphasis added). The plain meaning of the highlighted
language is that a tribe may only request negotiations to
conduct gaming on a particular piece of Indian land over
which it has jurisdiction.

    The Sixth Circuit described the practical significance of
§ 2710(d)(3)(A) as follows:

       The purposes of this requirement appear to be
       to ensure that the casino will be inside the
       borders of the State, to give the State notice of
       where it will be, and to require the tribe to
       have a place for the casino that has been
       federally approved.

Engler, 304 F.3d at 618. Although the tribe’s ownership of
Indian lands was not at issue in Engler, the same common-
sense concerns support our reading of the statute. If the
statute required only that a tribe have jurisdiction over Indian
lands, whether or not those lands were to be the site of
gaming activity, a tribe with jurisdiction over Indian lands
could compel a state to negotiate for a compact to operate a
casino on any other parcel. But IGRA authorizes compacts
“governing gaming activities on the Indian lands of the
Indian tribe.” 25 U.S.C. § 2710(d)(3)(B) (emphasis added).

    In sum, the only reasonable construction of
§ 2710(d)(3)(A) is that a tribe’s right to request
negotiations—and to sue if the state does not negotiate in
good faith—depends on its having jurisdiction over Indians
lands on which it proposes to conduct class III gaming. Big
Lagoon’s insistence that gaming be conducted on the eleven-
acre parcel tells us that it is the status of that parcel that
18 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

matters. The status of the nine-acre parcel is, as the State
agreed at oral argument, “an irrelevancy.”

B. Has the State waived the “Indian lands” requirement?

    Before addressing whether the State has waived the
“Indian lands” requirement, we briefly respond to the State’s
contention that a lack of Indian lands deprives the district
court of subject-matter jurisdiction to compel negotiations
under IGRA. An objection to subject-matter jurisdiction
cannot be waived. See Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006).

     A district court has jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. A claim depending on a
particular construction of federal law falls within this federal-
question jurisdiction, even if the court ultimately rejects the
plaintiff’s construction. See Bell v. Hood, 327 U.S. 678, 685
(1946) (“[T]he right of the petitioners to recover under their
complaint will be sustained if the Constitution and laws of the
United States are given one construction and will be defeated
if they are given another. For this reason the district court has
jurisdiction.”). A district court lacks jurisdiction over a
federal-question claim only if “the alleged claim under the
Constitution or federal statutes clearly appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction or [if] such a claim is wholly insubstantial and
frivolous.” Id. at 682–83.

    A claim for negotiations under IGRA, by definition, arises
under a law of the United States. Big Lagoon’s claim is
neither immaterial nor frivolous. That the parties dispute the
proper construction of IGRA does not transform their dispute
     BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 19

into a question of subject-matter jurisdiction. In addition, we
infer from IGRA’s structure that Congress did not intend the
“Indian lands” requirement to be an implicit restriction on the
district court’s general federal-question jurisdiction. See
Arbaugh, 546 U.S. at 515 (“[W]hen Congress does not rank
a statutory limitation . . . as jurisdictional, courts should treat
the restriction as nonjurisdictional in character.”) (footnote
and citation omitted). Thus, we conclude that a state may
waive the requirement.5

    As Big Lagoon points out, the State engaged in
negotiations for almost ten years without ever challenging the
status of the tribe’s lands. What a state may voluntarily do,
however, is different than what it can be compelled to do
under IGRA. In the Barstow Compact, for example, Big
Lagoon agreed to request that the BIA take the proposed site
into trust. Yet under our decision in Guidiville, it could not
have compelled the State to negotiate over that site. See
531 F.3d at 778 (“[T]he Indian tribe must show that it has
‘Indian lands’ as defined by IGRA at the time of filing.”).

    Big Lagoon further argues that the State conceded the
point now on appeal in its answer, which was filed two
months after Carcieri was decided. In our view, however, the
answer manifests the State’s awareness of Carcieri and intent
to rely on it. The State admitted that “the United States

 5
   In contrast to the eleven-acre parcel, the State has explicitly conceded
that the nine-acre parcel is Indian land. We hold the State to that
concession. Indeed, we would do so even if the statutory limitation were
jurisdictional because “it is well-settled that one may stipulate to facts
from which jurisdiction may be inferred.” Verzosa v. Merrill Lynch,
Price, Fenner & Smith, Inc., 589 F.2d 974, 977 (9th Cir. 1978) (quoting
De La Maza v. United States, 215 F.2d 138, 140 (9th Cir. 1954)). As we
have held, however, the status of the nine-acre parcel is not dispositive.
20 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

considers [Big Lagoon] to be the trust beneficiary of certain
lands the federal government owns in Humboldt County,
California.” Any doubt that the State chose its words
carefully is dispelled by its allegation that “Big Lagoon is not
eligible to be a beneficiary of a trust conveyance pursuant to
25 U.S.C. § 465.” While the State inartfully characterized the
allegation as an affirmative defense, it is a clear invocation of
Carcieri.

    The State continued to advance its argument at the
summary judgment stage, devoting several pages to
explaining exactly why the BIA’s 1994 trust acquisition was
unlawful under Carcieri. To be sure, the argument was cast
as bearing on the State’s good faith during negotiations; like
the district court, we fail to see the connection. Nevertheless,
the district court obviously understood the State’s argument
as challenging Big Lagoon’s right to negotiate for a casino on
the eleven-acre parcel, and addressed it as such in its written
decision. Thus, the issue was preserved for our review. See
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8
(9th Cir. 2010) (rule against raising issues for first time on
appeal “does not apply where the district court nevertheless
addressed the merits of the issue” (citation and internal
quotation marks omitted)).

C. Is the eleven-acre parcel “Indian lands”?

    We thus come to the heart of our inquiry: Is the eleven-
acre parcel “Indian lands”? Our dissenting colleague reasons
that we are compelled to answer in the affirmative based on
our statement in Guidiville that Congress’s use of the present-
tense verb is to define “Indian lands” requires us to assess the
status of land in question at the time of the contract.
See 531 F.3d at 775. We agree that the statement informs our
       BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 21

conclusion that, to demand negotiation under IGRA, the site
of the proposed gaming must be “Indian lands” at the time of
the demand. See supra Part II.A. However, its usefulness to
us ends there.

    In Guidiville, we held that land to be entrusted in the
future did not qualify as “Indian lands,” see 531 F.3d at 775.
Here, by contrast, we are called upon to decide whether a past
entrustment qualifies if it turns out to have been invalid.
Guidiville does not speak to that issue. Nor does Carcieri,
which involved a contemporaneous challenge to an
entrustment under the Administrative Procedure Act
(“APA”). See 555 U.S. at 385.6 We must look elsewhere for
guidance.

      We find it in the well-worn rule that “administrative
actions taken in violation of statutory authorization or
requirement are of no effect.” City of Santa Clara v. Andrus,
572 F.2d 660, 677 (9th Cir. 1978) (citing, inter alia, Utah
Power & Light Co. v. United States, 243 U.S. 389, 392
(1917)). Other courts have used different language, see, e.g.,
Employers Ins. of Wassau v. Browner, 52 F.3d 656, 665 (7th
Cir. 1995) (unauthorized agency action may be “disregard[ed]
. . . as void, a nullity”), but the upshot is the same: The law
treats an unauthorized agency action as if it never existed.

    Big Lagoon and the dissent argue that a timely suit under
the APA is the sole means by which to challenge agency
action as unauthorized. The dissent cites Wind River Mining
Corp. v. United States, 946 F.2d 710 (9th Cir. 1991), in which
we held that the catchall six-year statute of limitations applied
to APA actions. See id. at 712–13 (citing 28 U.S.C.

 6
     Thus, we do not imply that Carcieri overruled Guidiville.
22 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

§ 2401(a)). We then explained, however, that different types
of challenges to agency actions raise different concerns:

       If a person wishes to challenge a mere
       procedural violation in the adoption of a
       regulation or other agency action, the
       challenge must be brought within six years of
       the decision. . . . The grounds for such
       challenges will usually be apparent to any
       interested citizen within a six-year period
       following promulgation of the decision . . . .
       The government’s interest in finality
       outweighs a late-comer’s desire to protest the
       agency’s action as a matter of policy or
       procedure.

       If, however, a challenger contests the
       substance of an agency decision as exceeding
       constitutional or statutory authority, the
       challenger may do so later than six years
       following the decision by filing a complaint
       for review of the adverse application of the
       decision to the particular challenger. Such
       challenges, by their nature, will often require
       a more “interested” person than generally will
       be found in the public at large. . . . The
       government should not be permitted to avoid
       all challenges to its actions, even if ultra
       vires, simply because the agency took the
       action long before anyone discovered the true
       state of affairs.

Id. at 715. Although Wind River spoke in terms of a party’s
right to affirmatively challenge unauthorized agency action,
     BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 23

the D.C. Circuit—whose approach we adopted—has made it
clear that the distinction is “equally applicable to defensive
attacks in enforcement proceedings.” N.L.R.B. Union v.
Federal Labor Relations Auth., 834 F.2d 191, 196 n.6 (D.C.
Cir. 1987). While we recognize that this case does not
involve an enforcement proceeding in the usual sense, we see
no reason to treat a third party’s enforcement of a right
stemming from agency action differently from enforcement
by the agency itself.

    The concerns we raised in Wind River are present here.
The 1994 entrustment, standing alone, might not have caused
the State any concern. Cf. North County Community
Alliance, Inc. v. Salazar, 573 F.3d 738, 743 (9th Cir. 2009).
One might even question whether the State had standing at
that time to challenge the BIA’s action under the APA. See
5 U.S.C. § 702 (“A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to
judicial review thereof.”).7

     It is true—at least in this circuit—that a challenge to
unauthorized agency action is still subject to a six-year time
limit. Cf. Schiller v. Tower Semiconductor Ltd., 449 F.3d
286, 293 (2d Cir. 2006) (“The D.C. Circuit has explained that
. . . substantive challenges to agency action—for example,
claims that agency action is unconstitutional, that it exceeds
the scope of the agency’s substantive authority, or that it is
premised on an erroneous interpretation of a statutory


 7
    Contrast Carcieri, in which the State of Rhode Island was aware that
the entrustment was proposed by the Narragansett Indian Tribe with the
express purpose of “free[ing] itself from compliance with local
regulations.” 555 U.S. at 385.
24 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

term—have no time bars . . . .”). In Wind River, we said that
the time runs from “the agency’s application of the disputed
decision to the challenger.” 946 F.2d at 716. Once again
bearing in mind that there is no direct agency involvement in
this case, we think the most apt analogue to
application/enforcement of the 1994 entrustment is Big
Lagoon’s suit to compel negotiations. As noted above, see
supra Part II.B., the State promptly challenged the
entrustment in response to that suit. We must, therefore,
address its challenge on the merits.

   As noted, IGRA defines “Indian lands” as

       (A) all lands within the limits of any Indian
       reservation; and

       (B) any lands title to which is . . . held in trust
       by the United States for the benefit of any
       Indian tribe or individual . . . and over which
       an Indian tribe exercises governmental power.

25 U.S.C. § 2703(4).

    The term “reservation” is not further defined.
Historically, it referred to the land “reserved” from a cession
of lands from a tribe to the United States. See Felix S. Cohen,
Cohen’s Handbook of Federal Indian Law § 3.04[2][c][ii]
(2005 ed.). Beginning in the 1850s, it came to include public
lands “reserved” by the federal government for Indian use.
See id. In other words, land is part of a reservation if it was
(1) withheld from a cession of tribal lands or (2) acquired by
the federal government for Indian use.
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 25

     There are, we suppose, cases in which land held in trust
for a tribe is, for some reason, not part of the tribe’s
“reservation.” But whether we call the eleven-acre parcel
part of Big Lagoon’s reservation or not, its status
unquestionably stems from the BIA’s acquisition of the parcel
in trust for the tribe.

     Once again, under Carcieri the federal government’s
authority to acquire land for Indians is limited to acquisitions
for tribes that “were under the federal jurisdiction of the
United States when the IRA was enacted in 1934.” 555 U.S.
at 395. The Court did not, however, define what it means for
a tribe to be “under federal jurisdiction.” See id. (“None of
the parties or amici . . . has argued that the Tribe was under
federal jurisdiction in 1934.”).

    Neither party squarely addresses how we should go about
deciding whether Big Lagoon was a tribe under federal
jurisdiction in 1934. The State says that further discovery
will shed light on the issue, but does not explain how. Big
Lagoon argues that it has been a federally recognized tribe
since at least the time of the compact negotiations, but we are
concerned with its status in 1934, not 1999.

    A BIA memorandum tells us that a “helpful . . . starting
point” is a list of 258 tribes compiled shortly after the IRA
was enacted, but that the list is “not the only or finally
determinative source.” See also Carcieri, 555 U.S. at 298
(Breyer, J., concurring) (“[W]e . . . know that [the BIA]
wrongly left certain tribes off the list.”). Big Lagoon’s
undisputed absence from the list, combined with other facts
in the record, leads us to the conclusion that the tribe was not
under federal jurisdiction in 1934.
26 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    Here is what we know from the record: The BIA’s
acquisition of land in 1918 was for Charley and his family.
All were members of the Lower Klamath Tribe, today known
as the Yurok Tribe. The BIA confirmed in 1968 that the
1918 acquisition was “not set aside for any specific tribe,
band or group of Indians.”

   Even if the 1918 acquisition amounted to recognition of
Charley and his family as a distinct tribal group, Big Lagoon
does not trace its roots to that group. Membership in Big
Lagoon is, as noted, based on descent from Thomas Williams,
the nephew, by marriage, of Charley’s son Robert.
According to the BIA, Williams and his family were “not
formally organized” in 1968.

    We agree with the State that there is much confusion in
this narrative. Why, for example, did the BIA conditionally
approve the dissolution and distribution of rancheria lands if
the lands did not constitute a rancheria in the first place? And
how did the group go from “not formally organized” in 1968
to an “Indian Tribal Entit[y] That Ha[s] a Government-to-
government Relationship With the United States” in 1979?

     These questions are thorny indeed, and perhaps beyond
our competence to answer. See Western Shoshone Bus.
Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993)
(holding that tribe’s absence from BIA’s list of recognized
tribal entities “is dispositive”). But they do not detract from
one undisputed fact: There was no family or other group on
what is now the Big Lagoon Rancheria in 1934. The central
purpose of the IRA was to give “[a]ny Indian tribe, or tribes,
residing on the same reservation . . . the right to organize for
its common welfare.” Ch. 576, § 16, 48 Stat. 987 (codified,
as amended, at 25 U.S.C. § 476). Since no one resided on
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 27

what is now the rancheria, there was no group to organize.
The absence of Big Lagoon from the 258-tribe list was not an
intentional or inadvertent omission; it was a reflection of
reality.

     As we have held, a predicate to the right to request
negotiations under the IGRA is jurisdiction over the Indian
lands upon which a tribe proposes to conduct class III
gaming. IGRA defines “Indian lands” as including lands held
in trust for a tribe. Carcieri holds that the BIA’s authority to
take lands in trust for a tribe extends only to tribes under
federal jurisdiction in 1934. Thus, the effect of our
conclusion that Big Lagoon is not such a tribe is that Big
Lagoon cannot demand negotiations to conduct gaming on
the eleven-acre parcel, and cannot sue to compel negotiations
if the State fails to negotiate in good faith.

                               III

    We appreciate that Big Lagoon has spent an enormous
amount of time attempting to negotiate for a casino on the
eleven-acre parcel. And we do not doubt that the State’s
negotiation position was defined, at least in part, by its belief
that the casino should be sited elsewhere. But Carcieri,
however fortuitously, gives the State the right to refuse to
28 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

negotiate the siting issue.8 Accordingly, the district court’s
order compelling negotiations is

    REVERSED and REMANDED with instructions to
enter judgment for the State.9



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the conclusion that the eleven-
acre parcel held in trust by the United States for the benefit of
Big Lagoon Rancheria does not constitute “Indian lands”
under the Indian Gaming Regulatory Act (IGRA).

    For purposes of gaming matters, IGRA defines “Indian
lands” as:

         (A) all lands within the limits of any Indian
         reservation; and




   8
      We express no opinion as to whether Big Lagoon’s conceded
jurisdiction over the nine-acre parcel would entitle it to request good-faith
negotiations—and to bring suit to compel such negotiations, if
necessary—for a casino on that site. Nor need we address the validity of
the 1994 entrustment in any other respect than its effect on the parties’
respective rights under IGRA. Accordingly, we deny the State’s request
for remand to implead the BIA as part of a wholesale challenge to the
entrustment.
  9
    Our disposition makes it unnecessary to address Big Lagoon’s cross-
appeal.
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 29

        (B) any lands title to which is . . . held in trust
        by the United States for the benefit of any
        Indian tribe or individual . . .

25 U.S.C. § 2703(4) (emphasis added).

    Use of the verb “is” in the definition of “Indian lands”
embodies context that is important to the resolution of this
case. In Guidiville Band of Pomo Indians v. NGV Gaming,
531 F.3d 767, 769 (9th Cir. 2008), we were similarly tasked
with determining the meaning of “Indian lands” as used in
25 U.S.C. § 81. That statute addresses contracts with Indian
tribes and defines “Indian lands” as “lands the title to which
is held by the United States in trust for an Indian tribe . . .”
25 U.S.C. § 81(a)(1) (emphasis added).

    Applying statutory analysis to § 81, we concluded that the
“statute’s unequivocal present tense use of the word ‘is’ does
a tremendous amount of the legwork” in discerning the
meaning of “Indian lands.” Id. at 774. We determined that
use of the present tense in § 81(a) “unambiguously
prescribe[d]” that the real estate must be held by the United
States in trust at the time of the contract. Id. at 775. We
noted that Congress’ use of verb tense is significant to the
process of statutory construction. See id. at 776. We also
observed that Congress’ use of the present tense to define
Indian lands unambiguously provided that we look to the
present, not the past, to determine if the land is held in trust.
See id. at 770 (“[W]e conclude that the word ‘is’ means just
that (in the most basic, present-tense sense of the word) . . .”).

    We cross-referenced the statute at issue in this case as
defining “Indian lands” in like fashion. Id. at 778 (“[S]ee
Section 2703(4)(B), defining ‘Indian lands’ in part as ‘any
30 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

lands title to which is held in trust by the United States . . .)”
(emphasis in Guidiville).

    I am not persuaded that Carcieri v. Salazar, 555 U.S. 379
(2009), overruled our decision in Guidiville defining “Indian
lands.” In Carcieri, the United States Supreme Court
interpreted 25 U.S.C. § 479, which defines “Indian” generally
under the Indian Reorganization Act. See Carcieri, 555 U.S.
at 381–82. That statute defines “Indian” as including “all
persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction . . .”
25 U.S.C. § 479. The Supreme Court interpreted the phrase
“now under Federal jurisdiction” in the course of resolving a
challenge to the Secretary of the Interior’s plan to accept a
parcel of land in trust for a particular Indian tribe. Id. at
381–82. In that context, and following a timely challenge to
the Secretary’s decision under the Administrative Procedure
Act, the Supreme Court ruled that the Secretary had no
authority to take land into trust for a tribe unless that tribe
was under federal jurisdiction when the Indian
Reorganization Act was enacted in 1934. See id. at 382, 391.

    Importantly, Carcieri says nothing about a collateral
challenge to the legitimacy of a designation of trust property
outside the parameters of the Administrative Procedure Act.
As we noted in Guidiville, 531 F.3d at 777, 25 U.S.C. § 465,
together with its implementing regulations, details an
extensive process that precedes the designation of lands as
trust property. This process includes “giv[ing] state and local
governments the opportunity to object to the tribe’s
application . . .” In addition, once the final decision is made
to designate lands as trust property, any objector may
challenge the decision administratively and in the federal
courts. Id.; see also Carcieri, 555 U.S. at 385 (noting that
    BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA 31

objectors sought review under the Administrative Procedure
Act of the decision designating lands as trust property).

     It is undisputed that until this case, almost eighteen years
after the eleven-acre parcel was acquired in trust for Big
Lagoon Rancheria, the State of California has not challenged
the legality of the trust designation, despite the administrative
and judicial avenues available for just that purpose. Surely it
cannot be the case that the State of California can launch a
collateral attack upon the designation of trust lands years after
its administrative and legal remedies have expired. See, e.g.,
Wind River Mining Corp. v. United States, 946 F.2d 710, 716
(9th Cir. 1991) (holding that a challenge under the
Administrative Procedure Act must be brought within six
years of the contested agency action). Carcieri certainly does
not come anywhere close to such a holding. Indeed, we
cannot say how the Supreme Court would have ruled if the
challenger in Carcieri had not filed a timely challenge under
the Administrative Procedure Act or had sued under a
different statute entirely. For that reason, we must adhere to
our ruling in Guidiville. Because Carcieri does not directly
overrule Guidiville, we cannot rely on Carcieri to negate our
controlling precedent that directly answers the issue before
us. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)
(en banc). As we have held, “as long as we can apply our
prior circuit precedent without running afoul of the
intervening authority, we must do so.” Lair v. Bullock,
697 F.3d 1200, 1207 (9th Cir. 2012) (citation and internal
quotation marks omitted). Even if intervening authority
creates “some tension” with our precedent or “cast[s] doubt”
on our precedent, we must still adhere to our precedent. Id.
Indeed, unless the intervening authority meets the “high
standard” of being “clearly inconsistent” with our precedent,
we cannot depart from our authority. Id. (citations omitted).
32 BIG LAGOON RANCHERIA V. STATE OF CALIFORNIA

    Because Carcieri in no wise overruled our prior
interpretation of 25 U.S.C. § 2703, purported to address
IGRA in any way, or considered an untimely challenge to the
designation of trust lands, it is not inconsistent with our
precedent, and we are bound by our ruling in Guidiville that
Indian lands for the purpose of IGRA includes lands held in
trust for a tribe at the time of the gaming contract. See
Guidiville, 531 F.3d at 774–75.

    In my view, our decision in Guidiville forecloses the
State’s challenge to the legality of the trust. I would affirm
the district court’s entry of summary judgment in favor of Big
Lagoon Rancheria and its denial of the State’s motion for a
continuance pursuant to Rule 56(f) of the Federal Rules of
Civil Procedure.
