A recent Law 360 story by Dorothy Atkins, “9th Circ. Won’t Award $1.1M Atty Fee in Tribes’ Gambling Case,” reports that the Ninth Circuit rejected a request by five Native American tribes for $1.1 million in attorney fees for recently winning a federal Indian Gaming Regulatory Act suit against California for the state's bad faith negotiation tactics, finding that the federal statute does not authorize fee-shifting.  In a 14-page opinion written by U.S. Circuit Judge Daniel A. Bress, a three-judge panel rejected the tribes' argument that their suit, which only asserted federal claims under the IGRA, implicates "substantial and significant issues of state law" and entitles them to fees.

"We hold that because the plaintiffs prevailed on a federal cause of action, they are entitled to attorneys' fees only if federal law allows them," the opinion says.  "Because it does not, we deny the tribes' fee request."  The opinion noted that although the tribes "creatively" argue that the case is "highly unusual" because state law was supposedly "central and essential" to win its dispute, the tribes aren't entitled to fees because they only asserted and prevailed on a federal claim.

The panel additionally rejected the tribes' arguments that their position is supported by the Ninth Circuit's 2018 decision in Independent Living Center of Southern California Inc. v. Kent, which awarded attorney fees notwithstanding the fact that the action was not based on a state law cause of action.  The opinion pointed out that the facts of Kent were "somewhat knotty" and distinct from this litigation.

"Kent did not suggest that the prevalence of a state law backdrop could somehow justify applying a state law attorneys' fees provision to a purely federal claim," the opinion says.  "It did not create some kind of 'exception' to the usual rules, as the tribes maintain."

The Ninth Circuit's decision is the latest development in a lawsuit that was filed in January 2019 by the Chicken Ranch Rancheria, Chemehuevi Indian Tribe, Blue Lake Rancheria, Hopland Band of Pomo Indians and Robinson Rancheria, claiming that the state of California had acted in bad faith when the state allegedly insisted that the tribes negotiate unrelated topics for their soon-to-expire gambling agreements, which are required to operate games.

In the wake of that decision, in September, tribal leaders sought to recoup $1.1 million they estimated spending on the litigation, noting that the attorney fee estimate was based on reduced rates and reflected a proper "lodestar" amount, or the number of hours reasonably spent on the litigation and a reasonable hourly rate for the attorneys.  That calculation, on the high end, proposes $980 per hour for Lester J. Marston of Rapport and Marston, which represents all the tribes except the Blue Lake Rancheria.  At the low end, it proposes $300 per hour for Marston's son, a law clerk at the same firm, the tribes argued.

But California fired back in October, arguing that the tribes are ineligible to recover fees under the IGRA, because the federal statute contains no provision for recovering such expenses.  Even if the tribes were eligible to recoup such expenses, the state argued that it is immune from furnishing those funds under the 11th Amendment of the U.S. Constitution because it never waived its sovereign immunity in the litigation.

In the opinion, the panel concluded that the tribes aren't entitled to fees but also noted that the prior panel decision also found that California explicitly consented to the federal court's jurisdiction over the dispute, and therefore the state can't now invoke its sovereign immunity defense in avoiding fees if they had been allowed under the IGRA.