Ninth Circuit: NIGC may approve a non-site-specific Ordinance to construct a casino
The Ninth Circuit held last month that IGRA does not require the National Indian Gaming Commission (NIGC) to determine whether a gaming ordinance contemplates a gaming operation on “Indian lands” prior to (1) approving an ordinance that does not specify a site for the casino or (2) the tribe’s licensure and construction of a casino. North County Community Alliance v. Salazar (No. 07-36048). In essence, the Ninth Circuit determined that enforcement of the Indian lands requirement of IGRA may only be undertaken by the NIGC and states – not private citizens like the North County Community Alliance (“Alliance”).
In North County, the Nooksack Indian Tribe submitted an ordinance to the National Indian Gaming Commission (NIGC) in 1993 that did not identify any specific site where its casino would be built. In 2006, the tribe licensed and began constructing their casino pursuant to the ordinance. The casino was eventually built on a twenty-acre parcel owned by the Nooksacks near their reservation.
A group of local residents living near the Nooksack casino formed the Alliance and filed suit against the NIGC and the Department of Interior based on the agencies’ failure to make an Indian lands determination prior to approving the Nooksacks’ ordinance in 1993. That is, the Alliance believed the NIGC violated IGRA by approving an ordinance that did not indicate that the casino would be constructed on specific Indian land. The Alliance argued that it was “implicit in IGRA” that the NIGC make such a determination before construction.
Judge William Fletcher, writing for the majority, held that the NIGC does not have to make a determination as to the character of “Indian lands” because IGRA does not require a tribe to specify on which site it will build a casino in its gaming ordinance. Requiring the NIGC to make an Indian lands determination as part of its approval of an ordinance would be “absurdly impractical” since in “effect, the NIGC would be required to make an Indian lands determination for all lands that are owned, or could be owned in the future, by the tribe and on which the tribe might wish to conduct gaming.” Practically, if the NIGC or a state determines that a tribe’s casino is not on Indian lands, they may take enforcement actions; IGRA authorizes tribal gaming on Indian lands only.
On a related point, the Alliance further claimed that the NIGC’s failure to make an Indian lands determination constituted a “major Federal action” under the National Environment Policy Act (“NEPA”), and thus required preparation of an Environmental Impact Statement (EIS). The Ninth Circuit addressed and disposed of this argument, noting that there “has been no major federal action in this case” and therefore NEPA EIS requirements do not apply.
