Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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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.
 

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Congress recently passed an energy bill that creates an incentive for Indian tribes to pursue renewable energy programs. H.R. 2454 sets forth mandates for increasing energy efficiency by supporting the use of renewable energy and limiting emissions of carbon dioxide and other greenhouse gases. To support the overarching goal of reducing the greenhouse gas emissions that are behind climate change, H.R. 2454 creates a system of emission allowances, or limits, which will be distributed among the States as well as reserved for Indian tribes. The bill dedicates 0.5 percent of allowances for Indian renewable energy and energy efficiency programs, and divides the remaining allowances among the States. The allowances reserved for tribes will be distributed on a competitive basis for cost-effective energy efficiency programs that impact natural gas, propane, and home heating oil consumers, as well as for programs that promote the use of technology to generate electricity from renewable sources.

The competition for allowances will be judged according to objective criteria and include reporting requirements for tribes that receive allowances. The House approved the bill on June 26, and as of July 7 it is on the Senate’s legislative calendar. If approved, the Act could create a stronger market for renewable energy development on tribal land.
 

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In a June 19, 2009 ruling from the United States District Court, Eastern District of Washington, in Pakootas v. Teck Cominco, Judge Lonny Suko held that Indian Tribes were not subject to CERCLA liability because they are not “persons” as defined under the statute.

In this action, defendant Teck Cominco Metals Ltd. (“Teck”), a Canadian corporation, brought a counterclaim against plaintiff Confederate Tribes Of The Colville Reservation (“Tribes”) for its alleged contribution of hazardous substances into Lake Roosevelt in Coulee Dam, Washington. The Tribes moved to dismiss the counterclaim, contending that they were not “person[s]” subject to liability under CERCLA, 42 U.S.C. Section 9607(a). This section imposes liability upon “person[s]” for costs incurred in responding to a release of hazardous substances. “Person[s]” is defined in Section 9601(21) as an “individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United State Government, State, municipality, commission, political subdivision of a State, or any interstate body.”

In considering the arguments, the Court ultimately held that CERCLA’s definition of “person” is plain: it does not include “Indian tribes.” As the Court noted, CERCLA has existed for over 30 years, and Congress has had “adequate opportunity” to specifically include “Indian tribes” among the entities covered by the term “person.” The Court further noted that such an interpretation would not lead to an “absurd result.” While Teck argued that Tribes could “operate a dump for the disposal of hazardous substances, with complete impunity under CERCLA,” the Court stated that such a conclusion was of “dubious validity.” A tribe’s “disposal activities,” according to the Court, were otherwise subject to regulation under other federal environmental statutes, such as the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA).