9th Circuit backs NIGC on Nooksack Tribe casino

Friday, July 17, 2009  

The 9th Circuit Court of Appeals on Thursday rejected a challenge to the federal government's approval of a gaming ordinance for the Nooksack Tribe of Washington.

A group called North County Community Alliance claimed the National Indian Gaming Commission shouldn't have approved the ordinance in 1993 because it was non-site specific. The group also said the NIGC failed to look into the issue when the tribe began construction of the Nooksack Northwood Casino in 2006.

The 9th Circuit first ruled that the group could challenge the NIGC's approval of the ordinance even though the standard six-year statute of limitations expired in 2000. The court said the group had no idea, in 1993, that the tribe was going to build a casino at the site in question.

But moving to the merits, the 9th Circuit said nothing in the Indian Gaming Regulatory Act requires the NIGC to determine whether a tribal gaming ordinance mentions a specific site. "There is no explicit requirement in IGRA that, as a precondition to the NIGC’s approval, a proposed ordinance identify the specific sites on which the proposed gaming is to take place," the court wrote.

"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," the court added.

On a second issue, the court said NIGC was not required to investigate the casino site once the tribe started construction. The court also said it couldn't review whether the site qualifies as "Indian lands" under IGRA because that issue was not in the group's lawsuit.

Judge Ronald M. Gould dissented on the NIGC's duties. He said Congress never intended Indian lands determinations to be left up to the NIGC's discretion.

"How could the NIGC, the agency tasked with regulating and protecting gaming on Indian lands effectuate this intent without determining whether proposed gaming was on Indian lands and thus within its jurisdiction?" Gould wrote.

The casino opened in November 2007.

9th Circuit Decision:
North County Community Alliance v. Salazar (July 16, 2009)

District Court Decision:
North County Community Alliance v. Kempthorne (November 16, 2007)