Ninth Circuit rules for Spokane Tribe

AIRWAY HEIGHTS — Let the expansion continue as planned for the Spokane Tribe.

Buoyed by a major ruling June 1 from the Ninth Circuit Court of Appeals in San Francisco, the Spokane Tribe of Indians appear to have a clear road ahead to operate its casino in Airway Heights which is now constructing a significant addition to its facility.

The decision affirmed a Washington federal judge’s ruling that the U.S. Department of the Interior properly approved a Spokane Tribe casino under the Indian Gaming Regulatory Act (IGRA). It rejected the Kalispel Tribe’s claims that the agency’s approval breached its trust duties in allowing a competing gaming operation 2 miles away.

The Spokane Tribe was contacted for a statement but had not replied by deadline time.

“The Kalispel Tribe of Indians is deeply disappointed, yet not surprised in the U.S. Court of Appeals Ninth Circuit ruling in favor of the Department of Interior (DOI),” Afton Servas, Public Relations Coordinator for the Kalispel Tribe wrote in an email.

Servas went on to say that throughout the multi-year long process, this lawsuit was never an intertribal dispute.

“It was never about any objection to the Spokane Tribe’s ability to operate gaming that would promote tribal economic development and self-governance,” but rather to the Kalispel’s “duty to its people to stand for what is right and hold the DOI to its trust responsibility.”

Servas’ statement went on to say the Kalispels believe belief that the DOI ignored the core of the detriment argument and violated the Indian Gaming Regulatory Act (IGRA).

The tribe’s attorney, Scott Wheat, commenting on Law360 said, “The tribe believes the Ninth Circuit panel ‘got it right’ with its affirmative opinion. The opinion brings the Ninth Circuit and the D.C. Circuit into harmony regarding the interpretation of Section 20 of IGRA.”

Of major concern in the lead up to the December 2017 opening of the Spokane casino on the doorstep of Fairchild Air Force Base was what effect it might have of future operations of the base. But the three-judges ruled that the lower court correctly considered the Department of the Interior’s assessment of the impact to one of the USAF’s major refueling operations on the West Coast.

In its case, as presented by Law360, the Kalispel’s claimed that it will lose more than $30 million in income and suffer a blow to its self-sufficiency for years now that the Spokane Tribe’s casino is in operation. The judges’ opinion said that even with the projected income loss, the tribe would still be able to cover services for its members.

“Even assuming Kalispel’s revenue projections were accurate, the Secretary concluded that the projected decrease to Kalispel’s gaming revenues ‘would not prohibit the Kalispel tribal government from providing essential services and facilities to its membership,’” according to the opinion.

Wheat went on to say, ““Overall, it’s very good precedent for Indian Country because it provides more clarity in this area of law,” he said. “The panel’s overall analysis rejected Kalispel’s argument that if a nearby tribe suffers loss, you must categorically find a detriment to the community. The panel said, ‘no, it’s not a detriment to any single member of the community.’ The analysis weighed the overall benefit to the community.”

As reported by Law360, the DOI filed a brief in August 2020 claiming that it had “reasonably determined that gaming on Spokane’s Airway Heights land would not be detrimental to the surrounding community,” and that it approved the Spokane Tribe’s casino was consistent with the Administrative Procedure Act and Section 20 of IGRA, which governs off-reservation gaming.

The Kalispel Tribe acquired 40 acres of land in the 1990s from Spokane Raceway Park operator, Orville Moe. They have gone on to operate a successful casino and resort now in its 20th year of operation.

One of the points of contention for decades has been this tribal trust land on which the Kalispels have established their remote base is where the Spokanes have lived for centuries, but is nearly 75 miles from the Usk, Washington reservation of the tribe.

The Spokane Tribe has said that the existence of Northern Quest has “siphoned” business from the Spokane Tribe’s two remote casinos and caused it to eliminate critical financial and social services for its members.”

Paul Delaney is a retired Free Press Publishing reporter and can be reached at [email protected].