From time to time, the National Indian Gaming Commission’s Office of General Counsel is asked to give its opinion on certain discrete legal questions from the gaming industry or other interested parties. The overwhelming majority of these requests seek the General Counsel’s legal opinion that an agreement is not a management contract requiring the approval of the NIGC Chair and does not violate Indian Gaming Regulatory Act’s sole proprietary interest mandate. Such legal opinions are more commonly referred to as “declination letters.” Less frequently, the OGC also receives requests for legal opinions on other matters, such as whether certain lands are Indian lands eligible for gaming under IGRA or whether a specific game is considered Class II or Class III gaming.
As a general matter, legal opinions are issued by the OGC as a courtesy, and neither IGRA nor NIGC regulations require the OGC to issue a legal opinion on any matter. Further, the legal opinion of the General Counsel is not agency action and the issuance of a legal opinion is a voluntary process, both for the party making the request and the OGC. That being said, the OGC offers the following suggestions to help submitters through the process of obtaining an opinion.