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July 29, 2021

Gabe Aguilar

President

Mescalero Apache Tribe

P.O. Box 227 

101 Central Avenue 

Mescalero, New Mexico 88340

Re: Review of Consulting Agreement between the Casino Apache Travel Center and 

American Wagering, Inc.

Dear President Aguilar: 

This letter responds to your March 20, 2020 request for the National Indian Gaming 

Commission’s Office of General Counsel to review an agreement between the Casino Apache 

Travel Center, an enterprise wholly owned by the Mescalero Apache Tribe, and American 

Wagering, Inc. Specifically, you have asked for my opinion whether the agreement is a 

management contract requiring the NIGC Chairman’s approval under the Indian Gaming 

Regulatory Act. You also asked for my opinion whether the agreement violates IGRA’s 

requirement that the Tribe have the sole proprietary interest in its gaming activity. 

In my review, I considered the following submissions: 

• Consulting Agreement, undated, 15 pages (version May 24, 2021) 

o Exhibit A – Consultant Tasks 

o Exhibit B – Tribe Responsibilities

• Mescalero Apache Casino 2021 Sportsbook Revenue and Expense Forecast 

The Consulting Agreement was unexecuted but represented to be in substantially final form. 

After careful review, it is my opinion that the Consulting Agreement is not a management 

contract and does not require the approval of the NIGC Chairman. It is also my opinion that the 

Consulting Agreement does not violate IGRA’s sole proprietary interest requirement. 

Background: 

 The Tribe operates three casinos in New Mexico. In 2019, the Tribe began offering sports 

betting at one of the casinos, the Inn of the Mountain Gods Casino & Resort, using sports betting 

services provided by American Wagering. The Tribe also operates the Casino Apache Travel 

Center, a Class II and III gaming facility near the Inn of the Mountain Gods. The Tribe intends to 


Letter to President Aguilar, Mescalero Apache Tribe

Review of Consulting Agreement between the Casino Apache Travel Center and American 

Wagering, Inc.

July 29, 2021 

Page 4 of 8 

Consultant is engaged hereunder solely in a consulting and advisory capacity. 

Nothing contained in this Agreement permits or authorizes, nor shall anything be 

construed to permit or to authorize, Consultant to: (i) operate or manage any gaming 

conducted at the Casino or the Sports Betting Facility or to establish the costs of 

operating or administering the same; (ii) hire, terminate or determine wages, 

salaries or benefits for any employee of Casino Apache or any other person 

employed to work at the Sports Betting Facility or the Casino; (iii) establish policies 

and procedures for the operation or management of the Sports Betting Facility or 

the Casino; (iv) direct or supervise Casino Apache's employees or any other person 

employed to work at or about the Sports Betting Facility or Casino regarding the 

operation or management of the Sports Betting Facility; (v) bind Casino Apache or 

to act as an agent of Casino Apache with regard to the operation and management 

of the Sports Betting Facility; (vi) plan, organize, direct, coordinate or control any 

part of any gaming operation within the meaning of the Indian Gaming Regulatory 

Act, the regulations promulgated thereunder, or case law construing the provisions 

thereof (“IGRA”); (vii) undertake any other activity which constitutes 

“management” of gaming operations; or (viii) take any other action that could 

reasonably be construed as managing or operating the Sports Betting Facility or 

Casino or that would otherwise violate the purpose and intent of this Agreement.9

Management Contracts:

The NIGC has defined a “management contract” to mean “any contract, subcontract, or 

collateral agreement between an Indian tribe and a contractor or between a contractor and a 

subcontractor if such contract or agreement provides for the management of all or part of a 

gaming operation.”10 A “collateral contract” is defined as “any contract, whether or not in 

writing, that is related, either directly or indirectly, to a management contract, or to any rights, 

duties or obligations created between a tribe (or any of its members, entities, or organizations) 

and a management contractor or subcontractor (or any person or entity related to a management 

contractor or subcontractor).”11

While NIGC regulations do not define “management,” the Agency has clarified that the 

term encompasses activities such as planning, organizing, directing, coordinating, and 

controlling.12 A “primary management official” includes “any person who has the authority ... 

[t]o set up working policy for the gaming operation.”13 Further, management employees are 

“those who formulate and effectuate management policies by expressing and making operative 

 

9 Id. § 2(b). 10 25 C.F.R. § 502.15. 11 25 C.F.R. § 502.5. 12 See NIGC Bulletin No. 94-5, “Approved Management Contracts v. Consulting Agreements (Unapproved 

Management Contracts are Void).”

13 25 C.F.R. § 502.19(b)(2).
Letter to President Aguilar, Mescalero Apache Tribe

Review of Consulting Agreement between the Casino Apache Travel Center and American 

Wagering, Inc.

July 29, 2021 

Page 5 of 8 

the decision of their employer.”14 Whether a particular employee is managerial is not controlled 

by an employee’s actual job responsibilities, authority, and relationship to management.15

Essentially an employee may qualify as management if the employee possesses the actual 

authority to take discretionary actions – a de jure manager – or, in certain circumstances, where 

the employee acts as a de facto manager by directing the gaming operation through others 

possessing actual authority to manage the gaming operation.16

If a contract requires or permits the performance of any management activity with respect 

to all or part of the gaming operation, the contract is a management contract within the meaning 

of IGRA and requires the Chair’s approval.17 Management contracts that have not been approved 

by the Chair are void.18

Management Analysis:

 The Agreement does not permit any management of gaming activity by American 

Wagering. The scope of services provided by American Wagering is well-defined. The Travel 

Center has the discretion to accept or reject the sports betting recommendations received from 

American Wagering, including changing lines on events and suspending events. The Travel 

Center is not required to implement the data or services provided by American Wagering.

19 The 

Agreement includes an express prohibition on management20 and states that the Travel Center 

has the ultimate responsibility for its sportsbook. Accordingly, it is my opinion that the 

Agreement is not a management contract that requires approval by the NIGC Chairman.

Sole Proprietary Interest:

IGRA requires a tribe to possess “the sole proprietary interest and responsibility for the 

conduct of any gaming activity.”21 “Proprietary interest” is not defined in IGRA or the NIGC’s 

implementing regulations. Black’s Law Dictionary defines a “proprietary interest” as an “interest 

held by a property owner together with all appurtenant rights ....”22 An “owner” is “one who has 

 

14 N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267, 288 (1974). 15 See Waldau v. M.S.P.B., 19 F.3d 1395, 1399 (Fed. Cir. 1994). 16 Id. at 1399 (citing N.L.R.B. v. Yeshiva, 444 U.S. 672, 683 (1980)). It is uncommon to see de facto management in 

the terms of an agreement, as it is typically an activity that arises in the day-to-day implementation of a consulting 

agreement. If, for example, a tribe is required to make the ultimate decision on whether the accept the advice of a 

consultant, but has no one on staff with the expertise or experience to make such a determination, the consultant may 

become the de facto manager in the sense that he or she is simply executing management decisions through a tribal 

management official.

17 25 U.S.C. § 2711. 18 25 C.F.R. § 533.7; see also Wells Fargo Bank, Nat’l Ass’n v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684, 

688 (7th Cir. 2011).

19 Consulting Agreement § 2(a). 20 Id. § 2(b). 21 25 U.S.C. § 2710(b)(2)(A); see also 25 C.F.R. § 522.4(b)(1). 22 BLACK’S LAW DICTIONARY (10th ed. 2014).

Letter to President Aguilar, Mescalero Apache Tribe

Review of Consulting Agreement between the Casino Apache Travel Center and American 

Wagering, Inc.

July 29, 2021 

Page 7 of 8 

 In 2019, the General Counsel opined that a of net revenue fee to American 

Wagering did not grant a proprietary interest the Tribe’s sportsbook at the Inn of the Mountain 

Gods Casino. However, for the sportsbook at the Travel Center, the Tribe did not seek quotes 

from other vendors because, according to the Tribe’s counsel, the Tribe has a good working 

relationship with American Wagering. Also, according to the Tribe, using American Wagering

would also be less expensive than the Tribe trying to launch a kiosk at the Travel Center on its 

own. Moreover, the Tribe can renegotiate the fee for the Travel Center and the Inn of the 

Mountain Gods when both agreements expire in the 

 That said, the sports betting market has matured since 2019. There are several vendors 

providing sports betting services to tribal casinos, and unlike 2019, the Tribe is not competing to 

be the first to market with this product. 

Overall, it is my opinion that the Agreement does not grant American Wagering a 

proprietary interest in the Travel Center’s sportsbook. The short term and lack of control mean 

that the Tribe will own and operate the sportsbook, and the Tribe can renegotiate the fee after 

American Wagering is providing valuable and ongoing services to the Travel 

Center.

27 While American Wagering’s fee is relatively high, the fee alone in this instance does 

not grant a proprietary interest to American Wagering in the Tribe’s gaming operation. 

Accordingly, the Agreement does not grant a proprietary interest to American Wagering. 

It is my understanding that the draft Consulting Agreement is represented to be in 

substantially final form, and if the Consulting Agreement changes in any material way prior to 

execution or is inconsistent with assumptions made herein, this opinion shall not apply. This 

opinion is limited to the Consulting Agreement listed above. This opinion does not include or 

extend to any other agreements not submitted for review. 

Please note that it is my intent that this letter be released to the public through the 

NIGC’s website. If you have any objection to this disclosure, please provide a written statement 

explaining the grounds for the objection and highlighting the information that you believe should 

be withheld.28 If you object on the grounds that the information qualifies as confidential 

commercial information subject to withholding under Exemption Four of the Freedom of 

Information Act (FOIA),29 please be advised that any withholding should be analyzed under the 

standard set forth in Food Marketing Institute v. Argus Leader Media.

30 Any claim of 

confidentiality should also be supported with “a statement or certification by an officer or 

authorized representative of the submitter.”31 Please submit any written objection to 

 

27 Compare NIGC NOV-11-02 (finding that a third party acquires a proprietary interest in a tribe’s gaming operation 

when the third party acquires an interest in gaming revenue for little or no service or assets provided).

28 See 25 C.F.R. § 517.7(c). 29 5 U.S.C. § 552(b)(4). 30 139 S. Ct. 2356 (2019). 31 See 25 C.F.R. § 517.7(d).

(b) (4) (b) (4) (b) (4)
Letter to President Aguilar, Mescalero Apache Tribe

Review of Consulting Agreement between the Casino Apache Travel Center and American 

Wagering, Inc.

July 29, 2021 

Page 8 of 8 

FOIASubmitterReply@nigc.gov within thirty (30) days of the date of this letter. After this 

time elapses, the letter will be made public and objections will no longer be considered.32 If you

need any additional guidance regarding potential grounds for withholding, please see the United 

States Department of Justice’s Guide to the Freedom of Information Act at 

https://www.justice.gov/oip/doj-guide-freedom-information-act-0.

If you have any questions, please contact NIGC Staff Attorney Steve Iverson at (202) 

632-7003 or by email at steven_iverson@nigc.gov. 

Sincerely, 

Michael Hoenig

General Counsel

CC: John Wheeler

 

32 Id.