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BULLETIN

No. 2021-3 October 5, 2021

Subject: Submission of Agreements for Review

In 1993, the National Indian Gaming Commission issued Bulletin No. 1993-3, 

Submission of Gaming Related Contracts and Agreements for Review. In that bulletin, the NIGC 

determined that certain gaming-related contracts, such as consulting and development 

agreements, should be submitted to the NIGC for an opinion on whether the agreements 

implicate management. When the NIGC determines that no such management exists, the 

resulting opinion is referred to as a “declination letter.” What constitutes management is crucial 

to the NIGC’s mission and work. It informs whether: certain officials need to be licensed as 

primary management officials under IGRA and NIGC regulations;

1 certain contracts qualify as 

management contracts under IGRA, requiring the Chair’s review and approval2; and certain 

actions by third parties concerning a Tribe’s gaming facility or operation violate IGRA and 

NIGC regulations because they are unapproved management arrangements3.

At the time Bulletin No. 1993-3 was published, Indian Gaming, though not itself a new 

industry, was still relatively new to the requirements of the Indian Gaming Regulatory Act. 

IGRA had been passed a mere five years previously, and NIGC had only recently passed 

regulations implementing the Act. The NIGC had not yet developed the body of guidance 

clarifying what exactly constituted management or control of a gaming operation. To prevent 

management of a gaming operation without an approved contract, then, the NIGC sought to 

review the agreements that were most likely at the time to cross into the realm of management. 

In the nearly 30 years since Bulletin No.1993-3 was published, however, the Tribal 

gaming industry has grown exponentially in both size and experience. The NIGC has also issued

 1 25 U.S.C. § 2710(b)(2)(F); 25 C.F.R. §§ 502.19(a) (“The person having management responsibility for a 

management contract”) and 502.18 (“Person having management responsibility for a management contract means 

the person designated by the management contract as having management responsibility for the gaming operation, 

or a portion thereof.”); 25 C.F.R. part 558. 2 25 U.S.C. § 2710(d)(9) & 2711; 25 C.F.R. parts 531 and 535. 3 25 U.S.C. §§ 2710(d)(9), 2711, & 2713; 25 C.F.R. § 573.4(a)(7).
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guidance on what activities constitute management, and has reviewed thousands of agreements 

for management, resulting in a vast body of guidance though declination letters and enforcement 

actions. In 1994, the NIGC issued a bulletin addressing the differences between consulting 

contracts and management contracts.4 Although the bulletin noted that whether a contract is a 

consulting or management contract “depends upon the specific facts of each case,” it explained 

that management encompasses planning, organizing, directing, coordinating, or controlling 

activities with respect to all or part of a gaming operation.5 Since 1994, several courts have also 

issued opinions further elucidating the meaning of management in IGRA. NIGC has done the 

same through final agency decisions and enforcement actions.6

Although the NIGC’s Office of General Counsel will continue to issue declination letters

upon request, the Agency withdrew Bulletin No. 1993-3, finding that for all of the reasons 

discussed above, an agency review may not always be necessary. Rather, it is the NIGC’s intent 

that tribes and the parties with whom they are contracting look to this bulletin, as well as the 

materials referenced above, to determine whether a particular agreement implicates management. 

If a particular contract adheres to the principles and analyses outlined below, the NIGC’s Office 

of General Counsel would likely opine that it does not need to be submitted for the Chair’s 

approval as a management agreement.7

I. Management is defined by its ordinary meaning.

The term management is not defined in IGRA. And while NIGC regulations define 

primary management official8and management contract,

9 which assist in informing the meaning 

of management, they do not explicitly prescribe the term. Without such a regulatory definition,

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management should be construed in its ordinary or natural meaning.11 Our 1994 bulletin does 

just that.12 “[T]he definition of management activities[]—planning, organizing, directing, 

coordinating, and controlling—[is] consistent with a common understanding of such 

activities.”13

 4 NIGC Bulletin 94-5, Approved Management Contracts v. Consulting Agreements (Unapproved Management 

Contracts are Void) (Oct. 14, 1994). 5 Id. at 2. 6 Also see for guidance the NIGC Office of General Counsel’s legal opinions, located on the NIGC website here: 

https://www.nigc.gov/general-counsel/management-review-letters 7 The information provided in this Bulletin sets forth the NIGC’s regulatory approach and existing positions 

and may be updated as needed. Please email any comments on this topic to NIGC_outreach@nigc.gov. 8 25 C.F.R. § 502.19. 9 25 C.F.R. § 502.15. 10 In 2018, the Commission consulted with the regulatory community concerning whether to issue a definition of 

management. The majority of commenters requested that the Commission extend its consultations on the topic. 11 NIGC Commission Final Decision, In re: The March 26, 2008 disapproval of a management contract between 

New Gaming Systems Inc. and Sac & Fox Nation of Oklahoma at 9 (May 22, 2008) (NIGC Commission Final 

Decision re: New Gaming Systems) (“the Commission long ago emphasized a plain-meaning understanding of 

‘management’”).

12 NIGC Bulletin 94-5, supra at 2. 13 Sharp Image Gaming, Inc. v. Shingle Springs Band of Miwok Indians, 15 Cal. App. 5th 391, 436 (Ct. App. 

2017), reh'g denied (Oct. 16, 2017), review denied (Dec. 20, 2017), petition for certiorari pending.
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II. Management may be total, meaning of an entire facility or operation.

A management relationship may be all encompassing, meaning that a third-party assumes 

management of the entire operation or facility. As described by the Seventh Circuit Court of 

Appeals, in such situations, a third-party has “wholesale responsibility over the daily operations 

or maintenance of the Casino,” “operat[ing], for a fee, the day-to-day staffing and supervision of 

the games, other offerings and security at the gaming facility.”14 The NIGC’s position is similar, 

describing management of a casino as “responsib[ility] for day-to-day operations, for hiring and 

firing casino employees, [and] for placement of the games on the casino floor ....”15

Oftentimes, this includes the development of, changes to, and responsibility for a facility or 

operation’s employment, accounting, or financial policies and procedures as well as setting its 

days and hours of operation.

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III. Management may be partial, involving only one or more aspects of an operation.

Management also may be partial. Courts have accepted our interpretation17 of 

management as planning, organizing, directing, coordinating, and controlling all —or only a part 

of— a gaming operation.18 To constitute management, a Tribe need not relinquish all of its 

decision-making authority to a third-party.19 And a third-party need not be involved in the 

overall management of the casino as long as it is given “the right to manage, or the opportunity 

to manage,” parts of the gaming operation.20

Each section below discusses aspects of gaming operations where courts and/or the NIGC 

have found control of them—alone or in combination— by third parties is management. The 

only caveat being that if these activities occur and are finalized prior to the facility or operation’s 

opening, management may not exist. When a facility or operation is still developing (or in the 

development phase) and not operating, a Tribe’s retention of third parties to devise, create, or 

undertake these activities is more likely to be a fee-for-service arrangement. On the other hand, 

operational control indicates management.

21 Thus, when third parties are involved in such 

activities for a functioning facility or operation, Tribes should ask themselves (as described in 

the 1994 bulletin) whether third parties involved in these areas are undertaking finite tasks with 

 14 Wells Fargo Bank, Nat. Ass'n v. Lake of the Torches Econ. Dev. Corp., 658 F.3d 684, 695 & 697 (7th Cir. 2011). 15 NIGC Commission Final Decision, In the matter of Edward Street and Oakland Enterprises, LLC at 6 (Sept. 6, 

2006); see, e.g., NOV-07-02 at 7-12 (May 16, 2007) (unapproved management contractor managed the blackjack 

and gaming machine operations); NOV-06-08 at 3, 7-8 (March 8, 2006) (unapproved management contract “doing 

business as” Tribe’s casino, handling all the daily operations, and controlling the gaming revenue and employees). 16 See, e.g., NOV-11-01 at 5 & 10 (May 14, 2011) (unapproved management contractor set opening hours and times 

and adopted employee policies for the OTB). 17 See NIGC Bulletin 94-5, supra at 2; Compare with 25 C.F.R. § 502.15 (“Management contract means any 

contract [that] provides for the management of all or part of a gaming operation.”). 18 Sharp Image Gaming, Inc., supra at 436; Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 172 Wash. App. 

799, 824, aff'd on other grounds, 181 Wash. 2d 272 (2014); First Am. Kickapoo Operations, L.L.C. v. Multimedia 

Games, Inc., 412 F.3d 1166, 1175 (10th Cir. 2005); New Gaming Sys., Inc. v. Nat'l Indian Gaming Comm'n, 896 F. 

Supp. 2d 1093, 1102–03 (W.D. Okla. 2012). 19 Sharp Image Gaming, supra at 438-39; New Gaming Sys., supra at 1105. 20 New Gaming Sys., supra at 1103. 21 Letter to Nicolas C. Fonseca, Chairman, Shingle Springs Band of Miwok Indians, from Philip N. Hogen, NIGC 

Chairman re: Chairman’s decision regarding agreements at 9 (April 23, 2009).
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specific dates of completion at fixed rates/fees or whether there is an open-ended and ongoing 

relationship with compensation based upon a percentage fee.22 The former is reflective of 

consulting; the latter, managing.

A. Working policies, procedures, and practices

NIGC regulations provide that a primary management official is “[a]ny person who has 

authority . . . [t]o set up working policy for the gaming operation.”23 Relying upon that 

regulation, the Tenth Circuit Court of Appeals found that setting up working policy for a gaming 

operation by developing employment procedures constitutes management.

24 We concur in that 

view.

B. Training, supervision, direction, hiring, firing, retention, and compensation of 

any employee or contractor

As the NIGC has previously explained: “an employee's specific job title or the position 

does not provide conclusive evidence of management[;] [r]ather, management must be found in 

the employee’s actual job responsibilities, authority, and relationship to actual management.”25

NIGC regulations specifically provide that a primary management official is “[a]ny person who 

has authority . . . [t]o hire and fire employees.”26 Therefore, doing that constitutes

management.

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Training, supervising, and making decisions regarding retaining and compensating 

employees or contractors also may be management. The Tenth Circuit Court of Appeals found 

that a third-party providing personnel to supervise specific gaming facilities and to “‘supervise, 

train, and instruct’ the Tribe's employees for the first three months after the opening of the 

operation” equated to “management services.”28 The NIGC Chair also has concluded that a thirdparty’s appointment of or “direction to [a] casino’s general manager” and other types of 

supervisors was management.

29 Exerting control over casino employees has been found to 

 22 NIGC Bulletin 94-5, supra at 3; see, e.g., NOV-07-02 at 7 (May 16, 2007) (unapproved management contractor 

received 60% and Tribe 40%). 23 25 C.F.R. § 502.19(b)(2). 24 First Am. Kickapoo Operations, supra at 1172–73, 1175; see, e.g., NOV-11-01 at 5 & 10 (May 14, 2011)

(unapproved management contractor adopted employee policies and handbook for OTB); NOV-07-02 at 9 (May 16, 

2011) (unapproved management contractor wrote policies and procedures for accounting). 25 NIGC Commission Final Decision re: New Gaming Systems at 9 (citing Waldo v. M.S.P.B., 19 F.3d 1395, 1399 

(Fed.Cir. 1994)).

26 25 C.F.R. § 502.19(b)(2). 27 See, e.g., NOV-12-01 at 13-14 (Aug. 22, 2012) (“Respondents’ de jure and de facto management of the hiring and 

firing of Casino managers and control over employee job changes”); NOV-11-01 at 5 & 10 (May 14, 2011)

(unapproved management contractor hired, fired, and paid all OTB employees); NOV-07-02 at 11 (unapproved 

management contractor made hiring decisions); NOV-06-08 at 8 (March 8, 2006) (unapproved management 

contractor controlled casino’s employees). 28 First American Kickapoo Operations, supra at 1173. 29 Letter to Nicolas C. Fonseca, Chairman, Shingle Springs Band of Miwok Indians, from Philip N. Hogen, NIGC 

Chairman, supra at 9; NOV-07-02 at 11 (May 16, 2007); Letter to Senators McCain, Dorgan, and Inouye from 

NIGC Chair Hogen re: Contract review and IGRA’s sole proprietary interest requirement at 5 (Feb. 1, 2005).
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constitute management as well, including: hiring, firing, job promotions, position changes, 

employee policies, salaries, payroll, payment of employment taxes, and personnel matters.

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Further, courts have determined that a third-party’s ability to select an auditor, in the 

event of non-agreement with the Tribe on who would conduct the audit, was “indicia of control 

over the Tribe's gaming operations,”31 and a third-party’s “right[] to participate in the selection 

of [an] accounting firm that will perform the annual “‘independent certified audit,’” when taken 

together with its other rights, transferred management responsibility to the third-party.32

C. Hours or days of operation

The NIGC Chair has found that setting the operating hours and days is a management

function.33

D. Accounting systems or procedures

Choosing a facility or operation’s accounting system is also a management function34, 

“because such systems enable player reward programs and, in some instances, ticket 

redemption.”35 And, handling the accounting for the operation is a management activity.

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E. Advertising, promotions or marketing activities

In a letter to Congress, the NIGC Chair explained that directing casino marketing and 

advertising is a significant management responsibility.37 The NIGC Chair also has issued several 

notices of violation against third parties for managing without an approved management 

contract, in part on the bases that they developed, implemented, or controlled the operations’

promotions and advertising, including the substance of such matters and the personnel working 

on them.38

F. Gaming devices, equipment, or software – purchasing, leasing, substituting 

and/or choosing the vendor, type, theme, percentage of pay-out, display or 

placement

 30 NOV-12-01 at 13, 19-26 (Aug. 22, 2012); NOV-06-08 at 8 (March 8, 2006). 31 15 Cal. App. 5th 391, 441 (Ct. App. 2017), reh'g denied (Oct. 16, 2017), review denied (Dec. 20, 2017), petition 

for certiorari pending. 32 New Gaming Sys., supra at 1105. 33 NOV-11-1 at 5 (May 14, 2011). 34 New Gaming Sys., supra at 1103. 35 NIGC Commission Final Decision re: New Gaming Systems at 11 (May 22, 2008). 36 NOV-06-08 at 8 (March 8, 2006); NOV 06-06 at 3 (Feb. 2, 2006). 37 Letter to Senators McCain, Dorgan, and Inouye from NIGC Chair Hogen, supra at 5. 38 NOV-12-01 at 14-15, 18-23, 27-28 (Aug. 22, 2012); NOV-07-02 at 5, 12-13 (May 16, 2007); NOV 06-08 at 8 

(March 8, 2006); see, e.g., Sharp Image Gaming, supra at 439 (“The provision in the [agreement] providing that [the 

third-party] would maintain the responsibility for promotions and ‘provide direction for the General Manager in this 

department’ was alone sufficient to find management of part of the gaming operation.”).
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Selecting and providing gaming equipment is “an essential aspect of casino 

operations.”39 So is choosing the mix of machines or tables (e.g., vendor and type) and 

configuring a casino floor.40 In addition, third parties who have planned, directed, or controlled a 

Tribe’s contractual relationships with its gaming vendors have been found to have managed part 

of a gaming operation without an approved management contract.41 In the same vein, decisions 

regarding game theme, percentage of pay-out, and game displays may also be management.

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G. Budgeting or revenue allocation

Also in the aforementioned letter to Congress, the NIGC Chair cited developing a 

casino’s budget as an example of a significant management responsibility.43 Moreover, the 

NIGC Chair has issued notices of violation to third parties for managing without an approved 

contract in part due to developing or controlling a casino’s budget.

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H. Maintenance of a gaming facility or operation;

Oversight of maintenance employees is yet another example of a management function

and has been included as one of the bases for issuing a managing without an approved contract 

notice of violation.

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I. Supervision of construction or improvements for a gaming facility or operation

Finally, a third-party’s control over renovations, improvements, or expansion of an 

operation may also indicate management.

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 39 Sharp Image Gaming, supra at 440–41; see also Letter to Senators McCain, Dorgan, and Inouye from NIGC 

Chair Hogen supra at 5 (noting that deciding which games to offer is a significant management responsibility). 40 NIGC Commission Final Decision re: New Gaming Systems at 10; New Gaming Sys., supra at 1102-03; Sharp 

Image Gaming, supra at 440–41; see, e.g., NOV-07-02 at 8 (May 16, 2007) (unapproved management contractor 

supplied blackjack equipment, decided on the number of tables and their placement, the number of and which 

machines to remove to make room for the tables, and blackjack’s rules). 41 NOV-12-01 at 15-16, 29-30 (Aug. 22, 2012); NOV 06-08 at 8 (March 8, 2006). 42 See, e.g., Sharp Image Gaming, supra at 440–41 (noting that “if the Tribe wanted to change the payout at 

anytime, it was dependent upon [the third-party] to change the software payout percentages.”). 43 Letter to Senators McCain, Dorgan, and Inouye from NIGC Chair Hogen, supra at 5. 44 NOV-12-01 at 16-17, 30-32 (Aug. 22, 2012); NOV-11-01 at 10 (May 14, 2011). 45 NOV-07-02 at 11 (May 16, 2007). 46 See, e.g., NOV-07-02 at 5 (May 16, 2007) (unapproved management contractor renovated and expanded the 

Tribe’s operation, paying for the cost of doing so); NOV-06-08 at 8 (March 8, 2006) (unapproved management 

contractor had his construction company renovating operation); First Am. Kickapoo Operations, supra at 1174 

(noting that NIGC OGC’s legal opinion relied in part on the third-party’s supervision of construction and 

improvements to opine that the contract was a management contract).