In re: 1 

E 

The March 26,2008 disapproval 1 Final decision and order 

of a management contract between ) 

New Gaming Systems Inc. and the 1 May 22,2008 

Sac & Fox Nation of Oklahoma 1 

On appeal to the Nationd Indian Gaming Commission (NIGC or Commission) 

from a disapproval of a management contract between New Gaming Systems Inc. 

(NGS) and the Sac & Fox Nation of Oklahoma (Nation), 25 U.S.C. 5 2721. 

Appearances 

D. Michael McBride, Esq., for the Sac & Fox Nation of Oklahoma and Sac & Fox 

Nation Business Enterprise 

Steven Bugg, Esq., for New Gaming Systems, Inc. 

DECISION AND ORDER 

After fuII review of the agency record and pleadings fiIed, the Commission finds 

and orders that: 

1. The Nation's request to file an "objection" or response to NGS's statement on 

appeal is denied. The applicable regulations, 25 C.F.R. part 539, contemplate a 

summary proceeding. The regulations do not provide for such additional 

briefing, and the parties' positions are amply stated in the record. 

2. 25 U.S.C. 5 2711 requires the NIGC Chairmads approval for a management 

contract between an Indian tribe and a manager. 

3. On October 4,2007, the Nation submiHed a gaming machine equipment Iease 

and promissory note, both dated August 8,2003, for the Chairman's review. 

NATIONAL HEADQUARTERS 14-47 L St Nw. S~ltlte 9100. Wash~ngton, DC 20005 Tel. 202.632.7003 Fa: 202 631.7066 WWW.NIGC.GOV 

REGIONAL OFWCES Portland, OR. Sacramento. CA: Phoen~x, AZ; St. Paul, MN:Tdsa. OK 
4. On March 26,2008, the Chairman de terrnined that these agreements 

constitute a management contract within the meaning of 25 U.S.C. 

5 2721 and disapproved them. 

5. The Chairman properly detemined that the equipment lease and promissory 

note constitute a management contract for the reasons stated in his March 26, 

2008 disapproval letter. 

6. me Chairman properly disapproved the agreements because they do not 

incInde dl of the provisions required of management contracts by 25 U.S.C. 

5 2711(b) or 25 C.F.R. 5 531.1. 

7. The Chairman properly disapproved the agreements acting in his capacity as 

a trustee under 25 U.S.C. 5 27ll(e)(4) because he would not impose upon the 

Nation any agreements that it no longer wanted and that were not in its best 

interests. 

8. The Chairman's March 26,2008 disapproval is affirmed. 

PROCEDURAL AND FACTUAL BACKGROUND 

In 2003, the Nation sought to build a new casino and chose NGS to provide 

equipment and financing for the venture. On August 8,2003, the Principle Chief and 

Secretary of the Nation signed a gaming machine equipment lease and promissory note. 

(See Administrative Record, Tab 49, Equipment Lease, August 8,21103 (Lease); and 

Promissory Note, August 8,2003; See also TsibaI Resolution SF/GC-03-06.11 The Nation 

signed a second promissory note with NGS on April 28,2004. Excepting the amount 

and date, this note was identical to the first. This note is not at issue here. 

On August 14,2003, the Nation submitted the tease and the 2003 note 

(colIectively, the Agreements) to the NIGC Office of General Counsel (C)GC) for an 

I "Adminrstrative Record" refers to the record of documents considered by the NlGC Chairman and 

supporting his March 26,2008 decision disapproving the management contracts for its deficiencies and in 

accordance with his duties as a trustee. 
opinion on whether the Agreements constituted management within the meaning of the 

Indian Gaming Replatory Act (IGRA), 25 U.S.C. 5 2711, and therefore required the 

NIGC Chairman's approval. The Nation's casino opened for business on JuIy 31,2004, 

while the OGC's review was pending. On August 17,2004, the OGC opined that, 

however denominated, the Agreements provided NGS with management responsibiIity 

and therefore constituted a management contract. (See Adminisfr~ti~e Record, Tab 17, 

Letker from Penny J. Coleman, NIGC Acting GeneraI Counsel, to Kay Rhoads, kincipd 

Chief of the Sac & Fox Nation (August 11,2004)). 

As a resuIt of the OGC's opinion, the Nation asked NGS to remove its gaming 

machines from the casino. (See Administrative Record, Tab 17, Letter from Kay Rhoads, 

Principal Chief Sac and Fox Nation to Kevin Freels, President New Gaming Systems Re: 

Sac and Fox Nation Casino Equipment Lease and Promissory Note, Separation of 

Relationship with the Sac and Fox Nation (August 23,2004)). 

On February 24,2005, NGS sued the Nation in tribal court for breach of contract. 

(See Administrative Record, Tab 27, New Gaming Systems, Inc. u. Sac & Fox Nation and Sac 

& Fox Nation Business Enterprise, Complaint, CTV-05-01 (SFN D.Ct. Feb. 24,2005)). The 

court found that the lease constituted a management contract under IGRA and was 

therefore void. (See Administrative Record, Tab 26, New Gaming Systems, Inc. v. Sac 19 Fox 

Nafion and Sac & Fox Nafion Business Ente~rise, Order, CIV-05-01 (SFN D.Ct Aug. 22, 

2005)). The Supreme Court of the Nation reversed and remanded the case back to the 

lower court for additional factual findings necessary to support its conclusions. (See 

Adrninzsfrative Record, Tab 26, New Gaming Systems, Inc. v. Sac b Fox Nation and Sac b Fox 
Ahtion Business Enterprise, Or&r, APG05-02 (SEN S.Ct. June 9,2006)). The bid court is 

apparently awaiting this decision before making a final ruling. (See Administrative 

Record, Tab 18, New Gaming Systems, Inc. v. Sac and Fox Nation, Order, CTV-05-01 (Nov. 

Therefore, on October 4,2007, the Nation subnifted to the Chairman the 

Agreements, the OGC's opinion Ietter, the tribaI constitution, and meeting minutes. The 

Nation clarified in its submission that it wanted the Chairman to decide the 

Agreements' status as a management contract but did not want the Chairman to 

approve the cpntract because the Nation no longer wished to conduct any business with 

NGS. Specifically, the Nation stated: 

Please note, however, that while this response is fowarded to compIy with 

your request, the Sac and Fox Nation is not requesting that you approve 

such Contracts as a management contract -- under no circumstances 

would the Sac and Fox Nation desire or voluntariIy permit Mr. Freels and 

his company, New Gaming Systems, Inc., to provide gaming devices or 

gaming services within the Sac and Fox Nation jurisdiction. 

(See Administuative Record, Tab 22, Letter to Philip N. Hogen, NIGC Chairman et. al, from 

George Thurman, Principal Chief of the Sac and Fox Nation, Re: Equipment Lease and 

Promissory Notes between the Sac and Fox Nation Nation/Sac and Fox Nation 

Business Enterprise and New Gaming Systems, Inc. (October 4,2007)). NG responded 

on October 30,2007, and argued that the Agreements do not constitute a management 

contract and requested a hearing so that it could clarify the meaning of some 

provisions. (See Administrative Record, Tab 17, Letter to fenny J. Coleman and Maria 

Getoff, National Indian Gaming Commission, from Steven Bugg, McAfee & Taft PC, Re: 
Sac and Fox Nation and New Gaming Systems, Inc.; with attachment of Response of 

New Gaming Systems, Inc. (October 30,2007)). 

On March 26,2008, the Chairman adopted the OGC opinion and disapproved 

the Agreements. (See Administrative Record, Tab 1, LeRer from NIGC Chairman Hogen, 

to Sac & Fox Nation PincipaI Chief Thurrnan, Re: Equipment Lease and Promissory 

Note between the Sac & Fox NatienJSac Q Fox Business Enterprise and New Gaming 

System, Inc. (March 26,2008)). He found that the Agreements did not- contain alI of the 

provisions IGRA requires for management contracts, and he determined that a trustee 

exercising the skill and diligence that a trustee is commonly held to would not approve 

the contract. (See Administrative Record, Tab 1). 

On April 25,2008, NGS filed the present appeal. NGS contends: 

1 The Chairman's Decision erroneously finds that the Equipment Lease is a 

management contract and must be approved by the NIGC. 

2) The Chairman erroneously refused to provide NGS with a hearing ox other 

opportunity to explain the terms of the Equipment tease to demonstrate that 

such terms do not constitute management of dl or a part of a gaming operation. 

33 To the extent that any particular provision of the Equipment Lease was overly 

broad and deemed to constitute management of part of a gaming operation, the 

Chairman's Decision was erroneous by failing to rnodrfy that particular 

provision as required by the severability cIause contained in the Equipment 

Lease. 

4) The Chairman's Decision is erroneous by failing to address or find that the 

regulations defining management are void for vagueness and have been 

arbitrarily enforced. 

NGS Appeal, pp. 1-2. 

None of NGS's arguments is persuasive. The Chairman's determination was 

correct and supported amply by the record. We affirm. 
DISCUSSION 

I. PROCEDURAL MATTERS 

As a preliminary rnawr, on May 12,2008, the Nation sought leave to file an 

"objection" or response to NGS's statement on appeal. We deny the request. 

,4ppeals to the full Commission from the Chairman's approvd or ded of a 

management contract are governed by the Commission's regulations at 25 C.F.R. part 

539. Any party to the contract may appeal within 30 days of the Chairman's 

determination, and the appeal "shall specify the reasons why the person beIieves the 

Chairman's determination to be erroneous, and shalI include supporting . 

documentation, if any." 25 C.F.R. 5 539.2. Part 539 provides for no other pleadings and 

requires the Commission to render its decision on appeaI within 30 days, or 60 if the 

appellant consents to the additiond time. Id. 

As we have recently had occasion to observe, part 539 deliberately provides for a 

summary determination by the Commission on a written record and on an accelerated 

schedule. In Re: The Mq 1 8,2 007, Aprm~l of the Gaming Management ConCracf between 

fhe Cheyenne & Arapnha Tribes of Oklahoma and Southwesf Casino and Hotel Cuvoratiun 

(August 17,2007) (contrasting 25 C.F.R. part 539 with 25 C.F.R. part 577, which provides 

far full evidentiary hearings on appeal). This format, we determined, is best "suited to 

the review of the narrow question of whether the Chairman properly observed IGRA's 

requirements for approving or disapproving management contracts, 25 U.S.C. 5 271 1 (b), 

(e)." Id. at 9. 

We see no reason here to deviate horn the procedure set out in 25 C.F.R. part 539. 
More often than not, requests by one party for Ieave to fiIe additional pleadings are met 

by the other party with a request to reply. This kind of fuI1 briefing is inconsistent with 

the summary process part 539 contemplates. Moreover, we fail to see how either party 

here is prejudiced by this summary process as both parties have already stated in detail 

their positions concerning the Agreements. (See Adminis fm five Record, Tab 22, Letter to 

Philip Hogen, Chairman, Cloyce Choney, Commissioner, Norman DesRosiers, 

Commissioner, and Penny Coleman, Acting General CounseI, from George Thurman, 

Principal Chief of the Sac and Pox Nation, Re: Equipment lease and promissory notes 

between the Sac and Fox NationiSac and Fox Business Enterprise and New Gaming 

Systems, Inc. (October 4,2007); see also Adrninisfratiwe Record, Tab 17, Letter to Penny J. 

Coleman and Maria Getoff, National Indian Gaming Commission, from Steven Bugg, 

PvlcAfee & Taft PC)), 

The Nation's request to file a response to NGS's statement on appeal is therefore 

denied. 

!I. LEGAL FRAMEWORK 

That said, IGM deems the establishment of federal standards for gaming on 

Indian Iands "necessary to meet congressiond concerns regarding gaming and to 

protect such gaming as a means of generating tribal revenue." 25 U.S.C. 

9 2702(3). One such concern is that each tribe must be the primary beneficiary of its 

gaming operation. 25 U.S.C. 5 2702(2). In order to address such concerns, Congress 

created the NIGC and gave it oversight regulatory authority for gaming on Indian 

lands. 25 U.S.C. 39 2702(3), 2704(a). As part of that oversight authority, Congress 
granted the NIGC Chairman the power and authority to approve gaming management 

contracts, 25 U.S.C. $5 2705(4), 2710(d) (9), and set out various statutory criteria for 

approving and disapproving contracts. 25 U.S.C. § 2711(b), (e). 

The Chairman has the authority to approve management contracts for Indian 

gaming operations. 25 U.S.C. 5 2705(a). Whether an agreement constitutes a 

management contract under IGRA is a matter of federal law, and the WGC necessarily 

has the authority to make such a determination. United Sfates ex re1 Sainf Regis Mohawk 

Tribe v. President R.C. - St. Regis Management Company, 451 F. 36 44,51(2nd Cir. 2006) 

(Commission has broad power to determine what does and does not require approval). . 

Further, the Chairman may approve a management contract only if the contract 

meets dl requirements listed in 25 U.S.C. 5 2711(b) and (c). Likewise, the Chairman 

must disapprove any management contracts when he has evidence of misdeeds listed in 

25 U.S.C. 5 2711 (e) or when "a trustee, exercising the skill and diligence a trustee is 

commonly held to, would not approve the contract." 25 U.S.C. 5 2711(e)(4). 

Management contracts that have not been approved by the Chairman are void. 25 

C.F.R. 5 533.7; First American Kickupoo Operatians, LLC v. Multimedia Games, Inc., 412 F.3d 

1266 (10th Cir. 2006). 

NIGC regulations define a "managementf' contract as: "any contract 

subcontract, or collateraI 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." 25 C.F.R. § 502.15. Further, a 

"collateral agreement" is defined as; 
Any contract, whether or not in writing, that is related either directIy or 

indirectly, to a management contract, or to any rights, duties or 

obligations created betureen a tribe (or any of its members, entities, 

organizations) and a management contractor or subcontractor (or any 

person or entity related to a management contractor or subcontractor). 

25 C.F.R. 5 502.5. Additionally, the Commission long ago emphasized a plain-meaning 

understanding of "management," which it describes as including activities such as 

"pIanning, organizing, directing, coordinating, and controlling." NIGC Bulletin 945. 

The performance of any one of these activities with respect to all or part of a gaming 

operation constitutes management and causes a contract to become a management 

. contract requiring the Chairman's approval. Id. 

Further, managers "formulate and effectuate management policies by expressing 

and making operative the decision of their employer." N.L.X.B. v. Bell Aerospace Co., 426 

U.S. 267,288 (1974). Additionally, an employee's specific job title or the position does 

not provide conclusive evidence of management. Waldo v. M.S.P.B., 19 F.3d 1395 

(Fed.Cir. 1994). Rather, management must be found in the empIoyee7s actual job 

responsibilities, authority, and relationship to actual management. Id. at 1399. 

111. ANALYSIS 

A. The Chairman properly determined that the Agreements are a 

management contract within the meaning of IGM. 

To begin with, we recognize the somewhat peculiar posture of this appeal. This 

is not the usual circumstance where the parties are aggrieved by the Chairman's 

disapproval of a management contract reached ody after long negotiations. Rather, the 

issue is whet-her the Agreements, styled as a gaming machine equipment Iease and a 
note, are really a management conbact at all. NGS contends that the Chairman erred in 

determining that they are. Though the Chairman found management in numerous 

provisions in the Agreements, it is not necessary to enumerate all of them here. Three 

specific provisions in the Lease allow NGS to exert management control over the 

Nation's gaming operation. Therefore, the Ckkrrnan's determination was correct. 

First, the Agreements state that NGS will provide 80% of the Nation's gaming 

machines. (See Adminisfmf ive Record, Tab 17, Equipment Lease 5 2 .I). Approximately 

20% of the gaming machines will be provided by other manufacturers mutually agreed 

upon by the Nation and NGS. Id. Choosing the mix of machines on the casino floor is an 

essential management function. The Agreements dlow NGS to control that choice and 

thus manage this part of the Nation's gaming operation. 

NGS contends that no management occurs under this provision because the reaI 

management decisions of floor placement, theme choice, par percentage, displays, and 

promotions are still left to the Nation. (See Administrative Record, Tab 17, Letter to Penny 

J. CoIeman and Maria Getoff, from Steven Bugg, Re: Sac and Fox Nation and New 

Gaming Systems, Inc.; with attachment of Response). The language of the Agreements, 

however, fails to support this proposition. Every gaming machine in the casino must 

come horn either from NGS directly or from an NGS-approved supplier, and the 

Nation's abiIity to maJse decisions regarding theme, placement, displays, and 

promotions is limited when the Nation cannot freely choose any of the games on its 

floor. 
Additionally, not only do the Agreements give NGS a veto power over the 

Nation's choice of other vendors, but the record dso shows that NGS actually chose 

those vendors for the Nation. (See Administrntive Record, Tab 45, Ernail from Muriel 

Wheeler, Sac & Fox Gaming Commission to Marci Pate, NIGC Region V FieId 

Investigator and forwarded to Maria Getoff ('June 12,2004)). As such, NGS assumed 

control beyond even that contemplated in the Agreements. 

Second, the Lease states that the Tribe and NGS dl together select an 

independent certified public accountant to perform the annual audit for the gaming 

operation. (See Adrninistrntive Record, Tab 17, Equipment Lease 5 16.4). NGS claims that 

permitting it a voice in the choice of an independent certified public accountant is not 

management but merely a protection of its investment. We disagree. 

IGRA requires each tsibe to provide an annual audit of its gaming operation by 

an independent certified public accountant. 25 U.S.C. 5 2710(b)(2)(C). This is a 

management function. NGS cannot claim a voice in the choice of auditor without 

accepting the mantle of responsibility and management. 

Third, the Lease gives NGS veto authority over the Nation's choice of slot 

accounting system. (See Administvaf-ive Record, Tab 17, Equipment Lease 5 6). Like the 

choice of machine mix, the choice of slot accounting system is an essentiaI management 

function because such systems enabIe player reward programs and, in some instances, 

ticket redemption. By this provision, NGS has again taken on management decisions. 

Further, other provisions strengthen the finding of management because they 

mirror the types of terms common in management contracts. For example, the 
Agreements require the Tribe to pay NGS rent for its machines in the amount of 30% 

net win for the first year, 25% net win for the next two years, and 25% net win for each 

year aha. (See Administrative Record, Tab 17, Equipment Lease 5 15). Net win is defined 

as daily receipts minus prizes paid and actuaIly indicates gross revenues as opposed to 

net revenues as defined under IGRA. 25 U.S.C. § 502.16. Thus, NGS stands to receive 25- 

30% gross revenues from 80% of the machines at the gaming operation, a figure that 

closely resembles the kinds of fees paid to casino managers. 

The Chairman correctly found that the provisions of the Agreements vest 

managerial control in a party other than the Nation. Therefore, for the reasons stated in 

his letter of disapproval, the Chairman was correct in determining that the Agreements 

together constitute a management contract. 

B. Because IGRA does not require the Chairman to conduct a hearing before 

rendering an initial decision on a management contract, he committed no 

error. 

NGS contends that a hearing was necessary for the Chairman to understand the 

meaning of certain provisions within the contract and that he ened in a making his 

decision without a hearing. We disagree. 

NGSs argument ignores a fundamental ruIe of contract interpretation: 

There is no need to resort to extrinsic evidence to ascertain a contract's 

meaning where its language is clear and explicit. When a contract is 

reduced to writing, the parties' intent is to be ascertained from the writing 

alone whenever possible. 

Ofis Elevator Co. v. Midland Red Oak Realty, Inc., 483 F.3d 1095,1201-21 02 (10th Cir. 2007). 

When cod~onted with unambiguous contract Ianguage, the Chairman must look to the 
contractual documents themselves for meaning and not to extrinsic evidence presented 

in a hearing. Because the Chairman concluded that the Agreements by their terms 

provided for management, a hearing was unnecessary. 

Furthermore, NGS mistakenly assumes that IGRA requires the Chairman to 

conduct a hearing prior to issuing his decision during the initial contract review and 

approval process. NGS points to 25 U.S.C. 5 2711(f), which provides: 

The Chairman, afer notice and hearing, shd have the authority to require 

appropriate contract modifications or may void any contract if he 

subsequently determines that any of the provisions of this section have 

been violated. 

(Emphasis added.) NGS emphasizes "after notice and hearing" urging the 

Commission to reach the conclusion that the Chairman may not take any action 

on a contract without notice and a hearing. Such an interpretation is inconsistent 

with both agency regulations and IGRA itself. 

By its terms, 25 U.S.C. 5 2711(f) applies only in those situations where the 

Chairman reaches out and voids or modifies a contract he already approved. IGRA 

requires a notice and hearing before he does so. Mirroring this, 25 C.F.R. part 577 

provides for an appeal to the fulI Commission from the specific actions of the 

Chairman, and it indudes a hearing before a neutral official. 25 C.F.R. 5 577.3. In aII 

other management contract processes, however, neither IGRA nor the NIGC regulations 

provide for a hearing because none is necessary. 

Again, appeals from the Chairman's approval or disapproval of a management 

contract are governed by 25 C.F.R. part 539, which contemplates a summary 

[aln agreement without BIA approvaI must be nu11 and void in its entirety. 

No part of it may be enforced or relied upon unless and until BIA 

approval is given. BIA approvd is an absolute prerequisite to the 

enforceability of the contract. To give piecemeal effect to a conkact. . . 

wouId hobble the statute. The plain words of section 81 simply render this 

contract void in the absence of BIA approvd, Since it is void, it cannot be 

relied upon to give rise to any obligation by the Band, including an 

obligation of good faith and fair dealing. 

Id. at 789. The reasoning is equaIly applicable here. Of course, this presumes that the 

Chairman properIy disapproved the Agreements in the first place, and we have no 

difficulty in finding that he did. 

As explained above, we affirm the Chairman's determination that the 

Agreements are a management contract, and as it is uncontested that the Agreements 

do not include all of the provisions required of a management contract under 25 U.S.C. 

5 2711(b) or 25 C.F.R. § 531.1, the Chairman couId not have approved them. 

Additionally, the Chairman disapproved the contract because "a trustee, 

exercising the skill and diligence that a trustee is commonly held to, would not approve 

the contract." (See Administrative Recurd, Tab 1, Chairman's Decision, p, 6, quoting 25 

U.S.C. § 2711(e)(4) and 25 C.F.R. 533.60(4)). IGRA places this trust obligation dkectIy 

upon the Chairman, 25 U.S.C. 5 2711(e)(4), and holds him to a high standard. United 

Strates v Mnson, 412 US 391,398 (1973)YA trustee is under a duty in administering a trust 

to exercise such care and ski11 as a man of ordinary prudence would exercise in dealing 

with his own property."); and NLRB v. Amax Coal Co., Div. of Amax, Inc., 453 US 322,329 

(1981)("Under principles of equity, a trustee bears an unwavering duty of compIete 
Ioyalty to the beneficiary of the trust to the exclusion of the interests of all other 

parties.. ."). 

Here, the Chairman noted The Nation's unequivocal expression of its desire to 

end the relationship with NGS: 

p]he parties have been in litigation for some time over the termination 

of the Agreements. The Nation has expressed to the NIGC that "under 

no circumstances worrId [it] desire or voluntardy permit [NGS] to 

provide gaming devices or gaming services within the Sac and Fox 

Nation jurisdiction." In light of the ill will that now exists between the 

parties, it would not be in the Nation's best interests to approve an 

agreement allowing NGS to provide services to the Nation. 

(See Administrative Record, Tab 1, Chairman's Decision, p. 6 (internal citations omitted)). 

Nothing in the record justifies art exercise of federal authority that would force upon the 

Nation a contractuaI relationship that it does not want, and nothing shows the 

Agreements to be in the Nation's, rather than NGSs, bests interests. 

Further, we note that it is the longstanding policy of the federal government to 

encourage tribaI seIf-government, and numerous statutes, including IGRA, embody this 

policy. Iowa Mutual Ins. Co., v. hPlante, 480 U.S. 9,14 (1987); 25 U.S.C. 5 2702(1) ("The 

purpose of this chapter is to provide a statutory basis for the operation of gaming by 

Indian tribes as a means of promoting tribal economic development, self-sufficiency, 

and strong tribal governments."). We do not see how forcing the Nation to accept the 

Agreements here is consistent with that goal. 

For all these reasons, we affirm the Chairman's disapprovd of the Agreements 

and his choice not to modify them. 
D, The Commission's management contract regulations are not void for 

vagueness because they are sufficiently certain so that anyone subject to them 

can understand their meaning. 

Finally, NGS argues that the Commission's management contract reguIations are 

impermissibly vague because they do not sufficiently define "management" and upart 

of a gaming operation." They contend, in short, that the regmIations are void for 

vagueness and thus that any decision based upon them is invalid. We disagree. 

The U.S. Supreme Court defined the standard for such challenges as follows: 

a statute which either forbids or requires the doing of an act in terms so 

vague that men of common intelligence must necessarily guess at its 

meaning and differ as to its application, violates the first essential of due 

process of Iaw. 

Connrally v. &era1 Constr, Co., 269 U.S. 385,393-392 (U.S. 1926), citing Infemah'onal 

Hamster Co. v. Kenhcky, 234 US. 214,221; Collins v. KenhLcky, 234 U.S. 634,638. This is 

an expression of fundamental fairness. It is improper to impose a penaIty for fading to 

foIlow a rule when an ordinary person cannot telI what is, or is not, prohibited. 

We question the application of the void for vagueness challenge because it is 

reserved chiefly for criminal and quasillriminaI cases and the occasional adjudication of 

government benefits. Tim Searchinger, The ProceduraI Due Process Approach to 

Administrative Discretion: The Courts' Inverted Analysis, 95 Yale L.J. 2017,1026 (1986). 

In any case, the regulations are not vague. The ordinary meaning of the 

regulations provides a sweeping but dear standard understood by the average person: 

any contract that provides for the "planning, organizing, directing, coordinating, or 

controlling" of any part of the tribal gaming operation by anyone other than a tribe is a 
management contract that requires the Chairman's approval. It is not a question of how 

much management is permissible within a contract: IGRA prohibits any management 

without an approved contract. 25 U.S.C. §2711(f). It is also not a question of which parts 

of a gaming operation a third party may manage without an approved contract: IGRA 

profibits management of any part. 

We therefore find that the management contract regulations are not vague and 

not void. 

CONCLUSION 

Given aB of the foregoing, the Chairman's March 26,2008 disapproval of the 

Agreements, the gaming machine equipment lease and promissory note, is affirmed. 

TIONAL INDIAN GAMING COMMISSION on this 22nd day 

Chairman Vice Chairman 
Certificate of Service 

T certify that this Commission final decision and order was sent by facsimile transmission and 

certified U.S. mail, return receipt requested, on this 22nd day of May, 2008 to: 

George Thurman 

Principal Chief 

Sac & Fox Nation (Agent for Service of Process) 

Route 2, Box 246 

Stroud, OK 74079 

Fax: (91 8) 968-7 142 

Muriel Wheeler 

Sac and Fox Nation Gaming Commission 

Route 2, Box 246 

Stroud, OK 74079 

Fax: (405) 273-1372 

Michael D. McBride 

Crowe & Dunlevy 

500 Kennedy BIdg. 

321 S. Boston 

Tulsa, OK 74 1 03 

Fax: (918) 599-6317 

Kevin Freels 

New Gaming Systems Inc. 

1617 lgth St. 

Sacramento, CA 958 14 

Fax: (916) 442-7041 

Steven Bugg 

McAfee & Tafl 

Two Leadership Sq. 

21 1 N. Robinson, Ste. 1000 

Oklahoma City, OK 73 102 

Fax: (405) 235-0439