December 2013 

Helpful Hints for Submitting Requests for a Legal Opinion to the NIGC 

Office of General Counsel 

I. Introduction 

From time to time, the National Indian Gaming Commission’s Office of General Counsel 

(OGC) 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 IGRA’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. 

II. The Submission Process 

In order to facilitate requests for legal opinions and ensure the timely review of submitted 

documents, we ask that submitters and their attorneys send their request and all relevant 

documents to the OGC in electronic format via e-mail to legal_opinions@nigc.gov. 

For requests seeking a legal opinion regarding whether a contract constitutes a management 

contract, please submit documents in final or substantially final form. This does not mean 

that the documents need to be signed and executed. In fact, documents should be submitted 

prior to their execution as the General Counsel is not inclined to provide a legal opinion on 

any documents that have already been executed or in cases where litigation related to the 

documents is pending.1

 The submitted documents should, however, reflect as closely as 

possible the document the parties intend to execute. 

The submission should also include all of the documents to be reviewed and specify the date 

by which the parties hope to receive a legal opinion. Please note that the submission of 

additional documents or changes to any previously submitted documents will delay OGC 

 

1 The proper mechanism for addressing executed agreements that may violate IGRA is to refer 

them to the NIGC Compliance Division.
2 

review and thus the issuance of the opinion. 

III. The Review Process 

The initial review of the request and the supporting documents will be conducted by OGC 

staff attorneys. The amount of time it takes to finish that review is dependent upon several 

factors, including the completeness of each submission, the complexity of the documents, 

the responsiveness of the parties, the availability of OGC staff, and competing priorities set 

by the Commission. 

The OGC will always attempt to meet reasonable time frames for providing an opinion, but 

submitters should expect the review to take weeks, not days. Upon receiving the request, the 

staff attorney assigned to the review will reach out to the submitter to discuss the request 

and the supporting documents. The submitters are encouraged to discuss time frames at 

that point. Further, submitters should also feel free to contact NIGC OGC at any point 

throughout the process. 

During the review stage, OGC staff attorneys may contact the parties and ask for additional 

information or inform the parties that a legal opinion cannot be issued. The parties may also 

withdraw a request for a legal opinion at any time prior to an opinion being issued. The 

review process is not a negotiation between the parties and the NIGC OGC, as the NIGC 

OGC is simply providing a legal opinion. 

Following review, OGC staff attorneys will make a recommendation to the Associate General 

Counsels and the General Counsel. This recommendation, as well as the submitted 

documents, will be reviewed by Associate General Counsels prior to submission to the 

General Counsel. Once the Associate General Counsel has completed his or her review, the 

recommendation and supporting documents will be submitted to the General Counsel, and. 

the General Counsel will make the final decision on whether to issue the legal opinion. 

As OGC legal opinions are intended to inform the public and bring clarity to the Indian 

gaming industry, the opinions will be posted to the NIGC website for public review. The 

opinions and submission materials are also likely to be the subject of Freedom of Information 

Act (FOIA) requests.2

 To that end, submitters are encouraged to mark the specific financial 

and confidential terms found in the submissions in accordance with FOIA Exemption Four.3

FOIA further imposes a “segregability requirement” that requires the NIGC to release all 

reasonably segregable nonexempt material.4

 As such, OGC strongly recommends that 

submitters do not request that NIGC withhold or entirely redact documents, but identify only 

the specific material that comes within the scope of the exemption. Failure to identify exempt 

information and designations that appear obviously frivolous may, pursuant to NIGC 

regulation, be subject to disclosure without future opportunities to object.5

 That being said, 

the NIGC FOIA Office will provide submitter notices to the submitters, when appropriate, to 

ensure that the submitters are provided with an opportunity to convey their specific 

redactions and the bases for them.6

 

2 The Freedom of Information Act can be found at 5 U.S.C. § 552.

3

5 U.S.C. § 552(b)(4).

4 See 5 U.S.C. § 552(b).

5

25 C.F.R. § 517.7(f)(4)-(5).

6

25 C.F.R. § 517.7(a).
3 

IV. Available Resources 

OGC recommends that parties planning to request a legal opinion visit the NIGC’s website at 

www.nigc.gov. Most of the legal opinions issued by the OGC over the years can be found on 

the “Reading Room” page of the site. There, interested parties can find OGC legal opinions 

regarding Indian lands, game classification, management, and sole proprietary interest. A 

party may find that the issue on which they seek an opinion has already been considered by 

the OGC. 

In addition, although OGC attorneys cannot and will not provide legal advice to the parties or 

edit any portion of a document submitted for review, they are generally available to answer 

any questions the parties may have, both before and after the submission of documents.