October 16, 2017 

VIA FIRST CLASS MAIL & FACSIMILE 

Carol Evans 

Chairwoman 

Spokane Tribe of Indians 

P.O. Box 100 

Wellprint, WA 99040 

Fax: (509) 458-6575 

Re: Sales of Washington State Lottery tickets & games on Tribal Trust lands 

Dear Chairwoman Evans: 

Thank you for your letter, dated July 17, 2017, advising that the Spokane Tribe oflndians 

is interested in allowing the sale of Washington State Lottery tickets and games at its 

convenience stores, located on the Tribe's Indjan lands. Prior to initiating such sales, you 

requested an advisory legal opinion addressing two questions: 

1) whether the sale of Washington State Lottery tickets and games on tribal trust lands is 

permissible under IGRA; and 

2) whether compensation of 5% of all ticket and draw game sales to the Tribe violates 

the sole proprietary interest requirement ofIGRA, 25 U.S.C. § 2710(b)(2)(A)? 

As detailed below, the sale of Washington State Lottery tickets and games on tribal trust 

lands constitutes Class lll gaming under IGRA and is permissible in certain circumstances. To be 

lawful under IGRA, the sales of such tickets1 and operation of such games must be authorized by 

an NIGC approved tribal gaming ordinance2 and be conducted in conformance with a tribal-state 

compact that is in effect. In addition, such gaming is subject to the individually-owned gaming 

standards set forth in IGRA and NIGC regulations, which provide that a Tribe receive 60% of 

the net gaming revenue. 

1 By the Tribe or any otner operator, including the State. 2 The Office of General Counsel recommends that the Tribe update its ordinance for this purpose, which was last 

updated and approved in 1996. See Letter to Warren Seyler, Chairman, Spokane Business Council, from Harold A. 

Monteau, NIGC Chairman (March 25, 1996); 

https://www.nigc.gov/images/uploads/gamingordinances/spokanetribe-spokaneord032596.pdf 

NEW MAILING ADDRESS: NIGC/OEPARTMElllT OF THE INTERIOR 1849 C Slreel NW, Moil Slop# 1621 Washington, DC 20240 Tel: 202.632.7003 Fox: 202.632.7066 

REGtONALOFFtCES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Poul, MN; Tulsa OK; Oklahoma City, OK 

WWW.NIOC.GOV 
I. Applicable Law 

a. Fede.-al law - Statutory, regulatory, caselaw, and tribal-state compact 

i. Lotteries 

Lotteries constitute Class III gaming under IGRA. Class III gaming includes all forms of 

gaming that are not Class I or Class II gaming. 3 Since lotteries are not included in the Class ll 

definition, they are Class UL Moreover, NIGC regulations define lotteries as Class III gaming.4 

ii. Indian lands 

All gaming under IGRA is limited to "Indian lands," as IGRA explicitly provides that 

"[a]n Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within 

such tribe's jurisdiction" and that "Class JJI gaming activities shall be lawful on Indian lands."5 

IGRA defines the term "Indian lands" as: 

(A) all lands within the limits of any Indian reservation; and 

(B) any lands title to which is either held in trust by the United States for the 

benefit of any Indian tribe or individual or held by any Indian tribe or individual 

subject to restriction by the United States a§ainst alienation and over which an 

Indian tribe exercises goverrunental power. 

iii. Individually-owned gaming 

As to Class II and lll gaming on Indian lands, IGRA mandates that "the Indian tribe will 

have the sole proprietary interest and responsibility for the conduct of any gaming activity."7 

Excepted from this requirement is individually-owned gaming on Indian lands,8 about which 

IGRA states: 

A tribal ordinance or resolution may provide for the licensing or regulation of class II 

gaming activities owned by any person or entity other than the Indian tribe and conducted 

on Indian lands, only if the tribal licensing requirements include the requirements 

3 25 u.s.c. § 2703(8). 

4 25 C.F.R. § 502.4(d). 

s 25 U.S.C. § 2710(b)(I ); 271 O(d)(l); see also 25 U.S.C. § 27 lO(b)(l )("A separate license issued by the lndian tribe 

shall be required for each place, facility, or location on Indian lands at which class H gaming is conducted."); 25 

C.F.R. § 522.4(b)(6) ("A tribe shall issue a separate license to each place, facility, or location on Indian lands where 

a tribe elects to allow class 11 gaming") and 25 U.S.C. § 2710(d)(2)(A)("If any Indian tribe proposes to engage in, or 

to authorize any person or entity to engage in, a class lll gaming activity on Indian lands ... "). 

6 25 U.S.C. § 2703(4); see also 25 C.P.R. § 502.12. 

7 25 U.S.C. § 2710(b)(2)(A); see also 25 C.F.R. §§ 522.4(b)(J) and 522.6(c). 8 See 25 U.S.C. § 271 O(b)(2)(A) ("except as provided in paragraph (4) [the individually-owned gaming mandate], 

the Indian tribe will have the sole proprietary interest and responsibility for the conduct of any gaming activity."); 

see also 25 C.F.R. § 522.4 (b )( 1) ("The tribe shall have the sole proprietary interest in and responsibility for the 

conduct of any gaming operation unless it elects to allow individually owned gaming under either § 522.10 or § 

522.11 of this part"). 

2 
described in the subclauses of subparagraph (B)(i) and are at least as restrictive as those 

established by State law governing similar gaming within the jurisdiction of the State 

within which such Indian lands are located. No person or entity, other than the Indian 

tribe, shall be eligible to receive a tribal license to own a class II gaming activity 

conducted on Indian lands within the jurisdiction of the Indian tribe if such person or 

entity would not be eligible to receive a State license to conduct the same activity within 

the jurisdiction of the State.9 

This provision is applicable to Class Ill gaming as well, because it is directly incorporated into 

the requirements for Class Ill tribal gaming ordinances in fGRA. 1

° Further, Congress clearly 

contemplated individually-owned Class III gaming on Indian lands, as it explicitly stated: "If any 

Indian tribe proposes to engage in, or to authorize any person or entity to engage in, a class Ill 

gaming activity on Indian lands .... " 11 

NIGC regulations interpret TORA to require that tribal ordinances allowing individuallyowned gamin~ provide for the tribe to receive not less than 60 percent of the net revenues of 

such gaming. 1 

iv. Tl'ibal-State compacts & incorporation of Washington State law into 

the Tribe's compact 

Class Ill gaming under IGRA is also subject to the terms and conditions of the tribal-state 

compact relevant to the particular tribe and state. 13 Pursuant to the statute, such terms and 

conditions may include: the application of criminal and civil laws and regulations of the tribe or 

state regarding the licensing and regulation of the Class III gaming; the allocation of criminal 

and civil jurisdiction between the parties necessary for the enforcement of such laws; an 

assessment by the state to defray costs of regulating; operational standards for the gaming, 

including licensing; and any other matter directly related to the operation of the gaming. 14 

The Tiibe's and Washington State's compact provides: "[t]he sale of Washington State 

lottery tickets on Spokane Indian lands shall be subject to the provisions of [Revised Code of 

9 25 U.S.C. § 2710(b)(4)(A). 10 25 U.S.C. §§ 27 IO(d)( I )(A)(ii)("Class Ill gaming activities shall be lawful on Indian lands only if such activities 

are-- (A) authorized by an ordinance or resolution that--(i) is adopted by the governing body of the Indian tribe 

having jurisdiction over such lands, (ii) meets the requirements of subsection (b) ... "); 2710( d)(2)( A )("If any Indian 

tribe proposes to engage in, or to authorize any person or entity to engage in, a class IJJ gaming activity on Indian 

lands of the Indian tribe, the governing body of the Indian tribe shall adopt and submit to the Chairman an ordinance 

or resolution that meets the requirements of subsection (b)."). 

II 25 u.s.c. § 27JO(d)(2)(A). 12 25 C.F.R. § 522.1 O(c). See also Crosby lodge, inc. v. Nat'/ Indian Gaming Comm'n, 803 f'. Supp. 2d 1198, 1208 

(D. Nev. 2011) (upholding§ 522. lO{c) as a reasonable interpretation of lGRA- "Because lGRA's plain text 

suggests that the entirety of subsection (b) are necessary requirements for non-tribal class Ill gaming licenses, the 

NIGC's interpretation of the statute, requiring a sixty percent net revenue payment to the Tribe, is reasonable. A 

reasonable interpretation of the statute shall not be disturbed or overturned by the court."). 13 25 u.s.c. § 2710(d)(2)(C). 14 25 U.S.C. § 2710(d)(3)(C)(i)-(iii), (vi),(vii). 

3 
Washington] 67.70, [Washington Administrative Code] 315, and the Tribal Ordinance." 15 Under 

this state law, the State Lottery Commission has the power to license agents to sell or distribute 

lottery tickets. 16 Such agents may include federally recognized Indian tribes or businesses 

operated upon lands subject to those tribes' jurisdiction, if the tribal councils associated with 

these tribes and lands enact ordinances which agree to certain conditions, 17 including that: 

all matters relating to the iss~ce and revocation of [the] license, as well as the manner 

in which the sale of lottery tickets is conducted by the licensee, shall be governed 

exclusively by the laws of the state of Washington, and no inconsistent tribal laws, 

ordinances, or rules exist or will be enacted. 18 

Further, every two years, the State Lottery Commission must set the amount of 

compensation to be paid to licensed agents. 19 This amount, however, can be modified by 

Commission resolution "based upon changes in the revenue stream and/or program 

requirements."20 Licensed agents may receive additional compensation through Commission 

approved programs, including, but not limited to: additional discow1ts, games, awards, and 

bonuses.2 At this time, it appears that the base amount of compensation paid to licensed agents 

is five percent (5%) of their ticket and draw game sales.22 

The State Lottery Commission is also charged with apportioning total revenues accruing 

from the sale of lottery tickets to the state's general fund, the lottery administrative account, and 

to the payment of prizes, ensw'ing that payment of prizes "shall not be less than forty-five 

percent [45%] of the gross annual revenue from such lottery."23 

v. Fede1·al caselaw - State lotte1·ies on Indian lands 

IGRA's application to the operation of state lotteries on Indian lands has been the subject 

of two opposing federal opinions - both in the 9lh Circuit, which includes Washington State. 

Importantly, the one opinion that held that IGRA was inapplicable to state lotteries on Indian 

lands was vacated. 

The U.S. District Court for the District of Idaho held that 1 GRA and its statutory 

requirements apply to the play of state lotteries on Indian lands. Specifically, in 1994, the U.S. 

District Court for the District of Idaho held that the State of Idaho was prohibited by IGRA from 

15 Tribal-State Compact for Class III Gaming between the Spokane Tribe and State of Washington, Appendix Bat 

B- l (April 30, 2007). 16 Revised Code of Washington (RCW) 67.70.040 (l)(i). 17 Washington Administrative Code (WAC) 315-04-230(1). 18 WAC 3 l5-04-230(l)(a). 19 RCW 67.70.040 (1)0); WAC 315-08-010 (l)(b)(i) and (v). 20 WAC 315-08-010 (2). 21 WAC 315-04-190 (3) & (3)(a); 315-04-0 l 0 (lottery retailer means licensed agent). 22 http://www.walottery.com/licensingl (5% commission on all Scratch ticket and Draw Game sales). 23 RCW 67.70.040 (l)(k); See also WAC 315-08-010 (I )(b)(ii). 

4 
operating its lottery on an Indian reservation without the authorization of such activity in a tribal 

gaming ordinance and a tribal-state compact.24 In so doing, the court found that: 

Congress enacted IGRA in order to provide a framework to guide states and Indian tribes 

in their efforts to reach agreement both as to the extent of Class III gaming to be 

conducted on tribal lands and how those activities are to be conducted. The purpose of 

IGRA, its clear language, and its legislative history make clear that the extent to which 

state gaming regulations and/or regulatory systems shall apply on Indian reservations is 

to be carefully negotiated between these sovereign entities through the compact 

negotiation process. 

It is obvious that the state lottery is a Class III gaming activity. IGRA expressly provides 

that Class III gaming activities shall be lawful on Indian lands only ~[such activities are 

(1) authorized by an ordinance or resolution of the tribe that meets the requirements of 

the statute and is approved by the commission chahman; (2) located in a state that 

pe1mits such gaming for any purpose by any person, organization, or entity; and (3) 

conducted in confo1mance with a tribal-state compact entered into by the tribe and the 

state. 25 U.S.C. § 2710(d).25 

Because there was no tribal-state compact nor a tribal ordinance authorizing Class Ill gaming on 

the reservation, the cowt held that in the absence of them "neither the Tribe nor any non-tribal 

entity, including the State ofldaho, may conduct Class III gaming on the reservation."26 Thus, 

Idaho could not operate its lottery on the tribe's Indian lands without a compact and a tribal 

ordinance that permitted Class III gaming by non-tribal entities.27 

On appeal, the 9th Circuit Court of Appeals affirmed "substantially" the district court's 

judgment, for the reasons set forth in its opinion, but also based on the holding in Rumsey Indian 

Rancheria of Wintun Indians v. Wilson. 28 In Rumsey, the 91

h Circuit held that the lndian Gaming 

Regulatory Act allows Class ITI gaming activities on Indian lands only if the gaming activities 

are located in a State that permits such gaming for any purpose.

29 The court concluded that since 

Idaho did not permit Class III gaming activities, the tribe had no right to engage in Class III 

gaming. 

The contrary view was taken by the U.S. District Court for the Eastern District of 

Washington, which held that IGRA is inapplicable to state lotteries on Indian lands and that the 

state operated lottery was not preempted by IGRA or other federal law.30 The 9th Circuit Court 

24 Coeur d'Alene Tribe v. State, 842 F. Supp. 1268 {D. Idaho 1994) affd sub num. Coeur D'Alene Tribe v. State of 

Idaho, 51 F.3d 876 (9th Cir. I 995). 25 Coeur d'Alene Tribe v. State, 842 F. Supp. 1268, 1282 (D. Idaho 1994) afj'dsub nom. Coeur D'Alene Tribe v. 

Stale qf ldaho, 51 F.3d 876 (9th Cir. 1995) (emphasis added). 

26 id. 27 id. at 1283. 

28 Coeur D'Alene Tribe v. State of Jdaho, 51 F.3d 876 (9th Cir. 1995). 

29 41 F.3d 421 (9th Cir.1994). 

3

° Confederated Tribes & Bands of Yakama lndian Nation v. Lowry, 968 F. Supp. 531, 532-33 (E.D. Wash. 1996) 

vacated sub nom. Confederated Tribes & Bands of Yakama Indian Nation v. Locke, 176 F.3d 467 (9th Cir. 1999). In 

1997, the Y akama Indian Nation sued Washington State, contending that the state operated lottery on its reservation 

violated IGRA, specifically 25 U .S.C. §§ 271O(b)(4) and ( d)(l )(A)( ii), because the state lottery qualified as Class Ill 

5 
of Appeals vacated the judgment of the district court though, instrncting that the suit be 

dismissed solely on the ground that it was baned by the 11th Amendment and expressing no 

opinion on the question whether the operation of the state lottery on Indian lands violated 

IGRA.31 

II. Analysis 

a. The sale of Washington State lottery tickets and other games on Indian lands 

come within the pm-view of IGRA 

The first question presented is whether IGRA applies to and pennits the sale of 

Washington State lottery tickets and games on the Tribe's tribal trust lands. The answer is - yes. 

As an initial matter, tribal trust lands qualify as "Indian lands" for purposes of IGRA if the title 

to such lands is held in trust by the United States for the benefit of any Indian tribe or 

individual.32 Here, the Tribe's trust lands are Indian lands if they are so held. Second, under 

JGRA, all Class II and Ill gaming that takes place on Indian lands is Indian gaming.33 More 

specifically, lotteries played on Indian lands are Class Ill gaming under IGRA.34 This follows 

from the nature oflndian gaming itself and IGRNs regulatory structure. 

Indian gaming is one expression of Indian tribes' sovereign ability to regulate their own 

affairs on their own land. As applied to gaming, that sovereign power, of course, predates IGRA. 

With the passage of IGRA, Congress placed certain limitations on tribes' ability to run gaming 

operations, the most obvious of which is the requirement for a tribal-state compact before Class 

III gaming is permissible.35 IGRA also imposed a regulatory structure on Indian gaming. A few 

of many possible examples are that gaming may only be conducted pursuant to an approved 

gaming ordinance that contains certain minimum requfrements;36 that third-party management 

contracts are subject to certain limitations and approval by the NIGC Chairman;37 and that 

certain employees are subject to background investigations and suitability detenninations.38 

IGRA's legislative history thus states: 

In determining what patterns of jurisdiction and regulation should govern the 

conduct of gaming activities on Indian lands, the Committee has sought to 

preserve the principles which have guided the evolution of Federal Indian law for 

gaming and, as such, could only be operated lawfully if it was authorized by an NIGC approved tribal gaming 

ordinance and an operative tribal-state compact. In addition, the Tribe claimed that Washington failed to comply 

wit11 IGRA requirement, § 27 JO(b)(4)(B), by not paying the Tribe 60% ofnet revenues. 31 Confederated Tribes & Bands of Yakama Indian Nation v. Lucke, 176 F.3d 467, 470 (9th Cir. 1999). 

32 25 U.S.C. § 2703(4)(8); see also 25 U.S.C. § 2703(5) (definition of"Indian tribe"); 25 C.F.R. §§ 502.12(b)(l ), 

502.13 (definition of"Indian tribe"). 

33 See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2032 (2014) (finding that "on Indian lands" are the 

"three words reflecting IGRA's overall scope"). State law, of course, does not apply to gaming on Indian lands 

because Congress preempted the field with the passage of IGRA. Gaming Corp. nfAmerica v. Dorsey & Whitney, 

88 F.3d 536, 547 (8111 Cir. 1996); Cabazon Band of Mission Indians v. Wilson, 37 F.3d 430, 433 (9th Cir. 1994). 34 25 U.S.C. § 2703(8); 25 C.F.R. § 502.4(d). 35 25 u.s.c. §§ 2710(d)(J)(C), 2710{d)(3). 36 25 U.S.C. §§ 2710{b)(J)-(2), 2710(d)(l))(A). 

37 25 U.S.C. §§ 2710(b)(J )-(2), 271 O(d)(l ))(A). 38 25 U.S.C. § 2710(2)(F). 

6 
over 150 years. In so doing, the Committee has attempted to balance the need for 

sound enforcement of gaming laws and regulations with the strong Federal 

interest in preserving the sovereign rights of tribal governments to regulate 

activities and enforce laws on Indian land. The Committee recognizes and affinns 

the principle that by virtue of their original tribal sovereignty, tribes reserved 

certain rights when entering into treaties with the United States, and that today, 

tribal governments retain all rights that were not expressly relinquished. 

Consistent with the principles, the Committee has developed a framework for the 

regulation of gaming activities on Indian lands.39 

Notwithstanding these limitations and this regulatory structure, Indian gaming remains an 

expression of tribal sovereignty, and Indian tribes remain the primary regulators of gaming 

activities on Indian lands. As such, within IGRA's regulatory structure, tribes may license and 

regulate gaming operations on Indian lands owned by non-tribal entities or by individuals. 

A tribe may, subject to ce1tain requirements and limitations, '"provide for the licensing or 

regulation of class II gaming activities owned by any person or entity other than the Indian tribe 

and conducted on Indian lands .... "

40 Likewise, a tribe may "authorize any person or entity to 

engage in a class lll gaming activity on Indian lands of'the Indian tribe .. .. "

41 This plain and 

unambiguous language makes no distinction between types of non-tribal persons or entities 

eligible to game on Indian lands, including states. 

This view is supported by a decision from the U.S. District Court of the District ofldaho 

that found that IGRA applied to a state lottery on Indian lands. As described above, the court 

concluded that the state lottery on an Indian reservation was a Class III game and to be lawful, it 

had to be conducted pW'suant to an approved NIGC tribal ordinance and a tribal-state compact 

that horiz~s the state's activity.

42 

The contrary opinion - that IGRA does not apply to state operated gaming on Indian 

lands - of the U.S. District Court for the Eastern District of Washington was vacated.43 In ow· 

view, this opinion has no legal precedence.44 And, even if the opinion is considered to have some 

infonnational or persuasive value, because the Circuit court did not address the issue of IGRA's 

39 S. Rep. 100-446 at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3075-3076. 40 25 U.S.C. § 27 lO(b)(4)(A) (emphasis added). 41 25 U.S.C. § 2710(d)(2)(A) (emphasis added). 42 Coeur d'Alene Tribe v. State, 842 F. Supp. 1268, 1282 (D. Idaho l 994) affd sub nom. Coeur D'Alene Tribe v. 

State of Idaho, 51 F.3d 876 (9th Cir. 1995). 43 Confederated Tribes & Bands ofYakama lndian Nation v. Locke, 176 F.3d 467, 470 (9th Cir. 1999). 44 See O'Connor v. Donaldson, 422 U.S. 563, 577 n. 12 (1975) ("Of necessity our decision vacating the judgment of 

the Court of Appeals deprives that court's opinion ofprecedential effect .... "); Cousineau v. United States, 493 F.2d 

692, 694 n.1 (9th Cir. 1974) {"The vacated opinions are, of course, of no legal precedence."); Durning v. Citibank, 

N.A., 950 F.2d 1419, 1424 n. 2 (9th Cir. 1991) ("A decision may be reversed on other grounds, but a decision that 

has been vacated has no precedential authority whatsoever."); United State.~ v. James, 8 F.3d 32 (9th Cir. 1993) 

(finding that a vacated opinion has no precedential effect); Natural Res. Def Council, Inc. v. Hodel, 865 F.2d 288, 

319 (D.C. Cir. 1988) ("it is elementary that a vacated district court decision is not binding precedent and should not 

be cited as such"). 

7 
application in its vacating order,45 the 9th Circuit's substantial affirmance of the lJ .S. District 

Court for the District of Idaho's judgment in Coeur d'Alene Tribe v. State - described above -

negates that value.46 In any event, the vacated opinion is not binding on the NIGC or the Tribe, 

as neither the Tribe, the United States, nor the Agency was a party to it.47 Therefore, the NIGC 

Otlice of General Counsel follows the view of the U.S. District Court of the District of Idaho. 

Moreover, the view that TORA applies to all gaming activities on Indian lands has been a 

longstanding one of the NIGC Office of General Counsel. In a prior legal opinion concerning the 

White Earth reservation in Minnesota, the NIGC Office of General Counsel addressed the 

question of IGRA's applicability to gaming by non-tribal entities on Indian lands. The legal 

opinion states in relevant part: 

We note that IGRA's jurisdiction is not limited to gaming conducted by tribal 

entities or members. Rather, IGRA 's jurisdiction runs with the land and allows 

gaming, even by non-tribal entities, that is conducted on Indian lands. 25 U.S.C. 

§ 2710(b)(4)(A) ("A tribal ordinance or resolution may provide for the licensing 

or regulation of class II gaming activities owned by any person or entity other 

than the Indian tribe and conducted on Indian lands, only if the tribal licensing 

requirements include the requirements described [below] ... and are at least as 

restrictive as those established by State law ... "). 

*** 

Because IGRA 's applicability is determined by the character of the land on which 

gaming is conducted rather than by who is conducting the gaming, we note that 

the situation at hand is not governed by the line of cases analyzing whether tribes 

have jurisdiction over non-members on non-Indian owned fee land within the 

reservation. The primary case in this line of cases is Montana v. United States, 

450 U.S. 544 (1981) .... Because Congress has made IGRA's application 

dependent upon whether the gaming is conducted on Indian lands, not upon on 

whether the gaming is conducted by Indian or non-Indian people, we need not 

engage in a jurisdiction analysis under J\1ontana.48 

4

s See DHX Inc. v. Allianz AGF MAT, ltd, 425 F.3d 1169, 1176 (9th Cir. 2005) ("a vacated opinion still carries 

informational and perhaps even persuasive or precedential value")( citing U.S. v. Joelson, 7 F.3d I 74, 178 n. 1 (9th 

Cir.1993) (stating that a certain vacated Court of Appeals opinion "has no precedential effect" but citing the vacated 

opinion for its infonnational and persuasive value)); Endsley v. Luna, 750 F. Supp. 2d 1074, 1110 n. 6 (C.D. Cal. 

2010) ajf'd, 473 F. App'x 745 (9th Cir. 2012) ("the Ninth Circuit and others have taken the position that a vacated 

judgment retains precedential authority on those issues not addressed in the order vacating it. See, e.g., Santos v. 

Gates, 281 F.3d 846, 855 n. 11 (9th Cir.2002) (a vacated opinion "remains good law with respect" to an issue not 

addressed in the order vacating it)"). 46 Coeur d'Alene Tribe v. State, 842 F. Supp. 1268, 1282 (D. Idaho l 994) qffd sub nom. Coeur D'Alene Tribe v. 

State of Idaho, 51 F.3d 876 (9th Cir. 1995); See, e.g., Action Alliance of Senior Cilizens of Greater Philadelphia v. 

Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) ("Although the Supreme Court vacated our prior opinion, it expressed no 

opinion on the merit of these holdings. They therefore continue to have precedential weight, and in the absence of 

contrmy authority, we do not disturb them.") (emphasis added). 

47 Parklane Hosie1y Co. v. Shore, 439 U.S. 322, 327 n.7 ( 1979) ("It is a violation of due process for a judgment to 

be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard."). 

48 NIGC Office of General Counsel, White Earth Legal Opinion at pp. 8-9 (March 14, 2005) (emphasis added). 

8 
Finally, the NIGC Otlice of General Counsel implicitly addressed the question of 

IGRA's applicability to the operation of state lotteries on Indian lands in 2008 when it reviewed 

the Nez Perce compact with Idaho, which allowed the state to operate its lottery on the tdbe's 

reservation.49 OGC tacitly concluded that IGRA applied to the state lottery operation in 

confirming that the tribe received the requisite amount of net gaming revenue from the state 

lottery sales50 

as required by IGRA51 and in cautioning the patties to abide by other IGRA 

obligations. 52 

Therefore, in light of the foregoing, all gaming sales and operations on Indian lands 

constitute gaming activity subject to IGRA. 

b. IGRA's requirements for the sale of state lottery tickets and games on Indian 

lands 

i. Compensation for individually-owned gaming 

The second question posed is whether compensation of 5% of all ticket and draw game 

sales to the Tribe violates the sole proprietat·y interest requirement ofIGRA, 25 U.S.C. 

§ 271 O(b )(2)(A)? As explained above, IGRA applies to the sale of state lottery tickets and 

games on the Tdbe's Indian lands. When such sales occur by the Tribe, the State, or any other 

entity, the individually-owned gaming mandate of IGRA is implicated because the State, not the 

Tribe, owns that gaming. 53 The sole proprietary interest requirement of IGRA, however, is 

explicitly excepted from the individually owned gaming mandate and is not pertinent here. 54 As 

explained above, the individually-owned gaming mandate applies to both Class 11 and Class III 

gaming. 55 Further, NIGC regulations interpreting that mandate require that the State provide the 

Tribe 60% of the net gaming revenue

56 from such sales.

57 

The Tribe's compact, incorporating certain Washington state law and regulations, does 

not negate the 60% net gaming revenue requirement. First, the compact itself is a creature of 

IGRA. Second, IGRA preempts the field, and would nullify any contradictory state law 

49 2008 Class TH Gaming Compact between the Nez Perce Tribe and the State of Idaho. 50 Letter to Jeffrey R. Anderson, Director, Idaho Lottery, and Samuel N. Penney, Chairman, Nez Perce Tribe from 

Penny J. Coleman (Nov. 14, 2008) at 1. 

51 See25 U.S.C. §§ 2710(b)(4)(A), (b)(4)(B)(i)(Ill), (d)(1)(2)(A)(ii), and (d)(2)(A). 

52 Letter to Jeffrey R. Anderson, Director, Idaho Lottery, and Samuel N. Permey, Chairman, Nez Perce Tribe from 

Penny J. Coleman, supra at 2 (OGC reminded the parties of the obligation under IGRA to construct, maintain, and 

operate the state lottery retail outlets in a manner that adequately protects the environment and health and public 

safety as well as to provide notice to the Commission, prior to the opening of any retail outlet, in accordance with 

the NTGC's facility license regulations.). 53 25 U.S.C. § 2710(b)(4)(A). 

54 See 25 U.S.C. § 2710(b)(2)(A) ("except as provided in paragraph (4) [the individually-owned gaming mandate), 

the Indian tribe will have the sole proprietary interest and responsibility for the conduct of any gaming activity."); 

see also 25 C. F .R. § 522.4 (b )(I) ("The tribe shall have the sole proprietary interest in and responsibility for the 

conduct of any gaming operation unless it elects to allow individually owned gaming under either§ 522.10 or§ 

522. l l of this part"). 55 25 U.S.C. § 2710(b)(4)(A); 25 U.S.C. §§ 2710(d)(l)(A)(ii) and (d)(2)(A). 56 See 25 C.F.R. § 502.16 (defining "net revenue"). 57 25 C.F.R. § 522. lO(c). 

9 
requirements if they did exist.58 But, a review of such law shows that they do not.59 The 

conditions in Washington State law agreed to by tribes do not involve compensation60 and arc in 

line with allowable compact provisions, speaking to operational standards for the lottery, the 

application of laws regarding licensing and regulation of the lottery, and the enforcement of 

them. 

61 

ii. Other IGRA requirements 

For this gaming to be lawful, other requirements apply. As discussed previously, 

individually-owned gaming must be authorized by an NIGC approved tribal ordinance62 and a 

tribal-state compact that is in effect.63 In addition, and the Tribe must use that income in 

accordance with IGRA; the State must pay an annual fee to the NIGC; the licensing standards for 

such gaming must be as restrictive as those established by State law; licenses for people or 

entities must be denied if they would not be eligible to receive a State license to conduct the 

same activity; and State law standards must apply to the purpose, entity, pot limits and horns of 

operation.

64 

Moreover, other mandates ofJGRA and NJGC regulations must be abided by, including 

the requirements to: submit annual audits for the gaming operation to the NIGC; ensure that the 

construction, maintenance, and operation of the gaming adequately protects the environment, 

public health and safety; and the facility license standards. 65 

III. Conclusion 

IGRA applies to the operation of state lotteries and the sale of state lottery tickets and 

games on Indian lands. To be lawful, such gaming must be authorized by an NIGC approved 

tribal gaming ordinance that provides for individually-owned gaming and a tribal-state compact 

that is in effect. To comply with IGRA, Washington State must pay the Tribe 60% of the net 

gaming revenue of such ticket and game sales. 

Please be advised that this legal opinion is advisory in natme only and that it may be 

58 See Gaming Corp. qf America v. Dorsey & Whitney, 88 F.3d 536, 547 (81

h Cir. 1996); Cabazon Band qf Mission 

lndiam v. Wilson, 37 F.3d 430, 433 (9th Cir. 1994). 

~ See RCW 67.70.040 (j) (allowing the State Lottery Commission to set the manner and amount of compensation to 

be paid to licensed agents but not putting any limits on that compensation) and 67.70.040 (k)(the only statutory 

limitation is that the payment of prizes to winning tickets shall not be less than 45% of the gross annual revenue 

from the lottery), WAC 315-04-230, WAC 315-04-190 (Compensation), WAC 315-08-010 (Directing the State 

Lottery Commission to set "[t]he total amount of moneys which may be expended from the state lottery account," 

including the payment ofretailer compensation but allowing the Commission to amend by resolution such amounts 

based upon changes in the revenue stream and/or program requirements). 60 WAC 315-04-230( I). 61 WAC 3 I 5-04-230(1 )(a) ("all matters relating to the issuance and revocation of [the] license, as well as the 

manner in which the sale of lottery ticket.~ i.~ conducted by the licensee, shall be governed exclusively by the Jaws of 

the state of Washington, and no inconsistent tribal laws, ordinances, or rules exist or will be enacted.") (emphasis 

added). 

62 25 U.S.C. §§ 2710(b)(4)(A); 2710(d)(l)(A)(ii); 2710(d)(2)(A). 63 25 C.F.R. § 522.10; Coeur d'Alene Tribe v. State, 842 F. Supp. 1268, 1282 (D. Idaho 1994) aff'd sub nom. Coeur 

D'Alene Tribe v. State of Idaho, 51 F.3d 876 (9th Cir. 1995). 64 25 C.F.R. § 522.10. 65 25 U.S.C. §§ 2710(b)(2)(C), (E), and (F); 25 C.F.R. § 559. 

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superseded, reversed, revised or reconsidered by a subsequent General Counsel or Acting 

General Counsel. Moreover, this advisory legal opinion is not binding upon the NIGC Chairman 

or Commission, who are free to disagree with it in any action that comes before them or via the 

Chairman's prosecutorial discretion. In sum, this advisory legal opinion does not constitute 

agency action or final agency action for pu~oses of review in federal district court and is issued 

solely as a matter of courtesy to the Tribe.6 , If you have any questions, please contact Jo-Ann M. 

Shyloski, Of Counsel, at 202-632-7003 . 

Michael Hoenig 

General Counsel 

66 See Kansas ex rel. Schmidt 11. Zinke, 861 F.3d I 024, I 031 ( l 0th Cir. 2017) (" IG t\'~ text, statutory structure, 

Jegislativ1,; history, and associated regulations all establish that Congress did nm intend j udicial review ofNIGC 

Gen era I Counsel opinion Jeucrs. "); https://www.nigc.gov/genera I-counsel/legal-op in ions 

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