National Indian Gaming Commission Policy on Consultation with Indian Tribes 

I. Preamble 

The obligation for Federal agencies to engage with Indian Tribes on a government-to 

government basis is based on the U.S. Constitution and Federal treaties, statutes, 

executive orders, and policies. Federal agencies help to meet that obligation through 

meaningful consultation with Indian tribes. 

The National Indian Gaming Commission (Commission) is committed to fulfilling its 

tribal consultation obligations—whether directed by statute or administrative action such 

as Executive Order (EO) 13175 (Consultation and Coordination with Indian Tribal 

Governments) —by adhering to the consultation framework described in this Policy. 

Through this Policy, the Commission strives to strengthen its government-to government 

relationship with Indian tribes and begin a new era of consultation. This Policy reflects 

the Commission’s commitment to consultation with Indian tribes, recognition of Indian 

tribes’ right to self- governance and tribal sovereignty. 

The Commission shall review its existing practices and revise them as needed to comply 

with this Policy. 

II. Guiding Principles 

This Policy broadly defines provisions for enhancing the Commission’s consultation 

processes with Indian tribes. This Policy shall complement, not supersede, any existing 

laws, rules, statutes, or regulations that guide consultation processes with Indian Tribes. 

This Policy requires a government-to-government consultation between appropriate tribal 

Officials and Commission officials. The appropriate Commission officials are those 

individuals who are knowledgeable about the matters at hand, are authorized to speak for 

the Commission, and exercise delegated authority in the disposition and implementation 

of an agency action. Commission officials will identify appropriate Tribal consulting 

parties early in the planning process and provide Indian tribes a meaningful opportunity 

to participate in the consultation process as described in Section VII of this Policy. 

Commission officials will participate in the consultation process in a manner that 

demonstrates a meaningful commitment and ensures continuity in the process. 

The Policy thus honors the government-to-government relationship between the United 

States and Indian tribes, and complies with the Presidential Memorandum of November 

5, 2009, which affirms this relationship and obligates the Commission to meet the spirit 

and intent of EO 13175. The Commission understands that Indian gaming is tribal 

government gaming. Its foundation rests upon the inherent, sovereign powers of Indian 

tribes to make and enforce their own laws and to govern their own territory. The 

Commission acknowledges that Indian tribes, as sovereign nations, have the right to 

make their own laws and be ruled by them. Indian gaming is used by Indian tribes as a 

tool to effectively serve Indian tribal communities by strengthening Indian tribal 

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governments, enhancing a community's self-sufficiency, and creating economic 

opportunities, growth and stability. 

Consultation is a deliberative process that aims to create effective collaboration and 

informed Federal decision-making. Consultation is built upon government-to-government 

exchange of information and promotes enhanced communication that emphasizes trust, 

respect, and shared responsibility. Communication will be open and transparent without 

compromising the rights of Indian tribes or the government-to-government consultation 

process. Federal consultation conducted in a meaningful and good-faith manner further 

facilitates effective Commission operations and governance practices. To that end, the 

Commission will seek and promote cooperation, participation, and efficiencies between 

agencies with overlapping jurisdiction, special expertise, or related responsibilities 

regarding a Commission Action with Tribal Implications. Efficiencies derived from the 

inclusion of Indian tribes in the Commission’s decision-making processes through tribal 

consultation will help ensure that future Federal action is achievable, comprehensive, 

long-lasting, and reflective of tribal input. 

III. Definitions 

Collaboration – The Commission and Indian tribes working together to implement this 

Policy. 

Commission Action with Tribal Implications – Any Commission regulation, rulemaking, 

policy, guidance, legislative proposal, or operational activity that may have a substantial 

direct effect on an Indian tribe on matters including, but not limited to: 

A. The ability of an Indian tribe to regulate its Indian gaming; 

B. An Indian Tribe’s formal relationship with the Commission; or 

C. The consideration of the Commission’s trust responsibilities to Indian tribes. 

This, however, does not include matters that are the subject of an Enforcement Action, in 

litigation or in settlement negotiations, or matters for which a court order limits the 

Commission’s discretion to engage in consultation. 

Consultation Policies – Those policies established to comply with the procedures 

described in Section VII. 

Enforcement Action - means any action taken by the Chair under 25 U.S.C. § 2713 

against any person engaged in gaming, for a violation of any provision of IGRA, the 

regulations of the Commission, or tribal regulations, ordinances, or resolutions approved 

under 25 U.S.C. § 2710 or § 2712 of IGRA, including, but not limited to, the following: 

A notice of violation; a civil fine assessment; or an order for temporary closure.

IGRA – Indian Gaming Regulatory Act. 

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Indian Tribe or Tribe – Any Indian or Alaska Native tribe, band, nation, pueblo, village, 

or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe 

pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. § 479a. 

Tribal Official – An elected or appointed tribal leader or official designated in writing by 

an Indian tribe to represent the tribe in government-to-government consultations. 

IV. Accountability and Reporting 

Methods that ensure accountability and reporting are essential to regular and meaningful 

consultation. The Commission shall include appropriate performance measures consistent 

with this Policy in future annual performance plans of their employees. 

The Commission will report the results of its efforts to promote consultation with Indian 

tribes. Reporting is intended to be comprehensive and may include, but is not limited to, 

the scope of consultation efforts, the cost of these efforts, and the effectiveness of 

consultation activities. The Commission will provide a comprehensive listing of the 

topics on which consultations were held, training, innovations, and the engagement of 

senior leadership in these efforts. Each consultation the Commission holds will be 

transcribed. The transcript from each consultation will be posted on the Commission’s 

website. Indian tribes will also be given an opportunity to submit written comments. The 

Commission will post on its website any documents and correspondence with Indian 

Tribes that address the Implementation of the Final Federal Action Stage described in 

Section VII of this Policy, narratives describing significant consultation efforts, and 

forthcoming consultation opportunities. 

V. Training 

The Commission will design training for Commission staff aimed at improving the 

Commission’s capacity for promoting collaboration with Indian Tribes and executing the 

consultation provisions of Section VII of this Policy. The training will: 

A. Promote consultation, communication, collaboration, and other interaction 

with tribes; 

B. Outline and reinforce the Commission’s duties concerning Indian gaming; 

C. Describe the legal trust obligation of the federal-tribal relationship; and 

D. Highlight and provide the knowledge, skills, and tools necessary for 

collaborative engagement to tribal and Commission staff engaged in the 

consultative process with attention to the unique distinctions within Indian 

Country. 

The Commission will develop and deliver training to facilitate implementation of this 

Policy. This training will seek to enhance mutual understanding of cultural perspectives 

and administrative requirements between tribal and Federal officials and to promote 

inter-governmental relationships. Tribal representatives will be encouraged to participate 

in training along with Federal employees. 

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VI. Innovative and Effective Consultation Practices 

The Commission’s leadership will strive to advance Federal consultation practices and to 

offer examples for innovation. The Commission will identify and seek to address 

impediments, both external and internal, to improving its consultation processes. The 

Commission may: 

A. Host regular meetings between the Commission and Indian tribes; 

B. Communicate through a regular gathering of Indian tribes to discuss 

improving consultation practices and procedures; 

C. Solicit recommendations from Indian tribes for the initial development of 

performance measures described in Section IV, and thereafter for the 

evaluation of consultation practices. 

VII. Consultation Guidelines 

Consultation guidelines are meant to establish uniform practices and common standards, 

through an individual protocol conforming to the guidelines in this Section. Consultation 

and individual protocols will provide greater efficiency and transparency in Commission 

practices in order to maximize Indian tribes’ participation. Commission Actions with 

Tribal Implications that are regional or impact a limited number of Indian Tribes shall be 

carried out in a manner consistent with this Policy while allowing discretion to employ 

only appropriate parts of this Section. 

A. Initiating Consultation. 

When considering a Commission Action with Tribal Implications, the 

Commission will notify the appropriate Indian Tribe(s) of the opportunity to 

consult pursuant to this Policy. The Commission will strive to ensure that a notice 

is given at least 30-days prior to scheduling a consultation. If exceptional 

circumstances prevent notice within 30-days of the consultation, an explanation 

for the abbreviated notification will be provided in the invitation letter. An Indian 

tribe may request an extension for timelines associated with this Policy. 

Adequate notice entails providing a description of the topic(s) to be discussed, a 

timeline of the process, and possible outcomes. Notification of a consultation 

should include sufficient detail of the topic to be discussed to allow tribal leaders 

an opportunity to fully engage in the consultation. The notice should also give 

tribal leaders the opportunity to provide feedback prior to the consultation, 

including any request for technical assistance or request for clarification of how 

the consultation process conforms to this Policy. 

Beginning at the Initial Planning Stage, see Section VII, Part E, Subsection 1, the 

Commission will consult with Indian Tribes on a Commission Action with Tribal 

Implications. An Indian tribe may request that the Commission initiate 

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consultation when the Indian tribe believes that it is considering a Commission 

Action with Tribal Implications. Requests should be made in writing to the 

Commission and should describe the specific Commission Action with Tribal 

Implications. If the Commission initiates consultation with a tribe but does not 

receive a response, the Commission will make reasonable and periodic efforts to 

repeat the invitation and, whenever feasible, will allow an Indian tribe to join an 

ongoing consultation. These efforts of engagement will be appropriately 

documented. 

B. Role of the Commission in Consultation Process. 

1. Monitoring compliance with this Policy, EO 13175, and other Consultation 

Policies pertaining to government-to-government consultation; 

2. Promoting government-to-government consultation; 

3. Implementing a reporting system to ensure that consultation efforts are 

documented and posted to the Commission’s website and 

4. Facilitating a government-to-government relationship that is honored by all 

parties in tribal consultations of national significance or involving multiple 

Regions. 

5. Promoting and facilitating consultation and collaboration between Indian 

tribes and the Commission; 

6. Advocating opportunities for and consideration of the positions of Indian 

tribes, consistent with the Commission’s mission; 

7. Striving to enhance a trusting and on-going relationship with Indian tribes, 

consistent with applicable law and executive orders; and 

8. Serving as a contact for Indian tribes to request or inquire about 

consultation. 

C. Guidelines for Response to Request for Consultation. The Commission will 

confirm receipt of a request for consultation from a tribal official. The 

Commission will treat an official request for consultation in an expedited 

fashion and respond in writing that the Commission has received the request, 

using the most expedient methods to communicate to the Indian tribe. 

D. Stages of Consultation. The Commission will carry out the consultation stages 

described below for a Commission Action with Tribal Implications. 

1. Initial Planning Stage. The Commission will consult with Indian tribes as 

early as possible when considering a Commission Action with Tribal 

Implications. The Commission may conduct a meeting or other forms of 

interaction with Indian tribes in order to receive and evaluate comments 

received as part of the Initial Planning Stage. 

2. Proposal Development Stage. The Proposal Development Stage begins 

once the Commission discloses the scope of a Commission Action with 

Tribal Implications. The Commission will develop a process for the 

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Proposal Development Stage that maximizes the opportunity for timely 

input by Indian Tribes and is consistent with both tribal and Commission 

schedules. 

The Commission will solicit the views of affected Indian tribes regarding 

the process timeline to consult on a Commission Action with Tribal 

Implications. The Commission will work with Indian tribes to structure a 

process, to the extent feasible, that considers specific Indian tribal 

structures, traditional needs, and schedules of the Indian tribes. The 

Commission will make all reasonable efforts to comply with the expressed 

views of the affected Indian tribes regarding the process timeline at this 

Stage, taking into account the level of impact, the scope, and the 

complexity of the issues involved in the Commission Action with Tribal 

Implications, along with the other factors driving the schedule. The 

process will be open and transparent. The Commission will then proceed 

with the expectation that interested Indian tribes will respond within a 

reasonable time period. 

 When the matter under consultation involves confidential or culturally 

sensitive information, the Commission will work with the Indian tribe to 

develop a consultation process that addresses the sensitivity of the 

information to the extent permitted by Federal law. If litigation or legal 

requirements impact the Commission’s schedule for conducting 

consultation, the Commission will explain these constraints to the Indian 

tribe. 

 Examples of appropriate processes for the Proposal Development Stage 

include, but are not limited to, the following: 

 • Negotiated Rulemaking. Where appropriate, the Commission shall 

consider using negotiated rulemaking for developing significant 

regulations or other formal policies in accordance with the Federal 

Advisory Committee Act (FACA) and the Negotiated Rulemaking Act. 

 • Series of Open Tribal Meetings. The Commission may provide open 

invitations for tribal leaders to attend a series of open meetings. Open 

meetings can be used for national, regional or subject-matter specific 

issues. 

• Tribal Advisory Committees. The Commission will, to the extent 

necessary and appropriate, consult with affected tribes to select and 

establish fairly representative intertribal work groups, task forces, or 

advisory committees to assist the Commission and tribes in developing 

administrative rules or legislative recommendations to address and resolve 

certain issues of regulatory concern regarding the operation and regulation 

of Indian gaming under IGRA. 

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 • Single Meetings. The Commission may host tribal officials in a single 

meeting to discuss a Commission Action with Tribal Implications under 

consideration. Single meetings are particularly appropriate for local or 

regional issues, or a tribe-specific issue. 

 If the Commission determines that the Administrative Procedure Act or 

other Federal law or regulation expressly prohibits continued discussion at 

a specified point in the decision-making process, the Commission will so 

inform the Indian tribes at the earliest opportunity in this stage in the 

process. 

3. Implementation of Final Federal Action Stage. 

The Commission may consider implementing a post-consultation review 

process where it is consistent with law, regulations, and EO 13175. The 

review process shall not limit the Commission’s deliberative process 

privilege regarding internal considerations or any other applicable 

privilege. The Commission may invite feedback from the Indian tribe of 

the consultation process at this stage. The Commission also will consider 

the need for training or technical assistance concerning the final Federal 

action. 

E. Impact of Consultation Guidelines. Consultation does not preclude requests or 

recommendations by Indian tribes to collaborate and foster collaborative 

relationships between the Commission and Indian tribes outside of the 

processes described in this section. 

VIII. Limitations 

Except to the extent already established by law, this Policy is intended only to improve 

the internal management of the Commission, and is not intended to create any right, 

benefit, or trust responsibility, substantive or procedural, enforceable at law by a party 

against the Commission or any person. The Commission also does not waive by virtue of 

this Policy any applicable privilege that it may hold. 

This policy is not intended to create a forum for resolution of specific disputes or issues 

that are the subject of litigation between the Commission and an Indian tribe(s) nor is it 

meant to replace presently existing lines of communication. 

As an independent Federal regulatory agency, the Commission has authority and 

responsibilities under IGRA to conduct investigations, take enforcement actions, and 

render regulatory and quasi-judicial decisions regarding the approval of tribal gaming 

ordinances and third party management contracts, the suitability of management 

contractors to participate in Indian gaming, and tribal compliance with the Act. The 

nature of these statutory responsibilities necessarily places some limitations on the nature 

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and type of consultation that the Commission may engage in with the involved Indian 

tribes. These limitations on consultation are necessary to preserve the integrity of the 

Commission's investigations, Enforcement Actions, and decision-making processes, and 

also comply with provisions of the Federal Administrative Procedures Act that limit 

Commission contact with parties in contested cases. Nevertheless, the Commission will 

endeavor, to the extent practicable and permitted by law, to reduce procedural 

impediments to consulting directly with Indian tribal governments to resolve issues 

regarding the operation and regulation of Indian gaming under IGRA. 

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