For Quick Release… – Lumbee Tribe of North Carolina

Lumbee Leadership Requests Expert Legal Review of Constitution and Gaming Amendment Compliance Under NIGC Standards

Chairman Lowery and Speaker Baker requested that Mr. Philip Hogen (Oglala Sioux) of Hogen Adams overview the Lumbee Constitution and the proposed amendments and supply a authorized opinion concerning whether or not there are drafting errors within the present Constitution and if the proposed amendments are compliant with the necessities of the National Indian Gaming Regulatory Act (NIGRA). He is a former United States Attorney and served on the National Indian Gaming Commission (NIGC) for ten (10) years underneath the Bush and Obama Administrations, together with as Chairman for seven (7) years. Mr. Hogen has practiced within the space of Indian gaming for practically 40 years.

Chairman John Lowery and Speaker Alex Baker

Lumbee Tribe of North Carolina

6984 NC Hwy 711

Pembroke, NC 28372

Re: Proposed Amendments to the Lumbee Constitution

Dear Chairman Lowery and Speaker Baker:

I used to be requested to take a look at the present Lumbee Constitution and the proposed amendments

to the Lumbee Constitution and supply my opinion on (a) whether or not Article VIII as

at present written incorporates a drafting error, and (b) whether or not the method envisioned by

the proposed amendments for gaming measures violates federal regulation or

suggestions of the National Indian Gaming Commission (NIGC). I served on the

NIGC for 10 years and was Chairperson of the Commission for seven of these years. I

have practiced regulation within the space of Indian gaming for practically 40 years.

My opinion is restricted to the 2 points listed above, and I categorical no opinion about

whether or not Tribal Members ought to vote for or in opposition to the proposed amendments.

Drafting Errors in Article VIII1

In my view, there are two drafting errors within the present Constitution that primarily

make it unattainable for the Tribe to maneuver ahead with gaming. First, Article VIII, which

offers with the Tribal Chairperson’s authority, supplies at Section 1(b) that inside 10

days of passage of a tribal ordinance that authorizes gaming or taxes on Tribal

Members, the Tribal Chairperson should certify the ordinance for referendum, “to be

conducted in accordance with Article V of the Constitution.” But Article V incorporates the

process for initiatives (votes to enact ordinances proposed by the membership), not

referendums (votes to rescind ordinances enacted by the Tribal Council). In different phrases,

it isn’t doable for the Tribal Chairperson to adjust to Article VIII as at present

written.

Another downside with Article VIII, Section 1(b) is that it says that “[n]o ordinance

certified as requiring a referendum shall be effective unless and until such ordinance is

approved by a majority of those voting in the referendum.” (Emphasis added). The

basic objective of a referendum is to not approve an ordinance, nonetheless, however to

rescind an ordinance. Article VI of the Constitution, which governs referendums, makes this clear at Section 7, which says that if a referendum vote is correctly held and

supported by a majority of voters, “the Tribal Elections Board shall declare the

ordinance rescinded.” There is not any course of for voters to approve an ordinance by

referendum within the present Constitution.

The proposed modification to Article VIII fixes these issues by eradicating the

reference to Article V from Article VIII and deleting the language about approving a

gaming ordinance by referendum. The proposed modification additionally goes one step additional by eradicating the requirement for a referendum vote for an ordinance authorizing

gaming altogether (though a referendum vote continues to be required for an ordinance

imposing taxes on Tribal Members).

Propriety of Having the Chairperson Negotiate Compacts and Nominate Gaming

Enterprise Board and Regulatory Board Members with Approval of the Tribal

Council

The Tribe can also be proposing amendments to Article VII, Section 1, and Article VIII,

Section 1, to codify a course of by which Tribal gaming officers could also be appointed to the

board of any Tribal gaming regulatory physique and any Tribal gaming enterprise. The

proposed amendments would authorize the Tribal Chairperson to appoint these

gaming officers and authorize the Tribal Council to verify or reject these

nominations. The amendments would additionally enable the Tribal Chairperson to barter

gaming compacts, to be authorised (or rejected) by the Tribal Council.

In my expertise, this can be a pretty typical division of energy between the manager department

(the Tribal Chairperson) and the legislative department (the Tribal Council) of presidency.

It requires the Tribal Chairperson to barter compact phrases which can be acceptable to the

legislative department, and to appoint members of the Tribe’s gaming regulatory and

enterprise entities who the Tribal Council will approve.

Having the Chairperson nominate and the Tribal Council approve members of the

Tribe’s gaming regulatory physique is according to federal regulation and is widespread throughout

Indian nation. While the Indian Gaming Regulatory Act (IGRA) doesn’t mandate

how Indian tribes should choose their gaming regulators, the NIGC mannequin gaming

ordinance outlines a number of broad choices that tribes might select from, together with

appointing gaming officers by way of the tribe’s governing physique. See NIGC Revised

Model Gaming Ordinance at § 8(C). And a number of tribes have procedures like these

proposed right here, codified in tribal gaming ordinances authorised by the NIGC. See, e.g.

Eastern Band of Cherokee Indians Tribal Gaming Ordinance at § 16-2.01(b)

(“Commissioners shall be appointed by the Principal Chief, subject to the approval of

the Tribal Council”); Mescalero Apache Tribe Gaming Ordinance at § 7(E) (“The

Mescalero Apache Tribal Gaming Board of Commissioners shall consist of no fewer

than three, and no more than five, Part-Time Commissioners appointed by the Tribal

President, subject to confirmation by the Tribal Council”); Cherokee Nation Technical

Gaming Amendment Act at § 21(A) (“The Gaming Commission shall consist of no less

than five members of the Cherokee Nation to be appointed by the Principal Chief of the

Cherokee Nation and approved by the Tribal Council”); Northern Cheyenne Tribal

Gaming Ordinance at § 402(1) (“Each Commissioner shall be appointed by the Tribal

President with concurrence of the Tribal Council”).

Again, I don’t advocate how Tribal Members ought to vote on the proposed amendments. I merely supply my authorized opinion that as drafted, the present Constitution doesn’t include a workable course of to approve a tribal gaming ordinance. The proposed amendments include a workable course of for the Tribe to undertake a gaming ordinance (however don’t require a referendum vote). In addition, the proposed

amendments embrace a reasonably customary course of for the Tribal Chairperson to barter

gaming compacts and nominate members of a gaming regulatory authority and a

gaming enterprise board with the approval of the Tribal Council. I don’t see something

within the proposed amendments that might violate IGRA.