Casino Enterprise Management

Author’s note: I’d like to acknowledge the assistance I received from Stephen A. Lenske of Lenske, Lenske and Abramson of Woodland Hills, Calif., in writing this article.

Recent communications between the National Indian Gaming Commission (NIGC) and Indian governments have become emotional and heated. After a House of Representatives field hearing in Oklahoma and a Senate hearing in Washington, D.C., this year—where both houses of Congress criticized the NIGC for actions surrounding its proposed new regulations for Class II gaming—NIGC Chairman Phil Hogen addressed Indian representatives at the National Indian Gaming Association’s (NIGA) Indian Gaming ’08 tradeshow in April as “You people, the downtrodden.”

Apparently Chairman Hogen took issue with Indian government testimony and communications to Congress that have focused on the NIGC’s lack of consultation on its proposed regulations—regulations that, according to the NIGC’s own economic impact report, would devastate Indian communities with Class II gaming operations, with losses of $1.2 billion to $2.8 billion. Indian government leaders have been pointed in their communications concerning the impact of the regulatory proposals for some time—and not just to Congress. In one meeting held in 2007 in Washington state, an Indian leader and former congressional staffer who was a draft participant in the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §2701 et seq., accused Chairman Hogen of being a direct threat to Indian government sovereignty.

During Chairman Hogen’s six-year term, the NIGC has been seeking to expand its authority through aggressive action and regulation.¹ The NIGC has also unsuccessfully attempted to exercise authority over Class III tribal-state compacts, which are subject to review by the Department of the Interior.² From the Indian government perspective, the current proposed Class II regulations are like the Colorado River Indian Tribes case: an effort to expand NIGC authority and limit Indian government sovereignty beyond the scope of IGRA. As more than half of all Class II gaming takes place in Oklahoma, Oklahoma’s located Indian governments stand at ground zero of the NIGC’s attack.

In late-breaking news, Chairman Hogen spoke at the Oklahoma Supreme Court’s Sovereignty Symposium XXI on June 5, 2008, and announced that he was “setting aside” the two most controversial parts of the four-part regulatory package, changes to facsimile definition and classification, in favor of addressing the issues initially by a regulatory decision the Chairman had issued on Wednesday, June 4, 2008, and pending the outcome of the appeal of such decision.

While the audience at the Sovereignty Symposium burst into applause at the announcement, panelist and former Vice Chairwoman of the NIGC Elizabeth Homer pointed out that appeal of the decision was initially to be lodged with the NIGC as a whole and that with only two NIGC members, counting Chairman Hogen, that appeal of his decision with the NIGC would be difficult to overrule. Chairman Hogen acknowledged that appeal of his 11-page opinion would initially likely go his way, as denial required two votes.

Close examination of the facts of the administrative opinion have some legal experts crying foul and stating that the NIGC is picking the forum, and issues and the opposing legal counsel for litigation to provide support for the facsimile and classification regulations.

It seems that on Wednesday, May 28, 2008, an Indian government in Alaska passed a five-line amendment to its gaming code. Even though Alaska is six hours behind Washington, D.C. time and 2,000-plus miles away, the gaming code amendment was hand delivered in time for the 11-page decision of Chairman Hogen the following Wednesday. While it is not known to Indian governments whether the delivery of the gaming code amendment occurred in time for NIGC consideration on Thursday, May 29, 2008, it is known that NIGC staff was in Reno on the following Monday for consultations with Indian governments and that Chairman Hogen was in Michigan on Tuesday and in Oklahoma on the Wednesday of issuance. To many Indian governments, the timetable of submission with decision by the NIGC seems contrived. For the NIGC to reach an 11-page decision with less than two full working days for consideration appears more than unusual. On reflection, Indian governments are concerned that the applause at the Sovereignty Symposium was premature and that “setting aside” NIGC action is a skillful legal ploy. The concern is not eased by the fact that the law firm making the submission for the Alaskan Indian government represented a major game vendor and attended meetings between NIGC and vendors that excluded Indian governments in Montana in November 2006.

The new announcement by the NIGC could be an effort to end the controversy and achieve better regulation by consensus with Indian governments. However, some Indian government officials fear the announcement is a backroom move sponsored by Nevada vendor(s) to “set aside” half of the regulatory package until the NIGC can—by picking case, issue, friendly opponent and forum—establish a precedent to support the billions of dollars in economic impact caused by the implementation of the facsimile and classification regulations.

The Controversy
The controversy in the NIGC’s proposed regulations involves the fact that Class II games include “technological aided” play of named Class II games but exclude “electronic facsimiles.” One proposed regulation even seeks to change the current NIGC definition of facsimile, which was published by a prior NIGC administration and endorsed by two separate federal circuit court opinions.³ The NIGC proposals dramatically narrow the legal definition of “technological aid” and add criteria to current Class II game play, which places greater burdens on any “technological aid.”

The cumulative effect of the NIGC proposals is to make virtually all Class II games in current play illegal, including games that have been in play for more than a decade. The term Class II was created by IGRA for Indian government gaming regulation and describes Bingo, games similar to Bingo, and other player-against-player participation games named as Class II by IGRA. During the last decade and more, computer server-based gaming has been adapted to the Class II games listed and has established a popular, profitable and proven gaming business model. The interactive Class II game architecture is now recognized the world over because of the successful use of server-based technology in player-against-player gaming. Legal references to the interpretation of Class II design in IGRA have been well developed by statute and case law, but nonetheless, the NIGC states that its four-part set of proposed regulations is meant to create a “Bright Line” between Class II and other gaming. Logical examination of NIGC actions past and present, however, lead Indian governments to conclude that the NIGC is seeking to roll back or remove Class II case decisions to help the Department of Justice reverse case law that began more than a decade ago.

Indian governments’ emotional arguments are compelling. Indian government gaming was designed to further Indian government sovereignty by funding government obligations recognized by IGRA. This was a federal decision made in part because past federal policies destroyed the Indian government land and tax base. To Indian governments, the current NIGC action to remove most, if not all, Class II games from play smacks of an earlier federal imposition on Indian sovereignty that “removed” Indian governments from the traditional, economically vital locations that had sustained their existence.

In Oklahoma, Indian governments have proved the viability of technologically aided Class II games with server-based architecture. Indian governments successfully overcame the Department of Justice’s wintertime raids on these Class II gaming locations in 1997 and have won multiple court cases against the Department of Justice and the NIGC, including United States v. 162 MegaMania Gambling Devices; United States v. 103 Electronic Gaming Devices; Diamond Games Enterprises Inc., et al. v. Janet Reno, et al.; Seneca-Cayuga Tribe of Oklahoma, et al. v. National Indian Gaming Commission, et al.; United States v. Santee Sioux Tribe of Nebraska.⁴ Oklahoma Indian governments have also endured the state’s unwillingness to negotiate compacts for Class III gaming, as required by IGRA.⁵ NIGC efforts to remove Class II gaming to a new, unproven economic area in the face of decade-old Class II court successes evokes the “Trail of Tears” removal stories from Indian governments past. The NIGC’s proposals will destroy the Indian government funding base for those who depend on Class II gaming. While Indian governments all over the United States are threatened by the NIGC proposals, half of the total economic impact is expected to have direct effect within Indian governments in Oklahoma due to a unique state compact offer. Oklahoma was the final removal site for many Indian governments.

It is worthy to identify that the Department of Justice has not participated in the initiation of litigation of Class II game classification since 2000. The reason for the lack of federal litigation was well stated by the Department of Justice in a December 2005 meeting between the NIGC, Indian government attorneys, and the Department of Justice. The meeting, set up by the Acting General Counsel of the NIGC, directly addressed game classification of IGRA and NIGC proposed regulations. After lengthy, heated discussion, in response to direct inquiry by Indian attorneys as to why the Department of Justice had not challenged existing Class II game platforms legal status and/or why the Department of Justice did not support NIGC proposed regulation efforts, the Department of Justice litigator responded, “The same lawyers will take the same issue, with the same tribes, in front of the same judges, and get the same tribal result.” Such a statement appears on its face to concede the law in regard to Class II gaming is settled. Of course, the statement did not imply the Department of Justice was happy with that conclusion. This point is particularly driven home by Department of Justice efforts in 2006 to obtain Congressional amendment to IGRA to more narrowly describe Class II gaming. Such efforts failed.

The current debate regarding the NIGC’s proposed regulations continues to be based around who should be the primary regulator of Indian gaming; the addition of criteria to Class II gaming; the NIGC’s failure to consult Indian governments; and the economic impact of the proposals.

The Primary Regulator of Indian Gaming
The NIGC is arguably outside its limited authority in ordering Indian government regulators to perform any act, much less to “fetch and deliver” for the NIGC without compensation. As described in its proposed regulations. Indian governments point out that IGRA, at 25 U.S.C. §2701(5), states: "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically  prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity."

The IGRA language appears clear in that Indian governments are the primary regulators of Indian government gaming, and this is supported by the Supreme Court case that helped pass IGRA, California v. Cabazon Band of Mission Indians.⁶ It held that Indian governments legislate the civil regulatory rules for Indian gaming.

Indian governments claim that the NIGC is exceeding its authority in attempting to enact civil regulatory rules that require Indian gaming regulators to act for the NIGC, and point to IGRA, at 25 U.S.C. §2706(b)(7), which states that if the NIGC, in its function to monitor, inspect, conduct background checks, and audit and copy matters concerning Class II gaming, needs tribal government assistance, the NIGC is directed to “contract and pay” tribal governments for that assistance. The new NIGC proposals, which find authority for regulatory issuance at 25 U.S.C. §2706(b)(10), give no deference or mention of such a “contract and pay” requirement.

Indian governments point out that the NIGC’s Class II duties laid out in IGRA are “come and see” in nature: monitor, inspect, conduct background investigations, and audit and copy.⁷ It is undisputed that the proposed regulations require a number of “fetch and deliver” duties for Indian government regulators, such as obtaining independent laboratory results. Indian governments are sensitive to the NIGC’s demand that Indian regulators “fetch and deliver,” as it invades the sovereignty of Indian governments as the primary regulator recognized in IGRA. Indian governments view the NIGC demands on Indian regulators as an invasion of sovereignty in a manner similar to an invasion of United States lands by another country, and the “fetch and deliver” requirement as a subjugation of Indian government regulating officials without compensation. This is offensive to Indian sovereignty and just too much for Indian governments to endure quietly.

The Addition of Criteria to Bingo for a “Bright Line”
The NIGC’s proposed regulations are further complicated by its effort to add criteria to the “game commonly known as [B]ingo” as described in IGRA, drawing a “Bright Line” between Class II and other forms of gaming. IGRA describes Class I gaming as traditional games for little value, and Class II as Bingo, games similar to Bingo and other specific named player-against-player games, including those played with technological aids. Class III is all other gaming, including but not limited to facsimiles of Class II and slot machines. IGRA, at 25 U.S.C. §2703, provides the fundamental characteristics of the game “commonly known as [B]ingo” in three simple criteria:

1. Played for prizes with cards or designations;
2. Holder of card covers such numbers or designations when objects are drawn or electronically determined;
3. In a game which is won by the first person covering a previously designated arrangement or numbers or designations on cards.

IGRA does not mention a “Bright Line,” but the Congressional Senate report on IGRA describes Class II limitations in regard to technological aids as follows: "… such technology would merely broaden the potential participation levels and is readily distinguishable from the use of electronic facsimiles in which a single participant plays a game with or against a machine rather than with or against other players."
–S. Report No. 100–446 at 9 (1988), reprinted in 1988 U.S.C.C.A. 3701, 3709

IGRA places no limit on Class II speed of play, number of players or profitability, all of which appear to be objectives and requirements of the current NIGC proposals. The Department of Justice has argued unsuccessfully such points in the cases previously cited. In United States v. 103 Electronic Gaming Devices, the Ninth Circuit found that the Department of Justice’s contention to add criteria to the game of Bingo beyond the list in IGRA was in error, stating that “… IGRA’s three explicit criteria, we hold, constitute the sole legal requirements for a game to count as Class II Bingo.”

Indian governments argue that the NIGC’s proposed regulations may give the Department of Justice a chance to retry existing Class II case law and remove Indian governments from profitable Class II gaming.
As the cases cited above demonstrate, Indian governments developed server-based player interactive gaming more than a decade ago as an aid to Bingo. The current NIGC has issued no notices of violation to challenge Class II games in play for the entire term of this NIGC Chairman. Recently, however, major game vendors like IGT and Bally have developed Class II-like server-based, player-interactive gaming systems that are quickly finding their way into commercial markets. Tribal governments argue that Indian governments should not be “moved to another reservation” merely because non-Indians now legally use the existing server-based “[B]ingo reservation” described in IGRA. The NIGC’s “Bright Line” can only be maintained if Indian Class II gaming makes no money—otherwise, commercial gaming, whether described as charity gaming, tavern gaming or slot machine gaming, has a huge financial incentive to copy the Class II Indian government gaming success model.

Indian governments argue that only the Nevada and other commercial vendors will be the financial beneficiaries of the NIGC proposed change in Class II design. It is unfair for Indian governments to be forced to move away from the profitable and proven design in the interest of a “Bright Line” that commercial vendors and states, by compact, have erased.

Oklahoma’s 33 tribal-state gaming compacts identify, by state design, facsimiles of successful Class II games to be played as Class III. These Oklahoma compacts erase the “Bright Line” between Class II and Class III by allowing the player-against-machine play of games presently played as Class II in player-against-player mode. Moreover, the Oklahoma compacts exclude slot machine play. Class II and Oklahoma Class III compact games look alike because the Oklahoma Legislature and the citizens of Oklahoma intended compact games to look like Class II games. This blurring of the “Bright Line” by Oklahoma has been called a Class II Plus compact by some scholars. It is also important to note that Oklahoma has not challenged a single Class II game classification, though given the right by compact since 2005.

The NIGC proposals also ignore the “maximum flexibility” language in the Senate report on IGRA, which states: "… the Committee intends in section 4(8)(A)(I) that tribes have maximum flexibility to utilize games such as [B]ingo and lotto for tribal economic development. The Committee specifically rejects any inference that tribes should restrict Class II games to existing games sizes, levels of participation, or current technology. The Committee intends that tribes be given the opportunity to take advantage of modern methods of conducting Class II games and the language regarding technology is designed to provide maximum flexibility." –S. Report No. 100–446 at 9 (1988), reprinted in 1988 U.S.C.C.A. 3701, 3709

The NIGC’s proposed regulations directly contradict the Senate report, as all four sets of NIGC proposed regulations are designed to limit flexibility, innovation, speed of play and profitability in Class II gaming.

The Failure to Consult Indian Governments
In congressional communications, tribal governments have pointed out that the NIGC appears to be unwilling or unable to consider Indian government consultation points about its proposed regulations, despite an NIGC regulation and Executive Order 13175 of the President of the United States that requires that Indian governments be consulted before federal regulations affecting Indian governments are adopted. Regardless, less than 60 days after the NIGC’s Economic Impact Report was published, the comment period on the NIGC’s proposed regulations closed. The problem with the limited comment period is exacerbated when it is compared to the NIGC’s lengthy and close communication with some major game vendors and a select, NIGC-picked group of Indian tribal persons over the last two years. These arguments by Indian governments to Congress have resulted in at least one House of Representatives measure, HR 5608, which attempts to require the NIGC to do more to consult with Indian governments.

Tribal governments argue that it is beyond question that the NIGC has been influenced in the drafting of these “Bright Line” regulation proposals by some vendors, particularly game laboratory vendors. The tribes cite the “independent lab” requirement as evidence of this. The NIGC has, in all drafts of its proposed regulations, consistently required tribal government regulators to test games at an “independent lab,” despite the fact that many tribal governments have laboratories that may perform all required certifications. The requirement to use of one of three NIGC-approved independent laboratories certainly benefits the laboratory that the NIGC hired to help draft NIGC regulations.

Game vendors—who, according to some estimates, have spent more than $10 million in the process of helping develop the current NIGC proposals—would also benefit from the independent lab requirement, as they currently may be required to test at multiple Indian government laboratories. Moreover, game vendors have reason to fear Indian government understanding game design: it could help Indian governments develop their own Class II server-based games.

Closed-door meetings of the NIGC with major game vendors do not inspire tribal government confidence in the current NIGC proposals. In November 2006, the NIGC locked tribal leaders and attorneys out of a meeting in Montana that was attended by NIGC selected major game vendors, and in December 2007, a select group of Nevada game vendors and consultants met in Chairman Hogen’s South Dakota home. The massive participation of well-established game vendors in the drafting of the NIGC’s regulatory proposals would be questioned by tribal governments even without obvious vendor protections like the “independent laboratory” requirement. Tribal governments note the two best earning Class II vendors, smaller game vendors in the international world, were omitted from such closed meetings.

Yet, most tribal government representatives have been careful not to impugn the character of the NIGC, laboratories or game vendors. Most objections to the proposed NIGC regulations continue to focus the NIGC’s process of calling on more vendor consultation than Indian government consultation, rather than the character of the NIGC, laboratories or game vendors. Also, game vendors continue to publish dissatisfaction with the NIGC proposals. As noted previously, patience and tempers are wearing thin and the context appears to be the NIGC is opposed in publication by server-based game vendors and Indian governments.

Indian governments argue to Congress that the vendor influence in the drafting process and the economic impact requires at the very least, more Indian government consultation. Chairman Hogen, however, has stated that the NIGC will publish final rules in midsummer 2008. When questioned about this rush to publish, the NIGC’s response was that the Chairman is at the end of his term. Indian governments argue that the NIGC’s own financial impact projections require more consultation and that any changes to the federal government’s Indian policy should not be rushed to accommodate the end of any single person’s government service. At the very least, Indian governments have requested the NIGC review the proposed regulations against an intellectual property rights search to determine if any single vendor will unreasonably benefit from the NIGC proposals.

Economic Impact
The NIGC solicited the Analysis Group Inc., headed by Dr. Alan Meister, to prepare the Economic Impact Report on NIGC proposals, first in 2006 and again in 2008 after the current set of proposed regulations was penned. The impact of the 2008 Economic Impact Report is so great that it took more than 90 days longer to prepare than the NIGC anticipated. In the report, Dr. Meister concludes that the economic impact will be devastating and that the quantifiable impacts will close gaming facilities, cost thousands of jobs, have a financial impact of $1.2 billion to $2.8 billion; 50 percent of the impact will be among Oklahoma-based Indian governments. The NIGC appears, however, ready to ignore the report, as is evident in Chairman Hogen’s communications at the NIGA tradeshow in April and in publications by NIGC Vice Chairman Norm DesRosiers.

Vice Chairman DesRosiers recently indicated that the NIGC is unwilling to give credibility to the Economic Impact Report procured by the NIGC. In a recent publication the Vice Chairman noted that recent developments in California, which evidence more IGRA compacting, invalidate Dr. Meister’s report; he expected California’s economy to be unaffected by the proposed rules. As for Oklahoma, DesRosiers said that the Economic Impact Report was a “worst case” statement and not on-point because the trend toward compacted games would minimize the effect. The Vice Chairman also overlooked that some states will not negotiate, or even “offer,” compacts with Indian governments.

Both DesRosiers and Hogen have also failed to grasp the impact of “gaming facility closure” noted in the Meister report. In Oklahoma, the 33 non-negotiated compacts may be at risk if the NIGC regulations proceed successfully. IGRA, at 25 U.S.C. §2702(2), requires that Indian governments be the primary beneficiary of Indian gaming. IGRA, at 25 U.S.C. §2710, prohibits states from charging more than out-of-pocket expenses for Indian governments to engage in a compacted game activity: "… nothing in this section shall be interpreted as conferring upon a state or any of its political subdivisions authority to impose any tax, fee, charge or other assessment upon an Indian tribe … to engage in Class III activity."

In the Oklahoma compact offer (which is voter approved and nonnegotiable) Indian governments are charged a fee of up to 6 percent of the game drop (amount of money received by Indian governments, less prizes paid out) of compact games for a “substantially exclusive” right to game. This sum does not regard net profit or actual market competition. The fee charge is unlike many other compacts because it was not negotiated and does not actually provide “exclusivity.”

In 2007, after the addition of 5,000 game stations in the Oklahoma City area by a commercial track and two competing Oklahoma Indian governments (more than all the Class II games that DesRosiers noted were replaced by compact games in California), the Absentee Shawnee Tribe closed its substantial Thunderbird gaming location southeast of Oklahoma City. The last month before closure, it is possible the Absentee Shawnee Tribe received no net profit, but nonetheless paid Oklahoma compact fees. Upon reopening, the tribe had a choice to pay Oklahoma compact fees or use existing Class II games.
Indian governments have posed pointed questions to the NIGC, such as: Has the NIGC audited the Absentee Shawnee books the month before closure in 2007 to determine if the state of Oklahoma was the primary beneficiary of gaming that month, in violation of IGRA? And: Is the NIGC willing to be the cause of Oklahoma compact issues by creating more closures, as forecasted by Meister, which exacerbate Oklahoma compact fee issues?

It should be noted that to date in Oklahoma, compact fee issues have not been great because a well-managed Indian government gaming location can remove Class III games for existing Class II games if the state fees threaten to exceed Indian government net earnings. Oklahoma Indian governments argue that without the current viable Class II games and the speed of play that is challenged by the proposed MICS regulations, the proposed regulations will have results not noted as “quantifiable impacts” in the NIGC economic impact study—results that may make the state of Oklahoma the primary beneficiary of Indian gaming at some locations, which is prohibited by IGRA. Indian governments argue for more consultation to address the NIGC’s failure to fully understand or consider such operation issues. Department of Interior Undersecretary Carl J. Artman recently indicated that the Department of Interior had not fully consulted with the NIGC about the compact issues that could result from the proposed regulations.

As summer heats up, the positions of both the NIGC and Indian governments are likely to become more polarized. Efforts by the NIGC to add criteria to the game of Bingo and to push tribal governments away from proven server-based game architecture will remind Indian governments of other reservation removals. Furthermore, the failure of the NIGC to consult with Indian governments and the failure to adequately evaluate the NIGC’s own Economic Impact Report may result in the publication of regulations that have financial consequences too large for Indian governments to bear. Chairman Hogen has stated that he desires to finish these regulations before he leaves office. Yet, if the NIGC invades Indian government sovereignty and attempts to remove Indian governments from their current Class II position of the primary regulator of Indian gaming, Chairman Hogen’s legacy will be a conflict over Indian government sovereignty and Indian government funding that will not be finished for years. The elusive “Bright Line” is colliding with Class II gaming “maximum flexibility.” Commercial and state compact gaming are copying Class II server-based architecture success and design to make profitable Class III games. It appears that without more consultation and consideration of the destructive effect of the proposed regulations, Indian governments will be directed either to move away from current profitable Class II game play to an unproven market model, or to make a modern declaration of war on the NIGC: another federal lawsuit.

There is gold in Indian governments’ server-based Class II gaming architecture. The controversy surrounds the NIGC attempts to remove Indian governments from mining the server-based location.

¹ IGRA identifies that Indian governments are to remain the primary regulators of Indian gaming, with a special federal commission within the Department of the Interior, the NIGC, to share specific civil oversight responsibilities. NIGC duties include civil fine authority and closure for IGRA violations, particularly regarding the play of non-Class II games without a tribal-state compact. The NIGC is authorized to (1) monitor; (2) inspect; (3) conduct background investigations; and (4) audit and copy materials from Indian government  Class II gaming operations. See 25 U.S.C. §2706(b)(1)-(4).

² See Colorado River Indian Tribes v. National Indian Gaming Commission, 383 F.Supp.2d 23 (D.D.C. 2005); aff’d 466 F.3d 134 (D.C. Cir. 2006).

³ See Seneca-Cayuga Tribe of Oklahoma, et al. v. National Indian Gaming Commission, et al., 327 F.3d 1019 (10th Cir. 2003), cert. denied by United States Supreme Court in March 2004; United States v. Santee Sioux Tribe of Nebraska, 324 F.3d 607 (8th Cir. 2003); cert. denied by United States Supreme Court in March 2004.

⁴ See United States v. 162 MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000); United States v. 103 Electronic Gaming Devices, 223 F.3d 1091 (9th Cir. 2000); Diamond Games Enterprises Inc., et al. v. Janet Reno, et al., 230 F.3d 365 (D.C. Cir. 2000); Seneca-Cayuga Tribe of Oklahoma, et al. v. National Indian Gaming Commission, et al., 327 F.3d 1019 (10th Cir. 2003), cert. denied by United States Supreme Court in March 2004; United States v. Santee Sioux Tribe of Nebraska, 324 F.3d 607 (8th Cir. 2003), cert. denied by United States Supreme Court in March 2004.

⁵ See Ponca Tribe of Oklahoma v. State of Oklahoma, 89 F.3d 690 (10th Cir. 1996).

⁶ See 480 U.S. 409 (1987).

⁷ See 25 U.S.C. §2706(b)(1); 25 U.S.C. §2706(b)(2); 25 U.S.C §2706(b)(3); and 25 U.S.C. 2706(b)(4), respectively.

Jess Green is the founder of the Green Law Firm P.C. in Ada, Okla. Elected to the Chickasaw Nation Legislature in 1983 and the first Chairman of the Legislature since Oklahoma became a state, Green concentrates his practice in Indian law and continues to work for many Indian Nations and tribes. He can be reached at (580) 436-1946 or lawoffices@cableone.net.