For Immediate Release: Lumbee Leadership Requests Expert Legal Review of Constitution and Gaming Amendment Compliance Under NIGC Standards

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For Immediate Release

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 review the Lumbee Constitution and the proposed amendments and provide a legal opinion regarding whether there are drafting errors in the current Constitution and if the proposed amendments are compliant with the requirements 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 under the Bush and Obama Administrations, including as Chairman for seven (7) years. Mr. Hogen has practiced in the area of Indian gaming for nearly 40 years.

June 17, 2026

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 was asked to look at the current Lumbee Constitution and the proposed amendments

to the Lumbee Constitution and provide my opinion on (a) whether Article VIII as

currently written contains a drafting error, and (b) whether the process envisioned by

the proposed amendments for gaming measures violates federal law or

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

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

have practiced law in the area of Indian gaming for nearly 40 years.

My opinion is limited to the two issues listed above, and I express no opinion about

whether Tribal Members should vote for or against the proposed amendments.

Drafting Errors in Article VIII1

In my view, there are two drafting errors in the current Constitution that essentially

make it impossible for the Tribe to move forward with gaming. First, Article VIII, which

deals with the Tribal Chairperson’s authority, provides at Section 1(b) that within 10

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

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

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

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

referendums (votes to rescind ordinances enacted by the Tribal Council). In other words,

it is not possible for the Tribal Chairperson to comply with Article VIII as currently

written.

Another problem 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

fundamental purpose of a referendum is not to approve an ordinance, however, but 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 properly held and

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

ordinance rescinded.” There is no process for voters to approve an ordinance by

referendum in the current Constitution.

The proposed amendment to Article VIII fixes these problems by removing the

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

gaming ordinance by referendum. The proposed amendment also goes one step further by removing the requirement for a referendum vote for an ordinance authorizing

gaming altogether (although a referendum vote is still 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 is also proposing amendments to Article VII, Section 1, and Article VIII,

Section 1, to codify a process by which Tribal gaming officials may be appointed to the

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

proposed amendments would authorize the Tribal Chairperson to nominate those

gaming officials and authorize the Tribal Council to confirm or reject those

nominations. The amendments would also allow the Tribal Chairperson to negotiate

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

In my experience, this is a fairly typical division of power between the executive branch

(the Tribal Chairperson) and the legislative branch (the Tribal Council) of government.

It requires the Tribal Chairperson to negotiate compact terms that are acceptable to the

legislative branch, and to nominate members of the Tribe’s gaming regulatory and

business entities who the Tribal Council will approve.

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

Tribe’s gaming regulatory body is consistent with federal law and is common across

Indian country. While the Indian Gaming Regulatory Act (IGRA) does not mandate

how Indian tribes must select their gaming regulators, the NIGC model gaming

ordinance outlines several broad options that tribes may choose from, including

appointing gaming officials through the tribe’s governing body. See NIGC Revised

Model Gaming Ordinance at § 8(C). And several tribes have procedures like those

proposed here, codified in tribal gaming ordinances approved 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”).

Conclusion

Again, I do not advocate how Tribal Members should vote on the proposed amendments. I simply offer my legal opinion that as drafted, the current Constitution does not contain a workable process to approve a tribal gaming ordinance. The proposed amendments contain a workable process for the Tribe to adopt a gaming ordinance (but do not require a referendum vote). In addition, the proposed

amendments include a fairly standard process for the Tribal Chairperson to negotiate

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

gaming enterprise board with the approval of the Tribal Council. I do not see anything

in the proposed amendments that would violate IGRA.

Sincerely,

Philip N. Hogen