06/17/2026
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
