AT & T CORPORATION, Plaintiff-Appellee, v. COEUR D'ALENE TRIBE, Defendant-Appellant, 295 F.3d 899

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge GOULD. ORDER The opinion of this court filed March 19, 2002, 283 F.3d 1156, slip op. at 4411, is amended as follows: On page 4421 [283 F.3d at 1161] of the slip opinion, in the first full paragraph, delete the sentence beginning “This is no less true ...” and the accompanying citations to El Paso Natural Gas Co. v. Neztsosie [526 U.S. 473, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999)] and Santa Clara Pueblo v. Martinez [436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)].

On page 4422 [283 F.3d at 1162] of the slip opinion, delete the second sentence of the second full paragraph and its accompanying citation. Insert in its place the following: “Subject to a number of exceptions, tribal courts ordinarily have the first opportunity to determine the extent of their own jurisdiction.” Add the following footnote at the end of the sentence: See Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). On page 4422 [283 F.3d at 1162] of the slip opinion, delete the last sentence of the second full paragraph.

Insert in its place the following: “We need not decide whether exhaustion was required in this case or if any of the exceptions to exhaustion applied, because the tribal court did in fact have the first opportunity to determine the extent of its jurisdiction; thus, whether exhaustion was required or not, the issue of tribal jurisdiction is ripe for review.” On page 4422 [283 F.3d at 1162] of the slip opinion, delete the paragraph beginning “In the absence of Congressional action, ...” OPINION BETTY B.

FLETCHER, Circuit Judge: Having received conflicting determinations from tribal courts and the federal district court, the Coeur d’Alene Tribe appeals the district court’s determination that AT & T Corporation need not provide toll-free telephone service for the Tribe’s lottery. We find that the tribal court lacked jurisdiction to resolve the dispute, but vacate the district court’s determination that the lottery itself is illegal under the Indian Gaming Regulatory Act (IGRA). We conclude that AT & T was not the proper party to challenge the legality of the lottery. I.

BACKGROUND The federally recognized Coeur d’Alene Tribe (“Tribe”) resides on the Coeur d’Al-ene Reservation in Idaho. Federal law permits tribes like the Coeur d’Alene to engage in gambling activities on Indian lands pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. As IGRA requires of any tribe wishing to engage in gambling on its land, the Tribe entered into a compact with the State of Idaho. The compact permits the Tribe to offer Class III gaming, including a lottery. See 25 U.S.C. § 2710(d)(3). The Secretary of the Interior approved the compact.

See 25 U.S.C. § 2710(d)(8); 58 Fed.Reg. 8478 (1993). The Tribe created the National Indian Lottery (“Lottery”). The Lottery’s administration occurs entirely on the Reservation. However, off-Reservation participants may purchase tickets by telephone from outside Idaho. In order to participate in the Lottery, an off-Reservation player establishes an account on the Reservation and funds it either by credit card or by delivering funds. To purchase a ticket, the player authorizes a deduction from the account and either selects a sequence of numbers or requests randomly selected numbers.

A player may request written confirmation of the transaction, but the lottery ticket itself remains on the Reservation. Once a week, lottery officials draw a sequence of winning numbers and distribute the prize pool to players whose tickets contain them. An off-Reservation winner receives a credit to his or her account that is redeemable in person or through the mail. The federally approved compact itself did not specify that off Reservation telephone purchases would be permitted.

However, a management contract between the Tribe and UNISTAR Entertainment, Inc. made clear that off-Reservation players could participate telephonically. As required by 25 U.S.C. § 2710(d)(9), the Tribe submitted the management contract to the Chairman of the National Indian Gaming Commission (NIGC) for approval. The Chairman approved the management contract, a decision that constitutes a final agency action. 25 U.S.C. § 2714.

The Chairman subsequently clarified in a letter — -in response to an inquiry about the Lottery’s legality — that: In the opinion of the NIGC, the Tribe’s lottery proposal, which involves customers purchasing lottery tickets with a credit card both in person and by telephone from locations both inside and outside the state of Idaho, is not prohibited by the IGRA. Following the NIGC’s approval of the UN-ISTAR contract, the Tribe adopted a resolution and amended its Tribal Code to authorize the Lottery.

Consistent with IGRA, the Tribe’s resolution was deemed approved by the NIGC Chairman ninety days after its submission pursuant to 25 U.S.C. § 2710(e). In order to attract Lottery participants, the Tribe sought to establish toll-free telephone service to its on-Reservation offices from callers in states that operate their own state-run lotteries. AT & T was among the carriers with whom the Tribe negotiated to provide such service.

Upon learning that the Tribe intended to offer toll-free “Tele-Lottery” service, several state Attorneys General sent letters to AT & T allegedly pursuant to 18 U.S.C. § 1084(d), warning AT & T that furnishing interstate toll-free service for the Lottery would violate federal and state laws. Title 18 U.S.C. § 1084(

d) provides that: When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or refuse, the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but no damages, penalty or forfeiture, civil or criminal, shall be found against any common carrier for any act done in compliance with any notice received from a law enforcement agency.

Nothing in this

section shall be deemed to prejudice the right of any person affected thereby to secure an appropriate determination, as otherwise provided by law, in a Federal court or in a State or local tribunal or agency, that such facility should not be discontinued or removed, or should be restored. (emphasis added). Upon receiving the § 1084(

d) letters, AT & T informed the Tribe that it would not provide toll-free service until the Tribe resolved its legal differences with the States. The Tribe filed an action in the Coeur d’Alene Tribal Court seeking to enjoin AT & T from denying toll free service based on the § 1084(

d) letters. The Tribe argued that the Lottery is lawful under IGRA and that AT & T is therefore legally obligated to provide the requested service pursuant to the Federal Communications Act (FCA). See 47 U.S.C. § 201(a) (requiring common carriers engaged in interstate communication to furnish service upon reasonable request). AT & T challenged the personal and subject matter jurisdiction of the Tribal Court. The Tribal Court rejected AT & T’s arguments, declared the Lottery lawful under IGRA, and enjoined AT & T from refusing to provide the requested service. The Tribal Court of Appeals affirmed.

AT & T then filed suit in federal district court seeking a declaration that the Tribal Court lacked jurisdiction and that the § 1084(

d) letters relieved AT & T from any obligation to provide service. The district court determined that IGRA requires a participant in a lottery to be present on Indian lands when purchasing a ticket; therefore, the district court held that the lottery was operating outside IGRA, which would otherwise preempt state law. AT & T Corp. v. Coeur D’Alene Tribe, 45 F.Supp.2d 995, 1002-1003 (D.Idaho 1998). Finding that the Tribal Court’s decision was erroneous as a matter of federal law, the district court denied as moot AT & T’s motion for judgment that the Tribal Court lacked jurisdiction. Id. at 1005.

The court also granted declaratory relief, stating that AT & T was not required to furnish toll-free service from any State that notified AT & T that the Tribe’s Lottery would violate state law. Id. at 1005-1006. The Tribe appeals. II. TRIBAL COURT JURISDICTION As a general rule, federal courts must recognize and enforce tribal court judgments under principles of comity. See Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.1997). Two circumstances preclude recognition: when the tribal court either lacked jurisdiction or denied the losing party due process of law. See Id.

Under limited circumstances, not present here, a federal court may refuse to recognize or enforce a tribal judgment on equitable grounds as an exercise of discretion. See Id. Unless the district court finds the tribal court lacked jurisdiction or withholds comity for some other valid reason, it must enforce the tribal court judgment without reconsidering issues decided by the tribal court. See Iowa Mutual Ins. Co. v.

LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) ("Unless a federal court determines that the Tribal Court lacked jurisdiction . . . proper deference to the tribal court system precludes relitigation of issues . . resolved in the Tribal Courts."). The district court held the Coeur d'Alene Tribal Court's Order "erroneous as a matter of law," without deciding whether the Tribal Court had jurisdiction. AT & T Corp., 45 F.Supp.2d. at 1005. The district court interpreted our decision in FMC v.

Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir.1990) as requiring federal courts to resolve de novo all issues of federal law decided in tribal court, regardless of whether the tribal court properly exercised jurisdiction over the dispute. AT & T Corp., 45 F.Supp.2d at 1005. Our FMC holding was not so broad. FMC merely established a de novo standard of review for legal questions relevant to a tribal court's decision regarding tribal jurisdiction. See FMC, 905 F.2d at 1313-14.

That holding does not affect the rule that federal courts may not readjudicate questions-whether of federal, state or tribal law-already resolved in tribal court absent a finding that the tribal court lacked jurisdiction or that its judgment be denied comity for some other valid reason. Iowa Mutual 480 U.S. at 19, 107 S.Ct. 971. Therefore, before addressing the merits of this case we must first determine whether the Tribal Court had jurisdiction.

"[T]he existence of both personal and subject matter jurisdiction is a necessary predicate for federal court recognition and enforcement of a tribal judgment." Wilson, 127 F.3d at 811. Subject to a number of exceptions, tribal courts ordinarily have the first opportunity to determine the extent of their own jurisdiction.

We need not decide whether exhaustion was required in this case or if any of the exceptions to exhaustion applied, because the tribal court did in fact have the first opportunity to determine the extent of its jurisdiction; thus, whether exhaustion was required or not, the issue of tribal jurisdiction is ripe for review. The Coeur d'Alene Tribe sued AT & T pursuant to the Federal Communications Act (FCA), 47 U.S.C. §~ 151 et seq. Specifically, 47 U.S.C. § 201(

a) mandates that: It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor[.]

Section 202 of the FCA articulates the chapter's antidiscriminatory purpose, whereby it is: unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service . . . or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage. 47 U.S.C. § 202. In the event that a common carrier "shall omit to do any act, matter, or thing in this

chapter required to be done," 47 U.S.C. § 206 dictates that: such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation. . . together with a reasonable counsel or attorney's fee[.]

Section 207 of the Act then sets forth how a party may pursue remedies for claimed injuries sustained under the preceding sections. Specifically, 47 U.S.C. § 207 provides that: [a]ny person claiming to be damaged by any common carrier subject to the provisions of this

chapter may either make complaint to [the FCC] ... or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies. While plaintiffs typically invoke § 207 in damages actions alleging deviation from common carriers’ filed rates, the provision is equally applicable where a plaintiff claims a complete denial of service in violation of § 201.

The Supreme Court recently stressed that the antidiscriminatory provisions of the FCA applied equally to services and rates. See American Tel. and Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214, 223-225, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998). By its express language, § 207 establishes concurrent jurisdiction in the FCC and federal district courts only, leaving no room for adjudication in any other forum — be it state, tribal, or otherwise.

The Tribe had no recourse to its own courts for vindication of its FCA-based claim and— like any other plaintiff — could choose only between filing a complaint with the FCC or suing AT & T in federal district court. Because exclusive jurisdiction rested in either of the two statutorily-provided federal fora, the Tribal Court lacked jurisdiction to entertain the Tribe’s claim. III. LEGALITY OF THE LOTTERY Because it found the Tribal Court decision erroneous, the district court considered the merits of AT & T’s claims. After engaging in lengthy statutory

interpretation, the district court concluded that the IGRA unambiguously requires that a purchaser of a chance in the Lottery be physically present on the Reservation in order for the gaming activity to fall within IGRA’s preemptive reach. Based on its conclusions that lottery purchases initiated off-Reservation would thus be subject to state gambling laws, the district court granted

summary judgment in favor of AT & T, holding that the § 1084(

d) letters required AT & T to refrain from providing toll free service for off-Reservation, out-of-state would-be Lottery participants where such service would violate state law. AT & T Corp., 45 F.Supp.2d at 1005-1006. We review the district court’s grant of

summary judgment de novo. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). In ruling as it did, the district court discounted the NIGC’s approval of the Tribe’s management contract with UNIS-TAR — a contract that made clear the Tribe’s plans with respect to telephonic sales. The NIGC approval of both the management contract and the tribal resolution authorizing the Lottery were final agency decisions subject to review under the Administrative Procedures Act. 25 U.S.C. § 2714.

Moreover, the district court — -apparently eager to provide AT & T and the various states breathing down the corporation’s neck with a definitive answer regarding the Lottery’s legality— completely sidestepped two crucial considerations: (1) the effect it should accord the NIGC approval made consistent with the requirements of the detailed regulatory scheme Congress provided when it enacted the IGRA; and (2) whether AT & T, a provider of telephonic services, is an appropriate challenger.

Although AT & T has taken the lead in the instant litigation, the thirty-plus states that have briefed this court as amici— most of which operate their own lotteries — have the biggest stake in challenging the validity of the Tribe’s Lottery. Since providing toll-free service for the Lottery would hand AT & T a new revenue source, the company would likely provide service to the tribe for the Lottery in the absence of § 1084(

d) pressure. But faced with a stack of letters warning the earner that it might be liable for supporting gambling in violation of many states’ laws, AT & T sought some sort of definitive declaration of its responsibilities under both the FCA and § 1084(d). In fact, AT & T’s responsibilities were decided long before the parties set foot in any of the various courts that have entertained this ease. The NIGC’s final agency actions approving both the management contract and the Tribe’s resolution indicated that the Lottery is legal until and unless the NIGC’s decision is overturned.

When it enacted the IGRA, Congress created a detailed regulatory structure for the approval of Class III gaming. The Tribe was successful in its effort to obtain approval for the lottery, doing so pursuant to the IGRA’s regulatory scheme. First, the Tribe and the State of Idaho entered into a compact that provides, in relevant part, that gaming will occur only on Indian lands.

The compact specifies that Class III gaming must abide by the IGRA: “The Tribe may enter into management contracts for the development and management of gaming authorized by and consistent with this Compact and in accord with regulations, [IGRA], and the Gaming Code.” The NIGC and the Secretary of the Interior approved the compact in 1993. See 58 Fed.Reg. 8478 (Feb. 12,1993). In 1995, the Tribe adopted a resolution stating: [Rjesolved, “that all Class III gaming authorized by the Compact by and between the Coeur d’Alene Tribe and the State of Idaho be conducted pursuant to tribal law.

This specifically authorizes the conduct of the National Indian Lottery under the Management Agreement with Unistar Entertainment, Inc. which has been previously approved by the Chairman of the National Gaming Commission.” [F]urther resolved, “that all Class III gaming herein authorized be conducted in accordance with all provisions of 25 U.S.C. § 2710(

d) and 2710(

b) made applicable to Class III gaming by. 2 710(d) (1) (A) (ii) all of which are incorporated herein by reference.” The NIGC approved the resolution under the IGRA. Before doing so, the Commission had to determine that the resolution would comply with the Tribal-State compact, including the language requiring IGRA compliance. Like resolutions, management contracts must meet IGRA requirements before they can win NIGC approval.

The Tribe’s management agreement with UN-ISTAR — 'including the “Tele-Lottery” service — won the NIGC Chairman’s approval in the summer of 1996 after a review process that lasted over one year. That approval constituted a final agency action subject to review pursuant to the Administrative Procedures Act. 25 U.S.C. § 2714. Though the statutory framework suffices to demonstrate that the NIGC must consider the legality of Class III gaming before approving compacts, resolutions, ordinances, and management contracts, in this case documentary evidence also shows close NIGC consideration.

As the district court noted, the NIGC approved the Tribe’s management agreement and Lottery plan knowing that calls would be placed from other states.

Although the dissent seems to entertain the view that the NIGC does not consider whether or not a particular gaming operation will comply with the IGRA, an affidavit submitted on the Tribe’s behalf — and not contradicted by AT & T or the amici — tells us: [t]he NIGC repeatedly informed the Tribe throughout the review process for the management agreement that it would not approve the agreement unless the NIGC were satisfied about the legality of the National Indian Lottery. After an exhaustive review that took more than one year, the NIGC approved the management agreement.

The district court also quoted the letter from then-NIGC Chairman Monteau to MCI clarifying that the IGRA did not prohibit the lottery — further evidence that the Commission did, in fact, consider the Lottery’s legality as IGRA requires. Furthermore, the NIGC Chairman had an opportunity to revisit the Lottery’s legality. An amendment to the Unistar Management Agreement won approval (another final agency action) from the NIGC Chairman.

The amendment included notice of the use of telephone and other off-reservation means of access: “ ‘Tele-Lottery’ means Lottery Games or other Games authorized by the Compact and conducted using any voice, data or video networks.” The NIGC Chairman’s approval of the amendment reads, in relevant part: The Indian Gaming Regulatory Act (IGRA) and the regulations of the National Indian Gaming Commission (NIGC) require that management contracts for class II and class III gaming operations be approved by the Chairman of the NIGC. Accordingly, you submitted the Amendment as required by 25 CFR

Part 535 of the NIGC’s regulations. We have reviewed the Amendment and other information submitted and have determined that the standards of 25 CFR Parts 531 and 535 have been met. This letter, and my signature on the Amendment, constitute such approval. If the Chairman learns of any actions or conditions that violate the standards contained in 25 CFR Parts 531, 533, 535, or 537, the Chairman may require modifications of, or may void, the approved contract, after providing the parties with an opportunity for a hearing before the Chairman and a subsequent appeal to the NIGC as set forth in 25 CFR

Part 577. Title 25 CFR § 531 — cited by the NIGC Chairman as a regulation whose provisions must be met — requires provision that gaming will comply with IGRA. What the district court failed to grasp was that the IGRA lays out a specific regulatory scheme whereby the NIGC’s approval of a management contract is a final agency decision that may be appealed only directly and in an action initiated by a proper party in federal district court.

Specifically, 25 U.S.C. § 2714 provides that NIGC approvals of management contracts and tribal ordinances are “final agency decisions for purposes of appeal to the appropriate Federal distinct court pursuant to [the Administrative Procedures Act].” The amicus brief of the United States, to which the current NIGC Chairman is a signatory, denies that the NIGC interpreted the IGRA to allow the Lottery’s off-reservation features.

The United States argues — and the dissent agrees' — that Chairman Monteau’s letter did not say the IGRA permits the Lottery’s telephonic aspects, but rather that it does not prohibit the Lottery. Such a reading of Chairman Monteau’s letter is a stretch. The NIGC is statutorily obliged to reject any lottery proposal that does not conform to IGRA. See 25 U.S.C. § 2706(b)(10) (requiring the NIGC to promulgate regulations and guidelines to implement IGRA); and 25 C.F.R. § 531.1(a) (“[A]ll gaming covered by the contract will be conducted in accordance with the Indian Gaming Regulatory Act.”).

In fact, the NIGC has previously refused to approve management agreements when it believed the proposed gaming activity will not be conducted “on Indian lands” for IGRA purposes. See, e.g., Miami Tribe of Oklahoma v. United States, 5 F.Supp.2d 1213, 1218 (D.Kansas, 1998). The record contains ample and undisputed evidence that the Commission was aware that the Tribe planned to accept telephone orders from individuals outside the Reservation.

Read in the context of a detailed regulatory scheme and multiple final agency actions by the NIGC, the NIGC’s approval of the Tribe’s management contract evidences the NIGC’s determination that IGRA permits operation of the Lottery even though it allows ticket sales via off-Reservation phone calls. For their part, the amici states and the United States point to the opinion of a new NIGC Chairman, who believes that the Lottery is not protected by the IGRA insofar as it involves off Reservation ticket purchases.

But even if the Chairman may undo the work of a predecessor under some circumstance, he may not do so here. The United States and any of the amici states were free to challenge the NIGC’s final agency decision directly in federal court under 25 U.S.C. § 2714. None did so. Unless and until the NIGC’s decision is overturned by means of a proper challenge and appeal, the IGRA governs the Lottery.

Since IGRA applies, so too does 18 U.S.C. § 1166(d), which mandates that “[t]he United States shall have exclusive jurisdiction over criminal prosecutions of violations of State gambling laws” unless the tribe in question has consented to State criminal jurisdiction, which the Coeur d’Alene Tribe has not. Thus, where IGRA-governed Class III gaming is concerned, the federal government has the exclusive authority to prosecute any state gambling law violations applicable in Indian country. States, on the other hand, are without jurisdiction. See e.g., United States v. E.C.

Investments, Inc., 77 F.3d 327, 330-331 (9th Cir.1996) (holding that California lacked jurisdiction to prosecute alleged violations of state gambling laws by means of Class III gaming conduct). This brings us to the 18 U.S.C. § 1084(

d) letters that ostensibly underlie the instant action. As explained, § 1084(

d) permits a federal, state, or local law enforcement agency “acting within its jurisdiction ” to demand that a common carrier refuse service where state gambling laws may be violated. If IGRA governs the Lottery — as it does until a proper plaintiff challenges the NIGC’s approval of the management contract — then under 18 U.S.C. § 1166 the states and their various Attorneys General were not acting within their jurisdiction when they posted their § 1084(

d) letters to AT & T. For their part, the amici states are not without recourse to challenge the Lottery and to seek a determination as to what constitutes gaming activities “on Indian land” within the meaning of the IGRA. They must, however, rely on their own resources — and not AT & T’s — to make their case. The states might have joined this litigation at its beginning in the district court to attack the NIGC’s decision directly under 25 U.S.C. § 2714. They did not. Should they succeed at some future time in stripping the Lottery of its legitimacy under IGRA, they then will have the authority to issue § 1084(

d) letters. Until such time, both the Tribe and AT & T may continue their activities — and in AT & T’s case meet its legal obligations — without fear of prosecution. Reversed and remanded. . The Lottery also permits persons outside the reservation to purchase tickets over the Internet. This aspect oí the Lottery is subject to litigation in the Eighth Circuit and the Missouri state courts. The Eighth Circuit has remanded to the district court to determine whether the Lottery is a gaming activity on Indian lands subject to IGRA. State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102 (8th Cir.1999).

The parties have returned to the Missouri state court, from which the case was originally removed. . The only relevant compact provision states: “Except as otherwise provided in this Compact, gaming authorized ... shall not be subject to any state restrictions, including the Tribe's advertising or promotion of the authorized games or any intrastate or interstate aspects of the permitted games. Provided, this

section is not intended to permit gaming except on Indian lands as defined in

Article 4.9.” . MCI, another company from which the Tribe sought toll-free telephone service, made the inquiry. .25 U.S.C. § 2710(

e) states: "For the purposes of this section, by not later than the date that is 90 days after the date on which any tribal gaming ordinance or resolution is submitted to the Chairman, the Chairman shall approve such ordinance or resolution if it meets the requirements of this section. Any such ordinance or resolution not acted upon at the end of that 90-day period shall be considered to have been approved by the Chairman, but only to the extent such ordinance or resolution is consistent with the provisions of this chapter.” . The district court concluded that the tribe’s Lottery activity did not occur on Indian lands and therefore was not governed by IGRA. Because the § 1084(

d) letters were sent by Attorneys General empowered only to enforce state law, the district court did not consider whether the Lottery violated federal law. AT & T Corp., 45 F.Supp.2d. at 999. . See Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). . The dissent devotes considerable space to explaining why the Chairman’s letter to MCI explaining that the IGRA does not prohibit the lottery was a final agency action. Our opinion in no way relies on the letter as a final agency action — something it clearly is not.

Both the approval of the management contract and the approval of the ordinance are final agency actions, while the Chairman’s subsequent statement in his letter to MCI is simply clarification and evidence that the NIGC was aware of the relevant issues. . The compact defines Indian lands "as defined in the [IGRA], as well as lands within the state which meet the requirements of 25 U.S.C. § 2719.” . The dissent makes much of the fact that the Chairman did not issue an affirmative approval of the resolution.

Instead, consistent with 25 U.S.C. § 2710(e), the resolution was considered approved ninety days after submission "to the extent such ordinance or resolution is consistent with the provisions of this chapter.” The dissent argues that the lack of an affirmative statement that the resolution complied with IGRA means, in fact, that the NIGC Chairman did not approve the resolution at all. The law, however, tells us otherwise. Pursuant to 25 U.S.C. § 2710(e), the resolution was approved for IGRA purposes ninety days after submission.

Title 25 U.S.C. § 2714, in turn, tells us that decisions made pursuant to § 2710 — whether made tacitly or otherwise — are final agency decisions for purposes of appeal.

Section 2714 in no way differentiates between decisions made through a formal approval and those tacitly approved. . The relevant IGRA statutes and implementing regulations requiring compliance before resolutions may be approved include the following: 25 U.S.C. § 2710(d)

(1) Class III gaming activities shall be lawful on Indian lands only if such activities are— (

C) conducted in conformance with a Tribal State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect. 25 U.S.C. § 2710(d)(2) (

A) If any Indian tribe proposes to engage in, or to authorize any person or entity to engage in, a class III gaming activity on Indian lands of the Indian tribe, the governing body of the Indian tribe shall adopt and submit to the Chairman an ordinance or resolution that meets the requirements of subsection (

b) of this section. (

B) The Chairman shall approve any ordinance or resolution described in subpara-graph (A), unless the Chairman specifically determines that— (

i) the ordinance or resolution was not adopted in compliance with the governing documents of the Indian tribe, or ... (

C) Effective with the publication under subparagraph (

B) of an ordinance or resolution adopted by the governing body of an Indian tribe that has been approved by the Chairman under sub-paragraph (B), class III gaming activity on the Indian lands of the Indian tribe shall be fully subject to the terms and conditions of the Tribal State compact entered into under paragraph (3) by the Indian tribe that is in effect. 25 C.F.R. § 522.7: (

a) Notwithstanding compliance with the requirements of § 522.6 of this part and no later than 90 days after a submission under § 522.2 of this part, the Chairman shall disapprove an ordinance or resolution and notify a tribe of its right of appeal under

part 524 of this

chapter if the Chairman determines that—

(1) A tribal governing body did not adopt the ordinance or resolution in compliance with the governing documents of a tribe [e.g. the Tribal State compact]. . Management contracts are reviewed according to a statutory and regulatory scheme including the following: 25 U.S.C. § 2710(b)

(1) An Indian tribe may engage in, or license and regulate, [class III] gaming on Indian lands within such tribe’s jurisdiction if— (

A) such Indian gaming is located within a State that permits such gaming for any purpose ... 25 C.F.R. § 533.6 (

a) The Chairman may approve a management contract if it meets the standards of

part 531 of this

chapter and § 533.3 of this part. 25 C.F.R. § 531.1 [A] management contract not previously approved by the Secretary shall conform to all of the requirements contained in this

section in the manner indicated. (

a) Governmental authority. Provide that all gaming covered by the contract will be conducted in accordance with the Indian Gaming Regulatory Act (IGRA, or the Act) and governing tribal ordinance(s). . This Court draws no conclusions as to how the Lottery might fare when properly challenged in federal court and balanced against state laws and interests. The dissent's desire to reach what it contends is an "obvious conclusion” does not relieve us of our obligation to address only those issues that are properly before us, and does not eliminate the deference due to final agency actions.