concurring in part and dissenting in part.
Although I concur in Part II of the majority opinion holding that the tribal court did not have subject matter jurisdiction over AT & T, I must respectfully dissent from Part III and the judgment. I would hold that the National Indian Gaming Commission (“NIGC”) did not issue a final decision that the National Indian Lottery (“NIL”) complies with the Indian Gaming Regulatory Act (“IGRA”) and, therefore, that the district court could examine that issue in the first instance. Accordingly, I would reach the merits of the legality of the NIL and would conclude, as did the district court, that the NIL is clearly illegal under the IGRA because it involves tribe-sponsored gambling that does not occur on Indian lands. AT & T did not act improperly in refusing to provide toll-free service to the Coeur d’Alene Tribe of Idaho (“Tribe”).
I see no principled basis for the majority to reverse the district court’s well-reasoned decision. The majority’s inexplicable decision to resolve this case solely on incorrect procedural grounds has the effect, if not the purpose, of avoiding the obvious conclusion that the NIL is illegal under the IGRA. The majority purports to exercise judicial restraint by putting off the resolution of this issue for another day. Avoiding the merits, the majority rests its decision on an incorrect procedural ground. It thereby does a disservice to AT & T, the thirty-seven states that have appeared as amici curiae,1 the federal government, also amicus curiae, and even to the Tribe advancing the NIL and possibly other tribes that may be contemplating similar national gambling operations. All of the governments and other entities who will be affected by this case would benefit from an efficient and correct resolution of the important issue whether an Indian nation may run a national lottery that depends on off-reservation ticket purchases.2 If the merits were reached and resolved against the Tribe, as I believe they must be under applicable law and consistent with Congress’ intent, the Tribe could turn its attention to a proper development of its legally viable gaming options, rather than *1169proceeding on the false hope that it will be permitted to implement the NIL.3
I. The NIGC Did Not Render a Final Decision on the Legality of the NIL.
The majority is correct that final NIGC decisions are reviewable under the judicial review provisions of the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and that, under the APA, such decisions must be challenged directly within a specified time frame. See 25 U.S.C. § 2714 (stating that NIGC decisions are subject to review under the APA); see also Nagahi v. INS, 219 F.3d 1166, 1170-71 (10th Cir.2000) (discussing statutes of limitations for actions under the APA). The majority errs, however, in concluding that the NIGC issued a final decision holding that the NIL complies with the IGRA. Absent such a decision, the district court was correct in proceeding to the merits of that question.
A. The Letter from the NIGC to MCI Was Not A Final Agency Decision.
To support its view that the NIGC decided that the NIL was authorized by the IGRA, the majority relies on an informal letter from the NIGC to MCI, which is not a party to this litigation. However, the majority’s reliance on the letter is not warranted because the letter is not a final agency decision. While it is true that the letter concludes that the NIL, “[i]n the opinion of the NIGC, ... is not prohibited by the IGRA,” that guarded statement does not necessarily mean that the NIL complies with and is authorized under the IGRA’s requirement that gaming be conducted on Indian lands.4 More importantly, the majority cannot rely on the letter to support its view that the NIGC issued a final agency decision as to the NIL’s compliance with the IGRA because the letter is by no means a final agency decision.
First of all, the letter is not among the types of NIGC actions that the IGRA explicitly identifies as final agency actions subject to direct judicial review under the APA and that accordingly would be granted preclusive effect absent a proper direct appeal. 25 U.S.C. § 2714(providing that decisions as to management contracts, ordinances and resolutions, and civil penalties are final, reviewable decisions). Also, the letter bears none of the indicia of final agency action to which we are required to give preclusive effect absent a timely direct appeal.
The Supreme Court has set two requirements for final agency action:
First, the action must mark the “consummation” of the agency’s decision-making process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948) — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston *1170Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970).
Bennett v. Spear, 520 U.S. 154, 177-78,117 S.Ct. 1154, 137 L.Ed.2d 281 (1997);5 see also Fogel v. Dep’t of Def., 169 F.Supp.2d 140, 148-49 (E.D.N.Y.2001); Cmtys. for a Great Northwest v. Clinton, 112 F.Supp.2d 29, 38-39 (D.D.C.2000). Neither of those two requirements has been met here.
As to the first requirement, the letter to MCI did not mark the consummation of any decisionmaking process. Instead, the phrasing of the letter suggests that it is an advisory letter most likely drafted as a courtesy in response to an inquiry by MCI.6 As a response to an informal inquiry, the letter is, by definition, “interlocutory [in] nature” and, therefore, not final under Bennett.7 520 U.S. at 178, 117 S.Ct. 1154. Moreover, although the letter purports to describe “the view of the NIGC” as to the legality of the NIL under the IGRA, it does not directly refer to, or even implicitly suggest, any prior decisionmak-ing process that culminated in the NIGC’s espousal of its stated view. And it certainly shows no analysis whatsoever of whether the gaming contemplated by the NIL would occur on Indian lands. The letter does not meet Bennett’s first requirement for final agency action because it does not mark the consummation of any decision-making process and because it is tentative and interlocutory in nature; in its most important feature for us, it makes no explicit determination whether lottery gaming occurs on Indian lands.
As to the second requirement, it is even more clear that the letter was not an action “by which rights or obligations [were] determined, or from which legal consequences ... flow[ed].” Id. (citations and internal quotation marks omitted). The letter was addressed to, and was in response to the inquiry of MCI, an entity that is not a party to this litigation. Thus the letter could not have established any rights or obligations between the Tribe and AT & T, the plaintiff in this action. Moreover, although the letter purported to state “the view of the NIGC,” it did not suggest that any rights or obligations on the part of MCI (or even the Tribe) would stem from the NIGC’s view as to the NIL’s legality. The letter carried no “direct and appreciable legal consequences” and functioned more “like a tentative recommendation than a final and binding determination.” Bennett, 520 U.S. at 178, 117 S.Ct. 1154(citations and internal quotation marks omitted). In short, it did not meet Bennett’s second requirement for finality.8
*1171The letter from the NIGC does not meet either of the Supreme Court’s two requirements for final agency action. Thus, the letter lends no support to the majority’s view that the NIGC issued a final decision approving the NIL and, therefore, that we cannot reach the merits of that question here. On the contrary, we have a duty to reach the merits of the legality of the NIL under the IGRA.
B. The Chairman’s Approval of the Management Contract Does Not Indicate that He Concluded that the NIL Was Authorized by the IGRA.
Not only does the majority err in relying on the NIGC letter, but it also errs in suggesting that, in approving the Tribe’s management contract, the NIGC Chairman necessarily concluded that the NIL is legal under the IGRA. Thus, although 25 U.S.C. § 2714 provides that approval of a tribe’s management contract is a final agency decision, the fact that the Tribe’s management contract received the necessary approval does nothing to help the majority’s incorrect position that the NIGC decided that the NIL complies with the IGRA. The same is trae of the NIGC’s approval of the amendment to the management contract.
The majority relies on the NIGC Chairman’s August 15, 1996 letter approving the Tribe’s gaming management contract as evidence that the NIGC reached a final decision that the NIL was legal under the IGRA. The problem with this argument is that the Chairman’s letter does not at all indicate that he evaluated the NIL’s compliance with the substantive provisions of the IGRA as part of the approval process. Moreover, nothing in the statutory and regulatory frameworks that govern the approval process indicates that the Chairman is even authorized to evaluate the legality of the proposed gaming operations under the IGRA in deciding whether to approve the management contract. See 25 U.S.C. §§ 2711,9 2712(c); 25 C.F.R. §§ 531.1,10 533.4, 533.6. Given, first, that the Chairman did not indicate that his decision to approve the contract was based, in part, on a conclusion that the NIL was legal under *1172the IGRA11 and, second, that the Chairman had no statutory or regulatory duty to consider that issue, there is no reasoned basis for the majority to infer that the legality of the NIL was decided in favor of the Tribe as part of the Chairman’s decision to approve the management contract.12
C. The Majority Also Errs in Relying on the Chairman’s Alleged De Facto Approval of the Tribe’s Resolution.
As the majority indicates, the Chairman did not actively approve the Tribe’s gaming resolution; rather he simply did not respond to it within the 90-day period after the Tribe submitted the resolution to him. See 283 F.3d at 1160. The majority is correct that, in some circumstances, ie., when the resolution complies with the IGRA, such inaction is tantamount to approval. However, 25 U.S.C. § 2710(e) provides that a resolution on which the Chairman failed to act within the 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.” 13 (Emphasis added.) Thus, § 2710(e) stands for the opposite proposition to the one for which the majority cites it. It means that the Chairman did not approve the resolution by failing to act upon it: because the resolution was not consistent with the IGRA, it legally could not be approved by inaction. Irrespective of whether the Chairman’s active approval of a resolution means that he has determined that it complies with the IGRA, no such approval occurred here.
In sum, the letter from NIGC to MCI was not a final agency decision. The Chairman’s approval of the management contract is not conditioned on a determination that the proposed gaming complies *1173with the IGRA. The Chairman’s inaction as to the Tribe’s gaming resolution is not legally tantamount to approval, where, as here, the resolution does not comply with the IGRA. Accordingly, there is no final agency decision as to the NIL’S compliance with the IGRA that requires our deference.14 The majority errs in concluding otherwise.
II. The IGRA Does Not Authorize the NIL.
Because there has been no prior, final agency determination on the legality of the NIL under the IGRA, we must address that issue to resolve AT & T’s declaratory judgment action. I would reach the merits and conclude that the IGRA is unambiguous in its failure to authorize the NIL.
A. The IGRA Unambiguously Requires the Tribe’s Gaming Operations to be Conducted on Indian Lands.
Lotteries are included under the definition of class III gaming in the regulations implementing the IGRA. 25 C.F.R. § 502.4. Class III gaming is the most stringently regulated of the three classes. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 48, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Class III gaming on Indian lands is permitted only if (1) “such gaming is not otherwise specifically prohibited on Indian lands by federal law,” (2) the Tribe enters into a compact governing gaming with the State in which the Indian lands are located, and (3) the Secretary of the Interior approves of the Tribal-State compact. 25 U.S.C. § 2710(b)(1)(A), (d)(1) and (d)(8).
The district court correctly concluded that the term “gaming activities” plainly includes a player’s ordering a ticket because, without that activity, the lottery could not operate. The NIL included gaming activities off Indian lands because of the telephonic participation of its players. A NIL participant does not need to enter the Tribe’s reservation, but can bet by telephone. For example, a participant: (1) registers to play the lottery; (2) establishes and deposits funds into a gaming account; (3) plays the lottery by calling from off the reservation and authorizing a debit to his or her account and selecting the numbers; (4) receives written confirmation of the transaction upon request; and (5) can have lottery winnings mailed, off the reservation, directly to him or her. The NIL beyond doubt, and with any common sense assessment, involves gaming activity off Indian lands because players (1) place their bets while outside the Indian reservation, and (2) can receive the winnings off the reservation. The IGRA protects and advances on-reservation gaming; the proposed national lottery involves and encourages illegal gaming nationwide off the reservation and is not within the purview of the IGRA.
The Tribe argues that the term “gaming activities” is ambiguous, but grasps to find ambiguity where there is none in an attempt to save its lottery from being foreclosed by federal law and from running afoul of state laws prohibiting such gambling in their jurisdictions. When words are not defined in a statute, they must be “interpreted as taking their ordinary, contemporary, common meaning.” United States v. Akintobi, 159 F.3d 401, 403 (9th Cir.1998) (citations and internal quotation marks omitted). “Gambling”15 is “[t]he act of risking something of value ... for a chance to win a prize.” Black’s Law Die-*1174tionary 687 (7th ed.1999). The Oxford English Dictionary defines “activity” as “the state of being active,” and defines “active” as “1 [g]iven to action rather than contemplation or speculation; practical[;] 2[o]riginating or communicating action.” 1 The New Shorter Oxford English Dictionary 22 (1993). • Here, the issue is whether the active aspects of gaming occurred on Indian lands.
In my view, no reasonable person could interpret the facts to conclude that gaming activities under the NIL do not occur off Indian lands. Placing the calls, selecting the numbers and receiving the winnings are indispensable elements of the operation of the NIL and all these activities occur off Indian lands. Gaming would occur off Indian lands each time and in each location a player participated in the NIL, if that person was not physically on Indian lands. See, e.g., Martin v. United States, 389 F.2d 895, 897-98 (5th Cir.1968) (stating that telephonic transmission of wager implicates the public policies of the state from which the wager is placed), cert. denied, 391 U.S. 919, 88 S.Ct. 1808, 20 L.Ed.2d 656 (1968).
Federal law might well protect a lottery where all betting occurred by persons purchasing lottery tickets on Indian lands. That at least would serve a benign purpose to bring lottery players on to Indian lands and perhaps increase crosscultural understanding. But nothing like that is contemplated by the NIL. It would serve as a national gambling operation for off-reservation persons wherever situated without respect to Indian lands.
In short, the essence of gaming is the placing of a bet and the collection of the winnings. Those essential activities occur off the reservation and not on Indian lands. Only a subterfuge and strained argument that an account is established at the reservation is offered as a justification. This is too preposterous a position and too slim a reed to support the planned national lottery to be run by the Tribe.
Equally important, the compact requirement of the IGRA balances the respective interests of tribes and states regarding class III gaming and mandates a negotiation between sovereigns to address these interests. S.Rep. No. 446, at 5-6, reprinted in 1988 U.S.C.C.A.N. 3071, 3075-76. The IGRA clearly contemplated that each state be given the opportunity to negotiate with and reach agreement with tribes in that state for the offering of class III gaming. However, telephonic participation would undoubtedly include persons in states that have not entered into a compact, thereby circumventing the guidelines delineated in 25 U.S.C. § 2710. Here, the only state that entered into a compact with the tribe was Idaho. For these reasons, participation in the NIL occurs off Indian lands, and, with the exception of gambling activity within the State of Idaho, the NIL lacked the required predicate for class III gaming of successful negotiations between sovereigns.
The legislative history of the IGRA supports the reading that the NIL occurs off Indian lands. The IGRA’s legislative history and attendant policy objectives make it clear that the IGRA authorizes tribal gaming activities exclusively on Indian lands, whereas the NIL would include activities off Indian lands. See Cabazon Band of Mission Indians v. Wilson, 37 F.3d 430, 433-35 (9th Cir.1994) (implying that the tribe’s interest in gaming activity under the IGRA derives from the fact that the activity occurs on the reservation), cert. denied, 524 U.S. 926, 118 S.Ct. 2319, 141 L.Ed.2d 694 (1998). Congress enacted the IGRA expressly to preserve and balance mutual and competing federal, state, and tribal interests in Indian gaming on Indian lands. See Confederated Tribes of *1175Siletz Indians of Or. v. United States, 110 F.3d 688, 693 (9th Cir.1997). The Senate Report by the Indian Affairs Committee reveals that the IGRA was the product of years of “negotiations between gaming tribes, States, the gaming industry, the administration, and the Congress, in an attempt to formulate a system for regulating gaming on Indian lands” which simultaneously “preserve[s] the right of tribes to self-government,” “protect[s] both the tribes and the gaming public from unscrupulous persons,” “achieves a fair balancing of competitive economic interests,” S.Rep. No. 10(M46, at 1, 2 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3072, and accommodates “the strong concerns of states that state laws and regulations relating to sophisticated forms of class III gaming be respected on Indian lands where, with few exceptions, such laws and regulations do not [otherwise] apply.” Id. at 13, 1988 U.S.C.C.A.N. at 3083.
The IGRA’s legislative history places great emphasis on the “on Indian lands” requirement. Like the IGRA, neither the Senate Committee Report, nor other IGRA legislative history authorizes Indian gaming activity to be played, even in part, off Indian lands. For instance, when discussing the use of modern technology to facilitate class II tribal gaming, the Senate Committee Report adheres to the historical meaning associated with, as well as the plain meaning of, the “on Indian lands” requirement. The Report states:
In this regard [i.e., as to the use of modern technology], the Committee recognizes that tribes may wish to join with other tribes to coordinate their class II operations and thereby enhance the potential of increasing revenues. For example, linking participant players at various reservations whether in the same or different States, by means of telephone, cable, television or satellite may be a reasonable approach for tribes to take. Simultaneous games participation between and among reservations can be made practical by use of computers and telecommunications technology....
Id. at 9, 1988 U.S.C.C.A.N. at 3079; see Cabazon Band Mission Indians v. Nat’l Indian Gaming Comm’n., 14 F.3d 633, 636-37 (D.C.Cir.1994) (Senate Report discusses how “communications technology” might link players in remote locations on other reservations).
Moreover, even in the context of class II gaming, which is less stringently regulated than class III gaming, Congress requires that it occur on Indian lands. If the Committee actually intended for the “on Indian lands” requirement to be applied in the manner suggested here by the Tribe, the Committee in the above referenced report would not have limited the use of “telephone, cable, television or satellite” to “between and among reservations.” Instead, consistent with the plain and historical meaning of “on Indian lands,” Congress recognized that technology could only be used to link reservations and players on those reservations.
It is one thing to link players at several locations, all of which are on Indian lands. It is quite another thing to link any person at any time and any place by phone or other electronic means to an Indian reservation that wants to play host to unrestricted gambling from all quarters, and thereby circumvent the clear geographical limitation of the IGRA that gaming must occur on Indian lands. The careful balance set by Congress in the IGRA, respecting rights and interests of Indian tribes, state governments, and the federal government, and their citizens, is upset by the NIL’s planned disregard of geographic limitation for gaming. I see no real possibility that Congress could have intended what is here proposed, nor does Congress’ language in the IGRA support the Tribe’s strained construction in its rush towards *1176national if not international and certainly unrestricted gaming.
B. Because the IGRA Unambiguously Prohibits the NIL, We Have No Occasion to Apply the IGRA Liberally in Favor of the Tribe.
The Tribe argues that, because the IGRA is ambiguous as to the legality of the NIL and because the statute was enacted to benefit Indian tribes, the IGRA must be construed liberally in favor of the Native Americans. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). Certainly there is authority supporting that certain statutes enacted for the benefit of Native Americans must be interpreted liberally in their favor where an ambiguity exists. See, e.g., Bishop Paiute Tribe v. County of Inyo, 275 F.3d 893, 900-01 (9th Cir.2002). However, as explained above, the IGRA is not ambiguous as to its requirement that all gambling activity be conducted on Indian lands. Accordingly, there is no occasion to apply that canon of construction, and the IGRA must be interpreted according to its plain meaning, under which the NIL, with its off-reservation gaming, is not authorized.
III. Conclusion.
The NIGC did not render a final decision as to the legality of the NIL under the IGRA. The premise of the majority’s decision is in error. Moreover, the IGRA unambiguously does not authorize the NIL because the NIL contemplates Tribe-sponsored gaming activity that does not occur on Indian land. The district court was correct to grant summary judgment in favor of AT & T. I respectfully dissent from the majority’s analysis to the contrary and from the judgment of the court.
. The states which have appeared as amici curiae are: Minnesota, Florida, Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. The federal government also has appeared as amicus curiae, supporting AT & T’s position along with the several states listed. The federal government has also advised of the position of the NIGC that the NIL is illegal under the IGRA because the gaming — when citizens not on Indian lands buy lottery tickets — does not occur on Indian lands.
. By analogy, resolution of this important issue may have implications for whether tribes under the IGRA may run Internet gambling operations that effectively know no geographic bounds.
. The Tribe’s attempt to pursue the NIL, if not corrected by this court en banc or by the Supreme Court, presages a disastrous marriage of tribal interests with off-reservation gambling that can be avoided in the near future only by an action of Congress to clarify the IGRA. After the experience in this case, where the appeal was filed in January 1999 over a controversy started years before, one wonders if any sensible person would seek a judicial resolution.
. Because the IGRA governs only gambling on Indian lands, it neither permits nor prohibits tribe-sponsored gambling off Indian lands. See, e.g., 25 U.S.C. § 2710(d) (stating that "[cjlass III gaming activities shall be lawful on Indian lands " only if certain conditions are complied with) (emphasis added). Thus, a statement that the IGRA does not prohibit a national lottery does not mean that the IGRA authorizes such a lottery.
. The Court in Bennett elaborated that an agency action is not final if it carries no “direct and appreciable legal consequences” and functions more “like a tentative recommendation than a final and binding determination.” 520 U.S. at 178, 117 S.Ct. 1154 (citations and internal quotation marks omitted).
. The letter, which is dated September 21, 1995, begins "Thank you for your letter of July 27, 1995, concerning the ... proposed national lottery.” It then sets out the degree to which the Tribe's actions comply with the technical and procedural requirements of the IGRA, such as the Tribe’s procurement of the Secretary of Interior's approval for its compact with the State of Idaho as well as the approval of the Chairman of the NIGC for its gaming ordinance.
. The legal meaning of "interlocutory” is "preliminary, provisional, [or] interim,” 1 The New Shorter Oxford English Dictionary 1396 (1993), in other words, "not final.” However, further clarity can be gained by looking at the ordinary meaning of the term, which is "[o]f, pertaining to, or occurring in dialogue or conversation.” Id. As the latter definition makes abundantly clear, a letter responding to an informal inquiry is inherently interlocutory and therefore not final.
. Reinforcing the conclusion that the letter was tentative is the current NIGC position, as represented by the federal government, that NIL gaming off Indian lands is illegal.
. The Tribe relies on 25 U.S.C. § 2711(e)(4), which provides that the Chairman may disapprove a contract on the grounds that a trustee, exercising appropriate skill and diligence, would disapprove it, for the proposition that the Chairman must have decided that the NIL was legal before he approved the contract. However, the other subsections of § 2711(e) all relate to corruption or conflicts of interest on the part of the management contractor. Given that context, it is reasonable to conclude that (e)(4) simply refers to other, unspecified types of corruption or conflicts of interest which would preclude a trustee from approving a contract, rather than to any conceivable reason that a trustee might disapprove a contract. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 (9th Cir.1999) (stating that, under the doctrine of ejus-dem generis, ‘‘[w]hen a statute contains a list of specific items and a general item, we usually deem the general item to be of the same category or class as the more specifically enumerated items”).
. The majority mistakenly relies on 25 C.F.R. section 531.1(a) to reach a contrary conclusion. Section 531.1 governs the "[r]e-quired [pjrovisions” of a management contract. Subsection (a) requires the contract literally to provide that all gaming covered by the contract will be conducted in accordance with the IGRA. As the district court correctly recognized, under section 531.1(a) and related provisions of the Code of Federal Regulations, the Chairman, in deciding whether to approve a tribe’s management contract, actually reads the contract to determine whether the contract literally states that gambling activities will be conducted in accordance with the IGRA. Such a " 'paper review’ " in no way qualifies as a substantive analysis as to compliance with the IGRA. AT & T Corp. v. Coeur D’Alene Tribe, 45 F.Supp.2d 995, 1003 (D.Idaho 1998) (quoting Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1418 (8th Cir.1996)).
. The majority cites the affidavit of a tribal gaming official as evidence that the NIGC necessarily determined that the management contract complied with the IGRA prior to approving it. 283 F.3d at 1166. The proper place to look for evidence of the NIGC’s alleged legal conclusions is, however, not a third party's summary of informal discussions with the agency, but the actual agency decision itself. See, e.g., Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154.
. The majority relies on Miami Tribe of Okla. v. United States, 5 F.Supp.2d 1213, 1218 (D.Kan.1998), for the proposition that the NIGC generally considers the legality of the proposed gambling operations under the IGRA in deciding whether to approve a management contract. See also Kansas v. United States, 249 F.3d 1213 (10th Cir.2001) (a subsequent appeal addressing a later decision of the NIGC with respect to the same parties and the same issue). The majority misses the point. Miami Tribe and Kansas differ from this case because in those cases, the NIGC had explicitly indicated, in its decision, that it was deciding whether to approve the contract based on the perceived legality of the proposed gaming operations under the IGRA.
It makes no sense to defer to the practices of an administrative body in other cases when there is no indication that the administrative body followed those practices in this case. It is particularly improper to do so when the relevant statutory and regulatory schemes do not give the administrative body authority to engage in those practices. The majority’s reliance on Miami Tribe is in error.
Moreover, although it appears to be undisputed that the NIGC knew that the NIL involved off-reservation telephone purchases prior to the Commission’s approval of the management contract, as evidenced by the affidavit from David Matheson, a tribal gaming official, both the majority and the Tribe attribute undue significance to the NIGC’s awareness of the NIL’s off-reservation character during the period before its approval of the Tribe’s management contract.
.As explained in Part II, infra, I consider the conclusion that the NIL does not comply with the IGRA to be inescapable.
. The fact that the NIGC has signed on to the United States’ amicus brief in support of AT & T reinforces my conclusion that the NIGC did not previously render a final decision to the contrary.
. In Black’s Law Dictionary 687 (7th ed.1999), "gaming” is defined as “gambling.”