Page No. 5 of 5

Re: Comments on NIGC Tribal Consultation 2021 Series B, Proposed Changes to 25 C.F.R. Part 518

Encouraging tribal self-regulation of Class II gaming under the IGRA is one of the ways
Congress—and the Executive Branch—implement the federal policy of tribal self-determination
and self-governance. To that end, the NIGC should welcome tribal petitions for a certification of
self-regulation and should do everything possible to assist Tribes in successfully obtaining those
certifications. This should include, for example, technical assistance to overcome any perceived
obstacles to self-regulation encountered by the Office of Self-Regulation in the course of its
review.

Unfortunately, many Tribes have found that the NIGC has instead erected barriers to self-
regulation, even approaching the review process with a punitive mindset and seemingly seeking
opportunities to take enforcement actions. In the absence of repeated or egregious violations,
Tribes that seek to establish their eligibility for self-regulation by inviting the NIGC to scrutinize
the sufficiency of their policies and procedures should not fear enforcement actions as retribution
for doing so. The punitive approach often taken by the NIGC has served as a significant
disincentive for Tribes that would otherwise be happy to work in partnership with the NIGC to
address any potential pitfalls or shortcomings and strengthen their regulatory capacities, to
everyone's benefit. The Tribe therefore urges the NIGC to make clear in its Part 518 regulations
that the agency pursues, and is committed to implementing, a policy of tribal self-determination
and self-governance including through the implementation of tribal rights to self-regulation of
Class II gaming under the IGRA.

Thank you for the opportunity to submit these comments.
Sincerely,

i

Reid D. Milanovich,

Chairman, Tribal Council
AGUA CALIENTE BAND OF
CAHUILLA INDIANS

5401 Dinah Shore Drive « Palm Springs, CA 92264 ¢ P: 760.699.6800 ¢ F: 760.325.0593 ¢ www.aguacaliente-nsn.gov



Page No. 4 of 5

Re: Comments on NIGC Tribal Consultation 2021 Series B, Proposed Changes to 25 C.F.R. Part 518

Currently, the regulations at § 518.7(b) broadly state that the Office of Self-Regulation
"May request from the tribe any additional material it deems necessary to assess whether the tribe
has met the criteria for self-regulation." In the Tribe's opinion, this authority has unfortunately
been interpreted far too broadly and the Office of Self-Regulation has consistently requested
documentation far beyond what is reasonably necessary to assess whether the petitioning Tribe
meets the statutory criteria. Indeed, the burden imposed on petitioning Tribes has been sufficient
to discourage Tribes from submitting petitions or completing the review process following an
initial submission, despite the benefits that self-regulation would provide. This is not what
Congress intended when it established the right of Tribes to exercise self-regulation of their own
Class II gaming operations upon meeting the clear, straightforward criteria listed in 25 U.S.C. §
2710(c)(4).

These comments do not constitute a comprehensive review of the regulatory changes that
would be needed to bring the Part 518 regulations in line with the statutory criteria for tribal self-
regulation of Class II gaming. Further, some of the problem lies with agency practice in the
implementation of the statute and regulations. The purpose of these comments is instead to urge
the NIGC to undertake a more thorough and comprehensive review of its Part 518 regulations,
with the specific goal of ensuring that the petition process is not more burdensome than what is
actually necessary to comply with the statutory requirements.

Il. The NIGC Should Support and Encourage Self-Regulation as an Implementation of
Federal Self-Determination Policy

For the last several decades, Congress has pursued an overall policy of tribal self-
determination. In enacting the IGRA itself, Congress specifically found that "a principal goal of
Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and
strong tribal government[.]" 25 U.S.C. § 2701(4). The current Administration has followed in
the footsteps of past administrations in pursuing a policy of respecting tribal sovereignty and self-
governance.!

' E.g., Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships (Jan. 26, 2021),
https://www.whitehouse.gov/briefing-room/presidential-actions/202 1/0 1/26/memorandum-on-tribal-consultation-
and-strengthening-nation-to-nation-relationships/ ("It is a priority of my Administration to make respect for Tribal
sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations,
and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy.").

5401 Dinah Shore Drive « Palm Springs, CA 92264 ¢ P: 760.699.6800 ¢ F: 760.325.0593  www.aguacaliente-nsn.gov



AGuA CALIENTE BAND OF CAHUILLA INDIANS
‘TRIBAL CouNncIL

Rew D. MILaNovicH Cuairman
Vincent GONzALEs III Szcrerary/Treasurer * JESSICA NORTE Memper ¢ JOHN R. PRECKWINKLE III Memper

May 19, 2022

Mr. E. Sequoyah Simermeyer, Chair
National Indian Gaming Commission
1849 C Street, N.W.

Mail Stop # 1621

Washington, D.C. 20240

Submitted via email to: NIGC.Outreach@nigce.gov

Re: | Comments on NIGC Tribal Consultation 2021 Series B, Proposed Changes to
25 C.F.R. Part 518

Dear Chairman Simermeyer:

Iam submitting these comments on behalf of the Agua Caliente Tribe of Cahuilla Indians
("Tribe") in response to the National Indian Gaming Commission's ("NIGC") Tribal Consultation
2021 Series B, and to its Summary of Proposed Changes to 25 C.F.R. Part 518 dated September 20,
2021 ("Summary of Proposed Changes").

The Tribe is happy to see that the NIGC is considering changes to the Part 518 regulations
governing self-regulation of Class II gaming. Tribes have expressed frustration with the NIGC's
approach to self-regulation over the years and reforms to the Part 518 regulations are needed to
reduce significant, unnecessary burdens on petitioning Tribes. However, the relatively minor
changes to the regulations that the NIGC has actually proposed fall far short of addressing these
issues in a meaningful way and will not, in the Tribe's view, result in any real improvements to the
NIGC's implementation of the self-regulation certification process. As discussed further below,
the Tribe urges the NIGC to focus on reforms to the Part 518 regulations to better align the petition
documentation and submission requirements with the statutory criteria for self-regulation, and to
more powerfully encourage and support the exercise of tribal self-governance through self-
regulation of Class II gaming.

I. The Proposed Changes Do Not Address Fundamental Problems with the NIGC's
Implementation of the Self-Regulation Certification Process.

Despite the promised benefits of self-regulation, very few Tribes have petitioned for or
received a certificate of self-regulation pursuant to 25 U.S.C. § 2710(c)(3)-(4). This lagging
participation is not the result of a lack of interest by Tribes in self-regulation. Rather, the NIGC
has consistently erected barriers to participation through both the imposition of unnecessarily
burdensome documentation requirements and a punitive, rather than cooperative, approach to its
petition review process.

5401 Dinah Shore Drive * Palm Springs, CA 92264 * P: 760.699.6800 * F: 760.699.6919 * www.aguacaliente-nsn.gov



Page No. 2 of 5

Re: Comments on NIGC Tribal Consultation 2021 Series B, Proposed Changes to 25 C.F.R. Part 518

By requiring Tribes to compile and submit documentation far beyond what is necessary to establish
whether or not the statutory criteria for self-regulation are met, and choosing to threaten or pursue
enforcement action rather than technical assistance to overcome perceived shortcomings in a
Tribe's petition, the NIGC has failed to meaningfully implement the self-regulation provisions of
25 U.S.C. § 2710(c). Unfortunately, the proposed changes to Part 518 as described in the
Summary of Proposed Changes do not address either of these fundamental issues.

While the Tribe has no specific objection to the narrow changes proposed to sections
518.7(f), or to the clarifications of the role and duties of the Office of Self-Regulation in sections
518.11, 518.13, and 518.14, a much more significant review and overhaul of the Part 518
regulations is necessary to bring the NIGC's implementation of self-regulation into compliance
with the letter and the spirit of the Indian Gaming Regulatory Act ("IGRA"). The Tribe strongly
urges the NIGC to undertake a thorough review of its Part 518 regulations to ensure that they
(1) do not impose documentation or other requirements on petitioning Tribes that are more
burdensome than what the statutory criteria require, and (2) provide for technical assistance and
otherwise encourage eligible Tribes to petition for and obtain a certificate of self-regulation
consistent with the federal policy of tribal self-determination and self-governance.

IL. NIGC Should Require Petitioning Tribes to Submit Documentation Necessary to
Establish the Statutory Requirements for Self-Regulation — Not More.

The NIGC's documentation requests in connection with petitions for a certificate of self-
regulation go far beyond what the statute requires and impose significant, unnecessary burdens on
petitioning Tribes. The statutory requirements for a certificate of self-regulation at 25 U.S.C. §
2710(c)(4) are relatively straightforward: A Tribe meets the qualifications set by Congress for
self-regulation of Class II gaming so long as it has otherwise complied with § 2710 and has:

(A) conducted its gaming activity in a manner which—
(i) has resulted in an effective and honest accounting of all revenues;
(ii) has resulted in a reputation for safe, fair, and honest operation of the activity; and
(iii) has been generally free of evidence of criminal or dishonest activity;

(B) adopted and is implementing adequate systems for—
(i) accounting for all revenues from the activity;

5401 Dinah Shore Drive ¢ Palm Springs, CA 92264 ¢ P: 760.699.6800  F: 760.325.0593 * www.aguacaliente-nsn.gov



Page No. 3 of 5

Re: Comments on NIGC Tribal Consultation 2021 Series B, Proposed Changes to 25 C.F.R. Part 518

(ii) investigation, licensing, and monitoring of all employees of the gaming activity;
and

(iii) investigation, enforcement and prosecution of violations of its gaming ordinance
and regulations; and

(C) conducted the operation on a fiscally and economically sound basis.

25 U.S.C. § 2710(c)(4). Moreover, the statute is couched in mandatory language: the NIGC
"shall issue a certificate of self-regulation if it determines from available information, and after a
hearing if requested by the tribe," that the Tribe meets these criteria. The NIGC is not free to
impose additional requirements beyond those set out in the statutory language.

Certainly, a Tribe petitioning for a certificate of self-regulation should be able to
adequately document that it meets the statutory criteria. However, the existing Part 518
regulations do not even consider a petition complete for review unless it includes a long list of
"descriptions" with supporting documentation that may or may not be relevant to any of the criteria
in 25 U.S.C. § 2710(c)(4) for a given Tribe. Section 518.4 of the regulations should not require
anything beyond what is described in subsection (b), which reasonably requires petitioning Tribes
to provide "A description of how the tribe meets the eligibility criteria in § 518.3, which may
include supporting documentation[.]" A description of how the Tribe meets the statutory criteria,
along with copies of relevant ordinances, regulations, and policies and any other necessary
documentation in support of that description, should be sufficient to render a petition complete for
review.

The regulations at § 518.5(b) also impose requirements beyond those the statute itself
requires or permits. The language itself, in stating that "A tribe may illustrate that it has met the
criteria listed in paragraph (a) of this section by addressing factors such as those listed below" and
that "The list of factors is not all-inclusive; other factors not listed here may also be addressed and
considered[,]" is poorly drafted and vague regarding whether or not a petitioning Tribe must
address all of the "factors" listed. Section 518.5(b) should therefore, at a minimum, be revised to
clarify that the "factors" listed are examples only, and that a petitioning Tribe need not specifically
"address" all of them if it can establish through other means that it meets the statutory criteria for
self-regulation. Likewise, the regulations at § 518.7(b) should be clear that the "approval criteria"
to be met is limited to the criteria listed in § 518.5(a) and does not also include the list of specific
"factors" in § 518.5(b).

5401 Dinah Shore Drive ¢ Palm Springs, CA 92264 e P: 760.699.6800 » F: 760.325.0593 « www.aguacaliente-nsn.gov