personal background history and information. We also understand that there may be
circumstances under which such records must be protected from disclosure and withheld from
public release. Whether these circumstances are present in the context of the NIGC’s regulatory
responsibilities are not clear to us at this time, and we look forward to receiving additional
information and guidance on the the need and effects of these proposed changes.

4. Proposed Guidance for Class II] MICS

To begin, we commend the NIGC’s outreach efforts during the early planning stages to withdraw
25 C.F.R. Part 542 and issue the Class III MICS as non-mandatory guidance. Early tribal
involvement is not only consistent with the consultation responsibilities under Executive Order
13175, but also a key step towards developing federal policies that will be at least minimally
acceptable to tribal governments. It also ensures sufficient time for tribal governments to
explore the underlying concepts behind the proposed changes and consider alternatives,
including the alternative of no further action. We appreciate and welcome the opportunity to
engage in this type of dialogue with the NIGC.

While we generally approve of the concept of issuing internal controls standards as non-
mandatory guidance, we note that there are tribal-state compacts and, in some instances, tribal
gaming ordinances, that rely on 25 C.F.R. Part 542 for the establishment of Class III gaming
standards. For instance, the Model Tribal-State Compact with the State of Oklahoma provides
that tribal gaming operations must comply with tribal internal control standards that equal or
exceed the NIGC Class III MICS in 25 C.F.R. Part 542.

By withdrawing the Class III MICS regulation, there is the potential of disturbing the regulatory
balance struck in these compacts. In lieu of this, we would not necessarily object to leaving the
regulation in place for those tribes whose compacts incorporate the federal standards in 25
C.F.R. Part 542. We look forward to continued dialogue on this important question in the period
leading up to the publication of any notice of proposed rulemaking pertaining to Part 542.

CONCLUSION

Thank you for this opportunity to share our views and concerns regarding the topics outlined in
the Notice. We respectfully seek your favorable consideration of the above comments and look
forward to the continued cooperation and coordination of the government-to-government
relationship and in accordance with federal law and policy.

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Quapaw Tribal Gaming Agency
P. O. Box 405
Quapaw, Oklahoma 74363
(918) 919-6020

April 30, 2015

Jonodev O. Chaudhuri, Acting Chairman
Daniel J. Little, Associate Commissioner
1849 C Street NW

Mail Stop #1621

Washington, DC 20240

Re: February 26, 2015 Notice of Consultation
Dear Commissioners:

On behalf of the Quapaw Tribal Gaming Agency (“QTGA”), I am pleased to submit the
following comments in response to the National Indian Gaming Commissioner’s (“NIGC”)
Notice of Consultation (“Notice”), which was issued to tribal leaders on February 26, 2015. Our
comments below address the following topics identified in the Notice: (1) proposed NEPA
manual; (2) proposed Buy Indian Goods and Services regulation; (3) proposed Privacy Act
Discussion Act; and (4) proposed guidance for Class III minimum internal control standards
(“MICS”). We appreciate the opportunity to share our views on these important matters and hope
our comments are received in the positive spirit in which they are intended.

1. Proposed NEPA Manual
A. General Comments

The proposed NEPA manual is, in many important respects, a significant improvement from the
previous version published in the Federal Register on December 4, 2009. To begin, the policies
and procedures in the proposed manual have been simplified and scaled back considerably to
reflect the minimal responsibilities arising under NEPA in relation to NIGC actions. The 2009
version contained a number of provisions that were both unnecessary and unwarranted given the
limited application of NEPA to NIGC actions and the Indian Gaming Regulatory Act (“IGRA”).
We are encouraged by and welcome the NIGC’s new approach with respect to its NEPA-related
roles and responsibilities.

We are also encouraged by the NIGC’s shift in policy regarding the applicability of NEPA to
management contract related activities. In the 2009 draft manual, such activities were identified
as major federal actions requiring NEPA review and eligible for the categorical exclusion, but
only if the underlying contract did not involve physical construction or any plans to increase
patronage. In the current proposed manual, these limitations have been removed so that all

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management contract review and approval activities — whether they involve new construction or
expansion plans — will qualify for the categorical exclusion.

Although we believe management contract approval actions should be completely exempt from
NEPA, we find the NIGC’s approach to open up the categorical exclusion to al] management
contract related activities an acceptable compromise. We believe this change will have a
positive impact by reducing compliance costs and burdens for both federal and_ tribal
governments. Nonetheless, our position remains that management contract approvals are not
major federal actions necessitating NEPA review because the NIGC’s management contract
approval authority is limited and does not instill the NIGC with authority to actually control or
influence the development of a gaming facility. Nor has the NIGC ever taken the position that
its consent is necessary for the construction a new gaming facility or the expansion of an existing
facility.

Even when a management contract incidentally involves construction activity, the NIGC does
not control the environmental aspects of the project or exert significant influence on any
environmental considerations of the project. Because the NIGC does not exercise discretion to
consider environmental impacts in deciding whether to approve a management contract, we do
not believe the NIGC’s management contract approval activities should be subject to NEPA
compliance.

B. Specific Comments

In addition to the foregoing observations, we would like to suggest several technical comments
on improving the content of the proposed manual. First, we view the definition of
“Controversial” in Section 1.2.7 as an improvement from the previous definition in the 2009
manual and a step in the right direction. However, we believe further revisions are necessary to
clarify that the “substantial dispute” must exist within the scientific community rather than within
the general population at large.

As the NIGC is aware, NEPA compliance is a highly technical and specialized process requiring
skilled and specially trained experts. If there is a dispute as to the environmental impacts of a
proposed project, the NIGC must take into consideration whether the dispute arises from
members of the general public or members of the scientific community possessing the requisite
knowledge and background to fully establish the potential impacts on the human environment.
The views of the general public should not be given the same level of regard as those developed
by specialized experts knowledgeable in the relevant field.

There is, in fact, case law supporting our interpretation of a “substantial dispute.” When
considering the issue of “controversy” in the NEPA context, federal courts tend look to experts
in fields related to environmental impacts, including conservationists and biologists.' In Sierra
Club v. United States Forest Service, the Ninth Circuit Court of Appeals explained that a
“substantial dispute” requires evidence from numerous experts in fields relevant to the dispute at

' See Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1193 (1988); Foundation for North American
Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172, 1182 (1982).

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hand to be considered “controversial.”? The concern here, is that federal agencies otherwise risk
opening up their NEPA process to unnecessary delay and expense caused by the non-expert
“heckler’s veto.”

Our second technical comment also relates to the definition of “Controversial.” We agree that
the term should not include “the mere existence of opposition to a proposed action.” However,
the definition should also clarify that controversy in this context does not mean preference
among the alternatives. The focus should be on whether there is significant disagreement among
scientists and experts about the environmental impacts of a proposed action, not on the preferred
choice of alternatives.

Our third and final comment relates to the “Applicability” paragraph in Section 1.5 of the
proposed manual. As currently written, this Section is confusing and appears to suggest that the
NIGC has the authority to condition approvals of non-federal entities. In defining major federal
actions by the NIGC, the Section states that “[t]hese actions may be directly undertaken by the
NIGC or where the NIGC has sufficient control and responsibility to condition approvals of a
non-federal entity.” We are unaware of any NIGC responsibilities under IGRA that involve the
approval of entities. If the intent was to describe the NIGC’s approval authority with respect to
non-federal projects, then the language should be changed accordingly for purposes of clarity.

2. Proposed Buy Indian Goods Rules

We wish to express our support for the NIGC’s proposed Buy Indian Goods and Services
(“BIGS”) policy, which is consistent with and in furtherance of the NIGC’s authority under
IGRA to “procure supplies, services, and property by contract in accordance with applicable
Federal laws and regulations” and “enter into contracts with Federal, State, tribal and private
entities."* The NIGC’s BIGS policy establishes uniform procedures for the procurement of
supplies and services from eligible tribal business entities. Once adopted, these policies will
have a positive impact on the federal-tribal contracting environment and on tribal economic
development more broadly. We therefore support the BIGS policy and its overall objective of
encouraging procurement relationships with tribal businesses.

3. Proposed Privacy Act Discussion Draft

We understand that the NIGC is seeking to update and streamline its Privacy Act regulations,
which were first issued in 1993, and also add a new Privacy Act exemption for the system of
records maintained for management contractors. While we appreciate the chance to review and
comment on an early Discussion Draft of the proposed regulations, we wish to reserve the
opportunity to comment further on the Draft until we have received more information regarding
the purpose and intent for developing these new procedures.

As a tribal gaming regulatory agency, we understand and appreciate the importance of privacy
protection and accountability, especially with respect to records regarding an individual’s

2 g43 F.2d 1190, 1192 (9th Cir, 1988). >
3 state of N.C. v. F.A.A., 957 F.2d 1125, 1133-1134 (4th Cir. 1992).
“25 US.C. § 2706(b)(6)-(7).

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