1 ______________________________________________________

2

3 NATIONAL INDIAN GAMING COMMISSION

4 PORTLAND REGION

5 REGULATORY REVIEW CONSULTATION

6

7 ______________________________________________________

8 TULALIP RESORT AND CASINO

9 10200 QUIL CEDA BLVD

10 CHINOOK BALLROOM

11 TULALIP, WASHINGTON

12 JULY 15, 2011

13 9:12 A.M.

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24 REPORTED BY: CHERYL J. HAMMER, CCR 2512

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1 TULALIP, WASHINGTON; JULY 15, 2011

2 9:12 A.M.

3 --oOo--

4

5 CHAIRWOMAN STEVENS: Good morning.

6 There we go. Thanks for returning. We see a lot of

7 folks who stayed for the full two days. We're going

8 to continue our discussion from yesterday. Today

9 we're talking about groups five and three. Do we have

10 any newcomers? Yes. Please do introduce yourself if

11 you don't mind. Thanks.

12 MR. SPENCER: Yeah, my name is Mike

13 Spencer. I'm vice chairman of the Spokane tribal

14 council. Thank you for giving us an opportunity to

15 meet here today. We did have some representatives

16 here yesterday, so they'll bring me up to date on

17 everything. Thank you.

18 CHAIRWOMAN STEVENS: Great. Thank

19 you. Yes, sir.

20 MR. DeVENY: I'm Darwin DeVeny from

21 the Quinault Nation, executive director.

22 CHAIRWOMAN STEVENS: Welcome. Just

23 for the benefit of the folks who weren't here

24 yesterday, we are going by our day two agenda. We'll

25 be talking about group five and three today, although

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1 that does not preclude comments about any of the other

2 topics that we covered yesterday.

3 We understand everybody has very busy

4 schedules and may not be able to make both days or may

5 not be able to be here at the time we're talking about

6 specific regulations. So the floor is all open to

7 make comment on any and all parts, even if they are

8 not necessarily what we're talking about at the time.

9 If we're okay with just jumping right

10 into the work, I do want to make some initial

11 announcements. We had up on the screen our trainings.

12 We mentioned it yesterday. These are our upcoming

13 technical assistance and training opportunities. July

14 will be at Cherokee Hard Rock. That's a regional

15 training. Are these all regional trainings?

16 Keep in mind they may taylor it to that particular

17 region.

18 In August -- July will be at Cherokee.

19 August will be down at Poarch Creek and then, oh,

20 look, in North Dakota. That's good. I do want to

21 give Nimish the opportunity to let you know what else

22 we might be doing that pertains to the Northwest.

23 Nimish, if you can come up and let them know what we

24 are looking at for the Northwest.

25 MR. PUROHIT: Good morning, everyone.

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1 What we do is a series called regulating gaming

2 technology, and I'm the presenter for three days, so

3 if you don't like my voice right now, then I would

4 recommend not attending that, because you get to hear

5 me for three days.

6 But the next example of that is going

7 to be at Poarch Creek in Alabama and every regional

8 training event is specific to that region. I've done

9 one here last year in Spokane, Washington, and

10 Calispell, and that was done specifically with the

11 tribal lottery system as compacted games and gaming

12 systems and Class II gaming systems and forensics

13 onsite.

14 So it's a three-day technology event.

15 Right now we're working with a region here and Vita

16 Bishop and Mark Phillips to have something again

17 toward the end of this year as well on the western

18 side of Washington, and hopefully we're able to get

19 some hosts for our training event as well.

20 We hold these at the tribal gaming

21 facilities as well, as an example, that are up there.

22 As I said, it's going to be a three-day event. The

23 only thing you would need are equipment with

24 projectors and that. You can please talk to Vida, see

25 if you have any opportunities to host the training

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1 event as well. We'd appreciate that. Thank you.

2 CHAIRWOMAN STEVENS: Thank you. So if

3 there's anyone who's interested, please contact the

4 region about what that would entail specifically.

5 MR. GOBIN: Tulalip might be

6 interested in doing that, but we'll get in touch with

7 you.

8 CHAIRWOMAN STEVENS: Thank you.

9 Anyone who needs to get more information about that

10 training, you can talk to Vida, yeah. So let's go

11 ahead with our day. I'll turn over the microphone to

12 -- well, before I begin. I do want to give folks the

13 opportunity who may have written prepared statements

14 and their time is of the essence for their schedule.

15 So, you know, the floor is open if there's anyone who

16 has prepared statements they would like to make for

17 the record for any of these parts. Yes, Spokane.

18 MR. SPENCER: Yes, the Spokane tribe

19 has prepared written comments, but I don't want to

20 take up time actually reading the comments into the

21 record. I'd like to present the original document to

22 the chair, copies to the other commission members, and

23 ask that they be formally placed into the record.

24 CHAIRWOMAN STEVENS: Yes, we certainly

25 can do that. We'll have someone come around and take

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1 those from you. Actually, give them to Lael. Any

2 others?

3

4 WRITTEN COMMENTS OF THE SPOKANE TRIBE REGARDING

5 NATIONAL INDIAN GAMING COMMISSION REGULATORY REVIEW

6 TULALIP RESERVATION JULY 14-15, 2011

7

8 "Thank you for the opportunity to

9 address the NIGC on the important issue of regulatory

10 review.

11 Previously, at the May 20, 2011

12 session at the Coeur d'Alene Reservation, we submitted

13 our comments to Group #1 and Group #2. Accordingly, I

14 limit my comments today to Groups #3, 4 and 5. I

15 note, however, that the Class III MICS issue is in

16 both Groups 1 and 5, and that is an issue of great

17 importance to the Spokane Tribe. A copy of the May

18 20, 2011 comments are attached hereto, and the Tribe

19 may supplement this statement as we hear and read the

20 comments of other Tribes and review preliminary drafts

21 released by the NIGC.

22

23 GROUP THREE: CLASS II GAMING - GENERAL COMMENTS

24

25 Our comments on Group Three, Class II

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1 gaming, will be brief. We have followed the very hard

2 and detailed work of the Class II Working Group and we

3 support their efforts and comments. Many tribes are

4 confronted by states who hide behind 11th Amendment

5 immunity to deprive them of compacts, such as

6 Louisiana with the Jena Band and Texas with the

7 Kickapoo. Many other states use the unfair leverage

8 of the Seminole decision to coerce tribes into

9 unreasonable gaming taxes and intrusions on tribal

10 self-governance. Spokane knows the plight of these

11 tribes all too well. Spokane operated without a

12 compact for a decade because we refused to capitulate

13 to Washington State's unreasonable restrictions,

14 including a complete prohibition on machine gaming, as

15 the State hid behind 11th Amendment immunity. As you

16 consider the regulations for Class II games, please

17 keep in mind that a viable Class II game is the only

18 leverage many tribes have in the wake of the Seminole

19 decision.

20 With prior Commissions, discussion of

21 Class II policy flowed into discussion regarding

22 monitoring and investigation - a main topic of Group

23 Four. It was with great frustration that Spokane

24 watched prior Commission Chairman Hogan work so hard

25 to draw a "bright line" with Class II games only to

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1 undermine the efforts of many tribes to leverage Class

2 II gaming to secure Class III gaming compacts. While

3 the NIGC would place many Class II games in to

4 question, DOI sat by quietly, opting not to implement

5 Class III procedures when confronted with state

6 assertions of 11th Amendment immunity. Likewise, DOJ

7 opted not to bring litigation against hostile states

8 on behalf of the tribes. In Seminole's wake, NIGC,

9 DOI and DOJ should work cooperatively under the

10 federal umbrella to develop a collective and

11 coordinated approach to ensure tribes are in the

12 position that Congress intended when states refuse to

13 negotiate in good faith.

14

15 GROUP FOUR: DEFERENCE TO TGAs AS THE PRIMARY

16 REGULATOR - GENERAL COMMENTS

17

18 Group Four covers a lot of territory.

19 Spokane accepts that NIGC needs access to the tribal

20 gaming facilities. Spokane applauds the policy

21 embraced by the NIGC's preliminary draft revisions to

22 Part 573, which embraces a policy of deference and

23 support of TGAs. The TGA is the primary regulator of

24 tribal gaming. The tens of millions of dollars in

25 authorized Tribal Commission budgets, the shear

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1 manpower numbers, and the common presence of the most

2 experienced regulators in the industry, quantify this

3 basic fact. The Tribe itself has the highest

4 incentive to ensure that the games are fair and

5 honest. In the vast majority of circumstances, any

6 Tribe out of compliance has the highest incentive to

7 come in to compliance. The draft revisions to Part

8 573 embrace a formal policy that ensures the NIGC will

9 take every effort to identify the problem for the TGA

10 and/or Tribal Council, work with the Tribe to come in

11 to compliance, and only if those steps have been taken

12 and have failed, take action in the form of an NOV

13 with attendant threats of fines and closures. We hear

14 rhetoric that this is how the Hogan Commissions

15 approached situations, but we know of too many

16 circumstances where the NOV came as a surprise to

17 tribes, resulting in panic when facing the prospect of

18 major fines and closure orders. Even though those

19 situations ultimately were resolved with nominal

20 fines, such heavy-handed threats have no place in

21 proper government-to-government dialogue.

22 In the preliminary draft to Part 573,

23 there is a provision about when an NOV becomes a final

24 agency action that appears intended to clarify that

25 the Chair may withdraw an NOV, which is good. Still,

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1 we are looking into the technical legal issue of

2 whether this language properly fits within the

3 framework of APA review, and may supplement this

4 statement based upon that review.

5 The monitoring and investigative

6 authority of the NIGC is best utilized when tempered

7 with a policy of proper deference and support of TGAs.

8 Within those policy constraints, the proposed

9 preliminary draft changes to part 571 set forth an

10 acceptable process to ensure the NIGC's access to

11 critical documents. Access to and review of those

12 critical documents should be utilized when necessary

13 to enable the NIGC to discover problems and to work

14 with TGAs and tribal councils to correct those

15 problems.

16 Spokane submits certain technical

17 comments on the specifics of Group Four.

18

19 GROUP FOUR: TECHNICAL COMMENTS

20 Parts 556 and 558 - Background Investigations for

21 Primary Management Officials and Key Employees

22

23 We just received Tuesday morning, the

24 NIGC's preliminary drafts of parts 556 and 558. Our

25 initial review is favorable and supportive, with two

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1 exceptions.

2 First, Tribes should be able to turn

3 to the NIGC for assistance to conduct a background

4 investigation on any employee or entity for which the

5 TGA seeks assistance. Being able to turn to the NIGC

6 to process fingerprint cards beyond primary management

7 officials and key employees enables tribes to make

8 better informed and faster decisions. This is

9 particularly important because many states deny or

10 severely restrict tribes from the State's database

11 resources. The costs of processing fingerprint cards,

12 however, should be borne by the participating tribes

13 and not paid out of fees paid by other tribes, who

14 restrict NIGC's assistance to Key Employees and

15 Primary Management Officials.

16 Second, the revision to 558.2(c)(2)

17 highlights a provision that considers requiring

18 notification to NIGC of determinations of

19 unsuitability in license denials. We suspect this is

20 highlighted because IGRA requires that a Tribe notify

21 NIGC of licenses issued, but is silent on notifying

22 NIGC of licenses denied. 25 U.S.C.

23 2710(b)(2)(F)(ii)(l). The crux of the abuses of the

24 Hogan Commissions were the result of an agency culture

25 that believed it could fiat authority on the grounds

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1 that it was a good idea, without regard to IGRA's

2 limits on that authority (class III MICS, facility

3 licensing, etc.). Although the proposed requirement

4 to notify NIGC of licenses denied is a good one, and

5 improves a database on which all tribes can make

6 better, more informed licensing decisions, it falls

7 outside of the NIGC's parameters of authority set

8 forth by IGRA and perpetuates the culture that lead to

9 past abuses. Accordingly, Spokane endorse using the

10 word "may" and opposes using the word "shall." We do

11 believe that a Tribe can compel its TGA to submit such

12 information to the NIGC in the context of the Tribal

13 Gaming Ordinance, but that is properly a matter of

14 tribal self-governance.

15 The preliminary draft appears to make

16 the "pilot" program permanent. We applaud this

17 change. It has been a farce to call it a "pilot

18 program" when it is older than most tribal gaming

19 facilities.

20

21 Part 531 - Collateral Agreements

22

23 The definition of management agreement

24 should be revised to make clear that collateral

25 agreements can be made and binding upon the parties

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1 before NIGC approval of the management agreement. No

2 entity should be allowed to perform day-to-day

3 decision making over a tribal gaming facility prior to

4 NIGC approval, but other agreements should be valid.

5 Many times, tribes are hindered from entering into

6 finance and consulting agreements with desired

7 contracted parties because of the collateral agreement

8 rule. Such a result arbitrarily stifles tribal

9 self-determination by restricting a tribe's ability to

10 enter into contracts. Collateral agreements should be

11 required to be submitted with proposed management

12 contracts to ensure full disclosure of all aspects of

13 the relationship between the Tribe and the contracting

14 entity, but that can be accomplished without the

15 current rule that voids collateral agreements unless

16 and until the management agreement is approved.

17 Additionally, formal regulations

18 regarding declination letters would provide tribes and

19 contracting parties greater confidence that

20 declination letters are meaningful and correct.

21

22 Part 502 - Definitions.

23 Definition of "management contract"

24

25 Some commentators suggest expanding

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1 the definition of "management contract" to include any

2 contract that includes a percentage-based fee. This

3 proposed change has no basis in IGRA. If Congress

4 wanted to provide NIGC with that authority, they would

5 not have used the restrictive term "management

6 contract." Given the consequences of such a

7 definition, it would be challenged and likely would

8 not survive judicial scrutiny. While Spokane shares

9 the concerns of the proponents of such a definition,

10 we are mindful that NIGC must remain within the bounds

11 of its authority, as created and limited by Congress.

12 The stated concerns in the NOI

13 regarding aggregate fees (loans/expenses/development

14 fees, etc.) is valid, but that discussion is more

15 appropriate in the context of "sole proprietary

16 interest" and "primary beneficiary," and not in the

17 context of defining "management agreement." The

18 concern of aggregate fees is not limited to financial

19 agreements, but includes MOUs and Gaming Compact taxes

20 as well.

21

22 Definition of "net review"

23

24 The definition of "net review" should

25 be clarified to include machine lease payments,

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1 participation fees and contributions to wide area

2 progressives as allowable operating expenses in

3 calculation of net revenue.

4 We note that the current proposed

5 definition better reflects the reality in Indian

6 gaming that management fees are a cost of doing

7 business.

8 Both of these concerns warrant

9 avoidance of GAAP. The only reason to use GAAP is for

10 convenience. GAAP's function is to establish

11 uniformity and consistency for purposes of financial

12 audits. Convenience alone should not overcome the

13 sound policy of ensuring a accurate reflection of the

14 costs of business regarding Indian gaming.

15

16 Definition of "allowable uses"

17

18 Some suggest that NIGC define

19 "allowable uses" to clarify what a tribe may

20 legitimately fund with gaming revenue. Spokane

21 opposes a separate definition of "allowable uses."

22 The concerns expressed by proponents, e.g. maintaining

23 adequate reserves and cash flow, can best be

24 accomplished by tribes authorizing such expenditures

25 "to promote tribal economic development" as expressly

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1 authorized by IGRA. Any new definition of allowable

2 uses carries the substantial risk of unduly impeding

3 tribal self-governance.

4

5 GROUP FIVE: CLASS III MICS AND "SOLE PROPRIETARY

6 INTERESTS" - GENERAL COMMENTS

7

8 CLASS III MICS

9

10 Spokane submitted comments on Class

11 III MICS at the Coeur d'Alene session on May 20. We

12 were hopeful that we would have a draft to review by

13 the time we reached group 5 on the NIGC's aggressive

14 and welcome consultation schedule. We cannot stress

15 enough the importance of NIGC's compliance with the

16 Order and opinion of the United States Court of

17 Appeals for the D.C. Circuit in C.R.I.T. vs. NIGC.

18 In our May 20 statement, we went

19 through the NIGC's inconsistent history on this issue,

20 from the Hope Commissions through the Hogan

21 Commissions. We noted Spokane's amicus support for

22 the Colorado River Indian Tribes at every level of the

23 litigation, from the Administrative Law Judge through

24 the DC appeals court. We applaud the policy embraced

25 in the NIGC's preliminary draft facility license

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1 regulations as properly reflecting the parameters of

2 that court decision. We emphasize that the DC Court

3 decision leaves no room for NIGC to promulgate Class

4 III regulations. We know a few tribes are urging the

5 NIGC to continue to promulgate Class III MICS.

6 Because of that, we repeat a small portion of our

7 statement submitted in May.

8 Class III MICS have taken on a life of

9 their own. The Hogan Commissions approved ordinances

10 expressly empowering the NIGC to promulgate and

11 enforce them. Several compacts refer to the NIGC MICS

12 as a baseline for compact standards. This Commission

13 should run away from the agenda of the Hogan

14 Commissions and stay clearly within the parameters of

15 authority set by Congress. Those states and tribes

16 that embraced NIGC Class III MICS in compacts and

17 ordinances did so at their own peril. We often hear

18 that NIGC had the authority to promulgate the MICS

19 until it lost at the DC Circuit. That is pure

20 nonsense. The Court correctly ruled that NIGC never

21 had such authority.

22 We continue to hear from a small but

23 vocal group of Tribes insisting they want to see the

24 Class III MICS continue in some form because they made

25 some deal in a compact or state regulation. Those

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1 agreements were reached with full knowledge that the

2 NIGC's authority to promulgate Class III MICS was in

3 serious dispute. This Commission should not

4 perpetuate the problem by devoting NIGC resources to

5 promulgate regulations that admittedly are ultra

6 virus.

7 Additionally, we challenge the

8 allegation that some are at peril if the NIGC no

9 longer promulgates Class III MICS. A number of

10 Tribal-State gaming compacts in North Dakota, Arizona,

11 Oklahoma, Wisconsin, and Florida refer to the Class

12 III MICS. That being said, the reference within those

13 compacts is not impacted by whether the Class III MICS

14 exist or do not exist on a prospective basis. Many of

15 these compacts only refer to MICS as they existed at a

16 date certain. Thus if the Class III MICS were

17 repealed today, tribes with such compacts would have

18 the baseline that existed on the date certain

19 previously referenced. Other compacts refer to

20 compliance with the Class III MICS that are found in

21 the NIGC regulations (without a reference to a date).

22 Spokane's position is that even if the Class III MICS

23 were to be repealed, it would not result in a

24 violation of any of those "incorporation by reference"

25 compacts unless those individual compacts require the

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1 Class III MICS to continue to be published. We are

2 not aware of any compact that has such a publication

3 requirement.

4 Beyond a short phase out period,

5 the Spokane Tribe strongly opposes the perpetuation of

6 illegal MICS simply because it inconveniences some

7 tribes. Those Tribes can transition into some other

8 type of default MICS through a regulators organization

9 or amend their compacts, or defer to some other

10 industry entity. Indeed, the NIGA/NCAI Task Force

11 subgroup of regulators, which authored the initial

12 Class III MICS could be revived. Perhaps more

13 appropriately, the NTGC/R (National Tribal Gaming

14 Commissioners/Regulators) could assume the tasks.

15 Indeed, it would be a logical extension of the

16 excellent services provided to date by NTGC/R.

17 Calling the Class III MICS

18 "guidelines" rather than "regulations" is code for

19 making all tribes pay to develop MICS that only will

20 be utilized by relatively small number of tribes.

21 Spokane Tribe sharply objects to the use of its fees

22 for such purposes. If the NIGC does capitulate to the

23 vocal minority of tribes insisting on NIGC Class III

24 MICS, then the fee structure should be changed to

25 ensure that only those Tribes advocating for Class III

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1 MICS pay the entire cost, from promulgation, to

2 auditing, to enforcement.

3

4 SOLE PROPRIETARY INTEREST

5

6 In response to the NIGC's initial

7 Notice of Inquiry for regulatory review, which

8 preceded the current consultations, the Spokane Tribe

9 recognized the importance of the issue of sole

10 proprietary interest. To date, the focus of this

11 issue has been in the context of management,

12 development and finance agreements, which are

13 important. It is with grave concern that Spokane

14 observes the trends around the country wherein large

15 portions of tribal gaming revenue are sliced off and

16 handed to state treasuries, state agencies and local

17 governments. IGRA's "primary beneficiary" rule also

18 is triggered when such large portions of tribal gaming

19 revenue are exported to state and local governments.

20 25 U.S.C. 2702(2). We express great caution, however,

21 as to whether these issues can be properly addressed

22 in the context of NIGC regulations. We are not

23 objecting to the effort, but we are skeptical that

24 regulations are the appropriate means to address the

25 issue. Certainly, any approach requires a look to the

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1 aggregate impact on tribal gaming revenue, taking into

2 account all development and finance costs, management

3 fees, compact "taxes," mitigation fees, etc. Terms

4 for one tribe in one location may be wholly unworkable

5 for a different tribe in a different location. The

6 analysis is necessarily very fact-specific. If the

7 NIGC proposes a preliminary draft regulation, we will

8 supplement our comments at that time.

9 The Spokane Tribe appreciates that the

10 NIGC has undertaken this difficult task of regulatory

11 review. Spokane respects NIGC's appreciation for

12 listening to the tribes' concerns which is reflected

13 in the preliminary drafts that have been circulated to

14 date. Thank you for your consideration.

15 Respectfully,

16 Michael Spencer

17 Vice-Chairman

18 Spokane Tribe of Indians"

19

20 CHAIRWOMAN STEVENS: With that, I'll

21 turn the microphone over to Lael and have her continue

22 on the power point. Everyone should have a copy of

23 the power point if you'd like to follow along. We're

24 on day two, group five.

25 MS. ECHO-HAWK: Good morning. Group

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1 five we do not currently have drafts, so you do not

2 have handouts. The only handout that might be useful

3 is the power point, as the chairwoman just indicated,

4 but we don't have drafts yet. We're still in that

5 process of consulting.

6 So for group five, we included part

7 518, which is self-regulation of Class II gaming, the

8 potential or discussion on sole proprietary interest

9 and whether or not that might need a regulation of

10 some kind, and then finally, minimum internal control

11 standards for Class III gaming.

12 So the Notice of Inquiry that we sent

13 out in November asked whether or not the commission

14 should review the process for obtaining a Class II

15 self-regulation certificate. We received lots of

16 comments. We received a lot of comments that are

17 very, very supportive of this, but also said that the

18 administrative burden of completing the process and

19 filling out a petition for self-regulation outweighed

20 any of the benefits that were obtained by that

21 certification.

22 Comments indicated that submission

23 requirements were duplicative, burdensome, that the

24 petition, the annual reporting requirement undermined

25 the purpose of the certification. Those comments

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1 indicated that the additional reporting requirements

2 were even more than was required without a

3 certification, and then we received other comments

4 that the threshold, the high threshold for obtaining

5 that certification needed to be maintained.

6 Self-regulation is a hallmark of

7 tribal sovereignty. We saw that over and over again.

8 Tribes indicated this was an important tool, but that

9 the benefits and the recognition for those tribes

10 should be greater than what is currently available

11 today.

12 So our questions for the tribes and

13 for the industry are how many tribes are interested in

14 pursuing self-regulation. And you have to keep in

15 mind that self-regulation is only for Class II gaming

16 activities. So that is something that we've been

17 thinking about and been looking around the country and

18 seeing who, you know, what tribes have Class II only

19 facilities, because this is for, again, Class II

20 gaming activities.

21 Are there additional responsibilities

22 or incentives for self-regulating tribes. What can

23 tribes expect once they achieve this self-regulation

24 certification, and does it mean -- what does it mean

25 practically. Then we're interested in knowing whether

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1 and how the reporting requirements should be amended.

2 Petition requirements include the

3 submittal of all the information that's up here;

4 history of gaming operation, composition of gaming

5 operation, use of gaming revenues, accounting systems

6 of the tribe and of the government, internal controls,

7 recordkeeping, issuance of gaming licenses, gaming

8 regulations. If you look at the regulation itself,

9 it's very lengthy and it lists all these things out.

10 And then there's another part of the

11 regulation, part 518.4, that says, okay, here are the

12 criteria that the tribe has to satisfy in order for a

13 certificate to be issued and so, you know, we're

14 asking how can that be -- how can we improve that

15 criteria, make it more clear, make it less burdensome,

16 make it less duplicative, if that's the concern.

17 The criteria include a finding that

18 the tribe conducts gaming with effective and honest

19 accounting, a reputation for fair, safe and honest

20 operations. The operation has to be fiscally and

21 economically sound and no criminal or dishonest

22 activity.

23 Now, all of this comes from the

24 section of the act of IGRA that talks about the

25 self-regulation certification. The regulation

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1 requires finding the tribe has adequate system for

2 accounting of revenues, investigation, licensing and

3 monitoring of gaming employees, investigation

4 enforcement and prosecution of violations of gaming

5 ordinance and regulations and the finding -- and a

6 finding, separate finding that the gaming activity's

7 been conducted in compliance with IGRA, the NIGC regs

8 and the tribe's gaming ordinance and gaming

9 regulations.

10 The regulation continues with some

11 indicators for those criteria, including adoption and

12 implementation of the MICS. Now, you have to keep in

13 mind that this regulation was written quite a while

14 ago and was before there were MICS and so there's some

15 reference to Nevada and to New Jersey MICS if the NIGC

16 hasn't implemented there. So there's definitely some

17 areas we can see that how old this regulation is.

18 Evidence that suitability

19 determination for gaming regulators is at least as

20 stringent as the suitability determination for key

21 employees and primary management officials. Permanent

22 and stable funding for the tribal regulatory body,

23 adoption of a conflict of interest policy, evidence

24 that the operation is financially stable. A TGRA that

25 monitors gaming, promulgates regulations, ensures

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1 adequate accounting systems, does routine audits,

2 inspects the premises, systems for investigation,

3 licensing and monitoring of employees, standards of

4 issuance of a vendor license, adequate system of

5 investigation and enforcement.

6 There's quite a bit, obviously,

7 regulation, and as we've gone through it, we've seen

8 some areas that could, perhaps, be refined and, you

9 know, looking at what the ordinance requirements are,

10 perhaps some of this information's already included in

11 that and so should it be reincluded in the

12 self-regulation petition.

13 One of the concerns has been that

14 there is out of all the gaming tribes, 248 gaming

15 tribes, only two are self- -- have obtained this

16 self-regulation certification.

17 Another thing that the petition

18 requires is a notice that's sent out to the public in

19 the local area that the tribe is looking to become

20 self-regulating. This is all included in the

21 regulation and we can put it up on the board as we

22 discuss this further.

23 So the second issue in group five is

24 sole proprietary interest, and the Notice of Inquiry

25 asked the commission whether -- or asked the tribes

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1 whether or not the commission should consider a

2 regulation defining sole proprietary interest and

3 provide a process by which a tribe can request that

4 sort of review of their documents.

5 Comments received indicated that

6 tribes thought that if there is a regulation

7 promulgated, that the review of those documents should

8 only occur at the request of the tribe. That the

9 percentages contained in IGRA, the 60/40 percentages

10 in IGRA define what percentages might violate the act

11 sole proprietary to this provision.

12 Another commenter indicated that if

13 the sole proprietary interest is defined, then so

14 should primary beneficiary. There was some comments

15 about -- and we talked a little bit about this

16 yesterday when we were talking about collateral

17 agreements -- that a clear definition of sole

18 proprietary interest might provide stability and

19 access to financing, providing some sort of clarity in

20 what is required in your sort of umbrella of

21 documents.

22 Other concerns that the sole

23 proprietary interest definition might limit tribal

24 access to capital and then that a determination of

25 sole proprietary interest should be left to the

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1 courts.

2 And then finally, as the chairwoman

3 discussed yesterday, and I think we'll speak a little

4 bit more about this afternoon as well, is Class III or

5 Class III minimum internal control standards. The

6 Notice of Inquiry -- I don't have it here. I guess

7 we'll talk about it this afternoon as well -- the

8 Notice of Inquiry also indicated and the Notice of

9 Regulatory Review indicated that group five was where

10 we would contemplate how to address Class III, the

11 Class III MICS issue.

12 It's something that is still on the

13 table for discussion and we're interested in your

14 comments on how to handle that. We had some

15 discussion about this yesterday and I think we set

16 aside some time this afternoon to talk about it with

17 the Class II MICS issue as well.

18 So that is the summary of the group

19 five.

20 CHAIRWOMAN STEVENS: Thank you, Lael.

21 So up on the table right at the moment is what we went

22 over, which was the self-regulation of Class II gaming

23 and sole proprietary interest and also the minimum

24 internal control standards for Class III. You know, I

25 think Lael was making clear what the process is right

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1 now and I think that it's really good for us to

2 understand what does the self-regulation currently as

3 it is cover.

4 There may be some misunderstanding

5 that self-regulation would be full, complete

6 regulation including Class III and that's not the

7 case. It would just be for Class II and what we're

8 looking for today are these questions. For a Class II

9 self-regulation certificate, is there interest by

10 tribes to obtain that certification, and if they are,

11 are there -- you know, have you looked at our current

12 regulation and identified areas that have been of

13 concern.

14 We know that we've had some tribes

15 begin the process and then stop and say this is a

16 little burdensome, so we're just going to stick to

17 having the NIGC regulate for us.

18 In particular, looking at the current

19 regulation, what we would like, especially for the

20 operators and the regulators to let us know how we

21 could improve upon the current regulation, whatever

22 that might be.

23 Do we have tribes here that are

24 interested in self-regulation for a Class II? Okay.

25 So we see a few hands. I saw from my visual here

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1 about five or six hands go up. Have you all had the

2 opportunity to look at the regulation to identify

3 areas that might be preventing you from becoming Class

4 II self-regulated? Yes.

5 MS. OSBORNE: Mark Osborne with the

6 Shoshone-Bannock tribes gaming commission. I think I

7 don't know enough about the Class II issue as much as

8 we do the Class III's, but we always get concerned

9 about new doors being opened up and what do they lead

10 to.

11 Is this going to be an issue that may

12 fall somewhere in the compact issue, again, with

13 states, because they don't have any regulatory power

14 or authority in Class II? Are they going to make up

15 some kind of an approach to do this? I mean, that's

16 what we want to be careful about. Because if it's an

17 avenue of new-style gaming that we could promote at

18 our casinos, we'll be glad to do it and glad to look

19 at it, but if it's going to lead us to some type of

20 dispute with states because they can't get their hands

21 on anything, that's what we're concerned about.

22 That's what we'd be concerned about.

23 CHAIRWOMAN STEVENS: I'm trying to

24 think of a situation where the... Because this only

25 has to do with Class II, so I'm not sure what the

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1 compacts being with regard to Class III, how and why

2 the state would want to be involved if they're not

3 regulating you now in your Class II. But, you know,

4 that's certainly a concern to be aware of. It's how

5 the state might interpret it.

6 Now, this regulation was put into

7 place and do we have a history on how it was put in

8 place? I think it was put in place in 1998 and that's

9 been, what, 13 years ago. Yes.

10 MR. ARMSTRONG: Yes. Tracie, I

11 believe that we had looked at this regulation right

12 after it was written and we had made a decision to do

13 research on it, and about the only thing that we found

14 is that this current regulation was quite cumbersome

15 to work through the process. We felt that it was

16 quite lengthy.

17 We thought that some of the

18 requirements there were -- just it was just too hard

19 to accomplish with the regulation as it is written.

20 James Armstrong, Snoqualmie tribe.

21 CHAIRWOMAN STEVENS: Any other

22 comments on Class II?

23 MS. BLUELAKE: Yes. Lisa Bluelake.

24 CHAIRWOMAN STEVENS: We have a

25 microphone coming over to you.

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1 MS. BLUELAKE: My name is Lisa

2 Bluelake. I'm legal counsel with the Confederated

3 Grand Ronde, which is one of two tribes in the country

4 that are self-regulated. There's a few comments I

5 would like to make, but I would take a little issue

6 with minimizing the impact of Class II.

7 I think, you know, obviously that with

8 the CRIT decision and what the intent of IGRA is as

9 far as NIGC's role in Class III, I think that if a

10 tribe has Class II self-regulation, I think that that

11 needs to be interpreted with the intent of IGRA and

12 one of the IGRA specifically indicates that there are

13 four powers of the commission that self-regulated

14 tribes are exempted from. And I'm getting the

15 impression NIGC is trying to limit that by focusing on

16 Class II rather than Class III, even though to get the

17 certificate you look at things that pertain to Class

18 II and Class III.

19 The annual report deals with finance

20 issues, all those issues that deal with both Class II

21 and Class III. So, you know, we may have to discuss

22 this some more since it's just two tribes at this

23 point.

24 But in addition to that, I just wanted

25 to mention that we've commented and some of the

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1 comments that we've had when we were going through

2 these regulations, that the commission needs to take a

3 look at how self-regulated tribes are impacted by the

4 regs and indicate. For example, we talked about fees

5 yesterday. In the fee regulations there's no mention

6 of how those regulations impact self-regulated tribes,

7 even though it's clear that self-regulated tribes do

8 pay fees differently than nonself-regulated tribes.

9 Another one was the background

10 investigations. There is nothing in the current or

11 proposed regs that talked about the effect of

12 self-regulation -- those regs on self-regulated

13 tribes, even though it's clear that self-regulated

14 tribes don't have to submit the same types of

15 information to NIGC as nonself-regulated tribes.

16 There's other examples, but I just

17 wanted to put on the record that that's something that

18 Grand Ronde as a self-regulated tribe would like to

19 see more of and I think if it's included in the regs,

20 then more tribes would look at self-regulation and the

21 possibility of going through the process, which is

22 lengthy and cumbersome.

23 But it is something that the Grand

24 Ronde is proud of and feels that, you know, it should

25 be a process that's available and meaningful.

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1 Currently it's not real meaningful in terms of actual

2 benefits, but hopefully that, you know, we can, you

3 know, work together to enhance those benefits.

4 MR. BOYCE: Mike Boyce, executive

5 director of Grand Ronde. As the person that prepares

6 this report annually, I can tell you it isn't -- once

7 you go through the process and set it up initially,

8 it's not as cumbersome as it might look annually.

9 Once you have the template in place, it's basically

10 just updating the annual information. So it's not

11 that burdensome once you receive the certificate.

12 The problem is that there's no -- the

13 benefits are lacking. There's a minor, minuscule

14 reduction in fees and there's a little less burdensome

15 in what we have to supply as far as licensing goes,

16 but other than that there's just not a lot of benefit

17 and that's what we'd like to see. We'd like to see

18 that the standards are a little high, but the benefits

19 be increased. If anybody wants to find out more about

20 it, just give me a call, executive director at Grand

21 Ronde. I'd be happy to talk to you about the process

22 and help you if I can.

23 CHAIRWOMAN STEVENS: So can I ask a

24 follow-up question? You mentioned benefits. What

25 would be, in your mind, beneficial? What other

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1 additional benefits might be considered?

2 MR. BOYCE: Certainly considering CRIT

3 and you don't have the Class III enforcement, only

4 Class II and you're self-regulated in Class II, I

5 would see a bigger benefit in reduction of fees.

6 Also, I think, as you address each of

7 these regulations, it should address how Class II

8 could be affected and that would make the commission,

9 I think, focus on either how it could be or couldn't

10 be.

11 But if you just keep it in a Class II

12 reg, nobody that's not -- or in self-regulated

13 regulation, nobody that's not self-regulated is going

14 to refer to it that often, but if it's in each

15 regulation, even if, you know, you haven't reduced any

16 burden on Class II tribe, if that was noted, each

17 regulation, I think, should address the self-regulated

18 tribe, in my opinion.

19 Then seriously look at how the impact

20 of that regulation could either be reduced or

21 eliminated for a self-regulated tribe.

22 CHAIRWOMAN STEVENS: What you're

23 saying is it's all housed right here rather than

24 seeing -- considering self-regulation, self-regulated

25 tribes throughout all of the other regs?

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1 MR. BOYCE: Yeah.

2 MS. BLUELAKE: I mean, there is a few

3 examples that may be less relevant now that you aren't

4 looking at modifying the facility licensing reg, but

5 that was one example of the powers that self-regulated

6 tribes are exempt from is inspection and examining

7 premises and, you know, we had early on when that

8 facility license reg was being proposed, well, there's

9 an opportunity for you to either exempt self-regulated

10 tribes or to minimize the requirements on

11 self-regulated tribes.

12 Again, you know, you're proposing

13 change to that, but that was one of our previous

14 comments to NIGC in earlier years.

15 Another one, you know, is auditing.

16 One of the powers that self-regulated tribes are

17 exempt from is the access to inspection, examining,

18 auditing the gaming facility. We've made comments to

19 NIGC in previous years about exempting from some of

20 the auditing requirements, especially since our

21 self-regulation report includes all those things.

22 So, you know, there's a lot of overlap

23 between what is reported through some of these

24 regulations that apply to all tribes and what's

25 reported in our self-regulation annual report, so that

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1 there needs to be some recognition of that. So those

2 are a few examples.

3 Also, recently, we commented on the

4 consultation policy and suggested that there be

5 specific provisions for consulting with self-regulated

6 tribes. So those are some few examples. I'm sure

7 there's many more.

8 CHAIRWOMAN STEVENS: Thank you. That

9 is helpful. If you look at the self-regulation

10 regulation, it's actually rather long. Not that it

11 shouldn't be, but if you all haven't had an

12 opportunity to go through it first, I can understand

13 the conversation might be limited here.

14 VICE CHAIR COCHRAN: I think the focus

15 for us has been when we're looking at this as well,

16 and considering the comments -- Grand Ronde has

17 submitted some comments -- is to look at duplications.

18 Where can we eliminate the duplicative efforts that

19 are going on so that we keep the integrity of the

20 regulation, what IGRA was trying to get at when it put

21 this into the act, but also taking away those

22 duplicative efforts that are taking away time and

23 resources from the tribes.

24 So thank you for your comments,

25 because I read them and I actually seen your

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1 certificate too, so...

2 CHAIRWOMAN STEVENS: I think the two

3 certificates are in Dan's possession.

4 ASSOC. COMMISSIONER LITTLE: One of

5 the few authorities I have.

6 CHAIRWOMAN STEVENS: He's the

7 commissioner that signs the certificates and has them,

8 so...

9 ASSOC. COMMISSIONER LITTLE: I do

10 appreciate your comments, because when we did issue

11 the NOI, we did ask. This is one of the issues that

12 arose and we truly, really want to hear from tribes to

13 find out what challenges you guys are facing and ways

14 that we can improve this, because it's important if

15 something is in the act and something that the

16 commission should be looking to improve so that tribes

17 can utilize this. So thank you.

18 CHAIRWOMAN STEVENS: Yes, Linda.

19 MR. HELM: Linda Helm, Port Gamble. I

20 haven't had a chance to thoroughly review the

21 regulation, but we are interested in self-regulation

22 and just from what I'm hearing, it would seem that if

23 the benefits were greater for the tribe, that would be

24 good, and if it were less burdensome, that also would

25 help other tribes.

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1 CHAIRWOMAN STEVENS: Absent any other

2 discussion, we can talk about also sole proprietary

3 interest. Scott, you look like you have something to

4 say.

5 MR. WHEAT: Yeah, well. For the

6 record, Scott Wheat, attorney for the Spokane tribe.

7 Sole proprietary interest issues are very important to

8 Spokane and I would imagine to all the tribes in this

9 room. Of course we've submitted -- in our written

10 comments we've addressed this issue.

11 To just summarize our written

12 comments, kind of two principal points to make. One

13 is that we often -- if one is to look back at a NIGC

14 analysis of this issue, it's usually in opinion

15 letters from NIGC attorneys and it usually involves

16 like review of management contracts and collateral

17 agreements, and obviously, as we discussed yesterday,

18 that's going to come up when we're doing those

19 documents. It darn well should. It's something that

20 the NIGC should be looking for and keenly aware of.

21 One of the things we also wanted to

22 point out too, though, that while we see the potential

23 for overreaching and violation of the sole proprietary

24 interest requirement in management contracts in

25 collateral agreements, where we really see it is in

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1 tribal state compacts.

2 Now, we understand that it's the

3 Department of the Interior that approves or does

4 nothing and deems it approved to the compact, but we

5 also think that, you know, compacts to the extent that

6 in a practical application result in sole proprietary

7 interest, that, you know, that's within the NIGC's

8 scope of authority as well.

9 So we would hope that the NIGC expands

10 the areas in which it is looking for potential sole

11 proprietary interest violations, because at the end of

12 the day, we all know that's the very centerstone of

13 IGRA. And to the extent we have violations, you know,

14 the lawyers can talk as long as the day is about what

15 those should look like, but what it boils down to is

16 it means that somebody else is reaping the benefits of

17 Indian gaming other than the tribe, who theoretically

18 owns the casino.

19 I think we can all agree that that

20 just flat shouldn't happen, but unfortunately it has

21 been. There's commissions, you know, taking -- us

22 taking action with respect to the Fond du Lac. The

23 Ninth Circuit has taken action with respect to the

24 Schwarzenegger in the Rincon compact.

25 We expect -- and of course the US

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1 Supreme Court declined to review the Ninth Circuit

2 decision, so it stands. It's a very positive

3 development for Indian country. I think it provides

4 NIGC lawyers a very good analytical tool. The Ninth

5 Circuit analysis was sound, sound enough for the US

6 Supreme Court not to touch it.

7 You know, we were encouraged to see

8 that there were references to the decision in the Fond

9 du Lac NOV. But as you know, the same, you know,

10 provisions that the Schwarzenegger administration was

11 demanding that the Rincon band were demanded of many

12 tribes in Fond du Lac and there are actually existing

13 compacts in California that are resulting in about

14 $350,000 of Indian gaming revenue being directly

15 transferred into the state's general fund.

16 Now, you know, it's not as if I'm

17 trying to put the blame at this commission's doorstep,

18 but what we have here -- and there's reasons for that.

19 We need to get this on the record here. Ever since

20 Seminole, states have used the lack of a viable remedy

21 in compact negotiations to extort taxes out of the

22 tribes, and it's time to stop it and we finally have

23 very good law from the Ninth Circuit that will allow

24 us to put a stop to it. And we're very encouraged

25 that the NIGC is taking a look at this issue and has

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1 taken action on this issue.

2 On the one hand, you know, we want to

3 say kudos to the commission and, on the other hand, we

4 want to say there's a lot of work to be done out

5 there. There is a lot of agreements that are in place

6 that tribes are suffering under them that we believe

7 directly violated the core principle of the

8 requirement of IGRA that tribes be the owners, the

9 effective owners of the gaming circuits.

10 The second point -- I can't believe

11 I'm calling this a summary, but...

12 CHAIRWOMAN STEVENS: Excuse me. Did

13 you say as long as the day is?

14 MR. WHEAT: Yeah, exactly. Hopefully

15 I won't be that long. I swear I'll be like two

16 minutes on this one.

17 What we've seen when it comes to sole

18 proprietary interest is, you know, people are trying

19 to get their hands on our money, and when it comes to

20 that people can be supercreative, phenomenally

21 creative. I mean, we can look at things and there's

22 been agreements where, you know, tribes end up paying

23 rent on land they own, that's effectively, you know,

24 30 percent of their GGR that goes straight to a state.

25 I mean, my point is is lawyers

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1 drafting regulations and rules, there are just,

2 there's crazy stuff going on out there that you all

3 aren't going to be able to anticipate and it's all

4 going to be very fact specific. And I think your

5 lawyers will attest to that in their collateral

6 document review, but a lot of times you got to piece

7 three or four of these things together and you find

8 out that at the end of the day, you know, when you

9 combine everyone else's cut from the tribe's revenue,

10 when you look at the actual effect of those

11 agreements, the tribe's receiving pittance compared to

12 other interests.

13 So the point here is is I think that

14 regulations -- we're skeptical that cutting

15 regulations, trying to define sole proprietary

16 interest is going to be able to anticipate all of the

17 instances in which those issues may arise and also the

18 fact and the nature of that analysis may make it

19 difficult to set forth a bright line.

20 Hey, you know, we all work with

21 lenders. They all love bright lines, but sometimes

22 the world is too complicated to give them a bright

23 line and this may very well be one of those

24 situations. We're not opposed to it, but we're

25 skeptical that that would be the right driver.

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1 What we would suggest is that the NIGC

2 continue to develop, really, its body of opinions on

3 the issue when certain agreements, circumstances are

4 put before you and your attorneys, you analyze that,

5 you know. To those of us who are in this line of

6 work, I think, you know, there's over 25, under 30,

7 you know, written declination letters and different

8 analysis of sole proprietary interest issues directly

9 from the NIGC.

10 So you're kind of developing the body

11 of administrative common law, if you will, to address

12 that issue and that may be the more sound approach.

13 So that's the second point, and I'll shut up.

14 CHAIRWOMAN STEVENS: I'm just teasing

15 you, Scott. You know, I'll probably put Jo-Ann and

16 Lael on the spot, because we've had pretty extensive

17 conversations internally about this. We see that, the

18 creativity. When we have approved management

19 contracts or we have declination letters, you know,

20 that body of work becomes sort of what, you know, both

21 tribes and management, partners, lending institutions

22 look at to guide them.

23 We have 92 of these opinions and these

24 decisions around management contracts, lending

25 instruments. I want to applaud our general counsel's

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1 office and staff for putting these all together over a

2 very long period of time and summarizing and having

3 them inform our internal discussions.

4 You know, I see them usually first,

5 unless they come back on appeal, management contracts.

6 Certainly the general counsel's office see the lending

7 instruments and we struggle with what is the universe

8 of creativity that we can see and we have trouble

9 defining that, and then the intricate balance, as you

10 have mentioned yesterday, Scott, about when is it the

11 trust's responsibility and when is it not an ideal

12 deal.

13 Where you've got a tribe that may not

14 be able to get partnership, whether that means in

15 terms of management or partnership in terms of

16 lending, anywhere else where there may be a lot of

17 controversy around their activity, which increase the

18 risks, and that they may be, because of the risk,

19 subject to maybe less -- not average types of terms in

20 the contract or in their lending instrument.

21 So when is it sole proprietary

22 interest and when is it not a perfect deal and not

23 interfering with what may be a very narrow opportunity

24 for a tribe in terms of their business and financial

25 development.

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1 So, you know, I don't know, Jo-Ann, if

2 you'd be comfortable in talking about some of those

3 questions that we have, what we've seen over time and,

4 you know, what -- quite frankly, you know, some tribes

5 want us to, kind of collateral agreements, they're

6 like, don't get in our business, and other tribes

7 after it's been executed say, we got a bad deal here.

8 It is an issue, but what is the best

9 way for us to address this. Right now we have one

10 bulletin, yeah, one bulletin, that was issued in 1993.

11 MS. SHYLOSKI: We don't have a

12 bulletin on sole proprietary interest. We have

13 bulletins that talks about the difference between

14 managing and consulting.

15 CHAIRWOMAN STEVENS: Right. So, you

16 know, would a regulation be sufficient. I don't know

17 if you would be able to summarize, Jo-Ann, sort of the

18 history, what we've seen and what kind of questions we

19 would have about what we would consider even if we

20 don't have a regulation and what we do consider now on

21 factors when we're looking at either management

22 contracts or lending instruments might help inform

23 this conversation.

24 MS. SHYLOSKI: Certainly. Well, it's

25 interesting that, you know, the agency began its

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1 worked in 1993 and really did not address this mandate

2 in IGRA about tribes having sole proprietary interest

3 in the gaming activity until about 2003, and as the

4 chairwoman mentioned, since that time we have issued

5 92 advisory legal opinions.

6 That is something that folks can

7 submit their agreements or proposed agreements to the

8 Office of General Counsel's office for a determination

9 or a legal opinion about whether they violate this

10 mandate or whether it's a management contract.

11 In some respects those have been legal

12 -- those legal opinions have been very helpful to

13 tribes, enabling tribes to renegotiate their deals or

14 to negotiate a better deal that hasn't been executed,

15 but in other instances folks have said this is just a

16 legal opinion; it's not agency action, and so

17 therefore it's not worth the paper it's written on.

18 And so one of the things that we'd

19 like to hear from you all is the process for sole

20 proprietary interest responses. Do you think that the

21 legal opinion, advisory opinion process is working.

22 Would you like to see a more formal process.

23 Since the agency's inception, we've

24 only issued three NOVs, Notices of Violation, which

25 are agency action by our chairwoman for sole

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1 proprietary interest violations, and our chairwoman in

2 her short term has already issued two of them. So we

3 certainly would like feedback from you on that

4 process.

5 Being agency action, those decisions

6 can be appealed to the full commission and the full

7 commission can render a final decision, which then can

8 be litigated in federal court. So if tribes are

9 thinking that having this issue be developed through

10 the federal courts, it may be better for that to be

11 done via agency action as opposed to legal opinion

12 letters.

13 The other component of that we'd like

14 to hear from you all about is the mandate itself.

15 Over time we've taken a look at sole proprietary

16 interest and what it means and there are primarily

17 three factors that we've looked at. The length of the

18 term that a third party is involved in the tribe's

19 operation. You know, generally under management

20 contracts folks can only be involved -- can only

21 manage between five and seven years, depending upon

22 the circumstances. So we look at the length of the

23 term.

24 We also look at the amount of revenue

25 going to that third party and whether there is a

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1 significant risk that that third party is undertaking

2 that justifies the amount. Generally we have found

3 that in the NOV -- in the Notice of Violation context

4 we often find that the third party is the primary

5 beneficiary of the gaming activity, not the tribe

6 itself.

7 Then lastly, we look at control, who's

8 making the decisions here. Again, we find that we

9 generally find that the third party has some sort of

10 control over the gaming regulation or the operation

11 itself. So those are the issues that we're grappling

12 with and we'd love your feedback on.

13 MR. WOOLSEY: Hi. Tim Woolsey from

14 Colville tribes. On that third factor -- this is sort

15 of what I was asking about yesterday -- I understand

16 how that the control factor has a significant impact

17 in the context of a management contract, right,

18 because you don't want someone controlling it without

19 the chairman or the chairwoman approving that

20 management contract.

21 But what if there actually is no

22 control by the third party, but they still have those

23 first two elements? They're getting significant

24 revenues and the length of the term is long. I mean,

25 that to me still highlights that there is a -- there

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1 could be a proprietary interest involved, and I just

2 would like the commission to really think about that.

3 Because again, as Scott pointed out,

4 there is a lot of different creative instruments out

5 there for a variety of situations that aren't

6 management oriented, like a lease, for example. So I

7 really would ask you to really think about that.

8 MS. SHYLOSKI: And we are. We are

9 certainly open to hearing from you on what needs to be

10 looked at for purposes of sole proprietary interest,

11 what you think the factors are and your analysis on

12 it.

13 As Lael mentioned yesterday, you know,

14 you often see contracts where the same third party is

15 getting a piece of the pie for doing different things.

16 They may be providing funds, so there's a financing

17 contract. They may be developing the operation, so

18 there's a development contract. They may be

19 consulting and so they're getting money there, and

20 then when you add it all up, they're getting the

21 benefit of the tribe's operation through doing all

22 these different things and dealing with all these

23 different issues.

24 MR. TAHSUDA: Madam Chairwoman,

25 commissioners, I know you guys have heard this. I'm

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1 sorry. My name is John Tahsuda. I represent a number

2 of tribes in Oklahoma, and this is, as you know, a

3 particularly hot topic for tribes in Oklahoma and I

4 know you guys have heard a lot of this. I want to

5 share with brother tribes up in this part of the

6 country.

7 The experience in Oklahoma has been

8 with the opinion letters dealing with this issue and

9 stuff and has been, I'll be generous and say an uneven

10 experience. Part of it, you know, has been some, I

11 think, very different opinions from the tribes and

12 with the commission historically about the role of

13 this definition.

14 Honestly, there are some tribes, I

15 think, that believe this is not even an issue that the

16 commission should be involved in. I don't think

17 that's a consensus opinion. I think there are a

18 number of tribes there that think this is a legitimate

19 exercise by the commission.

20 But one of the ways this is played out

21 historically with the commission that has caused a lot

22 of heartburn is the use through the opinion letters

23 and actions taken by the General Counsel's Office in

24 which there was no recourse by a tribe or by the

25 tribe's partner, a vendor, who was brought into this.

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1 In Oklahoma we have a lot of

2 facilities. There's a lot of operations. A lot of

3 them are not in really favorable market areas and we

4 have a history of, I think, being very creative in how

5 we have been able to partner with third parties to

6 develop facilities in a way that has allowed them to

7 be built, operated and run to the benefit of the

8 tribe, but have had to be creative in terms of length,

9 in terms of issues that have at least been called

10 control by the commission in the past, and also on the

11 revenue side.

12 In any one of these agreements -- and

13 I know a lot of you guys know this, but out of those

14 three factors identified very well by Jo-Ann, any one

15 of those can be more heavily weighted at any

16 particular deal depending on what are the needs of the

17 deal.

18 So I think at the root of it -- you

19 know, over time in the discussions and particularly

20 with the prior chairman, there was a lot of discussion

21 going the direction of is there a way at least to make

22 these decisions ultimately agency action, so that we

23 have both an avenue within the commission through the

24 commission's appeal process to deal with it, and,

25 following that, to actually have, you know, then an

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1 administrative record to go to the courts with.

2 There is a reason, I think, that there

3 haven't been a lot of NOVs and legal challenges, is

4 because a lot of the tribes, on the advice of

5 attorneys, felt like it was very unfavorable to them

6 in trying to express their views in fighting a legal

7 opinion from the commission that wasn't agency action,

8 that would go to the federal courts, without any sort

9 of administrative record or factual record being built

10 on it. Essentially be arguing purely myriad of law

11 without understanding the mechanics of the deal for

12 the tribe and they just felt often that, I think, that

13 that was a very unfavorable legal position for them to

14 be in.

15 So there was a real reluctance to

16 challenge decisions made in the past based off of

17 these opinion letters. Again, there were very few

18 NOVs that came out of it because a lot of the tribes

19 just backed down and said, okay, we'll figure out some

20 other way to deal with this.

21 I think it's, you know, again, the

22 three factors in this, I think, we have become adept

23 at manipulating those, to the advantage of the tribe

24 in most cases. Understanding that there are times

25 when the tribe may not have had the best advice or the

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1 best facts of its own to operate on and that there is

2 (inaudible).

3 I mean, I would say there's probably,

4 again, not a consensus view, but maybe a majority

5 view, but there is a role for the commission to play,

6 ultimately as a trust role and trust responsibility to

7 the tribes in looking after those interests, but I

8 think it's a very difficult one.

9 We're still working on our -- and you

10 had some response, but we're still working on what may

11 end up being our final response or will hopefully be a

12 consensus response from the Oklahoma tribes on this

13 issue. One of the mantras that we've had ultimately

14 is that we think that, with the ultimate goal of

15 protecting the tribe's interest and making sure the

16 tribe is the primary beneficiary, that the tribes need

17 to have the maximum economic flexibility to do what

18 they have to do to make their gaming operations

19 successful and a benefit to the tribe.

20 We don't want to see sort of an

21 informal agency process get in the way of that, at

22 least in a way that we don't have an effective way to

23 present our own views in opposition to them. Thank

24 you.

25 CHAIRWOMAN STEVENS: So thank you,

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1 John. So what I'm hearing is there is some desire to

2 have some formal process, that we create an

3 administrative record, something that the tribe can

4 get their hands on. Because the opinions are not

5 necessarily -- I mean, in some ways they do help the

6 tribe, in other ways they don't.

7 But also addressing Scott's concern is

8 how do you get this into a formal process, you know, a

9 regulation could not encompass every possible nuance

10 to very creative deals. That's where we're struggling

11 with this.

12 We hear what you're saying. We also

13 understand, because we see every -- just when we

14 thought we knew every deal twist, there's another one

15 that's presented to us. So I would be interested in,

16 you know, for the tribes that you represent, how do we

17 merge and how do we bring those two things together,

18 the desire for final agency action and by what method

19 do we get there a reg can't encompass that might

20 actually a reg might encroach in your ability to be

21 flexible.

22 Scott, I'm going to turn over here for

23 just a second and then we'll go back to you. I'm

24 sorry. I didn't see your hand.

25 MR. SMALL: That's all right. I'm not

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1 an attorney, so I won't be too long. When you were

2 mentioning you had 92 legal opinions out there, one of

3 the things that I'm concerned about in these opinions

4 is does tribe -- would tribes have access to these

5 opinions and then our tribes in particular, the

6 Shoshone-Bannock tribes, would be the lending

7 institutes, your opinions on those.

8 We're entering into a loan through a

9 bank here and I get concerned with a lot of the

10 language that they're putting in there. So is there a

11 chance that -- I know they're just opinions, but it

12 still would be a lot of help for us in negotiating

13 these terms on our loan.

14 MS. SHYLOSKI: You are welcome to

15 submit your proposed, unexecuted agreement to our

16 Office of General Counsel for a legal opinion on it.

17 MR. SMALL: I was just looking for

18 maybe some of your past legal opinions. We don't need

19 to know the tribe's name or those kinds of things,

20 maybe just some of the bare bones opinions about

21 those.

22 MS. SHYLOSKI: And that's where we

23 have been heavily criticized, because due to the

24 Freedom of Information Act, a lot of these opinions

25 when we release them have the numbers and other

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1 proprietary business information redacted from them

2 and so they aren't as helpful to folks as they would

3 be if those numbers were in them, but we're not able

4 to release them with the proprietary business

5 information in it.

6 MR. SMALL: Okay. I'm just curious.

7 CHAIRWOMAN STEVENS: I think the

8 combination of the two, are they posted?

9 MS. SHYLOSKI: They're on our website

10 --

11 CHAIRWOMAN STEVENS: Redacted.

12 MS. SHYLOSKI: -- redacted.

13 CHAIRWOMAN STEVENS: So I think what

14 tribes have been having to do is -- I see the

15 attorneys shaking their heads -- you go on our website

16 and you look at what you can look at and then help

17 that inform your negotiation and then submit your

18 unexecuted documents prior to finalizing them and

19 doing sort of a two-prong approach.

20 Again, this is where we get

21 criticized, because it's rather time consuming for

22 you. It may slow your deal down a little bit, but I

23 would say that most of the banks or the lending

24 institutions are aware now of what we're looking for

25 and, you know, they're even to the point where

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1 they're, from what I've seen, okay with submitting,

2 you know, unexecuted instruments so as to avoid their

3 deal going sideways at the last minute, because we

4 weren't included to tell you -- you know, there's

5 certain provisions that are going to be problematic.

6 So I think that's what you'd probably

7 have to do. If you have folks negotiating this for

8 you or your attorneys, they are on our website. It's

9 not going to be complete, but if you can include us

10 early and often in your deal, that would certainly

11 help your time frames.

12 MR. SMALL: Thank you.

13 CHAIRWOMAN STEVENS: Scott.

14 MR. SMALL: I'm sorry. I had an

15 attorney bother me from the back here, and you

16 probably all know her. It's Sharon House, and she

17 does represent our gaming commission. I believe she

18 had some type of a comment or...

19 MS. HOUSE: Good morning. Again, my

20 name is Sharon House. One of the recommendations that

21 I'd like to make again is to go back to the bulletins.

22 I think it was expressed very clearly here that there

23 is a bulletin, but it's from '93 or '92. That's a

24 long time ago.

25 I mean, you've got so much more

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1 documents and so much more things that have happened,

2 is that maybe one of the recommendations would be is

3 to do a bulletin that encompasses a number of the

4 issues you've just brought up. Again, I mean, on sole

5 proprietary interest, dividing it into some of the

6 issues that were just expressed here.

7 And I think it is time for another

8 bulletin. That's a long time since then.

9 Unfortunately, I remember that. But anyway, it would

10 seem that that takes into consideration what Scott's

11 talking about, is not having a regulation, and it also

12 takes into consideration the tribe's experiences and

13 it doesn't harm you in regard to the Freedom of

14 Information Act.

15 It allows all the information to go in

16 there with some of the opinions, the legal opinions,

17 without stating, you know, in detail and looking at

18 them specifically, but maybe it could be categorized

19 in a little different manner. And I heard that here,

20 is that there's different categories and how you want

21 to look at it in different situations and that way we

22 know you need, you know, a final agency action.

23 But I think this would be very

24 helpful, because that takes a long time to have the

25 tribe come forward with all its documents, submit them

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1 to you. If there was some type of guidelines and

2 bulletin ahead of time, then they would know exactly

3 which documents really needed to come forward to the

4 commission and that might save both the tribes and the

5 commission a lot of time in going through the

6 preliminaries. Thank you.

7 CHAIRWOMAN STEVENS: Okay. You're up,

8 Scott, and then we're going to take a break and cut

9 off the lawyers. I'm kidding.

10 MR. WHEAT: No lawyers can talk after

11 the lunch break too. Just really quickly. We've been

12 dancing around the primary beneficiary issue and so I

13 just wanted to touch on that too. I mean, that's a

14 separate, you know, requirement of IGRA, and I think

15 you may well have situations that could arise where

16 you don't necessarily have a sole proprietary interest

17 violation, but you do have a primary beneficiary

18 violation.

19 I think you start getting into, you

20 know, perhaps less of control issues in the

21 three-prong analysis that you -- sole proprietary

22 interest and more just, you know, straight how much

23 revenue is going out the door to other entities and

24 you very well get, you know, these cumulative analysis

25 primary beneficiary concerns.

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1 And I could see another prong in

2 forming that in the analysis would be as you look at a

3 sole proprietary interest, if there's a lot of money

4 going out the door, why is it going out the door. Is

5 it going out the door because it's a high-risk loan,

6 you know, is there substantial services being

7 provided, or is it just simply a tax being called

8 something else.

9 But at the end of the day, if that

10 results in, you know, if you look at what the state's

11 getting, what the county's getting, what the sheriff's

12 getting, what the developers are getting, what the

13 managers are getting, and the tribe's getting about,

14 you know, one or two cents on the dollar, I would

15 submit that you probably got primary beneficiary

16 issues to be looking at.

17 So we would like to see NIGC continue

18 to develop its analysis on primary beneficiary as

19 well.

20 CHAIRWOMAN STEVENS: Would we be

21 expecting your client's offerings on primary

22 beneficiary if you haven't submitted anything yet?

23 MR. WHEAT: We've got some, but we

24 mention it in our written testimony that if you'd like

25 to go into it further. We've on behalf of some of our

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1 clients been able to address that in some ways.

2 CHAIRWOMAN STEVENS: I think it's safe

3 to say that we see that. I'm looking towards Jo-Ann

4 because those are the, you know, OGC, our General

5 Counsel's Office is the ones that are looking at these

6 things and we wonder about, you know, where does sole

7 proprietary interest end and primary beneficiary

8 begin. So we would be interested in hearing your

9 client's thoughts.

10 MR. WHEAT: Thank you.

11 MS. SHYLOSKI: We'd appreciate them.

12 Thanks.

13 MR. WHEAT: Happy to provide them.

14 CHAIRWOMAN STEVENS: It's good to hear

15 that the things that we were struggling with

16 internally, that clearly that's been on the minds of

17 tribes and their representatives. So it's not just us

18 wondering about this.

19 MR. WHEAT: Yeah. You're not crazy,

20 or we're all crazy. One of the two.

21 MR. SPENCER: Mike Spencer, Spokane

22 tribe. On the primary beneficiary issue, I agree with

23 Scott that we need to take a good look at who's

24 sharing in the revenues and what the percentages are

25 being shared by what entities and what revenues are

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1 actually being enjoyed on behalf of the tribe.

2 I believe as John was mentioning

3 earlier, you know, sometimes in order to get an

4 operation up and running, it's fairly expensive and

5 more money has to be divided into more places at the

6 onset in order for the tribe to enjoy, you know, any

7 benefit from the gaming operation at all.

8 So we need to carefully analyze, you

9 know, what is the particular situation of that tribe,

10 what's involved, and what are the risks associated

11 with partners coming in assisting that tribe to enjoy

12 a successful gaming operation.

13 So I hope that we'd look at each one

14 of those situations independently and analyze, you

15 know, what is a realistic expectation of sharing of

16 revenues for the tribe and the partners that would be

17 involved to help it be successful.

18 CHAIRWOMAN STEVENS: Thank you. So

19 why don't we take a 15 minute break and we'll be back

20 and start to talk about other parts of group five, in

21 particular, process on Class III.

22 (Recess taken.)

23 CHAIRWOMAN STEVENS: Let's get started

24 again. We do want to open it up to -- we've been

25 talking this morning about sole proprietary interest

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1 and self-regulation. The next thing that's on our

2 agenda for this morning, and again, I want to

3 reiterate that you can jump in and talk about any of

4 the parts at any time, groups one through five, and

5 any of the drafts that we have out there.

6 The next part we want to talk about is

7 Class II minimum internal control standards and Class

8 III technical standards. One of the things I wanted

9 to talk about -- I'm just looking here. Might have

10 gone off script. I think I went off script into the

11 afternoon. There we go.

12 We do want to talk about how to

13 proceed with MICS generally and technical standards.

14 And that last comment there says NOI asks how to

15 proceed. The Tribal Gaming Working Group, which is an

16 independent, sort of ad hoc group of tribal

17 representatives that is not part of NIGC, has turned

18 -- several tribes have turned into some of the work

19 products for that group as alternatives to the Class

20 II minimum internal control standards and the

21 technical standards.

22 We're looking at those right now, but

23 the last -- over the time that we've been here and

24 through the Notice of Inquiry and over these past 10

25 consultations that we've done on these subjects, we

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1 hear again and again the desires from tribes to have a

2 tribal advisory committee again. Not necessarily

3 under the terms or structure that they were done in

4 the past, but harkening back to days when the advisory

5 committee had facilitators, they were able to get some

6 work products out, and that they were well informed by

7 experts in the industry.

8 So I do want to talk about how should

9 we proceed. I know yesterday we talked about Class

10 III and authorities and especially in light of the

11 CRIT decision, but we do want to talk about process.

12 I would like to know, you know, how might we proceed

13 with Class II, Class III minimum internal control

14 standards and technical standards.

15 We really are seriously considering a

16 tribal advisory group, and there's some basic

17 questions and I know that there was -- I think Glen

18 had some time constraints and wanted to make some

19 comments for the record before he had to leave today.

20 I'm not sure if you're prepared to do that right now.

21 MR. GOBIN: Well, I guess, first off,

22 my name is Glen Gobin, vice chair of the Tulalip

23 tribes. I want to say on behalf of our chairman, Mel

24 Sheldon, who can't speak right now -- I've got the mic

25 -- I just want to say thank you to all of the

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1 attendees that came in for the tradeshow that we had

2 and all those that stayed for the consultation and

3 continued on here to Friday to discuss some very

4 important issues that we have.

5 I again want to commend the commission

6 for their following through with what we call a very

7 aggressive schedule to go back and consult with tribes

8 about issues that they're facing and moving these

9 forward in a good way.

10 Through that process, though, even

11 prior to the regs when they came out, there were a

12 number of tribal comments put out regarding the regs

13 that are in place regarding Class III and tribes

14 commented on those. Tribes have commented both on

15 them since then with the new commission that's in

16 place and with Class II minimum internal controls and

17 technical standards.

18 So there's been a lot of, lot of

19 statements made. There's a lot of information out

20 there, there's a lot of tribal comments on the record,

21 and so Tulalip is in support of an advisory group that

22 might be formed that would move forward and address

23 the MICS Class II as well as the technical standards

24 from Class II.

25 Again, I see there's none being

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1 proposed for Class III, but I guess I'll just make the

2 statement on the record again. We just feel that

3 those regs just need to be repealed and dealt with in

4 that manner.

5 But the advisory group for Class II,

6 we would support moving forward with that insomuch as

7 it doesn't create a whole nother process of selection

8 and cause the time frame to continue and we get into

9 -- and inadvertently cause it to extend out further.

10 And so as long as that can happen, we're fully in

11 support of that, because I think done correctly it

12 would speed up this process and start moving it along

13 smoother and also free up attention to some of the

14 other issues that are being addressed in the previous

15 consultations like yesterday and today.

16 And so we would support that going

17 forward. And that was it. So thank you very much. I

18 do apologize that we do have, both Mel and I, have a

19 previous commitment as well across the hall. We have

20 a long-time employee, a tribal member employee, that's

21 retiring today and so we're going to be honoring him,

22 so...

23 CHAIRWOMAN STEVENS: Thank you and

24 best of luck over there and our well wishes for that

25 employee. So on the agenda we're talking about Class

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1 II. It would be really great if we could get some

2 feedback. We don't have any drafts on this except

3 what was published in 2008 on Class II MICS and the

4 technical standards.

5 As I said, the Tribal Gaming Working

6 Group, the independent working group of tribal

7 representatives, has proposed in part an alternative

8 Class II MICS and technical standards. My

9 understanding is that document is not yet complete.

10 There is going to be an additional submission. I know

11 tribes have requested to see it and actually probably

12 has been circulated by the Indian working -- or the

13 Tribal Gaming Working Group and many folks have seen

14 it.

15 I would like to know how the Class II

16 MICS that have been posted or that have been finaled,

17 that were finalized in 2008, although not effective

18 yet, any comment that you might have about those.

19 Those were promulgated in 2006 to 2008 through a

20 tribal advisory committee that the NIGC sponsored.

21 We'd like to know your thoughts on that process.

22 If these -- what, if anything, in

23 these standing regs are useful, where we might see

24 improvement, and also the technical standards. And

25 technical standards are for Class II machine game play

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1 machines. So, you know, in this particular region of

2 the country there are quite a few Class II machines,

3 but not necessarily the kind -- the numbers that we

4 would see, say, in Oklahoma or elsewhere, but still

5 important.

6 So if you all have some information or

7 observations about those standing regulations that

8 would help inform what we'd like to do and how we

9 should proceed. I will say that this commission has

10 been -- we've been very clear about getting some

11 closure to these, these regulations while we're here.

12 They've been pending since about 2004.

13 It seems like the advisory committee

14 started in 2004, you know, different iterations of an

15 advisory committee evolved over time and by the time

16 we came into office they were still on the back burner

17 as not yet effective or seeing that they needed to be

18 revised already.

19 We've heard from people who sat on the

20 advisory committees previously informing our decision

21 on how we can proceed with Class II or just MICS

22 generally in technical standards, that has been

23 helpful.

24 So, you know, I'd like to open the

25 floor, especially from the regulator standpoint, on

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1 these standards would be helpful. Yes, sir.

2 MR. SMALL: Nathan Small with the

3 Shoshone-Bannock tribe. When I hear about these

4 working groups and the advisory groups and those kind

5 of things, I'm just wondering what role does the

6 National Indian Gaming Association have on a lot of

7 these issues. Are their comments and all of their

8 stuff that they put out, is that not being listened to

9 or are they being eliminated from this whole process

10 or have they been a part of this process? I'm talking

11 about the National Indian Gaming Association.

12 CHAIRWOMAN STEVENS: Yeah. They've

13 been participating and their member tribes, you know,

14 I assume their member tribes are directing their

15 efforts. And we do see them. They have been

16 attending almost all of these and under the Executive

17 Order 13175, authorized tribal organizations, you

18 know, certainly can participate in our consultation

19 process.

20 So we do hear from them, we do

21 consider what they have to say, because their

22 organization is made up of tribal governments. We are

23 careful that, and we've been told on many occasions

24 that, while, you know, tribes appreciate being either

25 members of NIGA or appreciate their input, that they

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1 don't speak for all of their -- all tribes.

2 So we balance. We consider what they

3 say, but we also consider that tribes, you know, as

4 sovereign governments will speak for themselves and so

5 we listen to all of it and they do participate. So

6 does that answer your question?

7 MR. SMALL: Yeah. I was just curious

8 as to the relationship that they have now with the

9 NIGC.

10 CHAIRWOMAN STEVENS: Are you asking if

11 they're fighting with us?

12 MR. SMALL: No. I was one of the

13 officers back in the '90s when we first started --

14 Indian gaming was first started and we -- I felt at

15 that time we had a lot to do with the formation of a

16 lot of these regulations and we either fought them or

17 we were for them, those kind of things. But that was,

18 you know, back in 1990, I think, a few years after it

19 first started there.

20 I'm not affiliated with them right

21 now, but I know our tribe is members of the NIGA, but

22 I just haven't been attending a lot of the stuff, so

23 I'm not quite sure where they stand and then when I

24 hear this today I was thinking maybe they're kind of

25 going to the wayside here.

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1 CHAIRWOMAN STEVENS: No. Actually,

2 they've been involved and, from what I understand,

3 they are communicating with their member tribes and

4 their member tribes are communicating with us. We do

5 get -- I think we do get -- yeah. Are you here?

6 You're hiding. There she is. Danielle Her Many

7 Horses from NIGA. So they've all been -- you've all

8 been attending, right?

9 MS. HER MANY HORSES: Yes.

10 MR. SMALL: I didn't want to cause a

11 fight.

12 CHAIRWOMAN STEVENS: Yes. We're going

13 to have a microphone come around to you.

14 McGHEE: Hi. My name's Linda McGhee.

15 I'm with the Poarch Creek Indians, and I was on the

16 2008 MTAC sponsored by NIGC, and I am also a member on

17 the TGWG, the working group that's working right now.

18 We do have a lot of tribal representation in that

19 group and we are trying to keep contact open between

20 NIGC. And let me tell all of you all, you probably

21 already know this already, but this new commission has

22 been more than willing to listen. They might not

23 agree, but they're still willing to listen and take

24 into consideration things that are brought to them.

25 So you know, if our ideas on the new

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1 MICS -- what we're doing, we're trying to rewrite a

2 draft to submit to NIGC that takes out a lot of the

3 policies and procedures that were in the regs. We

4 feel like that in the old regs with NIGC had a lot of

5 policies and procedures that weren't needed. Those

6 need to be designated by your tribal regulators to

7 tell you how to do something.

8 NIGC, you know, tells us we need to do

9 something, but it's up to the individual tribes, in

10 our opinion, to say how they're done, you know,

11 whether or not you have this or that, and that's

12 really what we're trying to work on. We're trying to

13 work on getting a new set of regulations and present

14 them to the NIGC. They may agree with us and they may

15 not, but we are keeping in contact with NIGA and with

16 NTGCR and a lot of the tribal groups out there.

17 If you were missed in any of the

18 notices or anything, if you'd give me your email

19 address, I will see that you get the documents that

20 we're working on.

21 CHAIRWOMAN STEVENS: Thank you. Do we

22 have tribal regulators that have hands-on with the

23 Class II MICS and technical standards for Class II

24 that might be able to inform sort of what your

25 experience with them has been?

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1 MS. McGHEE: Linda McGhee again. I

2 just wanted to say, I am director of compliance and we

3 do our internal audits and we do have hands-on with

4 all of that stuff, and the biggest problems we ran

5 into, a lot of the regs for Class II were from Class

6 III and we've had a difficult time auditing and

7 regulating those regs to match our floor.

8 CHAIRWOMAN STEVENS: Scott.

9 MR. WHEAT: Scott Wheat. I just put

10 on a different client hat here, since you asked the

11 question. I know we also represent the Rincon Band of

12 Indians out of San Diego County, and they actually

13 have a staff person that the tribe sends and she's on

14 the committee.

15 My experience with that committee is

16 you have some of the best technical folks, regulators,

17 out there in Indian country and they're doing some

18 very good things. They're putting in a lot of time

19 and I really want to, you know, thank the tribes that

20 permit their staff to climb around and sit on that

21 committee. They're producing good work and so we just

22 wanted to speak to that and wrap around here in the

23 Pacific Northwest and Spokane and echo Tulalip's

24 comments that we support their work and hope that

25 NIGC's going to think real hard about implementing

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1 these.

2 CHAIRWOMAN STEVENS: We will and we

3 have. They've submitted part of the work to us that

4 they've been doing and the tribes that are members or

5 have submitted those an alternative and our staff is

6 in the process of evaluating that and asking sort of

7 inquiring questions about the results that they come

8 to.

9 I think even the group is asking

10 clarifying questions of our staff as they move along

11 when it's needed. So we are taking them into

12 consideration. We're seriously considering what

13 they've offered us.

14 You know, when we were down at the

15 last consultation in Rincon, a number of tribes

16 expressed a desire for us to publish what that group

17 has, you know, worked on or that a tribe has submitted

18 on their behalf as a tribal government as an

19 alternative standard and we're certainly considering

20 that.

21 We also understand that we don't want

22 to circulate something that's not complete. I

23 understand that the group is still working to make it

24 a full, complete, polished, scrubbed document so that

25 tribes have everything they need to make comment on

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1 those.

2 So to answer your question, we are

3 considering them seriously and what to do with them

4 and how to have those inform our process as we move

5 forward.

6 MR. TAHSUDA: Thanks. I'll do this

7 again in the same vein. I know that the commissioners

8 have heard most of this before. I want to say this

9 too as a part of this offering thoughts mostly from

10 Oklahoma. The Oklahoma tribes have done a lot of

11 thinking on this.

12 But we ask and asked the commission

13 early on in doing this in consultation process a

14 little differently than the prior commission had done

15 it and one of the purposes we suggested that would be

16 useful out of this was allowing tribes from different

17 parts of the country to participate with their sister,

18 brother and sister tribes around the country to share

19 and that's a part of the reason I'm here and want to

20 do this and share this with you.

21 So in that same vein, again, I think

22 commissioners have heard this probably more than

23 anyone from us, but from our perspective -- and again,

24 in Oklahoma we have a huge variety of facilities.

25 Many tribes operate more than one facility and some

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1 tribes operate as many as 15 or 16 facilities.

2 The regulatory side is, of course, of

3 paramount importance, but we've always considered that

4 there has to be -- again, in this notion that there

5 has to be benefit to the tribe, the cost of regulation

6 can not become so high that it defeats the purpose of

7 gaming being of benefit, an economic benefit to the

8 tribe.

9 So going back several years in some of

10 the discussion we had in the prior commission, we put

11 forward to them and sort of challenged them on the

12 basis that they need to consider their attempts in

13 developing regulations with the tribes in the same

14 manner that other federal agencies do.

15 And that is that they have to, amongst

16 other things, consider the cost effectiveness to the

17 regulated group of these federal regulations. And so

18 we had some disagreement about the cost of the

19 regulations, we did our own economic studies and the

20 costs of various proposed regulations by the

21 commission over several years.

22 But I think that is something that we

23 have -- I know a number of Oklahoma tribes are

24 participating in the work group. That has also been

25 amongst the goals that we have hoped to achieve out of

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1 the working group and working with the commission now,

2 is to come up with the best Class II MICS possible at

3 the most cost effective way to deliver that.

4 And as Linda said, one of those ways,

5 I think, is not to have the commission mandating how

6 you're going to actually regulate in your own

7 facility, but to mandate the principles of what needs

8 to be accomplished through the regulation, but let the

9 tribes figure out, do they own -- and we have very

10 experienced, as almost all tribes in the country do,

11 very experienced regulators.

12 They know how to achieve those

13 principles of regulation in the best way they can do

14 in their facility. So we have actually regulators and

15 operators participating in the group, participating in

16 discussion, so that we can hopefully at the end of

17 this have a set of regulations that are not only sort

18 of good from the legal and regulator side, but the

19 operators can use effectively in a way that's

20 ultimately to the benefit of the tribe and the tribe

21 ultimately is gaining the most economic benefit

22 possible from its gaming operations. That's just a

23 thought.

24 CHAIRWOMAN STEVENS: Do we have any

25 other contribution on the Class II MICS technical

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1 standards, any questions? We're over here

2 contemplating what we should do. I hate to jump to

3 the afternoon section. There may be people who are

4 specifically coming in only for that. I'd hate to --

5 you know, we sent the agenda out in advance and

6 however also understand that there may be people who

7 need to leave.

8 If there are issues with any parts of

9 the regulations, either what we've touched on

10 yesterday, this morning, or, you know, you need to

11 address your concerns on this afternoon's agenda

12 because of your schedule, we certainly open the floor

13 for comment on any parts of this on any of the issues

14 we need to talk about. Yes, sir.

15 MR. OSBORNE: Madam Chair, I'm Marvin

16 Osborne with the Shoshone-Bannock tribes gaming

17 commission. We too want to commend the current

18 commission and your staff for the work you've done and

19 to put this commenting period out to make a new stab

20 at regulatory requirements, to take a good hard look

21 at the current Class III issues and how tribes feel

22 about them and opening the door to another avenue of

23 Class II that, I think, needs better understanding.

24 A good look at it, because it sounds

25 to us that there's opportunities, you know, more

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1 opportunities, and if we can get the approval, the

2 authority to work with that with NIGC's backing, we

3 would be glad to look at those. So we appreciate all

4 the hard work you guys have done and I think we want

5 to look at these avenues.

6 CHAIRWOMAN STEVENS: Thank you. We

7 appreciate that comment. You know, and also, we're

8 always open to speaking of the processes, we're always

9 open to hear your feedback on how we're doing in this,

10 this and other processes that we undertake. We're

11 always open to improvement and remain flexible in how

12 we approach tribes when we undertake this and other

13 endeavors. This one is, as Scott said yesterday, an

14 epic journey. Yes, sir.

15 MR. MINKER: I'd like to comment. My

16 name is Fred Minker. I'm with Jamestown S'Klallam

17 tribe gaming commission, the director. We all know

18 542 is not enforceable to all most of us tribes,

19 though there are some tribes that have adopted it as

20 their standard in some states.

21 I would -- there are a lot of casinos,

22 ours being one, who have used the information in 542

23 to help devise our internal controls and we find it

24 very helpful. I would be -- I would be disappointed

25 if that information was just wiped out. I think that

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1 change the name or whatever, call it best practices in

2 the gaming industry, just have a section on your

3 website for best practices that people can go to,

4 utilize what they need for formulating their internal

5 controls or whatever.

6 Don't make it an enforceable

7 regulation, because a lot of people use that. NIGC

8 has gleaned this information over the years from

9 people that have been gaming for a hundred years.

10 This information is not new information. It's stuff

11 that people before us have learned the hard way, and

12 there's no sense in us going out there and learning

13 the same information the hard way, you know, there's

14 no sense in reinventing the wheel.

15 So I would like to see the information

16 stay in some form that makes it useable for anybody

17 that needs it.

18 CHAIRWOMAN STEVENS: Yes, Linda.

19 MS. HELM: Linda Helm. This is also

20 regarding 542. Just a question I had regarding our

21 external audit. I'm wondering what would happen,

22 since the external audit is audited to the MICS.

23 CHAIRWOMAN STEVENS: Well, we have to

24 factor that in. We just had a conversation internally

25 about this yesterday, about, you know, what outside

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1 auditors are auditing to and confirming that in fact

2 what we're auditing to are the MICS and just, you

3 know, I assume they're also auditing to what's in the

4 compact.

5 Okay. So that's another question.

6 You are all the regulators here. What are -- what's

7 being used by your outside auditor? Certainly we have

8 that information here, I would imagine. I don't have

9 it readily at hand.

10 MR. BOYCE: Mike Boyce, executive

11 director, Grand Ronde. I can tell you what we do. We

12 do a Class II audit to the NIGC MICS and then we do a

13 Class III audit for internal purposes to the Grand

14 Ronde Gaming Commission MICS. But the Class II audit

15 does include bingo, poker, any Class II machines,

16 cage, drop and count, IET, complimentary, going to

17 include revenue audit here pretty soon.

18 So that cutoff between Class II and

19 Class III MICS isn't as big as people would think. I

20 mean, it's only table games, Keno and slots that would

21 be out completely. So it's something to think about.

22 MS. HOUSE: Thank you again. Sharon

23 House. I work for a number of gaming commissions and

24 the experience has been in the different states -- in

25 Kansas, California, Idaho and Wyoming -- is that they

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1 do -- the external auditors do audit it to the Class

2 III MICS, the federal Class III MICS, but it's also

3 coming down to -- I believe there's a section in the

4 MICS that identifies that it's the function that's

5 important and the intent of what the, you know, what

6 the MICS says, not so much the specifics, is is it

7 following the money.

8 Perhaps that's a regulation that would

9 be agreed to, because the tribes I've worked for agree

10 with this gentleman about they don't want the Class

11 III MICS thrown out. They want to keep it there as a

12 guideline, and I mentioned that before.

13 But the issue comes down to are they

14 following the money. I'm not an auditor, thank God,

15 but that it really comes down to the intent of the

16 MICS in each particular section and what the result is

17 and why they're doing it and it seems that may be an

18 approach that could be looked at as far as the

19 industry standards and having, you know, all the best

20 practices on a regular basis come forward.

21 The auditors that the tribes hire

22 pretty much are familiar with the fact that there's

23 different compacts and there's different requirements,

24 but they go by already what the tribe and the compact

25 identified as their internal control standards. That

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1 term MICS minimum really is the -- I guess that letter

2 kind of throws a lot of things off.

3 It's really the internal control

4 standards that the tribe has, not just the minimums.

5 That's up to the tribes, and I think that may be what

6 we're looking for. Right now the external auditors do

7 audit to that, but that doesn't mean that the tribes

8 themselves have not adopted those same minimum

9 minimums already or the same things.

10 I don't see that as -- I understand

11 that it is a problem for certain tribes, but the

12 compacts, if you look at the California compacts,

13 which I'd rather not, but we have to, one of the

14 issues is is that in their 99 compacts they identify

15 all these internal control standards. They say you

16 have to have, you know, surveillance, you have to have

17 this, you have to have that, and they have to follow

18 the money, basically, and that's what their key is.

19 It doesn't say MICS.

20 We have a big disagreement about that

21 right now with some of the tribes. But it does

22 identify what's the intent of the internal control

23 standards and how do we get that into a document that

24 maintains what it was intended to maintain, which is

25 to follow the money and make sure there's checks and

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1 balances and that nobody's stealing from you. The

2 integrity issue.

3 So it seems like the tribes I

4 represent, it's real basic, it's trying to get it into

5 that mold to say that this is how it has to be dealt

6 with. I think that's where we're at and one of the

7 ways may be is changing the term MICS to say internal

8 control standards. That's what's important in the

9 ordinances, in your resolutions, et cetera. Thank

10 you.

11 CHAIRWOMAN STEVENS: Sharon, so are

12 you saying the tribes should have to ICS?

13 MS. HOUSE: Well, it's called the TICS

14 already.

15 MR. MINKER: I'd Fred Minker. I also

16 would like to state that I hope you would keep 542

17 updated. But on the external auditor, isn't there

18 something in the MICS now that says the tribe has a

19 set of tribal internal controls that are approved by

20 the commission that the external auditor can audit to

21 that for the required audit?

22 CHAIRWOMAN STEVENS: It may. I don't

23 know it right off the top of my head.

24 MR. MINKER: I think I read that. I

25 was just wanting an opinion if you were familiar with

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1 it.

2 CHAIRWOMAN STEVENS: Yes. You are

3 correct. Although that -- doesn't sound like that may

4 be happening. So yes.

5 MR. ARMSTRONG: So in the context of

6 IGRA and the context of the minimum internal controls,

7 I believe that there could be something written into

8 the auditing portion that stipulates mirroring what

9 Fred has said here, that you audit to the compact

10 where it applies and for those tribes that have

11 adopted the MICS as their rule of thumb, then it would

12 be either/or. So then that allows the outside auditor

13 to come in and audit to the compact with our internal

14 controls, Tracie, as you know, mirrored both the MICS

15 and the state compact and I believe that would take

16 care of all the idiosyncrasies where the tribes have

17 adopted the MICS.

18 I think in the case of the auditing

19 process, they come in and they audit to our compact

20 and then in the cases where someone has NIGC MICS as a

21 standing rule or law, then they come in and they audit

22 to the MICS and that would be the best avenue that I

23 could take on that one.

24 So then as I look at some of these

25 rules here, there's many, many references to both

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1 Class II and to Class III, and when I look at the

2 original MICS I do not know what the intent was, but

3 it seemed to be mixed together, yeah, Class II and

4 Class III.

5 So when we're looking at these Class

6 III MICS and these Class II MICS, I believe that we

7 need some separation, all right, because when we

8 interpreted the original MICS, we go, that's a Class

9 II, and, that's a Class III, you know.

10 I do believe that there was once the

11 Colorado River Indian tribe decision came down, they,

12 the previous regime or somebody says, well, hold it.

13 We have to have a fine bright line between Class II

14 and Class III and we have that power to regulate Class

15 III. All right. Scott can probably quote the law

16 several times on the regulations pertaining to Class

17 III regulations until the CRIT decision.

18 So I think we need to have a -- we

19 need to have the intent, because IGRA stipulates that

20 there are certain areas that are covered by for Class

21 III, but not all areas of Class III.

22 So then to add on top of that Class

23 III and Class II technical standards. Now, when

24 writing Class II and Class III technical standards, we

25 have to realize one thing. When writing these

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1 technical standards, by the time we get the standards

2 written, the technology has already changed and

3 morphed into another one.

4 So we have to be very careful when

5 writing these technical standards that we do not hog

6 tie operations because of the technology that has

7 changed. So I support the idea of guidelines with the

8 MICS but not a requirement. I believe that there

9 should be some separation and that we alter the audit

10 process.

11 I believe that once we get the final

12 draft, the advisory committee will look at it and

13 before -- just to talk about the advisory committee --

14 before they would look at it and then they would move

15 towards a regulation. And I would like to have the

16 ability for all tribes to be able to review this

17 before it turns in, again, to a regulation.

18 CHAIRWOMAN STEVENS: Thanks, Jim, for

19 that. I want to clarify something. When you say some

20 separation, you mean separation of Class II and Class

21 III standards so that they're not m-i-x-e-d, mixed

22 together?

23 MR. ARMSTRONG: Correct. The

24 interpretation of the original MICS versus what we

25 have here as separation of Class II, Class III.

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1 CHAIRWOMAN STEVENS: The original MICS

2 being like when they started talking about them in '99

3 and they promulgated, I think, in 2002. Right. Those

4 were covering both, and even when I heard earlier

5 today, I believe it was from Poarch Creek, that even

6 the product that was produced in 2008 for Class II

7 MICS, M-I-C-S, what did have some Class III

8 superimposed onto it.

9 And then going to your first

10 statement. You would like to maintain the Class III

11 MICS as a guideline? Is that what I understood?

12 Okay.

13 MR. ARMSTRONG: Tracie, to top that

14 off, though, I do realize that there are some items in

15 the IGRA statute that is requirement of Class III, so

16 we can't forget that. We have to realize that that

17 has to be covered and so then you need to separate

18 what can be regulated and what cannot be regulated.

19 That's probably the best way.

20 CHAIRWOMAN STEVENS: I just want to

21 make sure I understood you correctly. And then

22 insofar as an advisory committee, you know, we

23 recognize that an advisory committee does not

24 substitute for consultation. Advisory committees are

25 supposed to be people, experts, who can produce a

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1 draft, that we can then take and consult with.

2 Because these are such detailed

3 regulations, trying to do it like in a form like this

4 line by line would take forever and we don't have

5 forever. The sooner we can get thorough standards

6 that ensure the integrity of your operations, the

7 better for you, because it just lies in uncertainty

8 right now.

9 And then one last thing I wanted to

10 clarify. Part of the separating the two and three, it

11 was mentioned over here, that there are processes in

12 following the money that are the same for two and

13 three and that when I asked about this, you know, I

14 think that's what they were trying to do before the

15 CRIT decision is just have one standard.

16 But it can be burdensome to have a

17 Class III standard on a Class II situation because

18 they're different types of functions, but where they

19 are the same, we would just have mirrors. Is that

20 what I'm hearing? The two and three would have

21 basically mirrors of the same process, the same

22 functions, and when they diverge, they diverge. So

23 that it's clear that this is what you do with Class

24 II, this is what you do with Class III, because they

25 are different.

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1 One example that keeps coming to my

2 mind and has been brought to our attention here is

3 surveillance on a Class II machine as opposed to a

4 Class III machine, you know, where you've got a game

5 that's taking place at this terminal in a Class III

6 environment. The game for a Class II is a server

7 system. Do you need the same camera coverage on a

8 machine when the game isn't happening at this spot?

9 The game is happening somewhere else where the server

10 is.

11 So an example of where things might

12 diverge, they might separate, and we might need

13 separate standards. Thoughts on that would be

14 helpful, because what we've heard -- what I've heard

15 is where they're the same, they're the same. Where

16 they're not, they're not. But you do, you still have

17 two standards where you might have processes that look

18 the same. Yes.

19 MR. MINKER: The difference between

20 Class II and Class III is probably easier defined at

21 other states than Washington. In Washington their

22 Class III machines, as far as I'm concerned, is

23 basically a Class II machine without the finger guard

24 and a lot more restrictions. So basically that same

25 platform, you've got the same type machines, doing the

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1 same thing, the state calls them Class III. For all

2 intents and purposes, as far as I'm concerned, they're

3 a Class II without the finger guard, so that makes it

4 a little more difficult.

5 CHAIRWOMAN STEVENS: An added element.

6 Yes. Dawn.

7 MS. VYVYAN: I wonder, Tracie, if you

8 could address, I think that the gentleman made another

9 point at least that I heard was the evolution of the

10 machine and the technology changing and how the

11 guidelines could be flexible enough to meet that or...

12 I'm not a technical person, but I just thought that

13 was an interesting point.

14 CHAIRWOMAN STEVENS: Well, we do labor

15 over that and I think the former commissions also had

16 labored over that question. How do you create

17 regulations that are either flexible or you create

18 some mechanism so that you can update them. You know,

19 I guess we'd like to hear more about how we could do

20 that.

21 I know in some other reg -- with other

22 independent agencies that regulate, they have standing

23 committees, could we do that, so that we revisit these

24 at a certain interval of time or as changes in the

25 industry occur where those practices have evolved and

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1 become more commonplace and the fact that the change

2 has occurred and many tribes are requesting that there

3 be a change, that we remain flexible to whatever the

4 change in the industry might be or if we have time

5 certain that we revisit them or is it even possible

6 that we can write regulations that are flexible enough

7 to accommodate those changes.

8 You know, I would look to some of the

9 industry experts here or the regulators to inform us

10 on whether that's even possible to write them flexible

11 enough to anticipate. It's the same question we had

12 with sole proprietary interest. Can we anticipate

13 those changes and write regulations that those changes

14 would conform to, whatever those changes might be.

15 It's unknown.

16 MR. MINKER: My opinion is not. By

17 the time you figure out where the technology is out

18 there and start to write something, it's already

19 changed. The technology is changing so fast now that

20 the regulations are really hard for us to keep up with

21 anyhow and to write your regulations loose enough to

22 cover for that -- I don't know -- might as well be

23 nonexistent, but... So I don't envy you your job when

24 it comes to that part, because that's difficult.

25 MR. ARMSTRONG: I think we need to

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1 look at them as a whole. We have many regulations

2 written by NIGC, and through my history and

3 experience, the regulations, be it what they are, have

4 been gone -- they've morphed so many times in the past

5 10 years that I know of. Like every year there's a

6 change to a regulation and there is another change to

7 a regulation and I understand the need for the

8 changes, but what we could do is probably have a

9 little foresight. If we have electronic table games,

10 we should take that into context now to meet Class III

11 standards, or if you have poker, you take that.

12 I mean, every time there's a rule or a

13 regulation written that affects the tribe, then we

14 have to go back to the internal controls and almost

15 rewrite the internal controls. So cutting down the

16 manpower and the scope of the writing of the rules and

17 controls, we'd look at it as a whole for the future.

18 I mean, we will always have the

19 evolution, but if you have enough foresight, similar

20 to technology, then we don't have to go through the

21 changes.

22 I haven't looked at the draft NIGC

23 submissions lately, the ones that are currently in

24 draft. I think the last time I looked at those there

25 was like 42 of them. So by the time we get done here,

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1 complete our task, what do we see in the future on the

2 changes on the tier A, tier B, tier C. If we can look

3 a little bit ahead, we may not have to duplicate so

4 many processes or add additional work to us.

5 I mean, just from one to another, we

6 have several here, and I know that I'm going to have

7 to go back and we have to make some changes and then

8 next year you're going to make another change or there

9 might be need for another change and we have to do

10 that. So like in writing your rules and regulations,

11 I just recommend that you look into the future to see

12 if you can cover some of those issues that may come

13 down at a later date. Then you won't have to change

14 the rule.

15 Or if we're going to be requiring them

16 as rules, Class II, Class III, then we're going to be

17 in this situation for a very long time, in fact,

18 beyond your guys' stay at the NIGC commission and

19 every time there's a commission reappointed, there's

20 subject to change.

21 So I don't think we can continue to do

22 business. I mean, my term has been 11 years. Your

23 terms are less than mine, so we'll end up four years

24 down the line with a new commission and they're going

25 to make a decision that something else is out, so...

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1 I just recommend that we look into the future on this.

2 MS. HOUSE: Thank you again. For the

3 commissions that I've worked with -- and this is just

4 very brief -- is when I was -- and I want to say this.

5 I was on the very first internal control standard work

6 group, and it was not the NIGC. It was the NCAI NIGA

7 task force, and that particular MICS group

8 specifically advised the NIGC originally, do not make

9 these regulations, because exactly what happened is

10 going to happen. And it has.

11 It's not only gone whole circle,

12 right, took how many years to prove what the original

13 group had said was accurate, is that once you start

14 doing that, you're going to have to change it

15 continually, like the gentleman said.

16 If there was a way to do it, what they

17 were recommending is, what I think one of your

18 comments and suggestions was, is that you have a best

19 practices group that's sitting on a regular basis that

20 can bring these technical -- any time it says

21 technical standards, my clients say do not even look

22 at it as a regulation at all.

23 The other gentleman is absolutely

24 right. You cannot change them. It just takes too

25 long, and the tribes, in my opinion, have a short

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1 window of opportunity to move forward and make their

2 benefits for their tribe and the only way to do that

3 is there's two things. MICS, I could see the upper

4 Class II to a certain extent, maybe they need to be

5 limited, but for purposes of Class III and Class II

6 technical standards, perhaps a standing committee or a

7 committee in relationship to particular areas.

8 Class two, you have one or Class III

9 or when it comes to IT, because that's what you need

10 now. It's totally different than it was. We had no

11 IT people on the original group and, you know, they're

12 saying why do we need them. Well, now why do you not

13 need them is the next question.

14 So when you're looking at this, I

15 think it's extremely important to take that under

16 consideration, because this is the tribe's money, you

17 know, that we're dealing with and I hate to put it

18 like that, but it's the tribe's money and the tribe's

19 benefits. That every time we take an extra month and

20 -- when was that -- about two or three years ago we

21 were changing those regs, what, three, four times a

22 year. How much time did that take, and then we had to

23 change them again by the time they came out.

24 So I think the comments are well taken

25 by many of the tribes and there's ways to deal with

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1 it. Technical standards are extremely important. We

2 have them coming forward from the groups that work

3 very hard on them and I think that has worked. We're

4 back to square one again, I guess, full circle. So

5 maybe that is one approach. Thank you.

6 VICE CHAIR COCHRAN: One of the

7 observations I've had as we've gone around and

8 consulted is there is a consistent message, in my

9 opinion, on these, on the MICS and on the technical

10 standards, that we try to focus our attention on

11 standards and get away from micromanagement or the

12 details, which often do trigger the need for

13 revisions.

14 I don't know. I think that's what I'm

15 hearing today as well a little bit. I just heard it

16 in different ways, but it does seem to be a consistent

17 message coming out in the consultations.

18 CHAIRWOMAN STEVENS: And I would say

19 that it's incumbent upon us to plan, to have standing

20 committees or some method by which we address changes

21 in the industry. You know, interestingly, and my

22 caveat to this statement before I make it is that

23 we're talking about processes. So I'm going to say,

24 you know, we've been meeting with Nevada Gaming

25 Control Board, not for the reasons that you might

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1 think or other people have met with them or there's

2 references to Nevada.

3 Nevada tends to be the sort of

4 reference that everyone makes to regulating gaming,

5 again, what the industry standard is. So it was in

6 our best interest to go meet with them and talk about

7 their processes and, you know, they have to revisit

8 theirs on a very regular basis.

9 Interestingly, the industry proposes

10 them as those technologies change and say, okay, new

11 thing, here it is, and I think they even have -- what

12 I recall being told is they had -- the industry had

13 their own group of people and they -- sorry. My

14 instinct is to go over there, so it's probably good

15 that they're closing the door, because I'm usually

16 singing with them and I'm not right now -- they have

17 their own group that annually meets and says, hey,

18 this is what -- this is what we think the changes are

19 and they go through a process.

20 Their process is actually very fast.

21 They get it done in six months. In Nevada by the time

22 it's proposed, six months, done. But certainly Nevada

23 considers what they offer, makes changes as they need,

24 and basically negotiates with the industry what's

25 acceptable and what's not acceptable.

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1 But they do go through this every year

2 and the industry is often -- well, the industry often

3 are the ones that say, by the way, we got to change.

4 This is what the change is outside of that annual sort

5 of review that happens.

6 So the other thing is it is incumbent

7 upon us to plan for this, because it does cost us

8 money to do this and our money is your money and that

9 we have to build something like this into our annual

10 process and our annual budget and contemplate changes

11 of standing committees. What we found is people

12 change, people move on. It's not anything that the

13 industry in Nevada -- you know, they experience that

14 same thing. So I don't think we have to really

15 reinvent some wheels here. They already exist.

16 MR. TAHSUDA: John Tahsuda again. I

17 think at least, you know, a lot of the folks involved

18 in Class II have a hope and a goal coming out of the

19 working groups that there will be for the commission's

20 purposes more a set of standards and principles to

21 follow. I'm not a regulator, but I was thinking about

22 it more as accounting rules, as you know, with GAAP,

23 but those are actually just principles and there are

24 different ways to interpret those principles.

25 Different companies apply them to their own books in

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1 how they do it and it's all legal and they work with

2 the IRS to make sure they're following.

3 But those aren't hard and -- but those

4 principles aren't dictated down as hard-and-fast

5 rules. Also in doing it that way I think you can at

6 least partially achieve -- one of the things that

7 we've been working with for several years now is to

8 try to come up with principles also that are

9 technology neutral to a maximum extent possible so

10 that when the medium changes, the principal goals of

11 the cash and things, those are still present, so you

12 don't have to change any of that.

13 You may have some implementation

14 guidelines, you know, folks to follow so that maybe

15 they can change them. Maybe that doesn't take the

16 work load off you and your staff if you're going to

17 keep changing a lot of things, but at least in the

18 interaction with the commission at this level, you

19 know, there's not a need to be sort of continuously

20 updating things. There can be -- in a formal way.

21 There can be continuous updates.

22 Again, I think we do kind of feel like

23 we're in the same way that Nevada works. We're the

24 ones that brought a lot of technology issues to the

25 commission at the time and said, you know, these are

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1 things that should be thought about, you know, and

2 some of the good things that the commission has done

3 in the past has been to sort of spread the word out.

4 Okay. As changes have come to Class II gaming and

5 technology and stuff, these are different ways the

6 tribes are now implementing the regulatory schemes on

7 things.

8 At the other extreme of that the

9 experience has been in the last, you know, five or six

10 years with these really detailed regulations coming

11 down from the commission. There's one tribe in

12 Oklahoma in particular I know of -- I won't say names

13 -- they spent, I think, upwards of two million dollars

14 on software changes to implement changes that were

15 dictated, they felt like, from the commission of its

16 regulations and a year later the commission said,

17 well, we've heard from a lot of people that that's not

18 working really well, so we're going to change them

19 again. And they had to spend an additional like

20 $500,000 changing back off the software to implement a

21 change that happened like literally 12 months later.

22 So to our mind again, that kind of

23 violates this rule, that whatever the regulations are,

24 they have to have some cost effectiveness as well. So

25 I think if we can kind of -- I think if we can reach a

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1 goal and principles that can be implemented down the

2 line as much as possible technology neutral and giving

3 the tribes the flexibility, I think that's in our mind

4 one of the goals we're working towards.

5 CHAIRWOMAN STEVENS: That might have

6 been the first time we've heard that term technology

7 neutral. I'm going to attribute that to you, John.

8 Do we have any other comments? If

9 not, I'm inclined to break for lunch and then we'll

10 continue on with more specifics on technical

11 standards, questions we have around Class II minimum

12 -- oh, yes. Down here.

13 MR. SPENCER: Not so much a question

14 or a comment. We just want to express our gratitude

15 and appreciation to the Tulalip tribe and also to the

16 other contributing tribes that assisted us during our

17 fire. The funds were directly to rebuild White Swan.

18 We currently have five new homes rebuilt thanks to the

19 contributing tribes, and I just wanted to say thank

20 you and good work to the commission. We're going to

21 be leaving here. Thank you all.

22 CHAIRWOMAN STEVENS: Thank you for

23 those good words and we wish you well in rebuilding

24 your community. That was a terrible tragedy that

25 occurred there, and I'm glad to see that other tribes

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1 were able to come to your aid and wish you safe

2 travels on your way back to your homeland. So thank

3 you.

4 Let's break for lunch and we'll come

5 back at 1:30.

6 (Recessed at 11:47 a.m., to be

7 reconvened at 1:30 p.m.)

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1 AFTERNOON SESSION

2 1:41 P.M.

3 --oOo--

4

5 CHAIRWOMAN STEVENS: We were just

6 discussing. We've changed our power point since the

7 last time, and we had a number of questions about

8 technical standards. Yeah, you know, technical

9 standards, the grandfathering clause, the probability.

10 Some things that will come up, that while we have

11 Nimish here, I'm not sure that we have really anybody

12 who wants to speak to technical standards for machine

13 play. We do have Nimish here with us and, you know,

14 certainly are prepared to talk about issues that come

15 up around technical standards should we need his

16 expertise. So we're looking through our previous

17 power points here.

18 There may not necessarily be a

19 question around here that you're probably going to --

20 we're not going to get quite the participation just

21 because of the volume of the Class II games here as

22 opposed to Class III. You know, we would get a lot, I

23 would imagine, discussion in Oklahoma about this.

24 MR. PUROHIT: (Inaudible.)

25 CHAIRWOMAN STEVENS: Yes. So who am I

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1 missing? Poarch. There are some facilities here in

2 Washington. There are tribes who have what we call a

3 hybrid, where they have two and three in a facility,

4 but we may have just one facility that's just Class

5 II. This tribe, Muckelshoot, Nooksack, who have a

6 stand-alone Class II facility with machines in them.

7 So here are some of the questions that

8 we have, issues that have come up that we know of

9 since the technical standards were implemented several

10 years ago. We want to know how the standards are

11 working for the tribes, for any of the tribes that are

12 -- have Class II machines in their facilities.

13 The current standard, the current

14 technical standard as it's written now has a

15 grandfathering clause of machines that do not comply

16 with the part at the time that this was final that has

17 basically a grandfather clause that expires in 2013

18 and we've heard a lot of concern about that and would

19 be interested in hearing what tribes have to say about

20 that.

21 The limitation on odds, the

22 entertaining display requirements, which we heard a

23 lot about when we were down in Rincon, tribal testing

24 laboratories, how to handle variances, how to deal

25 with remote access, and how has it been going with the

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1 compliance with the applicable mixed standards.

2 So I don't know if anybody has issues

3 or concerns that they want to talk to about these

4 particular standards. Again, we're open here for

5 discussion about how to proceed in addressing these.

6 We were talking about tribal advisory

7 committees and what we're hearing so far is that given

8 that there have been past committees on this and on

9 the MICS, that it might be a good way to go and that

10 perhaps a tribal advisory committee address some of

11 these questions and help -- you know, having comment

12 here would help inform the committee, you know, if we

13 get to a point of a committee, to address these

14 questions. Do we have a microphone somewhere?

15 MS. OGAS: Cathryn Ogas, attorney for

16 Lytton Rancheria. I think I probably said a little

17 bit about this at Rincon. I do think actually for the

18 tech standards, I think for the most part they

19 probably do work pretty good. Our gaming commission

20 would have more to say. There have been a few

21 problems, tweaks that they need, and I think we think

22 a tribal advisory committee would be really good to

23 do, especially if you get some really technical

24 experts. If we could have technical experts, I think

25 it would be a great idea to work out some of these

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1 problems.

2 MR. TAHSUDA: John Tahsuda again. I

3 think one of the difficulties that we ran into with

4 the advisory committees over the past several sort of

5 reincarnations of them was a bit of unwillingness by

6 the prior commission to let the tribal side of the

7 advisory committee have access to their experts and to

8 the lawyers and it ended up being the committee

9 members having discussions with committee or with

10 commission staff who had all their experts and lawyers

11 there.

12 It became a very adversarial, at

13 times, process. I think as long as, you know, the

14 advisory committee keeps in mind the goal, that this

15 is supposed to be, you know, helpful to everybody and

16 that everybody should be able to bring in one of their

17 consultants and advisors that they need to kind of get

18 their ideas and points across, which is ultimately to

19 advance the discussion, then I don't think there will

20 be as big an opposition to it.

21 I know there has been some question on

22 the tribal side, but I think it all kind of came out

23 of that issue about, you know, is there proper

24 representation as well on the advisory committee and I

25 think if there's more input from the tribal side as to

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1 who should sit on the committee as well.

2 At times I think in the past it was a

3 feeling that the commission by (inaudible) picked

4 people to be on it. Not to say that those weren't

5 good people to be on that advisory committee, but just

6 by the mere fact that the tribes themselves didn't get

7 to pick people that were on there sometimes, I think

8 that also kind of contributed to a feeling that it

9 wasn't as representative of the viewpoints of the

10 tribal side as it should have been.

11 So I'd just offer those comments.

12 CHAIRWOMAN STEVENS: Just to clarify,

13 John, are you saying that tribes should have a say on

14 who's selected or what the qualifications are?

15 MR. TAHSUDA: Probably both, I guess.

16 CHAIRWOMAN STEVENS: I want to remind

17 everybody, we only have so much time to do this. I've

18 sat on some committees from an Interior standpoint,

19 for Interior, and in my mind the first thing I want to

20 do is try to have a well-balanced advisory committee.

21 So since you brought that up, here's

22 some of what we've been thinking about looking back at

23 the previous advisory committees and what we can learn

24 from those based on our own experience and what tribes

25 have been saying.

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1 You know, we certainly need the

2 expertise on technical standards, people who are

3 familiar with how the technical standards have been

4 working. It seems to me the technical standards are

5 much more laser focused in terms of the revisions that

6 we would visit. The MICS is a whole nother enchilada,

7 and it would seem to me that that might actually move

8 along quicker than the MICS.

9 So we do need the technical experts on

10 the technical standards for Class II machines. We

11 also need some people to talk about Class II and Class

12 III so that we have some ability to identify which

13 parts, when we pull them apart, which is what. Which

14 is Class II, which is Class III, and, you know, we

15 need to have people who maybe come from a very Class

16 II intense environment and those who come from a Class

17 III environment and people who do both, so that we can

18 identify the parts in the MICS as applicable to two or

19 applicable to three or applicable to both.

20 We'll need regional representation,

21 because the universe isn't the same in any one place

22 that you go. We need operational differences. We

23 have small operations and large operations. We need

24 some people with some expertise from I would think

25 like an operational standpoint and the regulatory

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1 standpoint on the movement of money and the flow and

2 accounting of money and that people who are familiar

3 with cage operations, surveillance operations. Not

4 just the operation side of it, but the regulatory side

5 of it.

6 So when you start adding these things

7 up. Did I miss something? Am I missing? I don't

8 want to list off all the functions in a casino, but,

9 you know, how do we have enough diversity and not

10 create this unwieldy group of people and be timely and

11 thorough and have the right experts in the room,

12 because to be an advisory committee, we do want to be

13 mindful of how much time it takes, but we also need

14 people who are going to be able to be committed to it

15 and not drop out, whose tribe can afford either the

16 travel or the time, because you're basically taking

17 somebody off their normal job.

18 What's the other thing I was thinking?

19 You know, the number of members, certainly that goes

20 to that point, and making sure that we have time to

21 consult with tribes, because the advisory committee

22 does not stand in for our obligation for

23 government-to-government consultation with tribes.

24 An advisory committee is going to be

25 tasked with putting some drafts together based on

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1 their expertise, so that then we can share it with

2 tribes before we start down the path of rule making,

3 and then offer tribes the opportunity to weigh on the

4 work product of that advisory committee.

5 That's what we're thinking, and if I'm

6 missing something. That's what we're thinking and we

7 would really need to pull the MICS and the technical

8 standards basically away from the rest of these

9 regulations we've been talking about over two days so

10 that those other regulations can move forward and

11 these very detailed, specific, expertise driven regs

12 would have to move on a separate parallel track.

13 And if we do that, that would modify

14 our schedule and we have to be mindful of your

15 resources and our resources of how long this will

16 take, but, you know, based on what we're hearing thus

17 far, there's still a desire to have an advisory

18 committee for those three parts.

19 We love to hear any comment on what

20 we've said about how this would be structured.

21 VICE CHAIR COCHRAN: The only other

22 thing I would add to that is one of the things we've

23 also talked about is if we put this together, this

24 group would have pretty much its foundational work

25 done. We've got an existing draft MICS. You've got

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1 the work of the (inaudible) going on. You've got all

2 the consultation feedback that we receive from tribes

3 and the NOI.

4 So the footwork is really done, which

5 we're hoping the time saver at the end is just a

6 matter of getting the focus on making some decisions.

7 So that was the only other thought I had.

8 CHAIRWOMAN STEVENS: Well, I'm a big

9 fan of facilitators. I think there's two ends of the

10 spectrum that we want to avoid and try to land

11 somewhere in the middle, and I really personally think

12 a facilitator can help us get there. You can have an

13 ad hoc group that, you know, is independent and has

14 open, you know, membership and contribution, but that

15 can get a little lord like, you know, Lord of the

16 Flies and out of control.

17 There's the other end of the spectrum,

18 which we've heard from tribes about previous advisory

19 committees, where the NIGC is acting as the

20 facilitator and director in the meetings and making

21 decisions on how the group makes a decision and

22 whether or not contributions will be considered or

23 not.

24 So to me that's two ends of the

25 spectrum that we want to avoid and that a facilitator

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1 could get us there. There are some other, again,

2 having worked with Interior in their process and this

3 administration, you know, having a fresh look at how

4 to bring tribes into and through consultation, through

5 advisory committees.

6 There's some experience now with this

7 new administration in organizing. This can get very

8 out of control and a facilitator helps us do that. We

9 have some services available to us as a part of

10 Interior that can keep us organized. That's my

11 biggest concern and I think all of us share this

12 concern and I think you all share this concern, that

13 there's only -- we've got to come to some finality

14 with these and organization is going to be key in

15 making sure that we do this.

16 We'll have to consider all of these

17 things we've talked about, but we can use some of the

18 services that we have available to us to keep us

19 organized and use a facilitator and also be mindful of

20 ways to not meet in person, because that's, one,

21 spendy, and two, time consuming in travel for both,

22 really for the members of the committee.

23 I remembered what my question was. I

24 had to write it down before I forget. But, you know,

25 we had to think about how to structure this. We're

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1 going to have to think about the number of people, the

2 qualifications we're looking for, how long this will

3 last, how would we have concentrated work sessions.

4 We're going to need work horses. We're going to need

5 people who can commit to very intense days of going

6 through a product that's already been provided to us,

7 the process to ask for nominations and how do we

8 select them.

9 Then the other question that John has

10 brought up is how do you -- we know that previous

11 advisory committees were structured in a way that

12 didn't allow anybody but the committee members to

13 speak and the NIGC had their experts be able to speak,

14 but the tribe or the committee member weren't given an

15 opportunity to let their experts speak, whether that

16 expert was their operator, their lawyer, their

17 regulator, their compliance person, and factoring that

18 into how an advisory committee works, so that we can

19 have -- the purpose of this is to have a well

20 informed, fully considered decision for the

21 commission, that we have regulations that are well

22 rounded and that we have experts who can do this and

23 offer the best, as we know, that exists in Indian

24 country into these regulations.

25 So we would have to think about that.

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1 Maybe that's once the committee is together, the

2 ground rules have to be set on how you bring in

3 experts. Other industries do this. Other federal

4 agencies do this. Again, I'm not a big fan of

5 reinventing wheels. We're looking around at how other

6 independent regulatory agencies do this, how DOI has

7 done it, how other agencies have interacted with

8 tribes.

9 We know when the Health Care Act was

10 coming down there were very accelerated, concentrated

11 committees working on provisions for that. There were

12 some other things that were mentioned to us by the

13 Department of Interior. I think the other one was No

14 Child Left Behind.

15 So we're confident that we can do

16 this, but there's some decisions we need to make

17 before we can, you know, even talk about how we bring

18 in experts, which are how many people, what

19 qualifications, and how do we choose them. You know,

20 these are clear, to me, clear things we should

21 consider.

22 We should have regional

23 representation, operational size, experts, regulators,

24 operators, Class II, Class III experience, and come to

25 the determination of the number of members. So

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1 anything you can do to help us inform that process

2 would be helpful.

3 I think with this election it's very

4 likely that we will be criticized no matter how we

5 choose. So we will want to make the best choice

6 possible and build in some mechanisms, so that, you

7 know, maybe we don't have to have a committee that has

8 every representative expert there, but that the

9 committee itself can turn to, say, like in the

10 technical standards. You know the manufacturers want

11 to weigh in, maybe the testing labs want to weigh in.

12 Tribal regulators who may certify

13 these machines, is there a mechanism where we can turn

14 to them and offer them the opportunity to inform us,

15 you know, instead of trying to plug them all into a

16 room and do the group shuffle.

17 Those are the things we're thinking

18 about and those are based on the things that we've

19 been hearing over the past year. I'm happy to hear

20 from anybody. I've been talking for a little while

21 here, but that's just been our internal thought

22 process based on what we're hearing and how we can

23 manage this over the next year.

24 Can we get a microphone over.

25 MS. McGHEE: Linda McGhee, Poarch

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1 Creek. One thing I would ask or advise, that when you

2 do form this committee, get the documents out to the

3 committee in time for them to review them before we

4 have a meeting. It was really bad when I was on the

5 MTAC. Sometimes we'd get them the day before we flew

6 out and you cannot review or send them out to your

7 area and ask for their comments in that amount of

8 time. So bear that in mind.

9 CHAIRWOMAN STEVENS: Linda, you're

10 preaching to the choir. My poor staff knows how I

11 feel about timely submissions of drafts so that they

12 can consider it so decisions can be made. I'm with

13 you on that and I recall that that was an issue.

14 Especially, you know, you all have another full-time

15 job going on and you need enough time to be able to

16 come to the meeting prepared to contribute.

17 MS. OGAS: Cathryn Ogas, Lytton. Just

18 to add to that, I totally agree with that. One of the

19 other things from earlier, if you need the experts,

20 for instance, on the technical standards, a lot of

21 time your committee is not going to be able to do it

22 themself. They need somebody else and you have to be

23 able to consult and that was one of the biggest

24 frustrations, was there's people in the audience that

25 said if we only would have known, we could have

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1 prepared these guys, but we didn't and we didn't have

2 a chance.

3 Then I'd just like to comment. I like

4 all of your suggestions. I think region, size of

5 operation, all those are things you could consider and

6 one of the problems I did have with the last TAC was

7 that they were all regulators. And I understand that,

8 but operators do have some good input and I think the

9 two of them together could work really well.

10 And the other thing was there was a

11 lot of people. I think, Linda, were you the only one

12 working on Class II and we were the only ones, Poarch

13 was the only ones with Class II. So more Class II,

14 because there are some of us still out there that are

15 very vested in this. Thanks.

16 CHAIRWOMAN STEVENS: One of the

17 benefits of a facilitator is the setting of ground

18 rules, not just on using some of the resources that we

19 have available to us as a federal agency, making sure

20 that everything stays organized and on time and that,

21 you know, that may be a ground rule as to how far in

22 advance do you get drafts, whose job, you know, what

23 are the committee members' responsibilities. Making

24 clear what the action items are and what the

25 expectations are of everybody at the beginning of

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1 meetings, at the end of meetings, at the beginning of

2 their journey and what their objectives are, and

3 having a neutral facilitator do that is helpful.

4 How's everybody doing? You guys

5 sleeping back there?

6 ASSOC. COMMISSIONER LITTLE: One of

7 the beauties of or -- I don't know -- downfall, but

8 this commission, we attend a lot of these tribal

9 advisory committees. I remember I sat next to Elliott

10 before, you know, kind of listening to what was going

11 on. It was very frustrating, you know, and the last

12 one I was fortunate that the chair for the gaming

13 commission tribe that I was working for was a member,

14 but I'm not sure if it was the time frame or the pace

15 at which the advisory committee was progressing, but

16 by the end of that advisory committee, half the

17 committee members had left.

18 Then we ran into -- they ran into some

19 situations where segments of the industry was not

20 represented and that became problematic, and like I

21 had mentioned two days ago, you know, I'm quickly

22 coming up halfway through my term before I expire

23 here. One of the things that we came on -- when I

24 came onto commission here, it was the idea that -- and

25 I was in DC for 12 years, going on 13 years now, but

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1 things just stagnate and they don't go anywhere.

2 I know the other commissioners feel

3 exactly the same way I do, is that we're here for a

4 short period of time and we want to get something

5 done. These are big, huge issues that, once again, as

6 a nonattorney, you know, I don't know if in DC

7 sometimes if attorneys want to get things done.

8 Got kids to put through college,

9 right, Elliott? Sorry. I'm just looking at you. In

10 any event, that's no offense to my attorney. No one

11 in this room would ever do that. But, you know, it

12 gets kind of frustrating sometimes. We don't get

13 things done as quick as we'd like to.

14 So we're really looking to make sure

15 we do this right. We're really, really looking for

16 your input, because you guys, a lot of you have been

17 involved in these and you've done this before and, you

18 know, your helping us organize this correctly is very

19 much welcome and needed.

20 So we really look forward -- if you

21 don't have anything to say today and you want to

22 forward comments later on, we would be very, very

23 interested to hear from you.

24 VICE CHAIR COCHRAN: He just thinks he

25 has attorney friends.

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1 CHAIRWOMAN STEVENS: You guys can't

2 see this because I'm sitting right next to him, but

3 there's this little red button like a Jennie-O turkey,

4 that when he's done pops up; he expires.

5 But, in all seriousness, we do, we

6 understand that these have been -- there's been --

7 it's difficult to regulate and run your operations on

8 this unsteady ground of uncertainty about where the

9 regs are going and especially compound that with

10 changing technology. It's a challenge and you end up

11 spending a lot of money just trying to keep up with

12 what's going on at the moment, even if it's, you know,

13 the draft. We have the 2008 that were finalized that

14 then there's a whole nother draft that got started,

15 because by the time that got done, as you said, Fred,

16 by the time you're done, you know, you have to come up

17 with another draft.

18 So we do, to echo what Dan was saying,

19 we do want to come to some completion on these three

20 sort of outstanding issues before we go and do it in a

21 way that's respectful to tribes, but also timely and

22 thorough. And we understand we may not always agree,

23 but we're going to agree in -- disagree in a

24 respectful way and to use all of the resources we have

25 available to us and there are actually many more that

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1 we have that would help this process move along.

2 We will be, like I said, looking.

3 Because there was so much turnover and there's

4 probably many reasons why folks turned over in those

5 previous committees, you know, when we go out to like

6 get names for a committee, we'll make very clear the

7 time frames and, you know, the resources and the

8 demand on whoever's going to sit on these committees

9 are going to encounter and that we will need full

10 commitment and participation by those members and

11 could be intense, long days in short durations to get

12 some of this work complete.

13 Like Steffani was saying, we hope that

14 we will have some work products and much of that

15 ground work will be done by the time the committee

16 comes around and is formed and starts working after

17 they sort out what the ground rules are and that

18 should shake down -- shade down the amount of work and

19 time that committee members would have to take so that

20 we don't face the problem of committee members saying,

21 hey, this is taking too much of my time. It's gone on

22 too long. I've got to get back to my regular job.

23 So that's what we're thinking now. We

24 certainly are welcome -- welcome your comments to what

25 we've said, anything we might have missed, and we'll

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1 be talking about this at the next consultations as

2 well. It looks like we're running out of steam here,

3 so I will not -- somebody's sleeping back there --

4 have this go on any longer. So I want to give some

5 time to the other commissioners, if they have any

6 closing statements before we adjourn.

7 VICE CHAIR COCHRAN: I just want to

8 say thank you for staying with us an additional day

9 and a half, almost two days now. I know it's been a

10 long week for some of you and it means a lot to us to

11 have you still sitting at the table talking with us.

12 We know it's a long process, but it's an important

13 one, and the amount of support and commitment that the

14 tribes have shown is really kind of overwhelming for

15 us at times, in a very positive way.

16 So thank you and thank you for my

17 Oklahoma peeps. It's nice to see a lot of different

18 faces, even though we're in the Northwest. This is a

19 beautiful area of the country and Tracie's tribe has

20 been an amazing host and so thank you to the tribe. I

21 don't know if there's anyone left in here. We look

22 forward to seeing you again and wish you safe travels

23 home.

24 ASSOC. COMMISSIONER LITTLE: Just kind

25 of echoing what Vice Chairwoman had to say. I want to

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1 thank everyone for making the trip out here and

2 staying a little longer for the conference. I want to

3 thank the Tulalip tribe for hosting this wonderful

4 event. What a fantastic facility. If there's anymore

5 comments that anyone wants us to make, you know,

6 obviously this whole process was very, very anxious to

7 get those, so please submit those. The information's

8 up there on the screen, the email address.

9 And then I just want to wish everybody

10 safe travels home. Thank you.

11 CHAIRWOMAN STEVENS: One last shout

12 out to all the staff who helped us prepare for this

13 meeting. There's a lot of work that goes on behind

14 the scenes, not only by the staff that you've seen

15 here, but the staff you don't see here back in

16 Washington DC or back in the regional offices, who

17 make sure that the rooms are right, the paper's right,

18 you know where to go. So I give a shout out to them

19 and thank them. My hands up to you for your work and

20 I appreciate and thank all the tribes that have

21 attended and come so far to participate in these and

22 look forward to your comments.

23 If you ever have any questions, any

24 concerns, you need any clarification, that's how to

25 get ahold of us. The next consultation is next week

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1 in Albuquerque at Pueblo Laguna, Route 66, and that's

2 next week. I think it's next Wednesday and Thursday.

3 After that is Washington DC, the following Thursday

4 and Friday, in the interior south auditorium. For

5 those who will be out there that week, there's a lot

6 of activity going on that week in DC.

7 One shout out for something that Dan

8 has been handling, which is the public meetings. That

9 will be taking place in Oklahoma City at River Wind --

10 I get their two facilities mixed up -- outside of

11 Oklahoma City. That's going to be where we will be

12 doing, basically, the business of the committee -- or

13 business of the commission in the public format.

14 We'll have another one of those later

15 on in the year. We'll be doing them quarterly and

16 you'll see we're just starting up, so they're not

17 really exciting right now, but as we start to move to

18 -- if we get to final passage, you know, it's one of

19 the authorities the commission has is full commission

20 to promulgate regulations and so those, like other

21 commissions that you see, the public meeting is where

22 that happens.

23 We hope to have some of that activity

24 coming up, but right now we're not at that place. So

25 they'll become more exciting as time goes by. Right,

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1 Dan?

2 ASSOC. COMMISSIONER LITTLE:

3 Absolutely.

4 CHAIRWOMAN STEVENS: So those are the

5 announcements. And again, we have some regional

6 trainings that are coming up in July and August and

7 we'll keep you informed as we do more, as we mentioned

8 this morning, especially from the Northwest, for those

9 attendees that are from the Northwest.

10 Other than that, again, thank you for

11 attending and sitting through these meetings with us,

12 and safe travels home. Thank you.

13 (Concluded at 2:21 p.m.)

14

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1 REPORTER'S CERTIFICATE

2

3 I, CHERYL J. HAMMER, the undersigned Certified

4 Court Reporter, pursuant to RCW 5.28.010 authorized to

5 administer oaths and affirmations in and for the state

6 of Washington, do hereby certify:

7 That the sworn testimony and/or proceedings, a

8 transcript of which is attached, was given before me

9 at the time and place stated therein; that any and/or

10 all witness(es) were by me duly sworn to tell the

11 truth; that the sworn testimony and/or proceedings

12 were by me stenographically recorded and transcribed

13 under my supervision, to the best of my ability; that

14 the foregoing transcript contains a full, true, and

15 accurate record of all the sworn testimony and/or

16 proceedings given and occurring at the time and place

17 stated in the transcript; that I am in no way related

18 to any party to the matter, nor to any counsel, nor do

19 I have any financial interest in the event of the

20 cause.

21 WITNESS MY HAND this 26th day of July 2011.

22

CHERYL J. HAMMER,

23 Washington State Certified Court Reporter, #2512

chammer@yomreporting.com

24

25

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1

1 6:13,16

10 64:24 94:5

10200 1:9

11 95:22

11:47 104:6

11th 7:4,15 8:6

12 102:21 120:25

13 31:9 120:25

13175 70:17

14-15 6:6

15 1:12 2:1 63:19

77:1

16 77:1

1990 71:18

1993 46:10 47:1

1998 31:8

1:30 104:5,7

1:41 105:2

2

2 6:13 11:16,23

20:20

20 6:11,18 16:11,18

2002 89:3

2003 47:3

2004 69:12,14

2006 68:19

2008 68:3,17,19

72:16 89:6 122:13

2011 1:12 2:1 6:6,11

6:18 128:21

2013 106:17

248 26:14

25 11:22 20:20 44:6

2512 1:24 128:23

26th 128:21

2702 20:20

2710 11:23

2:21 127:13

3

3 6:14

30 42:24 44:6

350,000 41:14

4

4 6:14

42 94:25

5

5 6:14,16 16:13

5.28.010 128:4

500,000 102:20

502 13:22

518 22:7

518.4 24:11

531 12:21

542 80:18,22 81:20

85:16

556 10:20,24

558 10:20,24

558.2 11:16

571 10:9

573 8:22 9:8,22

6

60/40 27:9

66 126:1

9

90s 71:13

92 44:23 47:5 56:2

58:23

93 58:23

99 84:14 89:2

9:12 1:13 2:2

a

a.m. 1:13 2:2 104:6

ability 13:9 55:20

88:16 110:12

128:13

able 3:4,5 4:18 11:2

11:5 43:3,16 45:14

46:17 52:5 57:3

62:1 65:5 73:24

88:16 104:1 108:16

111:14 115:13

118:15,21,23

absent 39:1

absolutely 96:23

127:3

abuses 11:23 12:9

accelerated 116:10

acceptable 10:10

99:25,25

accepts 8:19

access 8:19 10:10,11

27:19,24 36:17 56:4

106:25 108:7

accommodate 93:7

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15:24 78:8

account 21:2

accounting 24:5,19

25:2 26:1 100:22

111:2

accurate 15:13

96:13 128:15

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78:12 101:6

act 24:24 27:10

37:21 38:15 56:24

59:14 116:9

acting 113:19

action 9:12,24 40:22

40:23 42:1 47:16,25

48:5,11 52:22 53:7

55:18 59:22 119:24

actions 51:23

activities 23:16,20

activity 24:22 45:17

47:3 49:5 126:6,23

activity's 25:6

actual 34:1 43:10

ad 64:16 113:13

add 50:20 87:22

95:4 112:22 118:18

added 92:5

adding 111:6

addition 32:24

additional 23:1,21

35:1 68:10 95:4

102:19 124:8

additionally 13:17

18:7

address 6:9 20:24

28:10 35:6,7,17

44:11 46:9 47:1

62:1 66:22 73:19

79:11 92:8 98:20

107:10,13 125:8

addressed 20:21

39:10 67:14

addressing 55:7

107:5

adept 53:22

adequate 15:23 25:1

26:1,4

adjourn 124:6

administer 128:5

administration

41:10 114:3,7

administrative

16:23 22:18 44:11

53:1,9 55:3

admittedly 18:5

adopted 80:19 84:8

86:11,17

adoption 25:11,23

advance 79:5

108:19 119:22

advantage 53:23

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advice 53:4,25

advise 118:1

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advisory 47:5,21

65:2,4,16 66:21

67:5 68:20 69:13,15

69:20 70:4 88:12,13

89:22,23,24 107:6

107:10,22 108:4,7

108:14,24 109:5,20

109:23 111:12,21

111:24 112:4,17

113:18 114:5

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115:11,18 120:9,15

120:16

advocating 19:25

affiliated 71:20

affirmations 128:5

afford 111:15

afternoon 28:4,7,16

64:11 79:3 105:1

afternoon's 79:11

agencies 20:16

77:14 92:22 116:4,6

116:7

agency 9:24 11:24

46:25 47:16,25 48:5

48:11 52:22 53:7

54:21 55:18 59:22

119:19

agency's 47:23

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64:2 67:25 79:5,11

aggregate 14:13,18

21:1

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66:7

ago 25:14 31:9

58:24 97:20 106:10

120:21

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72:23 73:14 83:9

118:18 122:22,23

agreed 83:9

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13:1,7,16 14:17

56:15

agreements 12:21

12:25 13:4,6,10,15

14:19 18:1 20:12

27:17 39:17,25 42:5

42:22 43:11 44:3

46:5 47:7,7 52:12

ahead 5:11 60:2

95:3

ahold 125:25

aid 104:1

alabama 4:7

albuquerque 126:1

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allow 41:23 115:12

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15:19,21 16:1

allowed 13:2 52:6

allowing 76:16

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alter 88:9

alternative 68:7

75:5,19

alternatives 64:19

amazing 124:20

amend 19:9

amended 24:1

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8:6

amicus 16:21

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118:7 123:18

124:13

analysis 21:6 39:14

41:5 43:18 44:8

50:11 60:21,24 61:2

61:18

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ann 44:15 46:1,17

52:14 62:3

announcements

3:11 127:5

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34:10 36:25 100:4,9

100:10

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99:17

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93:11,12

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anybody 34:19

81:16 105:11 107:2

115:12 117:20

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appeal 45:5 52:24

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16:24 44:25

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110:18,19,19

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38:10 62:11 70:24

70:25 80:3,7 125:20

appreciates 21:9

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103:15

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20:25 30:15 44:12

57:19 80:12 83:18

98:5

approached 9:15

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20:24

appropriately 19:13

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80:1

approved 13:16

17:9 40:4 44:18

85:19

approves 40:3

approving 49:19

arbitrarily 13:8

area 15:1 26:19

118:7 124:19

areas 25:17 26:8

29:12 30:3 40:10

52:3 87:20,21 97:7

arguing 53:10

arizona 18:10

armstrong 31:10,20

86:5 88:23 89:13

93:25

arose 38:12

aside 28:16

asked 22:13 26:25

26:25 74:10 76:12

90:13

asking 24:14 49:15

71:10 75:6,9

asks 64:14

aspects 13:12

assertions 8:6

assistance 3:13 11:3

11:5,14

assisted 103:16

assisting 63:11

assoc 38:4,9 120:6

124:24 127:2

associated 63:10

association 70:6,11

assume 19:14 70:14

82:3

attached 6:18 128:8

attempts 77:12

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attendant 9:13

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127:9

attending 4:4 70:16

71:22 72:8 127:11

attention 67:13 91:2

98:10

attest 43:5

attorney 39:6 56:1

58:15 107:15

121:10,25

attorneys 39:15

44:4 53:5 57:15

58:8 121:7

attribute 103:7

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audience 118:24

audit 81:21,22

82:12,13,14,17 83:1

84:7 85:20,21 86:9

86:13,19,21 88:9

audited 81:22

auditing 20:2 36:15

36:18,20 74:6 82:1

82:2,3 86:8,18

auditor 82:7 83:14

85:17,20 86:12

auditorium 126:4

auditors 82:1 83:1

83:21 84:6

audits 15:12 26:1

74:3

august 3:18,19

127:6

authored 19:11

authorities 38:5

65:10 126:19

authority 10:6

11:25 12:2,7 14:4

14:11 17:15,18,21

18:2 30:14 40:8

80:2

authorized 8:25

16:1 70:17 128:4

authorizing 15:24

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33:25 114:9,18

119:19 122:25

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79:22 86:22

avenues 80:5

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113:25

avoidance 15:9

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39:20 57:24

b

b 11:23 95:2

back 39:13 45:5

55:23 58:15,21

63:19 65:4 66:7

69:16 71:13,18 77:9

94:14 95:7 98:4

102:20 104:2,5

109:22 120:5

123:22 124:3

125:15,16

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11:3 33:9

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balance 45:9 71:2

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74:11

bank 56:9

banks 57:23

bannock 30:6 56:6

70:3 79:16

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53:16 109:24

111:25 112:16

117:18,22

baseline 17:12 18:18

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90:21 91:23,24

99:24 106:17

111:16 112:8

126:12

basis 14:3 18:14

77:12 83:20 96:19

99:8

bear 118:8

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beginning 119:25

120:1

behalf 8:8 61:25

63:1 65:23 75:18

believe 12:11 31:11

42:6,10 51:15 58:17

63:2 83:3 86:7,15

87:6,10 88:8,11

89:5

believed 11:25

beneficial 34:25

beneficiary 14:16

20:17 27:14 49:5

54:16 60:12,17,25

61:15,18,22 62:7,22

benefit 2:23 34:16

35:5 50:21 52:7

54:19 63:7 77:5,7,7

78:20,21

benefits 22:20 23:9

34:2,3,13,18,24

35:1 38:23 40:16

97:2,19 119:17

best 10:6 15:23 46:8

53:25 54:1 67:24

74:16 78:2,13 81:1

81:3 83:19 86:22

89:19 96:18 99:6

115:23 117:5

128:13

better 11:8 12:6

15:5 47:14 48:10

79:23 90:7

beyond 11:6 19:4

95:18

big 82:19 84:20

108:20 113:8 116:4

121:5

bigger 35:5

biggest 74:4 114:11

118:23

binding 12:25

bingo 82:15

bishop 4:16

bit 26:6 27:15 28:4

57:22 95:3 98:15

107:17 108:5

blame 41:17

bluelake 31:23,23

32:1,2 36:2

blvd 1:9

board 26:21 98:25

body 25:22 44:2,10

44:20

boils 40:15

bones 56:20

books 100:25

borne 11:12

bother 58:15

bounds 14:10

boyce 34:4,4 35:2

36:1 82:10,10

break 60:8,11 63:19

103:9 104:4

brief 7:1 96:4

bright 7:25 43:19,21

43:22 87:13

bring 2:16 8:7 55:17

96:20 108:16 114:4

116:2,17

brother 51:5 76:18

brought 51:25 59:4

72:24 91:2 101:24

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burdensome 22:23

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34:14 38:24 90:16

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[audience - business] Page 3

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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certificates 38:3,7

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Veritext/NJ Reporting Company

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Veritext/NJ Reporting Company

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