CONCLUSION

In conclusion, we again extend our appreciation to the Commission for its efforts toward
meaningful consultation on regulations that are of vital importance to Indian gaming. The
Nation also re-iterates our request that the Commission grant additional time for tribes to provide
further written feedback on the Commission’s proposals, and that the Commission consider
scheduling further consultations at upcoming tribal gaming related events. Please do not
hesitate to contact us if we can provide any additional information.



proposed 25 CFR §502.25(2) are typically associated solely with a gaming operation, some of
them are not. The Nation believes that the better approach is to rely on published guidance as
opposed to the hard and fast list of factors in the proposed regulations, and the Commission has
failed to demonstrate that the proposed regulations are necessary to enforce against or act on
unapproved management relationships.

Moreover, the Commission has indicated that promulgating clear standards for what is
and is not management will provide clarity and potentially reduce the number of “declination
letter requests” received by the Commission. Because of the concerns that the Nation has
regarding the proposed regulations, the Nation believes that the Commission will continue to
receive declination letter requests. In fact, as discussed below, the inadvertent effect of
expanding the definition of a Gaming Operation will likely cause unnecessary ambiguity for
current operators and vendors resulting in an influx of said letters.

In our view the Commission has the necessary tools and definitions in place to act on
unapproved management relationships without the necessity of regulations that may have grave
consequences to smaller operations. Smaller tribes, which are likely in greater need of third
party assistance or advice in some aspects of their gaming operations will be disadvantaged by
the proposed regulation. To date, the Commission and federal courts have relied on the ordinary
meaning of “management,” as further defined in relevant case law and NIGC bulletins, and have
avoided adopting a precise definition of the term. The Commission has done an effective job in
approaching questions of management in the past, and we believe that addressing contracts on a
case by case basis under existing regulations may be the most appropriate way to address the
issue in the future. We urge the NIGC to delay any further consideration of the definition until a
new discussion draft has been developed in consultation with tribes.

b. Sole Proprietary Interest

Like the Nation’s comments relating to the proposed definition of management, we have
serious concerns with the broad scope of the proposed sole proprietary interest regulations. As
drafted, the proposed regulation enumerates factors that are not directly related to the relevant
standard, and thus creates ambiguities that could potentially infringe on the ability of tribal
governments to engage in arm’s length transactions relating to their gaming operations. Like the
management definition discussed above, the Commission’s proposal would deviate from the
existing protocol of conducting a fact-intensive inquiry to identify violations of the sole
proprietary interest requirement.

In clarifying the factors relevant to the sole proprietary interest standard, the proposed regulation
includes factors that extend beyond the intended meaning of the standard and encompass
management functions. We believe the proper interpretation of the standard is a narrow one,
limited solely to the issue of ownership. We believe that the phrase “sole proprietary interest and
responsibility” is intended to reflect its ordinary meaning, simply ownership of the gaming
operation. The definition proposed by the Commission seems to entail activities that would fall
within management. The Commission should clearly delineate and distinguish the factors
relating to management and proprietary interest to avoid a duplicative regulatory scheme.



ECA CAYUG,

NATION

PO Box 453220, Grove OK. 74345-3220 P: 918-787-5452 F: 918-787-5521 www.sctribe.com

S

National Indian Gaming Commission
Attn: Vannice Doulou

1849 C St. NW

Mailstop #1621

Washington, DC 20240

Re: Comments on Proposed Changes to Management Contract Process and Draft
Regulations on Management and Sole Proprietary Interest Definitions

Dear Commissioners:

Please find attached the Seneca-Cayuga Nation’s comments regarding the above matter.
I would like to thank the Commission for their consideration and outreach regarding these
important matters. I respectfully urge that the Commission also provide additional time to
affected parties in order to more thoroughly address the issues discussed in the Commission’s
draft regulations.

Thank you,

William Fisher, Chief
Seneca-Cayuga Nation



COMMENTS OF THE SENECA-CAYUGA NATION
NIGC CONSULTATION TOPICS CONTAINED IN THE
DECEMBER 22, 2017 DEAR TRIBAL LEADER LETTER

The Seneca-Cayuga Nation (hereinafter “Nation”) welcomes the opportunity to provide
its comments on the regulatory proposals set forth in the National Indian Gaming Commission’s
(the “Commission”) December 22, 2017 Dear Tribal Leader Letter and corresponding discussion
drafts. This Commission’s work in outreach and consultation with tribal governments is
appreciated.

Tribal engagement is critical to ensuring that consultation is meaningful and consistent
with the special government-to-government relationship between tribal and federal governments.
Meaningful consultation must necessarily include adequate time for tribal governments to
understand and consider the implications of a proposed federal action. We are concerned that the
timeframe for consultation proposed here is insufficient to allow thoughtful well considered
tribal input into proposed regulations that will have significant impact for tribal gaming. The
Nation requests that the Commission schedule additional consultation sessions during major
Indian gaming related events, such as the National Indian Gaming Association’s upcoming
tradeshow, to maximize attendance and opportunities for tribal representatives to provide
feedback. Additionally, we respectfully request the NIGC to extend the timeframe for
consultation and corresponding comment period and, to the extent possible, schedule additional
consultations. This is especially important given the scope of the draft regulations and the far-
reaching impacts they could have on virtually all aspects of gaming operations.

I. Proposed Changes to Management Contract Process

The Nation appreciates the Commission’s attention on the important topic of
management contracting. In its December 22, 2017 Dear Tribal Leader Letter, the Commission
seeks comments on its proposal to treat any extension of a management contract beyond the
permitted five or seven years as a brand-new submission instead of an amendment pursuant to 25
CFR. Part 535. Ostensibly such an amendment will fulfill a dual purpose: first, to ensure
compliance with mandatory term limits for management contracts under IGRA, and second, to
prevent management contractors from foregoing the background investigation and suitability
requirements of 25 C.F.R. Part 537.

While we understand the Commission’s compliance concerns with respect to the term
restrictions under IGRA, we note that IGRA does not explicitly require a full review of the entire
management contract for renewals. Though IGRA requires approval of term provisions, it is
silent on the issue of whether renewals exceeding the permitted five or seven-year term should
be treated as new contract submissions or amendments. Given that no substantive revisions
would be contemplated in a merely extended agreement, we believe it would be reasonable to



interpret IGRA’s mandate as permitting the review of term extensions as a simple amendment
rather than an entirely new contract submission.

II. Audit Submissions

The Nation appreciates the Commission’s continued support of tribal economic
development and the Commission’s consideration of regulatory amendments that will reduce the
cost of regulatory compliance for small tribal gaming operations. We are appreciative of any
proposal that would reduce the auditing requirements and, ultimately, the regulatory burden and
costs associate therewith. The Commission’s actions will ensure the viability and continued
success of smaller gaming venues which serve as an important source of revenue for smaller
tribes and their surrounding communities. While the Nation largely approves of the
Commission’s efforts in this matter, we would urge that the threshold be raised from $2 million
to $4 million, allowing a greater number of tribal gaming operations to take advantage of the
reduced auditing requirements.

III. Management and Sole Proprietary Interest Regulations
a. Management

Ensuring that that a tribe has not entered into an unapproved management relationship is
one of the many important monitoring and enforcement roles of the Commission, and the Nation
believes this area of the IGRA is important to the overall integrity of Indian government gaming.
The proposed regulation changes, however, are problematic in two ways. First, the proposed
regulations fail to recognize the fact intensive analysis necessary to determine whether an
unapproved management relationship exists. Second, the proposed regulations expand the
Commission’s authority relating to tribal government gaming into the peripheral non-gaming
areas sometimes associated with gaming operations.

Determining whether an unapproved management relationship exists between a tribe and
a third-party is generally requires a fact intensive analysis. The Commission has conceded this
point during the consultation process. Notably, however, an unapproved management
relationship may, in some instances, be so obvious that the inquiry is brief. Given the foregoing,
it is incumbent upon the Commission to recognize that the Commission, nor any court, could not
come up with an exhaustive list of what constitutes management of all or part of a gaming
operation. Further, the proposed regulations provide that the Commission could potentially rely
on only one listed factor when making a determination under this provision. This is problematic

and fails to acknowledge the fact intensive analysis that will drive a Commission investigation
into such matters.

Similarly, the Commission definition of management unreasonably expands the
definition of a Gaming Operation. Gaming Operation is defined by 25 CFR §502.10 (in part) as
“each economic entity that is licensed by a tribe, operates the games, receives the revenues,
issues the prizes, and pays the expenses.” Unless the management activity takes place with
regard to all or any part of the “Gaming Operation,” there has been no violation of IGRA. Key
to that inquiry is what activity constitutes a Gaming Operation. While some of the items listed in