Rincon Band of Luiseño Indians 

1 West Tribal Road, Valley Center, CA 92082 ♦ (760) 749-1051 ♦ Fax: (760) 749-8901 

 

Bo Mazzetti Tishmall Turner Steve Stallings Laurie E. Gonzalez Alfonso Kolb Sr. 

Tribal Chairman Vice-Chairwoman Council Member Council Member Council Member 

VIA E-MAIL ONLY 

consultation@nigc.gov

February 28, 2018 

COMMENTS OF THE RINCON BAND OF LUISEÑO INDIANS 

NIGC NOTICE OF CONSULTATION 

Dear Chairman Chaudhuri: 

This letter is submitted on behalf of the Rincon Band of Luiseno Indians (Tribe), a 

federally-recognized and sovereign tribal government. The Tribe was asked to submit comments 

responsive to the NIGC notice of consultation, dated December 22, 2017, on the topics of proposed 

changes to management contracts regulations, audit submissions and sole proprietary interest 

regulations. The comments below address how the first topic harms the Tribe’s interests as a 

sovereign government seeking to protect our gaming resources for present and future uses. 

Topic 1 - Management Contract Regulations 

Beginning with the NIGC Strategic Plan 2018-2022, which presumably informs the work 

NIGC undertakes, and the correspondence circulated to tribal leaders from 2016 to present, the 

NIGC presents a series of vague and unrelated concerns about the expedited approval process 

under Part 535 to extend the term of a management agreement before it asserts that the decadeslong practice violates the IGRA. With very little information, we fail to see any connection 

between this proposal and the consultation record or the NIGC Strategic Plan. Specifically, how 

is the goal of operational excellence, to deliver solutions and services in an efficient and effective 

manner to benefit tribal stakeholders, promoted by changing a routine process in advance of 

establishing a transparent and credible basis to support the need for this change? 

Moving onto the consultation record, in its November 2016 Notice of Consultation for 

2017, NIGC identified management contract regulations and procedures as a topic for consultation 

to improve the NIGC’s efficiency in processing management agreements, including changes to the 

regulations. At this time, NIGC did not identify the IGRA term provision or its past practices of 

permitting Part 535 expedited approval process as a concern. In December 2016, NIGC began to 

elaborate on the need for improved efficiency in processing management agreements indicating 

that “there has been a significant increase in management agreement submissions” in requesting 

feedback on any recommended changes to the management contract and background investigation 

regulations. In December 2017, NIGC finally announced that the Chair may only approve a 

management contract if it does not exceed a term of 5 years, or in rare instances, 7 years – and 

warned that the Chair’s past willingness to approve extensions of the term has allowed 
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management companies to claim that the background investigations and suitability requirements 

are not applicable. This is the first and only time to our knowledge that the NIGC interpreted a 

problem that needed to be solved. This interpretation was quickly followed by NIGC’s conclusion, 

January 30, 2018, that 

“a thorough review of past practice demonstrates that parties, using Part 535’s 

expedited process, have submitted amendments to the initially approved contracts 

that materially altered terms mandated by IGRA. Specifically, parties have 

extended the term of their approved contract by an additional one to five years 

resulting in a contract that, in essence, extends beyond the explicit term limits of 

the IGRA.” 

This record substantiating the basis for these changes is devoid of any information that 

NIGC has engaged in any informal or formal analysis of the efficacy and implications of this 

proposal to tribes with management contracts. There is no evidence of empirical or anecdotal data 

to support the need for this change. Thus far, the NIGC’s record of comments and transcripts show 

that Tribal Leader feedback on this proposal has been limited to concerns over: (1) NIGC’s lack 

of transparency and unpredictability in timing of management contract approval; (2) NIGC’s delay 

in completing background investigations without firm timelines; and (3) outright objection to 

NIGC’s arbitrary changes to existing business practices. There has been no meaningful dialogue 

between the NIGC and tribal governments with management agreements who will be most affected 

by this change. The consultation record substantiating the need for this change is scant at best. 

Nevertheless, on January 30, 2018, the NIGC published its conclusion that consecutive 

amendments to management agreements, using the Part 535 process, violate the term provision of 

the IGRA. 

The Tribe views this proposal as an abrupt, arbitrary and incorrect interpretation of the 

IGRA that will surely injure the Tribe’s interests without helpful information from the NIGC 

regarding the underlying need to overhaul the management agreement amendment process under 

Part 535. There is no clear relationship between this proposal and the NIGC Strategic Plan, or 

evidence of meaningful consultation with the Tribe that makes this proposal the logical solution 

in the best interests of the Tribe. Given the consultation record, we do not understand how the 

elimination of a decades-long, routine business practice of the NIGC to permit extensions of 

management agreement terms under Part 535 is in the best interest of the Tribe, and the trust 

responsibility. 

In our opinion, this proposal is not legally required by the IGRA and may be a misguided 

paternalistic approach that, if adopted, will certainly expose the Tribe to greater economic burdens, 

uncertainty and risk in its business dealings with its management company and the NIGC. 

Congress established term limits out of concern that some management contracts in existence 

before the IGRA was enacted were clearly unconscionable. Sen. Rep. 100-466, p.15. The IGRA 

and its legislative history lack any suggestion that Congress intended to prohibit a mutuallybeneficial managerial relationships from continuing beyond a five-year term. More importantly, 

Congress assured tribes that IGRA would “not be construed, either inside or outside the field of 
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gaming, as a derogation of the tribes’ right to govern themselves and to attain economic selfsufficiency” and that the statute would always be construed in the tribes’ best interests. S. Rep. 

No 100-446, at 36 (statement of Sen. Evans); Rincon Band of Luiseño Mission Indians of Rincon 

Reservation v. Schwarzenegger, 602 F.3d 1019, 1027 (9th Cir. 2010). 

Until now, the NIGC has recognized and deferred to the independent judgment of the Tribe 

to determine their business partners, the conditions and duration of their relationship. The IGRA 

gives sovereign tribal governments the right to determine whether to continue a managerial 

relationship or change direction, if it so chooses, provided that the Tribe is not bound to a manager 

beyond a five-year period without special circumstances -- and in that case, no more than seven. 

This change would impose greater costs on the Tribe, and increase risk and uncertainty in its 

business dealings with third parties. If approved, what was previously a low-cost two-page 

amendment to extend the term and maintain a five-year relationship under Part 535 will now 

become a voluminous new contract. There will undoubtedly be unintended consequences for the 

Tribe if it exercises its option to maintain a mutually beneficial relationship beyond a five-year 

term. First, eliminating amendments to extend the term under Part 535 will mean that all 

previously negotiated and approved provisions may be subject to renegotiation and approval even 

if the only changed provision of the new contract is the term. The NIGC may approve certain 

provisions at one point in time but is under no obligation to subsequently re-approve an unchanged 

provision at a later date. This same uncertainty and risk will exist in the Tribe’s dealings with its 

business partner. Previously negotiated provisions may be subject to renegotiation – everything 

is on the table, again. Second, if this proposal is approved, it will be very difficult for the Tribe to 

protect its interests in the uninterrupted continuity of its gaming operations when it seeks NIGC 

approval of a new contract under Part 531, specifically, the segue and timing of NIGC approval of 

a new contract at the end of the existing term of the agreement. The consultation record and 

proposed change do not discuss or answer these concerns. 

The only part of this proposal that the Tribe agrees with is streamlining of background 

investigations and suitability determinations. The NIGC has not established a practical or legal 

basis for its assertion that the Tribe has submitted amendments to its initially approved contract 

that materially altered terms mandated by IGRA, resulting in a contract that extends beyond the 

explicit term limits of the IGRA. The Tribe strongly disagrees with this statement. At no time, 

ever, has the Tribe’s management agreement violated the term limits of the IGRA. If the NIGC’s 

past willingness to approve extensions of the term allows management companies to claim that 

background investigations and suitability requirements are not applicable, then propose a solution 

to that but also adhere to the trust responsibility and the statutory duty to protect the Tribe’s rights 

to maintain a mutually-beneficial management relationship without the added uncertainty and risk 

we have noted. Our response to the NIGC’s concern over a significant uptick in management 

agreement submissions is to request that the NIGC propose solutions that deliver efficient and 

effective services that benefit tribal stakeholders by improving routine processes and increasing 
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transparency and accountability – consistent with its Strategic Plan. The elimination of a decadeslong routine past practice under Part 535 is not in the best interest of the Tribe and will definitely 

injure our interests in Rincon gaming resources for this and future generations. 

Executive Order 13175 mandates meaningful consultation of proposed regulations “that have 

substantial direct effects on one or more tribes, on the relationship between the United States and 

Indian tribes, or on the distribution of power and responsibilities between the United States and 

Indian tribes.” Implementation of this proposal without further consultation implicates all three 

concerns of the Executive Order. The NIGC’s interpretation with regard to the expedited approval 

process under Part 535 negatively impacts tribal sovereignty by changing a practice that has 

existed for years and ignores the congressional assurance that the IGRA would always be 

construed in the best interest of tribes. Finally, without an opportunity for further consultation, 

this proposal could be viewed as a unilateral decision that redistributes the balance of power 

between tribes and the United States through the diminishment of federal protections previously 

afforded to our tribal gaming resources. 

Given the extreme and negative implications that this proposal would have on the Tribe, we 

request that the NIGC postpone any decision on this proposal until such time as the Tribe, and all 

other similarly situated who would be affected by this change, have a formal government-togovernment consultation on this specific topic. Asking the Tribe to provide written comments to 

the NIGC’s ever-changing rationale supportive of this proposal cannot replace meaningful 

consultation. We look forward to hearing from the NIGC to schedule our consultation. 

Respectfully submitted,

RINCON BAND OF LUISEÑO INDIANS

Bo Mazzetti

Tribal Chairman