which was published in the Federal Register in 2004.3 However, in reviewing the exemption
and considering the stated justifications, new questions come to mind as to the purpose and
benefits of exempting these important personal information records.

We believe further consultation on this matter is warranted here to help us better understand the
exemptions and determine whether they are consistent with the letter and spirit of the Privacy
Act. We, therefore, reserve the opportunity to provide further comments until we have received
more information on the need and effects of these proposed amendments.

kkk

In closing, the Nation would like to reiterate its appreciation for the opportunity to review and
provide comments on the proposals outlined in the February 26, 2015 Notice of Consultation.
The Nation is encouraged by the NIGC’s early outreach efforts and looks forward to working
closely with the NIGC on a government-to-government basis in this important endeavor.

3.69 Fed. Reg. 12,182 (March 15, 2004).


must arise between members of the scientific community who have the expertise to fully
understand the environmental effects of a proposed action. This definition should not be
triggered for disputes in the general public that are otherwise without merit in the scientific
community.

Our interpretation of “controversial” is in fact supported by federal case law. Federal courts
often rely on scientific experts in related fields to determine whether a “substantial dispute”
exists for NEPA purposes. In Sierra Club v. United States Forest Service, the Ninth Circuit
Court of Appeals considered the meaning of “controversy” in the NEPA context, and explained
that a “substantial dispute” requires evidence from numerous experts in fields relevant to the
dispute at hand.! In Foundation for North American Wild Sheep v. U.S. Department of
Agriculture, the same court considered critical responses from biologists and conservationists on
the impact of a proposed action’s effect on bighorn sheep populations to be “controversial.””

Finally, we wish to comment on a possible misstatement regarding NEPA’s applicability to
NIGC actions. Section 1.5 of the proposed manual states that NEPA will apply to actions
“where the NIGC has sufficient control and responsibility to condition approvals of a non-federal
entity.” However, under IGRA, the NIGC does not necessarily have the authority to approve the
entities involved in a management contract. The statement should therefore be amended to
clarify the proper scope and extent of the NIGC’s approval authority.

III. BUY INDIAN ACT

The Nation supports the NIGC’s proposal to implement a Buy Indian preference pursuant to its
general contracting authority under 25 U.S.C. § 2706(b)(6), (b)(7). Although the practice of
“buy Indian” may be generally encouraged, it is currently not a mandatory practice. Once
finalized, this proposed Buy Indian policy will mandate agency-wide, uniform procedures for
encouraging procurement relationships with eligible tribal businesses. In doing so, this policy
will have a positive impact on the federal-tribal contracting industry and on tribal economic
development more broadly.

IV. PART 515 (PRIVACY ACT) DISCUSSION DRAFT

The Privacy Act of 1974 regulates how federal agencies must maintain, use, and disseminate
covered records. As relevant here, the Act prohibits an agency from disclosing an individual’s
records absent express written consent, unless the disclosure falls within one of the Act’s twelve
exemptions, including if the records consist of investigatory material compiled for law
enforcement purposes or for the purpose of determining suitability for Federal civil employment
of Federal contracts.

As part of the NIGC’s amendments, the NIGC is proposing to update its Privacy Act procedures
in 25 C.F.R. Part 515 and add a new exemption for the Management Contract Individuals
Records System. We understand that this proposed exemption is not necessarily “new” but
simply a codification of an existing policy published in the Notice of a New System of Records,

1 843 F.2d 1190, 1192 (9th Cir, 1988).
? 681 F.2d 1172, 1182 (9th Cir, 1982).


OFFICE OF THE GOVERNOR
The Chickasaw Nation
Post Office Box 1548 ¢ Ada, Oklahoma 74821
(580) 436-2603 © Fax (580) 436-4287

BILL ANOATUBBY http://www.chickasaw.net
GOVERNOR

June 19, 2015

Mr. Jonodev O. Chaudhuri, Chairman
1849 C Street NW

Mail Stop #1621

Washington, DC 20240

Dear Chairman Chaudhuri:

We are pleased to submit the enclosed comments in response to the National
Indian Gaming Commission’s (“NIGC”) Notice of Consultation dated February 26, 2015
(“Notice”). Our enclosed comments address the following topics identified in the Notice:
(1) proposed Class III MICS guidance; (2) proposed NEPA manual; (3) proposed Buy
Indian Goods and Services regulation; and (4) Discussion Draft of Privacy Act
regulations.

The Chickasaw Nation commends the NIGC for reaching out to tribal
governments early and prior to the commencement of any formal rulemaking activities.
We respectfully seek your favorable consideration of the enclosed comments and look
forward to continued cooperation and coordination in the spirit of the government-to-
government relationship and in accordance with federal law and policy.

If you have any questions, please contact Mr. Matthew Morgan, director of
gaming affairs, at (580) 272-7070.
Sincerely,
Bill Anoatubby, Governor
The Chickasaw Nation

Enclosure


COMMENTS OF THE CHICKASAW NATION ON THE
NATIONAL INDIAN GAMING COMMISSION’S FEBRUARY 26, 2015
NOTICE OF CONSULTATION

The Chickasaw Nation (“Nation”) appreciates the opportunity to comment on the rulemaking
proposals set forth in the National Indian Gaming Commission’s (“NIGC”) Notice of
Consultation, which was issued to tribal leaders on February 26, 2015. The Nation welcomes the
NIGC’s decision to circulate these proposals for comment before undertaking any official
rulemaking activity. Early tribal involvement is a key step towards developing policies and
regulations that are reflective of tribal concerns and advance the interests of tribal governments.
It is also critical to ensuring that the consultation process is meaningful and consistent with the
special government-to-government relationship between tribal and federal governments.

The Nation encourages the NIGC to continue these important outreach efforts and respectfully
requests favorable consideration of our comments below, which address the topics outlined in the
February 26, 2015 Notice of Consultation in the following order: (1) Class III MICS guidance;
(2) proposed NEPA manual; (3) Buy Indian Act; and (4) Discussion Draft of Privacy Act.

I. CLASS Il MICS GUIDANCE

The NIGC is considering a proposal to withdraw 25 C.F.R. Part 542 regulations and to develop
in their place non-mandatory Class III Minimum Internal Control Standards (“MICS”) guidance.
The Chickasaw Nation understands this proposal is driven by, both, NIGC recognition that it
lacks legal authority to enforce such regulations and the agency’s receipt of requests from tribal
governments for assistance in establishing tribal internal control standards (“TICS”). We applaud
the NIGC for seeking tribal input during the initial planning stages of this proposal as well as the
NIGC’s recognition of its Class II oversight authority under the Indian Gaming Regulatory Act.
By focusing in on the issues early in this consultation process, we can work together to the best
available approach.

However it may proceed, the NIGC must not disrupt any existing state-tribal gaming compacts.
Part 5 of state-tribal gaming compacts in Oklahoma, for example, require tribal gaming
enterprises to promulgate and “comply with [TICS] that provide a level of control that equals or
exceeds those set forth in the [NIGC’s MICS] (25 C.F.R., Part 542),” and given such reference,
some might argue that withdrawal of the Part 542 regulations would create a regulatory “void.”
While such argument would be unfounded since the referenced provision serves only to isolate
and memorialize a reference standard for purposes of tribal regulation, the fact that NIGC action
could be construed as creating such problem requires the agency to act with deliberate caution.

For our part, the Chickasaw Nation will continue to operate and regulate its compacted gaming
under TICS that meet or exceed the Part 542 MICS in place when we entered our compact with
Oklahoma; it is our position that doing so would be our compact obligation regardless of what
action the NIGC may take. For its part, we call on the NIGC to take pains to ensure that nothing
it might do could serve as grounds for disrupting current state-tribal compact relations. The

1


NIGC could accomplish that end by specifying any withdrawal shall not be construed as
relieving any tribe of complying with compact terms referencing or integrating the Part 542
MICS. It could also accomplish such end by not performing any withdrawal of regulations until
replacement guidance has been promulgated. We would be glad to consult further as to how best
this might be accomplished, but as a threshold matter, the agency must ensure that it causes no
disruptions through any action it might take.

II. PROPOSED NEPA MANUAL

The NIGC has published a proposed NEPA policies and procedures manual, which clarifies,
among other things, the appropriate level of environmental review for management contract
related activities. The proposed manual is a revised version of an earlier draft that was published
for public comment in December 2009 (“2009 Draft”).

In comparison to the 2009 Draft, we find that the current version is simpler, easier to follow, and
more consistent with the limited responsibilities arising under NEPA. We appreciate and support
the NIGC’s efforts to scale back its NEPA-related responsibilities, particularly in relation to
approvals of management contracts. We believe these changes will provide greater clarity and
certainty in the implementation of the NIGC’s NEPA responsibilities.

We are also encouraged by the apparent shift in policy regarding the extent of NEPA compliance
for management contract related activities. The proposed manual now includes a broad
categorical exclusion for al] management contract approvals, regardless of the nature and scope
of the underlying activity. This is a marked improvement from the 2009 Draft, which limited the
scope of the categorical exclusion to include only those management contracts that did not
involve physical construction or plans to increase patronage.

We believe, however, that the better approach would be to completely exempt management
contract approvals from NEPA compliance. Under IGRA, the NIGC’s approval authority over
management contracts is rather limited in scope and does not involve any direct control or
supervision over the development of a gaming facility. Moreover, nothing in IGRA contemplates
any meaningful influence by the NIGC over the environmental considerations of a gaming
project.

Given the NIGC’s limited role in management contract related activities, we have serious doubts
as to whether such activities rise to the level of a major federal action requiring NEPA
compliance. Nevertheless, we view the NIGC’s approach in the proposed manual as an
acceptable compromise and a positive development that will provide greater clarity to the overall
NEPA process.

In addition to the foregoing, we also have more specific and technical concerns with the
proposed NEPA manual. First, we believe the definition of “Controversial” could be improved
by further narrowing the circumstances which would fall within this definition. As drafted, the
definition requires that a “substantial dispute exist[] as to the environmental consequences.”
While we agree that a substantial dispute must be present, it should be clarified that the dispute