In conclusion, the QTGA would like to reiterate its appreciation for the opportunity to provide
comments on the NIGC’s draft Consultation Policy. The QTGA is encouraged by the NIGC’s
efforts to work with tribes in developing a mutually beneficial framework for tribal consultation
and looks forward to working with the NIGC on a government-to-government basis in this
important endeavor.

Sincerely,

Barbara Collier
Executive Director, Quapaw Tribal Gaming Agency



Quapew Tribal Gaming Agency
P. O. Box 405

Quepaw, Oklahoma 74363
218-272-6020

May 31, 2011

Ms. Tracie Stevens, Chairwoman
National Indian Gaming Commission
1441 L Street N.W., Suite 9100
Washington, D.C. 20005

Re: Comments on Draft NIGC Consultation Policy
Dear Chairwoman Stevens:

The Quapaw Tribal Gaming Agency (“QTGA”) would like to commend the National Indian
Gaming Commission (“NIGC”) for its efforts to develop a more comprehensive approach to
consultation and improve the process by which tribal officials are consulted on matters affecting
the regulation of tribal gaming. We are pleased by the new direction the NIGC is taking with
respect to consultation. The QTGA has always advocated a strong, collaborative relationship
with the NIGC based on clear principles, candid communication, and intergovernmental
cooperation; the NIGC’s draft Consultation Policy (“Policy”) brings that goal one step closer.

We strongly support the NIGC’s commitment to a meaningful government-to-government
relationship and the inclusion of foundational principles of tribal sovereignty and self-
governance. We believe that the NIGC’s commitment to such principles is vital to the efficacy
and legitimacy of this Policy and that the consultation process as outlined in this Policy will
foster a more open and mutually beneficial consultation policy.

Pursuant to the March 8, 2011, letter to Tribal Leaders, the QTGA would like to submit the
following comments on the draft Consultation Policy using the same section numbers as the draft
Policy for ease of reference:

Section II: Definitions

e ILE Tribal Official: We commend the NIGC for its inclusion of authorized intertribal
organizations in its definition of the term “Tribal Official.” Such organizations play a
key role in fostering cooperative relationships among different groups involved in tribal
gaming. For purposes of consultation, however, an authorized representative typically
serves as the representative of the collective positions of the organization members. As
such, the QTGA suggests that the definition be amended to clarify that a “duly
authorized representative of an authorized intertribal organization” constitutes a “Tribal
Official.”

Section II: Consultation General Principles


IILF: The QTGA suggests amending this section’s language by adding that the NIGC,
when possible, will “defer to Tribes to establish their own standards fo the fullest extent
possible.” Many tribal governments with gaming operations have already adopted a
system of internal controls and standards which the NIGC should consider when
developing a proposed action. We believe such deference to tribes in their operating and
regulatory capacities would be consistent with the purpose of the IGRA and the
principles contained in this Policy. Especially in the context of rulemaking, deference
should be accorded to tribally established regulations and standards so long as they are
within the parameters of IGRA and address policy concerns regarding Indian gaming.
Such deference will help eliminate unnecessary or redundant federal regulation, conserve
limited tribal resources, and promote strong tribal government and self-determination.

Section IV: Consultation Guidance

IV.A Early Tribal Involvement: The QTGA strongly agrees with the NIGC’s view that
tribal consultation must happen early and often. To that end, the QTGA recommends
adding language clarifying that the NIGC will not only “include Tribes in the
conversation before it takes an Action,” but will seek the tribes’ participation in the
NIGC’s deliberative process when making decisions about the necessity of a proposed
Action. We believe tribal input at this early stage is valuable because it can assist the
NIGC in deciding whether the “conversation” about a proposed Action is even necessary
in the first place and help identify and articulate a problem or issue and the need for
action or decision. If tribal input is overwhelmingly in favor of abandoning a particular
action or decision, the NIGC should consider alternative approaches.

IV. C Adequate Notice: This Section sets forth the contents of a notice of consultation
but does not include any language as to the recipients of such notices. We are aware that
a tribe’s official representative of record is designated as the official point of contact with
the NIGC; it is not, however, always clear whether other entities with direct involvement
in tribal gaming will receive these notices. The QTGA recommends amending this
section to include language indicating that, to the extent possible, the NIGC will make
attempts to provide notice to tribal gaming commissions, business enterprises or boards
in charge of operations, and intertribal organizations.

IV.G Consultation Structure: The structure of consultation should not only reflect the
government-to-government relationship between tribes and the NIGC, but also account
for tribes’ differing priorities, which may vary depending on the nature, scope, and
location of their gaming operations. Since certain actions will affect some tribes more
than others, the NIGC should take into consideration such differences when preparing
seating arrangements, the agenda, and opportunities for dialogue.

Section V: The Consultation Process

V.A Identifying Consultation Issues: As indicated above, we encourage the NIGC to
initiate the consultation process as soon as an issue is identified, and to solicit tribal input
in assessing the underlying matters. We agree with the NIGC that the process should
begin at this important stage of identifying consultation issues, as tribal involvement in
the early deliberative stages may help reveal different alternatives and viewpoints that the
NIGC would otherwise not be privy to. Along those lines, we recommend adding



language that will allow for stronger, more robust tribal involvement in this early stage of
the process. This stage of the process should include the following steps: (1)
identification of the problem that is to be addressed; (2) tribal involvement in evaluating
the necessity of regulatory action; and (3) consideration of non-regulatory approaches if
the NIGC concludes that action is necessary. These steps, particularly the consideration
of non-regulatory approaches, are important and should be incorporated into this section.

V.B Early Consultation on Possible NIGC Action: As previously discussed, we believe
early consultation should begin with the first step involving the identification of
consultation issues. The NIGC may want to consider combining the first two stages into
one titled “Early Consultation on Identifying Consultation Issues and Planning NIGC
Actions.” Such a change will make clear that tribes will be consulted during the initial
planning stages and at all points leading up to the development of a proposed action.

V.C Initiating Consultation: The second paragraph states that “a Tribe may request
consultation with the NIGC” and that the NIGC will respond to requests for consultation
“received from a Tribe or Tribal Official.” For consistency purposes, we recommend
amending this section as follows: “a Tribe or Tribal Official may request consultation.”
If requests can be made by Tribes and Tribal Officials, then Tribes and Tribal Officials
should be allowed to request for consultation.

V.D Pre-Consultation Event Planning: The timeline for consultation should consider
input from not only tribes, but also experts and tribal advisory groups. If the Action
involves an issue or matter that can benefit from outside expertise, the timeline should
take that into account. This is especially important in the rulemaking context, where
input from experienced and knowledgeable regulators, operators, auditors, and
accountants with first-hand experience in the day-to-day operations and regulation of
gaming can be beneficial in improving the content of the rule.

Section VII: Communication, Coordination and Collaboration

We are encouraged by the NIGC’s commitment to increasing the level of collaboration
between the NIGC and tribe and improving the communications process through which
information and viewpoints are exchanged. We would, however, like to offer a minor
suggestion for improving this Section. During the consultation process, time should be
set aside by the NIGC to consider how well the process is working, whether the process
and results to date adhere to the principles and guidance in the Policy, and how the
process can be improved going forward. Reflection on the process, both during and after
consultation, is critical to identifying the need for adjustments in the manner, timing, and
scope of consultation. The current draft Policy provides that the NIGC will “routinely
solicit Tribes’ evaluation of specific consultation events and consultation practices
generally,” but does not provide sufficient guidance as to the timing of such solicitation.
While the Policy does address consultation follow-up in Section V.F, the NIGC might
consider specifying that tribal evaluations will be solicited both immediately after a
consultation event and when the Action or decision has been finalized. Soliciting input
after a final decision or action has been made would also be mutually beneficial in
allowing tribes to communicate a retrospective analysis as to how well the process
worked, whether the process comported with the principles and guidelines in the Policy,
and how future consultations could be improved.