1

2 * * * * *

3 NATIONAL INDIAN GAMING COMMISSION

 CONSULTATION

4 TAKEN ON APRIL 30, 2015, BEGINNING AT 2:00 P.M.

 IN SHAWNEE, OKLAHOMA

5

 * * * * *

6

7

8

9

10

11 NIGC STAFF

12 Chairman - Jonodev Chaudhuri

 General Counsel - Eric Shepard

13 Associate General Counsel - John Hay

 Acting Chief of Staff - Christina Thomas

14 Director of Compliance - Doug Hatfield

 Office of General Counsel - Armando Acosta

15 OKC Region Director - Tom Cunningham

 Compliance Officer - Tony Wheeler

16 Tulsa Region - Christie Jamison

 Tulsa Region director - Tim Harper

17

18

19

20

21

22

23

24

25 Reported by: Cheryl D. Glenn, CSR, RPR

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1 PROCEEDINGS

2 MR. JONODEV CHAUDHURI: I see that it's

3 about that time, so we'll go ahead and get started.

4 I first wanted to start off with a general welcome to

5 everyone who has taken time out of their schedules to

6 be here today to engage in this dialog. We look

7 forward to productive open dialog in the spirit of

8 strong communication.

9 Before we begin, though, in keeping with our

10 own practice of NIGC, in terms of how we run our

11 consultations, we'd like to open with a blessing.

12 And it is my understanding that a representative of

13 the Seminole Nation is here to provide us with a --

14 share a blessing with us today, Mr. Willis

15 Deatherage. We're very honored that he's agreed to

16 -- to provide that.

17 So, with that...

18 MR. WILLIS DEATHERAGE: Our Heavenly

19 Father, we thank you God for this day. We thank you,

20 Father, for the things that you do for us. And I'd

21 just pray, God, that you would be with us. I'd ask

22 you, Father, to -- to give a spirit of wisdom, of

23 patience, of understanding. I thank you, Father, for

24 the NIGC. I thank you, Father, for every tribal

25 nation that is represented here today. And I just --

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1 I just ask you, God, to continue to -- to bless each

2 nation. All these things I ask in your name. Amen.

3 (As a group, "Amen".)

4 MR. JONODEV CHAUDHURI: So, I'm very

5 honored to be here today. My name is Jonodev

6 Chaudhuri and I'm Chairman of -- of the NIGC. It

7 does feel good to say that as many of you know I was

8 recently confirmed after a long, long confirmation

9 period. And that confirmation I credit to the

10 support from Indian country and much of that support

11 coming from Oklahoma tribes. So, many thank yous,

12 many -- many -- many mados (phonetic) for -- for that

13 support.

14 My fellow commissioner, Commissioner Dan

15 Little, is un -- unable to be here today. He sends

16 his regards. And only scheduling conflicts and other

17 considerations prevented him from being here today.

18 But he's been an active team member each step of the

19 way. He will actively be part of the discussion

20 process that will flow from this and all the other

21 consultations.

22 So, we're here today to -- to engage in a

23 formal consultation between the NIGC and Indian

24 country, tribes and tribal regulators. We'll talk

25 about the format in a moment, but in keeping with our

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1 practice in consultations, we'll start off with some

2 introductions. We -- we have a full house here today

3 and we're scheduled to go from 2:00 to 4:00. The

4 purpose of these consultations is really meaningful

5 dialog, so we want to do our best to get comments

6 from everybody, comments, questions, discussion from

7 everybody who wishes to share their perspective

8 today. And so, we would ask, in -- in respect for

9 everyone's time, to the extent possible, if we could

10 limit our comments given the number of folks here

11 today to -- to two minutes or less. However, that,

12 by no means, is a hard-and-fast rule. Nobody is

13 going to be sitting around with a stopwatch. The

14 important part is to make sure everybody has an

15 opportunity to share -- share their perspective.

16 Beyond today and beyond today's opportunity to -- to

17 get verbal comments on the record, there is a written

18 comment period -- there is an opportunity to provide

19 written comments as well as provide comments at other

20 consultations, and so, I would encourage anybody who

21 wishes to submit written comments to do so. We have

22 an internal timeframe for receipt of those comments

23 that I believe our regional director will discuss in

24 more detail.

25 But let's move forward with some

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1 introductions just for the purpose of -- of clarity.

2 I think we'll begin with our NIGC team here today,

3 and there are quite a few of us. I want to give

4 thanks to -- to our team here for putting this

5 consultation together, and it's an excellent format.

6 But we'll start with headquarters staff introducing

7 themselves and then move to -- to our representatives

8 from the regions.

9 So, with that...

10 MS. CHRISTINA THOMAS: Good afternoon. My

11 name is Christina Thomas. I'm the acting chief of

12 staff with the NIGC. I'm also a tribal member with

13 the Mille Lacs Band of Ojibwe out of Minnesota.

14 MR. DOUG HATFIELD: Doug Hatfield, director

15 -- Doug Hatfield, director of compliance, Cherokee

16 citizen, OCO.

17 MR. JONODEV CHAUDHURI: He's got a deep

18 thundering voice.

19 MR. ARMANDO ACOSTA: My name is Armando

20 Acosta. I am a senior attorney with the Office of

21 General Counsel in D.C.

22 MR. TOM CUNNINGHAM: My name is Tom

23 Cunningham. I'm a member of the Seminole Nation.

24 I'm the regional director for the Oklahoma City

25 Office of the NIGC. And then also with me from my

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1 office is Tony Wheeler, compliance officer. And we

2 have Christie Jamison outside with the Tulsa region

3 office.

4 MR. ERIC SHEPARD: Hi. I'm Eric Shepard.

5 I'm the General Counsel for the NIGC.

6 MR. JOHN HAY: I'm John Hay, I'm THE

7 Associate General Counsel for the NIGC.

8 MR. TIM HARPER: I don't have a microphone,

9 but I'm Tim Harper with the -- I'm the region

10 director for the Tulsa office.

11 MR. JONODEV CHAUDHURI: Thank you.

12 If we could move forward with introductions

13 from -- from all of you, that -- that would be

14 appreciated. We'll just go very quickly and just

15 state our names and our affiliations. But, before we

16 jump into to, I do want to give thanks to Citizen

17 Potawatomi for allowing -- allowing us into their

18 territory to hold today's con -- consultation. So,

19 if we can just pass the mic -- microphone around,

20 we'll just go in a circle and please state name and

21 affiliation and we'll move forward from there.

22 MR. WILLIS DEATHERAGE: My name is Willis

23 Deatherage with the Seminole Nation of Oklahoma.

24 MS. SARAH ANDERSON: Sarah Anderson with

25 the Seminole Nation Gaming of Oklahoma.

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1 MR. ORIAN HOLDER: Orian Holder, Delaware

2 Nation committee member.

3 MR. TERRY WILLIAMS: Terry Williams,

4 Delaware Nation committee member.

5 MS. ANN BROWER: Ann Brower, Delaware

6 Nation.

7 MS. KAY BUSBY: I'm Kay Busby. I'm the

8 executive director of the gaming commission for

9 Delaware Nation.

10 MR. ROCKY BARRETT: I'm Rocky Barrett. I'm

11 tribal chairman of the Citizen Potawatomi Nation. I

12 want to welcome all of you here, and if there's

13 anything I can do to make your stay more comfortable

14 or profitable, I will be glad to do that.

15 MS. LESLIE TANYAN: Leslie Tanyan with

16 Absentee Shawnee Gaming Commission, executive

17 director.

18 MS. EDWINA WOLFE: Edwina Wolfe, governor

19 of the Absentee Shawnee Tribe.

20 MS. ELAINE DALEY (phonetic) HUCH: Elaine

21 Daley Huch, Kaw Nation chair.

22 MR. JAMIE HUMMINGBIRD: Jamie Hummingbird,

23 director of the gaming commission for Cherokee

24 Nation.

25 MS. BARBARA COLLIER: Barbara Collier,

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1 director of the Quapaw Tribal Gaming Agency for the

2 Quapaw tribe.

3 UNIDENTIFIED SPEAKER: Hi. I'm Conner

4 Elizabeth (inaudible). I'm a member of the Osage

5 Nation of Oklahoma and an attorney in private

6 practice.

7 MS. KELLI MOSTELLER: Kelli Mosteller. I

8 am a -- commissioner of the Citizen Potawatomi Gaming

9 Commission.

10 MR. DANIEL LECLAIRE: Daniel LeClaire,

11 executive director, Citizen Potawatomi.

12 MS. BONNIE STEPHENSON: Bonnie Stephenson

13 with the Delaware Gaming Commission.

14 MS. TERRI PARTON: Terri Parton, president

15 for the Wichita & Affiliated Tribes.

16 MR. WILLIAM NORMAN: William Norman, an

17 attorney with Hobbs, Straus, Dean & Walker.

18 UNIDENTIFIED SPEAKER: Kirk (phonetic).

19 I'm with Hobbs Straus also.

20 MR. KEN BLANCHARD: Ken Blanchard, trial

21 representative for the Absentee Shawnee Tribe.

22 MS. COURTNEY JORDAN: Courtney Jordan,

23 attorney -- or attorney with Crowe & Dunlevy here in

24 Oklahoma City.

25 MS. BARBARA CANARD-WELBOURN: Barbara

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1 Canard-Welbourn, Thlopthlocco Tribal Town business

2 committee member.

3 MR. MATTHEW MORGAN: Matthew Morgan,

4 director of gaming affairs, Chickasaw Nation.

5 UNIDENTIFIED SPEAKER: Tracy (phonetic),

6 tribal town advisor.

7 MS. SANDRA WILSON: Sandra Wilson,

8 chairperson, Wichita Gaming Commission.

9 MS. LISA DAWSEY: Lisa Dawsey, executive

10 director of Comanche Nation Gaming Commission.

11 MS. SHANNON WILMETH: Shannon Wilmeth,

12 director of compliance, Comanche Nation Gaming

13 Commission.

14 MS. PAULA PENZ: Paula Penz, Choctaw Nation

15 Gaming Commissioner.

16 MR. KYLE NORMAN: Kyle Norman, Choctaw

17 Gaming Commission.

18 MS. JODY NELSON: Jody Nelson, internal

19 audit manager of the gaming commission for Choctaw

20 Nation.

21 MR. JARED EASTERLING: Jared Easterling.

22 I'm an attorney with the Green Law firm.

23 MS. NANCY GREEN: Nancy Green, Green Law

24 Firm.

25 MS. RAMONA DAVIS: Ramona Davis, Comanche

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1 Nation Enterprise.

2 MR. DOUG SPORES: Doug Spores, Fort Sill

3 Gaming Apache Gaming Commission.

4 MR. GARY TOMAHSAH: Gary Tomahsah, Fort

5 Sill Apache Gaming Commission.

6 MR. JIM JOHNSON: Jim Johnson, director

7 Fort Sill Apache Gaming Commission.

8 MS. MURIEL WHEELER: Muriel Wheeler,

9 director, Sac & Fox Nation Gaming Commission.

10 MR. DOUG SMITH: Doug Smith, Sac & Fox

11 Nation Gaming Commission.

12 MS. KIM PEARSE: Kim Pearse, internal

13 auditor, Sac & Fox Nation Gaming Commission.

14 MR. RODNEY CASTEEL: Rodney Casteel,

15 manager, Sac & Fox Nation Gaming Commission.

16 MR. KYLE CODY: Kyle Cody. I'm Sac & Fox

17 Nation Compliance.

18 MS. LORENA WOOD: Lorena Wood, Sac & Fox

19 gaming commission.

20 MR. BILLY BEMO: Billy Bemo, compliance

21 officer, Sac & Fox gaming commission.

22 MR. ED MAGDALENO: Ed Magdaleno, Sycuan

23 Gaming Commission.

24 MS. KELLY MYERS: Kelly Myers, Cherokee

25 Nation Gaming Commission.

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1 MS. LARAYNE SCHULTZ: Larayne Schultz, Sac

2 & Fox Nation Gaming Commission.

3 MR. BUDDY YORK: Buddy York, Muskogee Creek

4 Gaming Commissioner.

5 MR. JEFF HITCHCOCK: Jeff Hitchcock,

6 Wyandotte Nation Gaming Commission.

7 MS. GENEVA FLETCHER: Geneva Fletcher,

8 Seneca-Cayuga Nation Gaming Commissioner.

9 MS. SARAH CHANNING: Sarah Channing,

10 secretary-treasurer, Seneca-Cayuga Nation.

11 MR. CALVIN CASSADY: Calvin Cassady, tribal

12 counsel for Seneca-Cayuga Nation.

13 MR. JONODEV CHAUDHURI: I think we got

14 everyone. Thank you for that exercise. It's always

15 good to, you know, know ourselves when -- when we --

16 when we talk.

17 I do also want to recognize, beyond

18 introduction -- that initial introduction,

19 distinguished NIGC alumnus, Liz Homer, served as --

20 as vice -- right? As vice chair for quite some time

21 on the NIGC. And so, it's always good to see a

22 fellow NIGC face.

23 So, let me talk a little bit about the

24 purpose of today's consultation before moving forward

25 with -- with the topic -- well, with the four topics,

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1 actually.

2 Our consultation policy flows from executive

3 order 13175 which was an executive order issued by

4 the Obama -- Obama administration focusing on

5 targeted meaningful consultation with -- with Indian

6 tribes.

7 We are of the mindset, from top to bottom, at

8 the agency that not only is it important to honor

9 that executive order and the larger policy push

10 toward consultation, it's also good policy to do so,

11 meaning it's just more efficient, more practical to

12 engage in cooperative dialog before putting pen to

13 paper on anything. And that's what we're doing here

14 today.

15 So, we see the consultation process, the

16 communication process, the dialog process as an

17 integral part of our operations as an agency. So,

18 with -- in that light, I -- I want to express my

19 deepest thanks for you taking time to -- to be here

20 today.

21 We will move forward with some housekeeping

22 matters at this time, but I'll -- I'll provide some

23 additional followup before moving forward with --

24 with additional statements. So...

25 MR. TOM CUNNINGHAM: Thank you, Chairman.

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1 Again, the consultation is scheduled to go

2 from 2:00 to 4:00 p.m.; however, we may end early if

3 all the topics are covered and there are no

4 additional comments from the tribes.

5 The meeting will be transcribed, so when

6 speaking, please speak clearly and also state your

7 name before you make any statements and give us the

8 opportunity to get the microphone to you by raising

9 your hand if you have a comment.

10 Also, this -- as the Chairman noted, this is

11 an official government consultation between the

12 United States government and the designees from each

13 tribal government. It is not open to the public and

14 is not open to media, so, if there are any non-tribal

15 representatives or media, we would ask you to leave

16 at this time.

17 Also, coming up May 20th, at Prior Lake

18 Minnesota, we will have our third consultation. And

19 the comment period ends for written comments

20 June 22nd, 2015.

21 Thank you.

22 MR. JONODEV CHAUDHURI: Thank you, Tom.

23 So, we'll move forward now with introducing

24 the topics, but we also recognize that especially at

25 the end of a long training, and I'm very excited

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1 about the training we just put on -- put on here,

2 many of you may have travel arrangements you need to

3 attend to. We want to be sensitive to that. If

4 anybody has prepared a statement that they absolutely

5 need to present at this time in order to catch a

6 flight or -- or make another event, please raise your

7 hand and let us know; otherwise, we'll move forward

8 with some background on the four topics we're here to

9 discuss today.

10 Is there anybody that absolutely needs to get

11 on the record at this time?

12 With that, various members of our team will

13 provide some background on the topics that we're here

14 to discuss today. In addition to these -- these

15 presentations, there are some written materials that

16 I believe are available. That's correct, that's been

17 passed out.

18 So, in addition to the consultation notice

19 that's already been sent out, we have written

20 material as well as this background, but please feel

21 free to ask questions at any stage of this

22 consultation.

23 So, leading us off is Mr. John Hay here to

24 talk to us about our privacy act regulations.

25 MR. JOHN HAY: The first one and probably

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1 the one that is also considered the boring one. I

2 say "boring" because the privacy act revisions that

3 we are contemplating really don't affect how tribes

4 do anything. They don't affect how you collect,

5 store or process information from applicants. They

6 do, however, affect how NIGC handles this information

7 and how we handle requests coming in, how we process

8 them internally and how we respond to these requests.

9 The reason that we're updating them now is

10 because the last time they were updated was 1992,

11 also the year that they were originally promulgated.

12 So, it's been quite some time and a lot has changed

13 in terms of the privacy act since then and we want to

14 make sure that our processes are up to date and --

15 and streamlined and a little less burdensomeness.

16 And to eliminate some of the burden, we are going to

17 consolidate a lot of the procedures for requesting

18 them. If you -- if you've looked at our -- our

19 regulations on privacy act, and I'm guessing most

20 people haven't because they -- we get very few

21 requests under the privacy act. I think in the last

22 five years I think we might have gotten two requests

23 under the privacy act, so that's how few requests we

24 get for them. So, we're -- we're going to

25 consolidate some of the -- the processes for how we

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1 handle these internally. We are going to revise some

2 of the processes of how we work with other federal

3 agencies when these requests come in and we're also

4 going to make revisions to match up these processes

5 with how we handle FOYA requests. That's important

6 to us because internally within our agency the person

7 who handles our FOYA requests is the same person who

8 handles the privacy act requests, and we want them to

9 have a kind of consistent set of deadlines internally

10 for how they need to respond. It just makes their

11 job a little easier and there's more consistency

12 going between the -- the privacy act and FOYA.

13 We also have a couple of new provisions that

14 we are contemplating including, and that is how we

15 account for disclosures. We think it's important,

16 even though we -- we don't do these things

17 frequently, that we have an accurate accounting of

18 when they come in and when they go out.

19 We also want to have a process for notifying

20 individuals when privacy act requests come in either

21 in emergency circumstances or pursuant to a Court

22 order.

23 And so, that's the long and short of it. We

24 anticipate there will be little to no impact on

25 tribes because it's not tribes who are requesting

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1 this information. These are individuals who were

2 licensed by tribes and -- and oftentimes they want to

3 submit a request to us to find out what information

4 we have on them.

5 And so, that's the long and the -- the short

6 of it in terms of the privacy act.

7 MR. JONODEV CHAUDHURI: Thank you, John.

8 Thank you, John. There wasn't anything boring about

9 that.

10 Moving forward, the next topic of discussion

11 is a proposed set of amendments to our policies and

12 procedures relating to a potential categorical

13 exclusion for approval of management agreements under

14 -- under NEPA. So, with that, Mr. Eric Shepard.

15 MR. ERIC SHEPARD: Thanks. The agency is

16 proposing adopting a NEPA policies or National

17 Environmental Policy Act policies and procedures

18 manual that will include a categorical exclusion for

19 the approval of management contracts. Previously the

20 NIGC had determined that approving management

21 contracts under IGRA constituted a major federal

22 action and required NEPA review. That review took

23 the form of environmental assessment typically and

24 sometimes an environmental impact statement, both of

25 which are extremely costly and -- and time consuming.

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1 By adopting a categorical exclusion for -- or

2 CATEX for the approval of management contracts,

3 tribes would not be required to prepare an

4 environmental assessment or an environmental impact

5 statement except in the case of extraordinary

6 circumstances.

7 The policies and procedures manual the NIGC

8 is proposing is limited in scope. In addition to

9 setting forth the procedures for applying for a

10 categorical exclusion, they'll define the

11 extraordinary circumstances under which a categorical

12 exclusion would not be appropriate and the policies

13 and procedures to be followed in order to conduct a

14 NEPA review.

15 By adopting the manual, the commission hopes

16 to end the uncertainties surrounding the NEPA review

17 requirements and save tribes both time and money.

18 MR. JONODEV CHAUDHURI: Thank you, Eric.

19 So, next we'll move forward with a proposed

20 approach to developing some non-mandatory guidance

21 regarding class 3 MICS. And for that we have

22 Ms. Christina Thomas.

23 MS. CHRISTINA THOMAS: Thank you,

24 Mr. Chairman.

25 The NIGC's class 3 member internal control

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1 standards, or the MICS, were promulgated in 1999 and

2 then revised in July of 2002. A lot has changed in

3 the gaming industry since 2002 and the MICS have not

4 kept up with those changes. Due to the Colorado

5 River Indian Tribe or the CRIT decision, the NIGC

6 does not have the authority to promulgate or update

7 the class 3 MICS of the regulations; however, we feel

8 there is still a need to have them. Many tribes

9 still rely on the MICS and in some cases the MICS are

10 part of the tribal state compacts or the tribe's

11 gaming ordinances.

12 During our last regulatory review process we

13 asked for comment on how we should proceed with

14 regards to the class 3 MICS. We received a lot of

15 great responses. Some wanted us to implement new

16 regulations while some wanted us to withdraw the

17 regulations and do nothing.

18 We have reviewed all the comments and the

19 commission decided that it's time to propose issuing

20 the class 3 MICS as guidance. These will be advisory

21 only and unenforceable by the NIGC but will allow us

22 to make sure the MICS keep up with the advances --

23 sorry -- within the gaming industry and provide

24 guidance to tribes that do rely on the MICS.

25 The plan is to, 1, develop updated class 3

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1 MICS guidance; 2, publish them for comment; 3,

2 consider all the comments and revise as necessary;

3 and, finally, publish the guidance and, at the same

4 time, withdraw the regulation. Because it will be

5 guidance instead of regulations, we will be able to

6 be much quicker to adapting change -- to the changes

7 in the industry.

8 MR. JONODEV CHAUDHURI: So, our fourth and

9 final topic involves our Buy Indian Goods and

10 Services proposed reg -- regulation, and we call it

11 BIGS for short.

12 And for that piece we have Mr. Armando

13 Acosta.

14 MR. ARMANDO ACOSTA: Hello. The purpose of

15 the BIGS regulations is to provide a preference to

16 qualified Indian-owned businesses when the commission

17 purchases goods and services at a fair market price.

18 This is in keeping with the commission's mission and

19 it's being done as a means of promoting tribal

20 economic development, tribal self-sufficiency through

21 increased employment opportunities and strong tribal

22 government.

23 This proposed regulation is an attempt by the

24 commission to codify what it has already been doing

25 in practice for many years, which is to give

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1 preference, as much as practicable, to qualified

2 Indian-owned businesses when purchasing goods and

3 services at a fair market value.

4 We want to make clear that the BIGS

5 regulations are for the commission's own purposes

6 only. We will not require the tribes themselves to

7 buy only from other Indian-owned businesses.

8 Lastly, we want to point out that these

9 proposed regulations are almost identical to what the

10 Bureau of Indian Affairs Buy Indian Act regulation on

11 which previously held consultations. One key

12 difference, however, is that the authority under

13 BIA's regulations is to rise from the binding act

14 itself while the BIGS -- that's already under the

15 BIGS, our regulations, is derived from the Indian

16 Gaming and Regulatory Act.

17 In the future it might be -- become necessary

18 for the commission to seek delegated authority from

19 the secretary of interior to use the authority under

20 the Buy Indian Act because that act provides for a

21 higher level of Indian preference, but right now the

22 commission is proceeding solely under the authority

23 given to it by the Indian Gaming Regulatory Act.

24 MR. JONODEV CHAUDHURI: Thank you,

25 Armando.

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1 So, with that, we'll open up the floor to --

2 to questions, comments, suggestions, concerns. And,

3 as I mentioned before, we have a lot of ground to

4 cover. We're not going to go in any particular

5 order, so I would ask for whoever is providing

6 questions or comments to feel free to choose which --

7 which topic you want to touch on. But, when you do

8 so, please state your name as well as your

9 affiliation, once again, for the record so our

10 transcriber can follow along. And, in addition to

11 that, if we're moving back and forth between topics,

12 please be clear as to which -- which topic your

13 comment applies to, and that'll just help us organize

14 the comments when we compile them.

15 Our regional director, Mr. Cunningham, will

16 be following along and making sure that we're --

17 we're kind of tracking the questions and comments in

18 first-come/first -- first-served order.

19 So, with that, please just feel free to raise

20 your hand and we'll get -- get started.

21 MS. EDWINA BUTLER-WOLFE: Good afternoon.

22 I'm Edwina Butler-Wolfe, governor of the Absentee

23 Shawnee Tribe.

24 And one of the questions I have is about the

25 class 3 MICS. So, you had indicated that the

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1 advisory -- is that how -- or that's going to be a

2 selected few or is that few -- the panel is going to

3 do that as the -- drawing up the -- those

4 regulations?

5 MR. JONODEV CHAUDHURI: Well, let -- let me

6 be upfront. There are -- I think what you're asking

7 about is an advisory committee?

8 MS. EDWINA BUTLER-WOLFE: Right. Is that

9 what you're talking as "advisory"?

10 MR. JONODEV CHAUDHURI: Not at this point.

11 We're -- we're soliciting comment and input through

12 the consultation process as we speak, and so that --

13 that's a main part of today's discussion. There was

14 a tribal advisory committee formed when we were

15 developing formal class 2 MICS which were binding

16 through our regulations. That is not the -- the

17 scope of the proposed path regarding class 3

18 non-mandatory guidance.

19 So, to my knowledge, not only would it be a

20 new direction to develop a tribal advisory committee

21 around guidance from the NIGC, but there -- there are

22 trade-offs that come along with that approach.

23 As evidenced by attendance today, we have a

24 large cross section of representatives and

25 stakeholders and people who bring their own

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1 collective voices to the consultation process. By --

2 by necessity, a committee is made up of voices from

3 committee members who, powerful as they may be, are

4 -- are committee members. Now, we haven't made any

5 -- we haven't made any final determinations regarding

6 committee, but a committee also brings with it

7 various other legal requirements under federal law.

8 And so, in order to begin the process to

9 start talking about non-mandatory guidance, the first

10 order of business is consultation, and that's what

11 we're engaged in today.

12 MS. EDWINA BUTLER-WOLFE: That was my --

13 MR. JONODEV CHAUDHURI: If that helps?

14 MS. EDWINA BUTLER-WOLFE: Yeah. I was just

15 -- when she said "advisory", I didn't know if that

16 meant a group of or just --

17 MR. JONODEV CHAUDHURI: Indian country is

18 our advisory --

19 MS. EDWINA BUTLER-WOLFE: Okay. I guess...

20 MR. JONODEV CHAUDHURI: Please. I'm sorry.

21 We -- we have a limited number of microphones. I

22 don't mean to hog it. You know, we've got a whole

23 team here.

24 MS. CHRISTINA THOMAS: So, when I had said

25 "advisory", I meant that the guidance --

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1 MS. EDWINA BUTLER-WOLFE: Okay.

2 MS. CHRISTINA WOLFE: -- they wouldn't be

3 mandated for tribes to adopt them. It would be an

4 advisory guidance controls that tribes could choose

5 to use it if they wanted to.

6 MS. EDWINA BUTLER-WOLFE: So, you know,

7 based on all the comments that we bring in? Okay.

8 All right.

9 MR. JONODEV CHAUDHURI: Yes. Thank you.

10 Thank you, Governor.

11 MS. EDWINA BUTLER-WOLFE: You're welcome.

12 MR. JAMIE HUMMINGBIRD: They tell me my

13 mouth is big enough I don't need this microphone,

14 but, to have two of them, I think that would be

15 overkill.

16 As you noted, Christina --

17 MR. TIM HARPER: Jamie? Jamie, would you

18 identify yourself?

19 MR. JAMIE HUMMINGBIRD: Oh, I'm sorry.

20 Jamie Hummingbird, Cherokee Nation.

21 When you were reading through your -- your

22 purpose for the proposal, you noted that there are a

23 number of tribal compacts and probably a number of

24 tribal gaming ordinances that specifically include

25 542 as a part of those documents. Has the NIGC

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1 weighed the pros and cons and -- and weighed the

2 ripple effects of making such a withdrawal knowing

3 that gaming ordinances would have to be revised,

4 compacts would then be -- need to be reopened

5 possibly and/or in our case in Oklahoma state laws be

6 reopened? Because the state laws are specific as a

7 part of the model state compact, which would lend

8 itself to one of -- a couple of things. And the

9 ripple effects that I'm talking about would not just

10 be here in Oklahoma but any -- any jurisdiction in

11 which those requirements are specifically mentioned

12 as a part of our gaming regulatory structure.

13 MR. JONODEV CHAUDHURI: Thank you. Thank

14 you so much for those comments. Thank you so much

15 for those comments, Hummingbird.

16 Those are absolutely out -- absolutely

17 important considerations and they provide, again, the

18 need for an open honest dialog regarding the -- the

19 impact of taking this approach and we're open to all

20 comments.

21 Let me say this, though. There are pros and

22 cons to almost every available option and we would

23 love to hear input regarding pros and cons regarding

24 doing nothing, doing something in the form of issuing

25 non-mandatory guidance and leaving the -- the old

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1 regulations up, so to speak, and pros and cons to the

2 proposed approach, which is to provide guidance

3 while, at the same time, withdrawing the -- the old

4 outdated rules. So, there are pros to cons to each

5 approach. We are here today to listen, to hear

6 comments from both directions regarding any approach.

7 There has certainly been internal dialog regarding

8 which -- which approach would do the least amount of

9 -- what would create the -- the least amount of

10 disruption in the industry, but that is an internal

11 thought process that is -- is, by no means,

12 formalized or finalized. The whole point of

13 consultation is to engage in back-and-forth dialog.

14 MR. JAMIE HUMMINGBIRD: Just --

15 MR. JONODEV CHAUDHURI: Please.

16 MR. JAMIE HUMMINGBIRD: -- just a followup

17 question.

18 MR. JONODEV CHAUDHURI: Uh-huh.

19 MR. JAMIE HUMMINGBIRD: And I think you

20 might have noted a little bit earlier, too, that

21 since the CRIT decision, I think everybody that's

22 been in the gaming industry has realized that NIGC

23 does not look to enforce or -- class 3 activities,

24 particularly the MICS. And since that decision the

25 practice of NIGC has really been to maintain those

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1 documents for the reasons that we just stated, that

2 because of the reliance upon so many different

3 ordinances and compacts is to maintain those

4 documents but not enforce, because, obviously, the

5 enforcement mechanism is not there.

6 But during your internal discussions, and

7 maybe -- maybe this is a two-prong question. You

8 know, during the internal discussions that led to

9 this proposal -- and this is something I'm -- I'm not

10 quite sure what the impetus was that drove the

11 decision to propose a withdrawal. Although this is

12 something that we've been asking for since 2001, now

13 we are -- we're looking at different circumstances

14 than we were 14 years ago. I was on the advisory

15 committee to revise the MICS back in 2001, and that

16 was one of the recommendations we made then, was

17 break these out, this is class 2, this is class 3,

18 you don't have authority in class 3.

19 But 14 years later, and even after the CRIT

20 decision X number of years ago, I guess the simple

21 and short question is, "Why now?" And is there a

22 driving need other than some of the feedback that has

23 been given. Not to take away from the -- the reasons

24 why the feedback was given, but if there was a -- a

25 circumstance that has -- has lent itself to making

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1 this proposal necessary at this time, it would help

2 to understand the -- the thought process on how we

3 got to this point.

4 MR. JONODEV CHAUDHURI: Let me speak to

5 that. I don't want to hog the -- the mic from our

6 team here, and so I know our General Counsel's office

7 has a perspective on this as well as our chief of

8 staff's office. So, I -- I do want to step back and

9 allow them to weigh in, but let me share my

10 perspective.

11 My perspective in terms of timing and why now

12 is this. So, consultation takes the formal form --

13 and today we're engaged in formal consultation, but

14 our dialog with Indian country is ongoing. It -- it

15 manifests itself in every interaction as -- that we,

16 as an agency, have with our regulatory partners.

17 So, we received input in a number of ways,

18 through formal consultations, yes, but also through

19 site visits, through public -- public settings and

20 also in various requests for technical assistance.

21 In a variety of formats the -- the requests or the --

22 the possibility of addressing class -- these issues

23 for tribes that, either through their compacts or

24 through other issues specific to their given states,

25 has come up so that we have been asked repeatedly in

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1 other contexts whether or not we'd be able to take a

2 look at providing guidance regarding -- regarding

3 class 3 MICS, fully recognizing we don't have the

4 authority -- authority to issue binding class 3 MICS

5 or to enforce class 3 MICS but simply in recognition

6 of the role that we play to help support the

7 regulatory structure of -- of the Indian gaming

8 industry. We heard those comments and internally we

9 -- we discussed whether or not it would be even

10 helpful to send something out for discussion in

11 consultation.

12 So, that's been my perspective. The -- the

13 request for us to take a look at this has come in

14 sort of a variety of -- come to us through a variety

15 of ways including many comments at public settings.

16 And so, it's certainly not being internally driven.

17 We're trying to be responsive and sensitive to

18 questions and concerns raised in the field from

19 Indian country.

20 So, that's my perspective. I'd like to also

21 not throw anybody under the bus but turn -- turn it

22 over to our General Counsel's office to -- to have

23 them provide some -- some perspective regarding pros

24 and cons of this approach and the chief of staff's

25 side as well.

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1 MR. ERIC SHEPARD: So, just to follow up on

2 -- on those thoughts for -- for a second. It is on?

3 Yeah.

4 The -- what the commission is -- what the

5 commission -- the commission is sort of stuck in a

6 difficult place at the end of the day. It has this

7 thing called minimum internal controls which implies

8 that there's some sort of minimum regulatory

9 standard, but they're horribly out of date, and I

10 think everyone in this room probably recognizes that

11 regardless of your position on whether the commission

12 should be issuing guidance or not.

13 So, the question I think that the commission

14 faces is what to do about that. It -- it can't,

15 because of the CRIT decision, go back in and reopen

16 the regulations and update them. It can't add

17 digital surveillance requirements. It can't -- it

18 can't make those kinds of changes that probably need

19 to be made. And I think Indian country, in terms of

20 regulatory capacity, is far beyond what the 542 MICS

21 are.

22 So, what does the commission do? It's out

23 there, it's being asked for guidance on class 3

24 regularly as -- as the chairman indicated. This was

25 -- this is a concept. And, again, this is very early

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1 in the stage, so there's nothing for anyone to look

2 at in terms of draft language. That will come later

3 if the commission continues down this process. But I

4 think your comments are really important to hear

5 about, as the chairman said, is this a process that

6 makes sense? This idea of getting together, putting

7 together draft guidance, getting some comment back on

8 that and releasing it as guidance. And then do we

9 eventually withdraw 542 or is there some value in

10 keeping that on the books separately because some

11 compacts, some tribes refer to them? And those are

12 all things I think we would really like to get

13 comments on so that we can move forward in a way that

14 makes sense for everybody.

15 MR. JOHN BARRETT: John Barrett. John

16 Barrett, test, test, test. John Barrett, Citizen

17 Potawatomi Nation Tribal Chairman.

18 Given that in Oklahoma we have an intensely

19 adversarial relationship with the state government

20 and the current governor is seeking in a number of

21 ways to -- to affect Indian country, particularly

22 gaming, I think that, if you could consider the --

23 the minimum internal control standards in much the

24 same way that tribes consider a full-faith credit

25 agreement with the Supreme Court of the state, you

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1 put those regulations up there and they are

2 referenced -- as Hummingbird pointed out, they are

3 part of our compact. And if you withdraw them, that

4 means a renegotiation of the compact and we're going

5 to end up with a gun to our head in Oklahoma where

6 they'll come after you, your liquor license, your tax

7 number, your -- virtually your access through the

8 Oklahoma Department of Transportation, the roads into

9 the casino. I mean, we are under some form of

10 regulatory pressure on every front they can create.

11 This would give them the camel's nose under the edge

12 of the tent.

13 If you'll put it up there, a minimum internal

14 control standard -- and the way I understand the

15 court case is that, if we choose to follow that

16 standard as a means of regulating class 3 gaming

17 within our individual reservations, that doesn't

18 diminish the fact that you published a minimum

19 internal control standard and you can update that

20 under your authorities in the National Indian Gaming

21 Act of the -- if you can reach as far as an

22 environmental study on the Buy Indian Act, you should

23 be able to amend the minimum internal control

24 standards to -- to be in current compliance. It's

25 simply the lack of full faith credit agreement the

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1 chuck tribe chooses to use that set of standards for

2 its -- to conduct its gaming operations. That would

3 keep us in compliance with the compact. That would

4 keep a minimum internal control standard as part of

5 the statutory base that the National Indian Gaming

6 Commission has and we stay out of a fight before it's

7 time to renew our compacts.

8 But you're going to -- you're going to have a

9 real -- more than a ripple effect; it's the tsunami

10 effect, is what you're going to have out of

11 withdrawing the minimum internal control standards

12 because of the court case. Because ultimately that's

13 what the court case said, was that you couldn't have

14 a standard. It said that you didn't have the right

15 to enforce them without tribal consent. So, make it

16 a tribal consent issue, lack of full faith and credit

17 agreement or the adoption of the standard as part of

18 the tribal standard. I -- I don't think that the

19 tribe adopting the NIGC's MICS has any effect on your

20 authority to publish a MICS. I believe that the

21 court case would authorize that. Enforcement still

22 lies within the authority of the tribe, not within

23 NIGC.

24 MR. JONODEV CHAUDHURI: Thank you. Thank

25 you, Chairman. Excellent, excellent comment.

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1 So, we recognize the danger of un --

2 unintended consequences. And whenever you're trying

3 to fix something, you don't want to create more

4 problems than -- than you set out to fix. So, we

5 recognize the -- the unique considerations that

6 tribes in Oklahoma have as -- as being different than

7 unique considerations from tribes in other states.

8 And so, with that in mind, we'll take that comment

9 back and take a very close look at it.

10 I have an additional request to other folks

11 in the room to kind of duck tail or piggyback off

12 your comment, and I'll, again, pass -- pass it on to

13 our team after this.

14 But my request is this. We have a lot of

15 really experienced regulators and really good lawyers

16 in the room, and on top of that you work with a

17 number of really great regulators and really great

18 lawyers. If there are -- if there are specific

19 provisions such as a full faith and credit clause

20 that would -- would be recommended to accompany

21 guidance or --

22 MR. JOHN BARRETT: That was analogy.

23 MR. JONODEV CHAUDHURI: Well, I mean, if --

24 if there's any -- I apologize for all the technical

25 difficulties we're -- we're having here today. I

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1 don't -- you know, there's about a four -- four-foot

2 square patch of really, really good -- okay. I'm not

3 going to sit -- anyway, I apologize for the technical

4 difficulties that we're having today.

5 But, you know, we'll definitely take that

6 approach back and think on it quite a bit and -- and

7 see -- and see what additional comments come out

8 today and tomorrow. But, please, feel free to follow

9 up with today's consultation with written comments.

10 If there are specific proposals regarding --

11 regarding written language, we're more than happy to

12 take a look at that -- at that as well.

13 But thank you so much for that helpful

14 comment.

15 Is there something you want to add to that?

16 Thank you, chairman.

17 MS. BARBARA COLLIER: Good afternoon. I

18 have a -- my written comment.

19 MR. TIM HARPER: Barbara, identify

20 yourself.

21 MS. BARBARA COLLIER: Barbara Collier with

22 the Quapaw Tribal Gaming Agency.

23 Well, it says it's on. I had the green

24 light.

25 Barbara Collier with the Quapaw Tribal Gaming

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1 Agency, executive director. I have my written

2 comments and I have given a copy of those to your

3 transcriber so she will have those available for you.

4 I did want to briefly read some of the

5 captions that I have here and there's one on each one

6 of your issues. We do appreciate you bringing these

7 to the table for us and our utilization.

8 The proposed NEPA, we are -- are encouraged

9 and we encourage you to shift policy according to

10 what you need to -- to -- what is required in that,

11 and then that will bring us up to not having to do

12 some of those issues. Being from the environmental

13 field, when I worked for the Wyandotte Nation, I know

14 how difficult some of those are and I think that that

15 policy that you're setting out there is a good one.

16 The comments on the -- and observations on

17 the Buy Indian Goods and rules and the proposed

18 privacy act are all positive, in our opinion, and we

19 have stated that within our document.

20 Again, as I did when I spoke briefly -- and I

21 concur with my coworker here, Mr. Hummingbird, I

22 would like to read you our comments on the guidance

23 for class 3 MICS. To begin, we -- we commend you for

24 outreach efforts during the early planning stages to

25 withdraw 25 CFR part 542 and issue the class 3 MICS

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1 as non-mandatory guidance; however, there would be a

2 lot of problems with that. And you have heard those.

3 We have expressed that. These gentlemen have

4 expressed that.

5 Early tribal involvement is not only

6 consistent with the consultation responsibilities

7 under executive order 13175 but also a key step

8 towards developing federal policies that will

9 at least be minimally acceptable to tribal

10 governments.

11 It also endures sufficient time for tribal

12 governments to explore the underlying concepts behind

13 the proposed changes and consider alternatives,

14 including the alternative of no further action.

15 We appreciate and welcome the opportunity to

16 engage in this type of dialog with you. While we

17 generally approve the concept of issuing internal

18 control standards as non-mandatory guidance, we know

19 that there are tribal state compacts and, in some

20 instances, tribal gaming ordinances that rely on 25

21 CFR part 542 for the establishment of class 3 gaming

22 standards. For instance, the model tribal state

23 compact with the State of Oklahoma provides that

24 tribal gaming operations must comply with tribal

25 internal control standards that equal or exceed the

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1 NIGC class 3 MICS. By withdrawing the class 3 MICS

2 regulation, there is a potential of disturbing the

3 regulatory balance struck in these compacts. In lieu

4 of this, we would not necessarily object to leaving

5 the regulation in place for those tribes whose

6 compacts incorporate the federal standards in 25 CFR

7 5 -- 542.

8 We look forward to continuing dialog on this

9 important question in the period leading up to the

10 publication of any notice of proposed rulemaking

11 pertaining to 542.

12 As you've spoken about some of the

13 conversation here, I would address this to Eric

14 Shepard.

15 MR. ERIC SHEPARD: Yeah.

16 MS. BARBARA COLLIER: Can you explain to us

17 -- you mentioned the tech -- the technical portion,

18 and we're aware of that, that it's very outdated.

19 But can you explain that -- any of the other possible

20 issues that you feel -- or that have been brought to

21 you that are issues from the document other than the

22 technical portions?

23 MR. ERIC SHEPARD: That's primarily it. I

24 mean, I don't know if Christina has more, but on --

25 on my end that would be -- that's the primary concern

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1 that we've been hearing, is the -- the data nature,

2 they haven't kept up with technology, they don't keep

3 pace with where we are today in -- in gaming.

4 If I could ask a question in return? Just --

5 just to followup -- and maybe this will be helpful as

6 you prepare written comments, if other people are --

7 have similar comments along of the lines of keep 542

8 in pace but it might be okay to issue some sort of

9 updated guidance.

10 As we -- when we issued the new class 2 MICS,

11 there was an awful lot of confusion about 543, 542,

12 what applies to what. I guess I'd like to hear how

13 we would prevent there from being -- or what we could

14 to prevent there from being additional confusion out

15 there if we were to have 542 on the books still and

16 then have a guidance document out there as well.

17 And -- and, again, not saying that that is a

18 problem that's insurmountable, but we did face that

19 problem and we are still facing that problem with 542

20 and 543, and so, we'd really appreciate any ideas

21 folks would have so that we don't continue to have

22 that problem. If we were to have a -- a model or a

23 guidance document out there that -- that has one

24 standard and then 542 still on the books that has

25 different standards.

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1 And you don't have to answer that today.

2 Just, you know, we'd appreciate any thoughts from

3 anybody on -- on that.

4 MS. BARBARA COLLIER: Well, yeah. I won't

5 answer it officially today, but my -- you know, we

6 did have a lot of concerns with 542 and 543 in

7 combining those.

8 MR. ERIC SHEPARD: Uh-huh.

9 MS. BARBARA COLLIER: But the tribes did

10 make comments prior to you issuing those that might

11 have worked a little better than what was actually

12 presented. But we have dealt with that and we have

13 combined those together to make a working document

14 that, when auditor-conducted, that they're now going

15 off of the combined rule that's 543. I think the

16 tribes have done a good job doing that, the ones that

17 I know of around me anyway, because we do work

18 together and we do try and work things out especially

19 when we meet a -- a big job such as that was.

20 So, I think that maybe you're cutting the

21 tribes a little short; however, I do appreciate the

22 fact that you're concerned that there would be

23 confusion. If you just -- that's why I asked about,

24 if it was just the technical portion. If it's just

25 the technical portion and you line that out in your

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1 guidance document --

2 MR. ERIC SHEPARD: Uh-huh.

3 MR. BARBARA COLLIER: -- and then allow the

4 tribes to refer to the 542 or whatever their compact

5 agreement, their ordinance agreements are with the

6 other things that aren't necessarily so outdated as

7 the technology part -- portion, I don't think that

8 there would be a problem with them being smart enough

9 to understand that or to deal with it. I personally

10 think that, you know, the guidance for the technical

11 part would probably be excellent because we do need

12 to move forward. We all are very aware of that.

13 Every day we face new technical issues about, you

14 know, how we operate our casino but -- or how we

15 regulate them. But I think that there could be a

16 good -- a positive norm made if you didn't completely

17 pull the 542.

18 As you heard on the comments when -- at the

19 consultation out in San Diego, California would be in

20 a worse -- probably a worse condition than we are in

21 Oklahoma because theirs is also incorporated in their

22 ordinance as well as their compacts, and they're

23 always on the -- you know, always trying to come in

24 and re-regulate them.

25 In Oklahoma we are at -- just like the -- the

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1 gentleman said, we are at a turning point right now.

2 Why now? And we appreciate the fact that you are

3 doing something, but we do not want to give the State

4 of Oklahoma an inch to get their foot in the door

5 because that's what they're just waiting to do.

6 That's what they're trying to do currently.

7 MR. JONODEV CHAUDHURI: Thank you,

8 Ms. Collier.

9 I do want to just add kind of one bit of

10 context just -- I -- I don't think any confusion out

11 there in the industry is any way tied to whether or

12 not -- okay. We'll just -- we'll get the preacher

13 voice going on.

14 I don't think any confusion out there in the

15 industry is, in any way, tied to any potential

16 considerations regarding intelligence or smart enough

17 or anything. I think what -- what we've heard or

18 at least what I've heard, speaking from -- from my

19 perspective, is that there's simply a disconnect

20 between 542 and 543. And of those tribes that -- and

21 some of which may -- may be in other states. Of

22 those tribes whose compacts or specific sets of laws

23 reference -- reference five -- you know, 542, how

24 that can be interpreted given the -- the disconnect.

25 I think that's the only confusion anybody is talking

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1 about. And I don't think it's -- I certainly haven't

2 heard anybody saying it has anything to do with the

3 ability to understand. And so, we -- we definitely

4 -- and -- and I think I can say this because I'm a

5 recovering lawyer and definitely have the utmost

6 respect for regulators and especially tribal

7 regulators and their ability to understand how -- how

8 to -- how to navigate those differences in

9 regulations, so...

10 MS. BARBARA COLLIER: That wasn't my

11 intent, that their -- that they couldn't do it.

12 MR. JONODEV CHAUDHURI: Yeah.

13 MS. BARBARA COLLIER: We just got through

14 doing a very difficult culmination with the -- you

15 know, combining 542 and 543. And that was my intent,

16 was that -- you know, if we did that, then we could

17 do this.

18 MR. JONODEV CHAUDHURI: Okay. Absolutely.

19 MS. BARBARA COLLIER: Not that anyone was

20 not capable of doing it.

21 MR. JONODEV CHAUDHURI: All right.

22 MS. BARBARA COLLIER: Sorry. Maybe Jamie.

23 MR. JONODEV CHAUDHURI: Did you get that

24 transcriber?

25 MR. JOHN BARRETT: If I may, Mr. Chairman,

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1 follow up on that.

2 The unintended consequences. You know, there

3 is a tremendous difference between the NIGC of 2001,

4 2002, and the NIGC of today and I think the NIGC of

5 today, particularly in -- in preparation for the

6 number of tribes that are approaching renewal of

7 their compacts. And the consequences of these

8 renewals of what's going to happen when the clear

9 intent of congress in the language of the national

10 Indian Gaming Regulatory Act was that states would

11 not participate in Indian gaming revenues. These

12 schemes -- and they are schemes -- of exclusivity and

13 all of the other guises that states use to encroach

14 on Indian gaming revenue, if it was clearly expressed

15 by the NIGC that the NIGC has the authority under the

16 act on the newly negotiated compacts, that if the

17 states over-reach or that -- that one of the

18 considerations NIGC would have on a new compact --

19 and I think BIA is going to give this some

20 consideration as well -- is that tribal -- I mean,

21 state participation in gaming revenues under whatever

22 language they want to disguise it as may be withdrawn

23 if the states start to use regulatory pressure

24 outside of gaming to force tribes into agreeing to

25 unrealistic compacts. That's really what happened in

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1 California. And Oklahoma, we'd love to have the NIGC

2 behind us when we have to sit down with the governor

3 because we -- we certainly -- when the initial

4 compacts were done, the model compacts in Oklahoma,

5 NIGC -- I mean, the national Indian gaming regulatory

6 wasn't followed because the act says that the state

7 negotiates with each tribe and the state simply

8 issued model compacts and said take it or leave it.

9 And I think that that reflected the NIGC's, at that

10 time, regulatory uncertainty over whether it could --

11 could or couldn't enforce the intent of congress in

12 the act.

13 So, I'm asking for some help come re --

14 re-negotiation time of how we keep the state from --

15 you know, from encroaching further on gaming

16 revenues. I mean, you -- it's -- it's a completely

17 different set of authorities I think that -- that

18 we're seeing now than were there back in when the

19 first compacts were done.

20 On the issue of the 542, what I was looking

21 for in the language was the enforcement language that

22 NIGC relied upon in 542. That's really the only part

23 that was struck by the court case, wasn't it?

24 MR. JONODEV CHAUDHURI: Well, thank you,

25 chairman. It's my understanding also our ability or

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1 authority to promulgate or issue the -- the

2 regulations in the first instance was also addressed.

3 It's my understanding. And so, there is a -- both in

4 terms of enforceability versus our ability to issue

5 and promulgate, I think it's clear that the CRIT

6 decision does recognize we don't have that authority.

7 MR. JOHN BARRETT: You have the authority

8 to promulgate but not to enforce?

9 MR. ERIC SHEPARD: Not to promulgate either

10 as regulations.

11 MR. JONODEV CHAUDHURI: As regulations.

12 MR. JOHN BARRETT: It depends on who the

13 regulations regulate.

14 MR. ERIC SHEPARD: We do not have the

15 authority to promulgate class 3 MICS as regulations.

16 MS. ELIZABETH HOMER: As mandatory

17 regulations.

18 MR. ERIC SHEPARD: All regulations.

19 MS. ELIZABETH HOMER: Well, you can

20 promulgate -- oh, Elizabeth Homer.

21 You know, what's nice about having been

22 around and participated in these discussions for

23 many, many years now and being kind of quasi

24 responsible for the revised 2002 MICS is, you know, a

25 lot of years to think about these things and listen

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1 to a lot of ideas. But, you know, there -- there's

2 two things that -- that everyone kind of circles back

3 to eventually in this discussion, and one is that the

4 CRIT decisions for the proposition that you didn't

5 have the authority to issue mandatory enforceable

6 regulations, but it did -- you know, and -- and

7 there's still an angle here that you can issue either

8 permissive -- a permissive regulation or a guidance

9 document. And, you know, for years and years

10 everyone always wanted this as a guidance document.

11 You know, I think I was howling along with the crowd

12 about that, you know, for a number of years. And I

13 do think that the NIGC has never really taken full

14 opportunity to really use guidance documents in an

15 effective way. You know, I think that there's been

16 some -- over the years, there's -- you know, some

17 administrations have been very resistant -- resistant

18 to guidance documents. But if you look at what the

19 IRS does by guidance document, you know, I mean, it

20 becomes the standard. It becomes what everyone has

21 to comply with. So, guidance documents are not

22 necessarily, you know, useless. You know, there --

23 and the ideas that came about of -- listening to the

24 ideas that have come out over the years for how to

25 deal with this is some kind of consensual agreement,

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1 so some kind of a compacting process with tribes,

2 because it was the lack of consent, you know, to be

3 bound by those regulations, so that was one idea.

4 And I'm not suggesting any of these ideas. I don't

5 have a position on any of these ideas. I'm just kind

6 of, you know, throwing them out on the table that

7 this is what people have been talking about for a

8 number of years.

9 Again, the guidance document. The -- the --

10 one is to leave the MICS alone and update them

11 through guidance documents, so you don't have to

12 actually withdraw them but you've already said you're

13 not going to enforce them and then you do all of the

14 updates to the part 542 through the guidance document

15 process, so that was another idea. And then, again,

16 the one I talked about was a -- a permissive rule as

17 opposed to a mandatory rule.

18 And, Eric, you may have, you know, done more

19 research more recently on that, but I do think that,

20 you know, you can issue permissive rules. I think

21 that you might be able to get away with that, okay,

22 but I haven't looked it up lately.

23 But administrative law provides you all kinds

24 of options. I mean, that's what we did with the

25 public health and safety regulations in the first

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1 instance, is they -- they are an interpretive rule.

2 And that would be another thing that you guys could

3 do, is an interpretive rule. How do you ensure the

4 integrity of tribal gaming and you do an interpretive

5 rule by following these, and you could make that part

6 542. You could have an interpretive rule, like this

7 is how you achieve integrity. Because you do have

8 the authority to enforce integrity in gaming and

9 assure that there's an effective mechanism to

10 preserve the integrity and prevent corruption and

11 those kinds of things.

12 So, you know, I just kind of throw that out

13 there as ideas that have been talked about. I don't

14 have a personal preference. It's a policy issue but

15 I just thought it might be helpful to put them out

16 there.

17 MR. JONODEV CHAUDHURI: And thank -- thank

18 you, Liz -- or Ms. Homer. Both the chairman's

19 comments and your comments are very helpful in terms

20 of -- I mean, we -- we have been looking at various

21 approaches, one -- some sort of combination between

22 the current regulations and guidance, supplemental

23 guidance is something that we've discussed. Nothing

24 has been discarded as -- as an option. That's --

25 that's why -- and we can go through the various

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1 options and maybe that would be helpful in terms of

2 trade-offs for -- trade-offs and potential downsides

3 with the available option -- I mean, with the -- with

4 the options that we have discussed. The idea is

5 hopefully through these discussions we -- we get a

6 clearer picture regarding the consequences of any

7 given -- given approach and, you know, we've got a

8 lot of excellent folks at NIGC, but I think every one

9 of us is -- is rightfully humble enough to know that

10 we don't have all the answers by any means. And so,

11 we're hoping, even in terms of proposed language,

12 that this will really be a two-way dialog.

13 The one we picked -- and maybe we can talk a

14 little bit more on how we came down on that

15 internally. But the one we picked in terms of

16 proposing a path forward is a helpful starting point

17 to generate discussion and dialog, but final

18 decisions haven't been made by any means. One of the

19 benefits of -- of the proposed approach is you're --

20 you're at least clearly not violating federal law or

21 federal court -- court decisions by going this

22 approach. And so, it's -- it's cleaner in some

23 respects, but in an effort toward being cleaner, you

24 also don't want other things to get caught in the

25 process.

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1 So, the chairman's comments are very -- are

2 greatly appreciated, your comments, Ms. Homer, and

3 Ms. Collier's are as well, even Mr. Hummingbird's and

4 the governor's as well. We're tongue in cheek with

5 Mr. Hummingbird. We respect him greatly.

6 MR. WILLIS DEATHERAGE: I was actually

7 hoping that Elizabeth would have to get up and bring

8 me that microphone, but that's all right.

9 MS. BARBARA COLLIER: I would have done it,

10 Willis.

11 MR. WILLIS DEATHERAGE: I've got to

12 remember who I am here.

13 My name is Willis Deatherage. I'm the -- on

14 the Seminole Nation Gaming Commission, chairman. And

15 I'd like to just -- I can't speak on behalf of the

16 Seminole Nation, but I can speak on behalf of the

17 Seminole Nation Gaming Agency, and I just want to say

18 that we concur with Mr. Hummingbird, Ms. Collier,

19 Mr. Barnett -- Barrett rather, you know, that now or

20 in the near future is not the time for us to withdraw

21 542 because of all the comments and information

22 that's been shared today.

23 MR. JONODEV CHAUDHURI: Thank you, sir.

24 MR. JOHN BARRETT: The language in -- John

25 Barrett, Citizen Potawatomi.

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1 The language in 25 USC 2702.2 that gives the

2 commission the authority to promulgate such

3 regulations and guidelines as it deems appropriate to

4 implement the provisions of this chapter, and then

5 there's that Morning versus Family Public Service

6 business. I believe that you have the authority to

7 issue something that our compacts say meet or --

8 correct me if I'm wrong, Ms. Homer, but our standards

9 are to meet or exceed.

10 MS. ELIZABETH HOMER: 542.

11 MR. JOHN HOMER: 542. 542 then can be very

12 minimal in order to stay under the threshold of what

13 the -- the Court has said in this court case. I

14 believe there is a way to work out the language that

15 makes the -- the meet or exceed.

16 I think the Court, though, said that -- that

17 there is some statutory authority for the National

18 Indian Gaming Commission to force compliance in

19 conducting an honest game, those kinds of things.

20 So, I -- I believe you have something short of -- of

21 the existing MICS that the tribes can meet or exceed

22 and not break their compacts. I think there's a

23 compromise in that language that would get you past

24 what the judge said, which was that you can't conduct

25 an audit based on an invalid -- invalid MICS, then

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1 come up with a MICS that meets the Court's standard

2 and will exceed it, but don't withdraw it. In other

3 words, leave it -- leave it in force to the extent

4 that it complies with the court order.

5 And minimum -- minimum internal control

6 standards, you know, the -- I think if the commission

7 were to basically see what their MICS applies to, the

8 MICS applies to what you believe internally are an

9 appropriate control standard for a tribe, but you

10 don't say that the tribes, by force of law, have to

11 adopt the standard.

12 MR. JONODEV CHAUDHURI: Thank you,

13 Chairman.

14 MS. KAY BUSBY: My name is Kay Busby. I'm

15 the executive director of the Delaware Nation Gaming

16 Commission.

17 And on behalf of the gaming commission and

18 our Nation, we -- we would like to support the

19 findings of the -- the statements of Ms. Collier and

20 the gentleman from the Seminoles. I have received a

21 bulletin from the state already and they have advised

22 me that they're going to start issuing bulletins to

23 the effect of minimum internal controls. The

24 bulletin I received says it was the first one that

25 they're issuing that we have to meet or exceed the

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1 standards that NIGC has recently passed. So, we

2 would like to also support that thought, that you be

3 very careful about how you promulgate these

4 regulations because it's going to be a nightmare for

5 -- for our organization. We are a small tribe, a

6 very small tribe. We don't have the funds of some of

7 the larger tribes, so, our bread and butter comes

8 from our class 2 gaming and our -- we have class 3

9 and class 2. I feel that we are very capable of

10 regulating both our class 2 and class 3 and I would

11 like to be proud to say that we do our job very well.

12 We network very well, we discuss our issues with

13 other regulators very well and we all agree to the

14 standards that we meet. But I'd like to second that

15 thought. Be very careful, because we've already been

16 put on notice that they are going to be hard to deal

17 with.

18 So, I'd like that to be on record for the

19 Delaware Nation, please.

20 MR. JONODEV CHAUDHURI: And thank you for

21 that comment. In the bulletin, in terms of what

22 we've recently passed --

23 MS. KAY BUSBY: Yes.

24 MR. JONODEV CHAUDHURI: -- were they

25 referring to our 5 -- 543?

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1 MS. KAY BUSBY: The bulletin stated that,

2 in lieu of the -- the new regs that have changed,

3 that we are to follow them more stringent, either the

4 ones that you've put out or our tribal internal

5 controls.

6 MR. JONODEV CHAUDHURI: Referring to our

7 class -- class 2 MICS?

8 MS. KAY BUSBY: Uh-huh.

9 MR. JONODEV CHAUDHURI: Thank you.

10 MR. GRANTHUM STEVENS: Granthum Stevens,

11 Colorado River Indian Tribes. As you know, the CRIT

12 and NIGC decision didn't hinder NIGC's ability to

13 regulate class 2's overall function in any way. We

14 have to remember when it comes to class 3, class 3 is

15 negotiated in our compact as stated in IGRA. Our

16 technical standards is negotiated within our

17 compacts.

18 Coming from the state of Arizona, we know

19 very have an appendix A that -- or appendix H which

20 is our class 3 minimum internal controls. We also

21 have a technical aspect and it's an appendix

22 underneath that.

23 Getting ready for California, we're getting

24 ready to look at three options for minimum internal

25 controls only concerning class 3 gaming.

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1 As I stated before, one, why do it

2 non-mandatory? It's just not there because our

3 things are negotiated by the tribes as sovereign

4 nation with the state itself. We have that power

5 when we go out to the table. Now you're throwing in

6 your two cents and say, "Hey, we want this in here".

7 You're hindering both sides. You're basically

8 playing the middleman and the referee. You guys

9 receive our compacts when we negotiate. I mean, you

10 guys concur with them or go back and say, "Good faith

11 was not followed. Somebody wasn't doing their job in

12 that aspect".

13 So, when it comes down to class 3, as I

14 stated before, if you have no jurisdiction in there,

15 then why are you going to waste the fees that we pay

16 to regulate class 2 to do something for class 3 that

17 has nothing to do with you guys as stated within the

18 decision of CRIT. These are two things that are

19 promulgated by our compacts and we sit down as tribal

20 leaders, we come to the conclusions of what class 3

21 is.

22 As stated before, when it comes down to 543,

23 as you're hearing right now, the impact that it's

24 going to have if we repeal 542. Arizona's compact,

25 at that time, when negotiated, because it's stated

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1 Indian gaming, the only Indian gaming standard out

2 there was NIGC's 542 MICS. So, of course, everybody

3 is going to associate that with the class 3.

4 In San Diego I stated that, "What are we

5 going for then? The best industry practices?" Well,

6 in that case, you see that in 543 as it is right now.

7 Like I said, 80 percent of that document is Nevada

8 gaming control boards regulation. So, the only thing

9 that separates us from NIGC from a class 3 venue is

10 NIGC's technical standards. Because, as we know,

11 bingo gaming machines is not a stand-alone class 3.

12 So, I think the MICS itself already addresses

13 quite a bit, but we do have that loophole -- as

14 Barbara stated, we do have that loophole that we've

15 got to figure out what the common ground is. You

16 already hear the state sending a bulletin out now

17 saying you have to go up to more stringent. This was

18 already negotiated in our compacts. It said we shall

19 follow 542. Now, if you add this document in there,

20 the state is going to have another leverage on there

21 to sit there and say, "Well, look, there's more --

22 something more stringent in this".

23 So, when we go back and look at this, you

24 have all our compacts, you reviewed all our compacts,

25 what's the economic impact it's going to have, not

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1 only here but in all the states?

2 Thank you.

3 MR. JONODEV CHAUDHURI: Thank you for that

4 comment. And so, we're definitely mindful of impacts

5 on the larger landscape. And we're certainly mindful

6 of impacts in potential future negotiations, but, as

7 we know, the compacting process isn't part of our

8 lane; it's part of interior's lane. Our eyes, as

9 regulators, is on existing agreements as well as the

10 larger landscape. And so, when comments have been

11 brought to us regarding concerns in existing

12 ordinances or compacts, we -- we're trying to -- to

13 think of all potential solutions that may address

14 existing ordinances in compacts. So, you know, that

15 was a convoluted way of saying, for better or for

16 worse, through that negotiation process that you

17 mentioned, there are compacts that refer to our class

18 -- class 3 MICS. We didn't draft those compacts. We

19 -- you know, they are what they are and -- and there

20 are other ordinances that -- that reference them.

21 The question is, if we have a responsibility

22 in terms of supporting the larger regulatory

23 structure, how best to do our job given our

24 limitations as well as our -- our sincere interest

25 not to create more problems than we solve. So --

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1 and, again, in terms of timing, we're definitely

2 mindful of potential negotiations on the horizon, but

3 I -- I do want to point out that there are existing

4 agreements and compacts that already reference our

5 class 3 MICS.

6 So, if that helps.

7 MR. JAMIE HUMMINGBIRD: Jamie Hummingbird,

8 gaming commissioner, Cherokee Nation.

9 And I thank Kay for bringing that bulletin

10 up. And if -- if you might indulge me just for one

11 second, I would like to read part of it. It's a

12 relatively brief document, but, rather than go

13 through it all, I'll just read parts of this. And it

14 is coming from the state compliance -- state gaming

15 compliance unit to tribal gaming regulators dated

16 March 23rd, 2015, regarding minimum internal control

17 standards.

18 Two questions, what impact does the

19 modification of any part of the 25 CFR 542 have on

20 the minimum internal control standards required by

21 part 5B of model tribal state compact.

22 That question is then answered by stating

23 simply that part 5 requires all gaming enterprises

24 facilities to be operated in conformance with or in a

25 manner that equals or exceeds the NIGC MICS

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1 containing 542. The MICS in 542 are applicable to

2 facilities operating pursuant to the compact and part

3 542 is subject to modification and may change from

4 time to time. If any changes to 542 occur, the

5 tribe's MICS may need modification to ensure

6 compliance. Nothing shall prevent tribes from

7 adopting more stringent controls.

8 Second question, how should tribes reconcile

9 MICS from -- in 25 CFR part 542 and part 543? As

10 discussed above, tribes should have MICS that meet or

11 exceed those in 542. There may be instances,

12 however, that part 542 and 543 are inconsistent or in

13 conflict. Although the SCA cannot require the tribe

14 to promulgate rules or regulations, the SCA may

15 propose rules for tribes to consider.

16 Accordingly, it is the recommendation of the

17 SCA that where part 542 and 543 are inconsistent or

18 in conflict, the tribe consider adopting the standard

19 it believes is the more stringent of the two.

20 It is, therefore, the opinion of the SCA that

21 for compliance with part 5B of the compact, all

22 enterprises and facilities operated pursuant to the

23 compact should maintain a level of control that

24 equals or exceeds those in the current version of 25

25 CFR part 542.

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1 So, it is -- it is very evident that the

2 state is keen on those particular sets of standards.

3 And to upset that balance I think would be something

4 that is not in the best interest of tribes at this

5 time.

6 MR. JONODEV CHAUDHURI: That's actually --

7 that's very helpful and thank you so much for

8 pointing out the bulletin. And, I mean, that -- in

9 terms of specific reference to 542 -- well, I'm not

10 going to weigh in on -- on the state's position at

11 this time, but I -- I have some thoughts about that.

12 But let me ask a question, and it doesn't

13 have to be answered today, but, you know, potential

14 comments as well. So, if that is the position that's

15 laid out in the bulletin, how would that -- would

16 that necessarily be affected by anything that happens

17 to 543? In other words, if 543 stays on there as-is

18 or it's removed, if the state has already said

19 they're looking -- they're requiring a meet or exceed

20 the 542, I mean, isn't that a slightly separate -- I

21 mean, by all means, it's a concern or I see how it is

22 a concern, but isn't that concern that, I mean, is

23 serious either way?

24 MR. JOHN BARRETT: If -- John Barrett --

25 MR. JONODEV CHAUDHURI: I mean, I see how

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1 that's a concern from your perspective.

2 MR. JOHN BARRETT: Yeah. I see what you're

3 saying.

4 MR. JONODEV CHAUDHURI: I've got to wear my

5 hat, I mean...

6 MR. JOHN BARRETT: 42 and 43 are linked in

7 -- in a couple of -- of -- of circumstances, but

8 understand that bulletin that he -- that

9 Mr. Hummingbird just read, there was no such thing as

10 the state gaming authority or agency or whatever it

11 was. They created that just after the bulletin,

12 after the -- this court decision. And after the

13 bulletin came about that they were -- that the

14 minimum internal control standards were changed,

15 Mr. Mullins, who is the -- the head gunzel (phonetic)

16 for the governor's office, he created this regulatory

17 state gaming thing and basically took the staff at

18 the governor's office and made them gaming

19 regulators, gave them another title. So, this was

20 initiated because of the announcement that 542 was

21 invalid. And so, certainly the state sees a

22 regulatory vacuum that they can step into and say,

23 "Well, we have the authority to tell you that you

24 have to meet this, this or this", which they do not

25 have the authority to do.

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1 But, unless you leave something up there,

2 we're going to end up having to deal with the issue.

3 Or if you simply issue a regulation that says, this

4 is the standard, it's not a statute, this is a

5 standard -- kind of like a quality control standard,

6 this is a standard, it doesn't mean it's in statute,

7 it doesn't have to be enforceable, it is by name a

8 standard, not a statute, publish the standard and

9 that will get us by the compliance issues I believe.

10 And, as far as -- as enforcement goes, that's

11 consensual anyway, so...

12 MR. JONODEV CHAUDHURI: And I -- I should

13 clarify just erring on the safe side. My point is I

14 see how that's a concern for, you know, fellow

15 regulators. I've got to keep my regulatory hat on

16 here, so...

17 We're limited in our advocacy, so...

18 MR. JOHN BARRETT: In what way?

19 MR. JONODEV CHAUDHURI: Good thing none of

20 the mics are working.

21 No. Obviously, we -- we've got to focus on

22 IGRA. I may have personal feelings about the

23 severity of a -- a set of concerns. I'm just being

24 careful to state that I see how those are serious

25 concerns from -- from everyone -- or for many folks'

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1 perspectives here today. You know, I've got to be

2 careful in terms of making it clear that we -- you

3 know, we've got our hats that we have to wear.

4 MR. JOHN BARRETT: Well, our only weapon in

5 the United States Supreme Court is federal

6 preemption. If -- if we --

7 MR. JONODEV CHAUDHURI: I understand.

8 MR. JOHN BARRETT: -- we don't have to make

9 a federal case --

10 MR. JONODEV CHAUDHURI: Sir, I definitely

11 understand your perspective. I hope you understand

12 mine.

13 MS. BARBARA COLLIER: Barbara Collier

14 again.

15 Regulators -- we, as regulators, are very

16 passionate about what we do for our tribes, and we

17 understand your position; however, you know, you are

18 the National Indian Gaming Commission that should be

19 supporting and purporting our needs, and I believe

20 that you have that desire; don't get me wrong.

21 But to take this a little bit further from

22 what she said, the state drew some of us to -- or

23 invited some of us to come to the table to try to

24 form a committee, give us -- propose to us -- not

25 telling us what to do but propose that we take idea

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1 1, 2 or 3, 3 being negotiation and arbitration, to

2 reclassify -- basically to reclassify some of the

3 games that we play here in Oklahoma. Now, that right

4 off the -- the red flag right off the starting block

5 was divide and conquer. And regulators do -- as she

6 stated, we do meet with each other and we talk issues

7 and we give other people's opinions, other

8 regulators' opinions, and that's what keeps us

9 together, binds us together, being able to meet this

10 head-on. But if they -- if they get one little tribe

11 or one person or one law or regulation or standard or

12 whatever you want to call it that they can get their

13 foot in the door on, then they're going to bring it

14 right down the line. That's what they're trying to

15 do now with these notices. They send them to first

16 one, then another and then another. There's no --

17 there's no rules and -- and conformity with what

18 they're trying to do here. It's divide and conquer.

19 That's their -- that's their -- in my opinion, that's

20 their agenda.

21 So, I don't think we've found out yet. This

22 is just another step in the first NOVs they tried to

23 issue and the first letters they tried to get people

24 to remove, get states to remove machines. This is

25 just another step to ultimately succeed in what

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1 they're trying to do to the tribes here. And so far

2 we're able to stick together, but just like he

3 said -- Chairman Barrett said, you know, we need to

4 know that we have some support when it comes to the

5 rules and regulations that we have to abide by. And

6 our frontline people are out there making money for

7 us and you and our tribes and our tribal people and

8 all of our programs that we have. This is the crux

9 of what Native Americans have to live by in this day

10 until we can diversify and get other -- other

11 businesses to make us as much money as gaming, and

12 you know that's going to be difficult. So, we need

13 support from you as well as each other to continue on

14 with this fight. And I don't think it's just in

15 Oklahoma. Just like Granthum said, Colorado, Arizona

16 or the Colorado River Indian Tribes in Arizona,

17 California tribes and tribes all over. You know, we

18 need -- Jamie is the chair -- I used to be the

19 secretary of the National Indian Gaming Commissioners

20 and Regulators, and all of those tribes joined

21 together in a force to try and prevent major changes

22 in their operations and the regulations. So, please

23 help us do that.

24 MR. JOHN BARRETT: To -- and to follow --

25 to follow up on that, if -- if I may. The Citizen

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1 Potawatomi Nation operates the largest stand-alone

2 grocery store in Oklahoma, a great big place. And

3 the state is saying that we have to collect 8-1/2

4 percent sales taxes on their behalf, which we do not.

5 That issue has already been litigated back in 1991

6 but it's about to be litigated again. And the way

7 they're coming at us is to say that, if we don't

8 collect taxes for them, they're going to pull our tax

9 number, and if we don't have a tax number, we can't

10 get a liquor license, and if we don't have a liquor

11 license at our casino, we are at a competitive

12 disadvantage. And that's how they're coming at us.

13 They're saying that, if you do diversity, if you do

14 build a grocery store, if you do build a ballpark, if

15 you do build a bowling center, if you don't collect

16 the state's taxes, they're going to come at you by

17 diminishing your ability to compete on the gaming

18 side. And we need an advocate in the worst way. And

19 I would seek forgiveness for you if you exceed your

20 authority in dealing with the state.

21 MR. JONODEV CHAUDHURI: Thank you, chair.

22 Well, let me -- let me just say a couple of things,

23 because this is very helpful conversation and -- and

24 I would like to think it goes beyond any -- any one

25 agency. There are a lot of -- a lot of voices

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1 supporting sovereignty in Indian country and economic

2 development.

3 But let -- let me say a couple of things in

4 response because I don't -- I don't want to get too

5 off-track from the specific consultation topics. You

6 know, I want to everybody have a chance to -- to get

7 on the record regarding the specifics. But I think

8 folks are on record on numerous occasions -- and I'll

9 make it a little personal in this regard. I'm

10 personally on record, you know, quite a bit over the

11 last several months explaining how our role as

12 regulators is supportive of Indian country and the

13 stated goals of IGRA, namely supporting tribal

14 self-sufficiency, economic development,

15 self-determination and self-governance. So,

16 everything we do -- and just to kind of provide

17 additional context about why I may be parsing my

18 words very carefully. Everything we do has to be

19 done within the context of IGRA. And so, I can say

20 those things with -- in -- in full support of the law

21 because it's in IGRA. My personal beliefs and

22 certainly my personal career as an attorney for --

23 for a number of sovereign nations and an organizer

24 and an advocate and a judge for many others,

25 certainly says what it says about where I may

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1 personally come down from a personal perspective.

2 But if we parse our words very carefully, it's

3 because everything we do, any -- any support we

4 provide is done in that larger context. So, there

5 are some things that are just -- some things

6 naturally flow from us doing our jobs to support

7 self-sufficiency and self-determination and economic

8 development and those things we can do quite

9 assertively. Now, it may just turn out that our

10 performing those functions turns out to be very

11 helpful to -- to tribes and tribal regulators, and

12 that would -- on a personal level, nothing would make

13 me happier than that. But if we're going to be

14 strong regulatory partners of you and not be seen --

15 not be seen as -- well, as something we're not, we

16 have to be very careful of maintaining our -- our

17 hats.

18 So, my personal positions may be one thing,

19 but what I can say may be -- well, what -- not can; I

20 can say whatever I want. But what I should say, in

21 keeping with -- with our statutory mission, may be

22 slightly different.

23 So, we've heard you loud and clear that you

24 need a partner, and we see ourselves as a partner.

25 We've also heard you loud and clear that you need an

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1 advocate. We've got to be very careful in terms of

2 our we frame our role. Our role is to implement

3 IGRA. It may turn out that we end up -- and turn out

4 to be that we end up being the strongest partner

5 you've ever had in doing that, but, once we start

6 getting into the advocacy world, we're -- we're

7 stepping into somebody else's territory that

8 diminishes the larger regulatory structure that --

9 that's important to all of us. And so, if I'm being

10 careful, that's -- that's where it's coming from.

11 Make sense?

12 MS. ELIZABETH HOMER: Yeah.

13 MR. JONODEV CHAUDHURI: Okay. And, again,

14 I don't want to get off-topic. I am -- definitely

15 every single comment is valuable. And we've heard

16 primarily comments regarding the -- the class 3 side

17 of things, the guidance side of things. But if there

18 are any other comments, those are-- regarding the

19 other topics, those are helpful as well. But we want

20 everybody to have an opportunity to -- to voice their

21 perspective on the record as much as possible. I do

22 not mean to be talking as much as -- as much as I am,

23 but it comes with the territory.

24 MS. LESLIE TANYAN: Leslie Tanyan,

25 executive director, Absentee Shawnee Gaming

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1 Commission.

2 What I want to say is just that I want to

3 agree with my fellow regulators on their sentiments

4 that they've expressed today. Right now we're at a

5 critical time with the State of Oklahoma and with the

6 governor who is not Indian friendly. And we also

7 have a state compliance agency that is very --

8 they're -- they're just not knowledgeable in gaming.

9 So, that's -- those are some of the things that our

10 tribes are dealing with.

11 So, when you start talking about withdrawing

12 542, I ask that you just really consider the impact

13 that it's going to have on all tribes. Specifically

14 the Absentee Shawnee Tribe is a -- considered one of

15 the smaller tribes. And so, anytime that you're --

16 you're looking to withdraw any kind of regulation or

17 whether you're even going to implement any kind of

18 regulation, it has to be intact.

19 So, as a representative of the gaming

20 commission, I just want to say that this is a time

21 where it's very tight and we need to allow our tribal

22 leaders to be able to sit down at the table with the

23 governor if she's -- will do that so that they can

24 negotiate in good faith. So, this is a time that we

25 do need to give our tribal leaders their support and

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1 not hinder them in any way.

2 That's all I have to say.

3 MR. JONODEV CHAUDHURI: Thank you for your

4 comment.

5 Yes, sir.

6 MR. WILLIS DEATHERAGE: I've got one little

7 thing. That's okay, Barbara, I'll come to you. I

8 was waiting for Liz to get up.

9 Again, my name is Willis Deatherage, chairman

10 of the Seminole Nation Gaming Commission.

11 Moving on from -- from topic number 3 to

12 topic number 4, the BIGS situation. Who is going to

13 be responsible for placing some safeguards in that --

14 in that area to protect the assets of the Nation's?

15 You know, over the past three days we've heard

16 multiple times that our job is to protect those

17 assets. So, who will be in charge of -- of putting

18 some teeth into this legislation you're talking

19 about?

20 MR. JONODEV CHAUDHURI: Thank you, sir.

21 Well, our obligation to be good stewards of

22 the resources that are submitted to the NIGC through

23 fees exists separate and apart from any of our other

24 rules. I would also suggest that the trust's

25 responsibility between the federal government and

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1 tribes goes beyond any -- any one agency. I mean,

2 folks tend to think of specific agencies, such as

3 NIGC or maybe other folks at DOY as the primary

4 trustees, but the -- the trust responsibility is

5 between the federal government and the tribes, so you

6 have a responsibility that exists regardless of any

7 given law in place.

8 So, our responsibility to -- to safeguard and

9 to make appropriate use of our -- of our budget and

10 our funds will remain -- you know, will remain in

11 place. We have a -- I mean, we've got a fiduciary

12 responsibility. And I would submit that other

13 agencies do as well.

14 MR. JOHN BARRETT: Well --

15 MR. JONODEV CHAUDHURI: Chairman, you are

16 really going to get me in trouble here.

17 MR. JOHN BARRETT: You know, I'm -- I'm

18 coming up on 40 years in office here, so...

19 Buy Indian has about as much to do with

20 buying Indian-manufactured goods as the Small

21 Business Administration had about helping small

22 business. They aren't the same. Small Business

23 Administration is about helping large business put a

24 small business face on something in order to keep

25 small business from actually competing. So, you get

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1 these one-woman, one-man shops in Crystal City that

2 purport to be small business manufacturers that are

3 really nothing but brokers and fronts.

4 Buy Indian was that way. The only Buy Indian

5 that -- for 50 years was pencils. I mean, seriously.

6 You know, I did my best to sell them myself.

7 The whole Buy Indian issue, let's -- let's

8 just hope you escape unscathed. I just hope that

9 nobody doesn't come in and cost you extra money.

10 Because if the rules are enforced the way the Small

11 Business Administration's rules are about minority

12 contracting, if that's the set of rules you're going

13 to go by, or if the -- the Department of Defense's

14 minority business enterprises, all of those are

15 shalls. So, let's hope that your Buy Indian, you

16 know, doesn't end up increasing your budget so you

17 have to come get in our pocket again, so...

18 MR. JONODEV CHAUDHURI: Well, a joke about

19 recycling home-grown dollars comes to mind, but I

20 won't make -- I won't make that joke.

21 So, you mentioned a couple of things. So,

22 no, it -- it is, first of all, a real initiative that

23 we'd like to consider undertaking hand in hand with

24 -- with all of you, so it -- it certainly won't be

25 pro forma by any means.

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1 But, second, this isn't going to be our SBA

2 -- I mean, this isn't being generated out of the SBA

3 rules. And, in fact, under the language of the

4 consultation that went out, we recognize that seeking

5 secretarial not -- not authority -- delegation under

6 the Buy Indian Act may be a potential route to go.

7 But the proposed rule that -- or the proposed

8 regulation that we're issuing is part of our inherent

9 authority and is actually consistent with -- it-will

10 basically be our FAR. And, you know, we have our --

11 our attorneys here to -- to speak more to that. But

12 basically there's going -- there is, has been and

13 will continue to be a requirement that we seek fair

14 market value for -- for the acquisition of goods and

15 services. Our proposed regulation simply says, if

16 we're going to be doing that and a native business or

17 individual is going to provide that fair market

18 value, why wouldn't you go in that direction.

19 So, you have questions regarding -- regarding

20 fiduciary. Part of our financial responsibilities

21 are certainly something we -- we keep in mind. But

22 everything else being equal, why wouldn't you go with

23 the native? I mean, in this respect, we have a

24 slightly different perspective than other agencies.

25 First of all, I can't speak for the BIA, but the

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1 BIA's implementation of its own rules under the Buy

2 Indian Act took place just a few years ago in terms

3 of the new regulations that the BIA issued. Our

4 rules are -- are very similar to those rules. I

5 can't speak to -- I mean, fortunately, I wasn't

6 around 50 years ago, but, you know, I was around

7 and -- you know, I can't speak to what happened back

8 then, although I have an idea what my parents may

9 have been up to about 44 years ago. I can't speak to

10 how things played out 50 years ago, but all I can say

11 is the BIA rules are new, what we're looking at is

12 new, and it is -- it's, by no means, pro forma.

13 I don't know if you want to talk about the

14 interplay between the FAR and the --

15 MR. ERIC SHEPARD: Maybe Armando would

16 be...

17 MR. ARMANDO ACOSTA: Well, the -- the BIA's

18 rules are simply subalimentation to the federal

19 acquisition regulations. And, you know, they come in

20 and they provide -- you know, they say do take, quote

21 -- they have some -- some set-asides, they take

22 quotes from -- from Indian-owned businesses and they

23 have to -- I mentioned this before, it has to be a

24 fair market value. So, just because it's an

25 Indian-owned business, that if it's going to cost you

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1 double than if you went somewhere else, we're not

2 going to do that. You know, it does have to still be

3 a fair market value. And we have contracting

4 officers who will look out for that. You know,

5 that's their responsibility. They're the ones who --

6 they're the only ones who can contract on behalf of

7 the government. They're personal -- personal --

8 personally liable if they make a purchase that --

9 that wouldn't be in the best interest of the

10 government, so...

11 MR. JONODEV CHAUDHURI: Thank you, Armando.

12 Suffice -- suffice it to say that we're very,

13 you know, mindful of -- of, you know, being good

14 stewards of -- of tribal dollars, but we also

15 understand the close rule that we have in supporting

16 -- or the statutory rule that we have in supporting

17 tribal self-sufficiency and tribal economic

18 development. So, our agency is not the SBA.

19 We have about 15 minutes left, and I

20 definitely want everybody who wishes to be on record

21 to have the opportunity to -- to get on the record.

22 There's certainly no law saying that we can't finish

23 early, but I definitely want to just remind everyone

24 the floor is open and we really do want to hear from

25 anybody and everybody that has something to say.

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1 Yes, sir.

2 MR. BUDDY YORK: I'll meet you halfway.

3 I probably don't need this either. I kind of

4 have a big mouth. Buddy York, Muskogee Creek Nation.

5 My hope -- I don't want to beat what I hope

6 is a dead horse anymore, but we really can't afford

7 to give the state any leeway when it comes to

8 renegotiating these contracts. So, you know, the

9 gaming commission for the Creek Nation would -- we're

10 -- we're against doing away with 542 due to the fact

11 that we think that that would give the state some

12 type of leverage over us which they're looking for

13 very hard. That's all.

14 MR. JONODEV CHAUDHURI: Thank you, mister

15 -- let me also say this. In terms of proposals or

16 suggestions, I mean, I think every comment should be

17 on the record, so, if it's -- if it's 22 comments

18 that are recommending that the rules not be taken

19 down or if it's 222, all comments are important. But

20 in the -- but, as far as that piece goes, I -- I'm

21 confident that we've heard some great comments today

22 clearly expressing the -- the desire of many of the

23 folks in this room to not have the -- the current

24 regulations taken down.

25 That said, in recognizing the request for

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1 some sort of guidance regarding class 3, maybe not

2 from folks in this room but in other capacities

3 throughout other parts of Indian country, if there

4 are specific proposals in addition to the comments

5 submitted already regarding how to provide that type

6 of guidance -- and we -- we heard some -- some

7 proposals provided today. But if there's specific

8 ideas about how to address those requests that we

9 actually -- that we have received while not creating

10 these unintended consequences that you've mentioned,

11 we're all ears. And so, we are definitely sensitive

12 to the fact that concerns have been raised regarding

13 pulling down the 542 regulations, but if there are

14 other suggestions about providing those -- guidance

15 to the folks that have requested it without running

16 afoul of what's going on here, any -- any

17 suggestions -- and, again, it doesn't have to be on

18 the record today; it can be in writing, is always

19 appreciated.

20 So, we -- we've heard what you don't want us

21 to do, in other words. Is there -- are there any

22 suggestions about what we could be doing?

23 MR. JAMIE HUMMINGBIRD: Funny you should

24 ask.

25 MR. JONODEV CHAUDHURI: What is that?

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1 MR. JAMIE HUMMINGBIRD: I said funny you

2 should ask. Be careful what you ask for. Just

3 kidding. Jamie Hummingbird, Cherokee Nation Gaming.

4 Just some parting comments. First of all, I

5 -- I apologize for being remiss. I should have taken

6 the opportunity before I started this afternoon with

7 my comments by saying congratulations on your

8 appointment. It's nice to not have that --

9 (Applause)

10 MR. JAMIE HUMMINGBIRD: Now that the

11 niceties are over, I -- I do want to say, I think --

12 I can't say I speak for everybody in this room, but I

13 think most would agree that, as tribal gaming

14 regulators, as tribal leaders, we recognize and

15 appreciate the position the NIGC is in, in the sense

16 that the proverbial rock and hard place comes to mind

17 when it comes the jobs that you guys are called to

18 perform. And while you may not always be able to be

19 an advocate for tribal regulator, tribal gaming, it's

20 not necessary to have to be an adversary either. So,

21 all we do is that whatever comments are submitted by

22 tribes throughout this whole consultation process,

23 that they be carefully considered, given fair review

24 and ask that the NIGC really take its time in

25 contemplating the possible impacts that the decisions

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1 that you will have on rulemaking could have on Indian

2 country.

3 And with that I would say mado (phonetic).

4 MS. ELIZABETH HOMER: Elizabeth Homer.

5 And, if I might, Mr. Chairman, I want to echo

6 what Jamie said. Congratulations for a long --

7 finishing this long period of torture by our United

8 States Congress and we're really happy that you're in

9 place. And also congratulations to Eric Shepard,

10 named officially, you know, the General Counsel, so

11 that's -- that's excellent. We're happy about that

12 news too.

13 MR. ERIC SHEPARD: Thank you.

14 MS. ELIZABETH HOMER: I just wanted to say,

15 you know, in front of everybody how much I appreciate

16 the way that you guys have approached this whole

17 thing. You haven't slapped a proposed rule down on

18 the table for us to respond to, but you've come to us

19 with some general ideas and you sought our feedback

20 in a very open and candid way. And that is the kind

21 of relationship I think we've always wanted to have

22 with the NIGC and it's very encouraging that you're

23 starting out your administration in this way.

24 So, thank you very much.

25 (Applause)

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1 MR. JONODEV CHAUDHURI: Thank you,

2 Ms. Homer.

3 Well, with that --

4 MS. BARBARA COLLIER: I might say there are

5 some other regulators out here that should be

6 probably making some comments. I don't know why

7 they're being so shy.

8 MR. JONODEV CHAUDHURI: Ms. Collier, thank

9 you -- thank you so much for that. I was going to

10 say we still have six minutes, seven minutes. And on

11 top of that, if we don't end on time, I -- I probably

12 shouldn't -- for once, Chairman Burris -- I'm getting

13 myself in trouble on this one.

14 But if we go over time, it's not the end of

15 the world too, so I don't want anybody to -- to feel

16 that they can't speak right now.

17 MR. WILLIS DEATHERAGE: With that said, I'm

18 going to pass this microphone.

19 MR. JONODEV CHAUDHURI: Okay. Well, with

20 that, going once, going twice, going three times.

21 Thank you all so much for your comments.

22 Better, for worse, you know, the answers may be hard,

23 the -- the challenges may be difficult, but I'm

24 convinced working together and talking through issues

25 we'll get there and -- hand in hand in partnership.

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1 So, mado (phonetic) for even the tough comments. And

2 thank you very much. We'll continue -- continue

3 working on these issues.

4 Safe travels to all of you.

5 (Applause)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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&

& 8:15,17,23 10:9

10:10,13,15,16,18

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1

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15 78:19

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2 20:1 23:15 28:17

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20th 13:17

22 79:17

222 79:19

22nd 13:20

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4 73:12

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8:21 22:22 71:25

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26:16,16 44:18

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account 16:15

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achieve 50:7

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act 14:24 15:2,13,19

15:21,23 16:8,12,20

17:6,17 21:10,13,16

21:20,20,23 33:21

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ahead 2:3

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appendix 56:19,19

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tried 66:22,23

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true 85:6

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trust's 73:24

trustees 74:4

try 41:18 65:23

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trying 30:17 35:2

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tsunami 34:9

tulsa 1:16,16 6:2,10

turn 30:21,21 70:9

71:3,3

turning 43:1

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twice 83:20

two 4:11 15:22

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type 38:16 79:12

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typically 17:23

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uh 27:18 41:8 42:2

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un 3:15 35:1

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unenforceable

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unintended 35:2

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unit 60:15

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82:7

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update 19:6 31:16

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v

vacuum 63:22

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76:14,18 77:24 78:3

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29:20 50:20,25

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voices 24:1,2 68:25

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29:5,8 35:3 36:15

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56:13 59:15 62:23

64:18 68:6,18 73:1

75:4,10 82:16,20,23

ways 29:17 30:15

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we've 24:22 28:12

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51:7 55:15,22 58:14

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73:15 74:11 79:21

80:20 82:21

weapon 65:4

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25:11 38:15

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wheeler 1:15 6:1

10:8,8

whereof 85:12

wichita 8:15 9:8

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willis 2:14,18 6:22

6:22 52:6,10,11,13

73:6,9 83:17

wilmeth 9:11,11

wilson 9:7,7

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withdraw 19:16

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withdrawal 26:2

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withdrawing 27:3

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withdrawn 45:22

witness 85:12

wolfe 7:18,18 22:21

22:22 23:8 24:12,14

24:19 25:1,2,6,11

woman 75:1

wood 10:18,18

words 54:3 62:17

69:18 70:2 80:21

work 16:2 35:16

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64:20 83:24 84:3

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36:11,18 37:1 40:6

wrong 53:8 65:20

wyandotte 11:6

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yeah 24:14 31:3

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