Tracie Stevens, Chairwoman

February 7, 2011
Page 5

Tribal gaming industry and the FCPC Gaming Commission does not
support opening these issues again at this time.

Backgrounds and Licensing (25 C.F.R. § 556).

The NIGC questions whether a Pilot Program to simplify the
reporting of background investigation results should be made
permanent. This Pilot Program allows Tribes to send a list of
employees they have licensed or denied, along with a one-page
Notification of Results. Anything that will simplify the work of the
background investigators should be made permanent and the FCPC
Gaming Commission supports the NIGC’s attempts to formalize this
Pilot Program by revising its regulations. This is a high-priority issue.

The NIGC also questions whether it should adopt regulations to allow
Tribes to submit fingerprint cards to the NIGC in connection with
vendors, consultants and other non-employees whom the Tribes wish
to license. This is an issue which the FCPC Gaming Commission
brought to the attention of the NIGC several years ago. It is the
policy of the FBI, as set forth in a letter to the NIGC, dated November
26, 1997, to only allow Tribes to have access to fingerprint data and
criminal history information (“CHI”) in connection with background
investigations for individuals seeking Tribal gaming licenses, as key
employees or primary management officials. These two categories of
employees are specifically identified in IGRA and the appropriate
NIGC Regulations as persons to be licensed by the Tribes. It is the
FBI’s policy that access to federal CHI for background investigation
and licensing purposes is only possible if authorized by a specific
federal Jaw or by a state law approved by the United States Attorney
General. In the area of Indian gaming, federal law (IGRA) only
authorizes access to CHI for key employees and primary management
officials. Therefore, access to federal CHI for other types of
background investigations, such as vendors and consultants, is only
permissible under federal law (P. L. 92-544) when specifically
authorized by a state statute.

Access to federal CHI for vendor background investigations is not
specifically set out in IGRA or federal regulations. Wisconsin Law
(Wis. Stat. Sec. 569.04) authorizes the State Department of
Administration to take fingerprints and to submit those fingerprints to
the FBI for any employee of a Tribal gaming operation and for
gaming vendors. However, “gaming vendors” is specifically defined
in State statute (Wis, Stat. Sec. 569.04(1)) as those vendors providing


Tracie Stevens, Chairwoman
February 7, 2011

Page 8

As to Tribal Advisory Committees, these have proven to be a valuable tool
for the NIGC, but they need to be flexible to meet the specific needs of the
issue of the NIGC and of the Tribes. As such, the FCPC Gaming
Commission opposes a significant new regulation on this issue. A detailed,
new regulation runs the risk of undermining the flexibility necessary in order
to provide for meaningful TACs. If any new regulation is to be adopted, it
should be limited to language laying out the authority to establish TACs, the
authority given to individual TACs, the use to which TAC recommendations
would be given and the methodology for appointing TAC members. This is a
medium-priority issue.

IGRA requires that Tribes have “the sole proprietary interest and
responsibility for the conduct of any gaming activity.” 25 U.S.C. §
2710(b)(2)(A). This language is clear and a new regulation is not necessary
in order to make the regulation more understandable. To the contrary, a new
regulation could make these commonly understood terms less
understandable.

Through Executive Order and NIGC policy, the NIGC regularly
communicates with Tribes. Regulations setting forth the process for
communication are unnecessary and counter-productive, as the appropriate
and proper method for effectively communicating with various Tribes varies
tremendously from Tribe to Tribe, and a single regulation will not enhance
communication.

The NIGC is considering adopting a regulation to require the NIGC to give
preference to qualified Indian-owned businesses when purchasing goods or
services under the Buy Indian Act. Such a regulation is not necessary, as the
Buy Indian Act (25 U.S.C. § 47) speaks for itself and the NIGC does not
need a regulation to adopt the Act for its own internal purchasing.

Other Regulations.

The NIGC Notice of Inquiry lists 11 other current regulations which the
NIGC believes do not require revision. There are no bases for concluding
that any of these 11 current regulations need revision. Therefore, the FCPC
Gaming Commission opposes any revisions in these sections.

The San Manuel Band of Mission Indians Gaming Commission’s written
comments observed, however, that in the area of civil fines, the NIGC has in
the past obtained civil sanctions in a way that would permit the payments to
operate for the benefit of the Tribe in question. (Civil fines generally are
payable to the United States Treasury and do not benefit the individual


Tracie Stevens, Chairwoman

February 7, 2011
Page 4

Management Contracts (25 C.F.R. §§ 531, 533 and 537).

As mentioned above, the FCPC no longer has any management
contracts, as currently defined by the NIGC. The proposed NIGC
revisions, like the revisions to the definition of “management
contract,” would only expand the NIGC’s jurisdiction over financial
arrangements and expand its regulatory authority. The FCPC Gaming
Commission opposes these changes, as they would only provide the
NIGC with the authority to second-guess FCPC’s business decisions.
This is a moderate-priority issue.

Proceedings before the Commission.

The NIGC proposes to add a series of procedural rules to govern
situations where the NIGC alleges that a Tribe has violated the terms
of IGRA or the regulations. The FCPC Gaming Commission supports
providing more detailed and comprehensive procedural rules for the
benefit of Tribes, Licensees have due process, so should Tribes. This
is a moderate-priotity issue,

MICS and Technical Standards (25. C.F.R. §§ 542, 543 and 547).

In the Colorado River Indian Tribe (“CRIT”) case, the United States
District Court for the District of Columbia ruled that the NIGC lacks
the authority to impose Class III MICS on Tribes. Nevertheless,
several states, including Wisconsin, require the Tribes to develop
Class HI MICS that are “at least as stringent as” the NIGC Class III
MICS. (See Forest County Potawatomi/State of Wisconsin Compact,
Sec, XXXIV.C.) Because the FCPC Tribal MICS are evaluated in
comparison with Class II] MICS adopted by the NIGC, it is in the
FCPC’s best interest to have current and up-to-date NIGC MICS.
Therefore, the FCPC Gaming Commission supports the revision and
updating of Class III NIGC MICS. Because of the CRIT’ case,
however, we recommend that the standards be considered
“recommended guidelines,” rather than required MICS. Also, the
FCPC Gaming Commission supports the involvement of a Tribal
Advisory Committee (“TAC”) to participate in the revision process
for the updated Class III MICS/Recommended Guidelines. This is a
high-priority issue.

The NIGC is also requesting Tribal input on a process for revising
Class If MICS and for revising Technical Standards for Class II
games, This issue has been the subject of significant debate in the


Tracie Stevens, Chairwoman

February 7, 2011
Page 6

goods or services which are “unique” to gaming.! Section VII of the
Forest County Potawatomi/State of Wisconsin Compact requires the
State to investigate and certify all vendors who provide goods and
services to the Tribe “which are unique to the operation of gaming.”
Pursuant to Wis. Stat. Sec. 569.04, the State is authorized to obtain
FBI fingerprint data and CHI on all such vendors providing goods or
services which are “unique to the operation of gaming.” Neither
Wisconsin law nor the Compact address the licensing, fingerprinting
or obtaining of CHI related to the background investigation of
vendors who are providing goods or services that are not “unique” to
gaming. The Potawatomi vendor licensing program licenses all
vendors, including those that provide goods or services that are not
“unique” to gaming. It is this group of vendors for which the
Potawatomi seeks access to CHI from the FBI.

On February 26, 2008, representatives of the FCPC Gaming
Commission traveled to Washington, D.C., for the specific purpose of
gaining access to FBI CHI in connection with the licensing of
vendors. We met with Tracy Toulou, Director, Office of Tribal
Justice, Department of Justice, and with NIGC Chair Phil Hogen,
Commissioner Norman De Rosier and two NIGC attorneys. Despite a
favorable and encouraging response and a promise to address the
problem, to date there has been no change in federal law, procedures,
regulations or agreements to give Tribes access to federal fingerprint
and CHI data in the case of non-employee vendors and consultants.
This access is crucial. This is not exclusively a Potawatomi concern.
Chair Hogen stated that other Tribes had brought this issue to the
NIGC’s attention. The FCPC Gaming Commission strongly supports
revisions to regulations to allow for this procedure. This is a top-
priority matter.

Facility License Notifications, Renewals and Submissions (25 C.F.R.
§ 559).

The FCPC Gaming Commission believes that 25 C.F.R. § 559.5
should be revised either by removing it or by providing that the
section applies only if health and safety concerns are not addressed in
the Compact between the State and the Tribe. Environmental health
and safety concerns are inherently local in nature. They are not
amenable to a federal standard or to federal oversight. For example,

Section IX. of the Forest County Potawatomi/State of Wisconsin Compact requires background

investigations of all employees, not simply key employees or primary management officials. Section IX.E of
the Compact also requires the State to release to the Tribe all criminal history information on such employees.
‘The State gets access to this CHI from the FBI through Wis. Stat. Sec. 569.04 (see above).


Tracie Stevens, Chairwoman
February 7, 2011
Page 9

Tribe.) The San Manuel suggestion has merit and the NIGC should continue
to pursue civil sanctions where appropriate in a manner that benefits the
payer Tribe. These practices, however, do not require revisions to the
regulations.

Tf you have any questions, please do not hesitate to contact me.

hk enneth George, Jr.
Chairperson
Forest County Potawatomi Gaming Commission

cc: Laeo Echo-Hawk, NIGC (via email: reg.review@nigc.gov)
Commission Members
Milton McPherson
Frankie Gillespie
Thomas B. Heffelfinger

014505/200298/1284585_1


ounty Pot,
3 <a

1721 West Canal Street, Milwaukee, WI SBE88
414-847-7679 © 1-800-BAYS-BIG Ext. 7699 © Jax (414) 605-8554

February 7, 2011

VIA EMAIL (reg. review@nige.gov),
MAIL TO FOLLOW

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

Re: National Indian Gaming Commission Notice of Inquiry

Dear Ms. Stevens:

We write in response to your Notice of Inquiry seeking comments regarding
potential revisions to existing National Indian Gaming Commission (“NIGC”) Regulations,
or potential creation of new Regulations.

We had the honor to attend a consultation with you and the other Commissioners in
Rapid City, South Dakota, on February 1, 2011. This response is based on our review of
your proposals and our consideration, as well as what we saw and learned during the
consultation.

It is clear that all Tribes are different, and the issues they face are different. This was
abundantly clear in Rapid City as the concerns of the South Dakota Tribes are dramatically
different from those of us in Wisconsin. Because we cannot speak for other Tribes, our
comments reflect the experiences of the Forest County Potawatomi Community (“FCPC”).

We will address the items noted in your Notice of Inquiry (“NOT”) using the same
basic organization as contained therein.

1. Definitions (25 C.F.R. § 502).
a. Net Revenues.

NIGC regulations should be amended to make clear that the
term “net revenues” is defined in a manner consistent with
Generally Accepted Accounting Principles (“GAAP”), This is
not clear from the current definition. Until approximately nine


Tracie Stevens, Chairwoman
February 7, 2011

Page 7

10.

11.

Sec. XIV of the Forest County Potawatomi/State of Wisconsin
Compact is devoted entirely to Public Health and Safety and requires
the Potawatomi to comply with specified Wisconsin State laws. It
also requires the Tribe to engage a State-certified inspector to conduct
regular health and safety inspections. In addition, the Cooperation
and Jurisdiction Agreement which covers the Tribe’s Milwaukee
properties (Potawatomi Bingo and Casino and the Concordia College
Trust Property) requires compliance with Milwaukee Code Standards
for Health, Safety and the Environment. The addition of federal
environmental health and safety issues and a new reporting
requirement, as reflected in 25 C.F.R. § 559.5, only add a needless
layer of regulation and do not enhance the safety of Potawatomi
gaming facilities. This is a high-priority issue.

Inspection and Access (25 C.F.R. §§ 571.1 — 571.7).

On occasion, NIGC investigators have been denied access to casinos
and their records. The current regulations are clear that the NIGC has
the right to access all records of a Tribal gaming enterprise, regardless
of whether those records are stored on- or off-site. This is not an
issue for the FCPC. Therefore, the FCPC Gaming Commission sees
no need for revisions to the regulations.

Enforcement (25 § 573).

The NIGC questions whether a regulation should be added to allow
the NIGC to withdraw a Notice of Violation after it has been issued.
There is nothing in the current regulations that would prevent the
NIGC from withdrawing a Notice of Violation. For that reason, and
because this has not been an issue for the FCPC, the FCPC Gaming
Commission sees no need for revisions to the regulations.

Potential New Regulations.

The NIGC questions whether it should adopt regulations regarding:

a, TACs;
b. Sole Proprietary Interest;
c Communication Policy identifying when and how the NIGC

communicates with Tribes; and

d. Buy Indian Act.


Tracie Stevens, Chairwoman
February 7, 2011
Page 2

months ago, the FCPC and the State of Wisconsin were in
extended negotiations and disagreement in part over the
definitions of “net revenue” and “net win.” It would have
hastened the settlement resolution of this dispute had it been
clear in the NIGC regulations that “net revenue” was defined
to be consistent with GAAP. This amendment is of moderate
importance.

The NIGC also questions the need to amend the definition of
“net revenue” to further specify the allowable uses by Tribes
of the net revenues from Tribal gaming, as laid out in IGRA
(25 U.S.C. § 2710(b)(2)(B)). The terms laid out in IGRA are
clear and unambiguous, and have not presented a problem for
the FCPC. NIGC regulations in this area would only limit the
Tribe’s ability to use its own money. Therefore, the FCPC
Gaming Commission opposes attempts to further define “net
revenue” in the area of allowable uses of net revenues from
gaming.

Management Contract.

The NIGC questions whether it should adopt regulations to
expand the definition of “management contract,” including,
for example, any contract that provides for payment of a fee
based on a percentage of gaming revenues. Since the adoption
of IGRA, most managers have moved away from
“management contracts,” as defined in IGRA. Therefore,
there are very few such contracts being evaluated by the
NIGC. Such management arrangements are now handled in
other ways, such as service contracts, consulting agreements,
etc. In addition, “management contracts” are of less
importance to Tribes than they were 20 years ago, as most
Tribes have developed the internal capacity to manage their
own operations, The FCPC Gaming Commission opposes any
revisions to the definition of “management contract.” Any
such revisions would only provide the NIGC with control over
business agreements for which it currently lacks jurisdiction.
The FCPC runs sophisticated gaming operations and does not
need federal regulatory oversight to advise it on the types of
business arrangements into which it should enter. This is a
medium-priority issue.


Tracie Stevens, Chairwoman

February 7, 2011
Page 3

Fees (25 C.F.R. § 514).

The NIGC is considering revising regulations regarding the timing of
fees paid to the NIGC. The NIGC proposal would move the payment
of NIGC fees from a calendar year to a fiscal year. The NIGC
proposal to move to a fiscal year would match the Tribe’s fiscal year
and would be of assistance from an accounting perspective. This
proposal is a good, common-sense idea and the FCPC Gaming
Commission supports it. This is a low-priority issue.

The NIGC also questions whether fees paid to the NIGC for
fingerprint processing should be included in the computation of the
statutory limitation on fees paid by Tribes. To the extent that the
FCPC pays fees to the Federal Bureau of Investigation (“FBI”) or the
NIGC to process fingerprints, it appears wise to include that in the
amount collected by the NIGC, which is subject to a statutory
limitation. This is a low-priority issue, as it does not really impact the
FCPC,

The NIGC also is considering using a “late payment system” in lieu
of a “Notice of Violation (““NOV”)” if fees are submitted late. This
appears to be a “user-friendly” change, which the FCPC Gaming
Commission supports. This is a low-priority issue.

Self-Regulation of Class II Gaming (25 C.F.R. § 518).

Experience in the national Indian gaming community has shown that
the process for obtaining Class II self-regulation certification is overly
burdensome and the burden of completing the process outweighs any
benefits. Any revisions to regulations which will make obtaining self-
regulation certification less burdensome should be supported by the
FCPC Gaming Commission. Similarly, a process that would allow
for Class II self-regulation certification should be considered by the
NIGC. Anything that will reduce the amount of federal and state
regulation is good. This is a moderate-priority issue.

Review and approval of existing ordinances or resolutions (25 C.F.R.
§ 523).

This provision applies only to ordinances enacted by Tribes prior to
January 22, 1993, As such, it is obsolete and irrelevant. The FCPC
Gaming Commission should support the NIGC’s consideration of a
cancellation of this regulation.