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12 NATIONAL INDIAN GAMING COMMISSION

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14 SOUTHERN GAMING SUMMIT AND BINGO WORLD CONFERENCE

15 AT MISSISSIPPI COAST COLISEUM AND

16 CONVENTION CENTER

17

18 BILOXI, MISSISSIPPI

19

20 MAY 5, 2011

21

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24 Reported by:

25 Job No. NJ346998 LAUREN SCHECHTER, CSR

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1 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

2 Good morning and thank you for joining us this

3 morning. We're going to go ahead and get started

4 with some introductions and some basic material.

5 Our Court Reporter is on the way. It's most

6 important that the tribal comments be captured, so

7 we're going to go ahead and get started and then

8 hopefully by the time the reporter gets here, they

9 can set up and then they'll be present to record

10 the actual conversation from the substantive side

11 of things.

12 So, my name is Steffani Cochran. I

13 am the vice Chairwoman of the National Indian

14 Gaming Commission and I'm a member of the

15 Chickasaw Nation. I am joined with the Chairwoman

16 Tracie Stevens who is a member of the Tulalip

17 Tribes in Washington. And also I'm joined by

18 associate Commissioner Dan Little who comes to us

19 via the Mashantucket Pequots. He spent ten years

20 as their Director of government relations. So I

21 am here representing the Commission today, and

22 it's my honor to be here today with you.

23 Before we go any further though,

24 Miko Denson, I understand you're going to do an

25 opening for us this morning. And thank you for

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1 doing that, and thank you again for being with us

2 today. I know you have quite a very busy

3 schedule, so I appreciate your time, and I'll turn

4 it over to you.

5 MIKO DENSON: Thank you,

6 Vice-Chairwoman. To you and the Commission people

7 and the visitors today, I say Halito, and welcome

8 to Mississippi. Alabama and Mississippi have

9 something in common, most notably, lately, many

10 people have gotten killed with the tornados

11 affecting our area. An additional thing that

12 Mississippi and Alabama have in common, that is,

13 that's why we think that, we're here to talk about

14 and make our statements. What I say about what we

15 have common ground in both states are run by folks

16 who have not or never really appreciated in the

17 first place that Indian tribes are sovereign

18 nations. As many of you know, our Tribe recently

19 opened a casino in Jones County, the Bok Homa

20 Casino. The facility is really serving us well

21 and we are servicing some of the areas surrounding

22 us. And initially we had problems getting it

23 started, not getting the support. But we also

24 understand our rights as Tribes, and we were able

25 to put the project together.

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1 And today that effort has proved to

2 be very, very beneficial to us. The thing I want

3 to talk about, again, is just across the border

4 with the Poarch Band. The Governor has made an

5 effort to shut it down. And that's what we're

6 saying about both States, you know, both

7 Mississippi and Alabama, they have appealed to

8 NIGC, in order to, urging the NIGC to take action

9 against our sovereign tribes. And in both cases

10 I'm glad what position they took. A simple

11 message that NIGC said no; no to bullying, no to

12 threats, no to ignoring federal and tribal law.

13 We appreciate that. We must also reject the

14 blatant racism that has been hurled against NIGC.

15 The reason I say that is that the

16 realtor get is our sovereignty and our right to

17 exert control and responsibility over our town.

18 (Inaudible). We stand firm on that. That's what

19 a so-called gaming expert from Alabama said, and

20 I'm going to quote him. "NIGC executives are all

21 members of Indian Tribes. This is Indians

22 regulating Indians." This same person went on to

23 say that NIGC was inclined to ignore illegal

24 gaming operations because they want to protect the

25 Commission's funding, and they don't want to

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1 alienate their Indian relatives and friends.

2 In other words, this opponent of

3 Indian gaming is trying to say that Indians cannot

4 regulate Indian tribal gaming because our race

5 will trump our integrity. Many people said that

6 the same thing in 1988 when they argued against

7 the rights of tribes to operate, manage and

8 regulate our gaming operations. While we will not

9 always agree with the NIGC on every issue, we must

10 stand up in their defense when their

11 professionalism and integrity is attacked.

12 Especially when it's quoted in anti-Indian

13 bigotry.

14 I would like to thank the

15 Commission for taking a fresh approach at these

16 consultations with tribes, and we will be, many

17 tribes, including my own, have criticized NIGC for

18 ignoring the concerns of tribes. Particularly

19 when some of us did not agree with every aspect of

20 the Commission's agenda. I am hopeful that recent

21 dealings with the Commission are evidence of a

22 bright future of cooperation between the tribes

23 and NIGC. I am grateful to Chairman Stevens,

24 yourself, Cochran, and Commissioner Little for

25 their dedication and service, and I'm pleased to

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1 welcome them and all of you to Mississippi for

2 what I hope will be a productive round of

3 consultations. And I welcome all the other tribes

4 that are here and represented, and my friends from

5 the jena band, Poarch that I see that's here.

6 It's nice to see friends. (Speaking in Choctaw. )

7 Thank you.

8 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

9 Thank you. Thank you for the kind comments. That

10 was an interesting article. It did make our list

11 of news clips for the day. So thank you Miko

12 Denson for those thoughts and those words. And

13 again, we appreciate your time as we do appreciate

14 all the time of the tribal leadership that have

15 come out today. I'm going to ask -- I know we got

16 some people at the table -- if we got tribal

17 leadership or people who have been authorized to

18 speak on behalf of a tribe, if you want to come

19 join us, please do so at the table. There's

20 plenty of room, so we want to make sure that we

21 have everybody here that wants to be here. I'm

22 going to go around the table and I'd like to ask

23 the tribes to introduce themselves so that we know

24 who we're listening to today. And then I'm also

25 going to spend just a moment and introduce our

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1 staff that's with us. I know we've heard from

2 Miko Denson, so why don't we start with you?

3 LENORE SHEPARD: Lenore Shepard

4 (inaudible) Minneapolis, outside legal counsel to

5 Miko and the Mississippi band of Choctaw.

6 RANDY DOYLE: I'm Randy Doyle,

7 compliance officer with the Coushatta tribe of

8 Louisiana.

9 BEVERLY PONCHO: Beverly Poncho,

10 Coushatta tribal gaming Commissioner.

11 SCOTT CROWELL: Scott Crowell,

12 Crowell offices. I'm here today on behalf of the

13 Rincon band.

14 ELLIOTT MILHOLLIN: Elliott

15 Milhollin, with Hobbes, Straus, Dean and Walker.

16 I'm here for the Seminole tribe.

17 STEPHANIE BRYAN: Stephanie Bryan,

18 Vice Chairman of the Poarch band of creek Indians.

19 And I have with me today Christopher Gibson who is

20 our regulatory relations liaison as well as our

21 facility license. Daniel McGhee, who is the

22 Gaming Commission Administrator. And Ms. Sharon

23 Smiley, who is a Commissioner Secretary of the

24 Gaming Commission. And myself as the Vice Chair

25 as well as the Chairman for the Gaming Commission.

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1 DANIELLE PERKINS: My name is

2 Danielle Perkins, representing the Shoshone

3 Bannock Gaming Commission.

4 (Inaudible).

5 NATASHA MCGHEE: I'm Natasha

6 McGhee. I'm with the Poarch Band of Creek Indians

7 Tribal Gaming Commission. I am the administrative

8 assistant of Daniel and Chris Gibson.

9 SHANE YORK: Shane York. I'm with

10 the Mississippi Band of Choctaw Indians. I work

11 with the Gaming Commission.

12 WINNIE EAGLE: My name is Winnie

13 Eagle. I work for the Indigenous Gaming

14 Regulators in Canada.

15 BRYCE WARREN: Hello, everybody.

16 My name is Bryce Warren, and I am the general

17 manager for the Bok Homa Casino for the

18 Mississippi band of Choctaw Indians.

19 RAYMOND HICKMAN: Raymond Hickman,

20 Mississippi band of Choctaw Indians, casino

21 operations.

22 TERRY RENAULT: Terry Renault, Bok

23 Homa Casino, slot manager, Mississippi band of

24 Choctaw Indians.

25 CINDY ALTIMUS: A whole group of

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1 people who didn't want to put the name on the

2 record.

3 PETER STEINER: I'm Peter Steiner

4 from Cover All Entertainment.

5 CINDY ALTIMUS: This is Linda

6 McGhee. She's the compliance Director for the

7 Poarch Band of Creek Indians, and she has

8 laryngitis today.

9 JUDY FARMER: Good morning,

10 everyone. My name is Judy Farmer. I'm from the

11 Seneca nation of Indian Tribes, and I work in a

12 Class II gaming facility.

13 RENEE JIMERSON: Hi, I'm Renee

14 Jimerson from the Seneca Nation. And I work as a

15 Manager in Class II gaming.

16 KENNETH YORK: Good morning. My

17 name is Ken York. I'm the Director of Development

18 for the Mississippi band of Choctaw Indians.

19 TERI POUST: Good morning. I'm

20 Teri Poust. I'm an attorney, and I'm here today

21 on behalf of the Poarch Band of Creek Indians.

22 JUDY SHAPIRO: Good morning. I'm

23 Judy Shapiro. I'm also a lawyer. I'm here today

24 on behalf of the United Keetoowah band of Cherokee

25 Indians, and the (inaudible).

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1 JASON GILES: Good morning. I'm

2 Jason Giles, National Indian Gaming Association,

3 Deputy Executive Director.

4 ANGELA DENSON-VAUGHN: Halito and

5 good morning. My name is Angela Denson Vaughn. I

6 just recently got married, and I'm one of the

7 Associate Commissioners for the Mississippi band

8 of Choctaw Indians, on the Choctaw Gaming

9 Commission.

10 TRINA JIM: Halito and hello. My

11 name is Trina Jim. I'm one of the associate

12 Gaming Commissioners with the Mississippi band of

13 Choctaw Indians with the Choctaw Gaming

14 Commission.

15 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

16 Good morning. I have two staff members up here

17 with me. I'm going to come back to them. But I

18 know Cindy Altimus is here, and Cindy is the

19 regional Director for the D. C. Region of the

20 NIGC, and just an all around great person. And

21 then we also have Keith Hicks. Where's Keith?

22 CINDY ALTIMUS: He's out guarding

23 my computer.

24 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

25 Keith Hicks is also here. Keith is out of

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1 Flowood, Mississippi. And Lael Echo-Hawk. Do you

2 want to introduce yourself, or Michael?

3 MICHAEL HOENIG: Should I start?

4 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

5 Yes.

6 MICHAEL HOENIG: Hello. I'm

7 Michael Hoenig. I'm an attorney in the office of

8 general counsel at the NIGC, and I primarily work

9 in the D. C. Region.

10 LAEL ECHO-HAWK: Good morning. My

11 name is Lael Echo-Hawk. I'm a member of the

12 Pawnee Nation of Oklahoma, and I am the counselor

13 to Chairwoman Tracie Stevens.

14 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

15 All right. Just a few details. Cindy, do we have

16 a Court Reporter yet?

17 CINDY ALTIMUS: No.

18 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

19 If we get the Court Reporter here soon, when they

20 record, they really need to know who is speaking,

21 so even though it doesn't come naturally, just

22 identify yourself before you offer your comments

23 so that they are properly attributed, and you must

24 properly identify yourself.

25 The other thing is I know it's a

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1 little dark in here. I apologize. We are going

2 to try and up the lights at some point, but in

3 order to see the PowerPoint, it just makes sense

4 for us to leave it down for now. And then we'll

5 have them turn it up.

6 I'm going to turn it over to Lael

7 Echo-Hawk. Lael Echo-Hawk has been the master

8 mind behind this entire process. She really does

9 keep the Commission moving forward in what is a

10 very complex process that we're going to undertake

11 the regulatory review in the next year or two that

12 we have. And so I'm going to turn it over to her

13 to give some background so that we start from a

14 common place this morning. And at some point

15 we'll take a break and we'll figure out where to

16 go from there as far as the process goes. So Lael

17 Echo-Hawk, I'm gonna turn it over to you. Thank

18 you.

19 LAEL ECHO-HAWK: Okay, here we go.

20 This is the third of 33, what will be 33

21 consultations around the country. And this is the

22 -- we're starting out -- we have a series of five

23 groups and I'm going to go over that briefly.

24 This is the last one where this is going to be the

25 only group one. At our next meeting we're going

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1 to be adding in what will be known as group two,

2 and then we'll continue the same way throughout

3 the rest of the year. So this is just a little

4 contact information, reg.review@nigc.gov. You will

5 see in the next couple of days a Federal

6 Registered Notice go out that invites written

7 comments for these group one consultations. That

8 written comment period will close on May 31st. So

9 just a little heads up there. We are accepting

10 written comments, of course. They will all be

11 posted on the web site as they come in. You can

12 E-mail them, fax them, smoke signal them, do what

13 you need to do. We want to see them. We need to

14 see them in order for us to achieve the best

15 product for the industry, and for Indian country.

16 We really need your help. So please don't be shy.

17 If you are uncomfortable speaking at a mic here,

18 you can have a conversation with any of us. You

19 can call this telephone number and ask for any of

20 us, or you can E-mail us at reg.review@NIGC.gov.

21 So this process in terms of the

22 process it's led really by one of the initiatives,

23 the primary initiative of the Commission. And

24 that is consultation. Improving the NIGC's

25 relationship with the tribes through consultation.

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1 A section of the Executive Order on consultation,

2 C(3) is one that's really important, and it's what

3 we're doing here. And that is in determining

4 whether to establish federal standards, the

5 agencies need to come and consult with tribes. So

6 before we set forward a standard, we are talking

7 to you, and we are in that phase of preliminary

8 drafting. We have -- the process will encompass

9 three phases; where we're at today, which is

10 preliminary drafting with consultations and

11 written comments. We do have a discussion draft

12 on part 514, which is the fee regulation on our

13 website, and it should be in your handout as well.

14 It's a red line version. It is just a discussion

15 draft. It's not -- we haven't set anything in

16 stone. We just need some info from the tribes.

17 The discussion draft is based on

18 comments that we received from tribes during the

19 Notice of Inquiry process over the past about six

20 months. So hopefully you see some things in there

21 that you like. If you see some things in there

22 that can be improved, please let us know. So as

23 we move forward, we -- if during that preliminary

24 drafting phase, we collectively come up with what

25 we think will be a good rule, will begin the

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1 Notice of Proposed Rulemaking Timeframe; with

2 again more consultations and approximately 60-day

3 comment period.

4 So as you look at our ginormous

5 list of -- I know, my nephews have infiltrated my

6 mind, I'm making up words. You'll see that

7 there's just the list of consultations and group

8 listings with it. What is not included there

9 because we wanted to keep flexible timeframes is

10 when one phase stops and another begins. So we

11 will have consultations. Those consultations will

12 occur during the first phase, which is the

13 preliminary drafting phase, and the second phase

14 which is the notice of proposed rulemaking phase.

15 So there will be comments. There will be time for

16 face-to-face consultations like this during both

17 of those phases.

18 The final phase is the final

19 rulemaking phase. And at that point if we've come

20 up with what we think to be a good final rule, we

21 will publish it in the Federal Register, and have

22 approximately 45-day written comment period. That

23 phase likely will not have the consultations,

24 these type of consultations. There are five

25 groups of regulations as you can see in the

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1 Federal Register notice. These group number do

2 not indicate priority. They were developed as I

3 was kind of struggling through all of the

4 regulations that tribes indicated we needed to

5 look at, and trying to figure out a way to put

6 them together in groups by subject matter,

7 estimated time and resources that were going to be

8 needed to make the changes to these particular

9 regulations. Things like separating the Class III

10 MICS issue from the class II MICS issue. Trying

11 to put the regulations forward to you in some sort

12 of order that you know hopefully moves this along.

13 So group one, we like these regs. We think

14 they're going to be -- they're going to be some

15 changes likely. But it doesn't indicate their

16 priority by any means. So we just want to

17 emphasize that.

18 So then in our discussion draft, as

19 I said, these are initial working documents,

20 initial working drafts. They are not set in

21 stone. We need your input on them. This meeting

22 is not yet being transcribed but it will be

23 shortly. And any written comments received and

24 the transcript of these proceedings will be posted

25 on the website.

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1 I anticipate next week we'll have

2 the one back from Oklahoma, and I'm applying

3 pressure to the Court Reporter from California, so

4 hopefully we'll have those up. If you go to our

5 website, there's a new button. It's called Tribal

6 Consultation. And if you click that button, then

7 we have a number of subjects come up, and we're

8 working on this reg review 2011 to 2012. If you

9 hit that button, there's another button for group

10 one, group two, group three, group four, group

11 five, and all the materials that are associated

12 with those groups are located in those areas. It

13 might be a couple of clicking trial and errors.

14 If you need the link, just let me know.

15 Reg.review@NIGC.gov. And we'll point you in the

16 right direction.

17 What we are in the spirit of

18 President Obama's administration and transparancy

19 and accountability, we are putting all this stuff

20 up on the website. The committment by the

21 Commission is, I don't know if you were in the

22 panel earlier, you heard Vice Chair Cochran say

23 every comment received will be reviewed and

24 considered. And this was her -- the Notice of

25 Inquiry comments were bedside reading, and it was

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1 my, like, 24-hour reading over and over again.

2 But the Commissioners are committed, the senior

3 staff are committed to reviewing the comments and

4 to making sure that they're considered

5 thoughtfully; that we look at it and we evaluate

6 what you have to say so that, again, we come up

7 with a product that is the best for Indian country

8 and the industry.

9 Any proposed or final rule will

10 include a summary of the comments received. If

11 you look at the Notice of Regulatory Review

12 schedule that we put out on April 1st, you'll see

13 that we summarize the comments and we talked

14 about, gave a discussion about why we were going

15 one direction and not another. And so you'll see

16 that. That will be a very similar format.

17 Again, in the spirit of

18 transparancy, the decision-making is open and

19 transparent. You can see the rationale for why

20 the Agency goes one direction or another. And

21 again, the Commission is committed to a clear and

22 transparent process.

23 So group one, this is what we're

24 going to discuss. We're looking at the fee

25 regulation, a possible repeal of Review and

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1 Approval of Existing Ordinance or Resolutions,

2 Facility Licensing Regulations, proposed new Buy

3 Indian Act regulation, and then Minimum Internal

4 Control Standards for Class III, for Class III

5 gaming. This is -- while the first four are going

6 to be a substantive review, group or number five

7 which is the Minimum Internal Control Standards

8 for Class III is all about process.

9 What do we do with this issue that

10 we're facing with Class III in light of the CRIT

11 decision? And so it's different. It's not a

12 substantive review. If you move forward onto

13 substance with that particular issue, that will be

14 addressed in group five consultations. This is

15 just a process question. So I'm going to go

16 through this. It's sort of the 30,000 level. So

17 I'm going to go through the discussion draft and

18 the red lines for the part 514, and then discuss

19 what we're doing with the other regulations that

20 don't have discussion drafts out yet.

21 I anticipate in the next week or

22 two we'll have discussion drafts available.

23 Again, they'll be on our website. We make contact

24 with the Regional and National Associations as

25 well as the Region Directors to make sure that

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1 they contact each Tribe individually so you know

2 what we have new information about. We're trying

3 to make sure we hit everybody, but please do be

4 checking our website because we do put that up

5 there.

6 Okay. So in your packet you did

7 have -- you should have received a red line

8 version of part 514, and I will just walk through

9 the changes here starting at 514(a)(1). The fee

10 calculations are going to be based on the gaming

11 operation's fiscal year rather than the calendar

12 year. This is a change that we discussed in the

13 Notice of Inquiry. It's one that Tribes are

14 generally supportive of. And it should make the

15 calculation cleaner, easier, and it doesn't matter

16 if your Tribe is on a fiscal year that is also a

17 calendar year. Whatever your fiscal year is, that

18 is what the fee calculation will be based on. The

19 fee rate will be published on March 1st rather

20 than February 1st to allow time for us to receive

21 in all of the audited financials, and get a good

22 picture for where the fee rate was for last year

23 so that we can have a more accurate preliminary

24 rate. Removing amortization from 514(b)(2)(ii)

25 to reflect the existing practices. Quarterly

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1 payments moving from the biannual -- a couple of

2 years ago the Agency went from having quarterly

3 payments to biannual payments. We heard from our

4 staff internally as well as some Tribes externally

5 that that system was causing accounting problems,

6 and that we should go back to a quarterly payment

7 system. And so that's what the discussion draft

8 proposes to do.

9 The regulation at 514(c)(4) also

10 clarifies that when computing fees, the gaming

11 operation uses the part 14(b) calculation to

12 determine assessable gross revenues from the

13 previous fiscal year. Now this is very difficult

14 to figure out and put this in a PowerPoint.

15 Basically all it does is take 514(c)(4), and it

16 points you back to the actual formula. The

17 regulation was less than clear. I know that this

18 point here is not as clear. But really, it's

19 trying to clarify the regulation for the reader so

20 that instead of just saying, you know, assessable

21 gross revenues, it actually refers you back to the

22 section of the reg that contains the formula. It

23 doesn't change anything. It just tries to clarify

24 the regulation.

25 The draft regulation provides a

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1 notification period. So if your gaming operation

2 goes from a calendar year fiscal year to a

3 September fiscal year, there's some way that you

4 can notify the Agency. And then if we need more

5 information, then we request it. This is a new

6 section, and this is something that we put out in

7 the Notice of Inquiry and Tribes were very

8 receptive to. So we've attempted to draft this

9 new section, and it is one that we do need some

10 comment on. And that is a late payment system for

11 when the Tribe submits their fees to the NIGC late

12 in lieu of a Notice of Violation.

13 Some of you may recall several

14 years ago that the Agency was issuing notices of

15 violation for late fees that were submitted to the

16 Agency. And we've heard over and over again that

17 this was -- that this sort of sledge hammer

18 approach was not necessary; that it did affect

19 Tribes negatively to have a Notice of Violation,

20 particularly now that financing is important to

21 Tribes, and a Notice of Violation can affect your

22 bond rating, et cetera. So we attempted to create

23 a late payment system, and we have the author over

24 here, Mike. He's our expert. So it includes some

25 appeal options, or if you know if you end up in

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1 this process what your appeal options are. It

2 defines a late payment, what it does is it

3 distinguishes between a late payment which is a

4 payment made within 91 days of the end of your

5 fiscal year. It distinguishes that late payment

6 from the failure to pay your annual fees which is

7 the payment made after 91 days. So on the 92nd

8 day forward, you then fall into this category

9 called failure to pay your annual fees. A late

10 payment, which is making your payment within 91

11 days, results in a fee. The failure to pay an

12 annual fee is a substantial violation, and can

13 result in a Notice of Violation and possible

14 closure order. So we tried to make a distinction

15 between when, you know, like we heard, I think it

16 was in South Dakota, one of the Tribes was saying

17 hey, my CPA had a heart attack and he wasn't able

18 to finish it, and we were late and we got an NOV

19 because of something that was completely outside

20 of their control. And so we've heard stories like

21 that, and we wanted to provide an opportunity then

22 for Tribes to avoid the Notice of Violation and to

23 really just, you know, do what you do if you pay

24 your ticket late -- your parking ticket late. You

25 get a fee based on something. We need to figure

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1 out what that rate will be.

2 So another new section is the

3 fingerprint processing fees. And this clarifies

4 how the NIGC collects the fees. And it also sets

5 the fee rate. We're going to tell the Tribes what

6 that rate will be biannually on the same days that

7 we tell you what the fee rates -- the preliminary

8 fee rate and the final fee rate will be.

9 There are some questions that we

10 posed that are unrelated to the process that may

11 be a little confusing here. Something that we

12 raised in our internal discussions, and that was

13 whether or not the term admission fee that's

14 contained in the current regulation should be

15 changed to entry fee to comport more with the

16 industry standards. We would get questions.

17 People would call the Agency and say "hey, your

18 regulation says that I have to use -- I have to

19 include admission fees as part of my gross

20 revenues for the purposes of computing the fees

21 that I submit to the Agency. But my admission

22 fees are for our concerts, and I have entry fees

23 for Poker Tournaments, et cetera."

24 So the question that we're posing

25 to Tribes is whether or not we can make the

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1 change, change admission fee to entry fee. And

2 then perhaps we don't anticipate that it's a

3 substantial change, very substantive, just that

4 we're utilizing what is common industry

5 terminology. And then another issue similar to

6 that is whether or not tournament fees should be

7 included in the example of either admission or

8 entry fees depending on what that term will be. So

9 those are questions that came up. They're not

10 included in the discussion draft, although we are

11 interested in hearing Tribes' thoughts on that.

12 And you guys should all have a copy of the

13 PowerPoint in your packet. And it's not up on the

14 website yet, but it will be. So if you have

15 thoughts or questions, or can't remember what I

16 just said, these will be online as well.

17 So another issue, this one was

18 actually asked on an inquiry. We asked Tribes if

19 the term gross gaming revenue should be defined to

20 be consistent with GAAP for the purposes of

21 calculating the fees. We did not make that change

22 in the discussion draft for a number of reasons.

23 One, the GAAP is changing how they make the

24 calculation; two, there -- the -- what is

25 currently in GAAP and what is proposed to be in

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1 GAAP is in some ways inconsistent with the

2 definition of gross gaming revenue in IGRA, which

3 is basically wager less pay out. So it didn't --

4 some of the ways that GAAP defined gross gaming

5 revenue was inconsistent with that, and so we

6 didn't make the change.

7 What we are asking Tribes is

8 whether or not we should then define what a wager

9 is and what pay out is. And if that's a way to

10 get to clarifying how gross gaming revenue is

11 calculated for the purposes of then calculating

12 your NIGC fees. Those terms are not defined, and

13 it is something that may be helpful. It may not

14 be helpful. I know that we have a fee training

15 course that we use. We actually did it because,

16 you know, we needed a little fee 101. I'm not

17 that up on how to calculate NIGC fees. It's very

18 interesting because it is complicated. When does

19 free play -- does free play count as being towards

20 the calculation of gross gaming revenue? Or can

21 you deduct that from the calculation? I mean,

22 it's very complicated. We have a matrix that

23 looks like something from the Matrix movies. I

24 didn't understand it at first. You have to kind

25 of go through that little course to figure out

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1 about what is deductible, what should be included.

2 But if there's a way that we can take that

3 document and help define the terms so that it's

4 easier for Tribes to do these calculations, then

5 we're interested in hearing from Tribes on that.

6 So that's the change from a very

7 high level. The changes to the fee regulation,

8 which is the red line version that you have.

9 Moving on, part 523, which is

10 Review and Approval of Existing Ordinances or

11 Resolutions. This part only applied to gaming

12 ordinances enacted by Tribes prior to January 22,

13 1993 that were not submitted to the Chair for

14 review and approval. None of these exist anymore.

15 So it is obsolete. This doesn't apply to

16 anything. So we're again asking Tribes whether or

17 not we should just repeal this part.

18 Part 559, which is Facility

19 Licenses, Notifications, Renewals and Submissions,

20 we heard from Tribes very, very soundly, and

21 around the board we heard that the process that

22 was used to create this regulation was flawed;

23 that there was not appropriate consultation and

24 discussion between the Tribes and the Agency, and

25 that we need to open this back up for discussion.

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1 And so we have opened it back up for discussion.

2 Should it be revised? What are the issues that --

3 I mean, we have -- we've heard that the comments

4 -- and if you read the letters, you can see some

5 of the issues that were highlighted. And so we're

6 aware of that. But you know, we need to know

7 again from Tribes what are the additional issues,

8 if any, which sections should be reviewed, further

9 revisions. We anticipate that we'll have a

10 discussion draft out again, within the next week

11 or two, so keep your eye on our website. And

12 hopefully some of the issues that were identified

13 during the Notice of Inquiry period, and that were

14 identified at the time that the rule came out can

15 be resolved through this process.

16 So Buy Indian Act, this is a new

17 proposed regulation. Comments from the Notice of

18 Inquiry were generally supportive of the

19 regulation, and I need to emphasize that this only

20 obligates that we, the NIGC, to buy Indian. It

21 doesn't place a burden on Tribes to buy Indian.

22 This is just for the Agency when we're making

23 purchases of goods and services when we're on or

24 near an Indian reservation. This allows us to

25 kind of go outside of the procurement process

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1 which is a huge process all by itself. Buy Indian

2 Act is a federal set aside much like, you know,

3 there's set asides for small disadvantaged

4 businesses or veteran owned businesses or women

5 owned businesses. But it allows the federal

6 Agency, when making purchases, to have this set

7 aside fund to go through this other federal

8 procurement process which can be quite, quite

9 comprehensive. Again, we intend to distribute a

10 draft regulation -- a draft regulation soon.

11 One of the concerns that we've had

12 from the Tribes is that -- and you'll see, you've

13 seen it over the course of the past six months,

14 and you'll see it over the next year as well --

15 we're really making an effort to go to tribal

16 owned facilities. There was none in Biloxi, so

17 we're staying at other areas -- but other

18 properties -- but you'll see as we go out -- if at

19 all possible -- and if it's within the budget --

20 that's the other thing -- we need to be fiscally

21 responsible for the fees, for the Tribes' money

22 that you submit for operation, balancing those two

23 things out and going to tribal facilities and

24 putting Tribes' money back into Indian country.

25 So again, there should be a discussion draft soon.

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1 And then, sort of, the last one --

2 and I know one that a lot of you are interested in

3 -- and it certainly has been the elephant in the

4 room for a number of years, and something that

5 we've all kind of tried to tiptoe around and not

6 come to a resolution on since the CRIT decision

7 was decided. And that is do what we do with the

8 Minimum Internal Control Standards for Class III

9 gaming. What structure do we use to address this

10 issue? It impacts regions, Tribes, states all

11 differently. What is it that the Agency can do to

12 meet the needs of the industry to come up with a

13 solution that addresses the concerns, but again,

14 within our legal authority and within the

15 authority that we have under IGRA?

16 So today and at these group one

17 meetings, that's what we're talking about. What

18 do we do? What is the process that we use to

19 address Class III MICS? And then once that

20 decision has been reached through this group one

21 process, then in group five we'll begin the

22 practical implementation, whatever that looks

23 like. So obviously CRIT -- the Commission did not

24 have -- does not have the authority to promulgate

25 regulations establishing Class III MICS.

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1 And so, you know, we're left with

2 that. And there hasn't been a resolution to date

3 on what do with the regulation part 542, which is

4 the Class III MICS. We need to figure that out.

5 These are suggestions that we have heard from

6 Tribes over the Notice of Inquiry process; we've

7 heard replace part 542 with recommended

8 guidelines; we've heard that we could address this

9 through some sort of fee for service-based

10 Agency/tribal compacting process; applying a

11 different fee rate for those Tribes with tribal

12 ordinances that incorporate part 542, and then

13 authorize the NIGC to enforce those regulations at

14 their Tribes. Then we've heard keep part 542 and

15 start a Tribal Advisory Committee to update the

16 current regulation. And then completely at the

17 other end of the spectrum, we've heard that just

18 repeal part 542 in its entirety. So we've got a

19 number of options that have been presented to us.

20 And I'm sure that there are more that we haven't

21 heard. But it is an issue that we look forward to

22 coming to a decision on how to address it, at

23 least during the first group one consultations.

24 So with that, that is the very

25 30,000 level split rundown of what group one looks

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1 like today, and what the information that we're

2 trying to get from Tribes is. I do want to go

3 back briefly to the Notice of Violation, or the

4 late payment system in part 514. On page 6 of the

5 draft regulation -- I'm sorry, it's page 5. On

6 page 5 we have, starting on line 13 and then going

7 down, we have sort of increments, steps where the

8 late fee, the fees would increase. So if you're

9 one to 30 calendar days late, there may be a late

10 fee of blank. 31 to 60 days, late fee of blank.

11 And so on. And so we are looking for some input

12 from Tribes what is that blank. Is it a set

13 dollar amount? Is it $5 to $15? Elliott? Is it

14 a sliding scale? Is it a percentage rate of the

15 amount due? We're asking for input from Tribes on

16 that, so I do want to point that out. We really

17 have left blanks there, and we're interested in

18 hearing from Tribes on that.

19 So with that I will give this back

20 to the Vice-Chairwoman.

21 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

22 Thank you, Lael. As I said, she keeps us moving

23 forward, and explains everything or boils it down

24 to something that we can present in a quick

25 manner. So this is -- we've set the table. We're

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1 going to ask you to come join us. We've set the

2 table for you. We're done talking for a while.

3 We're here to listen, and it's more than that.

4 Particularly as the Vice-Chairwoman, I want to

5 spend some time listening to what you've brought,

6 what you'd like to say, and answer your questions.

7 So I'm going to turn it over to the Tribes now.

8 We ask you for your comments. Cindy, is the Court

9 Reporter here?

10 CINDY ALTIMUS: Not yet. Let me

11 see if I can get a location of where he's at.

12 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

13 Okay. Let me do this. I'm going to check this

14 recorder. If we're at least getting it recorded,

15 I'm going to go ahead and move forward.

16 Apparently it's picking up pretty

17 well, so hopefully we'll be able to turn it over

18 and get a transcription done.

19 Good morning. Would you like to

20 introduce yourself?

21 JULIE WILKERSON: Yes. I'm Julie

22 Wilkerson. I'm tribal attorney for the Jena band

23 of Choctaw Indians. We met in D. C. previously.

24 You braved the storm, the snow storm, although I

25 heard you did walk several blocks.

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1 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

2 Yeah, I did.

3 JULIE WILKERSON: We drove in last

4 night. We got in about 12:30, so we've been --

5 CHERYL SMITH: It's my fault. I'm

6 Cheryl Smith. I'm tribal chief for the Jena band

7 of Choctaw Indians, and I'm looking forward to

8 learning all of the stuff that we're going to be

9 needing to know real soon because (inaudible).

10 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

11 Thank you, Chairwoman, for joining us. We haven't

12 gotten into the substantive discussion yet. We

13 have laid out just a presentation for setting the

14 tone for the discussion. We just turned it over

15 to the Tribes. As I said, it's really my job to

16 listen right now, and I'm sure you got things that

17 need to be said. So I'll open it up to the floor.

18 STEPHANIE BRYAN: Stephanie Bryan,

19 Vice Chair for the Poarch band of Creek Indians.

20 I just wanted to say thank you to staff and the

21 Commissioners for the consultation process, and

22 you know, I know you have an expedient schedule

23 here and lots of consultation to do. There are a

24 lot of important things that need to be addressed,

25 of course, and after reviewing the red line

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1 version of the fees, that was one of our comments

2 as far as implementing something in case of an

3 emergency for the late fees versus the Notice of

4 Violation. The NOV system we thought, you know,

5 that that was, you know, a little stringent, you

6 know, especially in cases where there is an

7 emergency. So looking at the red line version, we

8 will also in our written comments make comments of

9 reference to the percentages for late fees, you

10 know, after so many days. And there are so many

11 things that are factored in that, you know, we

12 would need to take into consideration before

13 making a comment. So we will, you know, in our

14 written comments make sure that that's included.

15 And one thing I would like, you know, maybe from

16 the Commission -- I know you have all the various

17 groups that you're doing the consultation process,

18 but at the end, I mean, I know everything is very

19 important. I know all the groups are very

20 important. But, I mean, do you -- have you gotten

21 those prioritized as far as, you know, is there a

22 priority set or will you do that and then let the

23 Tribes know? Because I said I know they're all

24 very important. But once you receive comments

25 from the various Tribes and the input from them,

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1 and we're very thankful for you guys, you know,

2 look at all those comments because they're very

3 important if the Tribe submits those comments.

4 But I know as far as time, I just know that, you

5 know, there are a lot of things that need to be

6 addressed in proposed regulations. And then of

7 course, once they're proposed regulations, then

8 there's a comment period for that. So you know,

9 I'm very gracious. Our Tribe is very gracious

10 that you guys are holding the consultations and

11 doing that. But also I want us to -- some things

12 to come to reality that's been lingering for

13 years.

14 LAEL ECHO-HAWK: The Commission

15 hasn't set out a priority for each regulation, but

16 if you look at our schedule, I think you can see

17 the regulations that are going to require the most

18 work, and the ones we've dedicated the most

19 resources to. The -- I -- I am being as

20 aggressive as I can with the current Commission

21 who have been very patient because I'm, you know

22 -- and I know in speaking with the vice and the

23 Commission and Chairwoman Stevens, Commissioner

24 Little, we spent time on the other side beating

25 our heads against the wall, can we just get this

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1 resolved. And so we have sort of dropped dead

2 lately in terms of what we can do regulations, and

3 we're going to be moving very fast and very hard

4 towards meeting those deadlines. My personal

5 goal, this is just me speaking as a staff person

6 here, is that we resolve these issues; that we get

7 final rules where we need final rules; that we

8 have issues resolved. And that's why you'll see

9 the groups that the timeframes, a significant

10 amount of time dedicated to class II, Class III,

11 what to do with sole proprietary interest, fixing

12 that, self-regulation regulation. There are some

13 things that are going to require a lot of time,

14 and we have dedicated the time and resources to

15 doing that so that we do have (inaudible).

16 STEPHANIE BRYAN: Also, just to

17 comment on the Buy Indian Act. I think that is

18 absolutely wonderful. We support that

19 tremendously. Within our Tribe, we actually have

20 TERO preference, so we strongly believe that we,

21 you know, should support the Indian Tribes, you

22 know. We try to do that as well when we're

23 working with a tribal gaming working group, you

24 know, if there is a, you know, place where the

25 Tribe owns, we make our accommodations there. So

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1 we strongly support the Buy Indian Act. That will

2 be in our comments as well.

3 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

4 Thank you.

5 DANIEL MCGHEE: I'm Daniel McGhee

6 with the Poarch Creek Tribal Gaming Commission.

7 I'm the Commission Administrator. I do have a

8 couple of specific comments to make, and these

9 will be in the written comments, and we will

10 expand upon them also. Just (inaudible). We were

11 talking about the fees, the late payment, and I

12 notice the language is that "the Chair may impose

13 a fee" so it seems like it could be kind of

14 subjective to whatever reason the Chair wants to

15 fine you or to not. If the Tribe gives us a hard

16 time (inaudible), you know, I would hate to hear

17 about one Tribe getting a penalty that was this

18 knowing that I got charged this. So I noticed

19 that there's some of that language and was

20 wondering the reason behind it (inaudible). Also

21 I noticed that it says here, following "the Chair

22 may adjust a proposed late fee based on history"

23 and other stuff and that another same kind of

24 situation, where they may do it, you know. I

25 think you should -- that here's the fee that

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1 you'll be charged for the first time. And if

2 you've been late before, here's the fee that

3 you'll be charged. (Inaudible). And then on

4 fingerprint fees, you talk about kind of the same

5 thing that -- it says Tribe may submit fingerprint

6 cards to the Commission for processing and I think

7 that's kind of a requirement, you know. I didn't

8 know there was an option, you know, every key

9 person and key management positions, so you may

10 want to look at that. And then it says the

11 Commission may charge a fee for processing. So

12 you're not saying that they are. And then I

13 noticed something here that you are going to start

14 evaluating the statement of fees every year, and I

15 want to ask that you not do it every year because

16 we base the licensing fees that we charge on the

17 fees we pay to you (inaudible). That's changing

18 our fees every year. (Inaudible). So if you

19 could make that a little bit longer, like every

20 three years or something. For the longest time it

21 stayed the same, and then it dropped. (Inaudible)

22 not so often as a year. And those would be the

23 only comments I have on the fee regs.

24 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

25 Thank you. Let me go back a little bit and answer

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1 some of your concerns. We do have Tribes that

2 submit in all fingerprints so it's not just on key

3 management officials. So the may I think is

4 intended to get at those Tribes that do use our

5 services. We can certainly take a look at it and

6 make sure that it's as clear as we can be without

7 unduly or unintentionally burdening a Tribe. And

8 I like your idea on the fees that we look at it

9 annually. It's set by the FBI. We do have our

10 processing fee, but it's not significant and I

11 don't know that the FBI modifies. I know we were

12 charging a lot for a while. One reason it went

13 down is that because somebody finally went, did

14 the numbers check, said this is what we're

15 charged, and this is what our administrative costs

16 are. So let's get it down to that. The intent is

17 to make sure that we're not overcharging Tribes.

18 But that's a very legitimate concern that we not

19 interfere unintentionally again, interfere with

20 your budget process.

21 DANIEL MCGHEE: One additional

22 comment. Facility Licensing. We do have some

23 comments to make here today. One thing I have is

24 we don't have a problem when you ask us to submit

25 this, submit that information, and with us as a

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1 Tribe. We went out and contracted, hired somebody

2 as a consultant to do all this work, spent a lot

3 of time on it, make sure it's right, and then

4 submitted it. And there was nothing in the regs

5 that required anything else, but there was no

6 response from the NIGC. So we're like did we get

7 a good job? Did you get it? Basically it was if

8 you don't hear from us, you're good. And it's

9 like it took a lot of effort. It was obviously

10 important to them. So maybe something here, some

11 kind of feedback. If we're going to have to do

12 it, give us some feedback so we know we're doing

13 it right or something.

14 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

15 I was speaking earlier today on a panel about the

16 fact that our Agency, what we came into just is

17 severely lacking in processes, and we don't have a

18 mail tracking process. I mean, that sounds very

19 simple. I've worked for some of the smallest

20 Tribes in this country that have mail tracking

21 systems. So you know it's important. Is it hard?

22 No, but it's important for the reasons that you

23 describe. Tribes go through a lot of effort to

24 prepare their materials, and we need be responsive

25 to make sure you know you've done your job where

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1 it's now in our court (inaudible) take it from

2 there. So I appreciate those comments as well.

3 DANIEL MCGHEE: I would like to

4 officially comment that the NIGC has no tracking

5 system.

6 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

7 Thank you.

8 SCOTT CROWELL: I'll go ahead and

9 start unless there's some tribal officials that

10 wish to go ahead of me. I'm here today on behalf

11 of the Rincon band of Luiseno Indians. We

12 intended to provide these comments at the Palm

13 Springs session, but we called it into other

14 matters so the Chairman wanted me to 1) apologize

15 that we weren't in Palm Springs to give you our

16 preliminary reviews; and 2) to make a presentation

17 of Rincon's comments here today. [Reading from a

18 written statement.]

19 Thank you for the opportunity to

20 address the NIGC on the important issues

21 identified in group one. On behalf of the Rincon

22 band, I am submitting a preliminary written

23 statement. I say "preliminary" because this

24 session is only the third of seven sessions

25 scheduled for group one. Rincon will observe and

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1 listen to the consultation sessions. The band

2 anticipates drafts to be circulated before the end

3 of the group one consultations, and will likely

4 submit supplement comments at that time.

5 I will focus on Rincon's comments

6 today on two issues. However, the band and those

7 two issues are the Class III MICS and facility

8 licenses. However, the band expresses support for

9 the NIGC draft changes to 25 CFR, part 514

10 regarding fees. The draft is sound and

11 appropriately addresses the comments submitted by

12 the Tribes in the initial NOI stage. Depending on

13 how the NIGC addresses the Class III MICS

14 provisions, there may be need to add additional

15 language regarding assessment of fees for Tribes

16 looking to the NIGC to maintain Class III MICS

17 and/or audit Class III MICS, and I'll comment on

18 that more in a moment.

19 The band apologizes in advance for

20 some redundancy between the comments today and the

21 comments submitted in response to the NOI. But

22 the band believes many of these points deserve

23 being repeated many times as this process evolves.

24 So the first topic Placing the

25 Class III MICS and Facility License Regulations in

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1 Their Proper Historical and Legal Contests. First

2 I'd like to talk about the Hope Commission.

3 Someone, Keller George told me that Tony Hope was

4 here today? First time I've seen him in probably

5 18 years. The Tribe had their issues with

6 original NIGC Chairman Anthony Hope. He was

7 certainly hostile to the Tribes, and the present

8 opportunity to revisit his regulations promulgated

9 by the Hope Commission is welcome and overdue.

10 Still Anthony Hope got one key principle correct,

11 which all subsequent commissions except the Montao

12 Commission, got wrong, and which the Hogan

13 Commission got seriously wrong. The regulation of

14 Class III gaming is to be governed by the compact

15 agreements reached between tribal and state

16 governments at the negotiation table. It is not

17 the province of the NIGC.

18 The hostility of the Hope

19 Commission should not be forgotten. The work done

20 here will empower and/or limit the work of future

21 commissions. Future elections could very well

22 result in the future administrations that are

23 outright hostile to Indian interests generally,

24 and to Indian gaming interests specifically. This

25 Commission should be cognizant of that fact as it

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1 proceeds with this process.

2 The Hogan Commissions took a

3 product of the NIGA/NCAI Task Force which was

4 inspired by the Tribe's self-governance desire to

5 pursue the goal of self-regulation, and to share

6 resources and information amongst Tribes. The

7 Hogan Commission converted that into NIGC

8 mandatory regulations with the ever present threat

9 of severe enforcement action. Tribes warned Mr.

10 Hogan at the time that he was exceeding his

11 statutory authority. He did it anyway. While

12 imploring with Tribes to refrain from suing over

13 the regulations, he stated that this would be the

14 outer boundaries of NIGC's encroachment into Class

15 III gaming. CRIT sued the NIGC, and Rincon

16 weighed in as amicus beginning with the initial

17 decision of the ALJ, along with a growing number

18 of Tribes at the District Court. And ultimately

19 NIGA weighed in before the D. C. Appeals Court.

20 It was my honor to work with Frank Lawrence of

21 Holland and Knight firm in authoring the NIGA

22 amicus brief.

23 At every level of the litigation,

24 the ALJ, the Federal District Court, and

25 ultimately the D. C. Court of Appeals concluded

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1 that the IGRA was straightforward in defining the

2 parameters of the NIGC authority, and that did not

3 include regulation of Class III gaming. The Hogan

4 Commission was so frustrated with the bright line

5 drawn by the appeals court, it filed a motion for

6 reconsideration alleging the NIGC could still

7 assume that authority through approval of gaming

8 ordinances and incorporation into tribal state

9 compacts, and possibly other avenues. Motion for

10 reconsideration denied. Despite that clear

11 decision, the Hogan Commission's continued an

12 illegal agenda of circumventing the decisions and

13 direction of the federal courts. This includes

14 the present practice of promulgating Class III

15 MICS anyway, approving ordinances that fiat

16 regulatory authority to NIGC that is not based in

17 this statute, and using tribal fees paid to the

18 NIGC for unauthorized and improper purposes.

19 Hogan promised Tribes that his

20 intrusion into Class III gaming would end with the

21 Class III MICS only to take thereafter two

22 unsuccessful stabs at positioning the NIGC to be

23 the over Lord of tribal law regarding health and

24 public safety. Hogan's third effort succeeded

25 when he attached such requirements to the current

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1 facility licensing regulation. NIGC is currently

2 positioned to compel Tribes to change their laws

3 to meet NIGC's unqualified and arbitrary

4 standards. These regulations go far beyond NIGC's

5 authority under IGRA, and far beyond the direction

6 and decisions of the federal courts.

7 Former Chairman Hogan dismissed the

8 Tribes' fears. He suggested that except in

9 extreme circumstances, the NIGC would not actually

10 use the self-appointed authority to compel Tribes

11 to adopt or amend laws in a long laundry list of

12 areas: Emergency preparedness (accidents,

13 injuries, and medical emergencies, natural and

14 other disasters, fire and security threats);

15 construction, maintenance and operations; drinking

16 water and food; hazardous materials; and

17 sanitation and waste disposal. That sounds

18 hauntingly familiar to his statements that NIGC

19 would not aggressively enforce the Class III MICS.

20 Such a position is scary in that he was not

21 contemplating the potential abuses of future

22 commissions. IGRA allows the NIGC to require

23 facility licenses; IGRA does not empower the NIGC

24 to impose the govern -- its govern -- the NIGC --

25 the IGRA does not empower the NIGC to impose its

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1 governance preferences upon Tribes.

2 Let's talk about the Class III

3 MICS. How does the NIGC get out of this mess

4 created by the Hogan Commissions? Class III MICS

5 took on a life of their own. The NIGC approved

6 ordinances expressly empowering the NIGC to

7 promulgate and enforce them. Several compacts

8 refer to the NIGC MICS as a baseline for compact

9 standards. The Rincon band even gave testimony

10 years ago suggesting a level of tolerance to NIGC

11 continuing down this road so long as it was clear

12 that the MICS were purely advisory, and that NIGC

13 staff be limited to providing technical

14 assistance.

15 In hindsight, that testimony was

16 wrong. In hindsight, it is clear that the Hogan

17 Commissions had a deliberate and zealous agenda to

18 circumvent and riddle the bright lines drawn by

19 IGRA, and the federal courts, such that the NIGC

20 is the over Lord of Class III MICS.

21 This Commission should run away

22 from the agenda of the Hogan Commissions and stay

23 clearly within the parameters of the authority set

24 by Congress and the courts. Those states and

25 Tribes that embraced NIGC Class III MICS in

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1 compacts and ordinances did so at their own peril.

2 I often hear that the NIGC had the authority to

3 promulgate the MICS until it lost in the D. C.

4 Circuit. That is pure nonsense.

5 The court ruled correctly; NIGC

6 never had such authority. Every tribal regulator

7 and every tribal attorney who followed the issue

8 knew that NIGC's legal position ranged from weak

9 to totally devoid of merit.

10 So where should the NIGC go from

11 here? Rincon proposes that NIGC establish a clear

12 late -- a clear date to withdraw Class III MICS

13 from its body of regulations, notices and

14 bulletins. The NIGC should provide those Tribes

15 with defective ordinances or compacts an

16 opportunity to take correcting measures as a

17 matter of exercising tribal self-governance,

18 and/or through government-to-government compact

19 amendment negotiations.

20 Rincon rejects the idea that NIGC

21 must step in to fill an alleged void in

22 regulation. Rincon poses this question: If the

23 NIGC is to take on the role as chief watchdog of

24 the regulation of Class III gaming, then why do

25 Tribes need to negotiate compacts with states?

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1 Congress intended that the regulation of the games

2 be the very crux of compact negotiations. That

3 states have embraced the Seminole decision and

4 used that leverage to extract gaming taxes and

5 unreasonable encroachment on tribal

6 self-governance instead of seriously negotiating

7 the manner in which Class III games should be

8 regulated does not justify NIGC to venture outside

9 of its statutory authority. If this Commission in

10 any way intends to follow its predecessors and go

11 to Congress with an agenda of amending IGRA to

12 empower the NIGC to regulate Class III games

13 and/or continue the practice of promulgating Class

14 III MICS, and to assume oversight authority by

15 means of approving tribal gaming ordinances,

16 fiating such authority to the NIGC, it should be

17 at the same time advocate for removing states from

18 the process all together. Perhaps that is

19 unrealistic or unreasonable, but no more than

20 subjecting tribes to the heavy paternalistic

21 oversight by both the state compact and the NIGC,

22 which in many cases conflict with one another.

23 Despite the NOI process, we heard a

24 small but vocal group of Tribes insist they want

25 to see the Class III MICS continue in some form

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1 because they made some deal in a compact or state

2 regulation. They made those agreements at their

3 own peril knowing the NIGC did not have such

4 authority, or at best, that the question was in

5 serious dispute. This Commission should not

6 perpetuate that problem. NIGC Class III MICS are

7 illegal and have always been illegal.

8 Additionally, we challenge the

9 allegation that some are at peril if the NIGC no

10 longer promulgates Class III MICS. A number of

11 tribal-state gaming compacts in North Dakota,

12 Arizona, Oklahoma, Wisconsin, and Florida referred

13 to Class III MICS. That being said, the reference

14 within those compacts is not impacted by whether

15 the NIGC continues Class III MICS on a prospective

16 basis. Many of those compacts only refer to MICS

17 as they existed on a date certain. If the Class

18 III MICS were repealed today, they still would

19 have existed on a date certain. Thus, is the

20 class... That baseline would still exist. Other

21 compacts refer to compliance with Class III MICS

22 that are found in NIGC regulations (without a

23 reference to a date). Rincon's position is that

24 even if the Class III MICS were to be repealed, it

25 would not result in a violation of any of those

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1 "incorporation by reference" compacts unless those

2 individual compacts require Class III MICS to be

3 continued to be published on a forward going

4 basis. We are not aware of any compact which has

5 such a publication requirement.

6 Beyond a short phase out period,

7 the Rincon band strongly opposes the perpetuation

8 of illegal MICS simply because it conveniences

9 some Tribes that have built a house of cards on a

10 faulty foundation. Those Tribes can transition

11 into some other type of default MICS through a

12 regulatory -- regulators organization, or amend

13 their compacts, or defer to some other industry

14 entity. Indeed, the NIGA/NCAI task force subgroup

15 of regulators which authored the initial Class III

16 MICS could be revived. Perhaps more

17 appropriately, the National Tribal Gaming

18 Commissioners and Regulators could assume the

19 task. Indeed, it would be a logical extension of

20 the excellent services provided to date. Bottom

21 line is that there are other ways to skin that cat

22 rather than have the NIGC continue to violate the

23 clear orders of the federal courts.

24 Calling the Class III MICS

25 "guidelines" rather than "regulations" does not

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1 work either. NIGC has a limited budget on fees

2 paid by the Tribes. The Rincon band certainly

3 objects in the strongest terms to having its fees

4 be used by the NIGC for an improper and illegal

5 purpose that former Chairman Hogan should never

6 have pursued to begin with. We hesitate to

7 suggest any action that perpetuates the illegal

8 Class III MICS. But if the NIGC does capitulate

9 to the vocal minority of Tribes insisting on NIGC

10 Class III MICS, then the fee structure should be

11 changed to make sure that only those Tribes

12 advocating for Class III MICS pay for every dime

13 from promulgation to auditing to enforcement.

14 Now let's talk about facility

15 licenses. Amend now to jettison the paternalistic

16 intrusions into tribal self-governance. The

17 Rincon band has no quarrel in requiring each

18 gaming facility to be licensed. Rincon has a

19 serious quarrel with the NIGC second guessing the

20 Tribe's governmental decisions regarding the form

21 and substance of tribal law.

22 Unlike the Class III MICS, this

23 regulation has yet to take on a life of its own

24 such that merely repealing these provisions of

25 part 559 is the best and quickest way to correct

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1 this defect. Fundamentally, the Rincon band

2 disagrees with the expansive view of the NIGC's

3 regulatory and enforcement jurisdiction reflected

4 in the existing rule. In enacting the IGRA,

5 Congress vested the NIGC with limited well-defined

6 regulatory jurisdiction over Indian gaming. The

7 current rule improperly vaults the NIGC into the

8 exercise of sweeping regulatory authority over

9 tribal governance as opposed to the limited

10 well-defined role of regulating tribal gaming

11 intended by Congress. In enacting IGRA, Congress

12 never intended to exalt federal Agency

13 over-regulation above the tribal

14 self-determination, a notion that lies at the core

15 of the current rule.

16 The primary purpose of IGRA is to

17 "provide a statutory basis for the operation of

18 gaming by Indian Tribes as a means of promoting

19 tribal economic development, self-sufficiency, and

20 strong tribal governments." Congress went to

21 great lengths to respectfully allocate regulatory

22 authority between Tribes, the NIGC, and states.

23 IGRA clearly states that a "separate license

24 issued by the Indian nation, Indian Tribes shall

25 be required for each place, facility, or location

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1 on Indian lands." The rule effectively strips

2 Tribes of their express facility licensing

3 authority by authorizing the NIGC to force a Tribe

4 to change tribal law. While we agree that IGRA is

5 quite clear that the Tribe must issue a license

6 for each facility, and that the NIGC has the

7 authority to review the authorizing tribal

8 ordinance, the NIGC does not have authority to

9 force Tribes to change tribal law.

10 The rule risks the creation of a

11 new bureaucracy within the NIGC to evaluate

12 emergency preparedness -- worth repeating,

13 emergency preparedness, accidents, injuries, and

14 medical emergencies, natural and other disasters,

15 fire and security threats; construction,

16 maintenance and operations; drinking water and

17 food; hazardous materials; and sanitation and

18 waste disposal. Tribal governments as with any

19 government exist to protect their citizens from

20 harm. In emergencies, Indian Tribes already work

21 with FEMA with regard to facility construction.

22 Tribes work with licensed inspectors to ensure

23 that the work conforms to tribal building codes.

24 To ensure safe drinking water and

25 Sanitation and waste disposal, Indian Tribes work

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1 with the EPA under the Safe Drinking Water Act,

2 and the Resource Conservation and Recovery Act

3 among other laws. The FDA provides oversight of

4 food and beverage safety. Finally, Tribes work

5 with the Departments of Justice and Interior as

6 well as state and local enforcement and other

7 agencies to ensure adequate protection for public

8 health and safety. Any additional requirements

9 unduly burden tribal governments and directly

10 conflicts with IGRA's primary purposes of

11 promoting tribal economic development,

12 self-sufficiency, and strong tribal governments.

13 A close reading of the explanation

14 accompanying the Federal Registered Notice of the

15 proposed rule reveals with the NIGC expected.

16 That the NIGC expects Tribes to enact positive

17 laws if the NIGC determines the laws documented by

18 the Tribe are to be insufficient. And I quote:

19 One-time costs may be incurred by

20 tribal governments drafting and adopting laws if

21 there are none in the identified areas...

22 Potentially a few Tribes will have to make

23 significant changes to their infrastructure before

24 a certificate of compliance can be issued.

25 That's the NIGC's own words in the

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1 Federal Register.

2 In addition to forcing Tribes to

3 enact environmental and public health and safety

4 laws to its liking, the rule gives the NIGC

5 seemingly unbridled discretion to require Tribes

6 to document ongoing compliance with these laws.

7 Section 539.7, a Tribe shall provide Indians lands

8 or environmental and public health and safety

9 documentation that the Chairman may in his or her

10 discretion request as needed.

11 Congress did not bestow the NIGC

12 with the sweeping authority it asserts in the

13 current rule which includes authority to compel

14 Tribes to enact laws covering broad substantive

15 areas, and subsequently take severe enforcement

16 actions against Tribes for failing to comply with

17 these NIGC mandated laws. Congress intended the

18 NIGC to have a limited role in regulating tribal

19 gaming, not the sweeping role in regulating tribal

20 governance as asserted in the current rule.

21 Congress expressly acknowledged the

22 tribal sovereignty doctrine in enacting the IGRA:

23 "The committee recognizes and affirms the

24 principle that by virtue of their original tribal

25 sovereignty, Tribes reserved certain rights when

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1 entering into treaties with the United States, and

2 that today tribal governments retain all rights

3 that were not expressly relinquished." This is

4 the Senate Report from IGRA. Neither IGRA or its

5 legislative history mentions a Congressional

6 intent to abridge tribal sovereignty by besting

7 the NIGC with authority to require Tribes to

8 revise tribal law as deemed appropriate by the

9 NIGC. Indeeds, the NIGC advocated that it has no

10 such obligation in the litigation in the North

11 County Community Alliance, Inc. v Kempthorne,

12 where the court flatly rejected the plaintiff's

13 argument that the NIGC "had an ongoing obligation

14 to make formal findings as to whether the

15 construction and maintenance of the gaming

16 facility and the operation of that gaming facility

17 is conducted in a manner which adequately protects

18 the environment and the public health and safety."

19 Fortunately, the NIGC does not have

20 a track record of substituting the Tribe's

21 decisions on self-governance with its own. Rincon

22 respects the professionalism and expertise of the

23 NIGC staff. But with all due respect, that

24 expertise is not in the areas set out by the

25 current facility licensing rule. The Tribe's

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1 fears regarding the facility licensing rule have

2 not come to fruition. At least not yet. The rule

3 is the hook on which a future NIGC can hang its

4 hat to massively expand its bureaucracy to add

5 staff of supposed experts to second guess tribal

6 governments. A future NIGC may not have the

7 respect for tribal self-governance exercised by

8 the current NIGC. The restraint shown by this

9 Commission, and even the Hogan Commissions, is the

10 only reason that the current facility licensing

11 rule has not yet been the subject of litigation.

12 If the rule is not changed, it will suffer the

13 same fate as the Class III MICS suffered in the

14 CRIT litigation. You cannot guarantee that future

15 NIGC's will exercise the same restraint, however.

16 Accordingly, you should act now to gut the current

17 rule of its paternalism.

18 Thank you for your consideration.

19 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

20 Thank you. I want to make two observations. One,

21 I appreciate very much the candor and the amount

22 of work that goes into formulating a response, a

23 very thoughtful response. We have seen it

24 throughout Indian country during this time, and

25 it's evident to your comments and it's clear in

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1 your thoughts and what you put forth on behalf of

2 the Tribes. So I want to acknowledge that. The

3 other thing is I appreciate your time here today.

4 I've seen it in other areas of the country, and I

5 want to make sure that I say it publicly because

6 it is very different than the way the Commission

7 was conducting itself in the past.

8 Just because we're in a region

9 doesn't mean we're in a region of Tribes only in

10 that region. If you're in the area or you want to

11 travel to another area, come. This is not -- not

12 -- we don't do things one on one. You hit it

13 exactly on the head, Scott, when you said support

14 might be by many Tribes here have a lot going on.

15 Because it does formulate your thoughts, it does

16 formulate your responses. It does help you think

17 about things that are on a more global scale how

18 it might affect our Tribes. So I'm glad you're

19 here and thank you. Even though you weren't at

20 Palm Springs, I get you here and they didn't get

21 you in Palm Springs, so I'm -- I appreciate that.

22 You had a couple of things that I'm

23 going to go back to. I have some questions I want

24 to share with the larger group, and I want to

25 listen to whoever wants to bring comments to the

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1 table.

2 BEVERLY PONCHO: I'm not a big fan

3 of regulations. I think it just makes everything

4 so much more complicated. The fees that the

5 casinos have to pay -- is it -- I didn't do my

6 homework. Our CFO does that. So the fees that we

7 submit to NIGC, could it be made simpler by just

8 going according to the Gross Revenues instead of

9 adding all these other things that's added to it,

10 like the pay outs, the losses and all this stuff

11 we have to submit; just have the CFO only adjust

12 our Gross Revenues, and submit the fee to NIGC.

13 Or is this something that has to be complicated

14 like you all have it?

15 LAEL ECHO-HAWK: Well, it's kind of

16 complicated because it's complicated. You know,

17 one of the things that we all sat through this fee

18 101 because I've never done the fees right. And

19 when you calculate the fee, you calculate it on

20 assessable gross gaming revenue. And how you

21 reach that number is currently based on the

22 formula that includes things like free play, match

23 play, like certain expenses, things that you can

24 deduct, and things that you have to include. And

25 you know, if the wager -- how much of the wager

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1 has to be included when the player has a $10 match

2 play at the table, and then what's the pay out if

3 you deduct -- want to deduct the $10. So it's

4 sort of complicated because it's complicated.

5 The Agency perspective though has

6 been -- this is from the audit department. And

7 when we were doing our 101, is that if you're

8 playing with the casino's money, you shouldn't

9 have to. It's like match play. That's casino

10 money and you shouldn't have to pay your fees

11 based on the fact that you essentially gave a

12 player $10 in match play or however. You should

13 be able to deduct that because that's your money.

14 Now, how you go about deducting that and how you

15 go about calculating the pay out is where it gets

16 complicated. And that's why the question comes up

17 from us do we need to define those better so that

18 it is less complicated and a little more clear?

19 BEVERLY PONCHO: Well, I'm a simple

20 person. I like simple answers. Who made these

21 rules? Was it NIGC? Is it an accounting

22 principle? Or where did it come from? And to me

23 the bottom line is Gross Profits is Gross; it

24 doesn't matter where it comes from. The bottom

25 line is the gross receipts. And if you just put

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1 that, you don't have to add all these other

2 things. It just makes it so much more

3 complicated, and that's where all these

4 regulations come in. It seems like someone just

5 sits there because they have a job and they make

6 up these regulations because they have that, you

7 know. They want to keep their job, these

8 regulations. That's just like the federal

9 government. They just bring in regulations after

10 regulations which astound people. Just like in

11 nursing, you have to write all these things, you

12 know. You can't take care of patients. That's

13 how it is in the regulatory field. And I'm just

14 wondering if these things could be made more

15 simpler where you just tell the Tribe or the

16 gaming operation to figure out their gross profits

17 and submit the fee to you all, whatever the

18 percentage is, whichever percentage is agreed

19 upon.

20 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

21 Having sat through the class as well, and I'm not

22 an auditor, I'm a lawyer by trade, a lot of this

23 stems from the Tribe's request for us to define in

24 order to get those fees set at a fair amount. So

25 if we set it at -- of course gaming revenue

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1 without any deductions, I think many Tribes would

2 be concerned about that kind of a move. But again

3 I'm going to defer to auditors. You do raise a

4 very good point, and it's one that this Commission

5 discusses all the time. The administration has

6 made clear, President Obama has made clear that in

7 agencies looking at the regulations, we are to be

8 mindful of inefficiencies, redundancies. We're

9 actually directed to look for innovative

10 approaches to regulations. And that's part and

11 parcel. Kind of goes back to the question that

12 was asked earlier by the Vice-Chairwoman, which

13 is, you know, you're looking at a lot. How do we

14 place priority? Part of our analysis is to be

15 innovative because many of our regulations haven't

16 been looked at. There are innovative ways for us

17 to do this. And so I appreciate your comment, and

18 we will take that back. And I think it needs to

19 be posed to our auditors. I think we need to

20 respond why is it complicated? The burden doesn't

21 fall on us. I mean, we come up with regulation.

22 The burden though as far as you're asking about

23 keeping people employed, it really keeps your

24 auditors employed, to be honest. But that's, you

25 know -- it's a fair question that needs to be

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1 addressed absolutely.

2 ANGELA DENSON-VAUGHN: This is just

3 a comment I would like to make on behalf of the

4 Mississippi band of Choctaw Indians. It's just

5 that NIGC did have a stand with our Governor of

6 Mississippi, and we did open up our newest casino.

7 I hope that you all have an opportunity to stop

8 by. It's about a two-and-a-half hour drive from

9 here. Just hit 49 and 59, and that's it. It's

10 out in the boonies, but we're thankful for the

11 NIGC for standing up for the Tribe, for our Tribe,

12 and for all the other Tribes. I believe that you

13 all have done a tremendous job, and I want to

14 applaud for what you all did for us. Stand by our

15 internal controls, and so forth, to make it

16 happen. It's the Tribes that have to stay

17 together to unite, to make sure that we stay

18 strong in our sovereignty (inaudible). Thank you.

19 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

20 Thank you.

21 LAEL ECHO-HAWK: Scott, this

22 question is for you and for any of the other

23 people who have thought about this. In regard to

24 the facility license regulations, one of the

25 things that we've heard over and over is that,

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1 well, we have a number of Tribes, particularly in

2 California, who have included in their ordinance,

3 compact and ordinances -- the -- basically

4 affirmatively giving the NIGC authority to come in

5 and enforce Class III regulations at their Tribe.

6 The NIGC has taken a position previously that this

7 then gives this sort of -- this -- since in the

8 ordinance because the NIGC is authorized by the

9 IGRA to enforce provisions of tribal ordinances

10 that then -- because it's included in their tribal

11 ordinance, that they now can be -- the Tribe says

12 it's in our tribal ordinance, NIGC gets to enforce

13 provisions of tribal ordinances. Then that

14 permission gives the NIGC the authority to do

15 this, even though CRIT says NIGC has no Class III

16 authority. So can you respond to that at all? I

17 know this is -- it's something that we've

18 discussed at the Agency level, whether it can be

19 done because of what IGRA says the Agency is

20 authorized to do it.

21 I know there's still debate

22 internally. There's debate externally. But I'd

23 like to hear your thoughts on that, and anyone

24 else that has a comment on that.

25 SCOTT CROWELL: Thanks. That's a

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1 good question, and I think that there are at least

2 a couple of dozen ordinances that have been done

3 that way. First, I think that, you know, that was

4 one of the basics on which the NIGC asked the DC

5 circuit for reconsideration. Reconsideration was

6 denied. It was very clear in its statement that

7 no authority means no authority. And trying to

8 boot strap it through other means is the house of

9 cards that I referred to in the comment. I do

10 think as a legal basis you can use the ordinance

11 approval, or the ordinance enforcement provision

12 of the IGRA to fiat authority to the NIGC that

13 Congress did not otherwise provide the NIGC in its

14 original statutory mandate. And I think that's

15 where you'll have -- you would have a legal defect

16 in those in that providence was challenged in any

17 litigation. I mean, if you took the other view,

18 you could come with absurd hypotheticals in terms

19 of what a Tribe might put into a tribal ordinance,

20 and say well, now that we've approved the

21 ordinance, the NIGC has no power to do all of

22 these things that Congress could, would otherwise

23 never have envisioned NIGC to do. I mean, use the

24 facility. If you take the same logic that Phil

25 used here and you play out that someone sues over

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1 the existing facility licensing regulation, and

2 you get the same result where the court says, you

3 know, just like the court did in the CRIT

4 decision, it says show me in the statute where you

5 have the authority to second guess a Tribe's

6 governance decision on all these areas of tribal

7 law. So Phil says well gee, you know, this is a

8 void and we need to fill it, so we're going to

9 encourage you to start submitting ordinances that

10 give us that authority. Well then, suddenly we

11 have a NIGC now that is the enforcer of a

12 delegation made by the Tribe back to the NIGC to

13 start guessing all of these, all these tribal

14 government decisions.

15 Actually it's easy to take that and

16 extrapolate it out to the old Army Commissioner

17 days where they're just going to make all of the

18 decisions for you. Bottom line is you can't fiat

19 and create authority out of thin air that you

20 don't have in the statute. And by saying, well,

21 we're going to do it by approving the ordinance so

22 that the Tribe is giving the NIGC authority that

23 it otherwise does not have, it's a faulty premise

24 and I think, you know, that if you continue down

25 that path you ultimately get a court decision

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1 saying you don't have it. And all those Tribes

2 that say, you know, well, we really want to do

3 that, and I understand some of the motivation.

4 Like I know that the people in this room probably

5 aren't familiar with the California circumstance,

6 but... I know some of the California Tribes did

7 it specifically to avoid the state doing it under

8 the Compact.

9 Well, the first time you take a

10 harsh enforcement action against one of those

11 Tribes that did that, I see you being the

12 defendant in that lawsuit brought by the Tribe

13 saying yeah, we did that. But you should never

14 have approved it to begin with.

15 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

16 There are several people, several lawyers running

17 around, and I don't know if you want to offer in

18 or weigh in. We certainly welcome your comments

19 if you're prepared to offer them. If not, we

20 understand that as well.

21 ELLIOTT MILHOLLIN: I'd like to add

22 one comment on facility licensing, and it's an

23 observation, I guess, not a question. The

24 statutory requirement is simply that the Tribe

25 adopts an ordinance that ensures that the facility

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1 is constructed, operated and maintained in a

2 manner that protects the environment, public

3 health, and safety. There are a number of

4 different ways of doing that. There's nothing --

5 there's no positive requirement in the statute

6 which requires the Tribe to adopt certain

7 environmental, public health, and safety issues.

8 Many Tribes in the construction process, for

9 example, will do contracting wherein their

10 contracts they require the developer to comply

11 with international fire codes, international

12 building codes, and all of that. That is

13 adequately insuring for protection of

14 environmental, public health and safety standards

15 during the construction of a facility.

16 Now on maintenance. An operation

17 can ensure Tribes will have certain standards and

18 operation standards that they will comply with.

19 However, those standards may be very different,

20 and particular to a facility itself rather than

21 their environmental laws which apply throughout

22 their territories. And so this regulation which

23 requires the Tribe to submit all its laws to the

24 NIGC for review, and defacto approval goes, is a

25 classic example of Agency overreaching. So that's

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1 my observation.

2 My question is with regards to some

3 of these other standards, there's a proposal where

4 the question has been posed to Tribes whether the

5 regulation should be rescinded. And my question

6 is why is that not a question that has been asked

7 with regard to facility licensing regulations?

8 LAEL ECHO-HAWK: I think that

9 question has a lot to do with the process. It is

10 -- that is part of the comments that we heard back

11 from Tribes. We do have a very real issue with

12 facility license regulation in terms of land

13 determination. That right now is one of the big

14 concerns. I know -- I think from the General

15 Counsel's perspective, one good reason for keeping

16 at least, you know -- we're doing that part, but

17 we're maintaining the requirement that the Agency

18 make that Indian land determination. And you

19 know, I know there's been some discussion about

20 the 120 days. That's one of the things that seems

21 sort of -- if you look at the comments received on

22 the facility licensing proposed rule and final

23 rule, a lot of Tribes were like what is this

24 120-day business?

25 Sometimes we, you know -- the

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1 Agency needs to take some time because we do work

2 with the Department of the Interior in making

3 those Indian land determinations. But if you look,

4 say, at like a large land-based Tribe, for example

5 Navajo, if they were, you know, making that

6 determination and saying yes, this is Indian land

7 and it's Indian land eligible for gaming, it's a

8 fairly simple determination to make if it's right

9 in the middle of their reservation. So there are

10 nuances when it comes to that. But that is one of

11 the reasons why that question (inaudible) concern

12 of the Agency that we have a mechanism to address

13 making that determination on whether the land is

14 eligible for gaming.

15 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

16 One of the questions I've -- the Tribes can

17 certainly comment. Actually I welcome the

18 comments -- is what would be sufficient to satisfy

19 2710 little b two. I hope I have the cite right

20 -- what would be the minimum that would be

21 sufficient for submission requirements. And just

22 because we didn't ask the question doesn't mean

23 that we're not interested in feedback. Certainly

24 it's a legitimate question from the Tribes. Maybe

25 we could tie it into some discussion back into

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1 what was required for 2710 b 2 (inaudible) get an

2 answer and be responsive to it.

3 JUDY SHAPIRO: My name is Judy

4 Shapiro. I'm here on -- these comments are not on

5 behalf of my tribal clients because they do not

6 send me here to make (inaudible) comments. But in

7 response to the Vice-Chairwoman's question of what

8 do you think about the issue of the Commission's

9 authority in CRIT, and I also think related to the

10 facility licensing. I think you have to keep in

11 mind that the NIGC is a creature of Congress. It

12 has the power only that Congress gave it in the

13 statute, and they cannot extend beyond that

14 statute. We are actually discussing backstage

15 there -- well, can the Tribe delegate it? Well,

16 it can't. It really can't. The Tribe -- the

17 question of tribal -- the regulation of Class III

18 gaming is established by Congress. There is a

19 reserve sovereign power of the Tribe. There is a

20 congressionally legislated requirement to let the

21 states in insofar as the states negotiate that.

22 And there is no role for the Commission. So as

23 long as there is no role for the Commission and

24 it's the law that says there is no role for the

25 Commission, I think that's the end of the story.

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1 Whether the Commission can maintain a resource in

2 terms of technical training may be another

3 question. But I'm inclined to agree that once you

4 start saying well, we're going to have regulations

5 and they're only for guidance, once you call it a

6 regulation, it takes on a different life. It

7 takes on a different status. And you can't really

8 have something which calls itself a regulation

9 from a regulatory Agency and that the Agency has

10 clearly no power to enforcement. And so whether

11 you call it a regulation, whether you call it

12 guidance, it's going to take on a life that

13 someone is going to ask the Agency to do something

14 with, and it can't. And that makes the Agency

15 look silly. Probably not a good thing. Probably

16 not a good thing because to the extent that the

17 NIGC exists, and that Congress has created that

18 role, it needs to look like it's done everything

19 that's for real and not a pretend regulation, and

20 not an advisory regulation, and none of those

21 things that really can be done much more

22 effectively by trainers, by the tribal gaming

23 regulators who exist for exactly that purpose.

24 And as Scott points out, the original NIGC MICS

25 were adopted wholesale from the Tribal Gaming Task

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1 Force. These are the guys who knew what they were

2 doing and put it together, and did it so that the

3 Tribes would have that resource. And there is

4 that resource for the tribes, and it doesn't need

5 the Commission to take on something that it can't

6 do by law. So that's item one.

7 As to what should the Commission be

8 doing about protecting health and safety, it

9 should perhaps look and say, well, we have this

10 role. We are oversight -- we are an oversight

11 Agency. Please tell us that you're doing it.

12 Show us that you're doing it. And to the extent

13 that you show us that you're doing it, it's not

14 our business to know how many times each week you

15 check water quality, how many times a week you

16 check the status of the fire stations and the

17 extinguishers. We need to know that you do it.

18 That's our responsibility as an Agency, to know

19 that you do it. And if you do it, that's the end

20 of our job. If someone points out a failing, if

21 someone says hey, this Tribe says that it has a

22 fire station and it really doesn't, then it's your

23 business to investigate. But to the extent that

24 the Tribe has undertaken to protect its people, to

25 protect its patrons, and to do the job that it's

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1 required to do under its own sovereignty, step

2 aside. And I don't think you need to regulate

3 that. I don't think you need to be looking beyond

4 that. And that's my comment.

5 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

6 Thank you, Judy.

7 ELLIOTT MILHOLLIN: Let me just

8 clarify like Judy did that my observations and my

9 question were my own.

10 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

11 Thank you.

12 SCOTT CROWELL: I suppose I

13 probably need to make the same caveat for my

14 response.

15 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

16 Please identify your name.

17 SCOTT CROWELL: Again, this is

18 Scott Crowell. Today I'm here on behalf of

19 Rincon, but you know, we've discussed these

20 issues, you know, with great detail with all of

21 our tribal government, the clients that we

22 represent. And so I think that this most likely

23 does reflect their views, especially with the

24 facility licensing issue. And the answer to your

25 question, you know, I think that requiring a Tribe

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1 to certify that it has taken measures to

2 adequately protect the public health and safety as

3 part of a facility licensing requirement would be

4 fine. But as Judy suggests, that you know -- you

5 know, we've had certification there should be a

6 strong presumption that the certification is made

7 in good faith, and on a reasonable basis. If

8 there's going to be enforcement action, you know,

9 based on against the Tribe for not adequately

10 protecting the public health and safety, I think

11 it should be a, you know, a burden upon the NIGC

12 to establish that that certification was made in

13 bad faith or that there had been material changes

14 in circumstances that have created a problem. You

15 know, I gave the laundry list in my statement for

16 a number of reasons. My laundry list in the

17 statement was only referring, you know, to other

18 federal Agencies that we deal with on these very

19 same issues. I don't know of a compact since the

20 original Michigan compacts that doesn't have some

21 type of provision in the compact as it relates --

22 as it relates to Class III facilities or

23 commingled Class II and Class III facilities where

24 those provisions, you know, are also governed by a

25 compact. If, you know -- if you -- and there's

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1 examples out there, you know. I mean, if there's

2 a Tribe in southern California to where its waste

3 water is spilling over the bank of its treatment

4 plant and down, down the ravine, you know, you're

5 going to know about it. Nobody is going to object

6 to your stepping in and saying hey, we need to

7 work with you to get this problem fixed. But that

8 is a far different genre of -- of relationship

9 between the NIGC and Tribes as one as suggested by

10 Chairman, former Chairman Hogan in putting out

11 these facility regulations which is -- is you have

12 to do this by means of tribal law, provide us

13 copies of all those tribal laws, and we will

14 second guess that. Now I guess Phil, you know,

15 all the credit in the world that he -- I think he

16 was sincere saying I'm only going to assert our

17 authority in the most egregious circumstances.

18 But you know, I've -- and I'm thrilled now that,

19 you know, we have, you know, you know -- and NIGC

20 that's at least listening to us.

21 But, but you know, I've been at

22 this now since the passage of the Act. I was

23 there when Tony Hope was sworn in as the first,

24 the first Chairman. You know, you can't

25 promulgate these regulations from the premise of

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1 how would I, Steffani Cochran, or how would I

2 Tracie Stevens, or how would I Dan Little, you

3 know, implement and interpret them. You have to

4 promulgate these regulations with a -- and ask

5 yourself, you know, what would a very hostile

6 Chairman and a very hostile Commission do with

7 these regulations if it inherits the position in

8 the future?

9 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

10 Thank you. I know it's just now after noon, and

11 I'm wondering because it's a smaller group this

12 morning, if there were other comments, if you want

13 to try to wrap it up for the day, or if you want

14 to adjourn for lunch and come back. If you have

15 other things you need to accomplish today, I'm

16 certainly willing to go along with the group's

17 perspective (inaudible).

18 JULIE WILKERSON: I just wanted to

19 say, reiterate what chairperson Bryan said. The

20 Jena band will be submitting some written

21 comments. I didn't come prepared as well as I

22 usually like to be, or hope to be, because I'm

23 happy to say this lady here is just grinning from

24 ear to ear beside me because we will be legal

25 submitting some documents today that are -- we

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1 have documents. They are loan documents for the

2 construction of the facility. So the facility

3 license does affect us greatly having been going

4 through loan documents. And one of the things

5 that we've been -- one of the real concerns for

6 the lenders is permitting, and the licenses

7 required and getting there. And it's been several

8 months of diligence trying to give a feeling of

9 comfort, a warm, fuzzy feeling for that, and

10 concrete evidence of our process and permits.

11 Especially waste water treatment seems to be one

12 of the ones that they really, really hone in on.

13 But hi, Michael. I didn't see you sitting there.

14 MICHAEL HOENIG: Hello.

15 JULIE WILKERSON: He knows about

16 this. But we will be submitting, because we're --

17 in looking at some of our covenants and

18 agreements. And if it's in default we could side

19 step and step in something not realizing exactly

20 what we've done wrong, and trigger some things in

21 our lending document. So we definitely -- from

22 just being very recently in discussions with the

23 lesser on the loans are things that we're

24 initially looking at that can create some problems

25 there too. That's just a comment from our recent

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1 working group trying to get a facility opened up.

2 We're happy, Cindy. We're very happy.

3 CINDY ALTIMUS: If you build it, I

4 will come.

5 JULIE WILKERSON: You've been

6 telling us that. And I go back several years and

7 appreciate the Poarch Creek band because they've

8 been, one, very successful. I saw one of their

9 first operations and was fortunate to watch

10 fireworks with the Chairwoman at their grand

11 opening. And I've been several times. So I want

12 to talk to you about picking your brain again

13 soon. And thank you for the NIGC because they

14 have been very responsive when we've called and

15 had questions, and for their assistance. I know

16 Elaine is elated to hear that we'll be. She's

17 been kind of waiting on these, I believe. So

18 thank you.

19 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

20 You're very welcome. The written comments are

21 really crucial, especially in light of what's

22 happened with our recorder. We think we got our

23 recording, but the written comment is becoming

24 more important to us so that we can get something

25 out. So if you have written comments, would you

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1 please submit them?

2 In this particular case, they take

3 on even more meaning to help us create a public

4 record. We'll do our best to get this

5 transcribed, but I have no idea how this is going

6 to turn out. So all the best technology in the

7 world, but it doesn't help when your Court

8 Reporter doesn't show up. Anything else?

9 STEPHANIE BRYAN: I would just like

10 to say once again thank you all. Especially for

11 being down south, it's been our pleasure. But of

12 course, we will be at all consultations because I

13 think when you add group three, actually group two

14 and three, we will need to be at those

15 consultations. Once again, thank you to the

16 Commissioners and the staff for the job that

17 you're doing on behalf of Indian country.

18 VICE-CHAIRWOMAN STEFFANIE COCHRAN:

19 You're very welcome, Chairwoman. Thank you. And

20 we understand your time and your resources are

21 limited (inaudible). One of the reasons when we

22 go out now -- oh well, who is coming? It will be

23 probably one Commissioner at each consultation

24 because it just doesn't make any sense to send

25 three of us across the country to 33 groups. So

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1 you get one of us. If that's how you want to pick

2 your attendance, that's fine too. But we're

3 mindful of resources. We are absolutely mindful

4 of resources. And as you see, I have very limited

5 staff with me as well. We're trying to really

6 just bring what we need to get through the

7 meeting. If it means we fall, we fall. That's

8 okay. I'm not adverse to saying I wish we had an

9 auditor here today, but we don't. But I'll get

10 you an answer. That's law school 101. I'll get

11 back to you. Anything else? Well, I will close

12 then.

13 I just want to thank you for your

14 time, your attention. I know we got tribal

15 leaders here (inaudible) lawyers. Teri, thank you

16 for coming. I have a tremendous amount of respect

17 for the former Commissioners, and I always welcome

18 the opportunity to have you in the audience

19 because I know you got a lot of history to offer.

20 And so thank you for coming. Safe travels. My

21 greatest wishes, and I look forward to seeing

22 everyone again soon. Thank you.

23

24

25

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1

1 20:9 42:14

10 62:1,3,12

101 26:16 61:18

62:7 83:10

120 71:20,24

12:30 34:4

13 32:6

14 21:11

15 32:13

18 44:5

1988 5:6

1993 27:13

1st 18:12 20:19,20

2

2 20:24 42:16 73:1

2011 1:20 17:8

2012 17:8

22 27:12

24 18:1

25 43:9

2710 72:19 73:1

3

3 14:2

30 32:9

30,000 19:16 31:25

31 32:10

31st 13:8

33 12:20,20 82:25

4

4 21:9,15

45 15:22

49 65:9

5

5 1:20 32:5,6,13

514 14:12 19:18

20:8,9,24 21:9,15

32:4 43:9

523 27:9

539.7 57:7

542 31:3,7,12,14,18

559 27:18 53:25

59 65:9

6

6 32:4

60 15:2 32:10

9

91 23:4,7,10

92nd 23:7

a

able 3:24 23:17

33:17 62:13

abridge 58:6

absolutely 37:18

65:1 83:3

absurd 67:18

abuses 47:21

accepting 13:9

accidents 47:12

55:13

accommodations

37:25

accompanying

56:14

accomplish 79:15

accountability

17:19

accounting 21:5

62:21

accurate 20:23

achieve 13:14

acknowledge 60:2

acknowledged

57:21

act 19:3 28:16 29:2

37:17 38:1 56:1,2

59:16 78:22

action 4:8 45:9 53:7

69:10 77:8

actions 57:16

actual 2:10 21:16

add 43:14 59:4 63:1

69:21 82:13

added 61:9

adding 13:1 61:9

addition 57:2

additional 3:11 28:7

40:21 43:14 56:8

additionally 51:8

address 30:9,19

31:8,22 42:20 72:12

addressed 19:14

34:24 36:6 65:1

addresses 30:13

43:11,13

adequate 56:7

adequately 58:17

70:13 77:2,9

adjourn 79:14

adjust 38:22 61:11

administration

17:18 64:5

administrations

44:22

administrative 8:7

40:15

administrator 7:22

38:7

admission 24:13,19

24:21 25:1,7

adopt 47:11 70:6

adopted 74:25

adopting 56:20

adopts 69:25

advance 43:19

adverse 83:8

advisory 31:15

48:12 74:20

advocate 50:17

advocated 58:9

advocating 53:12

affect 22:18,21

60:18 80:3

affirmatively 66:4

affirms 57:23

agencies 14:5 56:7

64:7 77:18

agency 18:20 21:2

22:4,14,16 24:17,21

27:24 28:22 29:6

30:11 31:10 41:16

54:12 62:5 66:18,19

70:25 71:17 72:1,12

74:9,9,13,14 75:11

75:18

agenda 5:20 46:12

48:17,22 50:11

aggressive 36:20

aggressively 47:19

ago 21:2 22:14

48:10

agree 5:9,19 55:4

74:3

agreed 63:18

agreements 44:15

51:2 80:18

ahead 2:3,7 33:15

42:8,10

air 68:19

alabama 3:8,12 4:7

4:19

alienate 5:1

alj 45:17,24

allegation 51:9

alleged 49:21

alleging 46:6

alliance 58:11

allocate 54:21

allow 20:20

allows 28:24 29:5

47:22

altimus 8:25 9:5

10:18,22 11:17

33:10 81:3

amend 47:11 52:12

53:15

amending 50:11

amendment 49:19

amicus 45:16,22

amortization 20:24

amount 32:13,15

37:10 59:21 63:24

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analysis 64:14

angela 10:4,5 65:2

annual 23:6,9,12

annually 40:9

answer 33:6 39:25

73:2 76:24 83:10

answers 62:20

anthony 44:6,10

anti 5:12

anticipate 17:1

19:21 25:2 28:9

anticipates 43:2

anymore 27:14

anyway 45:11 46:15

apologize 12:1

42:14

apologizes 43:19

apparently 33:16

appeal 22:25 23:1

appealed 4:7

appeals 45:19,25

46:5

applaud 65:14

applied 27:11

apply 27:15 70:21

applying 17:2 31:10

appointed 47:10

appreciate 3:3 4:13

6:13,13 42:2 59:21

60:3,21 64:17 81:7

appreciated 3:16

approach 5:15

22:18

approaches 64:10

appropriate 27:23

58:8

appropriately 43:11

52:17

approval 19:1 27:10

27:14 46:7 67:11

70:24

approved 48:5

67:20 69:14

approving 46:15

50:15 68:21

approximately 15:2

15:22

april 18:12

arbitrary 47:3

area 3:11 60:10,11

areas 3:21 17:12

29:17 47:12 56:21

57:15 58:24 60:4

68:6

argued 5:6

argument 58:13

arizona 51:12

army 68:16

article 6:10

aside 29:2,7 76:2

asides 29:3

asked 25:18,18

64:12 67:4 71:6

asking 26:7 27:16

32:15 64:22

aspect 5:19

assert 78:16

asserted 57:20

asserts 57:12

assessable 21:12,20

61:20

assessment 43:15

assistance 48:14

81:15

assistant 8:8

associate 2:18 10:7

10:11

associated 17:11

association 10:2

associations 19:24

assume 46:7 50:14

52:18

astound 63:10

attached 46:25

attack 23:17

attacked 5:11

attempted 22:8,22

attendance 83:2

attention 83:14

attorney 9:20 11:7

33:22 49:7

attributed 11:23

audience 83:18

audit 43:17 62:6

audited 20:21

auditing 53:13

auditor 63:22 83:9

auditors 64:3,19,24

author 22:23

authored 52:15

authoring 45:21

authority 30:14,15

30:24 45:11 46:2,7

46:16 47:5,10 48:23

49:2,6 50:9,14,16

51:4 54:8,22 55:3,7

55:8 57:12,13 58:7

66:4,14,16 67:7,7

67:12 68:5,10,19,22

73:9 78:17

authorize 31:13

authorized 6:17

66:8,20

authorizing 55:3,7

available 19:22

avenues 46:9

avoid 23:22 69:7

aware 28:6 52:4

b

b 20:24 21:11 72:19

73:1

back 10:17 17:2

21:6,16,21 27:25

28:1 29:24 32:3,19

39:25 60:23 64:11

64:18 68:12 71:10

72:25 79:14 81:6

83:11

background 12:13

backstage 73:14

bad 77:13

balancing 29:22

band 4:4 6:5 7:5,13

7:18 8:6,10,18,20

8:23 9:7,18,21,24

10:7,12 33:22 34:6

34:19 42:11,22 43:1

43:6,8,19,22 48:9

52:7 53:2,17 54:1

65:4 79:20 81:7

bank 78:3

bannock 8:3

base 39:16

based 14:17 20:10

20:18 23:25 31:9

38:22 46:16 61:21

62:11 72:4 77:9

baseline 48:8 51:20

basic 2:4

basically 21:15 26:3

41:7 66:3

basics 67:4

basis 51:16 52:4

54:17 67:10 77:7

beating 36:24

becoming 81:23

bedside 17:25

beginning 45:16

begins 15:10

behalf 6:18 7:12

9:21,24 42:10,21

60:1 65:3 73:5

76:18 82:17

believe 37:20 65:12

81:17

believes 43:22

beneficial 4:2

best 13:14 18:7 51:4

53:25 82:4,6

besting 58:6

bestow 57:11

better 62:17

beverage 56:4

beverly 7:9,9 61:2

62:19

beyond 47:4,5 52:6

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biannual 21:1,3

biannually 24:6

big 61:2 71:13

bigotry 5:13

biloxi 1:18 29:16

bingo 1:14

bit 39:19,25

blank 32:10,10,12

blanks 32:17

blatant 4:14

blocks 33:25

board 27:21

body 49:13

boils 32:23

bok 3:19 8:17,22

bond 22:22

boonies 65:10

boot 67:8

border 4:3

bottom 52:20 62:23

62:24 68:18

boundaries 45:14

brain 81:12

braved 33:24

break 12:15

brief 45:22

briefly 12:23 32:3

bright 5:22 46:4

48:18

bring 60:25 63:9

83:6

broad 57:14

brought 33:5 69:12

bryan 7:17,17 34:18

34:18 37:16 79:19

82:9

bryce 8:15,16

budget 29:19 40:20

53:1

build 81:3

building 55:23

70:12

built 52:9

bulletins 49:14

bullying 4:11

burden 28:21 56:9

64:20,22 77:11

burdening 40:7

bureaucracy 55:11

59:4

business 71:24

75:14,23

businesses 29:4,4,5

busy 3:2

button 17:5,6,9,9

buy 19:2 28:16,20

28:21 29:1 37:17

38:1

c

c 10:19 11:9 14:2

21:9,15 33:23 45:19

45:25 49:3

calculate 26:17

61:19,19

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calculation 20:15,18

21:11 25:24 26:20

26:21

calculations 20:10

27:4

calendar 20:11,17

22:2 32:9

california 17:3 66:2

69:5,6 78:2

call 13:19 24:17

74:5,11,11

called 4:19 17:5

23:9 42:13 81:14

calling 52:24

calls 74:8

canada 8:14

candor 59:21

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certification 77:5,6

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chair 7:24 17:22

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chairman 5:23 7:18

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chairperson 79:19

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36:3,9 37:19,25

38:15,17 39:5 40:7

41:1 44:5 55:3,5

56:18 57:7 63:15

65:11,11 66:5,11

67:19 68:12,22

69:12,24 70:6,23

72:4 73:15,16,19

75:21,24 76:25 77:9

78:2

tribe's 45:4 53:20

58:20,25 63:23 68:5

tribes 2:17 3:17,24

4:9,21 5:7,16,17,18

5:22 6:3,23 9:11

13:25 14:5,16,18

16:4 20:13 21:4

22:7,19,21 23:16,22

24:5,25 25:11,18

26:7 27:4,5,12,16

27:20,24 28:7,21

29:12,21,24 30:10

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31:6,11,14 32:2,12

32:15,18 33:7 34:15

35:23,25 37:21 40:1

40:4,17 41:20,23

43:12,15 44:7 45:6

45:9,12,18 46:19

47:2,8,10 48:1,25

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52:9,10 53:2,9,11

54:18,22,24 55:2,9

55:20,22,25 56:4,16

56:22 57:2,5,14,16

57:25 58:7 60:2,9

60:14,18 64:1 65:12

65:16 66:1 69:1,6

69:11 70:8,17 71:4

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75:3,4 78:9

tried 23:14 30:5

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trying 5:3 16:5,10

20:2 21:19 32:2

67:7 80:8 81:1 83:5

tulalip 2:16

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12:17 33:7,17 82:6

turned 34:14

two 10:16 12:11

13:1 17:10 19:22

25:24 28:11 29:22

43:6,7 46:21 59:20

65:8 72:19 82:13

type 15:24 52:11

77:21

u

ultimately 45:18,25

68:25

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13:17

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3:24 26:24 69:3,20

82:20

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v

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82:18

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51:25

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w

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61:25

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6:20 9:1 11:2 13:13

16:16 32:2,16 33:4

36:11 39:10,15

50:24 59:20 60:2,5

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79:12,13 81:11 83:1

83:13

wanted 15:9 23:21

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60:25

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22:3 26:9 27:2

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67:3

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33:1 34:4 36:18

65:25 66:17 67:20

76:19 77:5 80:5,20

81:14

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17:5,20 19:23 20:4

25:14 28:11

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81:20 82:19 83:17

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40:12,13 41:1 54:20

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34:3 79:18 80:15

81:5

willing 79:16

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wonderful 37:18

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wondering 38:20

63:14 79:11

words 5:2 6:12 15:6

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work 8:10,13 9:11

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53:1 55:20,22,23,25

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wrong 44:12,13

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yeah 34:2 69:13

year 12:11 13:3

20:11,12,16,17,17

20:22 21:13 22:2,2

22:3 23:5 29:14

39:14,15,18,22

years 2:19 21:2

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39:20 44:5 48:10

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york 8:9,9 9:16,17

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zealous 48:17

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