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7 NRRA CONSULTATION MEETING

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9 COVERING GROUPS ONE, TWO, FOUR AND FIVE

10 REGULATIONS

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13 November 14, 2011

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24 Job No. NJ369178

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1

2 A P P E A R A N C E S :

3

4 Bickerstaff, Robert

 Master Cage Cashier

5 Santee Sioux Nation

6

 Cook, Vince

7 Executive Director

 Little Traverse Bay Bands

8

9 Deeny, Teena

 Cage Cashier Supervisor

10 Santee Sioux Nation

11

 Good Crow, Phillip

12 President Assistant

 Oglala Sioux Tribe

13

14 Hento, Jon

 Controller

15 Yankton Sioux Tribe

16

 Her Many Horses, Danielle

17 Legislative Director

 National Indian Gaming Association

18

19 Miller, Antoinette

 Commissioner

20 Rosebud Sioux Tribe

21

 Provost, Irving

22 Council Manager

 Oglala Sioux Tribe

23

24 Redlightning, Mike

 General Manager

25 Yankton Sioux Tribe

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1 Sandcrane, Alec

 TGRA Chairman

2 Northern Cheyenne

3

 Thomas, Christinia

4 Executive Director

 Mille Lacs Gaming Commission

5

6 Thomas, Thelma

 Manager

7 Santee Sioux Nation

8

 Two Lance, Wilson "Buzi"

9 Executive Secretary

 Oglala Sioux Tribe

10

11 Whipple, Janelle

 Finance Clerk

12 Santee Sioux Nation

13

 Whipple, Robert

14 Commissioner

 Santee Sioux Gaming Commission

15

16 Wolf, Marion

 Executive Director

17 Three Affiliated Tribes

18

 Yellow Bird Steele, John

19 President

 Oglala Sioux Tribe

20

21

22

23

24

25

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1 CHAIRWOMAN: Okay we'll go ahead and

2 get started again. And I forgot

3 (indiscernible), I just saw that we were

4 at break time so I wanted to stop and

5 take a break and let everybody make some

6 phone calls, stretch, get some fresh

7 coffee.

8 Right now, we don't have anything in

9 place formally for the NIGC and the NIGC

10 only procure goods and service from

11 Indian country. Given that the policy

12 under IGRA is to promote economic

13 development and tribal self governance,

14 we thought that we should look at

15 something formal. We -- under IGRA,

16 under 25 U.S.C. 2706(a)(6),(7) there

17 is -- (6) and (7), we do have the

18 authority to contract with tribes.

19 And so I want to be clear that

20 anything that we would put in place would

21 be a requirement on the agency when we

22 procure goods and services from tribal

23 businesses.

24 We try, when we can, based on cost,

25 for example when we do consultations we

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1 try to have them in places 1) where

2 tribes can -- as many tribes can reach us

3 as possible, and we bring ourselves out

4 to tribes; 2) we prefer to go to tribal

5 facilities when we are able to, based on

6 availability and also cost.

7 So that's an example of something

8 that will be on, you know, a requirement

9 upon us when we're moving forward,

10 whether we're doing consultations and we

11 need rooms, meeting room space, or if we

12 need paper to -- if there are tribal

13 businesses out there, we should be as an

14 agency, and Indian agency, procuring

15 those goods and services from Indian

16 businesses.

17 Now this is not something that would

18 be a regulation to impose on tribes. I

19 want to be very clear about that. There

20 has been some confusion in the past that

21 what we're suggesting is that we impose

22 this on tribes, and we would not do that

23 because we don't have jurisdiction to do

24 that. But that's something that each

25 tribe can decide on their own, out of our

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1 bailiwick, but we just thought as an

2 Indian agency that's something in place

3 that would require the agency to go

4 through a buy-Indian type of process.

5 We're still formulating this because

6 we're looking at two paths we could take,

7 whether it's going to be a regulation,

8 whether it's going to be an internal

9 policy. But also, which statute are we

10 going to use, whether it's IGRA or the

11 Buy Indian Act.

12 So we're still considering that. If

13 we do put something out, we certainly

14 will post it as we have with other

15 discussion facts. I'm not sure if

16 anybody has any comments on this. We've

17 been talking about it for a while but we

18 don't have the discussion wrapped. If

19 anybody has any views on whether it

20 should be a regulation, which is very

21 formal, carries the weight of the law;

22 and then there's internal policies.

23 We have a number of internal

24 policies that operate our agency but

25 that's significantly different than a

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1 regulation. So if anyone has any

2 comments about which way to go on that

3 (indiscernible).

4 There's been a number of comments --

5 there are a number of comments that we've

6 received with preference towards

7 regulation because it's a little -- it's

8 more enforceable on agencies, but then

9 it's not very flexible. Some prefer

10 internal policy; it might be quicker to

11 put in place.

12 If not, we don't really have more to

13 say on this than just that, but you know,

14 we do, without that, given our authority

15 to contract under the Act, do try to

16 currently purchase goods and services

17 from Indian country when we're able to,

18 but we do want to formalize that in some

19 way to move forward.

20 So Group 2 will be talking about

21 enforcement and then talking about

22 regulations put before the Commission.

23 Do we have any attorneys here, besides

24 our attorney? Yeah, (indiscernible).

25 This will be a section that it's about a

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1 process before the Commission that many

2 attorneys weigh in on, although you're a

3 commissioner, you're probably familiar

4 with this process. Or if you haven't had

5 to appeal anything, you might not be,

6 whether it's a management contract, an

7 ordinance, and NOV. If you've not had to

8 go through the appeal process it might

9 not be right up front on your radar.

10 So 573, enforcement, our goal is

11 voluntary compliance. One of the

12 philosophies of this Commission is that

13 we should be helping tribes to come into

14 compliance and stay in compliance. We

15 call this principle ACE, A-C-E

16 (indiscernible) first then get them into

17 compliance, then if those two things

18 don't work then we need to go into

19 enforcement.

20 Anything that we do with regard to

21 enforcement actions, it should not

22 necessarily be a surprise to tribes.

23 There are times where we may need to take

24 immediate action, depending on

25 circumstances, but in most of what we do

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1 the tribe knows that we're looking into

2 matters; that we're working with their

3 tribal gaming regulatory body or their

4 operations, depending on what's going on;

5 but that we should at least make every

6 effort to bring the tribe into compliance

7 before we issue an NOV.

8 So this new draft outlines a pre9 enforcement action process. First there

10 would be a letter of concern or non11 compliance notice provided to the tribe

12 or the respondent. A letter of concern

13 indicates an incident or a condition that

14 may be a violation. And a non-compliance

15 notice confirms an assessment of the

16 matter and states necessary corrective

17 action.

18 So there's the concern that there

19 may be something happening that might be

20 a violation and then the other action

21 would be yes, this is a non-compliance

22 issue, and that there needs to be certain

23 steps taken in order to come to

24 compliance.

25 We heard from tribes that they would

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1 prefer some process before going straight

2 to an NOV so that they could at least

3 make an effort to comply first. And so

4 that's what this would do. It would

5 track the desire tribes to have an

6 incremental process in place before going

7 straight to an NOV.

8 We understand that an NOV is a

9 serious black mark on a tribe's record,

10 especially when tribes are looking for

11 partners, looking for financing, or just

12 generally trying to keep their record

13 clean.

14 Further, neither the letter of

15 concern or non-compliance notice is an

16 agency action. Agency action is

17 something -- it's a statement of despair

18 and this would -- these letters would be

19 most likely coming from our regional

20 offices.

21 Either action may provide a time

22 period for respondent to come into

23 voluntary compliance. If recommended

24 corrective action is not completed,

25 enforcement action may be taken.

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1 The pre-enforcement action process

2 does not limit or constrain the Chair's

3 discretion to issue a NOV.

4 Prior to outcome is that we go

5 through letters of concern or notices of

6 non-compliance and we help tribes come

7 into compliance, whether that's through

8 training, technical assistance, and then

9 having the tribe self correct the problem

10 and stay in compliance.

11 However, again there are instances

12 where the Chair may need to take

13 immediate action, depending on

14 circumstances, and that could be very

15 situation specific. And so that is

16 preserved in this proposed draft.

17 I know we have a number of

18 Commissioners here or regulators. Does

19 anyone have any comments on those

20 concepts outlining the pre-enforcement

21 actions? I know that a number of tribes

22 actually see this is in their own

23 ordinances and their own controls. This

24 may not be new to you.

25 It's also something similar to other

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1 federal civil regulatory bodies like the

2 FCC, because similar processes are in

3 place that are more informal before final

4 agency action is taken.

5 You're free to make any comments,

6 either here or in writing. We hope to

7 get more notices of proposed rules out

8 soon, so there will be another

9 opportunity to make a comment on 573, and

10 what we've proposed so far.

11 So the proceeding before the

12 Commission, it would repeal Part 519

13 service, Part 524 appeals, Part 539

14 appeals, and Part 577 appeals before the

15 Commission and would create a new

16 Subchapter H for all proceedings before

17 the Commission.

18 As you can see, the appeals is

19 pending on what action has been taken,

20 whether it's an ordinance approval, a

21 management contract, or an NOV are

22 separated currently in different parts.

23 This would put all the parts under

24 Subchapter H.

25 We're doing this because we did hear

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1 from tribes and their attorneys, their

2 commissioners that they wanted to see

3 more -- in finding what steps they should

4 take and make it clearer and more

5 consistent, rather than having to jump

6 from part to part. But also, if we have

7 a presiding officer, we need to make it

8 clear to the presiding officer in any of

9 these actions what part they should be

10 following, and try to remove any

11 confusion.

12 So we'll be -- the proceedings will

13 fall into these subsections: 580 will be

14 general rules of application; 581 motions

15 in appellate proceedings; 582 the appeals

16 of disapprovals of gaming ordinances,

17 resolutions, and amendments; Part 583

18 appeals for approvals or disapprovals of

19 management contracts -- as you can see

20 they're different sections; appeals

21 before the presiding official, notices of

22 violation; fine assessments, temporary

23 closures, management contract late fees

24 and late fee assessments. And 585 is

25 appeal to the Commission on written

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1 submission of notices of violation,

2 proposed civil fine assessments, orders

3 of temporary closure, the Chair's

4 decision to void or modify a management

5 contract, and notices of late fees and

6 late fee assessments.

7 All process -- this is an all

8 process, that's why I'm surprised there

9 aren't more lawyers here, but we've heard

10 a lot of comments so far in what we have

11 been proposing and you know, this is

12 going to assist not just tribes and what

13 steps they need to take in these

14 proceedings, but it also clarifies what

15 the agency will be doing and hopefully

16 make the process simpler.

17 So on 580, the rules of general

18 application, there will be definitions:

19 Suspension, revocation, amendment, or

20 waivers to the rules, who may appear,

21 services, and ex parte communications.

22 581, motions in appellate

23 proceedings; motions for limited

24 participation; ordinance appeals; motions

25 to intervene in appeals; or writing

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1 official motion in an appeal on written

2 submission before the Commission; the

3 filing of motions before the presiding

4 officials to supplement the record, or

5 for reconsideration.

6 These are all sort of rules of the

7 road for those tribes that may be going

8 through an appeal process.

9 582, appeals of disapprovals of

10 ordinances, resolution, or amendments; it

11 talks about who can appeal the

12 disapproval of a gaming ordinance; how to

13 appeal the disapproval; late filing or

14 failure to file an appeal; how to go

15 through motions; motions for limited

16 participation; standards of review;

17 decisions; the timing of the decisions;

18 the content; and the effective date of

19 the decision; and then what constitutes

20 final agency action in that process.

21 583 has to do with management

22 contract appeals; approval or

23 disapproval. It talks about who could

24 appeal; how to appeal; filing or failure

25 to file an appeal; motions generally, and

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1 then motions for limited participation;

2 standards of review; decisions; timing,

3 content; and effective date, and then

4 final agency actions. You see, we're

5 trying to create some consistency in all

6 of the processes.

7 584 is appeals before a presiding

8 official on NOVs; civil fine assessments;

9 temporary closures; the Chair's decision

10 to void or modify a contract; a

11 management contract; (indiscernible).

12 Again who could appeal; how to appeal;

13 filing and failure to file motions;

14 motions for limited participation; and it

15 lists burdens of proof and standards of

16 review; and when the hearing will be

17 held.

18 584 continues of course the hearing

19 process; the decision; what's included in

20 the decision; and final agency action

21 with regard to appeal; appeals to the

22 Commission on written submissions of

23 NOVs; fine assessments; similar to the

24 last one but this is all written

25 submissions.

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1 It's my understanding that most of

2 what we do is on written submission when

3 we go through an appeal process, so this

4 part in particular is important.

5 UNIDENTIFIED FEMALE SPEAKER:

6 (indiscernible)

7 CHAIRWOMAN: That's true, but a

8 respondent, either a tribe or another

9 party gets to choose how they want appeal

10 a matter that the Chair's made a decision

11 on. So they get to decide whether they

12 would like a more expedited process that

13 does not require a hearing and it's just

14 before the Commission on written paper as

15 to whether they want to have an

16 administrative hearing before an

17 administrative law judge to decide

18 (indiscernible).

19 We're clarifying two processes here,

20 and again we'll be looking at who can

21 appeal, how to appeal, late filing,

22 motions, standards of review,

23 (indiscernible) and then final agency

24 action with regard to an appeal.

25 So that all seems really sort of

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1 integral (ph.) but I know that our

2 attorneys in our general counsel's office

3 and many of the attorneys that represent

4 tribes, and commissioners -- sometimes

5 commissioners have to follow these

6 without an attorney (indiscernible).

7 What we're hearing back is a lot of

8 positive responses that we're modifying

9 and clearing up and making plain these

10 processes because the rules of the road

11 are really important, especially when a

12 tribe is appealing an action by the

13 agency.

14 And so in our effort to be

15 transparent, and clear, consistent,

16 there's a lot that goes with these

17 regulations, this particular subchapter

18 that we're proposing, so I encourage you

19 all to take a look at them or have your

20 counsel, legal counsel take a look at

21 these. If there are any questions or

22 concerns or comments that you have on how

23 we could improve what we've proposed, we

24 certainly are open to hearing those.

25 I always tease the attorneys because

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1 everybody gets so excited about this

2 part, as they're truly regulations that

3 only an attorney could love, and you know

4 we've heard from folks that folks wanted

5 more details. So that's what we've tried

6 to provide here for different type of

7 appeal.

8 That takes up about half your

9 packet, legal process. But again, our

10 effort is to make sure that we're clear,

11 that tribes are clear in what -- how to

12 proceed.

13 That would be exciting while we're

14 proceeding (indiscernible). If we're all

15 okay with this I'd like to move onto

16 Group 4, which is in the afternoon

17 session. This may be something more

18 relevant, especially if we have

19 commissioners here going through

20 licensing, monitoring, and

21 investigations, background

22 investigations. If that's okay with the

23 group we could go ahead and move on to

24 Group 4.

25 Many of you may be participating in

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1 the pilot program, which is not really a

2 pilot program because it's been around

3 for a while. I know almost every tribe

4 is using it. Or a considerable number of

5 tribes is using it. So it doesn't really

6 qualify as a pilot. So this is our

7 effort to formalize the pilot program

8 that has to do with licensing,

9 (indiscernible) to background

10 investigations and licensing.

11 So we'll talk about that in 556 and

12 558. We'll also talk about 571 and 537;

13 571 being monitoring and investigations,

14 and then 537 background investigations

15 for persons or entities with financial

16 interest or have management

17 responsibilities or management contract.

18 Those are really long titles, I

19 know. But we've broken up 556 and 558

20 into what we like to think of as before

21 licensing and what you need to do, and

22 after -- what happens after than has

23 taken place and you've submitted --

24 whether you had to submit and what

25 happens after that, so 556 and 558.

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1 So in the Notice of Inquiry that

2 published last November, we requested

3 comment on the priority of amending

4 regulations to formalize the pilot

5 program that's in place now.

6 The pilot program allows tribes to

7 submit notices of results and maintain an

8 application, applications investigations

9 and investigative reports. So it's the

10 work that the tribe does. And you submit

11 that usually to the regional office.

12 All commenters supported formalizing

13 this program into a regulation or a

14 policy. So in the discussion draft,

15 we're not to a point of Notice of

16 Proposed Rule on this yet but in the

17 draft we're formalizing the pilot program

18 and Part 556 includes (indiscernible)

19 before the gaming license is issued.

20 So a tribe that seeks to license a

21 key employee or primary management

22 official notifies NIGC of background

23 results within sixty days of that

24 individual starting work.

25 Tribes with access to prior

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1 investigative materials from another

2 tribe may update the materials so that

3 we're not reinventing the wheel. It may

4 be that you -- and I'm sure you all are

5 aware of this if you have somebody who

6 has worked in a facility and has gone

7 through this process -- you may just need

8 to update what we already have or what

9 you already have, or they've been through

10 it before. (indiscernible).

11 558 includes all the procedures

12 after the license is issued. So after

13 notice, an NOR, Notice of Results, the

14 tribe may license the key employee or the

15 primary management official.

16 The tribe must notify the NIGC

17 within thirty days of that license, and

18 NIGC has thirty days to request

19 additional information from the time of

20 complete submission of the material.

21 More on 558, the NIGC notification

22 within thirty days of receiving Notice of

23 Results, if the license is issued prior

24 to any objection that the NIGC may have,

25 licensee has a right to notice and

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1 hearing. The tribe must suspend a

2 license until after the hearing or until

3 the hearing, and following the hearing

4 the tribe notifies NIGC of its

5 (indiscernible).

6 So within the thirty days the NIGC

7 may object, there may be some findings

8 that we have. Some tribes temporarily

9 license their employees before the

10 results. NIGC would have a certain

11 amount of time, and there is an

12 objection, that employee would have to

13 stop working. You'd have to suspend that

14 license until there's a hearing,

15 depending on material or the information

16 based on the employee's information. And

17 then the tribe would have to notify the

18 NIGC of their decision on the material or

19 the objection that we had.

20 Again, it's different for different

21 tribes. Some tribes don't have the

22 employees start working until they know

23 that there's no objection. And that way

24 they don't have to go through the process

25 of a hearing once the employee starts

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1 working. Other tribes go ahead and issue

2 temporary licenses and have no issue with

3 going through a hearing process should

4 something come up in the employee's

5 background. Again this is for key

6 employees and primary management

7 officials only.

8 Just so you all know, if we get to a

9 point in finalizing this, we will make

10 every effort to make consistent our

11 processes across our regions. We're

12 asking for the same information through

13 all of the regions, but I think each

14 region might have a different format by

15 which they gather this information. But

16 we plan on working with our regions to

17 standardize our process so that every

18 tribe in every part of the country is

19 following the same process.

20 We'll be asking the same information

21 but we want to make sure that our process

22 is consistent all across the country.

23 This is helpful in case one region is

24 getting a lot of work, that they can

25 shift some of the work to another region,

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1 and we'll have the same processes in

2 place. I only bring that up because some

3 tribes have mentioned that the form might

4 have looked different or the process

5 looked a little differently than what

6 they were accustomed when another region

7 was helping out, or that they talked to

8 another tribe from another region.

9 And so just so you know, we'll be

10 asking for the same information for 556

11 and 558, we'll standardize the

12 information based on the law that we'll

13 be asking for, and internally we will

14 develop standard operating procedures,

15 basically, on how we're going to move the

16 information through the agency. So that

17 might be the only change that you see but

18 it won't be a change in the content that

19 we'll be changing, if any, the form that

20 information takes.

21 Do you have any questions on 556 or

22 558? Yes, do you need a microphone?

23 Yes, do you need a microphone?

24 UNIDENTIFIED MALE SPEAKER: One of

25 the things that we have built into our

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1 compact with the State of Michigan is for

2 certain offenses the tribe has the right

3 to do a waiver for tribal citizens. In

4 those cases they can waive certain

5 offenses, obviously a felony can't.

6 There's some things that they can never

7 be licensed for. There are some things

8 that they can be licensed for and what do

9 is we hold a hearing for those

10 individuals before we notify NIGC because

11 our Commission can state that we're not

12 going to license these individuals based

13 on their criminal history, or something

14 from their background.

15 I guess my question would be with

16 the situation that we have built in we've

17 already done a hearing and the Commission

18 has determined that they are licensable.

19 Would we still be required to do another

20 hearing if NIGC has an objection?

21 CHAIRWOMAN: Under our regulations

22 yes. If they have been licensed already

23 they need to suspend the license

24 (indiscernible). But you all have the

25 ultimate say in regard to license.

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1 UNIDENTIFIED MALE SPEAKER: Well

2 that's kind of why I was asking that

3 question. It's primarily just for tribal

4 citizens, not for non-tribal citizen

5 (indiscernible). They've already gone

6 through -- held their hearing to

7 determine is the individual suitable, and

8 the language in the compact is are they

9 likely to reoffend and if the Commission

10 makes that determination as to whether or

11 not they feel they're likely to reoffend,

12 when we do submit our NOR, we do advise

13 in there that they were initially denied,

14 but there was a hearing held and kind of

15 state the process so that job staff --

16 that we've done our due diligence on our

17 own.

18 CHAIRWOMAN: And that may be -- that

19 sounds like a good process because you're

20 getting ahead of what could potentially

21 be an objection, and that may allow John

22 and others to be able to reconsider an

23 objection if you've already dealt with it

24 through process.

25 UNIDENTIFIED MALE SPEAKER 1: That's

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1 exactly what would happen. We ask if you

2 issue a waiver for something that you put

3 that notice in NOR because that which is

4 objectionable to me, if you've already

5 addressed it, a lot of times that's my

6 only concern, that you're aware of it,

7 that you have seen what the problem is.

8 So I'm sure that's exactly correct.

9 CHAIRWOMAN: Again, this is for key

10 employees and primary management

11 officials. And you know there's

12 definitions for that. It does not

13 necessary your maintenance people, just

14 certain employees.

15 Part 571 monitoring and

16 investigations, the Notice of Proposed

17 Rule, this just deals with the conclusion

18 of an investigation, some formal process

19 that will advise the tribe that an

20 investigation has concluded.

21 Authorized NIGC staff may advise

22 party by letter that the investigation

23 has been completed, and that that

24 notification is not claiming that no

25 violation of IGRA or the NIGC regulation

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1 or that it proved perhaps gaming

2 ordinance occurred. It doesn't preclude

3 necessarily the Chair's authority to act

4 in the future.

5 But the reason this came up, we had

6 heard from many tribes that there was an

7 investigation that was taking place and

8 had happened over a certain amount of

9 time in the past, but they had never

10 heard what the outcome was. And to the

11 tribe it seemed like a hammer that was

12 always ready to fall. They had no idea

13 what had come of the investigation, what

14 they were supposed to be doing, and it

15 sort of left them in limbo.

16 And so we -- you know, that was

17 something that we had heard from tribes

18 early on, and just like on the frontend

19 of a potential enforcement action where

20 we go through the letter of concern and

21 notice of non-compliance; there should be

22 something at the tail end that says okay,

23 we're closing out this investigation.

24 And it helps the tribe move on but also

25 in what's in the proposed rule preserves

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1 the authority of the Chair to revisit it

2 if it continues to (indiscernible).

3 Again we looked around at other

4 federal regulatory -- civil regulatory

5 agencies that regulated industry and

6 something similar that we saw in other

7 regulatory bodies to let the party know

8 we've closed out this investigation.

9 So this again was published on

10 October 12th, and the comment period

11 closes on December 12th, and you should

12 have this in your packet as well.

13 537, background investigation to

14 persons or entities with a financial

15 interest in, or having management

16 responsibility for a management contract;

17 long title again, has to do with

18 management contracts.

19 In the discussion draft that should

20 be in your packet under 537, right after

21 the section we just went over, the

22 discussion draft states that the Chairman

23 reduce the scope of the background

24 investigation and information to be

25 furnished for any tribe, the tribal-owned

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1 entity, national bank, or institutional

2 investor that is federally regulated or

3 is required to undergo a background

4 investigation by a licensor, by a state

5 or tribe, pursuant to a tribal state

6 compact.

7 In effort to not reinvent the

8 wheels, because they are already going

9 through another process that is federally

10 regulated, or through a state compact,

11 this is something that the tribes brought

12 to our attention as well. They're doing

13 it duplicative in some instances, and so

14 we wanted to address it here.

15 It also clarifies there's really

16 just two changes in this particular

17 draft. One is in the frontend, first

18 part of it, including management for both

19 Class II and Class III facilities, hybrid

20 facilities. And the second one is

21 this one here towards the end of the

22 draft.

23 We don't see as many management

24 contracts as we probably did in the early

25 days. But we do still see them.

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1 UNIDENTIFIED MALE SPEAKER:

2 (indiscernible)

3 CHAIRWOMAN: Bear with me, I lost

4 connectivity.

5 We also have in the packet a Notice

6 of No Action. Initially when we started

7 the Notice of Inquiry last year, we

8 talked about collateral agreements,

9 should we consider, how would we

10 consider, what is a collateral agreement

11 for management contracts. We talked

12 about it in the Notice of Inquiry. We

13 talked about it over the past six months

14 during these consultations.

15 We also discussed the definition of

16 net revenues, and in response to what

17 we've heard from tribes during this past

18 year, primarily these last six months,

19 we've decided to take no action on the

20 discussion items on collateral

21 agreements, or the definition of net

22 revenues. We think the definition of net

23 revenues is (indiscernible) and it's very

24 specific, so we don't want to modify that

25 because we don't think we can.

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1 So there is a Notice of Proposed

2 Rule in here that states that we're not

3 going to take action on these two items.

4 These are now off of our slate of things

5 to do in terms of reviewing regulations.

6 And again, that was published on

7 October 12th with a comment period on

8 December 12th, so if you don't believe

9 that we should not take action on those,

10 or if you have comments about the no

11 action process, we certainly can provide

12 comment on the notice of no action.

13 We have one section left and it's

14 actually -- it's something we can cover

15 before lunch. Would the group like to

16 talk about self regulation? We do have a

17 discussion draft out right now that

18 changes the self-regulation regulation.

19 I'm not stuttering, it's actually the

20 self-regulation regulation for Class II,

21 and we could talk about sole-proprietary

22 interest before the lunch break if a

23 group of you so desire. Okay.

24 UNIDENTIFIED MALE SPEAKER 2: We've

25 got little bingo. It's not a big bingo

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1 like you see at one of these larger

2 casinos. We're just community bingos.

3 One of our attorneys says that we -- the

4 attorney's opinion that bingo callers

5 have to be licensed and to keep the guys

6 off the street that come in. It's just

7 charitable bingos. We disagree with our

8 attorney.

9 CHAIRWOMAN: Is this your own

10 facility?

11 UNIDENTIFIED MALE SPEAKER 2: No.

12 CHAIRWOMAN: Okay -- these are --

13 UNIDENTIFIED MALE SPEAKER 2: It's a

14 community facility out across the

15 reservation.

16 CHAIRWOMAN: Off the reservation?

17 UNIDENTIFIED MALE SPEAKER 2: No, on

18 the reservation, but we've got a large

19 reservation, they have little community

20 bingos. And it's more of a hassle to try

21 even to understand where does the bingo

22 happen. Then trying to regulate the

23 bingo caller -- some are prize bingos and

24 some are bingos for money. More than one

25 of them are charitable fundraiser bingos

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1 and we don't think that we need to do

2 that. We say why aren't DAVs or Knights

3 of Columbus have to license their bingo

4 callers?

5 CHAIRWOMAN: Even though they're

6 Class II (indiscernible).

7 UNIDENTIFIED MALE SPEAKER 2: Yes,

8 but these are so small, so minimal.

9 CHAIRWOMAN: Sounds to me like your

10 attorney is trying to figure out whether

11 the bingo caller qualifies as a key

12 employee under our regulations.

13 UNIDENTIFIED MALE SPEAKER 2: It's

14 not even employees, they're sort of --

15 some of them are volunteers.

16 CHAIRWOMAN: Well then we can

17 certainly talk about this with you

18 specifically offline so we could get some

19 more detail. It sounds very specific to

20 your situation.

21 UNIDENTIFIED MALE SPEAKER 2: Right,

22 my gaming commissioner (indiscernible),

23 and we can follow up on that.

24 CHAIRWOMAN: Okay, we certainly can

25 chat with about that and get more

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1 information on what the situation is and

2 what would or wouldn't be required by us.

3 UNIDENTIFIED MALE SPEAKER 2: We

4 think this is going a little too far

5 regulating on the little bingos.

6 CHAIRWOMAN: Okay.

7 UNIDENTIFIED MALE SPEAKER 3: Just a

8 couple of words to clarify what he's

9 talking about. I know under -- being a

10 bingo caller is one of the key employees,

11 but this is talking about charitable

12 bingos. We have some bingos out there,

13 like St. Agnes Bingo (indiscernible)

14 they'd have maybe once a month, twice a

15 month private bingos and stuff. And

16 their attorneys say no, we have to start

17 regulating them and they have to start

18 being licensed, background, and then

19 seventy percent has to come through your

20 tribe. It's a bit extreme.

21 I'm telling these people who are

22 calling me (ph.) Fourth of July, make

23 about seven thousand a year to help with

24 the pow-wow. (indiscernible) figure

25 percent to the tribe, following the

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1 regulation, it's not that much money to

2 operate on. So it's a question about

3 charitable bingo.

4 CHAIRWOMAN: We can get you during

5 the break and if it's not a discussion

6 we're able to finish today or if we want

7 more information we can contact you

8 directly and get more information about

9 what's happening out there.

10 So if everybody's up for talking

11 about self regulation, we can do that.

12 There is a draft -- I think there's two

13 versions of the same draft in here in two

14 different forms. And they're the last

15 section that has the red -- the red ink

16 before the last Federal Register notice

17 that's in here.

18 You'll see two copies. One copy has

19 the deletions in the margins and the

20 second copy has the deletions as strike21 throughs. Whichever is easier to read

22 for you, there are two versions of the

23 same draft discussion here.

24 So as part of the Notice of Inquiry

25 that we did last year, we asked whether

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1 the Commission should review the Class II

2 self regulation certification process.

3 The comments that we received, some of

4 the comments we received said it was an

5 administrative -- that the administrative

6 burden of becoming certified as a Class

7 II self-regulatory body outweighed the

8 benefits that were obtained, the decrease

9 of the fees.

10 The submission requirements we

11 duplicative and they were burdensome.

12 The (indiscernible) and annual reporting

13 requirement undermine the purpose of the

14 certification. There was a lot of

15 information that was being asked, not

16 just of the regulatory body but also the

17 operations.

18 We also though heard from some

19 tribes. We have two tribes -- there's

20 technically three tribes that are self21 regulatory -- self-regulation tribes, one

22 by statute, which is Choctaw. And the

23 other two are Menominee (ph.) and Grand

24 Lot (ph.) so we have three tribes that

25 have a certification for self reg.

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1 Now one of these tribes suggests

2 that we maintain high standards for when

3 we review the self regulation, and self

4 regulation even though the benefits don't

5 really outweigh the process -- or the

6 burden in the process, we don't

7 (indiscernible) self-regulated is a

8 hallmark of tribal sovereignty.

9 In the discussion (indiscernible) we

10 attempted to shift the focus from the

11 gaming operation to the Tribal Gaming

12 Regulatory Authority because that's who's

13 getting the certification. The tribe is

14 getting the certification stating their

15 regulatory body is in a position to

16 regulate itself by meeting certain

17 criteria that a regulatory body should

18 meet.

19 We attempt to reduce the submission

20 of duplicative information and make this

21 certification accessible to all tribes.

22 I want to clarify this is for Class II

23 only. It's not for Class III, that would

24 be something that our -- under the

25 statute that we could achieve, but it is

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1 only for Class II. And also Class II are

2 hybrid facilities.

3 Actually Grand Ron (ph.) is a hybrid

4 facility and they still self regulate for

5 Class II their other facilities that had

6 standalone Class II operations that are

7 seeking to become self regulated for that

8 standalone Class II facility.

9 UNIDENTIFIED MALE SPEAKER: That was

10 going to be my question. We are

11 primarily Class III, possibly

12 (indiscernible) Class II, we're already

13 primarily regulating ourselves as it is

14 in that we have to apply for a

15 certificate of self regulation for the

16 Class II machines.

17 CHAIRWOMAN: Yeah, if you wanted to

18 do Class II, you would still do Class II

19 certification, self-reg certification,

20 you would have to go through this process

21 for Class II, and just for your Class II

22 only.

23 I think that it's possible. I think

24 Grand Ron, they've got a hybrid facility

25 so I'm not sure what their exercise is to

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1 delineate between their Class II and

2 Class III revenues in games. It's

3 possible.

4 UNIDENTIFIED MALE SPEAKER: Okay.

5 PRESIDENT STEELE: (indiscernible)

6 what you referred to as a hybrid, that's

7 a Class II (indiscernible). Like I say,

8 we may -- we don't know if we're going to

9 go Class II in Martin (ph.), our dealings

10 with the governor, we'll be putting Class

11 III in there. But although we'll have

12 two sites it'll just be one operation.

13 The general manager will operate our main

14 site which is very, very, very small in

15 your eyes. But we may have a smaller

16 one, the same umbrella, the same

17 management, the same --

18 CHAIRWOMAN: I think that's

19 something that we've considered in the

20 draft, how we're looking more I think at

21 the Class II portion rather than the

22 number of facilities. Just the Class II,

23 regardless of the --

24 PRESIDENT STEELE: We may get Class

25 III machines from the governor. He's a

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1 new governor and we're expecting a

2 different relationship with the state,

3 and so it may be Class III also.

4 CHAIRWOMAN: Again, certification

5 won't cover Class III but it would cover

6 Class II.

7 So in going through the draft, the

8 submission requirements under 518.3,

9 we're requesting history of the issuing

10 operations and it addresses that. The

11 TGRA's organizational chart, employment

12 criteria for TGRA, these are things that

13 you need to submit to us, not that we're

14 telling you what they should be, but you

15 need to submit them to us. TGRA funding

16 description, how is the TGRA funded; list

17 the current TGRA regulators; description

18 of the gaming operation accounting

19 system; list of the internal controls;

20 description of the record-keeping system

21 for investigations, (indiscernible)

22 actions, and prosecution. Again, just a

23 description of those systems; a copy of

24 the facility license the tribe has issued

25 to the facility; any additional tribal

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1 gaming regulations outside of the

2 internal controls.

3 There's criteria that must be met.

4 The tribe -- and this is straight from

5 the Act if I'm not mistaken -- the tribe

6 maintains the effective and honest

7 accounting of revenues; has a reputation

8 for safe, fair, and honest operations;

9 fiscally and economically sound basis;

10 and operation generally free of criminal

11 and dishonest activity.

12 So we will want to look at the

13 funding source of the gaming regulatory

14 body over time, so that we can see that

15 it is maintained and can be kept

16 substantially, and looking at sort of the

17 history of the operation and the

18 regulatory body and how it's been

19 conducting itself. And that Class II has

20 been conducted in compliance with federal

21 or tribal laws and regulations.

22 In terms of the adequate systems,

23 we're talking about -- we're talking

24 about accounting of revenues;

25 investigation; licensing and monitoring

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1 of gaming employees; investigation

2 enforcement and prosecution of

3 violations.

4 And the tribe -- further in that

5 section -- they illustrate that they've

6 met the criteria by addressing factors

7 like having minimal internal controls as

8 stringent and as you see that they're

9 adequate systems for accounting of gaming

10 revenues; adequate dispute resolution and

11 process for gaming operation employees

12 and customers; monitors in compliance

13 with (indiscernible); and regulations

14 including (indiscernible) the gaming

15 regulatory body has done this; monitor's

16 effectiveness of the revenue accounting

17 system.

18 It's not just having the system, but

19 how the body, the regulatory body is

20 monitoring those systems audits Class II

21 gaming activities the gaming regulatory

22 body does and that the gaming regulatory

23 body reviews accounting information from

24 the operation.

25 So again, the emphasis here for this

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1 section is on the gaming regulatory body,

2 the TGRA.

3 Further, that the tribal gaming

4 regulatory body maintains access to all

5 records to gaming operation in Class II

6 gaming activity; adequate investigating

7 licensing and monitoring of gaming

8 employees; and establishes standards for

9 vendors. Something we're looking for

10 from the gaming regulatory body itself.

11 That the gaming regulatory body

12 establishes and proposes Class II game

13 rules; maintains systems for

14 investigations; takes appropriate

15 enforcement action and takes testimony

16 and conducts hearings.

17 Again, as I mentioned, we want to

18 make sure that the tribe adequately,

19 permanently funds the tribal regulatory

20 body. It's not something that can come

21 and go, that it must be maintained

22 somehow financially.

23 Again, going back to what the tribe

24 must demonstrate, not specifically the

25 gaming regulatory body, that the

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1 operation is financially stable and we

2 certainly want to hear your comments on

3 what does that mean, what does

4 financially stable mean; has adopted a

5 system for adequate prosecution of gaming

6 violations and that may be through their

7 gaming ordinance or to their regulatory

8 body; demonstrates that operations

9 conducted in a manner that protects the

10 environment, public, healthy, and safety.

11 Again, that may be something that's

12 evident in your license -- in your

13 facility licensing.

14 So that's the criteria, submission

15 requirements, and how a tribe might be

16 able to achieve -- illustrate that they

17 can comply.

18 The next section talks about how we

19 would review the petition. The NIGC has

20 an office of self regulation and it would

21 make initial determination in 120 days.

22 The office of self regulation would be

23 material in gathering information from

24 the tribe, and right now we have one

25 commissioner that is assigned to the

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1 office of self regulation, and right now

2 that is our Vice-Chairwoman Steffani

3 Cochran.

4 Office of self regulation would

5 report its findings and the full

6 Commission actually is the body that

7 would make the determination on whether

8 it would be issued for self regulation or

9 notify the tribe that it doesn't meet

10 self regulation.

11 If the tribe doesn't meet the

12 requirements or the criteria it may

13 respond to the report and include

14 additional information to try to meet

15 criteria. It can request a hearing. The

16 office of self regulation would issue a

17 decision on that petition and in a

18 decision to deny its appeal to the full

19 Commission.

20 So that's the process from NIGC to

21 decide, once we start getting information

22 for a petition to become self regulated

23 or get a self-regulation certificate.

24 So not just what is required to be

25 submitted and how a tribe might meet that

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1 criteria and what the functions of NIGC

2 would be once we receive the information,

3 there's also annual reporting

4 requirements that need to be met every

5 year by a self-regulated tribe.

6 Again, we have three tribes, two of

7 which are reporting to us annually and

8 what we would look for in this draft is

9 an independent auditor, which everyone

10 does already. And complete resume for

11 all PMOs, primary management officials

12 and key employees hired and licensed by

13 the tribe after receiving certificate of

14 self regulation.

15 That seems sort of cumbersome, but

16 it's straight out of the Act. Right now

17 the current regulation does not specify

18 PMOs or key employees. It only says all

19 employees. So the tribes, the two tribes

20 that are doing their annual report have

21 quite a bit to do on this section, which

22 they report every year. And so we

23 interpret -- that could be overly

24 burdensome when you're getting asked the

25 resume of your maintenance worker or your

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1 line cook. That is an employee of the

2 casino but it's not necessarily maybe who

3 we're looking for.

4 So we've modified this to be all

5 PMOs and key employees, information that

6 we should've had anyway. So that is a

7 change from the current regulations.

8 And the tribe has continuing duty to

9 report to the Commission changes in its

10 circumstances that are material to the

11 approval of the self-regulation

12 certificate. So anything that has

13 changed, maybe their organizational

14 structure, the funding sources, or

15 systems controls have changed, been

16 updated and that the tribe has to do to

17 inform the Commission that something in

18 the criteria has changed (indiscernible).

19 So also from the Act, it

20 specifically says that any tribe that

21 obtains a self-regulation certificate,

22 this is automatically followed by the

23 NIGC's limited powers for that self24 regulated tribe.

25 So what would be limited for the

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1 NIGC are the following: monitoring Class

2 II gaming, that would then be the

3 responsibility of the tribe who is self

4 regulated; conduct examination where

5 solely Class II activities are conducted,

6 so that would be taken on by the tribal

7 gaming regulatory body that -- the tribe

8 that is self regulated; (indiscernible)

9 background investigations, we would not

10 do that, the tribe would do that; access

11 and inspection of records in respect to

12 Class II gross gaming revenues. Again

13 this is straight from the Act.

14 The current regulation actually

15 doesn't state this. The current

16 regulation says the NIGC will not limit

17 this regulation of these things. So we

18 are abiding by the Act here because our

19 belief is that the purpose of self

20 regulation is for the tribe to step in

21 where the NIGC wouldn't and act per the

22 language of the Act clarifies this. So

23 those would be the powers of the NIGC

24 that would be limited and transferred

25 over to the tribe.

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1 More on this section, Commission

2 retains all the powers over Class II

3 gaming activities of the tribe and then

4 Commission retains the power to

5 investigate and bring for actions for

6 violations to IGRA and NIGC regulations

7 or the tribal gaming ordinance. Those

8 would be powers that the NIGC would

9 retain.

10 We have a draft out currently; again

11 you have two versions depending on which

12 way you prefer to view this. And even

13 though the comment period has closed, we

14 will continue to hear from tribes and how

15 -- about questions on this and comments,

16 any suggestions, how we can change or

17 improve the draft that we put forward.

18 I'm coming right to you, President

19 Steele.

20 PRESIDENT STEELE: Yes, I'd

21 mentioned that we were possibly moving

22 back to Class II, and our Class II gaming

23 would be very, very small. And we would

24 probably use the same Commission

25 (indiscernible) this regulatory body And

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1 seeing as our little bitty Class III, to

2 incorporate Class II in there it's going

3 to have to do a whole new separate --

4 have two gaming commissions and

5 regulating self -- I mean the self6 regulating of Class II in addition to

7 Class III. That would be very, not only

8 burdensome, but I think it would be more

9 cost effective if we could do it together

10 in one body.

11 CHAIRWOMAN: That's certainly the

12 prerogative of the tribe to determine how

13 it wants to structure its gaming

14 ordinances, its gaming laws, and how they

15 want to structure their Commission, as

16 long as the requirement under IGRA are

17 met. Are there tribes that have only one

18 Commission? I've not heard of that so

19 that would be a hornet's nest to me --

20 personally -- waiting to happen.

21 But there's -- that's certainly the

22 prerogative of the tribe to decide how

23 they want to structure their Commission,

24 as long as your ordinance specifies,

25 according to -- you know, is compliant

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1 with the Act and our regulations,

2 (indiscernible) gaming ordinance so that

3 you can structure your Commission how you

4 see best for your tribe.

5 The last thing that we can talk

6 about before we go to lunch today is sole

7 proprietary interests. There's

8 (indiscernible) to actions.

9 UNIDENTIFIED FEMALE SPEAKER 1: These

10 are all through legal opinions issued by

11 the general counsel.

12 CHAIRWOMAN: Okay. So the Notice of

13 Inquiry asked whether the Commission

14 should consider a regulation that defines

15 sole proprietary interest and provide a

16 process by which the tribe may request

17 review of a sole proprietary interest

18 matter.

19 We received some comments that --

20 both sides of the fence here -- that the

21 Commission should promulgate the

22 regulations that would provide review

23 only at the tribe's request. The

24 percentages contained in IGRA define what

25 the percentages -- what percentage might

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1 violate the Act's sole proprietary

2 interest, it was between thirty and forty

3 percent in some instances.

4 But we also received some other

5 comments that if sole proprietary

6 interest is defined than so should

7 primary beneficiary because

8 (indiscernible) the primary beneficiary

9 of its game revenues.

10 A clear definition of sole

11 proprietary interest might provide

12 stability and access of funding so what

13 happens now is we (indiscernible)

14 contracts or any collateral agreements

15 that go with those. And thus we have a

16 number of legal opinions, not necessarily

17 defining agency action about the tribe's

18 interest in contracts. It's not clear to

19 tribes and some tribes have said, hey, if

20 you define this, it'll be more certain.

21 It'll be more certain for the tribe,

22 it'll be more certain for investors.

23 But then on the other hand, we heard

24 some comments that said it might limit

25 access to capital, it might chill

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1 financing. Determination of sole

2 proprietary interest should belong to the

3 courts.

4 So far what's happened is we have

5 probably ninety-one opinions, it was a

6 number of opinions. Many of those have

7 ramped up over the past two years because

8 of some court rulings, and very

9 individually based on a tribe, its

10 circumstances, and what the agreements

11 say, plus other factors that are not

12 necessarily consistent from one tribe to

13 another.

14 So we're at a point where we're just

15 talking about this. We don't have a

16 draft ready. I know that it continues to

17 be an issue. We've had some tribes come

18 to us and say hey, we think there might

19 be a sole proprietary interest violation

20 here and we (indiscernible) the matter

21 and (indiscernible) NOVs recently that

22 indicate that the tribe's -- there's been

23 some violation of what we interpret the

24 sole proprietary interest to be for that

25 tribe.

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1 We've had other tribes who want us

2 to stay out of it. And we would like to

3 hear from tribes on whether this would be

4 something that is even manageable because

5 it is so specific to any particular set

6 of circumstances, details that may not be

7 consistent. What we've heard is it might

8 be too much to try to think of everything

9 that could affect a tribe's position in

10 an agreement that would be really

11 difficult to name everything, especially

12 as some of these management

13 (indiscernible) and financing deals

14 become more and more complex.

15 And so if we couldn't name

16 everything specifically, could we

17 possibly name things narrowly, or

18 generally, on what we look for so that

19 there's some guidelines? Because we do

20 have tribes and investors and others

21 involved with tribes looking to us for

22 some guidance.

23 And it's -- right now it's case by

24 case where we have a tribe come to us

25 saying can you look at this for us and

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1 make sure that we're not violating sole

2 proprietary interest. Or they're coming

3 in after the fact, which is the worst of

4 the two scenarios, that if there had been

5 some general guideposts that maybe that

6 might have been averted.

7 So we would like to hear tribes'

8 take on this so there is a clear

9 difference between some tribes who want

10 some guidance, and some tribes who don't

11 want guidance, and want to make

12 statements of individual, case-by-case

13 review.

14 MS. THOMAS: Thelma Thomas, Santee

15 Sioux Nation, could you please give us a

16 couple of examples of what you were just

17 talking about in terms of management

18 contracts but also financing contracts?

19 UNIDENTIFIED FEMALE SPEAKER 1:

20 Sure. If you go to our website and you

21 can look -- there's a tab called

22 enforcement actions. And so there are

23 two examples on our website that talk

24 about sole proprietary interest.

25 Congress actually in the statute

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1 says that tribes need to have sole

2 proprietary interest in their gaming

3 activity and responsibility over that

4 gaming activity. So the question is what

5 does that mean and should the NIGC

6 interpret that in a regulation, and

7 recently an NOV was issued against a

8 tribe for a sole proprietary interest

9 violation because an entity, a city

10 actually had pull over certain aspects of

11 the tribe's regulatory body, over changes

12 to gaming ordinance and tribe -- the city

13 got a certain percentage, a large

14 percentage of the revenue for a

15 substantial term.

16 And so those are the elements that

17 we have looked at to try to determine

18 whether someone other than the tribe had

19 (indiscernible) proprietary interest in

20 the tribe's gaming activity

21 MS. THOMAS: That helps a little bit

22 but what about the new facility that's

23 going to be constructed when you have a

24 financier and in those agreements terms

25 sole proprietary interest? Have you run

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1 across problems in that area at all and

2 maybe there was a (indiscernible)?

3 UNIDENTIFIED FEMALE SPEAKER 1: We

4 have a bulletin, I think it's 93-3 that

5 talks about contracts and trying to

6 figure out whether a contract is a

7 management contract or whether it has

8 sole proprietary interest.

9 And one of the things that the rules

10 have recommended that you send the

11 contract to the Office of General Counsel

12 at the NIGC and let them take a look at

13 it, to give you our thoughts, a legal

14 opinion about whether there are issues.

15 Under the statute, Congress set

16 forth the amount of revenue that it

17 thought appropriate for management

18 contractor but it didn't say that for a

19 developer. And so the elements that I

20 talked about previously in my prior

21 example are things that we look at when

22 we look at those types of financing

23 developmental contracts.

24 MR. THOMAS: Thank you.

25 CHAIRWOMAN: So we looked before and

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1 after but it's all contingent on the

2 tribe sending us the material. The after

3 usually is a result of not seeing, we

4 didn't see it beforehand. We didn't see

5 the contract or the terms beforehand or

6 there were some amendments that we didn't

7 know about. But the before is before you

8 enter into the agreements.

9 We encourage tribes to do that

10 anyway, so that we don't get too "oops"

11 later, or that your tribe doesn't. And

12 so it can be a challenge to define

13 because some of these agreements have

14 become very complex and creative to say

15 the least.

16 So we would be happy to hear any

17 more comments on their experiences with

18 us, with their contracts, what your

19 position in your tribe would be on

20 whether we should move forward with the

21 regulation that would generally or more

22 specifically define what this means.

23 UNIDENTIFIED MALE SPEAKER 3: We

24 were one of the first tribes that went

25 through a bond renegotiation due to the

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1 debt of building a new property. And

2 that was one of the things that the tribe

3 did was submit the bond agreements to the

4 NIGC for review, make sure that they

5 didn't qualify as management agreement.

6 We think that ability to be able to do

7 that is an excellent resource. That was

8 one reason we submitted it.

9 CHAIRWOMAN: In terms of your

10 financing, I want to make clear and I say

11 this any time I have the opportunity to

12 speak to tribes, whether it's in a

13 consultation or if it's a panel or a

14 speech. Most times it's the bank that

15 wants it submitted so that there is some

16 opinion from the NIGC's General Counsel's

17 office that clarifies whether or not that

18 financial instrument has management

19 provisions in it. That's what a recent

20 court case has been all about and it's

21 still in the appeal process.

22 So we are encouraging tribes that if

23 their bank is requiring -- most of the

24 banks now want this, or their lending

25 institutions, or whatever bank it is that

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1 the tribe is seeking to finance their

2 endeavors. Most of them know this now

3 and so they are submitting their

4 financial agreements to us in advance to

5 give a legal opinion from our general

6 counsel's office with regard to whether

7 there are management provisions in that

8 instrument or not, to avoid future

9 problems like we're seeing in the courts

10 now.

11 So again I want to emphasize that's

12 another requirement for us, regulation

13 for us. It is a desire generally from a

14 bank to make sure that their deal goes

15 through. It's clean of management

16 provisions and they don't see something -

17 - they don't experience something that

18 has already been experienced already.

19 So we are cooperating and

20 cooperating as quickly as we can when you

21 submit your financial documents to us.

22 We just ask that you do so in as much

23 time in advance as you can. We ask for

24 four to six weeks. We know that terms

25 can change very quickly, percentages, and

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1 because we have so many of these coming

2 in and there's only so many of us, we ask

3 for submissions even if you haven't come

4 to an agreement.

5 We've had tribes who are submitting

6 portions of their documents to us as they

7 make agreements with the bank and

8 (indiscernible) that go so that when the

9 whole lot then comes to us we can review

10 a little quicker, providing that the

11 terms weren't changed the last time that

12 we saw it.

13 But please do submit those to us in

14 advance, four to six weeks if you can,

15 because the turnaround time to go through

16 the mounds, especially the bond, it takes

17 quite a bit of time to go through --

18 especially when I said, instruments have

19 become more and more complex.

20 So always happy to help in those

21 instances so we (indiscernible) your

22 problem. I'm glad to hear that it worked

23 out for you. We encourage everybody else

24 to utilize our services.

25 We've covered the whole day today

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1 and it's only lunch, so I did want to let

2 President Steele, one more time.

3 PRESIDENT STEELE: Yeah, I

4 (indiscernible), the last time you were

5 here I opposed regulating Class II, but

6 some areas want regulations. Your

7 innovative approach to granting of self8 regulatory authority I think is really

9 good. I can see how tribes are wanting

10 to self regulate.

11 And so folks seem to get a lot of

12 confidence you and being innovative and

13 in doing this because the size of our

14 operations, the amount of technology and

15 regulations that each tribe has, I think

16 we should take that into consideration,

17 thank you.

18 CHAIRWOMAN: Thank you President

19 Steele for those really kind words. My

20 people would say my hand's up to you,

21 thank you.

22 I fortunately, and many of us have a

23 background in working for either our

24 tribes or tribal operations, and come

25 from our reservations. One size does not

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1 always fit all and for self regulation

2 it's one of the first things we heard,

3 even prior to coming into office. It was

4 the topic of conversation for a number of

5 years prior to my arrival and the other

6 commissioners' arrival. That just out of

7 the exercise of sovereignty many tribes

8 wanted to become self regulated, just

9 because it was the muscle they had to

10 demonstrate their sovereignty.

11 And we just are looking at this

12 process for self regulation to make it

13 clearer and clearer, more transparent,

14 and not quite so burdensome,

15 unnecessarily burdensome. So thank you.

16 UNIDENTIFIED MALE SPEAKER 4: I just

17 had a quick question or comment. I look

18 at the NIGC as an excellent resource and

19 John will tell you I'm on the phone with

20 his staff, him and his staff on a fairly

21 regular basis.

22 We just had there some of the staff

23 over to our tribe to do some training for

24 new tribe council members. And for us

25 it's a great opportunity to get everybody

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1 in the same room and hold discussions and

2 put it on the table.

3 One of the comments that was made

4 during this training was that the NIGC is

5 possibly looking at pulling back from the

6 Class III mix completely, and taking a

7 step back from dealing with Class III.

8 And we are a Class III operation.

9 One of the comments, and I know

10 we're not really discussing Class III

11 here but the Class III mix; but one of

12 the questions from one of our tribal

13 council members during this meeting is if

14 the NIGC is pulling back from the Class

15 III mix, does that means that we will

16 also be seeing a reduction in our fees in

17 regard to Class III?

18 I feel obligated to pass that

19 question on from our tribal council

20 members but also want to state that we do

21 see NIGC as an excellent resource. We

22 just went through our tribal mix again

23 and took a look at all the proposed

24 changes from 2010 that were posted on the

25 website. And many of the changes there

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1 are things that we're already doing, we

2 did incorporate many of those into our

3 (indiscernible).

4 And having that ability to see

5 something that's updated on a fairly

6 regular basis as something that will

7 benefit us, is an excellent resource for

8 us. So I just wanted to make sure I put

9 that out there; that is something that we

10 do still use, NIGC as a resource.

11 (indiscernible)

12 I was told a long time ago was don't

13 be afraid to use your resources. If you

14 don't know the answer somebody else may.

15 Thank you.

16 CHAIRWOMAN: Thank you very much. I

17 appreciate that attitude because in the

18 long run, there's three regulatory bodies

19 that are overseeing (indiscernible) and

20 the tribes are the ones who are on the

21 ground twenty-four hours a day, seven

22 days a week. But that doesn't mean that

23 there aren't other resources out there,

24 NIGC being one of them, that we should be

25 able to utilize in a way that's more

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1 partnership providing opportunities to

2 train, give technical assistance, provide

3 guidance, and other ways. And I'm glad

4 to hear that you see us as a resource.

5 We have not yet determined what

6 we're going to do with Class III because

7 tribes are on different -- how Class III

8 works for tribes in terms of a minimum

9 internal control standards is different

10 throughout the country, so that Colorado

11 River Indian Tribe decision basically

12 said the NIGC cannot promulgate or

13 enforce minimal internal control

14 standards.

15 So it presents us with a bit of a

16 problem. There are regulations on the

17 book currently, published in 2004, a few

18 years ago. They're on the books. The

19 court says you can't promulgate them and

20 you can't enforce them, however; there

21 are tribes who have the NIGC's Class III

22 minimal control and control standards in

23 their compacts. They cite NIGC, and

24 they're controls that are in place.

25 There are tribes that have in their

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1 game ordinance, although it's not in

2 their compact, have given over authority

3 of Class III enforcement to the NIGC and

4 abide by the NIGC's Class III minimal

5 control standards that are currently on

6 the books.

7 On the other hand, there's a number

8 of tribes that have negotiated Class III

9 minimal control standards through the

10 state. They already have it all sorted

11 out and they don't need NIGC minimal

12 control standards. They actually have

13 more stringent, in some cases they have

14 more stringent controls, Class III

15 controls in their compacts, or they have

16 them in their ordinances.

17 So tribes are on different sides of

18 this and we have to weigh out how we will

19 proceed because again what we want is to

20 make sure that tribes have controls in

21 place that safeguards their operations.

22 And we don't want to upset apple carts

23 because it seems that most of those

24 mechanisms are probably working for the

25 tribes, whatever that framework is for

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1 them.

2 Now in terms of fees, we do do some

3 regulation of Class III in some

4 circumstances. I don't know if we could

5 address that question now, it depends on

6 what route we take to move forward in the

7 future, again the number of different

8 positions that exist in Indian country.

9 But we do know for sure that we

10 don't want to upset structures that are

11 already working for tribes, whatever

12 those might be, and coming up with some

13 creative or innovative solution so that

14 tribes can continue to have

15 (indiscernible) in place that safeguard

16 their operations.

17 So all questions that are yet to be

18 answered, and we are going to be very

19 deliberative and thoughtful about this as

20 we consider what our options are moving

21 forward.

22 Thank you. I think that's it for

23 the end. I'm not sure -- President

24 Steele if -- do you want to add anything

25 before we break for lunch, and if anyone

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1 is not going to come back after lunch,

2 we'll be here after lunch in case anyone

3 new shows up. Be we understand if

4 everyone -- President Steele, if you have

5 any closing remarks that you wanted to

6 make, on behalf of your nation.

7 PRESIDENT STEELE: I'm just

8 satisfied, especially with the self

9 regulatory portion of it. I just wanted

10 to (indiscernible) that were different

11 and to paint the whole United States with

12 an Indian brush and say this applies to

13 all of you.

14 I see you got that in hand. You're

15 coming across different than the last

16 meeting of the Commission and telling us

17 what it was going to do. I thank you.

18 CHAIRWOMAN: Well thank you and I

19 want to thank everybody for attending

20 today and in case you don't come back

21 after lunch, we'll be here in case

22 somebody new shows up and more than happy

23 to go through this all over again if

24 anyone else new comes in or if you have

25 any questions that you weren't able to

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1 ask, or were shy. We'll come back after

2 lunch. We'll be here at 1:30.

3 Otherwise, if you all must travel a

4 distance, I wish you safe travels on your

5 journey home. So thank you for

6 attending.

7 (Break for lunch at 1:32 p.m.)

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1

2 C E R T I F I C A T I O N

3

4 I, Tamara Bentzur, hereby certify that

5 the foregoing is a true and correct

6 transcription, to the best of my ability, of

7 the sound recorded proceedings submitted for

8 transcription.

9

10 I further certify that I am not employed

11 by nor related to any party to this action.

12

13 In witness whereof, I hereby sign this

14 date:

15 December 8, 2011.

16

17 _________________________________

18 Tamara Bentzur

19

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1 5:1 27:25 53:9

57:19 59:3

120 46:21

12th 30:10,11 33:7,8

14 1:13

1:30 72:2

1:32 72:7

2

2 5:4 7:20 33:24

34:11,13,17 35:7,13

35:21 36:3

2004 68:17

2010 66:24

2011 1:13 73:15

25 4:16

2706 4:16

3

3 36:7 60:23

4

4 19:16,24 65:16

5

518.3 42:8

519 12:12

524 12:13

537 20:12,14 30:13

30:20

539 12:13

556 20:11,19,25

21:18 25:10,21

558 20:12,19,25

22:11,21 25:11,22

571 20:12,13 28:15

573 8:10 12:9

577 12:14

580 13:13 14:17

581 13:14 14:22

582 13:15 15:9

583 13:17 15:21

584 16:7,18

585 13:24

6

6 4:16,17

7

7 4:16,17

8

8 73:15

9

93-3 59:4

a

abide 69:4

abiding 50:18

ability 61:6 67:4

73:6

able 5:5 7:17 27:22

37:6 46:16 61:6

67:25 71:25

access 21:25 45:4

50:10 54:12,25

accessible 39:21

accounting 42:18

43:7,24 44:9,16,23

accustomed 25:6

ace 8:15

achieve 39:25 46:16

act 6:11 7:15 29:3

43:5 48:16 49:19

50:13,18,21,22 53:1

act's 54:1

action 8:24 9:9,17

9:20 10:16,16,21,24

10:25 11:1,13 12:4

12:19 15:20 16:20

17:24 18:12 29:19

32:6,19 33:3,9,11

33:12 45:15 54:17

73:11

actions 8:21 11:21

13:9 16:4 42:22

51:5 53:8 57:22

activities 44:21 50:5

51:3

activity 43:11 45:6

58:3,4,20

add 70:24

addition 52:6

additional 22:19

42:25 47:14

address 31:14 70:5

addressed 28:5

addresses 42:10

addressing 44:6

adequate 43:22 44:9

44:10 45:6 46:5

adequately 45:18

administrative

17:16,17 38:5,5

adopted 46:4

advance 62:4,23

63:14

advise 27:12 28:19

28:21

affect 56:9

affiliated 3:17

afraid 67:13

afternoon 19:16

agencies 7:8 30:5

agency 4:21 5:14,14

6:2,3,24 10:16,16

12:4 14:15 15:20

16:4,20 17:23 18:13

25:16 54:17

agnes 36:13

ago 67:12 68:18

agreement 32:10

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agreements 32:8,21

54:14 55:10 58:24

60:8,13 61:3 62:4

63:7

ahead 4:1 19:23

24:1 27:20

alec 3:1

allow 27:21

allows 21:6

amending 21:3

amendment 14:19

amendments 13:17

15:10 60:6

amount 23:11 29:8

59:16 64:14

annual 38:12 48:3

48:20

annually 48:7

answer 67:14

answered 70:18

antoinette 2:19

anybody 6:16,19

anyway 49:6 60:10

appeal 8:5,8 13:25

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16:21 17:3,9,21,21

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appealing 18:12

appeals 12:13,14,14

12:18 13:15,18,20

14:24,25 15:9,22

16:7,21

appear 14:20

appellate 13:15

14:22

apple 69:22

application 13:14

14:18 21:8

applications 21:8

applies 71:12

apply 40:14

appreciate 67:17

approach 64:7

appropriate 45:14

59:17

approval 12:20

15:22 49:11

approvals 13:18

area 59:1

areas 64:6

arrival 65:5,6

asked 37:25 38:15

48:24 53:13

asking 24:12,20

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assessment 9:15

assessments 13:22

13:24 14:2,6 16:8

16:23

assigned 46:25

assist 14:12

assistance 11:8 68:2

assistant 2:12

association 2:17

attempt 39:19

attempted 39:10

attending 71:19

72:6

attention 31:12

attitude 67:17

attorney 7:24 18:6

19:3 34:8 35:10

attorney's 34:4

attorneys 7:23 8:2

13:1 18:2,3,25 34:3

36:16

auditor 48:9

audits 44:20

authority 4:18 7:14

29:3 30:1 39:12

64:8 69:2

authorized 28:21

automatically 49:22

availability 5:6

averted 57:6

avoid 62:8

aware 22:5 28:6

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back 18:7 45:23

51:22 66:5,7,14

71:1,20 72:1

background 19:21

20:9,14 21:22 24:5

26:14 30:13,23 31:3

36:18 50:9 64:23

bailiwick 6:1

bands 2:7

bank 31:1 61:14,23

61:25 62:14 63:7

banks 61:24

based 4:24 5:5

23:16 25:12 26:12

55:9

basically 25:15

68:11

basis 43:9 65:21

67:6

bay 2:7

bear 32:3

becoming 38:6

behalf 71:6

belief 50:19

believe 33:8

belong 55:2

beneficiary 54:7,8

benefit 67:7

benefits 38:8 39:4

bentzur 73:4,18

best 53:4 73:6

bickerstaff 2:4

big 33:25

bingo 33:25,25 34:4

34:21,23 35:3,11

36:10,13 37:3

bingos 34:2,7,20,23

34:24,25 36:5,12,12

36:15

bird 3:18

bit 36:20 48:21

58:21 63:17 68:15

bitty 52:1

black 10:9

bodies 12:1 30:7

67:18

body 9:3 38:7,16

39:15,17 43:14,18

44:15,19,19,22,23

45:1,4,10,11,20,25

46:8 47:6 50:7

51:25 52:10 58:11

bond 60:25 61:3

63:16

book 68:17

books 68:18 69:6

break 4:4,5 33:22

37:5 70:25 72:7

bring 5:3 9:6 25:2

51:5

broken 20:19

brought 31:11

brush 71:12

building 61:1

built 25:25 26:16

bulletin 59:4

burden 38:6 39:6

burdens 16:15

burdensome 38:11

48:24 52:8 65:14,15

businesses 4:23 5:13

5:16

buy 6:4,11

buzi 3:8

c

c 2:2 8:15 73:2,2

cage 2:4,9

call 8:15

called 57:21

caller 34:23 35:11

36:10

callers 34:4 35:4

calling 36:22

calls 4:6

capital 54:25

carries 6:21

carts 69:22

case 24:23 56:23,24

57:12,12 61:20 71:2

71:20,21

cases 26:4 69:13

cashier 2:4,9

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Veritext/NJ Reporting Company

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Veritext/NJ Reporting Company

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[enforcement - go] Page 5

Veritext/NJ Reporting Company

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[go - instrument] Page 6

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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[instruments - martin] Page 7

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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61:22 63:5 64:9,24

65:7 67:20 68:7,8

68:21,25 69:8,17,20

69:25 70:11,14

tried 19:5

true 17:7 73:5

truly 19:2

try 4:24 5:1 7:15

13:10 34:20 47:14

56:8 58:17

trying 10:12 16:5

34:22 35:10 59:5

turnaround 63:15

twenty 67:21

twice 36:14

two 1:9 3:8 6:6 8:17

17:19 31:16 33:3

37:12,13,18,22

38:19,23 41:12 48:6

48:19 51:11 52:4

55:7 57:4,23

type 6:4 19:6

types 59:22

u

u.s.c. 4:16

ultimate 26:25

umbrella 41:16

undergo 31:3

undermine 38:13

understand 10:8

34:21 71:3

understanding 17:1

unidentified 17:5

25:24 27:1,25 32:1

33:24 34:11,13,17

35:7,13,21 36:3,7

40:9 41:4 53:9

57:19 59:3 60:23

65:16

united 71:11

unnecessarily 65:15

update 22:2,8

updated 49:16 67:5

upset 69:22 70:10

use 6:10 51:24 67:10

67:13

usually 21:11 60:3

utilize 63:24 67:25

v

vendors 45:9

versions 37:13,22

51:11

vice 47:2

view 51:12

views 6:19

vince 2:6

violate 54:1

violating 57:1

violation 9:14,20

13:22 14:1 28:25

55:19,23 58:9

violations 44:3 46:6

51:6

void 14:4 16:10

voluntary 8:11

10:23

volunteers 35:15

w

waiting 52:20

waive 26:4

waiver 26:3 28:2

waivers 14:20

want 4:19 5:19 7:18

17:9,15 24:21 32:24

37:6 39:22 43:12

45:17 46:2 52:15,23

56:1 57:9,11,11

61:10,24 62:11 64:1

64:6 66:20 69:19,22

70:10,24 71:19

wanted 4:4 13:2

19:4 31:14 40:17

65:8 67:8 71:5,9

wanting 64:9

wants 52:13 61:15

way 7:2,19 23:23

51:12 67:25

ways 68:3

we've 6:16 7:5 12:10

14:9 18:23 19:4,5

20:19 26:16 27:16

30:8 32:17,19 33:24

34:18 41:19 49:4

55:17 56:1,7 63:5

63:25

website 57:20,23

66:25

week 67:22

weeks 62:24 63:14

weigh 8:2 69:18

weight 6:21

went 30:21 60:24

66:22

wheel 22:3

wheels 31:8

whereof 73:13

whichever 37:21

whipple 3:11,13

wilson 3:8

wish 72:4

witness 73:13

wolf 3:16

words 36:8 64:19

work 8:18 21:10,24

24:24,25

worked 22:6 63:22

worker 48:25

working 9:2 23:13

23:22 24:1,16 64:23

69:24 70:11

works 68:8

worst 57:3

wow 36:24

wrapped 6:18

writing 12:6 14:25

written 13:25 15:1

16:22,24 17:2,14

y

yankton 2:15,25

yeah 7:24 40:17

64:3

year 32:7,18 36:23

37:25 48:5,22

years 55:7 65:5

68:18

yellow 3:18

[tribe - yellow] Page 13

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