Mr. Kip A. Kubin 

Payne & Jones, Chartered 

Commerce Terrace 

College Boulevard at King 

11000 King 

P.O. Box 25625 

Overland Park, Kansas 66225 

Dear Mr. Kubin: 

By letter received by the National Indian Gaming Commission 

(NIGC) on October 23, 1995, you appealed, on behalf of the Miami 

~ribe of Oklahoma (Miami or Tribe or Appellant) and the Modoc 

Tribe of Oklahoma (Modoc or Tribe or Appellant), the decision of 

the Chairman disapproving the management contract between the 

Miami Tribe, Modoc ~ribe, and Butler National Service 

Corporation. Chairman Monteau issued a decision letter 

disapproving the management contract on September 6, 1995. 

Pursuant to 25 C.F.R. S 539.2, appeal shall be filed P~~r~f' with the commission within thirty (30) days after the Chairman 

serves his or her determination . . .." The chairman served his 

determination via facsimile on September 6, 1995. Service by 

facsimile is complete upon transmission. 25 C.F.R. 

S 519.3(a)(5). The parties then had until October 6, 1995, to 

file an appeal with the omm mission. NIGC regulations state that 

"failure to file an appeal within the time provided . . . shall 

result in a waiver of the opportunity for an appeal." 25 C.F.R. 

S 539.2. Since this appeal was not filed with the Commission 

until October 23, 1995, the Miami and Modoc Tribes have waived 

their opportunity for appeal and the Chairman's decision of 

September 6, 1995, constitutes final agency action. The Chairman 

does not have the discretion to extend the time for appeal, as 

requested by your secretary, Ms Deborah L. Turner. Therefore, 

your appeal is hereby dismissed. 

Furthermore, even if the appeal were to be heard by the 

Commission on the merits, you have not sufficiently explained the 

reasons you believe the Chairman's determination to be erroneous. 

The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. S 2711, 

authorizes the Chairman to approve management contracts subject 

to the standards established in the NIGCPs implementing 

regulations and other applicable federal law. Chairman Monteau 

determined that the contract at issue failed to meet these 

requirements and three grounds were identified specifically in 

the Chairman's disapproval letter. You list four grounds for I" 

_- _ - -. 1441 L STREET. N.W. 9TH FLOOR ~ -- - __ -___ . . -._ _ ~ -- - . 

WASHINGTON.- D.C. 20005 .--- TEL.: 202-632;7,%3 2!J21632327066 .~ - 
appeal, none of which are supported by any documentation nor do 

they relate specifically to the grounds for disapproval listed in 

the Chairman's letter. -,wt 

In response to your grounds for appeal, the disapproval is 

in full accordance with the law and the contract was reviewed on 

the merits. Second, the findings of the Chairman are supported 

by the fact that required submissions were not forwarded to the 

NIGC and the proposed gaming site was not authorized by the 

compact. Third, the actions of the Chairman and reasons for his 

decision are fully described in the disapproval letter of 

September 6, 1995, and do not constitute abuse of discretion. 

Finally, deficiency letters are not required to be sent to tribes 

before the Chairman takes action on a contract. 

We concur with the Chairman's finding that the contract was 

not submitted in accordance with 25 C.F.R. S 533.3. A three year 

business plan which sets forth the parties' goals, objectives, 

budgets, financial plans, and related matters was not submitted, 

as required by 25 C.F.R. S 533.3(e). Your appeal neither 

specifies the reasons you believe this determination to be 

erroneous, nor does it include any supporting documentation to 

the contrary as required by 25 C.F.R. S 539.2. 

Second, we concur with the chairman's finding that the 

proposed site for the gaming facility is not an authorized site 

for class I11 gaming under the approved compact between the Miami 

Tribe and the State of Oklahoma. Your appeal neither specifies "'6#Nrr the reasons you believe this determination to be erroneous, nor 

does it include any supporting documentation to the contrary as 

required by 25 C.F.R. S 539.2. 

Third, the IGRA requires that the Chairman either approve or 

disapprove a management contract within 180 days from the date 

the contract is submitted, unless the Chairman notifies the Tribe 

and the management contractor in writing of the need for an 

extension of up to 90 days. Since the maximum statutory time 

period within which the Chairman is directed to take action on a 

management contract had expired and the Chairman was not in a 

position to approve the contract for the reasons stated above, we 

concur with the Chairman's decision to disapprove the contract. 

See 25 U.S.C. S 2711 and 25 C.F.R. S 533.4. 
Therefore, as previously stated, Appellants' appeal is 

dismissed for failure to file within the required thirty day 

period. Furthermore, Appellants failed to establish that the 

Chairman's decision was erroneous, arbitrary and capricious, an 

abuse of discretion, or contrary ta applicable law or procedures. 

Sincerely, 

Harold A\! Monteau 

Chairman 

Associate Commissioner 

Tom F Zr 

-& 4- 

Jana McKeag 

Associate commissioner