Comments of the Eastern Shoshone Tribe Gaming Commission 

In Response to the National Indian Gaming Commission’s 

Notice of Inquiry and Request for Information 

February 10, 2011 

Madam Chair and Members of the Commission, the Eastern Shoshone Tribe Gaming 

Commission (Gaming Commission) is pleased to provide the following comments on the 

National Indian Gaming Commission’s (NIGC) Notice of Inquiry relating to NIGC’s regulations 

promulgated to implement the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq. , 

and related procedures and actions. This consultation process makes for better decision making 

and welcome the opportunity to participate. 

The Gaming Commission, located on the Wind River Reservation in Wyoming, is a three 

member commission which regulates a Class III gaming facilities. The Shoshone Rose Casino 

has been operating since 2007. 

General Comments 

Let us begin by stating that no one has a greater interest in protecting the integrity of 

Indian gaming than tribes. We agreed to permit the federal government through the NIGC to 

play a limited role in overseeing Indian gaming, but tribes still remain the primary protectors of 

their economic gaming resources and against crime. As a practical matter Indian tribes are 

generally the primary source of knowledge and information concerning gaming and how 

proposed federal actions may affect their rights. Each day we take licensing and regulatory 

actions to ensure that our gaming operations are safe, in compliance with the applicable laws and 

regulations and meet the necessary gaming industry standards. We possess the expertise to 

assure the day to day operations of the gaming facilities on the Reservation are in compliance 

with the established industry standards.

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It must be remembered that Indian gaming is tribal governmental gaming. Its foundation 

rests upon the inherent and treaty powers of Indian tribes to make and enforce their own laws in 

their own forums and to govern its own territory. Such gaming is used as a tool to build 

stronger, more effective tribal government and to bring economic opportunities to our tribal 

community. 

With this in mind, our position as it relates to federal Indian gaming regulations is that 

the NIGC’s role and its regulation should be a limited one. Simply stated, the federal regulations 

should be restricted so as to not interfere in tribal gaming affairs. Such limitations on federal 

oversight are consistent with the principles of tribal self-determination and self-governance. 

Tribes have made great advances in the area of gaming regulation to provide full oversight of 

tribal gaming assets and the general integrity of gaming. Accordingly, Tribal gaming 

commissions as the appointed regulators for each tribe are in the best position to oversee gaming 

on their respective reservations. 

We commend the NIGC in taking a fresh look at its existing gaming regulations and role, 

and seek the involvement and opinions of Indian tribes. And, in doing so, we recommend the 

NIGC adopt a more “hands off” policy as it relates to internal tribal gaming regulations so as not 

to interfere with tribal law and reduce tribal sovereignty, and embrace a more supportive and 

Commission-to-Commission relationship with tribes. Indeed, Section 3 of Executive Order 

13175, Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 

(Nov. 6, 2000), provides that federal agencies defer to Indian tribes to establish their own 

standards where possible (Section 3(c)(2)), and where an agency is determining whether to 

establish federal standards, the consultation must include discussion of the need for federal 

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standards, and alternatives that would limit their scope and preserve tribal autonomy (Section 

3(c)(3)). 

We have reviewed the Notice of Inquiry and given its broad nature we have determined 

to provide comments on a selection of regulations. We anticipate that the NIGC will provide 

further opportunity for tribal comments once it has reviewed the initial round of tribal comments 

on all the NIGC’s regulations and prioritized the regulations to be addressed and revised. 

1. Revisions to Regulations – Role of Tribal Advisory Committee 

The NIGC seeks comments on whether a Tribal Advisory Committee (TAC) should be 

used to fulfill consultation by assisting in revisions and amendments to regulations. While such 

a TAC may streamline the amendment process, it fails to fulfill the procedural requirements of 

consultation which clearly mandate an opportunity for tribal input when policy and regulations 

are being developed. Sections 3-5 of EO 13175. A TAC cannot and should not be used to avoid 

significant and timely tribal officials input on pre-decisional NIGC regulations and policy. 

Section 5(a) of EO 13175. 

The consultation process strengthens the government-to-government relationship by 

enabling the federal and tribal representatives to discuss how proposed agency action may affect 

tribal rights and interests before a decision is made. As the President’s Memorandum states, 

“[h]istory has shown that failure to include the voices of tribal officials in formulating policy 

affecting their communities has all too often led to undesirable and, at times, devastating and 

tragic results.” 74 Fed. Reg. at 57,881. 

The duty of NIGC to consult with Indian tribes is based on the federal trust responsibility, 

what was established by Chief Justice Marshall’s historic opinions in the Cherokee Tribe cases 

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over 175 years ago. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet)1 (1831); Worcester v. 

Georgia, 31 U.S. (6 Pet) 515 (1832). The duty of consultation arises in part from the high degree 

of procedural fairness mandated by the trust responsibility, and thus the federal government 

cannot fulfill its trust responsibility to protect Indian rights of self-government and property 

unless it consults with Indian tribes which hold these rights. Consultation is essential if the 

federal government is to consider impacts to tribal rights, economic gaming resources and 

interests from proposed federal actions. Moreover, if the NIGC does not know the extent to 

which the proposed actions may impact Indian tribes or rights, it cannot avoid or seek to mitigate 

such impacts. 

In sum, the purpose of EO 13175 is to protect the rights recognized in the Fundamental 

Principles through the consultation process. In so doing, EO 13175 implements the established 

principles of the federal trust responsibility. Moreover, full NIGC consultation, rather than 

utilizing a TAC, accords Indian tribes the respect which they are due as separate sovereigns, and 

reflects the sovereign commitment of the United States to honor their rights. 

2. Class II MICS, Class II Technical Standards, Class III MICS and the 

Colorado River Indian Tribes Decision 

The NIGC seeks comments on whether changes to the Class II MICS, Class II Technical 

Standards and Class III MICS are necessary in light of the Colorado River Indian Tribes, 466 

F.3d 134 (D.C. Cir. 2006) decision. In Colorado River Tribes v. NIGC, the Court of Appeals for 

the District of Columbia held that the Chairman and NIGC have no authority to adopt regulations 

governing the day to day operations of a Class III gaming facility operating pursuant to a tribestate compact that is in effect since Congress intended that such matters were to be determined 

via the tribal-state compact. 466 F.3d at 137-40. 

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Class III MICS. 

Tribes retain significant regulatory authority with respect to Class III gaming depending 

upon the terms negotiated with a state pursuant to a Class III gaming compact and retain 

unilateral authority to close Class III games, regardless. 25 U.S.C. § 2710(d)(2)(D)(i) (2006). 

The Indian Gaming Regulatory Act (IGRA) also anticipates that the criminal and civil laws of 

the tribe may be chosen in the compact for the licensing and regulation of Class III operations, 

and the tribal courts may be allocated complete civil and criminal jurisdiction to enforce those 

laws and regulations. Thus, the tribes’ sovereignty to regulate Class III gaming is fully 

recognized by IGRA. 

In contrast, the authority of the NIGC and its Chair are limited with respect to Class III 

gaming. Congress intended that Class III gaming would be conducted pursuant to a tribal-state 

compact, not pursuant to regulations imposed by the NIGC. According to IGRA, it is the tribalstate compact which governs Class III gaming after it is approved and the tribe’s Class III 

gaming operations must be “conducted in conformance” with the compact. 25 U.S.C. § 

2710(d)(1)(C). Although the Chair continues to approve management contracts and tribal 

ordinances authorizing Class III gaming, it is the Secretary of Interior, not the NIGC Chair, 

who approves the tribal-state compact. The Appellate Court in Colorado River Indian Tribes 

decision thoroughly analyzed the IGRA and determined that Congress intended to leave the 

regulation of Class III gaming to the Tribes and the States. It found no statutory basis 

empowering the NIGC to regulate Class III gaming operations. 

In light of tribal sovereignty, the IGRA provisions, and the Colorado River Indian Tribes

decision we recommend that the NIGC eliminate the Class III MICS. We have developed our 

own minimum internal control standards. In addition, our 2009 Gaming Ordinance and 2000 

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Tribal-State Compact do not incorporate the federal MICS by reference. Thus, the Gaming 

Commission is the sole regulatory authority for day-to-day Class III gaming operations. 

We recognize that some tribes may reference the federal MICS in their ordinances or 

compacts. If the MICS rule is struck and replaced with a guideline there could be proviso 

language stating that it does not affect any tribes who may have incorporated the federal MICS 

prior to the effective date of the guideline. These NIGC guidelines should be posted on its 

website. And, tribal comments should be gathered through the consultation and rulemaking 

processes. 

Class II MICS. 

With respect to Class II gaming on Indian lands, tribes retain significant regulatory 

authority under IGRA “which remains within the jurisdiction of the Indian tribes” subject to the 

terms of IGRA. 25 U.S.C. § 2710(a)(2). The NIGC and Chair have been delegated some 

approval, investigatory and reporting authority for Class II gaming. In material part, the NIGC, 

has power to approve an annual budget; adopt regulations for the assessment and collection and 

civil fines as provided in § 2713 (a); approve tribal ordinances as provided in §2710; establish 

the rate of fees as provided in § 2717; authorize the Chairman to issue subpoenas as provided in 

§ 2715; order closure of an Indian gaming operation; monitor Class II gaming conducted on 

Indian lands and inspect the premises where conducted; conduct background investigations as 

may be necessary; inspect, examine and audit books, and records respecting gross revenue; and 

perform certain ministerial functions. 25 U.S.C. § 2706. 

Significantly, the NIGC and its Chair, possess no general authorization to impose general 

operational regulations for Class II gaming on Indian lands. The question of whether NIGC has 

authority to promulgation of Class II regulations for day-to-day operations of Indian gaming has 

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not been addressed by any court. As asked in the Colorado River case, “what is the statutory 

basis empowering the Commission to regulate class III gaming operations? Finding none, the 

court held the NIGC could not regulate Class III gaming. 

Colorado River is instructive because like the Class III gaming regulations, we are unable 

to find any Class II regulatory authority in the IGRA for the NIGC. IGRA also expressly 

provides that Class II gaming shall continue to be within the jurisdiction of the tribe though 

subject to the Act. The real question here, then, is to determine precisely what limits IGRA 

places upon that continued tribal jurisdiction. Accordingly, we would first recommend that the 

NIGC assess whether it believes it has authority to promulgate Class II MICS revisions. It may 

well be that NIGC has simply gone too far in the Class II area. If it indeed, it finds it does 

possess such regulatory authority, then it should provide an opportunity for tribes to comment on 

and proposed Class II MICS and related rules. 

3. Priority of Regulation Revisions 

A priority should be to eliminate all the obsolete regulations and then address the 

regulations regarding appeals of notice of violations. 

4. Part 502 Definitions 

We agree it would be beneficial to have two separate calculations that are consistent with 

GAAP that define the methods for determining both the management fee and allowable uses. 

(1)(a) Net Revenues Management Fees. Net revenues used to calculate the 

management fee when the fee is a percentage on net revenue should be defined as “Net income 

as it is presented in audited GAAP Financial Statement plus any Management Fee that has been 

included to calculate that Net Income. This will make the calculation consistent, easy to 

document and readily available. 

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(1)(b) Net Revenues Allowable Uses. Net revenues used to calculate cash available for 

allowable uses should be defined as closely as possible to the GAAP Net Cash Provided by 

Operating Activities (from the GAAP Statement of Cash Flows) less Principal Loan Payments 

(or Debt Reduction amount from the Financing Activities Section of the GAAP Cash Flows 

Statement for the same year). This will provide a degree of independent assurance that the 

numbers used to calculate dollars available for allowable uses is timely and accurate because the 

numbers can be tied directly those in the latest independently audited financial statements. 

We agree that calculation of the NIGC fee should be based on the numbers from a GAAP 

audited financial statement for the fiscal year of the reporting Gaming Operation and that the 

definition of “gross gaming revenue” should also be defined consistently with GAAP making it 

simpler to reconcile and document. We recommend that all changes making definitions 

concerning Financial Calculations being more consistent with GAAP in both A and B above be 

high priority to NIGC with changes being effective as soon as reasonably practicable. 

(2) Management Contracts. The NIGC has asked “should the definition of 

management contract be expanded to include any contract, such as slot lease agreements, that 

pays a fee based on a percentage of gaming revenue?” We recommend there should be some 

guidance by NIGC to provide acceptable compensation to management for the 

Tribe’s consideration. 

5. Part 514-Fees 

The NIGC is interested in receiving comments on whether part 514 is in need of revision. 

In particular, the NIGC is interested in receiving comment on whether it should consider revising 

this part to base fees on the gaming operation’s fiscal year. Currently, the fee is calculated based 

on the calendar year. The Tribal government and Gaming operation is based upon the fiscal year 

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– October 1 to September 20 -- with the option to adjust over a 12 to 18 month period. If the 

NIGC changes to the fiscal year, then the fee assessment periods would not need changing as in 

previous years notices, pointed out in the January 22, 2010, Bulletin No. 

2010-1 “Annual Fees Payable by Indian Gaming Operations: New Rules”. 

In addition, we agree the NIGC should consider amending the definition of “gross 

gaming revenue.” The calculation of the NIGC fee should be based on the Gaming Operation’s 

 fiscal or annual reporting year and on the numbers from a GAAP audited financial statement for 

the same fiscal year. The definition of “gross gaming revenue” should also be used consistently 

with GAAP and the AICPA audit guide for casinos making it much simpler to reconcile and 

document. These changes would prevent continuous adjustments to the fees calculated because 

the fees would be based on a well-documented and easily identifiable audited number. If the 

gross revenue definition was consistent with the American Institute of Certified Public 

Accountant (AICPA) definitions for casinos, then revenues from fingerprinting or other 

miscellaneous items would not be applicable with regard to fee calculations.

We also urge the NIGC to amend the FBI fee for the finger printing process. The Gaming 

Commission processes the gaming operation’s finger printing fees (payments) through a Tribal 

budgeting process, and pays the FBI finger printing cost separately from the fee calculation 

process. 

The Gaming Commission would rather have NIGC consider a late payment fee in lieu of 

a Notice of Violation (NOV). NIGC needs to take into consideration the adverse impact a NOV 

has on a Tribe’s gaming operation. The issuance of a NOV results in poor credit ratings, the 

appearance of non-compliance, appearance of an unstable gaming management and regulatory 

agency, and financial institutions are more likely to scrutinize or decline financing for tribal 

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gaming projects. The closing of a casino doors over late fees is an excessive measure and creates 

a negative impact to the reservation economy. NIGC should amend the regulations to provide 

notices, hearings and due process for tribal gaming operations. The NOV process is a harsh 

measure and should be eliminated for the failure to pay fees. 

6. Part 523 – Review and Approval of Existing Ordinance or Resolutions 

The NIGC should eliminate part 523 as obsolete. A standard notice and comment 

rulemaking should be pursued. 

7. Management Contracts

Part 531 – Collateral Agreements 

We support the proposal of reviewing a collateral agreement that may be a part of or 

incorporated into the management agreement. Such review would ensure that a management 

company is not violating any provisions of the Indian Gaming Regulatory Act.

8. Proceedings before the Commission 

The NIGC should provide for more comprehensive and detailed procedural rules for 

appeals relating to NOVs, civil fines and closure orders. Procedures detailing the warning 

process, steps leading to the issuance of a NOV, and the appeal process would be very helpful. 

This would provide for due process notice and the opportunity for a tribe to protect its interests 

should the NIGC take action against the tribe. 

9. MICS & Technical Standards 

Part 542-Class III Minimum Internal Control Standards 

We believe that the Class III MICS have had a positive impact on the industry, provide a 

basic foundation for the developing good policies and procedures and give uniformity to both the 

internal and external audit process. In our opinion, changing the MICS to a set of recommended 

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guidelines would have adverse consequences, leaving Class III Operations without a clear 

foundation for minimum controls to protect Tribal assets. We further agree that some revisions 

to the Class II MICS are needed to provide clarification and consistency and that a TAC may be 

helpful in that revision process. If a TAC is used, however, those selected should be members 

with technical expertise in auditing gaming assets and accounting for gaming operations. 

Part 543 – Class II Minimum Internal Controls Standards 

To produce class II gaming devices, then it should be handled on a, case by case bases 

without having an impact to the class III operations. If new standards are developed for class II 

devices, then it should be designed not to have an effect on class III operations. Our Commission 

questions the new proposed class II proposed rules and would be concerned of any gaming legal 

impacts. 

10. Backgrounds and Licensing 

Part 556 – Background Investigations for Licensing 

The Gaming Commission has not been afforded the opportunity to participate in the 

NIGC “pilot program”. The Gaming Commission and staff work diligently to get the licensing 

backgrounds in order to fulfill its obligations of compliance. The pilot program would be a 

worthwhile tool to be promulgated into a regulation. A standard notice and comment 

rulemaking should be sufficient. 

11. Part 559 – Facility License Notification, Renewals and submissions 

With respect to gaming facility licensing on Indian lands, tribes retain significant 

regulatory authority under IGRA “which remains within the jurisdiction of the Indian tribes” 

subject to the terms of IGRA. 25 U.S.C. § 2710(a)(2). The Gaming Commission conducts a 

facility license review of its gaming facilities located on the Wind River Reservation. A 

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thorough inspection is conducted and various regulatory agencies of the Tribes are involved to 

review facility compliance with Tribal and federal laws. In addition, the Gaming Commission 

meets with the gaming management and undertakes any other inspection and assessment to 

protect the integrity of gaming on the Reservation. The Commission has a comprehensive 

gaming facility license checklist to be used in the licensing of the casino. The Gaming 

Commission, as the local gaming agency, possesses the knowledge of the gaming facility, and is 

in the best position to review and issue an annual facility license. 

The NIGC and Chair have been delegated some limited approval, investigatory and 

reporting authority for gaming. In material part, the NIGC, has power to approve an annual 

budget; adopt regulations for the assessment and collection and civil fines as provided in § 2713 

(a); approve tribal ordinances as provided in §2710; establish the rate of fees as provided in § 

2717; authorize the Chairman to issue subpoenas as provided in § 2715; order closure of an 

Indian gaming operation; monitor Class II gaming conducted on Indian lands and inspect the 

premises where conducted; conduct background investigations as may be necessary; inspect, 

examine and audit books, and records respecting gross revenue; and perform certain ministerial 

functions. 25 U.S.C. § 2706. 

Significantly, the NIGC and its Chair, possess no general authorization to impose general 

operational regulations for Indian gaming. NIGC facility licensing regulations on Indian lands 

appears to fall within this area. Equally important, the NIGC possesses no authority to regulate 

Tribal trust lands. The question of whether NIGC has authority to promulgate facility licensing 

regulations for Indian gaming has not been addressed by any court. As asked in the Colorado 

River case, “what is the statutory basis empowering the Commission to regulate class III gaming 

operations? Finding none, the court held the NIGC could not regulate Class III gaming. 

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Colorado River is instructive because like the Class III gaming regulations, we are unable 

to find any Class II regulatory authority in the IGRA for the NIGC to govern facility licensing. 

Facility licensing is often controlled by a tribal-state compact, not pursuant to any regulations 

imposed by the NIGC. IGRA also expressly provides that Class II gaming shall continue to be 

within the jurisdiction of the tribe though subject to the Act. The real question here, then, is to 

determine precisely what limits IGRA places upon that continued tribal jurisdiction for facility 

licensing. Finding none, it may well be that NIGC has simply gone too far in the facility 

licensing area. If it indeed, NIGC believes it does possess such regulatory authority over facility 

licensing, then it should provide an opportunity for tribes to comment on and proposed facility 

licensing requirements and related rules. 

12. Section 571.1 – 571.7 – Inspection and Access 

In Colorado River Tribes v. NIGC, the Court of Appeals for the District of Columbia held 

that the Chairman and NIGC have no authority to adopt regulations governing the day to day 

operations of a Class III gaming facility operating pursuant to a tribe-state compact that is in 

effect since Congress intended that such matters were to be determined via the tribal-state 

compact. 466 F.3d at 137-40. This decision forecloses inspection of and examination of papers, 

books regarding gross revenues of Class III gaming. Many tribes, including the Eastern 

Shoshone Tribe, do not separate their Class II and Class III gaming records and documents 

regarding gross revenue. Therefore, the inspection of Class II gaming records by NIGC will 

likely result in the examination and inspection of Class III records. In so far as the NIGC actions 

may touch upon Class III gaming it is prohibited under the Colorado River Tribes decision. 

The challenge that NIGC faces is to conduct such inspection of Class II gaming records 

without inspecting Class III records. Any regulations must be carefully crafted so as to not 

interfere in Class III gaming. Does the NIGC intend to seek access to records at Certified Public 

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Accountant firms when it states it wishes to “clarify Commission access to records at off-site 

locations including at sites maintained or owned by third parties.” We would not support such 

action if it is an expedient way to circumvent the Colorado River Tribes’ ruling prohibiting 

NIGC to engage itself in Class III matters. If the NIGC moves forward with a regulation it 

should provide full opportunity for tribal input through the standard notice and rulemaking 

process. 

13. Potential New Regulations 

Communication Policy or regulation identifying when and how the NIGC 

communicates with Tribes. 

President Obama’s November 5, 2009 Memorandum on Consultation, 74 Fed. Reg. 

57,881 (Nov. 5, 2009), declares that “[c]onsultation is a critical ingredient of a sound and 

productive federal-tribal relationship,” and commits the Administration to “regular and 

meaningful consultation and collaboration with tribal officials in policy decisions that have tribal 

implications...” To achieve its goals, the President Memorandum directs all federal agencies to 

submit a detailed plan of action to implement Executive Order 13175, Consultation and 

Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 (Nov. 6, 2000). If NIGC has 

not developed such a plan of action for consultation, after consulting with Indian tribes, the 

Gaming Commission urges NIGC to do so. 

Many agencies within the executive branch have defined their trust responsibilities 

toward tribes by issuing various policy directives through internal agency guidance documents 

to deal with Indian issues in their programs. The policies vary considerably and reflect different 

approaches to dealing with tribes. Some of the executive branches which have policies include 

the Department of Interior, Department of Agriculture, Environmental Protection Agency, 

Department of Energy, and Department of Justice. 

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Although there is no standard definition of “consultation”, it generally should mean more 

than simply providing information about what a federal agency is planning to do and allowing 

concerned tribes to comment. Consultation should mean two-way communication, a 

collaborative process between governments -- a true government-to-government relationship. 

The goal of consultation should be consensus, full agreement between the parties involved in the 

consultation. 

The Gaming Commission offers to NIGC some practical considerations that can make 

consultation better and effective with tribes -- 

A. Seeking an understanding of how each tribe wishes to be consulted. 

B. Viewing consultation with tribes as an essential element of the government-togovernment relationship and not simply as a procedural requirement. 

C. Entering consultation with a good heart. In other words, federal agency 

representatives should enter without assumptions and a sincerity to learn and discuss the issues. 

Agency staff should resist thinking of Indians as a group of people with the same attitudes, ideas, 

cultures and responses. 

D. Federal agencies should know the particular tribe, their governmental structure 

and resources. Federal agencies must recognize and understand that tribal people hold sincere 

beliefs and values toward the land, its relationship to all things in the world and the tribes 

relationship and dependency on the land and resources. 

 E. Federal agencies should recognize that tribal cultures are not dead and they are 

not static. Traditional religious beliefs and practices are still exercised by tribal people on and 

off-reservation. 

F. Federal agencies must conduct consultation with official tribal governing 

leadership; one councilmember contact is not consultation. Tribal staff do not speak on behalf of 

the tribes about tribal policies, decisions and actions. Groups, intertribal councils and 

commissions do not speak or represent the tribes. 

G. Notification is not consultation nor is a phone call or email to tribe. 

H. Federal agencies should visit, listen and communicate in person. Be respectful, 

do not interrupt when a tribal person is speaking. Do not take offense during consultation. 

I. Be open and maintain honesty and integrity about the federal agency’s purpose 

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and needs, and throughout the consultation process. Documents and statements should clearly 

describe the proposed agency action or policy to the tribes. Explain in plain and simple terms 

what the agency wants to accomplish, where the agency is in its decision making process, and 

the nature of the decision to be made. Limit acronyms when consulting with the tribes, or in the 

alternative, if they must be used, include a clear definition of their meaning. 

J. Federal and tribal officials should identify the preferred communication for 

consultation, develop protocols or memoranda of agreement on how consultation should be 

conducted. 

K. Develop points of contact with the tribes for day to day activities. 

 L. Contact the tribes early and allow sufficient time for the consultation process. 

Many tribes have an established governmental review process and protocols that must be 

followed by tribal staff. Be flexible with deadlines and decisions. 

 M. Allow ample time for the tribe to receive, process and respond to requests for 

consultation. 

 N. Agencies should not be driven by their own agendas. Most agencies know well in 

advance of what rules, policies or regulations they may seek comments on and should give tribes 

a schedule of rulemaking at the beginning of each fiscal year, and an advanced copy of the rules 

for comments. 

 O. If the tribe does not respond to an initial request to engage in consultation, the 

agency should not assume the tribe has no interest in the matter. The more information the tribe 

receives about the consultation the better prepared the tribe can be to comment. 

 P. Conduct field trips with tribal staff and leadership of the impacted or affected 

area. 

Q. Answer questions directly and honestly, and be willing to seek out an answer. Be 

reliable. Do not say the easy answer or commitment. Be certain you can deliver. If you cannot 

say so. 

 R. Understand that questions posed to tribes may not be answered immediately as 

tribal leaders may need to discuss issues with tribal membership. 

 S. Do not rely on consultants or experts about what will be the position of the tribe. 

 T. Understand that some kinds of information is sensitive and confidential. Many 

tribes have established privacy acts that require the approval of leadership to release tribal 

documents. 

The basic duties of the trust obligation are well established. President Obama took a 

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significant step toward fulfilling his trust obligation by directing his agency officials to the 

Indian law principles that stand apart from the federal statutory mandates. Any NIGC plan of 

action should address the various issues raised by the NIGC including direct communication 

with designated tribal entities, identifying points of contact, resolution of disputes, formal and 

informal consultation with tribally elected officials on policy and technical and/or Gaming 

operations or Gaming Commission on specific non-policy issues. Even if the NIGC is taking 

enforcement action against a tribal entity, it does not relieve the NIGC of its duty and 

responsibility to consult with a tribal governing body and staff. We urge the NIGC to issue a 

rulemaking on this important consultation matter. 

Buy Indian Act Regulations 

The Gaming Commission supports the NIGC adopting a regulation which would require 

the NIGC to give preference to qualified Indian owned business when purchasing goods or 

services as defined by the “Buy Indian Act’, 25 U.S.C. 47. 

Conclusion 

 In conclusion, the Eastern Shoshone Gaming Commission thanks you for the opportunity 

to present our perspectives on the NIGC’s Notice of Inquiry and Request for Information. We 

agree with the National Indian Gaming Commission’s general assessment that numerous NIGC 

regulations need reform and revisions, and any rulemaking must provide a framework for tribal 

participation, review and comments. We commend the NIGC for recognizing some of its 

regulations are incomplete, obsolete and may go beyond its regulatory authority, and its 

willingness to explore and consider ways to address some regulations which may be excessive, 

inefficient and costly administrative procedures. 

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 The Gaming Commission reemphasizes that any NIGC regulations and rulemaking must 

be in accordance with the principles of tribal self-government and self-determination. Indian 

tribes must determine their own future. Additionally, care must be taken to remember that 

Indian gaming is tribal governmental gaming. It is an essential revenue source for the provision 

of governmental services and programs to tribal peoples. Tribal Gaming Commissions provide a 

critical role of regulating the gaming operations which should not and cannot be filled by the 

National Indian Gaming Commission. Accordingly, the NIGC should not overstep the 

limitations placed on its authority in the Indian Gaming Regulatory Act. 

 Finally, we believe that reform, revision and elimination of certain NIGC regulations will 

significantly improve the NIGC’s policy making in the area of Indian gaming and working 

relationship with tribes. We urge the NIGC to continue its commitment to work with Indian 

tribes on these gaming issues. 

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