20 Black Brook Road Phone: 508-645-9265 

Aquinnah MA 02535 Fax: 508-645-3790 

April 25, 2012 Submitted by email: reg.review@nigc.gov

Submitted by Fax: (202) 632-7066

Honorable Tracie Stevens

National Indian Gaming Commission

Attn: Regulatory Review

1441 L Street NW Suite 9100

Washington, DC, 20005

Re: Comments regarding Part 543 and Part 547 discussion drafts

Dear Chairwoman Stevens:

The Wampanoag Tribe of Gay Head (Aquinnah) strongly supports the process of regulatory 

review the NIGC has undertaken during the past 12 months. Under your tenure, the NIGC 

has maintained a level of consistency and transparency previously unheard of by any 

federal agency, and you should be commended. 

Class II gaming is the foundation of Indian gaming. We appreciate the Commission 

commitment to follow through on the promise to finally publish Class II MICS and Technical 

Standards. While we may occasionally disagree on substance, we applaud the 

Commission’s commitment to consulting with tribes throughout the development of these 

regulations. The Wampanoag Tribe of Gay Head (Aquinnah) appreciates the opportunity to 

comment on the discussion drafts of Class MICS and Technical Standards and looks forward 

to seeing the publication of proposed rules soon. 
GENERAL COMMENTS

First, the Tribe continues to recommend that as you complete your work finalizing the 

Class II regulations, please keep in mind that a viable Class II game is the only leverage 

many tribes have in the wake of the Seminole decision. We also recommend the NIGC 

continue its work under the Stevens Administration to work collaboratively with the DOI 

and DOJ to develop a collective and coordinated approach which will ensure tribes are in 

the position that Congress intended when states refuse to negotiate in good faith. 

Historically, one of the overriding Tribal concerns with the MICS has been former NIGC 

Administration’s prescriptive approach to achieving a regulatory objective. However, in an 

industry in which technologies and industry practices are constantly changing and 

evolving, we encourage the NIGC to strive to achieve its regulatory objectives while 

allowing the industry the flexibility to grow with technology. Because tribal gaming 

operations are diverse and complex and may differ in available resources, it is important 

that tribes have flexibility to define their own internal controls and processes based on the 

particular resources each tribe may, or may not have. We recognize the current 

Commission’s familiarity with this issue and encourage you to continue to refine the MICS 

to ensure both the Commission’s regulatory requirements and tribal concerns are met.

With regard to the Class II MICS and Technical Standards, we recommend that where 

possible, the definitions included in both remain consistent. Differences in definitions 

where the subject matter is the same can lead to confusion and misunderstanding. 

We also note that Section 543.3(a) of the discussion draft provides that tribal gaming 

regulatory agencies may establish and implement additional controls. However, later in 

Section 543.3(h)(2) the discussion draft provides explicit recognition that tribes are the 

primary regulators of their gaming operations. We believe that it would be appropriate to 

formalize this Commission’s consistent recognition that tribes are, in fact, the primary 

regulators of Indian gaming. We recommend inserting a statement to that effect in both 

Part 543 and 547 so that future Commissions are guided by this recognition.

The proposed regulations submitted by the Tribal Gaming Working Group included a 

significant amount of guidance information. The Wampanoag Tribe of Gay Head 

(Aquinnah) recommends that the NIGC utilize guidance documents, similar to guidance 

documents used by other federal agencies, to assist tribes as we begin to revise our MICS to 

meet these new regulations. Because guidance documents can be revised more easily than 

regulation, such documents would be invaluable to both the NIGC and tribal gaming 

operations as they change with changing technology.
TECHNICAL COMMENTS

1. 25 C.F.R. § 543.2: Definitions 

The discussion draft’s definition of an “agent” is problematic because it does not support 

the use of a computer application in performing the functions of an agent. As defined, only 

individuals can qualify as an agent. Such a narrow definition of an agent can be 

impracticable under certain circumstances where more than one agent is required to be 

present. Furthermore, by narrowly defining agent to include only persons, the discussion 

draft prevents tribes from taking advantage of technological advances that may perform 

the functions of an agent in a more cost-effective and efficient manner. 

2. 25 C.F.R. § 543.7 & § 543.8: Bingo Games

The discussion draft’s distinction between “gaming system” bingo and “manual” bingo is a

significant departure from the well-accepted view and general consensus that “bingo is 

bingo.” Bingo has historically been treated as one type of gaming activity by both the NIGC 

and tribal governments and while this proposed change may be the natural outgrowth of 

changes in technology for electronic Class II gaming we are concerned that this distinction 

may be interpreted as a “classification” distinction. We recommend the NIGC to review the 

draft regulation and refine its approach to streamline the MICS requirements for bingo 

games by merging the two sections together. 

3. 25 C.F.R. § 543.12: Gaming Promotions 

To the extent that promotions are non-gaming activities, we believe that TGRAs should be 

responsible for establishing and enforcing proper standards to govern promotional 

activities. We therefore ask the NIGC to distinguish between “gaming promotions” and 

“non-gaming promotions” and rely on guidance documents instead of the regulations in 

providing regulatory requirements for non-gaming promotion.

4. 25 C.F.R. § 543.17: Drop and Count

To eliminate confusion and ensure adequate coverage for all drop and count controls, we 

recommend streamlining the drop and count standards into one section instead of 

separating them by department or game type. By separating out the requirements for card 

games from player interface and financial instruments in the discussion draft, certain 

provisions have become misplaced so that the functions required no longer correspond 

with what is being controlled. For instance, § 543.17(f)(8) prohibits posting rejected 
currency to a nonexistent interface, despite the fact that § 543.17 governs card games 

where interfaces are not used.

5. 25 C.F.R. § 543.18: Cage, Vault, Kiosk, Cash and Cash Equivalents

This section contains provisions for patron deposited funds and promotional payouts, 

drawings, and giveaway programs. To minimize confusion, these provisions should be 

covered in their respective sections instead of scattered throughout the regulation. 

6. 25 C.F.R. § 543.23: Audit and Accounting 

This section confuses the functions of independent accountants by requiring controls to 

ensure that each gaming operation “records journal entries prepared by the gaming 

operation and by its independent accountants.” Journal entries, however, are not generally 

recorded by independent accountants. We ask that the “and” in this provision be replaced 

with an “or” to better reflect industry practices.

Also, § 543.23(c)(8) refers to “instances of non-compliance cited by internal audit, the 

independent accountant, and/or the Commission” (emphasis added). The term 

“Commission” should be replaced with “TGRA.” 

Further, it is important to note that the “Severability Clause” has been eliminated from both 

the MICS and the Technical Standards. This opens the possibility of having the entire set of 

Class II MICS overturned in the even that one of its provisions is held to be invalid, which 

we do not believe to be the intent of the NIGC.

CONCLUSION

The Wampanoag Tribe of Gay Head (Aquinnah) understands that the NIGC must balance 

the regulatory interests of the Agency with the need to provide flexibility for advancements 

in technology and needs of the gaming operation. We do not envy you this task, but we 

have confidence that you will weigh these concerns and develop regulations which will 

improve the current regulatory framework. 

Respectfully, 

Chairwoman Cheryl Andrews-Maltais

The Wampanoag Tribe of Gay Head (Aquinnah)