1 ______________________________________________________

2

3 NATIONAL INDIAN GAMING COMMISSION

4 PORTLAND REGION

5 REGULATORY REVIEW CONSULTATION

6

7 ______________________________________________________

8 TULALIP RESORT AND CASINO

9 10200 QUIL CEDA BLVD

10 CHINOOK BALLROOM

11 TULALIP, WASHINGTON

12 JULY 14, 2011

13 9:13 A.M.

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23

24 REPORTED BY: CHERYL J. HAMMER, CCR 2512

25 Job No. NJ331347

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1 TULALIP, WASHINGTON; JULY 14, 2011

2 9:13 A.M.

3 --oOo--

4

5 (Opening prayer.)

6 MR. SHELDON: For those that don't

7 know, she was former chair lady and a long time

8 leader. Her and Debbie Posey, they were a team to be

9 reckoned with. They were tromping around representing

10 Indian intention in the early days. And we thank you

11 for your leadership and all that you have done and

12 what you are doing now. But thank you, Pearl.

13 I'm going to take this time to welcome

14 everybody to Tulalip, especially the National Indian

15 Gaming Commission. Chairwoman Tracie Stevens, welcome

16 home, and thank you very much for making Tulalip part

17 of your itinerary today.

18 Vice Chair Cochran, thank you very

19 much for being with us, and Commissioner Little, Dan

20 Little, thank you. Counsel Lael Echo-Hawk and Jo-Ann

21 Shyloski, thank you. Also Nimish Purohit, if he's in

22 the room, and a lot of your staff that are here.

23 Tracie, thanks for bringing the staff and coming to

24 Tulalip for some conversation today.

25 To all of our elders that are here

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1 this morning, thank you very much for being here with

2 us. We appreciate your leadership and what you've

3 done with your different tribes and communities. And

4 to our veterans that are here today in attendance, men

5 and women, we thank you very much for your service to

6 our country and the rich legacy that Indian people

7 have when it comes to participating in the military.

8 Again, to all of you, welcome to Skoho

9 country. A little bit about Tulalip. We're on 22,000

10 acres here and some of it is bordered by salt water,

11 so salmon makes a big part of who we are. We are a

12 fishing community, transitioning into a gaming

13 opportunity that's been presented to us.

14 In your stay here -- is anybody

15 staying in the hotel? Okay. So hopefully it's met

16 their expectations. It's just a modest little bed and

17 breakfast along I-5 here and we have Seattle premium

18 outlets for anybody who enjoys shopping. That's just

19 north of here a little bit. And just to tell you

20 also, soon they will be expanding. They're going to

21 create 90,000 more square feet of shopping space for

22 the ladies, so we're very, very grateful for that

23 opportunity.

24 As some of you may have heard, we also

25 have a Cabela's coming on board here. We recently

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1 worked out a contract to deal with them and they hope

2 to be open by April of this coming year. So I've

3 never known who Walmart was until they came to Tulalip

4 and gradually over a period of time my whole closet

5 was Walmart. Well, I can see over a period of time my

6 closet's going to be Cabela's.

7 So it's a great opportunity to, you

8 know, do a little shopping down the road. Also, too,

9 in August, which is right around the corner here, our

10 museum is going to be opened up for a big consumption

11 and we're very, very proud of that opportunity to

12 share who Tulalip is, who the Skoho people are, and to

13 share our history.

14 One of our first exhibits is going to

15 be of men and women veterans, tribal veterans, and so

16 their pictures, their stories are going to be on

17 showcase as well as the rest of the museum. So we

18 hope that in your travels you find the time to come

19 back to Tulalip and of course stay at this little bed

20 and breakfast and then do a little shopping and

21 sightseeing here.

22 So again, to all of you, I wanted to

23 say thank you for the work that you do in Indian

24 country in gaming and some of the conversations that

25 we're going to have today with the NIGC that I believe

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1 are going to be positive and fruitful.

2 I think what I've seen is together we

3 can go a lot of places together and that's what we're

4 doing here this morning, is coming together to share.

5 So again, to all of you, thank you for coming to

6 Tulalip. Thank you for sharing this time with us, and

7 a safe journey when it's time to go home.

8 It's not like basketball tournaments

9 where sometimes you'd stay a little longer after the

10 tournament, but when you do get time to go home,

11 please have a safe journey. So thank you very much,

12 Chairwoman Tracie.

13 CHAIRWOMAN STEVENS: Thank you,

14 Chairman. I'd like to take this opportunity now to

15 have everyone at the table -- first of all, if we have

16 tribal leaders in the room, you're welcome to come up

17 to the table. We do try to reserve the table for

18 tribal leaders or who they designate to speak for

19 them, so please feel free. We also understand that

20 folks are shy, if you want to sit in the back, but

21 that's who we intended the table to be for.

22 I'd like to have the folks at the

23 table introduce themselves and start way down there

24 and we'll come around this way with the tribal

25 leaders. And after we do that, we'll introduce the

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1 commission and staff.

2 MR. SPENCER: Good morning. Warren

3 Spencer, Yakama Nation tribal council.

4 MS. JACK: Good morning. Dolcee Jack,

5 Yakama Nation.

6 MR. GEORGE: Good morning. Richard

7 George, Yakama tribal council.

8 MR. CORPUZ: Good morning. Max

9 Corpuz, Jr., Yakama tribal council.

10 MS. VYVYAN: Good morning. Dawn

11 Vyvyan, attorney for Yakama Nation.

12 MR. MINKER: Fred Minker, director for

13 Jamestown.

14 MS. JACKSON: Tina Jackson,

15 chairperson, Suquamish Tribal Gaming Commission.

16 MR. LEWIS: Bardow Lewis, Suquamish

17 tribal council.

18 MR. ARMSTRONG: James Armstrong,

19 Suquamish tribal gaming executive director.

20 MR. HANSON: Daniel Hanson, Port

21 Gamble Tribal Gaming Commission.

22 MS. HELM: Linda Helm, Port Gamble TGA

23 director.

24 UNIDENTIFIED SPEAKER: Spokane Tribe

25 of Indians, chairman, Spokane Gaming Commission.

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1 MR. WYNECOOP: Dave Wynecoop, tribal

2 council, Spokane tribe.

3 MR. WHEAT: Scott Wheat, attorney,

4 Spokane tribe.

5 MS. GALLOWAY: Shannon Galloway. Good

6 morning. Umatilla Tribal Gaming Commission.

7 MR. FILKINS: Steve Filkins,

8 (unintelligible).

9 CHAIRWOMAN STEVENS: Do we have any

10 other tribal leaders that might be in the seating

11 area?

12 MS. BURCH: Shelley Burch, Snoqualmie

13 tribe. Chairwoman.

14 CHAIRWOMAN STEVENS: Next I'd like to,

15 just following along with the agenda, I'd like to

16 introduce our commission and the staff that we have

17 with us today. I'll start to my right. This is Vice

18 Chairwoman Steffani Cochran. If you want to take a

19 minute to introduce yourself.

20 VICE CHAIR COCHRAN: Good morning. My

21 name is Steffani, and I am a vice chairwoman. I am a

22 member of the Chickasaw Nation, and it's a pleasure to

23 be here. Thank you, Mr. Chairman, for having us here

24 and hosting us.

25 I did ask Chairwoman Stevens this

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1 morning if the Coach outlet store had a voluntary van,

2 because I found myself going over there yesterday. So

3 thank you for allowing us to come here today and it's

4 nice to see everybody sitting here. I look forward to

5 the conversation.

6 CHAIRWOMAN STEVENS: Associate

7 Commissioner Dan Little.

8 ASSOCIATE COMMISSIONER LITTLE: Good

9 morning, everyone. I actually want to say welcome

10 everyone, and I look forward to hearing from

11 everybody. I want to make a special point to thank

12 the chairman for recognizing our veterans. As a

13 fellow veteran, and I know the chairman is a veteran,

14 you know, dedication from the native community to our

15 military efforts is not forgotten by me. So I really

16 appreciate all the veterans here.

17 I also want to remind all the folks

18 that are staying here in the hotel, the NIGC, we

19 obviously can't gamble at any of the gaming

20 facilities, so we are staying at the Holiday Inn

21 Express. So all of you that are staying here, please

22 don't prove me wrong.

23 In any event, I welcome you all. It's

24 great to see some of the folks that are here from the

25 Yakama Nation from our consultation in Coeur d'Alene.

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1 It's good to see you and all the others that are here

2 from the Spokane tribe. So thank you. Welcome.

3 CHAIRWOMAN STEVENS: And my name is

4 Tracie Stevens. I'm the chairwoman of the National

5 Indian Gaming Commission. I am a member of the

6 Tulalip tribes here. This is our -- I think we're on

7 number 10 consultation. I do want to recognize the

8 staff that we have with us here today. Mark Phillips,

9 many of you know Mark Phillips. He's our regional

10 director, back there. Vida Bishop, she's a field

11 investigator. I think she's out front right now.

12 Steve Steiner, who is a field

13 investigator, back there with the transcriptionist.

14 Dan Catchpole. There he is. He's a senior auditor.

15 Rayanne Morris is also with our enforcement division.

16 She's right here. Additionally we have Nimish Purohit

17 right here. He is our gaming technology trainer, but

18 he's also our acting training director right now.

19 Jo-Ann Shyloski -- why do I just

20 murder your name -- Shyloski with our general

21 counsel's office, and also Lael Echo-Hawk down here on

22 the left here, she's counselor to the chairwoman.

23 So I do want to give a shout out to

24 all of our staff. They're critical in making sure

25 that these consultations are well organized, we are

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1 prepared as a commission to hold this meeting and have

2 a discussion so that we don't worry about the things,

3 other than the discussion. Like making sure that the

4 transcriptionist has everybody's names, everybody gets

5 in here, make sure the room is in order. So I want to

6 say thank you to the staff.

7 In looking at the agenda, we've been

8 playing around with how to manage these number of

9 regulations and so we want to talk about -- before we

10 begin, we want to talk about the agenda, and this is a

11 two-day agenda that we've just begun about three weeks

12 ago, and because we have so many regulations that we

13 want to cover, we've broke them up after hearing from

14 tribes, you know, when are you going to talk about

15 regulation X and having it be more defined.

16 But also, we recognize that many

17 people come here, especially tribal leaders, who have

18 a very full schedule, have prepared statements that

19 they would like to submit for the record. And so we

20 have periods of time throughout the agenda -- and

21 just, by the way, at any time on the agenda, you know,

22 if you need to make your statement and get on with

23 your business, we certainly welcome it and it's always

24 open for anyone who needs to make a statement.

25 It doesn't necessarily have to be in

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1 this order. So, you know, for example, tomorrow we're

2 scheduled to talk about minimum internal control

3 standards and other things, but if today is the only

4 day you're going to be here or this morning is the

5 only time that you're going to be here, we will

6 welcome your statements or comments that you may need

7 to make before you leave.

8 So what we'll be doing -- and Lael

9 will go over this in more detail -- is we're just

10 going to go by sections and groups and do this in

11 manageable pieces so we don't overload you. We didn't

12 want to come in and do a very long power point and

13 just hit you with a fire hose. So we're going to just

14 take sips here and talk about these particular issues

15 that are in varying stages of drafting and discussion.

16 Also, you have your packet that was

17 given to you when you came in that has any of the

18 discussion drafts that -- it contains any discussion

19 draft that we have posted on the website now or has

20 been posted, and then also you have a copy of the

21 power point so you can follow along and take notes.

22 So that's how we're structured with this.

23 Again, you know, we'll follow and do

24 bits and pieces of the regs, but you're always welcome

25 to make statements as you need to. We'll be taking

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1 breaks and we'll be opening the floor for discussion

2 after we do some of the power point and open up the

3 floor for discussion after that.

4 So at this time, before we begin our

5 power point and opening up on group one, if there's

6 anyone that has some time sensitivity and needs to

7 make a statement on the record, we have scheduled time

8 for that right now if anyone needs to make their

9 statement or read a written statement. If not, do we

10 have anyone that needs to make a statement to the

11 record right now?

12 Okay. The other thing too, just so

13 you know, Mark Phillips has a microphone, so if

14 there's anyone in the back that needs to, you know,

15 make a statement or has questions throughout, we have

16 a mic runner. He is a working director. He's not

17 above running the mic and moving a chair. We were all

18 in here moving the chairs around this morning.

19 Okay. So at this time I'd like to

20 turn this over to Lael Echo-Hawk. She's been traffic

21 control on our reg review process, and we're going to

22 go through the first portion of our agenda on group

23 one and you'll see on the agenda which parts that

24 would cover. So Lael, if you could take it away.

25 MS. ECHO-HAWK: Good morning. As

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1 Chairwoman introduced me, my name is Lael Echo-Hawk,

2 and I'm a member of the Pawnee Nation of Oklahoma.

3 It's very nice to be here. And thank you very much

4 for the welcome, Chairman. I worked here for six and

5 a half years and it's a little bit like coming home,

6 so it's nice to be back in the Northwest.

7 As you can see in the agenda, the

8 morning is dedicated to group one. In your packet you

9 do have copies of discussion drafts and regulations

10 included in that group. Parts 514, which is fees, and

11 part 559 of the facility licensing regs, so those are

12 in your packets if you want to refer to them

13 throughout the presentation.

14 The first thing that we need to cover

15 is we just need to emphasize again that this is tribal

16 consultation. These meetings are between tribal

17 governments and federal government. Only tribes and

18 their designees can attend and participate in these

19 meetings and they are not open to the public.

20 If you do or you are a member of the

21 public and you would like to make a comment, you can

22 send in those comments to us through email, written

23 form, but at this time these meetings are between the

24 tribal government and the federal government.

25 These consultations follow along with

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1 the commission's commitment to the executive order

2 consultation in coordination with Indian tribes.

3 These consultations, particularly, also emphasize the

4 commission's commitment to talking with tribes before

5 they begin drafting, before they begin promulgating

6 rules.

7 Section C3 says that in determining

8 whether to establish federal standards, consult with

9 tribal officials as to the need for those standards,

10 and so that's a process that we're in here now. We're

11 talking with tribes before we begin the formal

12 rule-making process.

13 As the chairwoman discussed earlier,

14 we divided these groups of regulations into five

15 different groups. The number of the group does not --

16 has no bearing on the priority. It was just we looked

17 at subject matter, comments from the Notice of

18 Inquiry, estimated time and resources to review those

19 regulations. So we've had that question before and

20 the group numbers are just, that's just where they

21 fell out and it doesn't indicate priority.

22 There are three phases to this process

23 and we are in phase one today. It's the preliminary

24 drafting phase. Although you have seen two rules

25 written comments on the discussion draft at least

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1 closed, following a drafting period, there may be a

2 period of time for a Notice of Proposed Rule Making.

3 The commission has committed to having

4 a minimum of 60-day written comment period if we issue

5 a Notice of Proposed Rule Making. I've had that

6 question come up. So that's just for your information

7 that there will be at least a 60 day written comment

8 period for any Notice of Proposed Rule Making.

9 And then finally, if after the Notice

10 of Proposed Rule Making it's clear that we need to

11 have a notice of or we need to have a final rule, then

12 there's the final rule making, Notice of Final Rule

13 Making.

14 All these preliminary discussion

15 drafts that you see -- and we do have a number of them

16 in your packet -- are initial working drafts. All

17 these consultations are also transcribed, so when you

18 do speak, if you have comments, if you could please

19 state your name and the tribe that you're with or

20 representing, that's very helpful to us to make sure

21 that the transcripts are accurate.

22 Additionally, all the written comments

23 that are submitted and the written transcripts are

24 posted on the NIGC website. That's NIGC.gov, and if

25 you click the tribal consultation tab, you can find

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1 all this information.

2 The commitment by the commission has

3 been that every comment will be reviewed and

4 considered. I can speak from personal experience that

5 we've all looked at these. We've got binders we carry

6 around with us. We make sure that we stay up to speed

7 on the comments that you bring in, the staff does and

8 certainly the commission.

9 Any proposed or final rule will

10 include a summary of comments. We've seen that come

11 out with our Notice of Inquiry and in the Notice of

12 Regulatory Review agenda that we put out in April, and

13 the commission is committed to a clear and transparent

14 process. And so we're posting everything, we're

15 inviting everyone to speak, and we want to make sure

16 that everyone knows what's going on as we move

17 forward.

18 So the agenda today covers all five

19 groups and this is in your power point packet, so I'm

20 not going to go through all them. But today we're

21 going to be going through groups one, two and -- one,

22 two and four, and tomorrow we're going to be

23 discussing groups five and group three. So that's

24 just a sort of an index for you. That's in your

25 handout with a copy of the power point.

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1 So right now, this morning, we're

2 going to be going over group one, and that group

3 contains part 514, the fee regulation, which is in

4 your packet, part 523, review and approval of existing

5 ordinances or resolutions, part 542, minimum internal

6 control standards for Class III gaming, part 559,

7 facility license notification, renewals and

8 submissions, and then finally, potential buy Indian

9 regulation or policy.

10 Again, the two handouts that are in

11 your packet are parts 514 and part 559. So if you

12 look at part 514, this draft was posted in April, end

13 of April, and all of these regulations, draft

14 regulations, are on the website as well. If you don't

15 want to carry the packet home with you, you can always

16 find this information on the website.

17 The discussion draft makes a number of

18 changes. One of the changes that we heard and was

19 made was included in this draft was that basing the

20 fee calculation on the gaming operation's fiscal year

21 instead of a calendar year could provide for more

22 accurate fees calculations. That's included in the

23 draft.

24 The fee rate is now being -- the new

25 regulation would change the publication of the fee

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1 rate from February 1st to March 1st. This allows the

2 agency to get in all the fees, look at the audited

3 financials, and then make sure that the preliminary

4 rate that we set is as accurate as possible.

5 There's been some removal of

6 terminology that just doesn't really make sense.

7 Quarterly payments moving from a semi-annual payment

8 to -- back, actually, back to quarterly payments.

9 Some of you recall that the agency made the move to

10 semi-annual, and now we are going back to quarterly

11 payments. This doesn't prevent anyone from prepaying

12 or anything like that, but the statutory requirement

13 and now the regulatory requirement will be quarterly

14 payments.

15 We thought that some sections of the

16 regulations were not clear and so we clarified -- we

17 attempted to clarify those sections as we could. We

18 also added a notification period for when a gaming

19 operation changes their fiscal year.

20 One of the comments -- many, many

21 tribes commented on this new section, which proposes a

22 late payment or a late fee sort of ticketing system.

23 That's what we call it sort of in the agency, is

24 ticketing system for when a tribe submits their fee

25 statements or their audited financials with their fees

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1 late. So instead of having a Notice of Violation

2 issue if a gaming operation is late in submitting

3 their fees to us, this adds a layer of sort of

4 escalation, much like just a penalty you would receive

5 if you got a parking ticket, for example.

6 It makes a distinction between what a

7 late payment is and then what failure to pay your

8 annual fees are. That is the -- if you're interested

9 in looking at that, that's on page -- it begins on

10 page 4 and 5.

11 So if you fail -- if you're simply in

12 the late payment category, then you failed to pay your

13 fees between zero to 90 days, after 90 days, the

14 definition then says that failure to pay your annual

15 fees happens on the 92nd day and at that point the

16 chair could issue a Notice of Violation if she chose.

17 Some of the other comments that we've

18 heard from tribes is that we heard some comments on

19 what the percentage should be or what the dollar

20 amount should be if a tribe is late paying their fees.

21 It is something that we're interested in hearing

22 comments on. There are blanks left in the current

23 draft for those, what the potential late fee or fine

24 could be.

25 It also allows for an appeal of those

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1 assessments, and so that's something that if you had

2 comments on, we'd like to hear if you have any

3 questions.

4 We also added -- this is simply

5 formalizing what we do when the agency processes

6 fingerprints for tribes. It clarifies how we collect

7 them and that the fee will be published biannually on

8 the same dates as we publish the preliminary fee rate

9 and the annual fee rate.

10 So if we have some questions that are

11 included in the power point, just these are

12 terminology questions and we've heard that admission

13 fee doesn't really -- it's not what the industry

14 standard is; that we should change admission fee in

15 the regulation to entry fee and then perhaps put

16 terminant fees in as an example for an entry fee.

17 The terminology just didn't seem to

18 work for the industry and so we want to try and make

19 it more uniform so that it makes sense to the people

20 that are trying to calculate the fees. So if you had

21 comments on those, we'd like to hear that.

22 There's also been some discussion

23 about whether or not we should use the definition

24 gross gaming revenue, change it to a GAAP definition.

25 We've also heard that this may not -- we may not be

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1 able to do this because of the definition included in

2 the statute. We didn't make that change in this draft

3 because we sort of had comments all over the board.

4 One of the suggestions that came up,

5 though, is that instead of changing the definition for

6 gross gaming revenue, that we should consider defining

7 what a wager and a payout is and that might clarify

8 it, how to make the actual calculation as you're

9 completing your fees. So if you have comment on that,

10 we'd like to hear that. I know the operations people

11 in the finance offices might have some comment on

12 that.

13 So written comment on this draft

14 closed on May 31st. It was open for 30 days, but if

15 you have comments today, we'd like certainly to hear

16 them.

17 The 523 is what appears to be an

18 obsolete regulation and we're just wondering if the

19 part should be repealed. So far all the comments have

20 come in and have said yes, it's an obsolete reg.

21 MR. OSBORNE: Marvin Osborne. I'm

22 with the Shoshone-Bannock tribes. Before we go too

23 far, I just want to get a clarification. If you're

24 going to change the GAAP -- well, what's being

25 proposed, and if we're going to look at standards that

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1 we have to comply with with the general accounting

2 practices of the tribe involving federal agencies, it

3 always seems important to us that we be consistent

4 with our accounting practices and that's why the GAAP

5 -- we recommended that the GAAP be included in that.

6 If you're going to change it or

7 propose to change it, I'd suggest that you tell us

8 what and why are you proposing to change that system

9 to go back to another type of system or clarify what

10 you want to do, because then we could give our

11 accounting people and address that situation;

12 otherwise, you know, things are going to slip and go

13 through and it may not be what we want.

14 I don't know if it's on a case-by-case

15 basis or if it's every time. We'd like to be

16 consistent with the tribe, and that's a complication.

17 Just one more thing too. Enforcement,

18 back up on the enforcement issue. I didn't quite hear

19 whether or not the Colorado case was going to come to

20 a conclusion, if that was going to be addressed,

21 because we're talking about enforcement and if you're

22 going to set enforcement standards here or propose it,

23 you know, we'd like to have a clue so we can get off

24 on the right foot instead of waiting for things down

25 the way and say no, we haven't changed it.

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1 (Unintelligible.)

2 CHAIRWOMAN STEVENS: Thank you, sir,

3 for your comment. There was a lot of discussion

4 around GAAP internally, and the reason that GAAP came

5 up was because tribes suggested that we try to align

6 ourselves with GAAP. But I might defer to either Lael

7 or Jo-Ann about sort of the hurdles that GAAP creates.

8 I think there's varying definitions as that apply from

9 state to state. Is that the case?

10 MS. ECHO-HAWK: I'm sorry?

11 CHAIRWOMAN STEVENS: What were some of

12 the internal conversations about the issues

13 surrounding why or why we could not use GAAP?

14 MS. ECHO-HAWK: The main issue is that

15 the act defines gross gaming revenue in a specific

16 way. It's basically wagerless payout. That's less

17 than clear and it doesn't -- it has led, that

18 definition has led to some confusion in how you

19 calculate your fees.

20 Everyone sort of defines their pay or

21 wager differently. Some people define a payout

22 differently. Sometimes you include things in wager or

23 don't or forget to take some things out of the payout,

24 so that the calculation when it all comes together

25 it's incorrect.

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1 One of the suggestions internally was

2 maybe we go to GAAP. Then after we took a look at

3 that and began really evaluating what that would mean,

4 it would be different than what the statutory

5 definition is in the act and so the consensus sort of

6 as we were putting the draft together was, well, let's

7 not change it. It doesn't appear that a GAAP

8 definition, the new GAAP definition is going to meet

9 the act's requirement, but perhaps we can get at it a

10 different way.

11 Because what the goal was was to

12 provide some clarity in how you make these

13 calculations. It is a confusing process and we

14 actually have done like fee 101 calculation ourselves

15 in preparation for these meetings.

16 It's a complicated calculation to

17 make, certainly, when you are doing things such as

18 promotions and comps and all of those other kind of

19 things that maybe are included as the wager, but

20 shouldn't be included in the calculation of a payout,

21 you know, sort of wagering with the operation's money.

22 If you get, say, a match played, all

23 those sort of incidences that come up and then how do

24 you include or subtract them from the calculation of

25 the fees that come to the NIGC, which is how we got to

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1 let's leave this, leave the definition of GAAP alone,

2 use the statutory definition, and then perhaps we

3 should think about defining wager and payout.

4 So that was sort of the thought

5 process behind it and we're still sort of looking for

6 how we can assist tribes in making those calculations

7 accurately so we don't have to have fee audits. And

8 if there's some way we can do that at the agency, then

9 we'd certainly like to hear it.

10 CHAIRWOMAN STEVENS: Is there anything

11 more to add, Jo-Ann?

12 MS. SHYLOSKI: The only thing that I

13 wanted to add is that GAAP also changes, is

14 susceptible to change, and so incorporating it into

15 the definition would then create instability. When it

16 changes, then the definition would change.

17 CHAIRWOMAN STEVENS: So that's the

18 background on where we're at and why we're looking at

19 GAAP and why we're looking at another way around that,

20 to avoid the problem that may happen as a result of

21 applying GAAP by using definitions of wager and

22 payout. That might get us to where we need to go, and

23 we are certainly open to your comments on that.

24 With regard to Colorado River Indian

25 tribe, I assume you mean how Class III internal

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1 control standards are going to be managed? Yeah, we

2 have some enforcement regs that are up and I think

3 they're with regard to the appeal process. That's

4 really all we're looking at.

5 In terms of actual enforcement

6 regulations? Regarding Class III minimum internal

7 control standards, we'll be talking about that more

8 tomorrow, but we do want to hear about the tribes and

9 how they handle Class III, because it varies all

10 throughout the country.

11 We have tribes that have written us

12 into their ordinances to allow us Class III

13 enforcement. There are several tribes in southern

14 California, other tribes have them, our regulations,

15 Class III regulations, written into their compacts.

16 There are tribes as in Washington that don't need the

17 Class III, Class III minimum internal control

18 standards, because the state and the tribes already

19 worked out the minimum internal control standards and

20 there's not a need there, from what we understand.

21 So we would like to hear how Class

22 III, our Class III three-way regs work or don't work

23 for you or the need or no need. And then we'll also

24 be talking about how are we going to proceed with not

25 just Class III MICS, because really the question's on

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1 the table right now about that are leave them in

2 place, repeal them, revise them and promulgate them

3 again, although that presents a problem, because the

4 Colorado River Indian tribe decision basically said

5 that we don't have the authority under the statute to

6 enforce nor promulgate minimum internal control

7 standards for Class III.

8 So but then again, we don't want to do

9 -- we're trying to make sure that that area is as

10 covered as it needs to be, which, you know, depending

11 on which tribe and what area and what compact and what

12 ordinance you have, is going to differ. We don't want

13 to leave anybody behind. We don't want to upset apple

14 carts, and because we have so many differing needs out

15 there, we're counting on tribes to tell us what their

16 need is and also help us come up with a solution that

17 doesn't leave anybody behind. So we'll be talking

18 about that more later.

19 Also the possibility of we have a lot

20 of regs, as you've seen, that we're looking at. Some

21 of them are a little easier to do some clean-up work

22 on, things that we're talking about today. The Class

23 III MICS and the technical standards, Class III, Class

24 II and technical standards are some sort of hefty

25 topics, very detailed and specific controls and

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1 regulations.

2 And we've been hearing again and again

3 through this whole process since November the desire

4 for a tribal advisory committee to deal with those and

5 having those be on a separate parallel track, because

6 they're so work intensive and really address the

7 issues that have been lingering for a number of years.

8 It is our desire as a commission to bring some closure

9 to those.

10 I know all of you as regulators, you

11 know, the drafting, the finalization, the

12 implementation time for Class II, it's all been sort

13 of pending for years and that doesn't help your

14 operation, your facilities, your regulatory bodies.

15 It does not give certainty. We really want to bring

16 this to some closure.

17 So if we need to take those three kind

18 of hefty items and move them down a separate track

19 parallel to all these others that are really a little

20 easier to manage, we're getting really good feedback,

21 we're willing to do that. We're looking at other

22 options to make sure that we can address those, but

23 we'll be talking about that tomorrow and getting

24 thoughts. If you have thoughts about those as we

25 proceed, we're open to hearing those.

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1 I hope, Mr. Osborne, that that helped

2 clarify when we're going to get to the MICS. I think

3 that was the question around Colorado River Indian

4 tribe.

5 MR. OSBORNE: (Unintelligible) feel

6 like we're wasting our time and we had certainty.

7 CHAIRWOMAN STEVENS: Right. I agree

8 with you and I think the commission, we fully agree

9 with you, as having come from tribes ourselves, that

10 uncertainty makes it hard for you to do your job and

11 that doesn't help the industry and we do want to bring

12 it to some finality.

13 So with that, I'll have Lael continue

14 on. We were on the repeal of the prior to 1993, the

15 existing ordinances. We haven't heard anything but

16 just pull it back. It's not needed. So she'll

17 continue from here on 559 facility licensing.

18 MS. ECHO-HAWK: You should have 559 in

19 your packet. As you can see, we did strike a number

20 of the provisions. The Notice of Inquiry asked if we

21 should revise this part and we received a lot of

22 support. There was a significant concern about how

23 the part was adopted and perhaps we needed to open it

24 back up for consultation. There were comments about

25 what authority, questioning the authority the NIGC had

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1 over the Environmental Public Health and Safety issues

2 as well.

3 So we looked at the draft or we took a

4 look at the reg and we made some changes. We included

5 a change. The time frame that currently allows for

6 120 day notice fee NIGC and the facility license. We

7 changed that from a 60 day -- to a 60 day extension if

8 the chair, if the chair needs the extra time at her

9 discretion. It also includes a provision for

10 expediting the process when circumstances permit. And

11 this is all on the first page of the draft.

12 Newly issued or renewed licenses to be

13 sent to the NIGC within 30 days. An attestation that

14 says that the construction and maintenance of the

15 facility and operations conducted in a manner which

16 adequately protects environmental health and public

17 safety. This attestation replaces the requirement in

18 the previous reg that the tribes send in all this

19 information.

20 There was a lot of concern about the

21 information. That it was duplicative. That other

22 government agencies had it. Why do tribes have to

23 send it into the agency as well. So the new reg just

24 simply requires a certification attesting that that

25 construction is constructed in a manner that complies

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1 with IGRA.

2 We also included a provision that

3 notice to the NIGC be given within 30 days when the

4 license is terminated or expires or a facility closes

5 or reopens. One of the things that we ask in the --

6 well, we include in the regulation, and we left as a

7 blank, is if there's a seasonal closure, there's no

8 need to send in the Notice of Closure, but if it's a

9 temporary closure, for example, if someone's replacing

10 a roof or there's an entire remodel of the facility

11 going on and the tribe needs to close that operation

12 for X number of days, months, we're looking for some

13 input on how long should a temporary closure be before

14 a notice needs to be sent to the NIGC that the

15 operation is closed.

16 Obviously, we need to be aware of what

17 operations are running. Our enforcement, the region,

18 they need to know, you know, the facility is running

19 or if it's closed. But at what point, sort of what's

20 the trigger, and so that's why there's a blank left in

21 that particular section of the draft.

22 Written comment on that regulation

23 closed on June 17th, but if you have comments, we

24 would certainly love to hear them.

25 Finally, we were considering, and we

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1 still are thinking about internally, because it turned

2 out to be a little more difficult -- easier said than

3 done -- if you go through the official route of a buy

4 indian regulation much like the BIA or the IHS has.

5 So we're trying to figure out a way that the NIGC --

6 to require the NIGC to buy Indian when purchasing

7 goods, services and property.

8 It's certainly supported by the act

9 and it obviously is something that we've heard from

10 Indian country and that the commission coming from --

11 each of them coming from tribes recognize that it's

12 important to tribes that federal agencies be required

13 to purchase Indian, qualified Indian products and

14 contract with qualified Indian businesses when doing

15 business.

16 So something that we're thinking about

17 and we've heard general support of and if you have

18 ideas or thoughts on that, then we would also like to

19 hear them.

20 Finally, for group one, as the

21 chairwoman said, and I won't repeat in nauseating

22 detail, the question for Class III MICS, what do we do

23 with Class III MICS? How do we address it? This

24 impacts tribes differently across the country. You

25 have tribes that have written the NIGC MICS into their

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1 compacts and their ordinances and in fact all the

2 rights by law, the tribal law, the NIGC to enforce the

3 Class III MICS.

4 You have other tribes, a number of

5 them in Oklahoma, who reference Class III, the NIGC

6 Class III MICS in their compacts. How do we address

7 this sort of varying trend of Class III MICS and

8 regulatory authority and where should the commission

9 take action.

10 So it's something that the commission

11 is thinking about and we'd love to hear more comment

12 on it. I think the chairwoman sort of summarized how

13 we're thinking about it internally and we certainly

14 will talk about it more tomorrow as well.

15 We heard a lot of comment. These are

16 included in your packet and I won't go over them again

17 here because I think the chairwoman did that earlier.

18 So that's sort of the summary of group one and we are

19 -- I'll give it back to the chairwoman. The rest of

20 the morning is dedicated to these topics.

21 CHAIRWOMAN STEVENS: Thank you, Lael.

22 I want to thank everybody for patiently waiting as we

23 go through one portion of the power point. So those

24 are the topics that are up for discussion right now.

25 Certainly, again, I want to reemphasize if there's

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1 other topics that you're needing to discuss because of

2 your schedule, certainly do so.

3 If you have any questions about what

4 we've talked about so far or any of the drafts that

5 you have in front of you, please let us know. If you

6 have comments, please feel free to make them now.

7 We're basically going to open the floor for comments,

8 questions, any prepared statements. So we have an

9 open mic.

10 I do want to reemphasize, as the vice

11 chairwoman just reminded me, all the drafts that you

12 have right now are discussion drafts only. We've made

13 a concerted effort to make sure that that's on this

14 paper.

15 We're doing something that you may be

16 familiar with. The senate committee has done this in

17 the past. None of these have started to go into the

18 formal rule-making process yet. In an effort to

19 comply with Executive Order 13175, consultation

20 coordination with tribal governments, we want to get

21 your input before we start the rule-making process and

22 that's what has informed the draft that you have in

23 front of us is the number of consultations prior,

24 comments we've received prior to the issue of this

25 discussion draft only.

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1 So just a reminder these are not in

2 any official rule-making process at this time. We

3 want your input before we go into Notices of Proposed

4 Rule Making.

5 Jim Bob, you look like you have

6 something to say.

7 MR. ARMSTRONG: I do. I was reviewing

8 this facility license notification rule and

9 submissions, and the previous documents stipulated

10 that you could renew your license every three years or

11 had a requirement to renew every three years. When we

12 do a renewal, is there a time frame on when the tribe

13 has to renew a facility license? Number one, it looks

14 like it's geared for a new facility and not an old

15 facility. So I need a little clarification on that.

16 CHAIRWOMAN STEVENS: Thank you, James,

17 for your comment. I'm sorry. Do I sound like your

18 mother? We get a number of questions about that

19 particular area because of the current regulation that

20 does stipulate renewals and renewal time frames.

21 What this draft does is it defers to

22 the tribe and the tribals, the tribes, what the tribe

23 requires. That may be different, but we ask that when

24 there is a renewal, that you just let us know. So the

25 deference is to the tribe and what they set for their

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1 licensing. You just need to let us know. Then I'll

2 let Lael follow up.

3 MS. ECHO-HAWK: The old regulation

4 required a gaming operation to -- you could only have

5 a three-year facility license, basically. This

6 changes that. You can have a facility license for as

7 long as you have a facility license. You only need to

8 notify us if you close that facility license or if the

9 facility license expires and then is renewed.

10 The time frame, there is none. We

11 just need to know if you're open or if you're closed.

12 MR. ARMSTRONG: What we had done

13 earlier before is the old regulation we put a lifetime

14 expectancy on that license until that regulation came

15 into play. So that's what needed a clarification.

16 MS. ECHO-HAWK: This regulation would

17 allow for that.

18 CHAIRWOMAN STEVENS: Any more?

19 MR. ARMSTRONG: Yes. Now I'm going to

20 the annual fees and the licensing fees and the --

21 currently, you're going to change, let's say, the

22 fingerprint fees. Are you currently billing on a

23 monthly basis at this time or are you billing a

24 different standard at this time to enable this change

25 on a monthly basis?

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1 CHAIRWOMAN STEVENS: Are you talking

2 about fingerprints or the annual fee?

3 MR. ARMSTRONG: Fingerprints.

4 CHAIRWOMAN STEVENS: I think

5 fingerprints are based on when tribes submit. When do

6 we have them pay? It's monthly now, for the tribes

7 that have us do that work.

8 MR. ARMSTRONG: And previously they

9 would accept a bulk payment at the beginning of the

10 year and work it down from there. So maybe you could

11 have some language in there that we could make an

12 annual bulk payment at the start of the year and work

13 it down so that and find the balance at the end of the

14 year.

15 For example, give me $30,000 at the

16 beginning of the year and you just deduct from that as

17 we go throughout the year and if we go over or under,

18 we still have money in the bank.

19 CHAIRWOMAN STEVENS: Okay. We can

20 check with our comptroller on that and we appreciate

21 that. I don't know that we've heard that response

22 yet, but we would need to make sure that we can still

23 do that and that we have mechanisms in place

24 internally so that if you're over or short, that we

25 have mechanisms to either send the money back or get

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1 more money if the fees are greater than what you've

2 paid.

3 MR. OSBORNE: (Inaudible.)

4 MS. ECHO-HAWK: This section was only

5 meant to formalize what we currently do. So it

6 doesn't make any changes. We just wanted to put it

7 out if there was nothing on the regulation that

8 explained how that works and so that was what we were

9 trying to do here.

10 MR. ARMSTRONG: And I think that we

11 could have language added to that where it's at the

12 beginning of the year the tribes could pay in bulk and

13 then you can credit it out to the next year if you

14 have to. Talk to your accountant or to your

15 comptroller what you can do.

16 MS. HELM: I think what Jim Bob is

17 referring to is what we do at Port Gamble is periodic

18 $600 deposits. So we'll use up the $600, then we send

19 in another $600 deposit.

20 CHAIRWOMAN STEVENS: Do we have any

21 other questions? Yes? No. If you could state your

22 name for the record.

23 MR. WHEAT: Scott Wheat.

24 CHAIRWOMAN STEVENS: Maybe can you

25 bring the mic over a little bit?

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1 MR. WHEAT: Are you recording this or

2 is it because I'm not loud enough?

3 CHAIRWOMAN STEVENS: No. I know

4 you're loud enough. This is for the

5 transcriptionist's sake. I just want to remind

6 everybody, if you can speak into a microphone and

7 state your name and who you're with for the record,

8 that would be great. Thanks.

9 MR. WHEAT: Again, Scott Wheat,

10 attorney with the Spokane tribe. I just want to

11 commend the commission. You probably have been

12 getting these accolades, but facility licensing was a

13 very long, difficult struggle with, you know, your

14 predecessor, and most tribes, including every tribe we

15 represent, was vehemently opposed to those

16 regulations.

17 That is a C change, and I say, you

18 know, bravo to the commission for considering going

19 this route. It was an unnecessary intrusion and an

20 attempt to vault the NIGC from a well-defined, limited

21 role in tribal gaming into this all-inclusive

22 expansive role of tribal governments in which you're

23 theoretically reviewing, you know, Occupational Health

24 and Safety regulations, environmental regulations and

25 on and on and on and on.

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1 As you know, the comments were

2 universally opposed to these regulations in Indian

3 country. So I just want to thank the commission for

4 stepping up, hearing our concerns and erring what I

5 think we all believe to be a significant error of the

6 predecessors. So thank you.

7 CHAIRWOMAN STEVENS: Thanks, Scott,

8 for that comment. We would like to -- and many of the

9 comments that we've received during this process, many

10 tribes explained to us what other federal agency, what

11 other agreement they had with a state or local

12 government or what they had in their own tribal law

13 that covered many of the areas that you mentioned on

14 public health, safety, environmental, and that it was

15 duplicative.

16 Duplicative meaning also costing

17 tribes more money and also creating some confusion as

18 well about, you know, which federal agency am I

19 supposed to be, you know, complying with.

20 So we welcome any tribal comments on

21 the record or in your written comment detailing to us

22 or, you know, clarifying to us how it is that you all

23 covered those areas in whatever manner that you do.

24 We know Indian health is out there. We know some

25 compacts have -- some state compacts require

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1 compliance with some state laws. We know that there

2 are memorandums of agreement with local agencies. We

3 know OSHA's out there. We know labor's out there. So

4 feel free to let us know for the record, you know, how

5 these things are covered.

6 MR. WHEAT: And if I could move on to

7 maybe a little bit more difficult issue, the Class III

8 MICS. As I understand, this is the time to comment on

9 that.

10 CHAIRWOMAN STEVENS: If you need to

11 because of your time constraints, feel free to, yes.

12 MR. WHEAT: Well, maybe a point of

13 clarification then. As I read the agenda, the group

14 one discussions where --

15 CHAIRWOMAN STEVENS: Yes, you're

16 right.

17 MR. WHEAT: Okay. So I think I can,

18 you know, from many tribes here in Washington, you

19 know, I'm going to speak for Spokane, but I've got a

20 feeling that you're going to hear some similar views

21 on this.

22 The Spokane tribe litigated in print

23 from the ground up. We spent a lot of time presenting

24 those arguments, which ultimately the federal courts

25 agreed with us on, that the NIGC just simply does not

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1 have authority to enforce Class III MICS, period, and

2 I think as you know, and certainly as your lawyers

3 know, the whole administration, you know, back to the

4 well, to the DC circuit court a couple times, trying

5 to say, well, you know, you said we couldn't, you

6 know, have MICS authority this way, how about this

7 way, and the court basically said, you know, what part

8 of no do you not understand.

9 So as a matter of law, you just simply

10 don't have the authority to be doing it. So the first

11 preference of the Spokane tribe is to just get out of

12 the business of promulgating Class III MICS. We

13 believe that that is the correct legal answer.

14 Now, we also understand that this is

15 just, you know, more than technical legal issues in

16 play here. There are tribes in other states that

17 have, you know, kind of put themselves, I should say,

18 with all due respect, in a very tenuous position.

19 We have known in Indian country for

20 years that the authority of the NIGC to found a Class

21 III MICS was in serious question. CRIT has been

22 litigated for many years throughout the administrative

23 level and on up and the tribes prevail.

24 So to the extent that folks knowing

25 that risk made deals with the state, I don't quite

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1 understand why that puts the NIGC in the bind to carry

2 the water for what was ultimately a bad decision. I

3 think part of, you know, self-determination is also,

4 you know, the responsibility that comes with cleaning

5 up after a bad decision. We all make our mistakes.

6 That being said, you know, I don't

7 mean to offend those tribes that are stuck, but the

8 position of Spokane is that that shouldn't be

9 Spokane's problem and it's not the NIGC's authority to

10 take on the problem.

11 That being said, I think the other

12 concern -- and this is more of a pragmatic policy

13 concern, and it's no less poignant -- is that if the

14 NIGC is inclined, legal issues aside, to continue

15 promulgating these MICS, whether you call them

16 guidelines or regulations, it doesn't matter, you're

17 still spending staff money and time to promulgate.

18 The courts don't care what you call

19 them, because they don't think you have the authority

20 to promulgate them in the first place. But if you're

21 going to continue to do that on behalf of those

22 limited number of tribes who are in need of those MICS

23 due to obligations in their compacts, then the rest of

24 us shouldn't have to pay for them, period.

25 So if those tribes and the NIGC, you

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1 know, I think that's something Spokane could probably,

2 you know, understand and accept. It wouldn't be their

3 first preference on this issue, but it would certainly

4 be, you know, a strong preference to kind of soak in

5 the rest of the tribes with that expense of the NIGC

6 having to promulgate those and update them.

7 It should be a, you know, pay to play

8 kind of thing for those tribes who are committed. So

9 I think that wraps up our comments on that issue.

10 Thank you.

11 CHAIRWOMAN STEVENS: Thank you, Scott.

12 Yes, sir.

13 MR. HARRIS: Robert Harris, eastern

14 Shoshone. This particular area is a primary concern

15 to Eastern Shoshone. The Eastern Shoshone tribe

16 recognize that the internal control standards are

17 extremely important to the Indian gaming industry and

18 more particularly to our tribal gaming due to its

19 intent to provide the protection of tribal assets as

20 well as providing for the integrity of the tribe's

21 gaming operations.

22 In addition, the Eastern Shoshone

23 recognizes the need for consistency in the auditing

24 process of internal control standards in the Indian

25 gaming operation.

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1 Experience has shown that many tribes

2 that offer Class III gaming have used the NIGC's

3 bulletins as clear direction to follow certain

4 guidelines and have used said bulletins as primary

5 guidelines for purposes of regulating Indian gaming.

6 Eastern Shoshone believes that tribes

7 that offer gaming are just as technically

8 knowledgeable and professional as most non-Indian

9 gaming commercial entities and are aware that if they

10 did not develop and institute their own tribal

11 internal control standards that they would in effect

12 be opening itself up to illegal activity.

13 Eastern Shoshone looks to industry

14 standards in the gaming area and if is it does not

15 have the expertise or technical ability in certain

16 gaming areas, it retains the expertise to carry out

17 what is needed to protect its gaming operation for the

18 benefit of its tribal members.

19 It is our tribe's belief that it

20 performs the due diligence required in relation to

21 following industry standards, whether or not a

22 regulation requires it. Should part 542 Class III

23 MICS be eliminated and replaced with guidelines, it is

24 Eastern Shoshone's opinion that the tribes will

25 continue to institute industry standard internal

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1 controls in the area of Class III.

2 As to those tribes who have

3 incorporated 542 Class III MICS in the ordinance or it

4 is a part of their compact, there may be resulting

5 challenges, but we believe that most tribes have

6 appropriate internal controls in place and that the

7 internal control guidelines would be used to supplant

8 what is in previously adopted ordinances.

9 In summary, Eastern Shoshone would

10 recommend that said internal control standards be

11 issued as guidelines and that they would be provided

12 to the tribes in a bulletin format and be updated on a

13 regular basis as technology changes. Technology is

14 change so quickly that a government notice and

15 rule-making process is not only too slow to keep up

16 with the said changes, but may be prove to be more

17 costly in the long run. Possibly internal control

18 standards could be addressed in recommended changes to

19 tribal ordinances.

20 CHAIRWOMAN STEVENS: Thank you, sir.

21 Feel free, if you'd like, if you want to give us a

22 copy of your statement so that we are certain that we

23 are accurate, that would be helpful.

24 We're up for break right now. Any

25 other comments? We'll take one more right back here.

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1 Come right up. Have a seat. After this comment we'll

2 go ahead and take a break.

3 MR. MILHULLEN: Thank you very much.

4 Elliott Milhullen. I'm here on behalf of Seminole

5 tribe of Florida. I have one, I'd like to echo the

6 comments of Mr. Wheat applauding the NIGC for the

7 revisions it's made to the facility licensing

8 regulations. Those are regulations which the tribe

9 also, like many across the country, adamantly opposed

10 for their unnecessary intrusion into areas which are

11 not within the NIGC's purview.

12 We do have one question regarding a

13 new section that has been proposed through these

14 regulations, and the tribe has already submitted

15 comments on this regard and we wondered if we might

16 perhaps get some feedback from the NIGC. 559.2 B

17 suggests that there is a process that the NIGC will

18 follow in verifying any land status, as well as a

19 procedure in which once the status is verified the

20 chair shall notify the tribe.

21 The concern is that this provision

22 could be interpreted as requiring an Indian land

23 status determination or that there's a process for

24 making such a determination prior to some sort of

25 approval of the facility license. The IGRA of

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1 coursing recognizes the role of tribes as the primary

2 regulators of Indian gaming and recognizes that tribes

3 are the ones with the authority to issue the licenses

4 and does not provide a mechanism for NIGC to approve

5 of them.

6 So we wondered if we might get a

7 little bit of clarification as to the intent of this

8 provision and hopefully confirmation of the

9 interpretation or the potential interpretation I just

10 mentioned is incorrect.

11 CHAIRWOMAN STEVENS: I'm going to look

12 at Lael or Jo-Ann. I think primarily, you know, one

13 of our responsibilities under the act is to ensure

14 that gaming is taking place on eligible Indian land

15 and ensuring that that happens preferably before a

16 facility opens, because that causes all sorts of

17 problems, and we've seen in the not too distant past

18 in verifying that the land is in fact eligible for

19 gaming.

20 MR. MILHULLEN: Let me just add one

21 more point, which is that of course the NIGC has the

22 discretion to make that determination on a

23 case-by-case basis, but our concern is that this new

24 regulation might suggest that you are somehow tying

25 your hands and requiring yourselves to do that in

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1 every case.

2 MS. SHYLOSKI: Well, we certainly

3 appreciate your comments and the commission is well

4 aware of the Ninth Circuit's ruling in the North

5 County case, which held that general ordinances that

6 aren't site specific do not require Indian land's

7 determination. So again, thank you for your comments.

8 CHAIRWOMAN STEVENS: Lael.

9 MS. ECHO-HAWK: One of the comments I

10 received very extensively when we put out the Notice

11 of Inquiry, and we've seen even now, is that tribes

12 were concerned about the 120 days. In the current reg

13 there's 120 day requirement or the tribe has to send

14 in their facility license to the NIGC within 120 days.

15 Now, there's no nothing sort of

16 following that, no action indicating the reg that the

17 chair needs to take, but the 120 days was concerning

18 to tribes. So what that section attempted to do was

19 to tell the NIGC to move it along. If you're

20 conducting these reviews to go ahead and hurry that

21 up. We included a provision for expediting that.

22 We may have framed it incorrectly and

23 so if you have -- if you have some suggestions on

24 language, we'd like to hear that. But that was the

25 intent of that particular section and we do hear your

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1 concerns and appreciate the commenting. If you have

2 observations or suggestions on how to work that issue

3 out, then we'd like to hear it.

4 CHAIRWOMAN STEVENS: So we've been in

5 here for about an hour and 15 minutes. Let's take a

6 15 minute break, get up and stretch, return those

7 phone calls. We'll be back in 15 minutes. Thank you.

8 (Recess taken.)

9 CHAIRWOMAN STEVENS: Let's open the

10 floor back up for any questions or comments. Yes,

11 sir.

12 MR. HARRIS: I'd like to make a

13 comment on facility license, commissions and renewals.

14 The revised language of the facility license

15 regulation provides the tribal gaming commissions and

16 regulatory agencies the ability to exercise their

17 front line regulatory responsibilities in regard to

18 facility licensing and that we believe was the

19 original intent of the Indian Gaming Regulatory Act at

20 25 USC 2701(5), which states, Indian tribes have the

21 exclusive right to regulate gaming activity on Indian

22 lands if the gaming activity is not specifically

23 prohibited by federal law and is conducted within a

24 state which does not, as a matter of criminal law and

25 public policy, prohibits such gaming activity.

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1 Thank you for this opportunity. If

2 you have questions please contact the Eastern Shoshone

3 Gaming Commission.

4 CHAIRWOMAN STEVENS: Thank you, sir.

5 Any other questions or comments about fees, facility

6 licensing, buy Indian? What we might do, which we've

7 had some relative success with, is do you have a copy

8 of this, any of the drafts that we can put up and we

9 can start asking specific questions? I know everyone

10 has a copy, but it's helpful to have it up here so

11 that we're talking about a section.

12 So some general questions that we do

13 have. We're not hearing much back about changing it

14 back to quarterly payments. That's just something

15 that we've heard tribes say that that's been helpful

16 to them to have it quarterly, as they pay a number of

17 things quarterly. We have a variety of tribes.

18 Sometimes tribes pay us in advance, you know, once a

19 year in full.

20 We certainly accept those, but, you

21 know, we wanted to put in place what the minimum

22 requirement is. And so if you have any comments on

23 going from semi-annual to quarterly, just to give you

24 some background on that, and I know Lael will brief

25 you in the power point, but it's really to help us.

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1 It makes more sense for us and we don't really know

2 why we went to semi-annual prior to our arrival, but

3 it has been havoc making at our office and it works

4 better this way.

5 And also, we want to know and so far

6 we've been getting really good feedback, positive,

7 supportive feedback on going to based on the tribe's

8 fiscal year as opposed to a calendar year. That's

9 where we see the greatest number of fee audits and

10 problems with assessing fees, if your fiscal year is

11 different than calendar year.

12 And really, what this does is helps

13 us. If tribes are turning into us their financially

14 audited statements for their fiscal year, then we can

15 base their fees on that and we don't have to do the

16 extra leg work and you don't have to do the extra leg

17 work to calculate a separate calendar year for your

18 fees and that was meant, really, to make it easier for

19 tribes.

20 Yes, sir.

21 MR. OSBORNE: Well, I think you have a

22 preliminary fee and so a lot of the tribes will work

23 that preliminary fee based upon the audit because ours

24 is a fiscal year, but then in the spring they'll have

25 the final fee rate and that final fee rate, you know,

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1 could adjust the difference between the preliminary

2 and the final.

3 So we end up having problems with

4 overpayment or a credit, and, according to your

5 regulations and stuff, that should be applied to your

6 next year's fee, but in our situation it's almost like

7 it starts all over again in your assessment.

8 Preliminary, again, you go back in your final fee.

9 It's almost like the previous amounts are not

10 documented and released to us. That last year's fee

11 is overpayment; therefore, we're applying it to your

12 next fiscal year or your next year's fee adjustment.

13 CHAIRWOMAN STEVENS: Well, thank you

14 for your comment. One thing that's of a concern to me

15 and I've written down and I want to check to see what

16 happened. It is a concern that you're not getting

17 your credit, so we'll be getting ahold of our finance

18 people and asking, really, sort of -- we'll follow up

19 with you on that.

20 MR. OSBORNE: It did get resolved, but

21 we still have a lot of paperwork to do.

22 CHAIRWOMAN STEVENS: We'll follow up

23 specifically for your tribe. But one of the things on

24 I think it's line 7 and 8 there, it says number two.

25 We moved from making our preliminary fee from February

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1 1st to March 1st, so that we have -- we're more

2 accurate when we do the final fee rate later in the

3 year.

4 We were not getting some statements.

5 We didn't have enough time from the time statements

6 were coming in and February 1st to get a good

7 understanding of what the fee needed to be, and so we

8 gave ourselves an extra month so that we can be more

9 accurate and then we set the fee rate sooner rather

10 than July 1st. June 1st, so that you all have more

11 time and we're clearer.

12 Like this year, we didn't adjust the

13 fee. Our goal is not to have to adjust the fee when

14 it goes final, because we know how disruptive that is.

15 It's disruptive to us. It's disruptive to you. So if

16 we can get it right in the preliminary, that's what we

17 would prefer.

18 If the numbers come in and we're

19 seeing a decrease in the industry, then we need to

20 know that, but we're implementing, you know, something

21 like this and other things internally that help us be

22 more accurate about predicting the revenue in Indian

23 country.

24 One other portion of this I think we

25 need to talk about --

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1 MR. SMALL: Excuse me. I have a

2 question, and maybe it's probably already been

3 answered and discussed prior to, kind of like the one

4 from a while back. But why is it that you're imposing

5 fee from Class III gaming activities, when we really

6 don't have any regulatory over Class III games? I can

7 understand Class II, but why is Class III now being

8 considered or is considered now a fee the tribes could

9 take?

10 It's my understanding that the fees to

11 be paid is to help regulate the activity, gaming

12 activity. So if you don't have any like regulatory

13 over Class III, why are you charging fees for that?

14 CHAIRWOMAN STEVENS: I'm going to look

15 at Jo-Ann on this one. I think there's some statutory

16 language and, if not, there are a number of other

17 things that we do outside of minimum internal control

18 standards enforcement around Class III.

19 MS. SHYLOSKI: Yes. The act gives our

20 agency quite a bit of authority in terms of Class III

21 gaming in terms of approving Class III gaming

22 ordinances, approving Class III management contracts.

23 The chair also has the authority to enforce any of the

24 provisions in the act.

25 So there are quite a bit of other

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1 authorities that the chair possesses having to do with

2 Class III that don't have to do with the Colorado

3 River Indian tribe's case, which was focused on

4 minimum internal controls, Class III minimum internal

5 control standards.

6 CHAIRWOMAN STEVENS: And they've

7 always been part of the fee, correct?

8 MR. SMALL: No. When the fees first

9 came out, there was no fees concerning Class III

10 originally. Like I said, I don't know when that came

11 into effect. Just maybe out of my own personal

12 knowledge I don't know when that happened and why it

13 happened.

14 CHAIRWOMAN STEVENS: We can look into

15 it and get back to you.

16 MR. SMALL: I'm sorry. My name is

17 Nathan Small. I'm with the Shoshone-Bannock tribes.

18 CHAIRWOMAN STEVENS: Thank you.

19 MR. SMALL: One more thing, not

20 necessarily to do with the fees. The licensing and

21 facilities. I know there was a lot of issues about

22 the off reservation gaming and before that could

23 happen there was the land had to be put into your

24 trust. What about fee land within the boundaries of

25 the reservation or in seeded lands that were

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1 originally found (inaudible) that are still in fee but

2 are under ownership of the tribes? Is that a place

3 that can be licensed as long as it's in the name of

4 the tribes?

5 MS. SHYLOSKI: If your question is

6 whether fee lands are within -- that are within a

7 current day, present reservation, whether they

8 constitute Indian lands under IGRA, the answer is yes.

9 MR. SMALL: What about seeded lands

10 for the tribe that has retaining a lot of rights

11 within the areas that were originally a part of the

12 reservation but due to other mistakes of the United

13 States, you lost that land? Can you still retain a

14 lot of the rights in the area and repurchase land or

15 land was given back to the tribe? I'm wondering the

16 status of that. Could that be a licensed facility if

17 the tribe decides to build there?

18 MS. SHYLOSKI: Are you talking about

19 lands within a current day reservation?

20 MR. SMALL: No. Lands that were past

21 but were seeded out.

22 MS. SHYLOSKI: That's a more

23 complicated analysis.

24 CHAIRWOMAN STEVENS: We would probably

25 take that by a case-by-case basis. We do have tribes,

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1 when they have those kinds of questions, talk to our

2 Office of General Counsel. We do operate under a

3 memorandum of understanding with the Department of

4 Interiors Solicitor's Office to help us with those

5 Indian land determinations for complicated land

6 questions such as this.

7 So if there is a question for your

8 tribe, I think that we would work with you on that

9 separate and apart from our reg review.

10 MR. SMALL: Thank you.

11 CHAIRWOMAN STEVENS: The other part, I

12 think, this is the percentage and how much, I think

13 it's on page 5 on fees. Page 5, we're at line 13

14 through 20. As Lael has stated, rather than going

15 straight to a Notice of Violation, which there are a

16 number, especially in 2009, a number of NOVs issued

17 from the NIGC for late fee payments, late fees, we

18 were looking at something, as you see starting at line

19 13, in a 30, 60, 90 day time frame.

20 In the blanks you see a dollar sign

21 and a percentage. Should we be applying just a hard

22 dollar amount for 30 day, 60 days, 90 days, or a

23 percentage based on what their fee would have been?

24 We are hearing a number of comments back about this.

25 So that it would be elevated and escalate as time goes

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1 by.

2 And I will share, in the absence of

3 any comments on this, the feedback we have received --

4 and correct me if I'm wrong, Lael -- most tribes want

5 a percentage, because it seems like it would be fair,

6 based on the size of their operation. You know, a

7 flat fee might be quite a bit for one very small

8 operation and really nothing for a very large

9 operation and percentage base would more accurately

10 and fairly assess a late fee based on how big or small

11 their operation is.

12 Are there other parts of the fee reg

13 that we were looking for some answers? Okay.

14 MR. ARMSTRONG: For the record, James

15 Armstrong, Snoqualmie Tribal Gaming Commission. I'm

16 looking at section -- or on page 1, it says line

17 number three, we're establishing the amount of the

18 annual fees and could you please define the operations

19 audited financial statements? More of a clarification

20 and not a question. Is that the one that's due 1st of

21 May?

22 CHAIRWOMAN STEVENS: Yes. Whenever,

23 yeah, and then it would be based on -- wouldn't it be

24 based on the fiscal year instead?

25 MR. ARMSTRONG: So up on line 7 and 8

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1 is where you made the adjustments, so you have a

2 chance to review the audited financial statements

3 before making a determination on the amount of fees?

4 CHAIRWOMAN STEVENS: Yes.

5 MR. ARMSTRONG: Thank you.

6 MR. OSBORNE: Madam Chair, could I get

7 a clarification? Do you want the accounting

8 (inaudible) that are regulatory and try to stay within

9 the acts or do you want to see some different ideas

10 and methods that would be more comfortable? Because,

11 you know, I'm hearing two things. I can get back with

12 my staff and we can do a lot of accounting details

13 into what, you know, these things mean to us, but then

14 I'm hearing also we've got to comply with this act and

15 it's more favorable toward the act. So can I hear

16 something to make that more clear to me?

17 CHAIRWOMAN STEVENS: Well, I think

18 that's the desire of this and really are mandated to

19 stay within the bounds of the act and so we do use

20 that as a guide. If there are some ideas that you

21 have that help us do that or, you know, what we're

22 proposing is not going to be helpful to you, we'd like

23 to know.

24 On the fees in particular, we find

25 that a number of tribes, the regulators go to their

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1 finance department or their comptroller or their CFO

2 and say what would this mean for us. So far what

3 we're hearing is this is actually going to be helpful

4 and makes it easier for tribes to assess their fees,

5 turn their fees in, and know with some, you know,

6 certainty or relevant certainty.

7 When the preliminary rate is set,

8 we're going to be more accurate, which helps them plan

9 and budget. So I would certainly encourage folks to

10 talk to their finance people who pay your fees for you

11 to see if this works for them, or any suggestions if

12 it doesn't or if we're missing something.

13 If there's no more on fees. One thing

14 that we haven't talked about yet, and I want to give

15 -- oh, yes.

16 MR. ARMSTRONG: Again, in this draft

17 here, we'll go back to your line items on page 5, 13,

18 15 and 17 and 19, where you have the percentile in

19 there. So when you write this up, you will have an

20 established percentile in here or will it vary

21 throughout?

22 I mean, I understand the reason behind

23 the smaller establishment and a larger establishment,

24 so that allows you to fluctuate that percentage. I

25 understand that, but I believe when (inaudible) and

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1 understanding of the rules and so what I'm thinking is

2 that based on knowledge that this percentage should

3 remain the same for everybody throughout.

4 CHAIRWOMAN STEVENS: I think that's

5 what we intended and we probably should have clarified

6 that. If we put a percentage in there, it's a

7 percentage for everybody, regardless of how much their

8 fees are, how big, because then it becomes fairer. So

9 if you're a tribe that only pays $61 a year in fees,

10 the percentage is applied to that. If you're a tribe

11 that pays hundreds of thousands, it's applied. It's

12 across the board.

13 As with other areas of all of our

14 lives, late payments are discouraged, and the later

15 you are the more penalty there is and so that's what

16 we're looking at. So we should have been clear that,

17 yes, we would just set a percentage if a percentage is

18 the way that we go and it applies to everybody across

19 the board.

20 So if there are no more comments on

21 fees, one thing we haven't really talked about yet is

22 the buy Indian act. I haven't heard any comments on

23 that. We don't have a draft for that. It's not an

24 existing regulation. It's not an existing policy and

25 I want to clarify right off the bat that this is

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1 intended to impose the purchase of goods and services

2 from Indian-owned businesses on the NIGC when we do

3 procurement, when we buy supplies, when we travel, on

4 us.

5 We're not trying to impose this on

6 tribes. I want to make that clear on the outset.

7 We've had some folks interpret this discussion to mean

8 that we're trying to impose it on tribes. It's not at

9 all what we're trying to do. Because we only serve

10 Indian country, we're funded by Indian country, as is

11 the case with BIA and IHS, we should be making an

12 effort to purchase our goods from Indian country,

13 whether that's conference room space, whether that's,

14 you know, any services we might need to move our

15 office, you know, whatever services we might need to

16 procure, the NIGC should endeavor to buy Indian.

17 Now, we hear different things about

18 how to address this. I think we have a mixed bag of

19 doing a reg, doing an internal policy. The thing

20 about the buy Indian is that the way that it's

21 written, you know, I would have to have the secretary

22 grant me the authority to institute buy Indian and

23 that would -- you know, I haven't really looked to see

24 what kind of effort that would take in order to

25 institute buy Indian.

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1 We've looked at the BIA regulations.

2 We looked at the IHS regulations. We actually worked

3 through the Department of Interior, because we are

4 within the Department of Interior. So we use the

5 national business center's procurement operations when

6 we procure goods and services and they are already

7 schooled in applying the buy Indian act for the BIA.

8 So we would welcome thoughts from you

9 on whether we should do this and if there's a

10 preference. There's also the supporting language

11 under IGRA that gives the authority to procure goods

12 to the commission and to the chair. That would also

13 allow us to do that. So we'd like to hear any

14 comments on that.

15 MR. OSBORNE: Madam Chair, does that

16 mean developing a procurement method, limitations on

17 how much you want businesses to get more active and

18 involved? We have a vendor licensing that we've

19 established that could play a part, but, you know, I

20 guess it's discretionary. If you want to dig in

21 deeper to buy Indian act and our Indian preference

22 issue, that the BIA or IHS, I mean, they get pretty

23 off the wall.

24 CHAIRWOMAN STEVENS: We would have to

25 have a procurement process. We have one right now

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1 that exists under the Department of Interior and we're

2 bound by those federal processes now. They're not

3 necessarily the processes that they use for the buy

4 Indian. So certainly we would need that and there

5 would probably be thresholds that would have to be

6 written into, you know, a reg or a policy.

7 Do any tribes have entities,

8 Indian-owned entities? Have you had any experiences

9 with federal agencies on procuring Indian?

10 MR. OSBORNE: The Tribal Employment

11 Rights program, TERO, has a lot of -- usually have a

12 list of the Indian-owned businesses. For us to

13 establish a gaming license and come on a premise,

14 things of that nature, we'd almost have to have, you

15 know, a fairly good background or even a policy that

16 we have to abide by and make sure that whatever they

17 procure in general with the licensing to come on the

18 premises, but there is a lot of practices done with

19 TERO, that kind of comply and meet IHS and BIA

20 standards.

21 CHAIRWOMAN STEVENS: Thank you. Any

22 other thoughts on this? Maybe if we want to just --

23 do you want to talk about any specific questions on

24 facility licensing? We've heard some comments. I

25 might, if I may, have the other commissioners, because

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1 I think you may all be getting tired of me and I'm

2 starting to lose my voice, maybe prompt some questions

3 under facility licensing questions that we need to

4 examine.

5 VICE CHAIR COCHRAN: Well, I know that

6 there were some comments earlier favoring the proposed

7 revisions that are included in this draft, and I guess

8 we can pick up from there. This isn't an absolute

9 attempt to what the Chairwoman has talked about over

10 and over again, which is to make sure that this agency

11 is operating within the purviews of what we're allowed

12 us to do.

13 One of the things that we attempted to

14 do in this is to recognize the inherent right of

15 tribes to license their facilities and to bring those

16 down to a manageable system that will take out the

17 duplicity and also keep us within our lane in terms of

18 IGRA.

19 In 559.2, we did reduce the amount of

20 days from 120 to 60 days notice before opening the

21 facility. And again, that was an attempt to recognize

22 that tribes needed that time, that additional time to

23 get notice to us. And part of the overall objective

24 of the section, as you know, is who to provide

25 information to the commission which will help us

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1 verify the land status.

2 I know that Scott had some comments

3 about the revisions that we made in subsection B of

4 this and I'm going to open it up, because if there are

5 follow-up thoughts to that or if we have similar

6 comments or differing views, we'd like to hear from

7 you on how this is worded and if you have ideas that

8 you want to offer on revisions to it.

9 MS. VYVYAN: Dawn Vyvyan on behalf of

10 the Yakama Nation. In reference to 559.2, sub B, one

11 of the questions I have about the first sentence that

12 qualifies the expedited process for verifying Indian

13 land status, you have the words circumstance permits,

14 and I think the sentence may be a little awkward. I

15 had to read it a few times to see what circumstance

16 permits was qualifying, but it looks like whether or

17 not you can meet that expedited process. Is that

18 correct?

19 VICE CHAIR COCHRAN: Correct.

20 MS. VYVYAN: Then if you could spell

21 out what those circumstances might be so that we can

22 get better clarification about what that -- what may

23 occur where you would not be able to meet that 60 day

24 verification process. So in other words, what does

25 circumstance permits mean?

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1 VICE CHAIR COCHRAN: That's a good

2 observation. Thank you.

3 MS. ECHO-HAWK: The intent of that

4 was, well, like we mentioned earlier, that the intent

5 of this section was to basically put some time frames

6 on the agency to respond to tribes when they send in

7 the facility license. Sort of what has happened is

8 that when a facility license has come in, the agencies

9 use that as the trigger to start looking at the land

10 status and making a determination.

11 Now, as Jo-Ann mentioned earlier,

12 that's not a requirement, and so I think what Elliott

13 was referring to also earlier was that there is no

14 such requirement, that are we creating a new

15 requirement and thus a new process.

16 The phrase when circumstance permits

17 was intended to mean, you know, if someone is building

18 a facility or putting a facility in the middle of a

19 reservation where it's very clear what the status of

20 that land is, then under those circumstances the chair

21 would respond more quickly. If there was additional

22 time that was needed to look at the status of the

23 land, which, you know, we see more frequently now,

24 then the chair could elect that one-time extension so

25 that it would still be the 120 day time frame.

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1 But if we phrased this incorrectly or

2 this isn't what -- you know, if this is not a process

3 that we should be doing, then maybe we clarify that.

4 I also think you raise a good point and one that we've

5 been talking about internally, is that what happens if

6 the chair doesn't respond in this scenario and are

7 there -- you know, so the chair doesn't respond. What

8 next? And this reg doesn't say what next.

9 MS. VYVYAN: The second thing that

10 we'd like some possible amendments for is when the

11 chair does elect the one-time extension of an

12 additional 60 days that there be a notification and

13 consultation process given to the tribe so that the

14 tribe can assist in expediting that process, because

15 holding up a facility opening for another two months

16 could prove to be an economic hardship on the tribe.

17 So one of the recommendations, I

18 guess, would be that before the chair does elect to

19 postpone for another 60 day extension, that they first

20 consult and notify the tribe so that any clarification

21 could get worked out about, you know, in terms of

22 verification of the land status.

23 VICE CHAIR COCHRAN: Thank you.

24 MS. VYVYAN: And then I'd like to also

25 comment on behalf of Yakama Nation in terms of you

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1 were talking about it earlier, the buying Indian, that

2 that be at the discretion and decision on the tribe

3 and that may not be necessary to address that in the

4 regs.

5 CHAIRWOMAN STEVENS: Are you clear

6 that -- I'm sorry.

7 VICE CHAIR COCHRAN: I was going to

8 ask the same question. The buy Indian act wouldn't

9 apply to tribes. It would only apply to the agency

10 and how we purchase goods and services.

11 MS. VYVYAN: No, that wasn't clear.

12 Thanks for clarifying that.

13 VICE CHAIR COCHRAN: Absolutely.

14 CHAIRWOMAN STEVENS: I have a

15 question. Are there some tribes here that do seasonal

16 closures?

17 MR. OSBORNE: Madam Chair, it's sort

18 of related to the facilities. (Inaudible) our concern

19 to talk about among our commission, and that is when

20 you license a facility, really what it's boiling down

21 to is the jurisdiction of a person's responsibility,

22 mainly the tribe's.

23 You know, we read a lot and we hear a

24 lot and we see a lot of articles being printed where

25 many tribes are trying to get land and build casinos

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1 or things of that nature, but they don't have a land

2 base structure or the jurisdiction, the law

3 enforcement, all the things that are required for

4 facility licensing.

5 (Inaudible) our reservation for

6 emergency operations, all these things that are

7 required in this 552, but when you start dealing with

8 things off the reservation, our concern is the

9 lawsuits that may end up out there, which ends up in a

10 Supreme Court issue, which affects us. We just feel

11 that we're very uncomfortable about initiating and

12 supporting such an effort if it's going to come back

13 on us.

14 That's one of our major concerns and

15 that's why we feel that needs to be looked at very

16 carefully.

17 VICE CHAIR COCHRAN: Thank you. As

18 was discussed earlier as well, we have also

19 eliminated, or proposed eliminating, I should say,

20 559.3, which deals with the renewal, the three year

21 renewal provisions. And again, it's an attempt to

22 allow tribes to renew their licenses or take actions

23 on their licenses as they deem appropriate.

24 The chairwoman also talked earlier

25 about seasonal closures or temporary closures and that

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1 has spurred a lot of discussion in other areas of the

2 country. I don't know if anybody present had any

3 additional thoughts on that.

4 MR. SMALL: Nathan Small with Fort

5 Hall. If we're going to do some major renovations and

6 there's a closure, does that have to require a

7 relicensing or is that just... If it's been licensed

8 before but we're going to do a major renovation and

9 it's going to be closed for maybe up to a year, is

10 that going to be a requirement to get a relicense?

11 CHAIRWOMAN STEVENS: Well, that's what

12 this is about. We're asking you. We know there's

13 some seasonal closures. Some facilities close six

14 months out of the year and that a relicense, they

15 would be exempt from this process if we define a

16 certain amount of time, or a remodel or a fire or a

17 roof collapsed because of a tornado, which we've seen,

18 whatever the reason, that doesn't require this

19 licensing issue, like it has to be reissued, because

20 you're going to stay in the same location but you're

21 just going to be closed while you take care of

22 whatever it is or you just close for the season

23 because it's winter.

24 You know, is a year too much, is six

25 months three months too short, you know, do we need to

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1 break it out for seasonal closures as opposed to

2 temporary closures due to other factors. I think we

3 heard somewhere, you know, sort of breaking out what

4 those instances might be, although I'm pretty sure we

5 wouldn't be able to capture everything that could

6 happen.

7 You know, should those be separated?

8 You know, how long does a remodel take? I mean, what

9 are your thoughts on it? Say, for example, if you

10 were going to remodel your facility, how long is it

11 going to take?

12 MR. SMALL: I would think that it

13 would be incumbent upon your local commissioners to

14 oversee that and if they see a need to include the

15 NIGC then I think that it would be incumbent upon them

16 to do that, but I think it should be local, with your

17 local commissioners to focus in those renovations or

18 closures or those kind of things. That would be my

19 thought.

20 VICE CHAIR COCHRAN: Again, this is

21 discussion language that we're offering up on the

22 temporary closures, like the renovation that you're

23 discussing. We're suggesting a duration point. Would

24 you suggest a revision to that which might say -- I

25 don't know. I'm trying to think of how it would

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1 incorporate your thoughts or to take your thoughts to

2 something that would show up in this instance here.

3 I apologize. I'm not trying to put

4 you on the spot. I'm just trying to understand so I

5 walk away with a very clear picture in my mind of what

6 you're describing.

7 MR. SMALL: I don't know. Maybe,

8 again, I would think that maybe it would be the

9 responsibility of your own tribal commissioners to

10 make that determination. If they feel it's going to

11 be closed long enough or if it's going to require a

12 total, maybe a total teardown of a place and the

13 rebuilding of it, maybe that's something that you

14 might want to look at, but if it's going to be just a

15 temporary closure for the renovation, I would think

16 that, you know, some of those things would probably

17 take more than a year.

18 CHAIRWOMAN STEVENS: So I'm sorry.

19 Not to belabor the point. I just want to make sure

20 I'm clear that maybe you're suggesting that the

21 language should be changed so that there's deference

22 to the tribal the TGRAs to determine what is or what

23 is not a designated, acceptable amount of time for a

24 facility to be closed before it needs to be

25 relicensed?

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1 MR. SMALL: Fair enough.

2 CHAIRWOMAN STEVENS: Thank you.

3 MS. HOUSE: Madam Chairwoman, I was

4 trying to be quiet.

5 CHAIRWOMAN STEVENS: That's all right.

6 MS. HOUSE: With all due respect, my

7 name is Sharon House, and I'm an attorney with the

8 gaming commission for Eastern Shoshone as well as I

9 work with the Shoshone-Bannock Tribe.

10 One of the areas that you have that's

11 not right here what we're talking about is the

12 ordinances and that's, I think, what you may want to

13 consider is putting together another bulletin -- my

14 traditional bulletin recommendations -- that

15 identifies what should be in ordinances and one of

16 them is is that there should be guidelines and

17 rationale that a regulatory agency, a local regulatory

18 agency needs to identify whenever there's a temporary

19 closure, a seasonal, you know, whatever closure it is,

20 and I think we're missing part of that language in the

21 ordinances themselves, is something that identifies.

22 If there's internal issues, that

23 probably would be a good idea to have guidelines and

24 rationale before you would look at it, you know, that

25 it's not somebody that's just trying to take advantage

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1 of not sending in a time frame. And I know of no

2 tribes that would ever do this, but in order to avoid

3 that, perhaps something in the ordinance and

4 recommendations to that effect that are similar to

5 what is just being discussed. Thank you.

6 CHAIRWOMAN STEVENS: Thank you.

7 VICE CHAIR COCHRAN: I'm going to go

8 back just a little bit now to the provisions that we

9 put in the discussion draft, which would take out most

10 of 559.5, which is now renumbered as 4. So page 3,

11 starting on page 3, line 36. This particular

12 provision would eliminate the reporting requirements

13 that currently exist for Environmental Health and

14 Public Safety.

15 Internally, one of the discussions

16 that we've had is if we eliminate these provisions, it

17 will trigger a need for us to look at another CFR,

18 which has to do -- which is 502.22, which does deal

19 with the construction and maintenance of a gaming

20 facility and it does provide that the operation of the

21 gaming is conducted in a matter which protects the

22 environment and the public health and safety.

23 Has anyone given thought to that, how

24 we might address that particular provision, or would

25 you like to comment on its relationship to that

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1 provision?

2 CHAIRWOMAN STEVENS: Just to clarify.

3 Right now we're asking for an attestation from the

4 tribe. In the absence of it being here in this

5 requirement, which is the current reg, we would

6 request that the tribe attest, basically, that those

7 are -- those, all of those things we took away -- the

8 words being highlighted right now -- that there are

9 provisions that the tribe has in place that adequately

10 protects EPHS.

11 We're taking out the requirement and

12 we're putting in an attestation from the tribe saying,

13 yes, we got it covered.

14 MR. ARMSTRONG: Madam Chairman, James

15 Armstrong. I believe each tribe individually has all

16 of the questions in hand pertaining to construction,

17 hazardous materials, health factors. I think they

18 have that all in hand and are required to submit with

19 other federal agencies that they have met these

20 qualifications.

21 I believe in the previous regulation

22 you had to supply all the documents to NIGC and

23 therefore the attestation made by the tribe could just

24 be a supplement of one page that would say, yes, we

25 abide by the UBC, we have OSHA standards and we have

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1 this. For clarification, then NIGC could go to look

2 and do a review, if need be, to make sure that we meet

3 these standards and the other departments at the

4 federal entities should be able to provide you with

5 that information.

6 CHAIRWOMAN STEVENS: Thank you.

7 MS. BLUELAKE: Yeah, I had a specific

8 comment on the 502.22. My name is Lisa Bluelake, and

9 I'm with the Confederated Tribes of Grand Ronde. I

10 actually did a written comment on this and we

11 mentioned this in our written comment. The 502.22 is

12 actually the definition of this big long phrase of

13 what it means to be conducted in a manner that

14 protects, et cetera, et cetera. That definition as it

15 is currently written includes all of the language that

16 you took out of 559.

17 Our recommendation was that you just

18 eliminate that definition altogether and let the

19 individual tribes determine what they believe that it

20 means to be conducted in a manner that protects those,

21 all those items.

22 VICE CHAIR COCHRAN: Thank you.

23 CHAIRWOMAN STEVENS: If there's no

24 more on facility license, we have a few more minutes

25 and one last subject in group one. We have already

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1 had tribes this morning talk about how to handle Class

2 III minimum internal control standards. We'll talk

3 about it more tomorrow, but it is within group one.

4 There's no reg up on it.

5 We asked the question in NOI, the

6 Notice of Inquiry, and when we put out the Notice of

7 Regulatory Review in April we were asking the same

8 questions, because as we said, it affects tribes

9 differently.

10 We heard from a couple of tribes on

11 the record today that Class III authority and

12 promulgating regs should not be something that the

13 NIGC should be doing. So that's what we've heard so

14 far this morning and how should we proceed with Class

15 III and any thoughts on the method by which we use to

16 do that. That's this, how should we address these?

17 Do we have tribes here that -- I don't

18 think we do -- any tribes that have written Class III

19 authority into their ordinances, enforcement authority

20 to the NIGC for Class III minimum internal control

21 standards? We have about 16 tribes, I think, in

22 California that have done so, and most of the tribes

23 we're seeing here today are Washington, Oregon, Idaho.

24 Somebody over there is saying they want lunch. That's

25 Spokane.

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1 MR. ARMSTRONG: Yes, Madam Chairwoman.

2 I think on the Class III MICS we will be looking at a

3 unique situation for each jurisdiction and each tribe.

4 California and Washington have two separate identities

5 when it comes to Class III MICS.

6 So then what I'm looking at here is

7 the consultation process may need to go a little bit

8 more in depth when you're dealing with tribes in

9 certain regions, region one, two, three, four and

10 five, because it'll be a separate process for each

11 region.

12 But what I've seen here, there's a lot

13 of mentions of Class III MICS in every one of these

14 regulations, so then we're going to have to look at

15 the MICS in depth to see what -- and I'm not getting

16 on you -- see what authority you have in implementing

17 anything pertaining to Class III.

18 For example, when you do your external

19 audit or the tribe does an external audit there's a

20 requirement in there that says that they must audit to

21 the MICS. So if we take and work on the MICS, the

22 Class III MICS, eliminate them or make adjustment to

23 them, then you're going to have to make an adjustment

24 to the auditing process on the Class III MICS as well

25 for the fact that most tribes in Washington State are

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1 dealing with compacts.

2 So I think we might want to look at

3 how we're going to deal with the audit process too at

4 the same time. When we're talking about MICS, we're

5 talking about a consultation authority and when you're

6 looking at the new regime versus the old regime of two

7 consultation process in a written format similar to

8 regulations following the executive order, but what

9 you will do pertaining to the consultation process.

10 CHAIRWOMAN STEVENS: Yes.

11 MR. GEORGE: Thank you, Tracie.

12 Richard George, Yakama Nation. I just want to make a

13 little statement on the discussion this morning. I

14 think Yakama agrees with the changing of the calendar

15 to the fiscal year.

16 Another statement on your buy Indian.

17 I think that's got to be an internal policy for NIGC.

18 Another question I have is what constitutes a closure

19 of a facility? We did a internal IT. It was supposed

20 to be six hours and it was three days. Does that

21 classify notification to NIGC? I agree with Scott

22 from the Spokane tribe on the MICS issue.

23 I just had a question. Why would a

24 tribe want to go under NIGC for the MICS? You said

25 California did that? What's their reasoning for that?

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1 CHAIRWOMAN STEVENS: Well, I would

2 hate to speak for the tribes in California. I can

3 only tell you what they've told us. I'm going to look

4 around at the staff that's here. It was just, from

5 what I can understand, some issues they had with their

6 state and that their preference was that the NIGC

7 perform the enforcement on MICS and use the NIGC Class

8 III MICS.

9 I would not want to speak for them and

10 why they chose to do that. Does anyone else? That's

11 about what we know. Their preference was the NIGC as

12 opposed to the state.

13 MR. LEWIS: The Class III issue keeps

14 coming up. There's an issue of concern to varying

15 degrees. We've got a group here from the Northwest

16 and the group travels all over and I wonder what the

17 opinions are of people in other geographic areas,

18 different tribes way out, and the last part of it is

19 is maybe getting some thoughts that gets you talking

20 on where your group may be steering this off of the

21 input that you're receiving from all the respected

22 tribes across the US, not just the Northwest.

23 CHAIRWOMAN STEVENS: Well, we were

24 just talking about that and that maybe we should share

25 not just what's going on in California, because there

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1 are 16 tribes in California with us written into their

2 ordinance with enforcement authority, but there are

3 others. And I'll let some folks talk about what we've

4 heard so far.

5 VICE CHAIR COCHRAN: There are other

6 situations as well where some of the tribes in

7 Oklahoma, for example, have made a decision to use our

8 MICS as well. There are secretarial procedure in

9 tribes, which, based on their own unique set of

10 circumstances, may be in the jurisdiction of Class

11 III.

12 So really, there's not a whole bunch

13 of them, but there are different reasons that the

14 tribes have elected to do it outside of what's often

15 talked about, which is California, because you have

16 such a large bulk of them and theirs was a more recent

17 decision in their compacting processes.

18 MS. SHYLOSKI: And in that regard, the

19 Oklahoma tribes, actually it's their compacts that

20 include compliance with the NIGC MICS as a

21 requirement.

22 CHAIRWOMAN STEVENS: Any other

23 comments on Class III? Is most everybody going to be

24 here tomorrow to talk about the other groups? Because

25 I do want to talk about at some point -- and I know

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1 we're getting up to the lunch hour here -- about

2 tribal advisory committees, your experience with them,

3 your thoughts on past.

4 The only reason we want to talk about

5 what's happened in the past is so that we can inform

6 our future endeavors and how to proceed with MICS

7 generally, two and three, and the technical standards.

8 So we'd like you all to give us some thoughts about

9 that.

10 Tribes have been very vocal about

11 previous tribal advisory committees, how they have

12 functioned and I don't mean just the former commission

13 right before us, but other advisory committees that

14 took place 10, 12 years ago, and what can we learn

15 from those, what worked, what didn't work, and how we

16 can, as Mr. Osborne said, bring some closure and

17 finality to MICS so that we have a set of standards

18 that you can use and you can implement and not leave

19 you hanging in uncertainty if they're going to be

20 modified.

21 So absent any additional comments,

22 let's break for lunch and we'll come back at 1:30 here

23 and we're going to move on to the next section of the

24 agenda. I think that's a part for a lawyer. So if

25 you're a lawyer and you love process, this is your

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1 topic.

2 (Deposition recessed at 11:51 a.m.,

3 to be reconvened at 1:30 p.m.)

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1 AFTERNOON SESSION

2 1:42 P.M.

3 --oOo--

4

5 CHAIRWOMAN STEVENS: I'll probably be

6 deferring to Vice Chairwoman Steffani Cochran to run

7 group two, and we'll be going through, again, the

8 power point and then we'll open the floor for

9 comments.

10 I think right now I do want to offer

11 the opportunity for anybody who has written testimony

12 that wasn't here earlier the opportunity. If you have

13 prepared statements, if you weren't here for the group

14 one discussion, we're opening the floor for comments

15 before we dig into group two.

16 Yes, sir.

17 MR. SMALL: Just for the discussion, I

18 mean, something happened this morning a little bit

19 (inaudible) that there should be a regulation of Class

20 III MICS for all the tribes. If the 16 or 20 tribes

21 who have the MICS in their ordinances want to be

22 regulated by the NIGC, then it should be voluntarily

23 and a separate fee should not be assessed for them --

24 and a separate fee should be assessed for them and

25 (inaudible), but all the other tribes that don't agree

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1 with that shouldn't have to be assessed those fees or

2 be regulated by the NIGC on Class III. Thanks.

3 VICE CHAIR COCHRAN: Are there any

4 other comments to be made? Please.

5 MR. HARRIS: Robert Harris, Eastern

6 Shoshone Tribal Gaming Commission. A recommendation

7 is don't draft regulation on the Class III MICS that

8 would apply to all tribes. We, Eastern Shoshone

9 Tribal Gaming Commission, agree with the

10 recommendations of the Shoshone and the Chairman

11 Nathan Small, that those tribes who want the NIGC to

12 enforce the Class III MICS, then let them pay for

13 those services so the rest of the tribes are not

14 assessed those fees.

15 CHAIRWOMAN STEVENS: Thank you. Yes.

16 MS. HELM: Linda Helm, Port Gamble

17 S'Klallam, executive director. I would just like to

18 add our comments that we agree with the previous two

19 gentlemen.

20 CHAIRWOMAN STEVENS: Thank you. Any

21 others? Any follow up from this morning, group one,

22 or any prepared statements? With that, I'll turn over

23 group two to Vice Chairwoman Steffani Cochran, and I

24 think we're just going to probably jump into the power

25 point, but...

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1 VICE CHAIR COCHRAN: Yeah, let's go

2 ahead and start with Lael, if you would walk us

3 through.

4 MS. ECHO-HAWK: Okay. So this section

5 of the agenda is sort of focused on group two, which

6 includes the list of regulations that you see in front

7 of you right now. Included in your packet is a

8 discussion draft regulation for part 573, the

9 enforcement regulations.

10 The other parts, which are the

11 regulations which concern proceedings before the

12 commission, we don't have a draft out yet, although we

13 anticipate having one very soon, but for now, the only

14 handouts you have in relation to this is a discussion

15 draft on part 573.

16 The discussion draft -- and we've

17 added section numbers in here. The discussion draft

18 does a number of things. One of the comments that

19 we've heard from tribes -- we heard this over and over

20 from tribes -- was that compliance should be the goal

21 of the commission and voluntary compliance and using

22 technical assistance and training and the other tools

23 that we have at our disposal to make sure that tribes

24 are able to be in compliance and an enforcement action

25 should only be a sort of a last resort or when things

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1 are not going as they should.

2 So part 573.1 does add voluntary

3 compliance as a goal of the commission. The rest of

4 the new language outlines a preenforcement action

5 process. 573.2 states that -- provides that a letter

6 of concern and/or a noncompliance notice may be

7 provided to the respondent. Now, this is before a

8 Notice of Violation issues.

9 A letter of concern indicates that

10 there is something that may be a violation. A

11 noncompliance notice would confirm that there actually

12 was something that's out of compliance and that some

13 sort of corrective action needs to be taken. So

14 there's sort of two different instances where -- or

15 two different situ -- the letter of concern addresses

16 a situation that could be different than a letter or a

17 noncompliance notice.

18 Neither of these letters or notices

19 are agency action. We included that in that statement

20 in the regulation, and that they may provide a time

21 period for the respondent or the tribe to come into

22 voluntary compliance. If the corrective action isn't

23 taken, then enforcement action may be taken as well.

24 Now, this doesn't constrain, this

25 process doesn't constrain the chair's discretion to

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1 issue an NOV at any time, and I think that's important

2 to note because there may be situations that are very

3 serious that are just simply not possible for the

4 commissioner -- for the chair to issue the letter of

5 concern or noncompliance notice.

6 Those are the primary changes made to

7 that section. The written comment period closes on

8 August 9th. You can find that draft also on our

9 website and it's included in your handouts.

10 The other issue that was included in

11 the notice -- or in group two, the NOV, proceeding

12 before the commission. There's a lot of -- what we

13 heard from tribes is that there was a lot of

14 ambiguities. There was not clarity in the process.

15 So there's some issue concerns about due process

16 rights. The rules are sort of in different places but

17 not together.

18 So the Notice of Inquiry asked whether

19 or not we should take a look at these regs and think

20 about revising them. There was some concerns about if

21 we create a more formal process it's going to be more

22 burdensome, more costly, and could delay review of the

23 issue.

24 The other, a couple of the other

25 comments, that there's a presiding official

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1 proceeding, which I have recommended eliminating that,

2 and then also adding an informal hearing option for

3 ordinance and management contract appeals. The

4 commission is looking at those regs and we're

5 interested in hearing more from you, if you have any

6 concerns on where we're at with those, but those are

7 the primary comments that we heard.

8 Again, we don't have a draft out yet,

9 but we do anticipate one fairly soon and if you keep

10 an eye on the website and our regions are trying to

11 notify the tribes here, the gaming operations in their

12 region, when we do have a new draft put up.

13 So that's the quick summary of group

14 two.

15 VICE CHAIR COCHRAN: Thank you, Lael.

16 I think we'll start with part 573. This was an

17 important discussion that the commission had

18 internally, and it really has to do with clearly

19 articulating that we're looking for voluntary

20 compliance in the industry and we think that that's

21 absolutely a possibility, that many of the issues that

22 come up can be worked through and that tribes very

23 much want to work through them as well.

24 So the provisions to the 573.1,

25 outlining that purpose is, I think, a very clear

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1 statement of how the commission's commission looks at

2 our role. Is there any comment or any clarity that

3 needs to be added to that purpose or any thoughts you

4 want to add to it? Yes.

5 MS. HELM: Linda Helm, Port Gamble,

6 S'Klallam tribe. In 573.2, line 25 you have, and/or

7 noncompliance notice may be provided. I understand

8 from Lael's comments why you have may rather than

9 will, but I wonder if you could list out the more

10 serious violations that were talked about so that we

11 understand if it's a lesser violation we would receive

12 the letter of concern and it would be nice to know

13 what those serious violations are.

14 VICE CHAIR COCHRAN: I like that idea.

15 Thank you. That would add some clarity, which we're

16 absolutely interested in achieving, so we'll take that

17 back and thank you.

18 MS. HELM: Thank you.

19 VICE CHAIR COCHRAN: Is there any

20 general comments or thoughts also? Yes, please.

21 MR. MATHERLY: Andrew Matherly,

22 Spokane tribe. Under 573.2, the question I have is

23 the letter of concern or the noncompliance notice.

24 Under C it provides may provide a time period. I

25 think that time period needs to be spelled out.

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1 Sometimes these notices when previous have been given

2 to tribal council, but a lot of your tribal council

3 aren't actively involved in the day-to-day regulation.

4 So I think it needs to be given to the

5 appropriate tribal official, which most of the time is

6 your gaming commissioner, but that time period be

7 spelled out. Just we have several examples from our

8 tribe that were given a Notice of Violation and then

9 some of the corrective action was you have 10 days to

10 remedy the issue and if we don't get it and six days

11 will pass, you know, we're kind of put in a bind.

12 So I think that needs to be spelled

13 out, provide a time period, and even though given the

14 option to the chair, I think by spelling out what the

15 time period would be so that we can provide that to

16 the NIGC.

17 VICE CHAIR COCHRAN: Would it be

18 helpful to also then allow -- because each

19 circumstance can be so unique, the set of facts can be

20 so unique, and a tribe can give 110 percent to try to

21 come back into compliance. Would it be helpful to

22 allow also still under extraordinary circumstances

23 some type of escape for the chair to say, here's your

24 deadline, but under these circumstances?

25 MR. MATHERLY: Exactly. Andrew

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1 Matherly, Spokane tribe. An example was several years

2 ago NIGC changed the procedure on the submissions of

3 the external audit, but we're bound by an external

4 audit firm and if they don't get the information

5 submitted on time the tribe's held liable.

6 That's happened in our case, being 18

7 days late or 16 days late and we're potentially

8 looking at $25,000 fine per day, you know. Obviously

9 that's out of our hands at that point, but just some

10 time frames would be helpful.

11 VICE CHAIR COCHRAN: Thank you. Yes.

12 MR. SMALL: I agree with that

13 statement about the verifying your gaming commission

14 of any of these proposed violations or letter, because

15 they're the ones that are delegated to oversee all of

16 our gaming and then they in turn will report to the

17 business council, but I believe that's where it should

18 go in the first place.

19 We've had an incidence in the past

20 where we were issued notices and then it was given to

21 the tribal chair and the tribal chair at that time

22 didn't take heed to that and as a result we ended up

23 getting Notices of Violation of the NOVs and then of

24 course we had to step into high gear and get the local

25 seats taken care of once our commission found out

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1 about it.

2 So I think it's imperative that these

3 notices go directly to your gaming commissions rather

4 than to the tribe so that they can be addressed

5 quickly and appropriately.

6 VICE CHAIR COCHRAN: We're just

7 sitting here talking that under the service

8 provisions, part 519, we're wondering if we can

9 actually do both, if we can cover both the leadership

10 and the gaming commission, so that everybody gets

11 them.

12 MR. SMALL: That would be fine, as

13 long as the gaming commission was delegated that

14 authority in the first place under your business

15 council.

16 VICE CHAIR COCHRAN: Thank you.

17 CHAIRWOMAN STEVENS: I just want to

18 clarify. We do want to make sure we cover all of our

19 bases when we provide service and basically notice to

20 tribes on anything that we're doing. And it varies

21 from tribe to tribe. Some tribes want their council

22 to have it and they respond accordingly. Some want

23 their regulators, either their commission or their

24 agency to have it.

25 So we might just make sure that it

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1 goes both places to accommodate the varying roles of

2 tribes across the country. So if we do both, that

3 might cover it for everybody.

4 VICE CHAIR COCHRAN: Any other

5 thoughts?

6 CHAIRWOMAN STEVENS: Glen, you look

7 like you're going to say something.

8 MR. GOBIN: Well, Glen Gobin, vice

9 chair, Tulalip tribes. Just so we're assured that

10 both the council and the agencies would be notified

11 for sure. So we feel strongly that it's the tribe

12 doing the gaming. It's the council leadership that

13 develops the ordinance and submits it. It's the tribe

14 that delegates the authority and it's the tribe that's

15 going to be held responsible.

16 So in the first instance it needs to

17 be the tribe that's notified, but I also recognize the

18 regulators' responsibilities as well and they need to

19 be notified as well. Just so we're assured that both

20 would be notified in these cases.

21 VICE CHAIR COCHRAN: Thank you. Well,

22 I think the only other thought that I would add to

23 this to share with you as far as the thought process

24 and how we kind of reached the discussion draft that

25 we did was also a commitment by this commission to

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1 make sure that we as an agency are obligated to very

2 clearly communicate with the tribes about what the

3 potential issues are, what we are looking for for

4 compliance.

5 Again, to extend that open transparent

6 process between the tribes and dealing very one on one

7 with the issues and very directly with the tribes. We

8 try to, again, reflect that in here.

9 All right. The next part, part 577 --

10 excuse me.

11 CHAIRWOMAN STEVENS: Thanks, Steffani,

12 for allowing me to interrupt for a moment. In

13 particular, this particular draft for 573, the comment

14 period closes on August 9th. If you haven't had the

15 opportunity to take a look at this, the section in

16 particular that we want you to take a look at, if you

17 would, is page 1, 573.2.

18 This is a new, as we said, this is a

19 new section that goes through basically a step

20 process. Instead of going straight to an NOV, there's

21 a letter of concern or a noncompliance notice, so the

22 tribes have the opportunity to come into compliance.

23 This may be new to everybody today,

24 but when you do take it back, take a look at it and

25 provide some comment to us. Again, this is a

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1 discussion draft only. Submit your comments by August

2 9th if you could and any suggestions, clarifications

3 you might need.

4 MR. MATHERLY: Just one more comment.

5 Andrew Matherly, Spokane tribe. Is there going to be

6 a time frame when a tribe's issued a letter of concern

7 for a noncompliance within a rolling calendar year or

8 fiscal year and so if that incidence's been taken care

9 of, the next year that same concern or something comes

10 up, it's in a different nature, it's going to go

11 straight to an NOV or can we have a time period where

12 we can wipe those off, a clean slate?

13 VICE CHAIR COCHRAN: Something like

14 this is a warning and if you behave yourself for six

15 months the warning goes away?

16 MR. MATHERLY: Yeah.

17 CHAIRWOMAN STEVENS: Or moreover, a

18 closeout of an investigation -- we heard that already

19 -- that says we've been investigating this matter.

20 The matter is now closed. We would probably put

21 language in there that would preserve the right of the

22 commission, should it get new information or if it

23 continues, that we may reopen the matter. Is that

24 what I'm hearing?

25 MS. ECHO-HAWK: In one of our drafts

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1 it will be talking about there is a provision. It's

2 571, and it's in your packet, and this may help

3 address your concern. 571.4 is an investigation

4 closure letter, and that's on page 2 of your draft,

5 line 28. So this may address some of your concerns.

6 And your concern is something that

7 we've heard repeatedly. So I don't know if this

8 addresses what you were talking about. Okay.

9 MR. PHILLIPS: I think we have a

10 question down here as well.

11 MR. SPENCER: Warren Spencer, Yakama

12 Nation. Could you elaborate on the legal enforcement

13 action?

14 VICE CHAIR COCHRAN: I'm sorry.

15 Where?

16 MR. SPENCER: Section C.

17 VICE CHAIR COCHRAN: Where are you at

18 in the draft?

19 MR. SPENCER: Line 39, 573.2.

20 MS. SHYLOSKI: This provision actually

21 is not agency action, so it wouldn't be considered an

22 enforcement action. It is more of a sort of heads-up

23 letter of concern, we want to let you know and

24 possibly talk about the timing of addressing concerns.

25 MS. JACK: Dolcee Jack, Yakama Nation.

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1 I think what we're more concerned of is the legal

2 enforcement, that we want an elaboration on. What

3 kind of legal enforcement action would be taken?

4 MS. SHYLOSKI: We have a separate part

5 of our regulations, which is 575, which discusses

6 Notices of Violation that can be issued by the chair.

7 So this is separate and distinct from that.

8 CHAIRWOMAN STEVENS: These are

9 intended to be the steps prior to issuing a Notice of

10 Violation. We've heard over the past year that we've

11 been in office that there should be some effort made

12 by the commission in a formal way to bring tribes into

13 compliance, they know what the steps are, prior to

14 issuing a substantial violation through a Notice of

15 Violation and that the legal enforcement action is

16 spelled out in 575.

17 Once we do get past this and it

18 doesn't remedy, then we go to the NOV so that the

19 tribe has an opportunity to correct.

20 VICE CHAIR COCHRAN: Does that address

21 your question?

22 MS. JACK: Yes. Thank you.

23 VICE CHAIR COCHRAN: All right. Let's

24 turn our attention now to the regulations that are

25 grouped together by proceedings before the commission.

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1 Part 519, we'll start with that one, as it's not real

2 hefty. This has to do with service and this is how

3 the agency and parties serve official notices and

4 orders.

5 It does require a designation of an

6 agent for service and then sets forth the various

7 types of service that can be used. So for the lawyers

8 sitting in the room, I see your ears perk up. The

9 proposed change that we've looked at has to do with

10 including email service as part of an authorized

11 method.

12 Right now it does allow us to hand

13 deliver to designated agents, hand deliver to the

14 person in charge of the gaming operation, mail, and to

15 fax. With the, again, changes in technology, email

16 being one of the ways that the service should be

17 accomplished.

18 I should preface, again, this

19 discussion with where the commission's thoughts were

20 in looking at this particular group of regulations.

21 We are looking for ways to bring clarity to our

22 regulations where we can. We're also looking for ways

23 to eliminate some duplicative processes that the

24 tribes are experiencing.

25 We also are looking for ways to ease

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1 some of the burdens that are not only on the tribes

2 but on our own internal processes to make sure that

3 due process is afforded properly and that's kind of

4 the underlying theme that you'll see throughout all of

5 these revisions.

6 So while it's not particularly sexy,

7 if you will, to talk about emailing service, again,

8 the attempt here is to get away from more costly

9 methods of service, which include the mail and Federal

10 Express and some other things, and to use technology

11 to ease those expenses. As you all know, what we see

12 in our proceedings can be very voluminous.

13 Is there any reason why we shouldn't

14 include email? All right. Good.

15 MS. VYVYAN: Can I ask for

16 clarification? What type of service? I mean, give me

17 some examples of what you're saying.

18 MS. SHYLOSKI: In court practices

19 today, many courts are allowing filing of pleadings

20 electronically and so what we're wanting to hear from

21 you all is what you think about allowing the same

22 thing within the NIGC. So once an initial agency

23 action is served in a very traditional way, whether it

24 be mail, and we do it now by fax as well, whether

25 after that initial service, whether you all think it

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1 would be okay for the parties to exchange pleadings

2 and other filings via email.

3 MS. VYVYAN: I would just comment that

4 as long as there's agreement between the parties that

5 email exchange would be okay, but I think there should

6 be agreement up front, because, you know, computers

7 electronically have glitches and you want to make sure

8 that, you know, timelines were kept and met and that

9 sort of thing, so...

10 VICE CHAIR COCHRAN: Do you have the

11 same type of issues coming up on the fax side?

12 Technology and faxes can create problems.

13 MS. VYVYAN: Well, if it's the

14 original pleadings that are being served on someone, I

15 wouldn't. I mean, faxes get shut down at night and on

16 weekends for that very reason, because law firms

17 generally don't want fax services when they're not

18 present in the office. I mean, yeah, I mean, in

19 answer to your question, faxes can be problematic as

20 well.

21 MS. SHYLOSKI: And that's what we've

22 heard from tribes, is that when we initiate service of

23 an agency action via fax, that sometimes faxes get

24 lost or they don't get to the right person and so

25 we've received those types of comments.

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1 VICE CHAIR COCHRAN: Would it be then

2 your recommendation that after the initial pleadings

3 are filed, that it be by agreement between parties as

4 to the types of service that would be accepted?

5 MS. VYVYAN: I think it would be safer

6 to have an agreement between the parties, you know, on

7 how they want to notify each other.

8 VICE CHAIR COCHRAN: Thank you.

9 MS. SLAPE: Hi. Debbie Slape,

10 Nisqually tribe. Why not, if people and tribes agree

11 to the email and the fax, that it be followed up with

12 a hard copy? State in the email, blah, blah, blah,

13 hard copy to follow, and then that way you've got both

14 of them covered and hopefully no miscommunications.

15 VICE CHAIR COCHRAN: Thank you. The

16 other sections that are included in this overall group

17 include the appeals of ordinances under 524, the

18 appeals of management contracts under 539, and appeals

19 before the commission under 577.

20 The general question that the NOI

21 asked here has to do with how are these existing

22 appellate rules working, because we know on our end

23 the problems that have come up over time. I have no

24 doubt we've heard from the tribes about some of the

25 problems that have presented themselves in the

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1 existing rules. Plus there were a lot of gaps that

2 simply didn't give the agency or the tribes guidance

3 on where to go in a particular appeal.

4 The thoughts here are to look towards

5 some type of more comprehensive set of rules or at

6 least something which gives greater detail. Does

7 anybody want to begin? Do they have thoughts on the

8 existing? We can walk through them one by one, or

9 somebody has thoughts in general about any of the

10 processes.

11 You know, I'm an attorney by

12 profession, and I know my fellow attorneys are not by

13 nature quiet. I'm a little surprised. Maybe what we

14 could do is --

15 CHAIRWOMAN STEVENS: I know we do have

16 some summary of the initial comments we received on

17 the Notice of Inquiry. Maybe we could provide just a

18 verbal summary of those.

19 MS. ECHO-HAWK: So when we sent the

20 comments out, when we sent out the Notice of Inquiry

21 and we asked the question about whether or not we

22 should be, you know, taking a look at these

23 provisions, we heard quite a bit from tribes that

24 there were some due process concerns, that time frames

25 are not, are not clearly spelled out in the -- the

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1 time frames aren't clearly spelled out in some of the

2 proceedings.

3 A number of the comments, in fact, 22

4 of the comments -- we received 35 comments on this

5 particular group on this particular issue. Four of

6 those -- well, of those, 20 commenters said that we

7 needed to have a more formal procedural -- we needed

8 to have more formal procedural rules for appeals and

9 that those rules need to guarantee due process.

10 What's interesting here is that we've

11 done a number of sort of final agency actions that all

12 have some sort of level of appeal. So you have your

13 gaming ordinance approval, your management contract

14 approval. You have situations where an enforcement

15 action's been taken and a tribe wants to appeal that.

16 So there's a number of proceedings

17 that could end up on appeal, and when that happens,

18 what's the time frame? How is it going to work? Part

19 577 right now consolidates the hearing before private

20 presiding officials and the sort of proceedings before

21 the commission where there's no hearings but there's

22 just written submissions. All of these are in kind of

23 different places.

24 So a couple of the suggestions were

25 that we put all the proceedings, all these appeals

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1 proceedings together so that it's easy to find it.

2 You have a management contract that's been

3 disapproved. Where do I go to find the rules for how

4 to file an appeal of that? So that was the approach

5 that we took or that we're taking as we look at these,

6 how can we address the concerns that were given to us

7 by tribes.

8 Some of the other concerns that we've

9 heard was that there's issues tribes have had with the

10 chairman sitting on the commission during an appeal

11 and, unfortunately, that is, or, I guess, however you

12 look at it, the commission is defined as including the

13 chairperson. So when there are appeals before the

14 commission, the statute requires that the chair be on

15 the appeal as well and that's why we have three

16 commissioners and that's pretty standard for a

17 commission, an administrative commission such as the

18 NIGC. So that was one thing that we heard and we

19 looked into and it's just that statutory definition.

20 That's the bulk of the comments. You

21 know, there are some things that can be clarified,

22 definitions. You know, we're looking at sort of what

23 does days mean, you know, all those things that as

24 lawyers you're really interested in but perhaps your

25 clients might not be as thrilled about.

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1 VICE CHAIR COCHRAN: The comments

2 also, some of them addressed provisions or the need

3 for provisions to consolidate appeals or to allow

4 intervention of parties in certain types of appeals

5 and right now, again, looking at clarity in our rules,

6 whether or not we can achieve that in these particular

7 provisions as well.

8 CHAIRWOMAN STEVENS: We should have a

9 draft out next week, I'm thinking, of what -- our

10 effort to be responsive to comments we've heard, both

11 in the NOI and what we've heard so far on the road and

12 I know speaking about these in the abstract is

13 difficult to make comment. So we'll get that out.

14 Again, I want to emphasize that is a

15 discussion draft. It will not -- that the intent is

16 to get feedback before we enter into this formal

17 rule-making process, the Notice of Proposed Rule

18 Making, to help inform that draft and try to get it as

19 -- to the right place out of the gate as we can.

20 So the proceedings before the

21 commissioner should come out next week and we'll be

22 continuing to talk about them. We may or may not see

23 some of you as we go along. We encourage you to write

24 in comments once you see that draft.

25 MR. ARMSTRONG: Before moving on,

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1 Madam Chairman, James Armstrong, Suquamish Tribal

2 Gaming Commission. In review of the enforcement

3 section on issue of the notification, notification of

4 violation. I'm looking at the last page. I'm sorry.

5 My document eyes aren't as fast. The last page of the

6 annual fees it says that in section number 12, line

7 25, statements and/or fee payments over 92 calendar

8 days late constitute a failure to pay an annual fee as

9 set forth in NIGC regulation 25 CFR 573.6A2.

10 In accordance with 576.6 of the tribe

11 management contract, the operation failing to pay

12 their annual fee, the chair may issue a Notice of

13 Violation and (inaudible) to a Notice of Violation a

14 temporary closing order.

15 In looking at 573 section .6A2, there

16 is no such number in that regulation. So I don't know

17 if I'm seeing a typo there or if you've eliminated

18 573.6A2.

19 MS. ECHO-HAWK: Yes. Because we are

20 -- the fee drafts went out first and before we began

21 sort of working on the 573 draft, when we began making

22 these changes, go back through and review the

23 citations, that particular section is probably

24 referenced above and I'm going to -- I think that it

25 is and now what is now 573.4.

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1 So, yeah, that's an excellent point.

2 Some of these cross-references are incorrect,

3 especially when they're referring to another draft.

4 But if you look at the rule, the current rule that's

5 on the books and not the discussion draft, then that

6 provision in there, we'll have to adjust that when we

7 go forward with the drafting process.

8 MR. ARMSTRONG: Thank you.

9 VICE CHAIR COCHRAN: Are there any

10 other comments on this group before we move forward?

11 Madam Chairwoman.

12 CHAIRWOMAN STEVENS: Thank you. So

13 let's go on to group four if the group is ready to

14 just keep rolling along here. We're going to talk

15 about background investigations, licensing, and other

16 issues under group four. So I'll turn it over to Lael

17 to discuss group four.

18 MS. ECHO-HAWK: Thank you, Tracie. So

19 once again, we do have -- we actually have four drafts

20 in this group and you have them all in your handout.

21 Part 558, part 556 and 558 are the most recent. They

22 actually just went out publicly the other day, but

23 they are in your handouts. Then part 571 you have a

24 handout for that and part 537 as well.

25 So group four was sort of one that had

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1 miscellaneous things. It seemed to be somewhat

2 related to background investigations, licensing,

3 management contract, that type of thing. And the

4 first one -- this is actually the most recent

5 regulation, but it's sequentially the first to address

6 -- is the pilot program. As most of you know or

7 already participate in, the NIGC has a pilot program

8 that is very, very old. It's probably 10 years old, I

9 think, and one of the -- some of the comments that we

10 received during the Notice of Inquiry was that we

11 should consider amending those regulations to

12 formalize the pilot program.

13 Now, what the pilot program does is it

14 allows tribes -- and about over 90 percent of the

15 tribes that game today do participate in the program

16 -- it allows tribes to submit a Notice of Results to

17 the NIGC instead of having to send an entire file with

18 all the investigative material and background

19 information. A tribe would just send the Notice of

20 Results to the NIGC and then maintain for yourself the

21 application and investigative reports.

22 All the commenters that commented on

23 this particular issue support formalizing the program

24 either into a regulation or a policy. So that's what

25 we've attempted to do in parts 556 and 558.

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1 Part 556, part of formalizing this

2 pilot program, what we try to do is separate and draw

3 a line in the regulations between everything, all the

4 procedures that happens before a gaming license is

5 issued -- and that's included in part 556 -- and then

6 everything that could occur after the gaming license

7 occurs and we put that into 558 to try to be clear

8 about where we're at in the licensing process.

9 I want to reiterate that this is only

10 for primary management officials and key employees and

11 it's something that I know your TGAs are very familiar

12 with, as are our regions.

13 So briefly, the discussion draft just

14 lays out -- what we've just tried to do is formalize

15 what the process already is. A tribe that's looking

16 to license a key employee or primary management

17 official must notify the NIGC of the applicant's

18 background results no later than 60 days after the

19 applicant begins work.

20 It also provides -- one of the things

21 that we've heard from tribes is, hey, look, we've got

22 an individual here who's already worked for a tribe.

23 Just we have all their information. We just want to

24 update it. Is that okay. Can we do that. And so

25 this regulation allows for a tribe that has that

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1 information to simply update the materials and provide

2 us with a Notice of Result, so they don't have to go

3 in and repeat what's already been done.

4 Now, part 558, so after -- this all

5 happens before the gaming license is issued. Moving

6 on to 558. After the gaming license has been issued,

7 the tribe -- and the tribe has provided the agency

8 with the Notice of Results, the tribe can license a

9 key employee or the primary management official. At

10 that point the tribe has to notify the commission that

11 the license has been issued.

12 Now, I guess, these points are a

13 little bit backwards, perhaps, chronologically. Once

14 the NIGC has received the Notice of Results, we have

15 30 days to request additional information from a tribe

16 on the licensee. This was an issue that we had, we

17 talked quite a bit about, because sometimes we get

18 Notice of Results that just don't have all the

19 information.

20 So one of our concerns was when does

21 this 30 day period start. So you'll see in the draft

22 that it says upon receipt of a complete Notice of

23 Results, with all the information that the agency

24 needs in order to do a complete review.

25 So once the licensee has been issued a

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1 license, the tribe has to notify the commission within

2 30 days and then the NIGC has 30 days to either

3 request additional information from a tribe or to

4 object -- or to object to an issuance of the license.

5 Now, this gets a little bit tricky,

6 because if the NIGC -- if the tribe sends the Notice

7 of Results to the agency before they issue a license

8 and the NIGC sends back some notice that there's an

9 objection, then the tribe takes another look at the

10 licensee and then makes a decision about whether or

11 not they want to issue the license.

12 However, if the tribe issues a license

13 to the licensee before the agency has objected or

14 before the 30 day period and the license has been

15 issued and the NIGC then says, hey, we have an

16 objection, the tribe has to suspend the licensee's

17 license, and then that licensee has a right to a

18 hearing. Most of you are familiar with license

19 revocation hearings held by the tribe.

20 Then at that point the tribe decides

21 whether or not that employee can keep their license

22 and then you have to notify the NIGC.

23 One of the things that has sort of

24 changed from the pilot program is that the statute,

25 the IGRA, Indian Gaming Regulatory Act, requires that

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1 there be two -- that the tribe notify the NIGC twice.

2 You have to send us the Notice of Results and then you

3 have to send us a notice that you've licensed the

4 employee.

5 That has been sort of the second step,

6 the notice that the tribe has issued the license, has

7 been sort of overlooked, I think. In some regions

8 it's not been a uniform sort of process and it is

9 something that's mandated by statute and so you will

10 see it in the regulations. It is one thing we wanted

11 to point out to tribes, because it is a bit different.

12 You have to send in the Notice of

13 Results and you also have to send in a notice that the

14 employee -- the license has been issued to the

15 licensee.

16 We're thinking of ways using

17 electronic, mail or email and other ways to make that

18 not a big process. It goes to the region. Your

19 licensing people, I'm sure, are very familiar with

20 working with the regions and the licensing process,

21 but we're trying to think of ways that we can do it so

22 it's very manageable and it's not an extra burden.

23 But again, it's required by statute, so we needed to

24 put it in the regulation.

25 The discussion draft also says that

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1 there may be electronic submissions can be -- if you

2 work with your region. We need to figure out our own

3 capabilities at the agency and make sure that it's

4 something that can be done easily.

5 And then in the future, ordinances,

6 any ordinance that you submit to amend, that ordinance

7 needs to address this issue, but today, if we were to

8 adopt this today, then as long as you have a gaming

9 ordinance, you don't need to make an amendment

10 immediately just to comply with this part, just only

11 in the future as you amend your ordinance.

12 So that's the pilot program. The

13 comment period closes on August 10th and that is on

14 the top of the draft. The draft is also available

15 online.

16 Group four, we also asked and received

17 some inquiry whether or not the NIGC should allow

18 access to fingerprint processing for any employee

19 designated by the tribe, and comments support this and

20 it's something that we're looking into, but because we

21 work with the FBI on that, we're talking with them,

22 but so far we haven't heard any objections from tribes

23 on that issue.

24 Part 537, this is a draft. You have

25 this in your handout. The Notice of Inquiry asked

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1 whether or not we should clarify that management

2 contractors of Class II and Class III facilities must

3 have a completed background information. Most people,

4 most commenters supported this clarification. It's

5 not changing anything, but it's just formalizing it in

6 the regulation, that if you're a management contractor

7 with Class II and a Class III, you still need to have

8 a completed background investigation. Yes.

9 MR. OSBORNE: I have a question about

10 the backgrounds and the timing of it. Of course we

11 have to deal with other outside agencies, tribal

12 court, different human resource levels. What happens

13 when we don't get the information back in time?

14 MS. ECHO-HAWK: Don't get the

15 information from who?

16 MR. OSBORNE: Tribal courts that do

17 background checks on tribal members.

18 MS. ECHO-HAWK: We don't have a time

19 frame on that. I mean, if you're looking to

20 background a key employee or a primary management

21 official, you have to follow the process included in

22 your ordinance for licensing employees and then you

23 just provide us that information and then the NIGC has

24 a 30 day statutory time frame to respond to you.

25 MR. OSBORNE: So does that mean that

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1 we allow a new employee to continue on until we get

2 some kind of notice?

3 MS. ECHO-HAWK: I know some ordinances

4 do provide --

5 MR. OSBORNE: We don't do that. We

6 don't allow them to go in until everything's

7 satisfied. Looks like it changed a little bit.

8 MS. SHYLOSKI: Our current regulations

9 mandate that someone cannot work beyond 90 days

10 without having a license.

11 MS. ECHO-HAWK: Some tribes do have a

12 process for a temporary license and it's usually that

13 90 day period, because obviously if it's a key

14 employee or a primary management official, they want

15 to get that person in to work, but there is only a 90

16 day window, like Jo-Ann just pointed out, and we

17 haven't changed that.

18 CHAIRWOMAN STEVENS: More

19 specifically, I think it varies from tribe to tribe on

20 whether they're going to issue a temporary license.

21 We know of some tribes -- and correct me if I'm wrong

22 -- who don't let that person go to work until at least

23 the 30 days or objection pass. We've heard that.

24 That's completely up to the tribe

25 whether they want to do that or not. I understand

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1 there are reasons why tribes would do that, because

2 once you issued them a license, they are now in your

3 licensing process, their due process rights and

4 licensing of your ordinance.

5 If you don't put them to work, then

6 those don't exist, and so if you have to pull them

7 back from application as opposed to pull them back

8 from a licensing situation, those may have two

9 different effects on the tribe based on how they

10 process their licenses. So some tribes will put them

11 to work temporarily, some tribes don't. So that's

12 really all up to how, I think, the tribe is organized,

13 isn't it, in their ordinance?

14 MS. ECHO-HAWK: Yes.

15 CHAIRWOMAN STEVENS: Except if you

16 want to put them to work on a temporary basis. It's

17 just with the understanding that there may be an

18 objection from us.

19 MR. OSBORNE: We don't allow anybody

20 on a temporary basis.

21 MS. ECHO-HAWK: So moving back on to

22 537. This is the background investigations for a

23 management contractor of a Class II and Class III

24 facility. It's a clarification point. It's included

25 in the discussion draft under 537.

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1 We did receive some other comments

2 about background investigations for approval

3 management contracts asking how the process can be

4 streamlined, and if you look on the draft on page --

5 it's the third page, part 537.14 or 1D, there is a

6 section there that says that the chair can exercise

7 discretion and reduce the background investigation to

8 be conducted if it's for a tribe or a wholly-owned

9 tribal entity, a national bank or institutional

10 investor that's already federal regulated.

11 So it does streamline the process for

12 some entities. If you have questions or if you have

13 comments on that, we'd like to hear if that's an

14 appropriate way to handle this or if something else

15 needs to be considered. That's the language there.

16 Written comment period on this

17 discussion draft closes an August 9th, and you can

18 send all of these comments into reg.review@NIGC.gov,

19 and that will be -- that's on the last slide too, but

20 reg.review@NIGC.gov. Any comments that are sent in,

21 if you are interested in seeing what other people have

22 to say, are also posted on the website.

23 Another issue that we considered in

24 the group four section was whether or not the -- the

25 Notice of Inquiry asked whether the NIGC should

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1 require submission and approval of collateral

2 agreements. The majority of comments supported

3 requiring submission of collateral agreements with

4 management contracts when they're submitted for

5 review, but there was a lot of disagreement in the

6 commenters regarding whether or not collateral

7 agreements should be approved, should be part of the

8 management contract approval process.

9 Comments said that requiring the

10 approval by the NIGC of collateral agreements could

11 discourage private investment. Additionally,

12 commenters said that the NIGC doesn't have the

13 authority to approve collateral agreements, that this

14 would be secondguessing business decisions, and that

15 it should be left to the discretion of the tribe.

16 On the other hand, we had commenters

17 that said that the trust's responsibility requires

18 review and approval of these other agreements and that

19 this approval would protect tribe's sole proprietary

20 interest and that it could discourage a business or

21 even management contractors or whoever from attempting

22 to take advantage of the tribe and that these

23 approvals then reduce risks to both parties.

24 We don't have a draft on this and

25 we're still taking comments and considering carefully

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1 about whether or not this is a way for the commission

2 to go and if it's an appropriate exercise of their

3 authority.

4 Part 571. You have a draft of this in

5 your packet. This asks whether to clarify the NIGC's

6 access to books, papers and records included at sites

7 and maintained by third parties. We had a lot of

8 comments, some saying that revisions were unnecessary,

9 some saying you already have the authority, but if you

10 think -- you have subpoena authority, but if you think

11 you need to clarify the regulation, then go ahead.

12 One commenter said that if you just

13 require tribes to maintain all records onsite that

14 would eliminate this issue. Another commenter said

15 that the regulation should be revised to clarify the

16 NIGC does not have access to Class III records.

17 So you'll see in our draft, discussion

18 draft, first of all, we did include, as was referenced

19 earlier, an investigation closure letter proceeding.

20 So when the NIGC's concluded its investigation and

21 decided it's not going to begin an enforcement action,

22 the commission can issue a letter telling the parties

23 that the investigation has been concluded.

24 We clarify that that notification

25 would not be a finding that there was no violation,

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1 but that -- and that that notification doesn't

2 preclude further action by the NIGC. It's just simply

3 a letter saying that we concluded that investigation

4 and we're not beginning an enforcement action at this

5 time.

6 It was an issue that's been brought up

7 from a number of consultations. Tribes have been

8 concerned about an investigation that might have

9 happened a year or two ago and there was no further

10 follow-up and so this would provide the NIGC the

11 ability to provide that follow-up and maybe some

12 clarity to tribes that they're not under investigation

13 anymore.

14 The draft also clarifies in 571.5 that

15 the commission may access those records, books,

16 papers, held or maintained by a person other than a

17 gaming operation. That's something that we've heard

18 comments on that the NIGC already has the subpoena

19 authority to do that, but considering -- we include it

20 in the draft because there is a number of comments

21 that say, well, perhaps it's a point of clarification.

22 Written comments on that also close on August 9th.

23 Sort of the last thing that we --

24 CHAIRWOMAN STEVENS: I think we have a

25 comment here.

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1 MS. HOUSE: Sharon House for Eastern

2 Shoshone. I have a question. If you could take a

3 look at 571.4, investigation closure letter. When I

4 first read that term closure, it was almost talking

5 about investigation closure letter. My first thought

6 was that you were talking about an investigation on

7 closing the facility and I guess the recommendation

8 would be to just clarify that, use termination or

9 conclusion, I'd recommend.

10 And then the other section that I had

11 a concern about is where it says entry of premises,

12 inspection of books and records right under that. A,

13 the commission's authorized representative may enter

14 the premises of an Indian gaming operation or any

15 other person. You ain't entering any other -- no.

16 I'm sorry. With all due respect, you're not entering.

17 No.

18 Then it says, well, go back up and see

19 what the definition is, and it says, person means an

20 individual, Indian tribe, corporation, partnership or

21 other organization or entity, and ordinarily that's

22 appropriate, but down here it doesn't sound real good,

23 I guess. It doesn't look good and it probably just

24 needs clarification. I know Lael probably put that in

25 there. I'm just kidding. Your legal term.

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1 MS. ECHO-HAWK: It was Larry. Yeah,

2 Larry from Oneida.

3 CHAIRWOMAN STEVENS: We can always

4 thank Sharon for lightning up a heavy afternoon. But

5 thank you for pointing that out.

6 MS. HOUSE: And then I wanted to point

7 out. 571.6, B, where it's real clear right there, B,

8 or other facility. Entering of gaming operation or

9 other facility, that's real clear as opposed to the

10 person that you're entering. I don't know.

11 VICE CHAIR COCHRAN: Sharon, we had a

12 very similar discussion internally about the

13 terminology. Not quite as humorous, but we...

14 MR. GOBIN: So we had the same concern

15 there on that. It was confusing as to what it meant.

16 CHAIRWOMAN STEVENS: I think the

17 intent here was to clarify that there are records that

18 are not kept at the facility, maybe at a management

19 contractor's facility, somewhere else in the

20 Neverlands, far, far away in the Neverlands, that we

21 make clear to them that we have access. Just because

22 it's not in the gaming facility or on tribal land, we

23 still have the right to have access to those records.

24 MR. MATHERLY: Andrew Matherly,

25 Spokane tribe. On that same part B when it talks of

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1 commissions, authorized representatives shall present

2 official identification upon entering a gaming

3 operation, and it goes on. I know we talked earlier

4 about transparency and working with the primary

5 regulations and that's the tribes, they're

6 self-governed. The only thing I'd recommend is that

7 upon communication with the tribal representative. It

8 was discussed earlier whether that tribal council or

9 the gaming commissioners, the tribal gaming

10 commissioners.

11 I just think I know you have the

12 authority to go in and do random checks and whatnot.

13 We've experienced in the past -- and I'll just use one

14 example -- the NIGC representative that came into one

15 of our facilities -- this has been probably over a

16 decade ago. Maybe not that far -- and asked if we

17 have a sprinkler system and asked a security guard and

18 the security guard said yes.

19 So they walked away, NIGC submits the

20 complaints for the year and has a checkmark. Several

21 years pass and they come in and ask another employee,

22 do you have a sprinkler system, and the answer was no.

23 The tribe openly got an NOV, but the security guard's

24 question was do you have a sprinkler system, and yeah,

25 we did. It was out in the RV park. It didn't apply

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1 to the facility.

2 So I think that transparency reporting

3 to the proper authority is going to help the

4 commission, the NIGC itself, because sometimes

5 inquiring to certain information for audit purposes or

6 whatnot, if you ask the wrong personnel, because

7 that's not their normal day-to-day, it's not something

8 they're delegated, then you're going to run into that

9 issue all the time, so...

10 MS. ECHO-HAWK: So the final point or

11 the final issue that we looked at in group four was --

12 let me get to the page -- the issue of net gaming

13 revenue and whether or not that definition for the

14 calculation of management fee should be revised to be

15 consistent with the act and we talked about this

16 earlier, what the issue is with defining net revenues

17 utilizing GAAP and that has remained a concern and

18 that was also supported in the comments.

19 So you do not see a draft in front of

20 you now. If you have comments about that or concerns

21 about that, then we'd like to hear that, whether or

22 not we do need the clarification and then how can we

23 make that clarification while remaining in compliance

24 with IGRA.

25 MS. HOUSE: Again, my name is Sharon

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1 House for Eastern Shoshone. Recently, a new guideline

2 -- what is it -- for casinos, auditing for casinos,

3 just recently came out and there's issues in there

4 also that are discussed about net win and right now,

5 because of working in California, they're having

6 issues over that already and they're calling it a

7 continuum, but in order not to get to that point it

8 may be something you want to deal with and look at

9 from that auditing, if they've changed it.

10 I haven't looked at it, but I know

11 they've changed it, is to look at it and just see if

12 it could impact on the definition of net win or maybe

13 even make it more consistent with what's really

14 happening in the industry.

15 MS. ECHO-HAWK: That's all of group

16 four that we had.

17 CHAIRWOMAN STEVENS: We have a few

18 minutes before the break. I don't know if you want to

19 all take a break and digest some of this. If there

20 are any comments right now on all the parts that we've

21 discussed in four.

22 MR. WHEAT: Does this cover the

23 definition of allowable uses? Does this comment

24 period address to that 502 definition?

25 CHAIRWOMAN STEVENS: Say that again.

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1 Restate your question.

2 MR. WHEAT: Scott Wheat, attorney for

3 the Spokane tribe. So is the definition of allowable

4 uses kind of in play? We know that some commentators

5 have suggested that they want to see some specificity

6 with respect to putting cash reserves aside and

7 whether that was an allowable use of tribal gaming

8 revenues.

9 I'm just wondering, since we're trying

10 to wade our way through a thicket of regulatory

11 review, is this a time to discuss that topic or is

12 that for tomorrow?

13 CHAIRWOMAN STEVENS: Did we open that

14 question? I think we were only talking about this

15 when we asked for the Notice of Inquiry. Are you

16 suggesting that we do have that be part of the play

17 here?

18 MR. WHEAT: Well, it's in our comments

19 because we know that some people have suggested that,

20 whether in order with the -- whether you've asked for

21 those comments or not, we've reviewed them, we've

22 reviewed your comments on this epic journey we're all

23 taking.

24 So I would just like to get it on the

25 record that Spokane would oppose tinkering with any

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1 kind of definition of what an allowable use is. We

2 note the concerns maintaining adequate reserves in

3 cash flow, but we think that's already an allowable

4 use under other economic development under IGRA. So

5 to the extent that the commission wants to entertain

6 those suggestions, that there be cart offs and further

7 definitions of allowable uses for net revenue and we

8 would just humbly request that you all not go there.

9 VICE CHAIR COCHRAN: Madam Chairwoman,

10 if I could, because it is a monumental task and we are

11 covering a lot. Just to refresh your memory, it did

12 ask about allowable uses, so your comment is in the

13 right place; however, we're doing those tomorrow,

14 so...

15 MR. WHEAT: Thank you.

16 CHAIRWOMAN STEVENS: Just waiting with

17 baited breath. Let's get up and take a stretch here,

18 a little break, and we'll come back and that'll give

19 everyone some time to think about any additional

20 comments or for Jim Bob to. You look like you're over

21 there studying. So give you some time to do some more

22 of that.

23 MR. ARMSTRONG: I am.

24 CHAIRWOMAN STEVENS: So give you time

25 to do some more of that. We'll come back in about 15.

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1 (Recess taken.)

2 CHAIRWOMAN STEVENS: If we can go

3 ahead and resume. So we do want to open the floor

4 back up to comments on the parts that we've just

5 discussed, either in group two or group four, and also

6 if anyone has anything to say about group one, you

7 know, we're just trying to keep it open.

8 So Jim Bob, were you able to finish

9 your thoughts?

10 MR. ARMSTRONG: Yes, ma'am. Okay.

11 Under the guidelines of the Washington State compact,

12 once we've done a preliminary review of background

13 investigation, we're allowed to provide the new

14 employee a temporary license to work at the casino,

15 and looking at 558.2, notification to NIGC, license

16 issuance and retention obligations, in section A it

17 says, after the tribe has provided a notification of

18 the results of the background check to the commission,

19 a tribe may license a primary management official or

20 key employee.

21 So basically, we bring the review to

22 our tribal gaming commission and they find them

23 suitable and that license has already been issued and

24 you go down to section B and it says, within 30 days

25 of issue of the license a tribe shall notify the

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1 commission of the issuance.

2 So my question here is the way we do

3 it, I don't think it is necessary to notify you in 30

4 days, because the notification of results of the

5 background check is our notification to you that a

6 license has been issued. So I'm probably looking for

7 a little clarification on that.

8 MS. ECHO-HAWK: And that was something

9 that we look for clarification for ourself on, because

10 most tribes do that. They send us a Notice of

11 Results. That means not only have they completed the

12 background investigation, but they're also issuing a

13 license.

14 Unfortunately, the way that the act is

15 written, it requires two separate steps, and that's

16 the extra step that I was referring to earlier. And

17 so we're trying to figure out a way to do that that's

18 easy to manage, because the statute says that the

19 tribe not only has to issue us the notice of the

20 background investigation results; they also have to

21 notify us once they issue a license, and that's

22 statute, so we can't do anything about that.

23 It hasn't been done uniformly in the

24 past. Under the pilot program we haven't required

25 that in some cases. Not for any other reason but I

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1 think perhaps oversight. So we tried to remedy that

2 in the draft.

3 MR. MINKER: Fred Minker, Jamestown

4 Tribal Gaming Commission. Take care of that one form

5 and you have to parts on it where they could check a

6 box for each and be done with it? It's just a form we

7 send.

8 MS. SHYLOSKI: Right. And what we

9 found was that IGRA says that tribes must notify the

10 NIGC of the results of a background check before the

11 issuance of a license, and IGRA specifically uses the

12 term before, so hence is why the two notifications.

13 Once background results are in and then another once

14 the license is issued, but one has to be before the

15 other.

16 MR. MINKER: But one happens 30

17 seconds before the other.

18 MS. ECHO-HAWK: Exactly. But

19 unfortunately -- and we went over this, because that

20 was my thing, one of the things that we looked at, can

21 you just use one form, and because the way the statute

22 was written, whether it's a drafting error or an issue

23 or just a little it was less than clear or weren't

24 sure how it was all going to play out at the time they

25 drafted this, the words were written that way and so

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1 we have to draft the regs to meet those requirements.

2 MR. MINKER: Just as you start reading

3 the form at the top and then we'll have it.

4 CHAIRWOMAN STEVENS: Pause. Pause

5 here. Linda, do you have...

6 MS. HELM: Yeah. I just wanted to

7 say, could we have a standard form for the second

8 notification? I assume that you're planning on that?

9 CHAIRWOMAN STEVENS: Yes. What we

10 found was that the regions were all doing it a little

11 bit differently. We were asking for the same

12 information, but the forms were not uniform across the

13 regions and that's what we will work on as an internal

14 practice, ensuring that what we're doing and the

15 manner in which we request this and process this

16 information, the forms you all have to fill out, are

17 consistent across all of the regions.

18 MR. ARMSTRONG: So I take it there's a

19 process in place where we submit the NOR

20 electronically to NIGC. So my recommendation at this

21 time would be to also have that issuance form of a

22 license set up electronically so when we do submit the

23 NOR, we can almost immediately at that time send you

24 an issue of the license.

25 CHAIRWOMAN STEVENS: That's also

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1 something that we've heard. Some regions see a lot of

2 electronic activity. There's some regions who do not,

3 simply because the tribes may not have that technology

4 open, so we want to leave those avenues open. But

5 certainly electronically would be part of this process

6 and would continue to be.

7 MR. SMALL: Excuse me. Nathan Small

8 with the Shoshone-Bannock tribe. It was discussed in

9 the '90s, and I don't know if it's ever been put

10 together, but do you have a list of people that are

11 considered like undesirables and once their name comes

12 up that the tribes are notified immediately that not

13 to deal with them? I think at one time there was

14 tribes were asking if that list could be made

15 available to the tribes.

16 CHAIRWOMAN STEVENS: I don't believe

17 that we do. I know I was just on the Nevada website

18 the other day and I note they have a list of

19 unsuitables or they've been revoked, denied, suspended

20 for whatever reason.

21 We actually had this discussion last

22 week, didn't we, about, you know, to what extent are

23 we able to share information. It comes into the same

24 arena as the NIGC sharing other tribe's information.

25 We've been asked, you know, can you be some sort of --

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1 can you help us somehow so that we're not going

2 through the same processes. If another tribe has

3 licensed someone, shouldn't we be able to know more

4 about them.

5 If you use the tribal access portal,

6 the TAPs program, and many folks do, what comes up is

7 just information about where that licensee has worked

8 before and it will tell you the name of the tribe and

9 then you can go and call that tribe and get that

10 information. And we've been asked can't you do more

11 than that? Can you tell us the status? Are they

12 unsuitable? Have they been licensed there, revoked,

13 suspended for any reason?

14 There's a number of problems, I guess,

15 we've encountered and I probably want to talk to the

16 legal ones first or I might punt to Jo-Ann here about

17 why we may be limited on how much information that we

18 can share.

19 MS. SHYLOSKI: One of the practical

20 concerns is the NIGC having up-to-date information

21 about individuals, and under our current regulations I

22 believe that when someone is not licensed, tribes may

23 but don't have to necessarily share that information

24 with us and so for us to have the information on why

25 someone has been denied a license, we need that

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1 information.

2 But this all gets into the privacy act

3 and whether we can share this type of information with

4 tribal regulatory bodies and so we are taking a look

5 at it, but we have to deal with both the practical and

6 legal issues involved.

7 CHAIRWOMAN STEVENS: We understand

8 that that would probably make things a lot easier for

9 you, but we do want to be careful about what our

10 authorities are and that we're not causing other

11 problems in doing so.

12 Do we have any other comments on the

13 pilot program, the 556 or 558? Yes, Linda.

14 MS. HELM: I would just like to thank

15 you, Tracie, and the rest of the NIGC staff, Mark, for

16 the opportunity to share our comments with you today

17 and for your openness to hear what the tribes have to

18 say about these proposed regulations. It's most

19 appreciated.

20 CHAIRWOMAN STEVENS: Well, thank you

21 very much. Yes, Scott.

22 MR. WHEAT: Scott Wheat. I do have

23 some comments on behalf of Spokane with respect to 558

24 issues or kind of 558. It ties back into

25 fingerprinting. One of the things, and you may have

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1 heard this from other tribes. I wouldn't be surprised

2 if you have. As all the commissioners or staff in the

3 tribes grew up in this industry, you know that all

4 tribes are -- you know, obviously we have to

5 fingerprint and background PMOs and key employees.

6 The state requires us to do that, but some tribes as a

7 matter of self-government choose to engage in

8 backgrounding of a broader base of their facility

9 employees and certainly it's appropriate for them to

10 do so, self-governing entities.

11 However, we get into practical

12 difficulties in trying to adequately background folks.

13 You know, for instance, here in Washington State.

14 Some states are different. Washington tribes can get

15 decent access to the state and criminal database, but

16 that doesn't help us in Oregon and that doesn't help

17 us in Idaho.

18 Representing Spokane, you know,

19 Idaho's not that far away from the Spokane reservation

20 and you can have someone that looks like a saint in

21 Washington but, you know, they may have done some

22 things not so saintly over in Idaho, and that

23 information can be real hard to get to.

24 So Spokane requests that the

25 commission consider if tribes request fingerprinting

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1 or at least NCIS criminal history checks, that coveted

2 nationwide criminal database, that the commission at

3 TGA's request accommodate those backgroundings. We

4 also understand that it costs money.

5 So we would propose that tribes that

6 want to do that beyond, you know, what IGRA requires,

7 that they be required to pay an additional to cover

8 the costs to the NIGC for that, but just practically

9 speaking for tribes that want to do that and there are

10 sound policy reasons to do that, it's very difficult

11 and onerous and federal access to that national

12 criminal database is very helpful. So we would just

13 request that the commission consider that.

14 CHAIRWOMAN STEVENS: We had some

15 tribes, I'm not sure that it's gone quite like that,

16 that sort of situation where you're having issues with

17 other states and getting backgrounding information. I

18 know we've been asked about if -- other than key

19 employees or vendors, tribes have said can we run them

20 through your fingerprint data system and we have --

21 I'm looking at Jo-Ann. This would fall into that

22 category?

23 MS. SHYLOSKI: Yes, it would.

24 CHAIRWOMAN STEVENS: So we'd pay to

25 play on the fingerprinting, and I guess that would be

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1 a possibility. I'm trying to think of how we could do

2 that or a tribe would have to do it through their

3 ordinance or just an agreement or if they utilize

4 that.

5 MS. SHYLOSKI: We would have to take a

6 look at our statute and we would also have to

7 coordinate with the FBI on the issue. One of the

8 things that was done a few years ago was to change our

9 regulations to allow tribes to deem anyone that they

10 think falls within the PMO or key employee category as

11 a primary management official or a key employee.

12 MR. WHEAT: But see, that gives us

13 problems. I mean, vendor is like one category that's

14 eligible or in a pool of folks that the tribes might

15 want to background. So are casino employees who

16 aren't PMOs or are primary management officials. So

17 the tribes may not want to impose the more stringent

18 kind of, you know, qualifications, have you ever been

19 convicted of a felony, this or that.

20 What I'm trying to say here is there's

21 tribes that are looking sometimes to help people that

22 may not have the impeccable background of a PMO or key

23 employee but still a good, solid person that they want

24 to have on the facility staff somewhere, but they want

25 to do a real cursory background check to just make

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1 sure that they haven't done some of the big, insane,

2 murder, chaos, mayhem, and make sure they're safe on

3 that level, but don't want to put them in this elite

4 tier of PMO or key employees.

5 This is really where I get most of my

6 tribal clients asking, you know, we'd like to do this,

7 but we always run into a problem. It's not

8 necessarily the states are uncooperative; it's just

9 difficult to do a 50 state search on somebody. It's a

10 lot easier to punch it through the FBI's database.

11 MS. SHYLOSKI: Right, right. And

12 we've heard this comment from other tribes in terms of

13 wanting to background vendors and contractors and

14 others.

15 MR. WHEAT: Right. But I guess I'm

16 saying that treating them as a key employee or

17 designating them under your gaming ordinance as a key

18 employee or a PMO doesn't necessarily appease all of

19 the issues that are resulting in that.

20 MS. SHYLOSKI: Right. I understand

21 that. I just wanted to mention that as sort of an

22 aside so that folks know about that change.

23 CHAIRWOMAN STEVENS: But it does give

24 us something to think about. If we can or what the

25 barriers would be to not -- to do what you're asking

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1 but not through that higher level scrutiny, higher

2 scrutiny process.

3 MR. WHEAT: Let me just give you an

4 example. Like folks like Sharon, if she's still here,

5 who represents commissions could probably appreciate

6 this. You're sitting around the table. You're

7 thinking about drafting, you know, tribal licensing

8 criteria and you get to your non-PMO and your nonkey

9 employees and they say, well, we'd like to hire folks,

10 but we just want to make sure that we don't have like

11 a murderer or a pedophile on our staff.

12 I mean, goodness gracious, what if

13 something horrible happens and we didn't know because

14 we didn't even do a background check. That's real

15 practical. You know, as a lawyer, I can really

16 appreciate that concern and I think that's a big

17 reason where the ask is coming from. Just how much

18 you would facilitate those kind of checks and make it

19 much easier for the facilities and I think they have

20 sound policy reasons for it.

21 CHAIRWOMAN STEVENS: Thank you, Scott.

22 So that was 556, 558. Any others on monitoring and

23 investigations aside from Sharon House's fun

24 observations?

25 Actually, I'm considering other words

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1 besides closure. It looks as though this has to do

2 with temporary closure or permanent closure of a

3 facility, so we'll examine some other terms we might

4 be able to use instead that would show that we're

5 terminating an investigation.

6 I do want to open the floor up for

7 anything that may have come up earlier today in group

8 one on fees, facility licensing, issues with Class III

9 minimum internal control standards or processes by

10 which we should undertake addressing Class III minimum

11 internal control standards.

12 Anyone who wasn't here this morning,

13 this would be a good time to speak.

14 MR. GOBIN: I'll raise my hand. I

15 wasn't here this morning. Glen Gobin. I understand

16 that there was some discussion on Class III and the

17 authority of NIGC to issue regs, and, again, just want

18 to state that from Tulalip's perspective, we would ask

19 that NIGC repeal any promulgation of any regulation

20 regarding Class III MICS, and as the CRIT decision

21 clearly defines that NIGC does not have the authority

22 for that and accept that and move forward in a

23 positive manner acknowledging that.

24 CHAIRWOMAN STEVENS: Thank you.

25 MR. GOBIN: That being said, I would

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1 just like to make an overall statement that we've

2 participated and commented a number of times on

3 amendments to the regulations and we would encourage

4 the NIGC to move forward with the promulgation of

5 formal rule-making process to move forward with the

6 good and practical changes that have been made,

7 recognizing the tribe's concerns that have been raised

8 and the issues that have been raised and move forward

9 and start to bring a conclusion to this process here

10 and encourage you to move forward in that.

11 And again, I just want to thank you

12 again for your commitment to get this done and the

13 consultation process and schedule that you have, but

14 it's time to move forward into that final stage and

15 bring it to a conclusion. I encourage you to do that

16 and just commend you and thank you for upholding the

17 true meaning of consultation and listening to tribal

18 concerns and comments and addressing that with a

19 positive manner.

20 CHAIRWOMAN STEVENS: Thank you, Vice

21 Chairman. I appreciate your desire to move these

22 forward. One of the things we are doing and it may

23 seem because it is such a departure for this agency

24 and this commission or for the NIGC, we are adding

25 extra steps, where we're talking first before we're

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1 drafting and then having a discussion draft.

2 It does seem a lot, you know,

3 repetitive, but we do want to be honorable and

4 respectful in the way we consult in honoring executive

5 order 13175 where we discuss the need for change

6 before making the change and having tribes at the

7 table when we draft.

8 It does add some extra time, it does

9 add extra steps, but we hope that what it does is when

10 we get to Notice of Proposed Rule Making and when we

11 get to final, we have a more finished product. That,

12 in theory, when we address the concerns as we go

13 along, the comments will shrink and there's more

14 likelihood that they'll go through more smoothly.

15 But I'm with you. I think we'd like

16 to speed this along, but we do have to be mindful of

17 trying to include everybody. You keep seeing us

18 around and meeting to meeting to meeting and trying to

19 reach out to as many regions and tribes as we can at

20 each step of the process. And it does seem like a

21 lot, but I think we're going in a pretty good clip in

22 government time.

23 So I appreciate that. I think you

24 just chop chopped us and said hurry up. We hear you.

25 Thank you.

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1 MR. WHEAT: I just wanted to...

2 Consultation's an interesting thing and, you know,

3 when it works its best, on the best day we're talking

4 about how you might be able to do the right thing,

5 bringing a conclusion. So there's talking about doing

6 the right thing, but where I'm from I was always

7 taught that the real key is doing the right thing, not

8 just talking about it.

9 And on that note I really wanted to

10 express my deep appreciation for the tremendous work,

11 Madam Chair, that you've done on the Fond du Lac NOV

12 that was issued just recently. We haven't discussed

13 it today, but I want to encourage all of the attorneys

14 in the room and all the folks in the room that have

15 attorneys to talk to between now and tomorrow before

16 we get to the issue of sole proprietary interest

17 tomorrow, that you review that NOV.

18 It's a very strong analysis of sole

19 proprietary interest and the taxation and agreements

20 in which a state or a city may be getting whopping

21 percentages and type of gaming revenue and whether or

22 not that violates IGRA or basically the requirements

23 that tribes have the sole proprietary interest in the

24 gaming operation.

25 So that's been the talk of the legal

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1 community today and so I'd encourage you all to get on

2 the TAP where the NOV is posted and get a good look.

3 But I just want to thank the

4 commission. That's been a long-standing issue. Since

5 before IGRA was even enacted these agreements were in

6 place and it's been a long time coming but the day's

7 finally come where the commission's taken action.

8 Thank you.

9 CHAIRWOMAN STEVENS: Yeah, we will be

10 having a discussion tomorrow on sole proprietary

11 interest. And in terms of the Fond du lac NOV, that

12 was an issue that I, as the chair, issued two days

13 ago. We will not be able to speak to any specifics on

14 that NOV. I think that we have posted on our website

15 the redacted? The redacted. Although my

16 understanding is what has been in the news was the

17 actual NOV that was released by some other party. It

18 was not released by the NIGC.

19 But, you know, we won't be able to

20 speak to it because it's an open matter. There's time

21 frames around the issuance of NOVs where the parties

22 have due process rights under appeal and so we cannot

23 talk about it publicly, nor should we. So please

24 don't talk about it tomorrow or ask questions about

25 it.

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1 The NOV speaks for itself, so feel

2 free to read what we have on our website or whatever

3 version you might have that we did not release, but we

4 will talk about sole proprietary interest tomorrow as

5 we talk about group five.

6 Any other comments on anything we've

7 talked about today? Yes, Dawn.

8 MS. VYVYAN: Thanks. I have a

9 question about the collateral agreements and what

10 prompted the discussion or the policy reasons behind

11 why you may want to consider looking at approval of

12 collateral agreements.

13 CHAIRWOMAN STEVENS: I think it was

14 tribes. Tribes brought it to our attention and sole

15 proprietary interest. I know Jo-Ann and Lael want to

16 talk about that more of what kinds of instances that

17 have been brought to our attention.

18 MS. ECHO-HAWK: We get requests from

19 tribes all the time to take a look at these agreements

20 and it's sort of hindsight, right, so they come to us

21 much later and they say, look, if you look at all

22 these agreements that are collateral to a management

23 agreement, you put them all together and we're paying

24 80 percent of gross out.

25 Maybe the true impact wasn't known at

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1 the time they entered into the agreement, but one of

2 their concerns was why aren't you looking at these,

3 why don't you approve them. So we get -- it was a

4 request that came from tribes, something that we

5 looked at. There was enough sort of disparity in the

6 comments from the Notice of Inquiry that we put it

7 forward for additional review.

8 Because there's not -- you know, a

9 number of these regs in the instances of the comments

10 that came to us, they were all pretty uniform.

11 Everyone was like, yeah, okay, or, no way. In this

12 case there's a lot of sort of disagreement about which

13 way we should go and concerns about sole proprietary

14 violations and what our trust's responsibility is

15 given that we have to approve or disapprove management

16 contracts and should that also include those

17 agreements that are collateral to that.

18 So there was enough disagreement that

19 the commission felt like it was something we should

20 take a closer look at in this process.

21 MS. VYVYAN: Will you give me an

22 example, because I'm thinking of a management

23 contract, there are subcontractors involved. So

24 something that's collateral to a management contract

25 would be...?

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1 MR. WHEAT: Financing, loan

2 agreements, consulting agreements leading up to the

3 management contract, for the scoping, design,

4 engineering, environmental work leading up to the

5 facility that they may one day manage, is what you

6 typically see coming across their desk. And they're

7 all tied into, you know, the interest rate's X if we

8 get to manage your facility and the interest rate's Y

9 if we don't. So they're all tied into that end

10 management agreement.

11 But oftentimes the other side of that

12 coin is you get tribes that you need money to develop

13 these things and so you're balancing the trust's

14 responsibility to ensure that there's no violations of

15 IGRA and other instances with a sovereign need to be

16 able to contract to find money to develop tribal

17 resources. So it's really a pretty weighty issue

18 that's on the table here.

19 MS. ECHO-HAWK: We also get some

20 pretty crafty contracts. So, say, you have a person

21 who's a developer, who also provide a loan, who also

22 has like his son is like the owner of the management

23 contract and then they also lease the slot agreements

24 to the tribe at X amount of rate and you see some very

25 -- some maneuvering out there, so that, really, it's

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1 maybe one or two people that are benefiting, but

2 they're getting so much money.

3 You see stuff like that come across

4 too. So it's pretty complicated and a lot of times we

5 don't see those agreements until 10 years down the

6 line and all of a sudden the tribe hands us this stack

7 of agreements and says, hey, look, this violates the

8 sole propriety interest. These agreements are all

9 collateral because they all relate back to the

10 management contract that you approved.

11 So it's pretty complex, but, you know,

12 we're trying to find the balance, I guess.

13 CHAIRWOMAN STEVENS: And is there a

14 need to define that, you know, we'll talk more about

15 sole proprietary interest tomorrow so that it's clear

16 for those going into business with tribes what we're

17 looking for. Right now it's just what our management

18 contract say. Most of the banks or the developers or

19 consultants and all the people involved with these

20 scour our approved management contract or declination

21 letters to see what the pattern is.

22 We do, I think, have some guidelines,

23 have some regs, but, you know, with regard to

24 collateral agreements, do we need to be clearer about

25 what those are so that we don't run into the executed

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1 10-year-old collateral agreement.

2 MS. VYVYAN: I guess I'm just thinking

3 if there are other laws in place that would govern

4 that type of activity. I don't know. Maybe not.

5 MS. SHYLOSKI: The Senate Indian

6 Affairs Committee a few years ago contemplated

7 revising IGRA to have the NIGC address --

8 MR. WHEAT: All the contracts.

9 MS. SHYLOSKI: -- all different types

10 of contracts. So it has been an issue that's been

11 lingering.

12 CHAIRWOMAN STEVENS: What we've been

13 trying to do is just contract by contract and really

14 asking questions, are there other collateral

15 agreements. And it may be true that we see everything

16 on the front end.

17 MS. SHYLOSKI: IGRA gives the chair

18 the authority to approve or disapprove management

19 contracts, but we have issued a bulletin -- and we

20 issued it years ago -- where if folks are unclear

21 about what type of contract they have entered into or

22 are contemplating entering into, they can submit it to

23 the NIGC and our Office of General Counsel will issue

24 a legal opinion about whether it constitutes a

25 management contract or whether it violates the sole

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1 proprietary interest mandate statute.

2 CHAIRWOMAN STEVENS: And speaking of

3 lending instruments. We're asking that if there are

4 -- you know, in the face of the Lake of Torches

5 decision, one, for those lending documents that have

6 been executed, we've had some tribes and we've been

7 very consistent about we're not going to address those

8 that are already executed. They've already gone

9 under. They're on the road. While this is under

10 litigation, we will not revisit those at this time

11 until we see what happens in the courts.

12 We've had tribes -- and we've been

13 very clear about this -- send us 20 page briefs about

14 why we need to revisit it, right in the middle of this

15 litigation. Save your money on your lawyers. I'm not

16 sure how much that cost the tribe to do that, but

17 we're not at a point when this is still in litigation

18 to be making determinations on already executed

19 lending instruments and looking for management

20 provisions.

21 However, going forward, banks are now

22 asking for a declination letter from our Office of

23 General Counsel, not from me, not from the

24 commissioners, to see if there's any provisions in the

25 lending instruments for management. We ask, please,

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1 give us six to eight weeks on unexecuted instruments.

2 We encourage you to share some of your language with

3 us before you make your deal.

4 What we've seen is tribes make the

5 deal and then we had a problem with language and now

6 you have to renegotiate your terms. So before you get

7 to signing on the dotted line and finalizing your

8 terms, please work with us and give us six to eight

9 weeks, please, to help you with the terms and make

10 sure that we, the Office of General Counsel, can give

11 you a declination letter.

12 MR. WOOLSEY: Hi. Tim Woolsey from

13 Colville tribes. So let me just ask. Are you also

14 contemplating a separate analysis of sole proprietary

15 interest from the management contract context or is it

16 all going to be under the umbrella of a management

17 contract?

18 Is there going to be any separate kind

19 of analysis for sole proprietary interest through some

20 other instrument or agreement the tribe might be?

21 CHAIRWOMAN STEVENS: Where are we at?

22 I'm just thinking, because we're on tomorrow's agenda

23 now.

24 MR. WOOLSEY: We can talk about this

25 tomorrow if I'm being premature.

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1 MS. ECHO-HAWK: I think the quick

2 answer is that yes, that that is, that is a mandate of

3 IGRA and it's not solely in the context of a

4 management contract. Just, I mean, you can see that

5 from some of the information that's on our website.

6 Lately, it has mostly primarily come

7 up in that context, but I think that there are other

8 situations contemplated that that analysis -- that the

9 agency would want to do that analysis.

10 CHAIRWOMAN STEVENS: Yes.

11 MR. GOBIN: I'll probably get in

12 trouble now. Well, I understand it so that what I

13 hear the commission saying is that they're going to

14 wait until a court decision comes out from the lending

15 lawsuit, the fire --

16 CHAIRWOMAN STEVENS: Lake of Torches.

17 MR. GOBIN: -- Lake of Torches and so

18 you're going to wait for that decision. Well, there

19 is a decision in the CRIT decision, and so we're still

20 talking about regulations when the court has decided

21 there's no authority. Just so we're looking at those

22 in the same manner.

23 CHAIRWOMAN STEVENS: Got you. The

24 other thing, too, I was reminded that I wanted to make

25 an announcement that we are having training in

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1 Alabama. Where are you at, Nimish? Can you let us

2 know the next training that's taking place so we can

3 invite everybody to come out?

4 MR. PUROHIT: Can I have it tomorrow

5 morning? I'll have all the list. I'll put it up on a

6 web page.

7 CHAIRWOMAN STEVENS: It's RGT training

8 in Alabama.

9 MR. PUROHIT: There's back in Tulsa

10 too the week after next, I believe.

11 CHAIRWOMAN STEVENS: So we have

12 regional trainings that are coming up. I think we

13 might even have some machine gaming training coming

14 up. Please check our website and our calendar. We

15 invite you all to attend and if you have any requests

16 for training, you can always contact the region and

17 they will address your concerns and we'll figure out a

18 way to address your request for training.

19 So if there's nothing else, then I'd

20 like to go ahead and break for the day. Tomorrow

21 we'll be back and we'll talk about group three and

22 five. Group three being Class II minimum internal

23 control standards, technical standards for Class II

24 gaming machines, and then group five is the

25 self-regulation regulation. And I'm not stuttering.

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1 That is the self-regulation regulation for Class II

2 and the possibility of sole proprietary interest

3 regulations or how we address that.

4 So those are the fun-filled topics for

5 tomorrow. We invite you to come back, and in the

6 meantime, you all have a good day. Thank you again.

7 (Adjourned at 4:04 p.m.)

8

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1 REPORTER'S CERTIFICATE

2

3 I, CHERYL J. HAMMER, the undersigned Certified

4 Court Reporter, pursuant to RCW 5.28.010 authorized to

5 administer oaths and affirmations in and for the state

6 of Washington, do hereby certify:

7 That the sworn testimony and/or proceedings, a

8 transcript of which is attached, was given before me

9 at the time and place stated therein; that any and/or

10 all witness(es) were by me duly sworn to tell the

11 truth; that the sworn testimony and/or proceedings

12 were by me stenographically recorded and transcribed

13 under my supervision, to the best of my ability; that

14 the foregoing transcript contains a full, true, and

15 accurate record of all the sworn testimony and/or

16 proceedings given and occurring at the time and place

17 stated in the transcript; that I am in no way related

18 to any party to the matter, nor to any counsel, nor do

19 I have any financial interest in the event of the

20 cause.

21 WITNESS MY HAND this 25th day of July 2011.

22

CHERYL J. HAMMER,

23 Washington State Certified Court Reporter, #2512

chammer@yomreporting.com

24

25

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1

1 59:16 97:17

10 9:7 84:14 93:9

111:8 151:5 152:1

101 24:14

10200 1:9

10th 116:13

110 93:20

11:51 85:2

12 84:14 109:6

120 30:6 49:12,13

49:14,17 66:20

68:25

13 58:13,19 61:17

13175 34:19 145:5

14 1:12 2:1

15 50:5,6,7 61:18

130:25

16 79:21 83:1 86:20

94:7

17 61:18

17th 31:23

18 94:6

19 61:18

1993 29:14

1:30 84:22 85:3

1:42 86:2

1d 120:5

1st 18:1,1 54:1,1,6

54:10,10 59:20

2

2 99:4

20 58:14 86:20

106:6 153:13

2009 58:16

2011 1:12 2:1

158:21

22 106:3

22,000 3:9

25 50:20 92:6 109:7

109:9

25,000 94:8

2512 1:24 158:23

25th 158:21

2701 50:20

28 99:5

3

3 76:10,11

30 21:14 30:13 31:3

58:19,22 113:15,21

114:2,2,14 117:24

118:23 131:24

132:3 133:16

30,000 37:15

31st 21:14

35 106:4

36 76:11

39 99:19

4

4 19:10 76:10

4:04 157:7

5

5 3:17 19:10 50:20

58:13,13 61:17

5.28.010 158:4

50 141:9

502 128:24

502.22 76:18 78:11

502.22. 78:8

514 13:10 17:3,11

17:12

519 95:8 101:1

523 17:4 21:17

524 104:17

537 110:24 116:24

119:22,25

537.14 120:5

539 104:18

542 17:5 45:22 46:3

552 71:7

556 110:21 111:25

112:1,5 137:13

142:22

558 110:21,21

111:25 112:7 113:4

113:6 137:13,23,24

142:22

558.2 131:15

559 13:11 17:6,11

29:17,18 78:16

559.2 47:16 66:19

67:10

559.3 71:20

559.5 76:10

571 99:2 110:23

122:4

571.4 99:3 124:3

571.5 123:14

571.6 125:7

573 88:8,15 91:16

97:13 109:15,21

573.1 89:2 91:24

573.2 89:5 92:6,22

573.2. 97:17 99:19

573.4. 109:25

573.6a2. 109:9,18

575 100:5,16

576.6 109:10

577 97:9 104:19

106:19

6

60 15:4,7 30:7,7

58:19,22 66:20

67:23 69:12,19

112:18

600 38:18,18,19

61 62:9

6a2 109:15

7

7 53:24 59:25

8

8 53:24 59:25

80 148:24

9

90 19:13,13 58:19

58:22 111:14 118:9

118:13,15

90,000 3:21

90s 135:9

92 109:7

92nd 19:15

9:13 1:13 2:2

9th 90:8 97:14 98:2

120:17 123:22

a

a.m. 1:13 2:2 85:2

abide 65:16 77:25

ability 45:15 50:16

123:11 158:13

able 21:1 67:23 73:5

78:4 88:24 131:8

135:23 136:3 143:4

146:4 147:13,19

150:16

absence 59:2 77:4

absent 84:21

absolute 66:8

absolutely 70:13

91:21 92:16

abstract 108:12

accept 37:9 44:2

51:20 143:22

acceptable 74:23

accepted 104:4

access 116:18 122:6

122:16 123:15

125:21,23 136:5

138:15 139:11

accolades 39:12

accommodate 96:1

139:3

accomplished

101:17

accountant 38:14

accounting 22:1,4

22:11 60:7,12

accurate 15:21

17:22 18:4 46:23

54:2,9,22 61:8

158:15

accurately 25:7 59:9

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achieve 108:6

achieving 92:16

acknowledging

143:23

acres 3:10

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12:23 13:7 16:12,18

41:13 84:24 88:5

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announcement

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audit 52:23 80:19

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audited 18:2,25

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auditing 44:23

80:24 128:2,9

auditor 9:14

audits 25:7 52:9

august 4:9 90:8

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authorities 56:1

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authority 27:5

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64:11 79:11,19,19

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95:14 96:14 121:13

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Veritext/NJ Reporting Company

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chair 2:7,18 7:20

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66:5 67:19 68:1,20

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122:19 124:3,4,5

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7:20 66:5 67:19

68:1 69:23 70:7,13

71:17 73:20 76:7

78:22 83:5 86:6

87:3,23 88:1 91:15

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108:1 110:9 125:11

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121:10,13 148:9,12

148:22 149:17,24

151:9,24 152:1,14

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25:24 27:4 29:3

56:2

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8:3 10:17 11:12

15:6 16:10 21:20

22:19 24:23,25

27:16 29:9 47:1

54:18 65:13,17 68:8

71:12 84:22 89:21

91:22 93:21 97:22

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126:21 130:18,25

143:7 147:7 148:20

151:3 155:6 156:3

157:5

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43:4 80:5 98:9

135:11,23 136:6

155:14

comfortable 60:10

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4:2 5:4,5 13:5 32:10

32:11 54:6 82:14

103:11 142:17

147:6 150:6 156:12

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comment 13:21 15:4

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33:11,15 35:17 40:8

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50:13 53:14 69:25

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commenter 122:12

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49:3,7,9 50:10 51:5

51:22 58:24 59:3

62:20,22 64:14

65:24 66:6 67:2,6

83:23 84:21 86:9,14

87:4,18 88:18 90:25

91:7 92:8,20 98:1

103:25 105:16,20

106:3,4,4 107:20

108:1,10,24 110:10

111:9 116:19 120:1

120:13,18,20 121:2

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123:18,20,22

127:18,20 128:20

129:18,21,22

130:20 131:4

137:12,16,23

144:18 145:13

148:6 149:6,9

commercial 45:9

commission 1:3

2:15 6:1,15,21,25

7:6,16 9:5 10:1 15:3

16:2,8,13 28:8 29:8

32:10 33:8,10 39:11

39:18 40:3 49:3

51:3 59:15 64:12

66:25 70:19 75:8

84:12 87:6,9 88:12

88:21 89:3 90:12

91:4,17 92:1 94:13

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800-227-8440 973-410-4040
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[definitions - duration] Page 9

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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frame 30:5 35:12

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fully 29:8

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g

gaap 20:24 21:24

22:4,5 23:4,4,6,7,13

24:2,7,8 25:1,13,19

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gaming 1:3 2:15

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6:21,25 7:6 8:19 9:5

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23:15 36:4 39:21

44:17,18,21,25 45:2

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[fingerprint - given] Page 12

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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half 13:5

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Veritext/NJ Reporting Company

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66:25 99:2 108:18

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igra 31:1 47:25 57:8

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ihs 32:4 63:11 64:2

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ii 27:24 28:12 55:7

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iii 17:6 25:25 26:6,9

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82:8,13 83:11,23

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implementation

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includes 30:9 78:15

88:6

including 39:14

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inclusive 39:21

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[health - incorporate] Page 14

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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[incorporated - issues] Page 15

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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labor's 41:3

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land 47:18,22 48:14

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67:1,13 68:9,20,23

69:22 70:25 71:1

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left 9:22 19:22 31:6

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Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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