22 Indian Gaming July 2015

The General Accounting Office (GAO) recently

published a report on the regulation of Indian gaming

titled Indian Gaming: Regulation and oversight by the Federal

Government, States, and Tribes. The report describes the

numerous tribal and governmental resources devoted to

effective regulation and recognizes the importance of gaming to tribal economic development and self-determination.

The GAO report did not uncover any major concerns or controversies regarding the National Indian Gaming Commission’s (NIGC) statutory and regulatory obligations pursuant

to the Indian Gaming Regulatory Act (IGRA) toward tribes

or other stakeholders.

The GAO limited its recommendations for the NIGC to

two primary areas: First, the report states that NIGC should

institute standards to analyze the effectiveness of its training and technical assistance. Secondly, the report stated

that the NIGC should communicate more with states

concerning Class III gaming.

Jonodev O. Chaudhuri, who was recently confirmed as

NIGC’s Chairman, welcomed the GAO report. “The report

is yet another tool for the Commission to assess its performance in the regulation of Indian gaming, while also

illustrating areas where the Commission can continue to

advance the goals of the Indian Gaming Regulatory Act,” said

Chaudhuri. “In fact, I am pleased to report that the

Commission has already put in place many of the recommendations made by the GAO, and we are working to further

strengthen technical assistance, compliance and enforcement in the Indian gaming industry through application of

key priorities and guiding principles that I have laid out for

the agency. In many cases, our efforts in these areas exceed

the report’s recommandations.”

During his confirmation proceedings, Chairman Chaudhuri

outlined specific agency priorities that are well-targeted

to advancing the sound regulation of Indian gaming. These

priorities include:

1) Active performance of regulatory duties.

2) Engaging in ongoing meaningful tribal consultation.

3) Staying ahead of the technology curve.

4) Supporting a strong workforce both in-house and

among regulatory partners.

5) Strengthening dialogue and relationships with all

relevant stakeholders.

In the implementation of these priorities, NIGC’s Chairman

has provided specific guiding principles for the agency, including the need to:

• Act within appropriate agency authority to address

and mitigate activity that jeopardizes the integrity

of Indian gaming and, by extension, the valuable selfdetermination tool that it represents.

• Swiftly act on anything that jeopardizes the health and

safety of the public at gaming establishments, including

employees and patrons.

• Engage in sound regulation without unnecessarily

stymieing lawful economic development activities.

• Protect against anything that amounts to gamesmanship on the backs of tribes.

Shannon O’Loughlin, NIGC’s Chief of Staff appointed

by the Chairman in May added that “application of these

priorities and principles has already seen positive results

and is taking the agency well beyond GAO’s recommendations. For example, prior to the GAO’s recommendation

that the NIGC should communicate more with states about

Class III gaming, NIGC established a new position of

Legislative and Intergovernmental Affairs Coordinator in its

D.C. headquarters. This position was created specifically to

grow its commitment to communicate with state and local

governments, as well as Congress and other federal agencies."

Eric Shepard, General Counsel for the NIGC, also named

by the Chairman in May, said "in addition to the agency’s

communications to states and other stakeholders, the NIGC

is fully committed to the President’s November 5, 2009

Executive Memorandum on Tribal Consultation with

Indian tribes and Executive Order 13175 on consultation and

coordination with Indian Tribal Governments. Since 2011

the NIGC has held over 50 tribal consultations on every

regulatory initiative considered by the Commission in an

effort to ensure timely, meaningful and substantive conversations with tribes.” The GAO report did not provide any

NIGC REPORT

National Indian Gaming Commission

Moves Beyond Recommendations of

General Accounting Office Report
comment or insight on the NIGC’s activities regarding tribal

consultation.

O’Loughlin further explained that the NIGC recently

created a Division of Technology, which will play a critical

role in ensuring that the NIGC stays abreast of the everchanging technological landscape of gaming in the performance of its regulatory functions, including uncovering and

mitigating compliance issues, training regulatory partners,

and performing internal operations consistent with principles

of good government.

“Having a director at the senior level who can lend their

voice to the policy discussion helps to ensure that the agency

takes a comprehensive approach to the ever-changing landscape of gaming technology and informs all agency functions,

including training, technical assistance, internal operations,

compliance functions and data collection and retention,”

said Chaudhuri.

The development of the Division of Technology will

enhance the agency’s ability to capture and analyze relevant

data to help track the effectiveness of NIGC training and

technical assistance and shape agency operations. This is

specifically on-point with the GAO’s recommendation regarding performance standards. The agency is already instituting measurement standards, including knowledge reviews, to

analyze the effectiveness of its training and technical

assistance to support compliance. In addition, over the last

two years the NIGC has trained more people at more events

and the agency projects a continual increase in training and

attendance in 2015. In fact, tribal attendance at NIGC

training was up 18% in 2012, and 2014 attendance was up

32%. Additionally, NIGC’s analysis of Agreed Upon

Procedures reports show a 34% decline in high-risk findings

and a 36% decline in overall noncompliance findings

from the reports received between 2009 and 2013. The

NIGC recognizes that a singular measurement cannot provide

a holistic view of its effectiveness, especially given recent regulatory changes, including the 2012 amendments to Class II

Minimum Internal Control (MICS) standards.

A fuller understanding of NIGC’s overall effectiveness as

a regulator may be assessed through tribal gaming operations’

compliance with tribal laws and the IGRA. Some have

coined the phrase “voluntary compliance” to explain tribal

compliance efforts, but have misconstrued the meaning.

Chairman Chaudhuri explains that “the concept of voluntary

compliance pursuant to the IGRA does not mean that tribal

gaming operations are left alone to comply with the IGRA.

It is the goal of the IGRA that tribes will assert their selfdetermination, develop regulatory capabilities and hire strong

regulators, so that their gaming operations will comply with

tribal laws, and federal law and regulations.” Chaudhuri

points out that “the NIGC provides the technical training

and assistance to support this goal of voluntary compliance.

But if tribal gaming operations do not comply, the NIGC

has the necessary enforcement tools available to compel

compliance with the IGRA.”

However, the NIGC acknowledges, despite its best efforts

to provide training and technical assistance to tribes,

situations will arise that leave the agency with no choice but

to use the enforcement powers provided in the IGRA.

Chairman Chaudhuri notes that NIGC will not hesitate to

fulfill its obligations and protect the integrity of Indian

gaming, adding that, “meaningful and effective work on the

front end in the vast majority of instances have negated the

need for action on the back end. NIGC recognizes that

sound and consistent regulation preserves public confidence,

supports tribal self-sufficiency and self-determination,

protects tribal assets, and promotes a safe and fair environment for all people who interact with the industry.” ®

For more information about the National Indian Gaming

Commission (NIGC), visit www.nigc.gov.

July 2015 Indian Gaming 23