Dave Archambault II
Chairman

TRIBAL COUNCIL Cody TwoBears
(AT LARGE) Cannonball District
Joe Dunn
Paul Archambault Jesse McLaughlin ‘Adele M. White Long Soldier District
Mike Faith Vice Chairman Secretary re ce
Wakpala District
Chad Harrison wank
Frank A. White Bull
Kory McLaughlin ores Kenel District
Joe White Mountain Jr.
Charles Walker Bear Soldier District
Dana Yellow Fat Caroline Thompson
Rock Creek District
February 17, 2016 Robert Taken Alive
Running Antelope District
Samuel B. Harrison
Porcupine District

Jonodev Chaudhuri, Chairman
National Indian Gaming Commission
1849 C Street NW, SM-1621
Washington, D.C. 20240

Re: Standing Rock Sioux Tribe Comments on Updates to Class III MICS and NIGC
NEPA Procedures

Dear Chairman Chaudhuri:

In 1988, Congress established through enactment the “Indian Gaming Regulatory Act”
which acknowledges Indian Tribes as governments that have the right to regulate and manage
gaming operations. It also provided a comprehensive regulatory system that involves three (3)
levels of government regulation: tribal, federal and state. Through President Obama’s Executive
Memorandum of November 5, 2009 and Executive Order 13175, the President, the government
reaffirmed tribal rights to consultation before policies or guidance would be adopted that have
tribal implications. On January 21, 2016, the National Indian Gaming Commission (“NIGC”)
issued a Notice of Telephonic Consultation and Opportunity for Written Comments (“Notice”)
regarding four (4) topics on which NIGC proposed to issue various regulations or guidance.

The Standing Rock Sioux Tribe would like to respectfully submit these-comments
regarding the proposed Class III MICS guidance and the proposed NEPA manual.

PROPOSED CLASS III MICS GUIDANCE

NIGC has proposed to issue guidance regarding Class III MICS, noting in the Notice “the
importance of Class III MICS to a large section of the Tribal gaming industry.” While the
Standing Rock Sioux Tribe does not, in general, oppose the issuance of guidance, the Tribe
wishes to strongly and emphatically emphasize that, to the extent such guidance is issued, it be
non-mandatory, but is issued only to be used as a tool for Tribes in their sole discretion.

BLDG 1 NORTH STANDING ROCK AVE. P.O.BOX D+ FORT YATES, NORTH DAKOTA 58538
PHONE: 701-854-7201 or 701-854-8500 » FAX 701-854-7299


As you are aware, the United States District Court for the District of Columbia, in
Colorado River Indian Tribes v. Nat’] Indian Gaming Comm’n, 383 F.Supp.2d 123 (D.D.C.
2005) aff'd 466 F.3d 134 (D.C. Cir. 2006), thoroughly and clearly held that mandatory MICS for
Class III gaming “represents a significant incursion on tribal sovereignty.” Id. at 147. The Court
held that any federal attempt to make Class III MICS mandatory on tribes is not authorized by
the Indian Gaming Regulatory Act (“IGRA”), would in fact be inconsistent with the provisions
of the IGRA, and that — in general — the IGRA lacks authority to regulate Class III gaming. Id. at
135-40.

The holding in Colorado River remains in effect today, and it appears as though NIGC
understands the implications of this holding, as the Notice specifically notes the “guidance”
which is being proposed by NIGC would be “non-mandatory,” and would be available for tribal
regulators to “use in developing their own Class III internal controls.” Therefore, it appears as
though NIGC does not intend for such guidance to be binding; however, both for posterity and to
further its exercise of sovereignty, the Standing Rock Sioux Tribe wants to be on the record as
objecting to any Class III MICs language — whether described as guidance or otherwise — which
would have any mandatory application on any Tribe conducting Class III gaming.

PROPOSED NEPA MANUAL

NIGC also proposes a NEPA manual that addresses management contracts, which would
include a Categorical Exclusion (“CATEX”) for approval of management contracts, where
Tribes would not be required to prepare an Environmental Assessment or Environmental Impact
Statement except in the case of extraordinary circumstances.

In general, the Standing Rock Sioux Tribe supports NIGC’s proposal to update its
policies and procedures to provide a CATEX for approval of management contracts. This
proposal will generally, as recognized by the NIGC, conserve Tribal resources, and recognizes
the general lack of necessity for environmental review when a management contract is entered.
However, there are two points which Standing Rock finds it proper to make. First, the proposed
NEPA Policy — while categorized in the Notice as being a “manual that addresses management
contracts” does impact other areas of Indian Gaming. While the manual appears to be fair in its
application of CATEX designations, we are cognizant that this policy will impact Tribes in areas
outside the management contract capacity.

Second, we question the inclusion of 4.3.6 in the list of Extraordinary Circumstances
which will disqualify an action from CATEX designation. Section 4.3.6 includes as an
Extraordinary Circumstance situations where “[t]here is a reasonable likelihood the proposed
action/project will have effects that are highly controversial on environmental grounds.” While
there is a general lack of guidance on precisely defining “extraordinary circumstances,” 40
C.F.R. § 1508.4 defines “categorical exclusion,” and notes that procedures providing for such
exclusions “shall provide for extraordinary circumstances in which a normally excluded action
may have a significant environment effect.” (emphasis added). The possibility of a significant
environmental effect is heavily covered in the other subsections of Section 4.3 enumerating
situations constituting extraordinary circumstances. In contrast, 4.3.6 does not contemplate a
situation where there may be a significant environment effect, but one which is simply highly



controversial. It does not appear appropriate — given the language of 40 C.F.R. § 1508.4 and the
inclusion of potential environmental effects in the other subsections of 4.3 — to exclude from
CATEX< designation situations which are problematic purely from a political standpoint, with no
actual finding of potential significant environmental effect.

Finally, the Standing Rock Sioux Tribe recognizes that this manual has long been in the
works. However, during that period — and after the February 26, 2015 meeting cited by NIGC in
the Notice at which a quorum was lost and consultation was paused until the beginning of this
year — a federal court decided Jamul Action Comm. V. Chaudhuri, No. 2:13-CV-01920-KJM-KJ,
2015 WL 2358590 (E.D. Cal. May 15, 2015). In Jamul, the Court held that because a “major
federal action” is defined as including approval of “management activities,” NIGC will
undertake a major federal action for purposes of NEPA if it approves a Tribe’s proposed gaming
management contract. Id. at * 5. While the Tribe supports NIGC’s inclusion of management
contracts as eligible for CATEX designation, and it is possible if not likely NIGC has already
considered the holding in Jamul, the Tribe does question what effect, if any, Jamul has on the
proposed NEPA Manual’s provisions on management contracts. If Jamul is broadly interpreted,
does it not nullify the very provision of the proposed Manual which has been highlighted for the
Tribes as saving Tribal resources? Again, this may be a matter that NIGC has already considered
and has distinguished Jamul, but the Tribe would be interested in NIGC’s interpretation of the
case and its effect on the proposed manual.

PROPOSED BUY INDIAN GOODS AND SERVICES

The Standing Rock Sioux Tribe supports the inclusion of language that encourages the
purchase of Indian goods and services.

On behalf of the Standing Rock Sioux Tribe, we appreciate this opportunity to provide
comments in response to NIGC’s Notice of January 21, 2016. The Tribe looks forward to
working with the NIGC as these important matters move forward. Please do not hesitate to
contact us if we can provide any additional information.

Sincerely,

Dave Archambault II, Chairman
Standing Rock Sioux Tribe