1 Before the

2 NATIONAL INDIAN GAMING COMMISSION

3 Regulatory Review, Tribal Consultation

4

5

6 Thursday, July 28th, 2011

7

8 Department of Interior, South Auditorium

9 1951 Constitution Ave NW

10 Washington D.C.

11 20245

12

13

14

15

16

17

18

19

20

21

22

23 Job No. NJ340554

24 Reported by:

25 CHARLES D. HOFFMAN

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1 Participants

2 (speakers on the record)

3 STEFFANI COCHRAN, Esquire, NIGC

4 LAEL ECHO-HAWK, Esquire, NIGC

5 ROBERT CARROLL, Chitimacha Tribe of Louisiana

6 JOHN PAUL DARDEN, Chitimacha Tribe of Lousiana

7 GUY MICHAEL, Chitimacha Tribe of Louisiana

8 JOHN MESKILL, Mohegan Tribe of Connecticut

9 JAMES GESSNER, Mohegan Tribe of Connecticut

10 JENNA BROWER, Deleware Nation

11 LESLIE TAYLOR, Deleware Nation

12 BARBARA COLLIER-SMITH, Quapaw Tribe

13 BRENDA LITENGER, Tunica-Biloxi Tribe

14 TIMOTHY HINTON, White Mountain Apache Tribe

15 ARNOLD BEACH, White Mountain Apache Tribe

16 JUDY SHAPIRO, Esquire, Rosebud Sioux Tribe

17 JESS GREEN, Esquire, Chickasaw Tribe

18 ELIZABETH HOMER, Esquire, Homer Law, CHTD

19

20

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23

24

25

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1 PROCEEDINGS

2 (9:15 a.m.)

3 MS. COCHRAN: Good morning. I think we're

4 going to go ahead and get started, it's about 9:15.

5 Well, welcome to D.C. and some incredible heat. I'm

6 glad that you're here today. I know that your time

7 here with NIGA during their legislative summit is a

8 very busy one, and so, we always appreciate the time

9 that they are willing to give to us. We try to

10 coordinate things so that we take advantage of your

11 travel schedules because we know it's expensive to

12 travel. So, thank you for joining us.

13 My name is Steffani Cochran. For those of you

14 who I don't know, I am the vice chairwoman of the

15 National Indian Gaming Commission, and I am a member

16 of the Chickasaw Nation. I was born and raised in

17 Oklahoma, but home for me is actually in the Pueblos

18 in Santa Fe, New Mexico. I miss my home right now,

19 terribly. So, welcome and thank you for joining us

20 this morning. We do have a pretty busy agenda and

21 will try to get through as much as we can, maybe

22 even perhaps get you out a little bit earlier.

23 The chairwoman, as you know, is going to be

24 before the Senate Committee on Indian Affairs today,

25 testifying. And so, she's not going to be joining

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1 us. Commissioner Little will be with her. He is

2 our republican Commissioner, and so it's important

3 that he be present, and so I have agreed to take on

4 the consultations. And they wish us very well.

5 On behalf of my fellow Commissioners, thank you

6 again for joining us. Councilmember Litenger has

7 agreed to open our meeting this morning, and thank

8 you so much for accepting that offer. For those of

9 you who may not know her, she is secretary of USET,

10 and has been on your council three years, I believe.

11 Eight years, three terms. I knew I had read

12 something. So, thank you for coming to open up our

13 meetings. We do ask at every meeting that it be

14 opened properly, so that we have a good start. So

15 councilwoman, I'll turn it over to you.

16 MS. LITENGER: Good morning, everyone.

17 (WHEREUPON, a Native American prayer was recited.)

18 We ask the One above to help bless this, our

19 gathering. We are glad for our families, our

20 children, our elders, our land and the fruits of our

21 land, which feed and sustain us. We ask for

22 knowledge, for big-heartedness, patience, absence of

23 conflict and love.

24 We ask for guidance, so that we may make,

25 create and do good things and have good thoughts.

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1 Thoughts which will make happen and will save the

2 future for our native peoples here, near and far

3 away, and it will be a good thing.

4 On behalf of the 26 member tribes of the United

5 South and Eastern Tribes Association and it's

6 President, Brian Patterson, I'd like to welcome all

7 of you to Washington D.C.. USET covers an enormous

8 swath of America, stretching from the forests of

9 Northern Maine to the Everglades of Florida, then

10 across the Bayous of Louisiana, my home state, and

11 on to the lands of the Lone Star State. Despite

12 USET's geographic and cultural diversity, USET

13 tribes have committed to the motto, "Because there

14 is strength in unity."

15 Today, tribal leadership and federal gaming

16 regulators come together once again to discuss the

17 regulation of Indian gaming. It is my prayer that

18 this work can be carried out in the spirit of unity,

19 so that through collaboration and cooperation we can

20 achieve the common goals of assuring well-regulated

21 as well as profitable Indian gaming operations.

22 Although we are in Washington, I do not suggest

23 that we model our discussions after the debt ceiling

24 negotiations taking place in Congress and the

25 administration right now. However, that being said,

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1 the regulation and success of Indian gaming is as

2 important to the individual well-being of tribal

3 nations as extending the debt ceiling is to the

4 well-being of the U.S. economy.

5 In many ways, gaming operations have

6 transformed native communities. For my tribe, the

7 Tunica-Biloxi Tribe of Louisiana, gaming has not

8 only lifted our people out of poverty, but also the

9 surrounding non Indian communities as well. Only a

10 few short years ago, unemployment among the

11 Tunica-Biloxi community in Avoyelles Parish was

12 nearly 30 percent.

13 Now with over 1,500 employees at our own

14 business and the increase in local businesses and

15 employment in the community as a whole, we have

16 essentially reduced unemployment to the low single

17 digits in our parish.

18 As a result, we have seen the well-being of our

19 people, as measured by heath and educational

20 indicators, leap. More significantly, we have seen

21 it in the eyes of our youth who are full of hope and

22 optimism about the future. After generations of

23 poverty, the advent of modern Indian gaming has been

24 a blessing to our tribe, as it has been to many

25 others. And so our discussion should reflect that

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1 this is not just about an industry, but rather that

2 it is ultimately about ensuring the vitality of our

3 communities by encouraging smart regulations and

4 sound business practices, while also respecting

5 tribal sovereignty and self-sufficiency. We can

6 protect tribes, our gaming patrons and our

7 communities. So again, welcome to the East. USET's

8 prayers are with everyone gathered here for a

9 productive session. Thank you.

10 MS. COCHRAN: Thank you very much for such

11 a wonderful opening, and thank you again for joining

12 us. Again, in reading your bio, I know that you

13 spend a lot of time with cultural matters, higher

14 education matters for the children, and you tie that

15 with the financial side. And that's an amazing

16 combination, so I appreciate your work, and thank

17 you, again.

18 We have several staff members here that I do

19 want to acknowledge. These staff members spend a

20 lot of time making these consultations come together

21 for us, and they are a tremendous amount of work and

22 a tremendous amount of planning. And I'm going to

23 start with Ms. Rita Homa, who is standing back

24 there. Between herself and Lael, they are probably

25 the two women that keep me not only where I am

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1 supposed to be, but talking about what I'm supposed

2 to be talking about. So, I appreciate both of their

3 efforts. Lael Echo-Hawk is a member of the Pawnee

4 Nation, and she is counselor to the chairwoman and

5 spends a lot of time keeping us on track with the

6 regulations and the review that we are undergoing.

7 She is tasked with an enormous amount of work that

8 she keeps under hand. So, I'm greatly appreciative

9 always when she is sitting next to me. We also have

10 Michael Hoenig, who is an attorney for the agency,

11 and do you represent, the East? Okay, the eastern

12 side. So many of you probably have had

13 interactions, for better or worse, with the lawyers.

14 And then Natalie Hemlock is sitting next to him, and

15 Natalie is our tribal affairs coordinator and has

16 been with the agency a long time. And, of course,

17 hails from Seneca Nation, and so, she knows a lot

18 about the tribes in this region. And so, we rely

19 heavily on her for guidance on interacting with the

20 tribes. And then Jean Wagner, where's Jean? There

21 you are. She's our senior auditor with the audit

22 division, and she's in charge of, right now, quite a

23 bit, since we are without a director. But Jean has

24 been with the agency for a number of years. Jean, I

25 can't ,eight years, and does a lot of training for

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1 the agency. And I know that her training program is

2 well received. And then Keith Hicks, there you are,

3 is our field investigator. Many of you have

4 probably interacted with him as well, out of our

5 D.C. Regional Office. And so, I'm glad that we have

6 quite a bit of staff with us.

7 The agenda is quite lengthy, and we've tried to

8 break it down so that we can, kind of, focus on

9 discrete areas in the groups for discussion.

10 That being said though, I do want to first do two

11 things. I'd like to have everybody introduce

12 yourselves, because I may or may not have met you

13 all. I think most of you I do know. But give you

14 an opportunity to introduce yourselves for the

15 record. And then also, if any of you have pending

16 business that you may not be able to stay for a

17 while or you may have to leave shortly, feel free to

18 make statements for the record if that's what you

19 desire and then, you can carry on. We don't want to

20 hold you up. We understand this is a busy time for

21 you. So, I'm going to start on this end, and if you

22 would, just introduce yourself.

23 We do have a court reporter, so anytime that

24 you speak, you do need to identify yourself so that

25 he can attribute your statements to you. And you

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1 need to identify yourself properly, unless you mean

2 to attribute it to someone else. So, I'll start

3 over here.

4 MR. CARROLL: Good morning everyone, I'm

5 Bob Carroll. I'm chairman of the Chitimacha Gaming

6 Commission.

7 MR. DARDEN: Greetings, I'm John Darden.

8 I'm the chairman of the Chitimacha Tribe.

9 MR. MICHAEL: I'm Guy Michael. I'm

10 counsel to the Chitimacha Tribe.

11 MR. MESKILL: John Meskill, Director of

12 the Mohegan Tribal Gaming Commission.

13 MR. GESSNER: Good morning. I'm James

14 Gessner. I'm the vice chairman of the Mohegan

15 Tribe.

16 MS. TAYLOR: Leslie Taylor, elected

17 secretary of the Delaware Nation and also Attorney

18 General.

19 MS. BROWER: Jenna Brower, Government

20 relations, Delaware Nation.

21 MS. LITENGER: Brenda Litenger,

22 councilwoman for the Tunica-Biloxi Tribe, and my

23 full time job is trust program coordinator. I

24 oversee the Minor's Trust Program for our tribe.

25 MR. HINTON: Good morning, Tim Hinton,

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1 vice chairman of the White Mountain Apache Tribe.

2 MR. BEACH: Good morning, Arnold Beach,

3 White Mountain Apache Tribe, Arizona.

4 MR. WEBSTER: Joe Webster, attorney,

5 Hobbs, Straus, Dean and Walker, on behalf of the

6 Seminole Tribe of Florida.

7 MR. BENNELL: Good morning, Chuck Bennell,

8 chief of staff for external affairs for the Mohegan

9 Tribe in Connecticut.

10 MR. CUMINGS: Jody Cummings, Steptoe and

11 Johnson, outside counsel to the Tunica-Biloxi Tribe

12 of Louisiana.

13 MR. PAPINEAU: Bob Papineau, executive

14 director, Saint Regis Mohawk Tribal Gaming

15 Commission.

16 MS. SNEAD: Pam Snead, I'm a gaming agent

17 with the Cherokee Tribal Gaming Commission in

18 Cherokee, North Carolina.

19 MR. RENQUIST: Earl Renquist, council

20 member, Cocopah Tribe, Yuma, Arizona.

21 MR. SHIELD: Good morning. I'm Mike

22 Shield, general counsel for the Salt River

23 Pimo-Maricopa Indian community in Scottsdale,

24 Arizona.

25 MS. JAMES: Good morning. I'm Wanda

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1 James, deputy director with United South and Eastern

2 Tribes.

3 MR. EVANS: Good morning. I'm Tim Evans

4 with the law firm, Holland and Knight.

5 MS. COCHRAN: All right, I think we've got

6 everybody. Is there anyone that needs to make or

7 wants to make an opening statement or read a

8 statement into the record before we begin? At any

9 point in time, please let me know. We can always

10 submit it in, in writing, if you have something in

11 writing. Often tribal leaders will bring something

12 in, in writing, and we're willing to include that

13 into the record.

14 I was just counting. This is the 11th

15 consultation out of 33 consultations that the agency

16 has undertaken for our regulatory review process. I

17 was just out in Albuquerque and finished one last

18 week. And before that, just up at the Tulalip

19 Tribes, finishing another consultation. So, it's a

20 very aggressive schedule. It is designed though, to

21 spend as much time as we can in Indian country

22 talking to the tribes before we put anything out in

23 draft regulation format, if that's the desire of the

24 tribes and of the agency to do.

25 As many of you are aware, the process is a long

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1 one, but it's a necessary one that we feel like will

2 give us the best product that we can possibly

3 present to you as an agency. And so, we hope to

4 start putting out some draft regulations where the

5 decision has been made to do that, and there are

6 some areas where we've decided, based on the

7 feedback from the tribes, that a regulation isn't

8 necessary. So hopefully, you'll get a chance to

9 start seeing the final products come out, in terms

10 of drafts, so that you can comment into the Federal

11 Register, and we'll move forward from there onto

12 final rules.

13 So, it's a slow process, it's a long process,

14 and we appreciate the efforts of the tribes to come

15 to the table with us throughout, because we do

16 believe that we will get a product that, hopefully,

17 satisfies the majority of interest involved. So,

18 I'm going to turn it over to a Lael. Lael is going

19 to walk us through the morning's agenda and lay

20 things out from us, and then, we'll begin our

21 discussions.

22 MS. ECHO-HAWK: Good morning. Again, my

23 name is Lael Echo-Hawk, and I'm a member of the

24 Pawnee Nation of Oklahoma. I'm currently counselor

25 to Chairwoman Stevens, here at The National Indian

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1 Gaming Commission. My primary responsibility has

2 been what we're here to talk about today, and that

3 is the regulation review, and we are very excited

4 about it. I'm sorry. I'm a lawyer; I love this

5 stuff. That is my disclaimer.

6 So today, we are consulting, obviously, with

7 tribes. It was important to note that this is

8 government to government consultation and that only

9 tribes and their designees can attend and

10 participate in these meetings. They are not open to

11 the public or the press. So, speak freely, this is

12 a government to government consultation.

13 This consultation is part of the commission's

14 commitment to following the guidance containing the

15 Executive Order 13175, particularly in the process

16 that we're in now, which is in the drafting process.

17 Section 3 of Executive Order C (3) says that, "In

18 determining whether to establish federal standards,

19 the federal agencies will consult with tribal

20 officials." And that's what we are doing.

21 So before we've established any standards, any

22 rules, were talking to tribes, and we're asking you

23 what your thoughts are on these particular issues,

24 so that when we draft something, we draft it after

25 getting some input from tribes.

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1 Our process for this regulatory review. We're

2 trying to figure out, I guess about a year ago,

3 starting in October, September/October of last year,

4 trying to figure out how are we going to do all of

5 this. Because it's a lot. There is a lot of work

6 to do. So, what we did is we divided, it ends up

7 being about 21 different topics and regulations or

8 potential regulations into 5 groups. Now, these

9 groups were formed by a number of factors, including

10 estimated time and resources, comments that we've

11 received, as well as the subject matter. And we

12 tried to group, sort of like things with other like

13 topics, so that as we move forward on this sort of

14 juggling all the regulations, that we're doing, sort

15 of, the same things at the same time, when we could.

16 But these group numbers don't indicate priority.

17 That's a question that we've received over and over

18 again, and it's just, the group numbers don't

19 indicate whether the priority is higher or lower

20 than the others.

21 We divided the groups into three phases. We

22 are currently in the preliminary drafting phase for

23 all of the regulations. Anticipate though that very

24 soon, we'll begin developing proposed rules where

25 those are appropriate. When we do develop a notice

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1 of proposed rule making, the commission is committed

2 to at least 60 days written comment period, with an

3 additional consultation time as well. If moving

4 forward from that, the commission decides to issue a

5 final rule, there will again be time for written

6 comment.

7 But we are in preliminary drafting phase. All

8 of the discussion drafts that you have in your hand

9 out and that are on our website, and there are 13

10 rules currently. They are just discussion drafts.

11 We haven't set that in stone yet. So if you have

12 comments or concerns about those, that's what we're

13 doing today. We're in that drafting phase.

14 All these consultations are transcribed, which

15 means if you speak, please use the microphone.

16 State your name and the tribe that you are

17 affiliated with, so that our recorder over here can

18 make sure that the transcript is accurate and that

19 comments are attributed correctly. All these

20 transcripts and the written comments are on the

21 website at www.nigc.gov. If you can't find it,

22 because our website is a little clunky - Natalie is

23 laughing - please shoot us an e-mail,

24 reg.review@nigc. Give us a call. We'll help you

25 find it. It's easy for us. It might not be easy if

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1 you are not using it as much as we do.

2 Also, any written comments that you have, as

3 they come in, we scan them. We put them on the

4 website, and we also send out receipt letters. That

5 was one of the concerns we heard from tribes. That

6 they sent in comments, didn't ever know what

7 happened to it. But I can tell you that the

8 commitment from the commission is that every comment

9 will be reviewed and considered. They take giant

10 binders, that I give them, home with them, and they

11 review the comments. They review the transcripts

12 and the summaries that we do to make sure that we

13 are listening to Indian country. Any proposed or

14 final rule will contain a summary of the comments

15 and, sort of, the decision making process. Because

16 again, the commission is committed to a clear and

17 transparent process.

18 So, what are we doing for the next two days?

19 Well, we're doing everything. All the groups, this

20 morning and this afternoon we'll be reviewing Group

21 1 and Group 2, and then this afternoon, we'll also

22 be taking a look at Group 4. All of this is in the

23 PowerPoint. It's all ,I'm not going to read through

24 all of this because it is a lot. Tomorrow, we take

25 a look at Group 5 in the morning, and then we'll

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1 come back to Group 3 and discuss class II and class

2 II MICS and technical standards.

3 So this morning from now until about lunchtime,

4 we're going to be talking about Group 1. Group 1

5 covers Part 514, which is fees; Part 523, which is a

6 part that appears to be obsolete, so we're asking

7 about whether or not it should be repealed.

8 We're going to talk a little bit about class

9 III MICS, Part 542, Part 559, which is facility

10 license modifications and then finally, a potential

11 buy Indian regulation. For this particular group,

12 you do have handouts for Part 514 and Part 559. You

13 have discussion drafts in your packet.

14 So, Part 514, the fee regulation. We did some

15 updating and we made some changes in the draft that

16 we heard from tribes that needed or could be made.

17 One of the more major things that we've done is

18 we've changed the fee calculation to being based on

19 the gaming operation's fiscal year, rather than a

20 calendar year. Many, many operations, as you know,

21 operate on a fiscal year that does not end on

22 December 31st. And so, to make that calculation was

23 a little bit clunky and sometimes the fees were then

24 inaccurate simply because we weren't basing them on

25 audited financials from the fiscal year. So, we're

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1 making that change.

2 Additionally, we're changing the fee rate

3 publication, the preliminary fee rate publication

4 date from February 1, to March 1. This gives us

5 more time to get in all the audited financials and

6 make an accurate, or as accurate as we can,

7 estimation of what the preliminary rate should be,

8 which is then finalized later in the year.

9 We made some changes to some words, to try to

10 be reflective of industry standards. We went back

11 to quarterly payments. A couple of years ago the

12 agency moved to semi annual payments, which we've

13 heard from both tribes and from our staff was, it

14 didn't really work well. It meant for a longer

15 period of time, for the agency to run it's

16 operations without receiving more income, without

17 receiving the fees in. So it got a little bit

18 complicated, and we went ahead and went back to

19 quarterly payments, which we've heard over and over

20 again that tribes actually prefer that method.

21 We made some clarifications. We added a

22 notification period. So if a gaming operation

23 changes your fiscal year, then we included a section

24 in there were you can notify us and tell us what

25 that is. Just so that we know.

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1 One of the biggest changes we made, and one of

2 the things we've heard many, many positive comments

3 on, is creating a late payment system prior to a

4 notice of violation for late fees or late audited

5 statements as they come in. Currently, well what

6 happened a couple of years ago, was tribes submitted

7 their fees late, and they received a notice of

8 violation. Was, I'm sure all of you know, a notice

9 of violation is a very, very important thing. It

10 contains many significant consequences, and it seems

11 like it was a fairly heavy-handed way to respond to

12 something that may have been as simple as an

13 oversight, change in personnel, CPA had a heart

14 attack. We actually heard that out in the Great

15 Plains. And so, we wanted to create a system where

16 it was a little, much like if you, we put it in the

17 context of a parking ticket. If you get a parking

18 ticket and pay it late, you have to pay extra. And

19 so, that's the system that we've set up. We've made

20 a distinction between a late payment and a failure

21 to pay your annual fee.

22 So, if you fail to pay your annual fee that

23 means that you're making your payment after 91 days

24 from the end of your fiscal year. And in that

25 situation, if you get all the way out that far and

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1 you fail to pay the fee, then the chair has the

2 discretion to issue a notice of violation.

3 However prior to that, there is a, sort of,

4 graduated system. Now if you look in your packet,

5 and I believe that it starts on page three. No, I'm

6 sorry, on page five, line thirteen. You'll see a

7 number of blanks. So, from one to thirty days, a

8 percentage or a dollar amount to be assessed if the

9 fees come in that time period. And then it goes up.

10 Well, we anticipate that it will go up from there,

11 but we have left blanks, and we've left blanks

12 because we're not certain about what that percentage

13 or dollar amount should be. And we've asked tribes

14 to weigh in on that.

15 The other thing that we did in the fee section

16 was we added the fingerprint processing fee, what

17 that process is. It wasn't laid out. A number of

18 tribes utilize our services to process fingerprints,

19 and we charge a fee to cover the costs. And we just

20 wanted to make sure that we actually laid that out,

21 so tribes are clear on that.

22 MR. CARROLL: Bob Carroll, from

23 Chitimacha. I have a question on that. The BIA has

24 just introduced a new fingerprint program too. How

25 does this integrate with that, or is it completely

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1 separate?

2 MS. ECHO-HAWK: It's completely separate

3 because we work with the FBI, and I'm not sure what

4 the BIA has done. I know that the Law and Order

5 Bill had some, now allows tribes to go directly to

6 the FBI. Tribal police departments can directly

7 access the FBI. Some tribes may choose to do that.

8 Others may choose to continue using our services.

9 But we don't work with the BIA for processing

10 fingerprinting fees, we work with the FBI.

11 MR. CARROLL: Is possible we could start a

12 price ware between the BIA and the NIGC, to save

13 some fees here?

14 (Laughter.)

15 MS. ECHO-HAWK: I'll ask our general

16 counsel.

17 MR. CARROLL: Okay, thank you.

18 MR. BEACH: Arnold Beach, White Mountain

19 Apache Tribe. What's the timeframe? Is there a

20 time frame? Is it going to be different? Agencies

21 now use BIA for fingerprinting, now we'll go FBI?

22 Is it going to be the same, or are we talking about

23 ,time?

24 MS. ECHO-HAWK: We're not making any

25 change to our process. We're just telling you what

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1 it is. So, we are continuing to use the FBI. We

2 can talk to the general counsel's office and maybe

3 talk to the BIA. Maybe it's better to go that way,

4 I don't know. It's the first time it's been brought

5 up.

6 But we wanted to make sure that tribes knew how

7 we collect those fees and what they are, and we'll

8 publish them. When they're going to be published,

9 just so tribes know. One of the things that we've

10 heard a lot is that, we just don't know what you

11 guys are doing or how you came to this fee amount.

12 And we want to be very clear, so tribes can just

13 look and see. So currently, we're not doing

14 anything but just codifying what we currently do.

15 If we make a change, we'll let tribes know. There

16 will be lots of comment time, so that you guys are

17 aware of what is happening.

18 MR. CARROLL: Bob Carroll again. If I

19 could just, vice chairlady, if ,this is an area we

20 do have an interest in, I know a lot of tribes.

21 Because we also are working very hard to be able to

22 get access to the federal AFIS systems for the

23 tribal police departments, and that's now happening.

24 So, there is the ability to the direct internet

25 connections and so forth through the law enforcement

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1 networks, at a great savings of fees and so forth.

2 And this is an area, under fingerprinting and going

3 forward between both the BIA and the NIGC, we would

4 like to discuss, because it affects not only gaming

5 operations but also tribal employees and school

6 employees, things of that sort. So, if we could

7 just highlight that area for future discussion, we'd

8 like to.

9 MS. ECHO-HAWK: Okay. So, that is a new

10 section that's on about last page of the reg, if you

11 are interested, and we certainly will take your

12 comments and take a look at them.

13 The other thing that we did, the other couple

14 of things that we have done, is we've tried to make

15 changes to language to be more consistent with the

16 industry. So for example, there's been confusion

17 about admission fee versus entry fee. We made the

18 change, it's in Section 514(b). We've heard

19 nothing. Tribes seem to appreciate that, so we've

20 tried to include industry-standard language that

21 maybe wasn't included in the draft when it first

22 came out.

23 We also had a couple of questions. We asked in

24 a notice of inquiry whether or not we should change

25 the definition of gross gaming revenue to a GAAP

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1 definition, a generally accepted accounting

2 principle definition. And as we've listened to what

3 tribes have had to say and as we've looked more at

4 the GAAP definition and as we've talked to our

5 auditors, we've realized that the GAAP definition is

6 inconsistent with what IGRA requires, and so, we

7 haven't made that change in the draft.

8 Now, there has been concern because it is

9 ,everyone, sort of, kind of, does their own thing

10 when figuring out what a wager is, what a payout is.

11 It's less than clear to most people about what you

12 can deduct, what you should add in, match plays,

13 promotions, all of these things.

14 So, we're working internally, and we're talking

15 to our audit department and to our finance

16 department about how we can clarify that for the

17 tribes. We are thinking about adding guidance,

18 language and doing some more trainings. But in the

19 meantime, one of the questions that we've asked

20 tribes is whether or not we should define in

21 regulation what a wager or a payout is. And we

22 haven't made that change. We haven't added any

23 changes to those definition. I know we heard

24 concerns last week from the Southwest that if you

25 make those kinds of changes, then it can have an

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1 effect on negotiations with your state because they

2 might pick up on those definitions. So, we

3 certainly don't want to put tribes in a bind, but we

4 would also like to be as clear as possible, so that

5 when making these calculations, tribes know what it

6 is that they can deduct and what should be included.

7 So, if you have thoughts on those then we would

8 certainly like to hear them.

9 So, the written comment period on this

10 discussion draft officially closed on May 31st.

11 That does not mean we're not taking your comments,

12 today. Please let us know if you have thoughts or

13 concerns.

14 I briefly went over 523 earlier. This applies

15 only to tribal ordinances or resolutions enacted

16 before 1993, that have not been submitted to the

17 chair for approval. We searched our documents.

18 We've asked tribes, and to our knowledge, none of

19 these exist any longer. So, we're considering

20 repealing this part as obsolete.

21 Part by 559, which is the facility license

22 notification renewals and submission regulation.

23 We asked if this part should be revised in the

24 notice of inquiry, and we received a number of

25 comments.

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1 So, there's two things that stuck out to us,

2 and one was the way that this regulation was

3 enacted. The process for it was not inclusive.

4 There was not real tribal consultation. And second,

5 that it contains substance that we don't have

6 authority over, particularly the environmental,

7 public health and safety issues.

8 So, we did some things in this section. We

9 changed the time frame for the notice of the new

10 facility license from a 120 days to 60 days plus a

11 possible 60 day extension. We have added some

12 language about the agency expediting the review. We

13 have had some concerns about the language that's

14 contained in there, and we are taking a look at that

15 because we don't want to create another process. We

16 were trying to tell the agency that when you get the

17 notice of facility license and we have to do an

18 Indian lands. We have to determine whether or not

19 the facility is located on land that is eligible for

20 Indian gaming. What we are trying to do is tell the

21 agency to hurry up. Don't make a tribe sit and

22 wait, if we don't need to make the tribes sit and

23 wait. But we may need to take a look at the

24 language that we included. We don't want to create

25 another process; we just want to make the agency

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1 move along expeditiously.

2 We took out the section that requires a tribe

3 to renew their facility license every three years.

4 In most cases, you're not going to be moving your

5 giant, beautiful casino. In three years, you're not

6 going to move it or do something with it that would

7 require you to send in a new facility license. So,

8 simply if it expires or it has been canceled or

9 renewed at some point, then we ask you to notify us.

10 But otherwise there is no renewal requirement any

11 longer.

12 And then in Section 559.4, the new section in

13 the draft, this is one of the biggest changes. That

14 particular section used to require that tribes send

15 in a lot of stuff to us, and it was a lot of

16 information. Then often times, tribes said it was

17 duplicative, that other agencies have it. It

18 created a lot of busy work and frankly went into a

19 black hole at the agency, and we've had our staff

20 say, "Yeah, I don't know why we do it. I don't know

21 what to do with this stuff." And they just stacked

22 it in the corner.

23 And so the purpose was, sort of, lost for

24 everyone. So now, we took all that stuff out, and

25 we just added a tribal attestation that the tribe

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1 just has to issue an attestation stating the

2 construction and maintenance of the facility and

3 operation is conducted in a manner which adequately

4 protects the environment, public health and safety,

5 which is language directly from the act. Yes sir?

6 MR. MICHAEL: Just a question on both the

7 facility requirements and, I guess, it relates back

8 to your discussion of the definition of a wager. In

9 those states where tribes are located that are

10 considering intrastate internet gaming, have you

11 given any consideration to when you define a wager,

12 where that wager occurs, and with regards to the

13 facility and on Indian lands, where gambling occurs

14 in those situations?

15 MS. ECHO-HAWK: We thought about this,

16 talked about it. I think the act is clear about

17 gaming activities have to occur on lands eligible

18 for Indian gaming. Now, this whole internet

19 discussion has ,sort of, thrown a wrench into that

20 very nice, easy, clear - sometimes clear -

21 definition, and is something we're considering

22 internally. But we haven't come to any position,

23 and certainly the agency doesn't have a position

24 right now on internet gaming. But when it does come

25 time to that, we're going to have to give some

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1 serious thought to what that means.

2 MR. MICHAEL: At the same time then, when

3 you're considering these definitions, because they

4 will play into that area, that could be at least

5 open for discussion for later evolution, I guess.

6 MS. ECHO-HAWK: Yeah, it's complicated.

7 But good point, and it is something we're thinking

8 about. If you have thoughts on it, please send them

9 in, love to hear them.

10 So, a couple of notice requirements. Just let

11 us know when the license terminates or expires or if

12 the facility closes or reopens. Now we have had

13 some comments on, "Well what does 'close' mean?"

14 And so we've included some language in there about

15 you don't have to tell us it is a seasonal closure.

16 We got lots of tribes in locations where some tribes

17 open only in the winter during skiing season, some

18 tribes open only in the summertime when tourists are

19 in town. So if it is a seasonal opening or closure,

20 we don't need to know about that.

21 We also included a section in there for

22 temporary closures. And there is a blank there. We

23 don't know how long the length of time is. For

24 example, you're remodeling, putting a new roof on,

25 and you think you're going to be closed for 60 days.

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1 We don't want to require a bunch of paperwork back

2 and forth if it is just a temporary thing.

3 Now we do need to know when the facility is

4 open, and so we do need a timeframe. This is for

5 the purpose of enforcement and our site visits,

6 those kinds of things. So we need to stick a

7 timeframe in there, we just don't know what that is,

8 and so we left it blank. If you have thoughts on

9 that, then let us know as well.

10 And then we're trying to move into at least

11 into the 20th century, and allow for electronic

12 submissions of paperwork and documents. One day it

13 will be the 21st century, but right now, I'm just

14 looking for the 20th. So, we included that language

15 in there as well.

16 Written comment period on this, again,

17 officially closed on June 17th. Obviously, we are

18 very interested what you comments are, and if you

19 have comments on that, we're happy to take them.

20 Another proposed regulation is a buy Indian

21 regulation. Now just to be clear, this is would be

22 a regulation that tells the agency what to do. In

23 fact, most of the regulations that we're looking at

24 are regulations that tell the agency what to do, and

25 then just tell you what the agency is supposed to be

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1 doing.

2 So, this would be a regulation that tells the

3 agency when you go out and you buy goods and

4 services, buy Indian. We are funded entirely by

5 tribal dollars, and this commission thinks it's very

6 important to put that money back into Indian country

7 when we go out, and we're doing consultations for

8 example, or we're holding a meeting or buying stuff.

9 We're going to be moving our offices, or at least

10 terminate them. We're going to have to think about

11 moving our offices, and we know that there are

12 qualified Indian businesses that could handle that

13 for us. So, we want to make sure that the agency

14 takes the money that tribe sent to us in the form of

15 fees and that we put it back into Indian country

16 when we can.

17 The final topic in Group 1 is how do we address

18 class III MICS? The class III MICS has been the

19 elephant in the room for a very long time, since

20 about 2006. It impacts tribes, states and regions

21 very differently. We have tribes in Oklahoma that

22 reference the class III MICS, Part 542 specifically.

23 We've got tribes in California who include the class

24 III MICS and give enforcement authority to the

25 agency through their ordinances. We've got tribes

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1 in the Northwest and the Great Plains that say, "Get

2 the heck out of our business. You have no business

3 being in the class III MICS business." And we've

4 got tribes that say, "Yeah, but it's a useful

5 product, and it's an industry standard and a

6 guideline, and it provides us a tool, a very useful

7 tool."

8 So we've got a range of options, and as Mr.

9 Jess Green, who represents a number of tribes in the

10 Oklahoma area region, he said, "You know, another

11 option that we don't include in our slideshow - and

12 maybe I should add it - is the we don't do anything

13 with the current Part 542, and we just take a look

14 at issuing guidance or bulletins." But we have a

15 very wide range of options that have been proposed.

16 We have a very wide range of potential effect that

17 could happen, based on any one of these particular

18 options that we take. But I know this commission,

19 and the chairwoman has said it a number of times.

20 She plans to resolve this issue. It's been pending

21 for too long, and it's something we need to resolve

22 good, bad or ugly, however it works out. And so, we

23 are very serious about talking to tribes. We're

24 very serious about hearing what you have to say

25 about how we should move forward with this

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1 particular issue.

2 So, that is it for Group 1. That will take us

3 through this morning. The vice chair will take over

4 the rest. Thank you.

5 MS. COCHRAN: All right, that's Group 1.

6 These regulations, particularly Part 519 and Part

7 559, are probably the closest we are to putting out

8 draft proposed notice of rule making. So hopefully,

9 those will get out soon and be our first leap into

10 that area. So I look forward to that, movement is a

11 good thing. So, I want take us back. I know there

12 was some initial questions on the fees, Part 514. I

13 said 519, I apologize. There has been some comments

14 made which we tried to rectify. We could not

15 understand why the agency moved to a semi-annual

16 payment system. It may have had some justification.

17 We just couldn't find it internally. But what it

18 did to the agency, as far as how we account for

19 things, how we pay for things, caused a tremendous

20 amount of problem. It's like two paychecks a year.

21 And when you're running an agency as large as ours

22 is as far as budgeting goes, it was a very difficult

23 process for us to undergo. So, to undo it is going

24 to be another process. But it also didn't serve the

25 tribes well. Some of them have commented that they

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1 prefer to stay on a semi-annual or an annual payment

2 system, and they want to make sure that our regs

3 reflect that. We certainly have no intention of

4 saying you can't pay us once a year, you can't pay

5 us, that's always an option. We don't want to make

6 your accounting systems any harder than they need to

7 be.

8 But we think the big thing that will be helpful

9 is getting out of the calendar year process and

10 getting back into a fiscal year, as the tribe

11 defines its fiscal year. It just seems to make the

12 most amount of sense. And so, we've gotten quite a

13 bit of very positive feedback about that change.

14 With the caveat that there have been some

15 suggestions again that we put maybe some language in

16 that says, you are certainly free to pay

17 semi-annually or annually, because some fees are

18 very small and that just an easier way for them to

19 do it. So, we hope to see that in there shortly.

20 There is a lot of discussion over the GAAP

21 definition. I know in the auditing world there is a

22 preference, of course, for consistency amongst

23 terminology. The agency, as Lael laid out, when we

24 looked at GAAP and the newest definitions that are

25 going into GAAP, and how we look at wagers and pay

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1 outs, we felt like it really is in the tribes best

2 interest for us not to move over to a GAAP

3 definition.

4 Our system, or how we've looked at it, is

5 complex and maybe a little unwieldy. Maybe we need

6 to get that under control, so that we can give you

7 better guidance. It really does afford the tribes

8 more flexibility. We're also concerned about

9 changes in GAAP that's not looked at from an agency

10 internally can wreak havoc in gaming. And so, we

11 felt like that was something we didn't want to turn

12 over control of necessarily, or at least allow to

13 have influence on how we do it. So, the current

14 draft does not reflect the GAAP definition. But we

15 certainly want to hear if there are some statements

16 or comments, or if tribe feels like that's still a

17 better way, than we want to hear that, and we want

18 to continue to talk about it. Even though that's

19 not that been the ,what's put in the draft.

20 And then the fingerprint fees. One thing I

21 wanted to add on to Lael's discussion. We charge

22 only what the FBI charges us, so there is no

23 administrative fee. I know that the fee was higher

24 and the agency brought it down a couple of years to

25 reflect that. I don't know what BIA's practice is,

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1 but that may be something that factors into how you

2 look at it as well. If you're looking at it from

3 pure cost, and we have no administrative fee and BIA

4 does or doesn't, I don't know, then that may be

5 something you want to factor into. But we can

6 certainly bring it into our discussions as well. If

7 there's something that we can do to benefit the

8 tribes collectively, we can look at it. So, any

9 other comments on the fees?

10 The late payment system is probably the biggest

11 benefit. It was, kind of, the primary indicator

12 outside of getting us out of a semi-annual payment

13 system. Thirty three NOV's issued in 2009 for late

14 payments only, and that's a heavy hand. And that's

15 not something we support when there are ways that we

16 can help bring tribes into compliance that are more

17 beneficial. I had an opportunity to spend time with

18 a very small tribe in the state of California who

19 got hit with a 25,000 dollar fine for a 1,400 dollar

20 payment that was late. And that's just

21 unacceptable, in our opinion, as a matter of policy

22 or otherwise. And so, we were hoping this will

23 allow the tribes greater flexibility in working with

24 the agency. Keep enforcement in its heaviest hand

25 to the times when it is needed the most, not for

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1 late payment of 1,400 dollar fees. So, we were

2 excited about getting that out. There is a fair

3 number of tribes, and this kind of surprised me, who

4 asked that we not ,there's a section in there, let

5 me get a line. On page 5, line 21.

6 This section has to deal with giving the

7 chairwoman some discretion to work with tribes on

8 the payment amount, the late payment amount. And

9 the thought was that if we set a number amount,

10 let's say 50 dollars, if you're late for 30 days

11 that's 50 dollars. But the tribe doesn't have 50

12 dollars, or maybe their amount isn't that great, and

13 it seems a little unjust, to allow her to adjust

14 down.

15 But what some of the tribes have said, and I

16 think it's an interesting and a worthwhile

17 consideration for us, is to say, why don't you set

18 it at a percentage amount? Keep it straight up, so

19 that every tribe knows what to expect. And also, I

20 think, there was some concern that if not this term,

21 or this commission, future commissioners, that the

22 chair may want to use that to further penalize the

23 tribes. And so, we are going to look at that.

24 I thought those were interesting comments, and

25 again, why we want to talk with tribes. Because our

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1 intent was one way, but the interpretation is being

2 looked at a different way. And we certainly want to

3 make sure out attempt is adequately conveyed. So, I

4 wanted to point that out because I thought that was

5 an interesting feedback that we received.

6 Is there any comments on or any concerns about

7 repealing 523? It doesn't apply, but we certainly

8 want to make sure we have not overlooked anything.

9 Part 559, the facility license notification.

10 Again, this is an area that we, as commissioners,

11 when we sat down to look at, we're are all on the

12 same page to begin with. We really felt like this

13 particular regulation exceeded the authority of the

14 agency, was burdensome, especially on EPHS. IGRA is

15 very clear. We only need to assure that the

16 construction and maintenance of the facilities

17 complies with applicable laws. We are not in that

18 business. The tribes have a great deal of

19 expertise, their own internal agencies that deal

20 with environmental issues, public health and safety

21 issues. Your compacts. The states have experts in

22 this area. We need to just make sure that we've got

23 an attestation that those standards are met. It's

24 not really within our jurisdiction and authorities

25 under IGRA to require the excessive amount of

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1 documentation when there's experts that can do that.

2 So, we're very excited to get that regulation

3 reduced down to what IGRA tells us it should be

4 doing.

5 We also wanted to make sure that we are very

6 clear that we are looking for verification. We

7 don't license. IGRA doesn't grant us licensing

8 authority, it's the tribes that license. And we

9 want to make sure, again, that we are staying within

10 our lanes with IGRA and get this down to obtaining

11 verification on information from the tribes that are

12 within the tribal authorities, not within ours.

13 And the comments, if I can direct you down to

14 the bottom of page 1, on 559.2 Subsection B. As

15 Lael pointed out in the summary, this is our

16 attempt, again, and this is why we put it out in

17 discussion format, to get the agency to act quickly.

18 This is to put our feet to the fire. Not 120 days,

19 but 60 days. And one of the things that, the

20 comments that have come out about this section,

21 which again, I think is what we need to take back

22 and talk about internally, or continue to talk about

23 internally is whether or not this section suggests

24 that the agency must undergo a LAN status

25 determination. That's something I think that

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1 requires internal discussions, continued internal

2 discussions, to make sure that it's reflecting the

3 attempt, which was to get the agency to act more

4 expeditiously.

5 There was also a recommendation that came out

6 of New Mexico or Tulalip, I forget which one, that

7 perhaps we consider a notification and consultation

8 process in here. So that if we go beyond the 60

9 days, that the agency be required to sit down with

10 the tribe and talk about why that additional time is

11 needed, and to do that in a consultation process.

12 And I thought that was an interesting suggestion as

13 well.

14 So, I don't like to do a lot of talking. It's

15 my job to listen. So comments on 559? Yes.

16 MR. MICHAEL: Guy Michael, Chitimacha. I

17 noticed there is a blank space on the 559 sections

18 for temporary closures. Do you have any initial

19 notion of what you are intending there? I mean, I

20 notice it says days, so that's at least a partial

21 answer.

22 MS. ECHO-HAWK: Yeah, I mean we need to

23 know. It can't be a year.

24 MR. MICHAEL: Right.

25 MS. ECHO-HAWK: It's got to be less than a

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1 year. We have got a couple of things we need to

2 know. Like for purposes of fees statements, so we

3 can get that from worksheets as well, when the

4 operation has been opened or closed. We also need

5 to know for enforcement purposes. The RDs need to

6 know what operations are up, which are down. But we

7 don't have, I mean, we've all worked with

8 contractors. For example, they say the roof is

9 going to take three months; the roof takes nine

10 months. Should a tribe have to let us know? Is

11 that outside the timeframe? It's really so that we

12 just know when operations are up, so that if someone

13 calls and says, "Hey, do you know which operations

14 are open or closed?" We can say, "Yeah, these are

15 the ones, and they are closed for this reason and

16 that reason." So internally, we really don't have

17 any idea, and nobody's come up with, if we don't

18 hear from tribes at some point, someone is going to

19 be like, well and throw out a number. Then we'll

20 throw it back at you guys and let you comment on it.

21 MR. MICHAEL: Just to clarify. Your

22 talking about the entirety of the facility? Or are

23 you talking about a portion of the facility?

24 MS. ECHO-HAWK: The facility license is

25 for the entire facility.

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1 MR. MICHAEL: Entire, okay.

2 MS. COCHRAN: We are absolutely looking

3 for something that is reasonable. I mean a day

4 closure because you've got an outage in power or

5 something may not be as relevant, unless of course

6 it's caused by a natural disaster. That might be a

7 little more relevant. But we know that you all

8 spend a great deal of time talking with our field

9 agents, and they know when you've got emergency

10 situations come up. So, it doesn't have to be days,

11 maybe we can define it by a standard, although days

12 may be easier. The intent is just to find some

13 reasonable amount of time.

14 MR. DARDEN: In our area, we have a

15 hurricane. Hurricane comes, we close the facility,

16 evacuate and then it depends how hard you're hit,

17 how long you are going to be closed. So, we're

18 suggesting 30 days.

19 MR. HINTON: Tim Hinton, White Mountain

20 Apache Tribe. On this license at this point, each

21 Casino? Some tribes have four, so we do four?

22 MS. ECHO-HAWK: Yeah, the facility license

23 is for each facility, so we know where that

24 particular facility is located. White Mountain

25 Apache probably has more land than say a smaller

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1 tribe, and you might have facilities all over. And

2 so, we just need to know where that legal

3 description of the land is.

4 MS. COCHRAN: We have just a few minutes

5 before we go to break. I think we can throw out the

6 buy Indian regulation. Because again, this is

7 really geared at the agency's activities, and there

8 was some initial confusion on whether or not the

9 regulation, if that's the form it comes in, would

10 extend to tribal actions, and it would not. This is

11 solely an agency obligation. There was commentary

12 that came out about whether or not it needed to be

13 in a regulation format. We've been talking very

14 closely with our financial people internally, and of

15 course, financial people over at Interior. And

16 there is some belief that federal law may require

17 that we have it in a regulation. So if that is the

18 case, then that's why you may see it. We certainly

19 don't want to go out around enacting regulations

20 that are hard to change. But if that's what the

21 federal law requires in order for us to take

22 advantage of it, then we'd like to do that.

23 For those of you, I know some of you sitting in

24 the room, in our own way, even without enacting the

25 Buy Indian Act, the commission has committed to

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1 spending where we can, its dollars back into Indian

2 country. Our fees come from there. We stay in your

3 facilities when we come out to consult. We're

4 consulting in your facilities. We're trying to

5 train in your facilities. So, that's our way of

6 doing it on our own. But that may not always be the

7 case when we are gone. So, we want to find a way to

8 encourage the agency to take those dollars and put

9 them back into the place where they came from, where

10 they were generated.

11 So, this has not been an issue of great concern

12 for the tribes, but again, if it comes out in a

13 regulation format, we want to make sure that we've

14 brought it to your attention and why we did it, and

15 that you're aware of what it applies to. So, if

16 there's any comments, concerns?

17 MR. DARDEN: Just one thing. You could

18 take the may out, "NIGC will."

19 MS. COCHRAN: Absolutely, absolutely. I

20 know they pulled for us other policies that are out

21 there, and I was just trying to look. Yeah, "Shall

22 utilize the contracting authority." If we get to

23 that point. All right, anything else? Why don't we

24 take a quick break.

25 (WHEREUPON, A break was taken.)

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1 MS. COCHRAN: All right, if we could

2 gather around again, we'll resume. All right, well

3 there are new people who have joined us. So, I am

4 going to ask Keith, if you've got a microphone, if

5 you could. Oh Jean has got it? Okay. If you

6 wouldn't mind, if you joined us from this morning

7 and you haven't introduced yourself, if you would

8 please do so for the court reporter. Barbara or

9 whoever.

10 MS. SCABBY: Good morning everyone. My

11 name is Deanna Scabby. I'm from the Salt River

12 Pimo-Maricopa Indian Community, and I'm a council

13 representative.

14 MS. BENSON: Good morning. My name is

15 Louise Benson. I'm from the Hualapai Tribe. I'm

16 the chairwoman.

17 MS. COCHRAN: Madam Chairwoman, would you

18 like to join us at the table?

19 MS. BENSON: I'm fine.

20 MS. SHAPIRO: My name is Judy Shapiro.

21 I'm a lawyer here in D.C., and I'm here for the

22 Rosebud Sioux tribe.

23 MR. GREEN: My name is Jess Green. I'm a

24 Chickasaw. I'm an attorney. I represent several

25 tribes, and my official job on a lot of occasions is

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1 just watching the NIGC.

2 MS. COCHRAN: I'm sorry?

3 MR. GREEN: Just watching the NIGC.

4 MS. COCHRAN: Watching the NIGC, okay.

5 And ma'am, were you here this morning? I didn't

6 think so.

7 MS. KAISER-COLLIER: Good morning

8 everybody. I'm Barbara Kaiser-Collier from the

9 Quapaw Tribe. I'm the executive director of the

10 Quapaw Gaming Agency. I'm sorry, I'm late

11 MS. COCHRAN: Well, we welcome you.

12 Anyone else? Where did Liz go? She stepped out?

13 If we have driven her to that point then I don't

14 know.

15 Well, I want to back up because the fantastic

16 lawyers that we have in the agency pointed out that

17 I misspoke earlier. On the fingerprint fees. I was

18 under the impression when we reduced the fees, we

19 took out all the fees that we had attached on to it

20 for the agency, and apparently, that's not the case.

21 We do have a nominal fee that does cover the

22 handling costs, so I want to correct that

23 misinformation. But the new regs should spell out

24 precisely what the FBI charges, what we charge, so

25 that it's clear.

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1 The final topic in Group 1 that we didn't get

2 to is the class III MICS and the questions under

3 this. Group 1, we put class III MICS in Group 1 as

4 a process question. How do you want us to address

5 this? In what type of form, in what manner? It

6 really got down to the process questions, and some

7 of the suggestions as Lael's PowerPoint points out,

8 include guidelines instead of regulations.

9 There may be an agency tribal compact in process.

10 Tribal ordinances incorporating Part 542,

11 maintaining Part 542, it can be in a TAC to update

12 the current regulation. Repeal and then, Mr. Green

13 has suggested we just not have not updated the

14 PowerPoint to reflect the do-nothing stance in this

15 area.

16 And so, you can see that there is a panoply of

17 suggestions on the table on how we should look at

18 the MICS. There has been, I know many of you have

19 participated in the most recent tribal gaming

20 working group to come up with a proposal as well. I

21 know that was a lot of hard work and is hard work

22 that continues to go on.

23 We, most recently, the commission has revisited

24 internally, discussions about using a TAC, but a TAC

25 that is not like how the agency has approached it in

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1 prior years, using some type of a committee that is

2 facilitated. The prior administration chose to have

3 us act as the primary facilitator. We're not

4 certain that's the best process. So, we thought

5 using a facilitator that will not only keep the

6 conversation moving amongst the group, but also help

7 establish ground rules and help establish that

8 everybody in the room stays to those ground rules,

9 so that the conversation moves forward and does not

10 stall on particular areas.

11 We've also been discussing with Interior some

12 of their more current practices using TACS. They've

13 used it in other areas, like the Indian Child

14 Welfare Act, when they had a need to get some

15 consensus and decisions made in a timely and very

16 quick manner. And they had some good ideas, and

17 they actually have some resources that we can use

18 because we do know it's very expensive. The last

19 TAC, and Lael you may have to correct me on this, I

20 recall, costing over a million dollars for us to do.

21 So we're trying to find resources that exist, so

22 that we aren't using fees to duplicate efforts.

23 And we also went back to this idea because the

24 groundwork, we believe, has been done. The two

25 groups work product is complete or nearly complete.

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1 We have existing proposed revisions that have been

2 out for a couple of years now. The groundwork has

3 really been done. It's a matter of getting the

4 parties and the individuals to the table, having

5 discussions and making decisions.

6 And so that is the current thought process that

7 we are at. We haven't made any decisions. We want

8 to hear from you, if that's something you would

9 support. A very abbreviated process perhaps, that

10 doesn't require extensive time commitments again or

11 if they are extensive, then maybe they are very

12 compact. They are a very short amount of time. I

13 have said, and the chairwoman has been very clear

14 about, this commission will resolve this matter

15 before we're done, one way or another. It's been

16 lingering, and it cannot continue to linger anymore.

17 There needs to be some certainty that you can see,

18 and I know those of you have spent a lot of time on

19 the national level, you know that there is a whole

20 range of concerns that go into the MICS. We have

21 very differing opinions, and Lael said some of

22 those, that we need to figure out if we can

23 harmonize, or if not, make a decision and move on.

24 So I'm going to turn it over to you. That's

25 the gist of what this particular grouping, including

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1 the class III MICS into this grouping, that's what

2 was intended in the discussion.

3 Would it be helpful? I know we've got some

4 members of the TGWG here. Would it be helpful to

5 ask them if they're willing to talk about the work

6 of the group? If any of you aren't familiar?

7 MS. TAYLOR: Leslie Taylor, Delaware

8 Nation. I just wanted to say on behalf of the

9 Delaware Nation that we concur with Jess Green's

10 recommendation for the class III MICS.

11 MS. COCHRAN: Thank you.

12 MR. WEBSTER: Joe Webster, for Hobbs,

13 Strauss. Just a clarification. You've listed a

14 number of options in terms of how the commission

15 might proceed with the class III MICS. Has there

16 been a timeline set for when there's going to be a

17 decision? In other words, for example, if you do

18 proceed with the TAC, when is it going to be decided

19 that's going to be the course of action? Thank you.

20 MS. ECHO-HAWK: Thanks Joe. We anticipate

21 that following this meeting, the commission will

22 reconvene and make a decision. I would anticipate,

23 we'll send something out letting everyone know what

24 we're going to do. Within the next two weeks, I

25 think you will see something from us on direction on

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1 how were going to proceed.

2 MS. COCHRAN: Yeah, I looked at Lael,

3 because like I said, she keeps us on track. She is

4 the one that's bugging us constantly.

5 MS. ECHO-HAWK: It is very difficult.

6 MS. COCHRAN: I am waiting to hear from

7 you. So, I knew it was going to be soon. I didn't

8 realize it was going to be that soon. So, does that

9 help?

10 All right well, we can always come back to that

11 at any point. Again, I'm going to try to keep us

12 moving along, so that perhaps we can have an early

13 afternoon this afternoon.

14 MS. COLLIER SMITH: Excuse me, I would

15 like to yield to our attorney, Elizabeth Hummer.

16 MS. COCHRAN: Thank you.

17 MS. HOMER: I believe vice chair that you

18 had asked about the TGWG's work and, kind of, what

19 it's status is.

20 For those of you who may not be familiar with

21 the tribal gaming working group, the tribal gaming

22 working group is a coalition of, for lack of a

23 better word, interested parties or affected parties

24 in the tribal gaming industry. It includes tribal

25 leaders, tribal gaming regulators, systems

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1 engineers, IT personnel, surveillance personnel,

2 accountants, auditors, manufacturers, attorneys.

3 It's a large coalition. We've been working since,

4 oh approximately last November, in anticipation of

5 this NIGC regulatory review process, to develop a

6 proposed set of class II minimum internal control

7 standards.

8 And the genesis for this group goes back a

9 number of years to when a tribal advisory committee

10 was convened in order to develop technical standards

11 for class II gaming machines or class II gaming

12 systems. And the group has, kind of, just stayed

13 together.

14 One of the things that was discovered during

15 the work on the technical standards was that there

16 were a lot of procedures and MICS kinds of things

17 being put into technical procedures that really

18 couldn't be verified by gaming laboratories. And

19 the idea of the technical standards was to have an

20 evaluation by independent gaming laboratories on the

21 equipment itself. And so, the group had recommended

22 that it continue work and develop a set of class II

23 minimum internal control standards, so that we could

24 keep the two kinds of processes separate. We'd have

25 the technical process over here, but we would also

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1 address the minimum internal control needs for class

2 II, in a set of class II MICS. And those MICS were

3 developed in conjunction with the NIGC, the

4 technical working group, or the TGWG, stayed

5 together through that process and worked with the

6 and NIGC's tribal advisory committee to develop

7 those regulations.

8 The regulations, however, were not completely

9 completed. What you have to do is, the parts that

10 were missing from Part 542, there was a

11 cross-reference in Part 543, in order to fill in the

12 gaps. So since last November, the TGWG has been

13 working on getting a comprehensive set of MICS, so

14 that there's no more gap filling needed. That it is

15 a comprehensive set of minimum internal control

16 standards, and they are going to be, tomorrow.

17 Stephanie Brian, who is the vice chair of the Poarch

18 Creek - the Poarch Creek being a class II gaming

19 tribe - their leadership has been very much a big

20 part of this TGWG effort. She's going to be

21 presenting that to the commission, our work product.

22 We did already submit a set of MICS to the

23 NIGC, but what the working group thought was more

24 appropriate than just a set of MICS, was also a set

25 of comprehensive guidance documents that would, kind

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1 of help spell out what the best practices are in the

2 industry for achieving compliance with the MICS. So

3 that's what's going to be presented tomorrow.

4 The group is also working on completing a

5 comprehensive checklist for the audit procedure for

6 the MICS and that will be submitted probably in

7 another couple of weeks. The work just didn't quite

8 get finished for that part. It just barely got

9 finished for the guidance document.

10 So, that will be tomorrow, and there'll be a

11 thorough explanation and also a document that's

12 detailing what changes were made, why they were

13 made, and those kinds of things to help the

14 commission in review.

15 It's the hope of the working group that these

16 documents will be acceptable to the NIGC as possibly

17 the starting point for the consultation process on

18 the final, I guess, the final draft of proposed MICS

19 regulations for class II gaming. So, that's in a

20 nutshell what's going on.

21 MS. COCHRAN: Thank you. I appreciate

22 that. The group I know has worked for quite some

23 time, and I know has involved an extensive number of

24 people, and we look forward to seeing the completed

25 document. We've been asked on several occasions

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1 whether or not we would put the initial documents

2 submitted by the group up onto our website. We've

3 declined to do that because it's not complete

4 without the guidance. But also members of the group

5 have been willing to provide them directly, without

6 going through our agents, and we felt that was an

7 appropriate avenue to share the information. So, if

8 anybody hasn't seen the work of the group, wants to

9 see it, we've got several people here who I'm sure

10 we could make sure that you get that information

11 from them.

12 The other thing I wanted to mention, or two

13 things. If a TAC is put together or formed, that

14 will not be the end of the discussion. That is not

15 going to replace our ultimate obligation to consult

16 at some other point on the MICS.

17 It is the first process. Just as we've done

18 now, we'll put out discussion drafts. We'll put out

19 draft whatever regs. If any come to be, those would

20 go out in draft form, and they would go out in a

21 notice that can allow tribes to comment. And also,

22 the forming the TAC, or a TAC would not imply in any

23 way that we are committed to some type of regulation

24 as the end result. So, that's just too far down the

25 road. That's the big questions, and that's what has

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1 to be answered. But we want to make sure that does

2 not convey an outcome that we haven't determined.

3 It is the process by which will be used to discuss

4 this. So, anything else on the MICS?

5 All right, Ms. Lael, will you walk us through

6 the next group?

7 MS. ECHO-HAWK: All right, moving on.

8 Really exciting stuff. I'll bet you guys can hardly

9 wait. Okay, so Group 2 covers Part 573, which is

10 the enforcement regulations and then all of the

11 regulations that concern the proceedings before the

12 commission. So, that includes any sort of appeal

13 that a tribe or a management contractor, which are

14 about the only two, sort of, parties. There's more

15 than that, but the two primary parties that would

16 appeal something before the commission.

17 They are, sort of, scattered around in the

18 current regulations. So, I'm going to walk you

19 through on how we've tried to address that

20 particular issue. But first of all, if you look in

21 573, which you do have that handout in your packet.

22 Part 573 is the enforcement regulation. That's

23 where you talk about NOV's, you talk about how

24 enforcement happens.

25 And one of the things that the commission has

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1 committed to, and you've heard each of them say over

2 and over again, this acronym, ACE, assistance

3 compliance enforcement. So, in order to emphasize

4 the commitment of the agency to voluntary

5 compliance, in 573.1 the commission has included

6 that voluntary compliance as a goal of the

7 commission. So that sets up the framework, that set

8 up the context for how the agency should go forward

9 with any enforcement actions.

10 We added then a new section. And this new

11 section outlines the pre-enforcement action process.

12 So before we get a notice of violation, a formal

13 enforcement action, the agency would issue a letter

14 of concern and or a notice of noncompliance. We're,

15 kind of, playing with the terminology there a little

16 bit internally.

17 But basically, a letter of concern would be

18 issued to a tribe that says, "Hey, we see this

19 taking place, we see this certain incident or

20 something that could be a violation.

21 We are concerned about it. Take a look and let us

22 know what you think."

23 On the other side, a noncompliance notice

24 confirms that we have seen something, it is clear to

25 us that there is, the tribe or the gaming operation

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1 is out of compliance, and we state corrective

2 action.

3 Now, one of the things that has come up a

4 number of times is that the regulation says either

5 action may contain a time period for the respondent

6 to come in to voluntary compliance. And we've heard

7 several times that we should make this more clear,

8 that the notice or letter should give the timeframe,

9 so that it's not, there is not this fuzzy, a tribe

10 doesn't know how long they have to come into

11 compliance. We should be more clear about that, so

12 if you have some thoughts on that, we'd like to hear

13 it.

14 Neither this letter of concern nor

15 noncompliance notice is formal agency action. This

16 is preliminary to that. The notice of violation or

17 enforcement action would be the final agency action.

18 Which, if the corrective action, the necessary

19 corrective action isn't taken at that time, a notice

20 of violation or enforcement action may be taken.

21 We had to add of course, and the caveat here,

22 that a pre-enforcement action process doesn't limit

23 or constrain the chairs discretion to issue a notice

24 of violation. This was important because there,

25 sometimes there are emergent situations, when it

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1 simply is not possible to provide time or notify the

2 tribe to come into compliance. It needs to happen

3 right away. So, the chair needs to have the

4 discretion to do that.

5 We have heard from Mr. Green, sitting over

6 there, that there should be some, perhaps something

7 built-in, so that if a tribe gets this sort of

8 notice and they try to respond, they ask for a

9 consultation, they ask for a meeting with the

10 agency, then the agency would be constrained from

11 issuing a notice of violation for a certain number

12 of hours or days.

13 Certainly, if it's an emergency situation, then

14 that time needs to be constrained. But if there's a

15 request by the tribe to meet with the agency, that

16 the agency hold off on issuing a notice of

17 violation.

18 I hope I summarized that accurately. If not,

19 I'm sure he'll correct me. And if you have an

20 comments or thoughts on that or other suggestions,

21 then we'd certainly like to hear them.

22 The written comment period on this discussion

23 draft closes on August 9th. So if you have comments

24 on this, it's very helpful to us for you to make the

25 comments on the record here, and also to send in

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1 letters to the office.

2 Okay, so the newest thing, this is my ta da dun

3 (sic). We've been working very hard for a while now

4 internally on the proceedings before the commission.

5 And this is stuff that I apologize for all of you

6 non-attorneys in the room. Yes? Can you get to a

7 mic, please, and then you have to state your name

8 and all that. Thank you Judy.

9 MS. SHAPIRO: Thank you. My name is still

10 Judy Shapiro. I have a couple of questions about

11 your letter of compliance or letter of concern. Is

12 this intended to replace the PNOV, which has always

13 been an informal pre-notice of violation kind of

14 process?

15 MS. ECHO-HAWK: Basically. The PNOV is

16 not formalized anywhere, and we wanted to tell, the

17 commission wanted to tell the enforcement division

18 in the agency, these are the steps you have to take.

19 A tribe needs to know that there's going to be these

20 steps that happen before, so that they can come into

21 voluntary compliance. I don't think we've actually

22 had that discussion about whether or not it

23 absolutely replaces a PNOV. It seems to me that it

24 likely would because we're trying to set out a

25 framework that's clear, that is not in mystery land,

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1 that just happens some times and not at other times.

2 So, that's what we were trying to do here.

3 MS. SHAPIRO: Yeah, because I know some

4 other agencies do PNOVs, and there might be some

5 practice out there to be looking at.

6 MS. ECHO-HAWK: We actually borrowed this

7 I think from either the FCC or the FAA.

8 MS. SHAPIRO: I'll find out, yeah okay.

9 MS. ECHO-HAWK: I think it's the FAA.

10 MS. SHAPIRO: I don't think it's FCC,

11 because I know theirs. The question then becomes is

12 this a public document, or is it only between the

13 agency and the tribe?

14 MS. ECHO-HAWK: And we've heard that asked

15 before, and I think we need to clarify that, I think

16 from our perspective, right now, that it would be,

17 that's between the tribe. The only things that's

18 public, would be available for, well, I don't even

19 know, I'd have to think about that. I don't know if

20 they would be available for FOIA or not. But

21 confidential information and all that. So, it's

22 something we need to think about and it's been

23 raised a couple of times, so we'll take a look at

24 that.

25 MS. SHAPIRO: My immediate thought is the

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1 implications for a tribe was financing documents

2 outstanding, and is this going to start triggering

3 default and is this going to cascade. So I'm sort

4 of, even though it's not final agency action, it

5 might almost be worse that way. Because like the

6 old advisory opinions, the tribe can't challenge it,

7 but it could have implications. So, that's where I

8 start getting nervous.

9 MS. COCHRAN: The PNOV's aren't public

10 though, are they?

11 MS. SHAPIRO: I don't think so, but word

12 gets out.

13 MS. ECHO-HAWK: Yeah, you're going to have

14 to use a microphone.

15 MS. HOMER: Yeah, what I was saying is, I

16 believe there is an appropriate FOIA exception for

17 investigative matters and those kinds of things.

18 MS. ECHO-HAWK: Did you have anything else

19 that you wanted to talk about on this one?

20 MS. SHAPIRO: Yeah, back on that one.

21 Even though there is a FOIA exception for it, it

22 might make the agency's life easier if it were

23 expressly provided that this is between the tribe

24 and the agency only and shall not be available,

25 because then you don't have to do a FOIA fight. I

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1 mean it's six on one, half a dozen on the other.

2 MS. ECHO-HAWK: We've heard that comment,

3 and we will certainly evaluate it. Because the idea

4 here, the intent here, is to be as proactive with

5 the tribe, bring them into voluntary compliance. We

6 don't want to get on shouting it from the top of the

7 Capitol Building, "Look, you guys got a letter of

8 noncompliance." We don't want to do that. So, how

9 can we help bring the tribe to voluntary compliance

10 without raising a bunch of11 MS. SHAPIRO: Right.

12 MS. ECHO-HAWK: The same concerns that

13 come along with a letter of violation enforcement.

14 MS. SHAPIRO: No, I appreciate that, and

15 I'm not attacking the intention. I just wanted to

16 raise some questions.

17 MR. MESKILL: So one comment. John

18 Meskill from the Mohican Tribal Gaming Commission.

19 Have you considered in the compliance, noncompliance

20 letter, setting a date for a compliance hearing?

21 The hearing could be waived by the tribe, but at

22 least you set up a forum. The tribe can go in and

23 explain its side of the story. And I've found that

24 in gaming license actions, that's very helpful for

25 both sides to understand what the issues are on both

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1 sides before you jump to the next step. Thank you.

2 MR. MICHAEL: Guy Michael, Chitimacha.

3 Two things, I think. Maybe I'm missing something,

4 but there seems to be an understanding that even

5 under this letter of concern, is there or is there

6 not an opportunity for the tribe to respond that

7 there is no reason for concern? Or is this a fait

8 accompli, that once you receive this letter of

9 concern, there is something wrong? The language

10 seems to imply that you must take corrective action

11 within a certain number of days. So that to me

12 means, there is something to her correct. Is it

13 contemplated, or maybe it should be more specific

14 that there would be an opportunity for the tribe to

15 say we don't agree with you? And then, secondly,

16 under Subsection C here where it says, "Either

17 action under Subsection B may provide a time

18 period." Should the be a shall?

19 MS. COCHRAN: We received similar comments

20 as to the may and the shall. Where would you

21 recommend, I'm looking at the way this is set up.

22 Do you have any initial thoughts? I agree with what

23 you're saying. This is set up to say the agency

24 obviously believes the tribe has a noncompliance

25 issue. And so, the expectation is that you'll come

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1 into compliance. Now if the tribe disagrees with

2 that, the way this is set up, do you have a

3 suggestion of where we might add in?

4 MR. MICHAEL: Possibly there at C, just

5 looking at this for the first time. But possibly at

6 C, where it says, "Provide a time period for the

7 respondent to either come into voluntary compliance

8 or respond in some kind of language where their

9 opportunity to respond they are already in

10 compliance."

11 MR. CARROLL: I have a question on that

12 also. Is it understood or is it planned that this

13 would be sequential. That there would be, step one

14 would be a letter of concern, then noncompliance?

15 Or will there be, it would be anticipated that

16 because of the say, the scope of the potential

17 violation, you might go right to Step 2?

18 MS. ECHO-HAWK: I think it's fact

19 specific, so yeah. Say Keith or somebody went and

20 did a site visit, and they say something that was a

21 clear, there was something going on that was out of

22 compliance. Then we would issue the notice of

23 noncompliance. But if there's something that just

24 doesn't seem quite right, then that might be the

25 letter of concern. But it's not necessarily

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1 sequential, it could be. And then it could start at

2 the3 MR. CARROLL: Second step? Okay, because

4 what Guy indicated to add in C on that, for the

5 tribe to have an opportunity. It just seemed to me

6 that if you went 1 first, and then 2, you could say,

7 unless the matter has already been resolved or

8 unless the tribe has satisfactorily responded. But

9 you still would need something under 2, I think, to

10 give the tribe a chance, so that there is no

11 presumption of wrongdoing. You know?

12 MS. COCHRAN: Is there additional

13 comments? Turn on your mic, Liz.

14 MS. HOMER: Judy made me turn it off. I

15 noticed that in Section 5-7, well, let me premise

16 this by saying I really support this conceptually.

17 I think conceptually this is really a good idea.

18 There's a couple of specific things in here that

19 kind of make me breathe deeply when I first read it.

20 And that is in part by 573.4, "When may the chair

21 order, issue an order of temporary closure. - and

22 this is item A 6, and that would be - when there is

23 clear and convincing evidence that a gaming

24 operation defrauds a tribe or customer."

25 I really think that this opens the door to

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1 patron disputes before the NIGC, and tribal

2 governments have entire processes, including

3 judicial appeals processes to handle patron

4 complaints. So, to open the door to that, I think,

5 is actually not a good thing for either tribes or

6 the NIGC. I know that the NIGC does get upset

7 patrons calling their regional offices and

8 complaining and those kinds of things. And up to

9 this point, the NIGC's position has always been,

10 "You need to contact the tribal gaming regulatory

11 agency." That's a really good answer, and I just

12 think that if there is a broader thing, a pattern of

13 conduct or something, maybe that's something worth

14 considering. But I think the way this is written,

15 it's going to, it implies that patrons can come to

16 the NIGC. So that scares me, and I think it

17 undermines the tribal government structures that are

18 already in place, including judicial review.

19 All of my clients have a . . . for patron

20 disputes have a complete process, including judicial

21 appeals. So the next, I think that there needs to be

22 an agency standard, even for a notice of

23 noncompliance. I don't know if it needs to be a

24 clear and convincing standard or if it's a

25 reasonably belief standard, but I think that due

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1 process dictates that there be some standard for

2 agency action in this regard and an opportunity for

3 reply before the next steps. So I think that those,

4 that's just, kind of, basic due process that might

5 ought to be more flushed out here.

6 And finally, I don't see in here anything that

7 allows the NIGC to refer or defer to tribal gaming

8 regulatory agencies. And I think we can all agree

9 on this. I mean part of the reason that we have the

10 Indian Gaming Regulatory Act is to strengthen tribal

11 government.

12 But when the agency fails to recognize that

13 it's, kind of, partners with the tribal gaming

14 regulatory agencies and provide for proceedings that

15 one, promote efficiency at the federal agency level,

16 by leaving certain things to the tribal regulatory

17 agency. Not everything is a federal case, and I

18 would say probably 95 percent of the time, these are

19 the kinds of issues that tribal gaming regulatory

20 agencies are already handling as a matter of course.

21 And it would seem to me that a refer and defer kind

22 of process or what U.S. attorneys call - no, not nol

23 pros - kind of, when they defer or when they choose

24 not to proceed with investigation because it is

25 being handled by the state or by the tribe or those

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1 kinds of things is something that ought to be built

2 into this.

3 MS. COCHRAN: Thank you, Liz. Can I take

4 you back to your comments on page 3, on Subsection

5 6? Because this is existing language. Is it your

6 suggestion that it be stricken?

7 MS. HOMER: Yeah, I would strike it. One,

8 the NIGC really doesn't do that, and I think it

9 would be a huge strain on resources if the NIGC got

10 seriously into the business of handling patron

11 disputes.

12 MR. MICHAEL: Guy Michael from Chitimacha.

13 I agree with respect to the customer aspect of it.

14 But do you think that defrauding a tribe would be

15 struck?

16 MS. HOMER: No, I think that's a

17 completely appropriate thing for the NIGC to do, if

18 there is a standard, and this one does contain a

19 clear and convincing standard. The problem is that

20 sometimes things get blown out of proportion within

21 a community. And I know that sometimes people will

22 become very, very concerned and rumors float around

23 and everyone goes running to the NIGC that there is

24 some terrible thing going on here, when it is

25 basically an audit exception or something like that.

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1 So, I think it's really important to maintain a

2 clear and convincing standard on that kind of thing.

3 And I also think that's another good reason to

4 defer to the tribal gaming regulatory agency,

5 because it's really in the best position to, kind

6 of, get to the bottom of the facts. Whether this

7 is, kind of, a super inflated rumor of wrongdoing or

8 where there's really some serious problem that

9 requires correction.

10 MS. COCHRAN: Thank you both. Are there

11 other comments or thoughts? I know there is many a

12 lawyer in this room, and I know we love to get paid

13 by the word. Any of these comments, we'll keep

14 notes, and of course, we have the transcripts. But

15 if anybody is willing to put them into written

16 format, that's always appreciative and helpful as we

17 share amongst our lawyer staff as well. Do you want

18 to go forward?

19 MS. ECHO-HAWK: Okay, so moving along in

20 Group 2, and we can always come back to enforcement

21 if we need to. Group 2 also contains all these

22 proceedings before the commission. So, this is

23 appeals of approvals, disapproval's of management

24 contracts, ordinances, appeals of a notice of

25 violation, temporary closure order, all of those

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1 things.

2 What you have in your packet would repeal parts

3 519, 524, 539, 577, which as you can see are sort of

4 scattered around, and it creates a new Subchapter H.

5 So, if you looked in the structure of the regs, you

6 would see that there is a number of subchapters, and

7 the subchapter following, sort of, the enforcement

8 of the subchapter was reserved. And so we

9 unreserved it, and we plugged in the proceedings

10 before the commission, created a new Subchapter H,

11 which contains parts 580 through 585. And this is

12 our attempt at creating, sort of, the civil rules.

13 This is how we practice. This is how things go when

14 you file an appeal before the commission. And I'll

15 walk through those briefly.

16 Part 580, which is the first section, is the

17 rules of general application in these proceedings

18 before the commission. So, we did things like

19 create a definition section that applies to the

20 subchapter. What does days mean, what does ex parte

21 mean. And we tried to keep it as layperson friendly

22 as possible. We're lawyers, we like big words in

23 Latin, especially the vice chairwoman over here.

24 But most people don't speak Latin anymore, and so we

25 tried to restrain ourselves when we were drafting.

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1 Let us know if we were not able to do that all the

2 way.

3 And so, we added this general rule section.

4 Otherwise, things ended up being duplicated and this

5 seemed to be a cleaner way to do that. That is part

6 580.

7 Part 581 is a motions section. So, what

8 motions can you file when you are in an appellate

9 proceeding before the commission? And there is

10 different levels of participation for an ordinance

11 appeal, for intervention, when can you file a motion

12 before a presiding official. We wanted to be very

13 clear. We don't want to hide the ball. We

14 included, and this was a little bit, we talked about

15 this quite a bit, a motion for reconsideration,

16 which the lawyers in the room probably know more

17 about than anyone else. There was precedent set

18 within the agency that an appellant could file a

19 motion for reconsideration after a decision, the

20 commission had been reached. This was nowhere, but

21 there was certainly precedent for it, and if you

22 were of the mind or your attorney was, they would

23 dig around, find the precedent, site it, and file a

24 motion for reconsideration.

25 This leads to, sort of, due process concerns.

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1 It leads to exhaustion of remedies concerns, if the

2 appellant decides to litigate up into federal court.

3 And so we wanted to be very clear. If there is a

4 process for reconsideration, we wanted to tell you

5 what that was. And so, we included that in this

6 particular section.

7 Part 5A2 deals with the appeals of disapprovals

8 of gaming ordinances, resolutions and amendments.

9 It says who can appeal a disapproval, a tribe. How

10 you can do that, what happens if you don't file in

11 time or you fail to file at all, what motions can be

12 filed, standards of review, which is de novo in this

13 case. Decision, when a decision will be issued,

14 what the decision will contain, that it will also

15 include an effective date. And we say this

16 throughout. We say this is final agency action for

17 the purposes of, let me read that exactly. "It's

18 final agency action for the purposes of judicial

19 review and that in the absence of a decision by the

20 majority of the commission, the chair's decision

21 then morphs into the final decision of the

22 commission."

23 And I had to put this in there, because we've had

24 situations where we have only two members of the

25 commission. One commissioner is recused, and you've

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1 got the other person, and so instead of the

2 commission taking it up, the chairs action simply

3 morphs into the final agency action, which then can

4 be litigated into court.

5 Part 583, this is the appeals from approvals or

6 disapprovals of management contracts or amendments

7 to management contracts. Again, the format is the

8 same: who can appeal, how to appeal, what happens

9 if you file late or don't file at all, what motions

10 standards of review, which for some reason this

11 draft is missing 583.6, which is the standard of

12 review. But it is the same standard of review as in

13 584 and 585. We'll fix that, and it will be

14 included, and we'll update that draft today or

15 tomorrow. And then again, final agency action.

16 584 is appeals before a presiding official on

17 the notices of violation, proposed civil fine

18 assessments, temporary closure order, or the chair's

19 decision to void or modify a management contract,

20 the notice of late fees and late fee assessments.

21 Now some of you know, some of you may not know,

22 if you've never had to appeal an enforcement action

23 before the commission, then you may not realize that

24 you, sort of, have two options. A tribe can choose

25 to appeal their decision before a presiding

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1 official, who is, sort of, an administrative law

2 judge. You go before them; you have a hearing. It

3 is very, sort of, very much like a civil court

4 proceeding that you would see otherwise.

5 That presiding official then, has 30 days to

6 get their decision to a recommendation. They review

7 the paperwork, review the hearing. They make a

8 recommendation to the commission. The commission

9 then takes a look at the presiding official's

10 decision or recommendation and accept it or don't

11 accept it and then issue a decision. And that's all

12 laid out in this section. That's one route that you

13 can go.

14 A tribe or a appellant can also decide to just

15 simply go into Section 585. This is a typo. But

16 this is an appeal before, this is like a written

17 appeal to the commission. So instead of there being

18 a full-blown hearing, what happens is you file a

19 bunch of paperwork in front of the commission and

20 again, the section lays it out: who may appeal, how

21 to appeal, motions, all of that. All that stuff.

22 One of the things that we tried to include part 585,

23 let me find that page. One of the key, sort of,

24 complaints or concerns that we heard was that there

25 is this appearance that if the chairperson has

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1 brought the enforcement action, they've sort of been

2 the prosecutor and brought it through the process.

3 Signed off on notice of violation, temporary closure

4 order or whatever it is. Then it seemed improper to

5 have the chair, when you were in front of the

6 commission, which the chair sits on the commission,

7 we heard, well, one of the complaints or one of the

8 suggestions was that the chair no longer, would not

9 be able to sit on the commission and hear that.

10 Unfortunately, however you look at it, the act

11 defines the commission as including the chair. So

12 we can't say no, the chair can't participate because

13 the act says that he can, he or she can.

14 So, what we tried to do was indicate that the

15 chair, just in these particular motions, sort of,

16 wouldn't participate. So, the chair wouldn't be

17 sitting up here, reading all of the documents that

18 have been submitted, then turn around and hustle

19 down to the other end of the table and file

20 documents of their own and resubmit it for himself

21 to then review.

22 So we tried to indicate that, and that's on

23 page 3, line 21. It says, "The chair shall not -

24 this is in motions, in the motions section - the

25 chair shall not either individually or through

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1 counsel file a response to motions." So when you

2 are simply filing an appeal to the commission on

3 written documents, the chair, who initially began

4 the action or prosecuted the action, wouldn't be

5 engaged in a back-and-forth with you at the same

6 time as they are sitting on the appeal making the

7 decision.

8 So, one of the concerns we heard was, and what

9 we . . . sort of this appearance of impropriety. So

10 conceivably, say, I'll throw my tribe under the bus.

11 Say an NOV has been issued to the Pawnee Nation.

12 And it's been issued. It's been signed by the

13 chairperson. The chairman is the only person

14 allowed to sign these things. Or acting at the

15 time, whatever. So then, the Pawnee Nation decides

16 that they are going to file an appeal before the

17 commission. Not to the presiding official, they are

18 not going to go through a hearing. They are just

19 going to file an appeal just on written submissions

20 only.

21 In that instance, and the nation files motions

22 et cetera, the idea is - and I'm sorry, I'm not

23 being clear here - the idea is that the chair won't

24 be participating in an adversarial back-and-forth.

25 That whatever documents that the commission has in

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1 front of them, that they have simply because all

2 that paperwork would be at the agency, because they

3 developed the notice of violation in this instance,

4 would be there. If the nation filed a motion that

5 the chair wouldn't respond. The chair wouldn't

6 respond. The chair's attorneys wouldn't respond.

7 It would simply sit there. And then, when all that

8 information comes before the commission, the

9 commission has a whole would look at it and make a

10 decision based the body of documents that they have.

11 But there wouldn't be this adversarial

12 back-and-forth. The nation files a motion. The

13 chair files a response. The nation files a

14 rebuttal. There wouldn't be any of that simply

15 because it does appear to be very, it just doesn't

16 look right. The chair is sitting, helping make the

17 decision, but then they also get to be able to

18 respond to a motion filed by the appellant. That

19 just doesn't seem fair. So, that's the intent. And

20 that was one way that we thought could alleviate

21 some of the concerns about the chair sitting on the

22 commission hearing and appeal.

23 MR. MICHAEL: Guy Michael, with

24 Chitimacha. Is there any contemplation of any

25 discovery process? I see when you do ask for an

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1 oral hearing, the chair responds with a list of

2 proposed witnesses and their summary of their

3 testimony. But can you depose them or serve

4 interrogatories on them? Is there any idea of any

5 kind of discovery procedure?

6 MS. ECHO-HAWK: If you look at Part 584,

7 which is where the, that's where the actual hearing

8 that's before the presiding official. There is the

9 presiding official. If you look on Page 7, the

10 presiding official can permit all of that stuff, if

11 they choose. So yeah, it's a matter of the, in that

12 instance, it's the presiding official who will make

13 the decision to issue subpoenas and do sort of all

14 of the, sort of, ALJ stuff that they normally would.

15 Yes, ma'am?

16 MS. SHAPIRO: It's nice to see some actual

17 process proposed for commission proceedings. I have

18 a couple of very large suggestions or one small, one

19 large. The first is that in your definition

20 sections I suggest that you define proceeding. Just

21 because, it's not necessarily obvious. And then my

22 concern is that this, in fact, carries forward one

23 of the defects of the existing rules. Which is that

24 it defines which proceedings have appeals but leaves

25 out whole classes of proceedings by not mentioning

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1 them. I think you should have a miscellaneous

2 section because there are other final actions of the

3 chair that, I guess, by default would be subject to

4 appeal only in District Court. But if that's the

5 way you want to do it, you might want to say that.

6 But if you do want to have an appeal process

7 available in the commission for a final agency of

8 the chair, a final action of the chair, a

9 declaration as to a classification. If we're moving

10 away from advisory commissions, a declaration about

11 land eligibility, any of those things that do come

12 up, and which do have binding final agency effect,

13 I don't know if you are intending to foreclose

14 those appeals, which apparently are not now within

15 the regs. Or if it is just, it didn't come up

16 because you are looking at the existing regs. But

17 I think you need to be thinking in broader terms

18 about what is going to be appealable within the

19 commission.

20 MS. COCHRAN: Thank you. Liz, can I ask

21 you to hold on for one second? You only have two

22 more screens don't you? Let her finish just the

23 opening comments, and then I'm going to return.

24 Just so we get it all out on the table.

25 MS. ECHO-HAWK: My last comment then is

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1 that the written comment period on this closes

2 August 22nd. So, all of these comments are great,

3 they are great here, and they would be great on

4 paper and letters to our office. So that's it.

5 MS. COCHRAN: Thank you.

6 MS. HOMER: My comment is that to some

7 extent, I agree with what Judy said, which is it's

8 nice to see process. But at the same time, once you

9 lock in a process, you've locked in. And I'm not

10 sure that this one is even going to be ready for

11 comment on August 22nd. I think that what's

12 happening here is that the commission would benefit

13 from a roundtable discussion with attorneys that

14 practice before the commission.

15 It seem to me in reading this, no offense to

16 the Office of General Counsel, that this is really

17 written from the NIGC's General Counsel's

18 experience. And it really doesn't take fully into

19 account, what it's like to be on the other side

20 trying to practice before the NIGC.

21 And I note that in several areas. I have only

22 read this today. I've only got a copy of this

23 today; this is the first time I've seen it. So,

24 I've looked at it very quickly. I don't want to get

25 too far into this, but the things that just strike

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1 me as needing further reflection are things like how

2 does this dovetail with the consultation process?

3 When does something actually become a proceeding?

4 Everything could be a proceeding.

5 Any time you get a letter of concern, that

6 could end up being deemed a proceeding. This anti

7 ex parte rule, the NIGC, when we litigate with the

8 NIGC, you are not handling appeals or disputes

9 between parties. You're handling disputes between

10 the agency and the tribe. And there's got to be

11 some flexibility built in. I think IGRA was

12 intended by how it is structured that there be

13 informal processes available, including one-on-one

14 meetings between tribes that have been affected by

15 some agency action and the gaming commission. And

16 the commissioners without calling it a formal appeal

17 or those kinds of things, and I'm not seeing where

18 these lines are drawn here, in looking at this.

19 I don't want to see a procedure get in place

20 that really ties the commission's hands from making

21 decisions. Administrations change. You all only

22 have three year terms. Most of the time, the

23 chairman is not ever going to be sitting on an

24 appeal of the chairman's own decision, it's going to

25 be the future chairman.

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1 That chairman may want to revoke their decision

2 without an appeals process. There ought to be an

3 opportunity for negotiation, for consultation, for

4 reconsideration. I noticed that this said, "Only

5 one reconsideration is possible." Well, there may

6 be a change in circumstances where a

7 reconsideration, even several years down the line,

8 might be worthwhile.

9 I know that the point here is to get to a final

10 agency action, so that the tribes can get through

11 this process and get into federal court. That can

12 be done in simpler ways, without tying the

13 commission's hands and precluding it from having

14 informal processes for the resolution of these

15 issues.

16 MS. COCHRAN: Thank you, Liz. There is

17 also, in addition to the need to bring finality to

18 the decision-making of the agency, but there is also

19 a need - some of what you're seeing, and Liz I know

20 is greatly suited to this- is what we believe is a

21 need to bring some of the agency's practices that

22 are informal but really are not shared amongst all

23 tribes into what exists, so that all tribes

24 understand what the agency can and cannot do. There

25 is a lot of informal activities going on that don't

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1 ensure due process, and they certainly don't ensure

2 due process for all tribes.

3 MS. HOMER: I appreciate that vice chair,

4 but I would caution that when you're writing a

5 regulation, it's the rules of construction. So,

6 take into account the rules of construction in

7 building these things because what you don't want to

8 do is inadvertently prohibit something that's

9 basically a standard agency practice. So, I mean,

10 there's two ways to go. Too much detail and it

11 seems to, it is interpreted to take the field. And

12 this is all that is available. Too little detail

13 and you've got a situation where we can do lots of

14 things that not everybody knows about.

15 But that can be discussed in the preamble,

16 where the intent is not to foreclose informal

17 processes. And then, to make it clear in the

18 regulation itself, that this does not foreclose

19 informal processes, consultation, negotiations.

20 Oh, and the ex parte, one other thing. It says

21 you can't talk to the commission or any employee of

22 the commission. Well, that's like everybody, and

23 it should at least say something, other than the

24 Office of General Counsel or something like that

25 because this would be a complete shutout. Once

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1 there has been an NOV, you can't communicate with

2 anybody at the NIGC and that can't be what you mean,

3 surely not.

4 MS. COCHRAN: Thank you. Good morning,

5 Mr. Green. I'm sorry Barbara. I overlooked you. I

6 apologize.

7 MS. COLLIER SMITH: That's okay. I

8 haven't had time to physically look at all these

9 thoroughly. But knowing from experience some of the

10 things that you are referring to and trying to

11 alleviate, and I appreciate that. But, perhaps I

12 have overlooked it. Is there any provision for the

13 commission to bring preliminary requests for action

14 to the tribes, prior to any of these provisions,

15 giving opportunity for the tribe to review, to move

16 forward with the decision? Like, for example, if

17 the NIGC had an issue with the tribe, would there be

18 a preliminary provision, is there, maybe I have

19 overlooked, to address that before some of these

20 provisions take place?

21 Like, we have been called to NIGC for an issue,

22 given the information, reviewed the information,

23 investigated the information and did agree with what

24 the NIGC was saying. I'm not saying that when these

25 would take place we disagreed, but given the

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1 opportunity to investigate and review and then take

2 action. And then, when our case we took a positive

3 action, then there wasn't any issue that the NIGC

4 had with the tribe.

5 MS. ECHO-HAWK: These regulations kick in

6 after that process has begun. So, when we were

7 talking earlier about Section 573 and the voluntary

8 compliance and the pre, the notice of noncompliance

9 letter and the letter of concern, that would be the

10 time that we would do that. Now, I think some

11 points are well taken here about the opportunity in

12 making sure that it is included in the regulation

13 that the tribe has an opportunity to respond. But

14 yeah, that would be in that 573 section. These

15 would kick in after that investigation and

16 everything. The responses have been concluded, and

17 the agency has made the decision that it needs to

18 move forward with an enforcement action or approval,

19 disapproval, whatever, however these might arise.

20 MS. COLLIER SMITH: Okay, thank you.

21 MS. COCHRAN: Thank you. Mr. Green, I

22 haven't seen you in about a week.

23 (Laughter.)

24 It's been too long. How are you doing?

25 Welcome.

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1 MR. GREEN: Well, thank you. My name is

2 Jess Green. I represent the Chickasaw Nation and

3 several other tribes. I have had the chairman of

4 the NIGC issue a notice of violation when the other

5 commissioners didn't know. So don't give me this,

6 you're going to always have all this information.

7 Number 2, if I can't talk to any of the

8 employees of the commission, I can't even make a

9 FOIA request. So, that's in violation of FOIA.

10 There are occasions that I need to know what

11 facts you have based your decision on, and there's

12 nothing in here that gives that to me, anywhere. If

13 I have to go ask permission to take depositions, how

14 is that fair? This is a Star Chamber prosecution if

15 I have an NIGC chairman give me a citation out of

16 the blue. It may be on one field officer's report.

17 It may be wrong. But how do I even know the report

18 exists?

19 Let me suggest that in other gaming

20 commissions, several in Oklahoma, when tort claims

21 are filed, it is incumbent, at a certain point, that

22 the file of management or operations that gave rise

23 to all these facts be delivered. There ought to be

24 an automatic delivery of your file that caused the

25 violation, if we are going to have an appeal. In

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1 other words, I need to see what you have in your

2 file that makes you think I've got this big

3 violation.

4 As Barbara says, if I get a chance to see what

5 it is, I might fix it. Or I might be able to

6 respond and say, "Oh no, someone does not have all

7 the facts." In fact, I have done that on occasion

8 when I've gotten letters from the NIGC General

9 Counsel that reached determinations and asked for a

10 meeting with all the NIGC in my area.

11 Now, I also note that in filing an application

12 for appeal, I can do it by regular mail. Do you

13 know how long it takes you to get regular mail?

14 That's not an appropriate thing. The time will have

15 run. I never know how long they're going to

16 quarantine a regular mailing or even a certified

17 mailing. I need a mechanism of hand delivery that

18 is easier than coming to the notice that is attached

19 to the order.

20 (WHEREUPON, The was a problem with the microphone.)

21 (Laughter.)

22 MS. COCHRAN: You've gone and broke the

23 mic, Jess.

24 MR. GREEN: I get wound up, and you turn

25 me off again. Are you there? Okay. I need a place

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1 to send my notice to that I know it can be received.

2 Why can't I give it to my regional office? If I

3 hand deliver it, why can't I hand deliver it to my

4 regional offices? You know I represent Fort Bell

5 now. Do you know how far my regional office is? I

6 mean, it's 11 hours by drive. But still, that's a

7 whole lot better than having to get to D.C.,

8 particularly if there are flight restrictions in

9 place.

10 MS. ECHO-HAWK: I guess the thought was

11 the first, the notice of appeal would be personally

12 served. You can use a process server, whatever, I

13 understand your concern. I think one of the

14 concerns we have with delivering it to the field

15 office is that our attorneys are not located there,

16 and we need to make sure that we get everything at

17 headquarters.

18 MR. GREEN: We're talking about

19 initiation. Your secondary procedures that

20 everything else goes by e-mail. It's how you

21 initiate, and so you've got a timeline that is

22 running. And getting that timeline served, if I

23 don't have another tribal attorney, like Elizabeth

24 that's in D.C., that can walk my fax over and put it

25 in your hand, it's sometimes very difficult for

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1 small tribes in remote areas. And I don't think

2 you're giving any consideration to that.

3 It is easy if I've got a tribe that's got five

4 lawyers, one of whom is in D.C., for me to get you

5 your notice. It will be walked over. But if I find

6 a small tribe with a 100 or 200 game facility way

7 out in the middle of Montana, responding is

8 difficult. I don't have a lot of systems. And so,

9 I would like an easier, more efficient way to make

10 my initial opening of my appeal.

11 Again, the e-mails, thereafter, work fine. I

12 would suggest that we confirm them, because it has

13 been my experience that computers quarantine stuff I

14 send on occasion, and I never know when. I would

15 suggest that if we e-mail, we have a physical call

16 to confirm reception. Except that I can't talk to

17 anybody about the fax. I can't even call and say,

18 did you get this? Because I can't talk to anybody

19 about the fax.

20 Let me suggest that when you're dealing with a

21 law enforcement issue, you are not prohibited from

22 talking to field agents. They usually don't tell

23 you very much, but you are not prohibited from

24 talking to them because they are not involved in the

25 trial of fact. The people you need to be prohibited

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1 from trying to prejudice are the commissioners. You

2 should not prohibit enormous communication about the

3 facts between the legal counsel. I need to be able

4 to communicate with your legal counsel about what

5 the facts are. You just prohibited me from it. I

6 don't see the basis of the way you have structured

7 what you're doing. I don't see it having any

8 reflection anywhere else in American jurisprudence

9 or Indian jurisprudence.

10 Because I don't get to know what's going on, I

11 don't get to talk to anybody about what's happened

12 or the basis. I've got a FOIA request capability,

13 but I can't send it because it violates your rules.

14 I simply think, like Liz, this needs to be

15 rethought.

16 I'm not trying to be critical. I think your

17 legal staff has written it from their perspective,

18 but I don't think any of those people ever was

19 involved on the other side. There are facts and

20 circumstances that need to be discussed between

21 counsel, and lots of times decisions can be reached.

22 Informal resolutions can be had, if we have lots of

23 discussions.

24 Finally, I'd like to have a section on what you

25 are going to say is okay to recuse your

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1 commissioners. Because if I've got to go hire

2 somebody that's Steffani's sister, brother or cousin

3 in order to get Steffani recused, because I think

4 she's going to vote against me, I just want to know

5 what I've got to go do.

6 Some of you all are looking pretty solemn

7 faced. It is no secret that there been lots of

8 folks in the past who hired people related to

9 commissioners, so the commissioner couldn't rule on

10 their issues.

11 I'm Chickasaw, there is no way Steffani could

12 ever rule on a Chickasaw issue. I know that

13 already, but I'd like to have the rules published as

14 to what else. If the commissioner's daughter is an

15 attorney and I hire her, does that mean he's

16 recused? There ought to be some easy rules that

17 everybody sees, that everybody knows and

18 understands. That would make all of our lives

19 easier. And I would suggest like Liz, that we have

20 a roundtable discussion before we advance this

21 anymore. There are those of us that have been here

22 since Tony Hope. We have seen debacles. We would

23 like to help you prevent them in the future and also

24 put us in a position that everybody's got a good set

25 of due process rules to go by.

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1 MS. COCHRAN: Thank you. Barbara.

2 MS. COLLIER SMITH: Barbara Collier,

3 Quapaw Tribe. Could you, Lael or Steffani, give a

4 little background on what the intent might have been

5 in that? Is there an intent? I would hope to think

6 that wasn't really as driven as what it appears to

7 be. But oftentimes even as a commissioner,

8 notification or consultation with legal counsel at

9 NIGC has been a necessity even for me. And so

10 prohibitive action, if that's what the intent of

11 that is, for whatever reason, would be, kind of a

12 stifling effect on probably proceeding with

13 clarification of an issue. So, I would like a

14 little more background, possibly, on what the intent

15 is and if that indeed was what it was. There

16 probably does need to be some clarification.

17 MS. ECHO-HAWK: Sure. The ex parte

18 communication, we included that in there because we

19 have experienced, the commission has experienced,

20 people attempting to lobby them on issues that are

21 before them, aggressively, sort of willfully. And

22 it is very uncomfortable, and it's not appropriate.

23 So when we were drafting these, I think it was

24 the chairwoman who said, "We need to make sure that

25 it is clear that there should be no ex parte

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1 communications." Now perhaps we drafted it, we

2 didn't draft it as expertly as we wanted to. We did

3 borrow language from other agencies. And to be

4 clear, there is a definition of what ex parte

5 communication is. And that would be, "A

6 communication directly or indirectly regarding an

7 issue in the proceedings other than a communication

8 necessary to a procedural aspect of maintaining

9 orderly process with any person employed by the

10 agency, without notice and opportunity for all

11 parties to participate."

12 We were trying to make sure that if someone has

13 something to say, then they say it to everybody

14 involved. So if we need to clarify that definition,

15 then we certainly can. And then on page 4 and 5, it

16 says what ex parte communications are prohibited,

17 and it says that, "A party's limited participation

18 in person representative outside the agency may not

19 make or knowingly cause to be made to any commission

20 member or employee, any ex parte communication in

21 connection with any issue of fact, law or discretion

22 relevant to the preceding."

23 So again, what we were trying to do, what we

24 were trying to say, is that if you have something to

25 say that's relevant to this case, if you are trying

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1 to, and oftentimes, I think the point is well taken,

2 that this is a proceeding that's not oftentimes the

3 tribe talking to NIGC. So,there wouldn't be anyone

4 else, sort of, that they would need to talk to. But

5 that you are not lobbying the commissioners to make

6 a decision your way. You're not telling the agency

7 something that you should be telling all the

8 parties.

9 Trying to keep this process open and not

10 subject to, sort of, lobbying on decisions, which is

11 the concern that we heard when we were drafting from

12 the commission. They don't like it. It's not

13 appropriate. Figure out a way to make that stop.

14 So, maybe we were too aggressive in how we defined

15 it and how we worded it. And we can take that back,

16 but trying to keep the level of appropriateness and

17 communication when something is pending before the

18 commission, when an appeal is pending before the

19 commission.

20 MS. COLLIER SMITH: Okay, it would be my

21 request then that possibly you look at this for

22 rewording and place in it the verbiage that you're

23 trying to prohibit. Because on occasion,

24 commissioner to attorney on an issue, whatever the

25 issue is, might not need to, or it might prohibit

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1 action later on of the whole commission, if it

2 needed to be taken on the issue legally that we were

3 discussing with your legal counsel.

4 Especially on that. I mean I've had that

5 happen personally, where I wouldn't want to discuss

6 all of those things, nor would I need to take your

7 time to do it on issues that came before the

8 commission. So I think - I'm not a lawyer - so I

9 don't know, but I think verbiage could be, maybe

10 defined a little more clearly. Thank you.

11 MS. COCHRAN: Well, you may not be a

12 lawyer, but you certainly have a great deal of

13 experience. That's what you hire lawyers for, is to

14 find the verbiage, sometimes in Latin. Judy, I know

15 you've been waiting.

16 MS. SHAPIRO: As bizarre as it may seem,

17 I agree with Jess and Elizabeth, that I think a

18 roundtable would be very useful to bounce things

19 off. Particularly, it might be good to include

20 people who practice before other agencies. We are a

21 pretty close group here, and we know how we haven't

22 liked it at the NIGC. But there are lawyers,

23 especially in D.C., who have much more experience

24 with agency practice, ex parte rules and like that.

25 I know of some agencies that will prohibit ex parte

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1 communications with the commissioners after a

2 certain point in a proceeding. So, everyone knows

3 that they can talk up to this time and then the door

4 closes.

5 There are rules which say you can do ex parte

6 communications, but you have to note in the record

7 that you have had this communication and the

8 substance of it, within X days of having had it. It

9 has to be filed with the agency.

10 I think, perhaps to clarify some of what I was

11 saying before, another useful distinction you might

12 make as you define proceeding, and proceeding for

13 the purposes of ex parte communication, is that it

14 not include, not include interaction which is only

15 between the commission and the tribe.

16 We're talking about a very special relationship

17 there. There are no adverse parties. There is

18 nobody that you are keeping secrets from. And if

19 the intention is to reach an amicable conclusion, a

20 voluntary compliance of whatever needs to be done,

21 then you really do need, as Barbara was saying, as

22 Jess was saying, as Elizabeth was saying, you need

23 to have open communication and not have it damped

24 down by uncertainty of whether you are violating a

25 rule.

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1 Then of course, there is the question of what

2 happens if you violate a rule? What does that mean?

3 I mean you have prohibited it, what does that mean?

4 Do you lose? Are you sanctioned? I don't know that

5 there is a sanction ability within the commission

6 for violating of its procedural rules anyway. So,

7 I'm not sure really what that would mean. I'm not

8 sure I want to ask that question.

9 Those are the main things. There is another

10 element which is missing from your process here.

11 Which is when the commission fails to act. There

12 are times when the commission has before it a

13 management contract. And maybe not so much these

14 days, but it used to take years. There plenty of

15 times when it goes into the black hole, and there

16 needs to be a process to compel agency action. And

17 it needs to be between, not from outsiders, but as

18 between the requesting party and the agency, without

19 having to go to federal court. If you are not going

20 to build in timelines for submissions of various

21 things, approval of management contracts, approval

22 of ordinances already under the statute, but there

23 are times when the commission doesn't act. And

24 someone has to be able to say, wait a minute this is

25 important, and here's why it's important, and we

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1 shouldn't have to go to federal court to make that

2 happen. So, that is my addition.

3 MS. COCHRAN: Thank you. We are right up

4 on the lunch hour5 MS. TAYLOR: I'm sorry. I've been waiting

6 to speak. Could I speak briefly, please?

7 MS. COCHRAN: Absolutely.

8 MS. TAYLOR: Leslie Taylor, for the

9 Delaware Nation. As a practicing attorney, in every

10 court that I've ever practiced before, if there was

11 ever a change in the rules or an addition to the

12 rules, the judges in that court typically formed a

13 committee and allowed attorneys to sit down and talk

14 about the rules and their practical application.

15 And that's so you don't have to come back later and

16 explain to the judge why you violated a rule because

17 there is no other way to comply with the rule.

18 I'm concerned in this aspect, and I agree with

19 Ms. Homer and Mr. Green, but this very broad ex

20 parte communication definition is punishable by your

21 appeal being dismissed. That is a huge action. It

22 seems here, you get a show cause hearing as to why

23 your appeal should not be dismissed or denied, but

24 there would be no discovery process involved in that

25 either. So, if you take this to the furthest

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1 extent, let's say we had an appeal pending, and I

2 call general counsel for the commission to ask her a

3 question, then I have violated your rule and my case

4 can be dismissed for simply trying to communicate

5 with counsel. I think that's a good example of why

6 we should have a roundtable. Thank you.

7 MS. COCHRAN: Thank you. I appreciate

8 that. And I want to be clear that these are

9 discussion drafts only. We put them out

10 specifically, to generate discussion. It's not even

11 a draft notice of proposed rulemaking, so I

12 appreciate the example that you gave. You're right,

13 judges do sit down with attorneys and discuss. And

14 this with the agency's first attempt, because

15 obviously, this wouldn't come from Indian country.

16 It has to come from us. So, there has been some

17 really good thoughts put out that need to be brought

18 up in a larger context.

19 And I'm going to go ahead and break. It's not

20 to cut off, it's just I need to stay on track,

21 especially because we've got some oversight hearings

22 going on. It doesn't mean that we won't come back,

23 and if you've thought about more, we want more

24 discussion. We've got time for that. I don't want

25 to cut that off. I'm trying very diligently to stay

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1 on our agenda, so if you want to reconvene here at

2 1:30, we will. We can pick up wherever you want to

3 pick up, and I wish you a very good lunch.

4 (WHEREUPON, A break was taken.)

5 MS. COCHRAN: Good afternoon and welcome

6 back. I expected that this would be very, very

7 light. So, if you want to come sit at the table,

8 please join us. This is not going to be big on

9 protocol this afternoon. So Joe, Judy, I won't put

10 you on the spot, but if you want to come join us,

11 please do.

12 I think what we'll do this afternoon, at least

13 this first part of the afternoon, unless there's any

14 concerns to the contrary, since there's so few of us

15 here, is I'd like to have Lael go through the next

16 set of regulations, just the PowerPoint

17 presentation. And just outline it, and then

18 Chairwoman Stevens will be speaking at 2:15, before

19 the Senate Committee of Indian Affairs. I think we

20 can have Lael's computer pulled up, up here, and I'd

21 like to watch her testimony. Only 15 minutes or so,

22 so that can be our break and then, we'll get right

23 back into discussions. Of course, I'll go back to

24 anything under Group 2 that you have comments about,

25 especially because I know the lawyers are present

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1 with us.

2 So, it is now just about a quarter till 2:00.

3 We've got about 30 minutes, so Lael, I'm going to

4 turn it over to you. If you would, walk us through

5 Group 4, and then we'll go from there.

6 MS. ECHO-HAWK: All right. Group 4, as

7 you can see, covers Parts 556 and 558. This is

8 commonly known as the pilot program for licensing:

9 background investigations and licensing for primary

10 management officials and key employees.

11 Part 571, monitoring investigations, this has

12 to do with access to documents stored off-site.

13 Part 537, background investigations for persons

14 having a financial interest in class II and class

15 III management contracts. And then Part 502, we had

16 a definition come up that we wanted to talk about.

17 So you have this in your packet, this is Parts

18 556 and 558. This is our attempt to formalize the

19 pilot program, which 95 percent of tribes

20 participate in. And so we figured, it's been around

21 a long time. It's probably not a pilot program any

22 more, and maybe we should go ahead and formalize it

23 into a regulation. So, that's what we did.

24 It allows tribes to submit a notice of results

25 of background investigations, and then maintain the

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1 applications, investigative reports, on their site.

2 Only send us a notice of results and notice of

3 licensing once that's happened for primary

4 management officials and key employees.

5 All the comments that we received were in

6 support of this regulation. So, we went ahead and

7 put the draft together that you have in your

8 handouts. The other thing that we tried to do was,

9 556 includes all the procedures before gaming

10 license is issued.

11 Part 558 includes all the procedure that occur

12 after a license has been issued. So, we tried to

13 make this a little clear. It was a little muddy,

14 because things were kind of mixed up between 556 and

15 558. So we tried to clarify, and of course, we

16 think it's perfect but if you don't, please let us

17 know.

18 So, Part 556 basically goes over that a tribe

19 seeking to license a key employee or primary

20 management official. You have to notify the agency

21 of the background results no later than 60 days

22 after the applicant begins to work.

23 We also provided in here a mechanism for a

24 second tribe. So, say someone is moving from

25 employment at one tribe to another tribe. And we

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1 were in the southwest, and so I used the

2 illustration of Sandia and Isleta. They are very

3 close to each other. It's very likely that one

4 employee might go from one tribe to the other. And

5 if Isleta can get the background results from Sandia

6 and simply update them, then that seemed to make

7 sense to us. So, rather than have tribes repeat

8 background investigations, go through that whole

9 rigmarole when it's already been done, and instead

10 simply update the materials and then send us a

11 notice of results, then that seemed to make sense.

12 And that's what we provided for in part 556.4 (b).

13 Part 558 includes all the procedures after the

14 gaming license has been issued. One of the other

15 things that I need to point out here, is that the

16 statute requires . . . now this was an oversight on

17 our part. When we put together the pilot program

18 and we had been doing this for a very long time,

19 we've run into a couple of things.

20 Number one, there is no consistency in, sort

21 of, how this happens in regions. We don't have a

22 single standardized form, notice of results form,

23 and so we are working on that.

24 The other thing that was overlooked was that we

25 simply required tribes to submit the notice of

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1 results to us. Well, the statute requires that the

2 notice of results be submitted to the agency, but

3 also that a notice of licensure has been issued to

4 the agency or that has been sent to the agency as

5 well.

6 We weren't doing that before, so that is a

7 little bit different, and we're trying to figure out

8 a way to do that, so it's not cumbersome. Perhaps

9 we can do it by e-mail. That would make a lot of

10 sense. But it is, sort of, two notifications, and

11 that is new under the pilot program. Even though

12 it's old because it started with the statute. It

13 was an oversight on our part.

14 So, part 558 includes all the procedures that

15 happened after a gaming licenses is issued. So,

16 after sending us a notice of results, a tribe can

17 license a key employee or the primary management

18 official. The tribe notifies the commission, and

19 within 30 days, the NIGC can request additional

20 information and either object or not object.

21 Now, one of the things that we also need to

22 point out is that if the tribe sends in a notice of

23 result to the agency and issues a license shortly

24 thereafter, and then the agency comes back and says,

25 "Hey, look we have an issue with this particular

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1 individual." If the license has already been

2 issued, then the employee has a right to a notice

3 and a hearing. Their license will be suspended, and

4 they have the right to go to a hearing, and then the

5 commission decides whether or not to allow the

6 licensee to keep the license or to revoke it and

7 then notify the agency.

8 If the tribe waits for 30 days to hear back

9 from the agency and doesn't issue the license, then

10 the licensee, the applicant, doesn't have that same

11 right to a hearing. So, the right to a hearing only

12 kicks in once a license has been issued. So, there

13 is some areas of timing that I think the agencies

14 are familiar with, the TGRAs know how to work that.

15 But it's something we wanted to point out.

16 Okay, and the other thing we did was

17 availability of electronic submissions. We're

18 working on that now. Hopefully, we'll come up with

19 a system that's not cumbersome and make sure that

20 everyone receives all the documents that they need.

21 The other point that we need to make in 556.8

22 and 558.6, we simply say, "Your tribal ordinance may

23 not comply with this right now. That's okay, it

24 doesn't need to. But if you go back in and amend

25 your ordinance, make sure you update it and include

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1 this the next time you submit an ordinance for

2 approval." Written comment period for this closes

3 on August 10th.

4 Going back to fingerprint processing. The

5 notice of inquiry asked whether or not the NIGC

6 shall allow access to fingerprint processing for any

7 employee designated by the tribe. Comments we

8 received supported this, and so we are talking to

9 the . . . is that thunder? Oh, plane, sorry.

10 Thunder makes me nervous, I'm not used to it.

11 Comments supported this, so we are talking to the

12 FBI, because that's who we work with. And based on

13 your points earlier, the BIA seems like another

14 place that we could go for processing, fingerprint

15 processing.

16 Moving along, Part 537. You do have a draft of

17 this in your materials. The notice of inquiry asked

18 whether or not the NIGC should clarify that

19 management contractors of class II and class III

20 facilities must have a completed background

21 investigation. Most people supported this

22 clarification, simply to just put it out there that

23 if you are a management contractor of a hybrid

24 facility, that you still have to do the background

25 investigation. Others said this is covered by

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1 compacts. Not a lot of controversy on this

2 particular issue.

3 One of the things, one of the questions that

4 was raised was how can the process for licensing be

5 streamlined while still maintaining the integrity of

6 the process? And then, who would qualify for the

7 streamlined process. This makes some sense to the

8 agency, so in Part 537.1(D) the discussion draft

9 provides that the chair may exercise discretion and

10 reduce the background investigation requirements for

11 any tribe, tribally owned entity, national bank or

12 institutional investor that is federally regulated

13 or required to undergo background investigations and

14 licensure by a state or tribe, pursuant to a

15 compact.

16 So for those parties that are already

17 backgrounded and heavily regulated, the chair has

18 the discretion to, sort of, reduce the background

19 requirements, perhaps make it less duplicative and

20 have it be a little more streamlined. That was in

21 response to what we heard from the comments.

22 Written comment on this draft closes August 9th.

23 Part 531, there is no draft regulation in your

24 handouts for this. This had to do with collateral

25 agreements, so agreements collateral to a management

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1 contract. The notice of inquiry asked whether or

2 not the agency should require tribes to submit all

3 their collateral agreements to management contracts.

4 We heard just a range of support and not supportive

5 of this particular issue. We didn't come up with a

6 draft. We haven't come up with a draft yet, and

7 we're still looking for input.

8 We heard concerns about the length of time it

9 would take, given the length of time it already

10 takes for a management agreement, management

11 contracts to be approved or disapproved, concerns

12 that it would discourage private investment, concern

13 that the NIGC doesn't have the authority to approve

14 collateral agreements, that this would be second

15 guessing business decisions, and that it should be

16 left to the discretion of the tribe.

17 On the other hand, we heard that the trust

18 responsibility requires review and approval of these

19 agreements. It protects tribal sole proprietary

20 interests and that it could discourage a business

21 from attempting to take advantage of a tribe, and

22 that the approval reduces risk to both parties.

23 Given the variety of comments, we still are

24 looking for input, but we haven't come up with a

25 draft yet. And no decision has been made on whether

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1 to issue a draft.

2 Part 571, you have a copy of this in your,

3 discussion draft of this in your handouts. And this

4 is in response to the notice of inquiry whether to

5 clarify the NIGC has access to papers, books and

6 records, including at sites maintained by third

7 parties.

8 This came from concerns, from comments from

9 tribes that say management contractors, some

10 third-party has their records; they can't get them.

11 The NIGC does have subpoena authority, but perhaps

12 there should be some clarification in the

13 regulations that the NIGC has the same access to all

14 the records that it should have access to, even if

15 they are off-site, not at the gaming facility.

16 We also included in this section what's called

17 an investigation closure letter. This is in Part

18 571.4. This came from the concern given to us by

19 tribes that they would've had an investigation,

20 things were going on and happening, and then all of

21 a sudden nothing, for years. And there are some

22 disclosure requirements, I understand, lending

23 agreements, if you're under investigation, etc.,

24 etc. and there needed to be some finality in the

25 process. So in Part 571, we attempted to do that.

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1 So it says, "Where the NIGC has concluded its

2 investigation and will not begin an enforcement

3 action, the commission may advise the party by

4 letter that the investigation has been concluded."

5 It is not a finding that there is no violation. It

6 simply is saying that we've concluded this

7 particular investigation, and it doesn't preclude

8 further action.

9 So far we haven't had much comment on this. I

10 think tribes have been generally supportive of this.

11 We have had concerns about what it is called. And

12 perhaps we should change it from an investigation

13 closure letter, because that sounds awfully like a

14 temporary closure order, maybe to an investigation

15 termination or conclusion or something different

16 than closure because closure contains some

17 connotations in our context here. Okay, so written

18 comment on this closes on August 9th as well.

19 And then the final part of this particular

20 group has to do with the definition section,

21 particularly whether or not the definition of net

22 revenues, with respect to how management fees are

23 calculated, be revised to be consistent with GAAP.

24 The same concerns that we talked about earlier

25 in the fee section about GAAP. It doesn't

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1 necessarily comply with IGRA. That we can get to

2 this a different way, but that we should leave the

3 definition of net revenue alone, and make sure that

4 it complies with IGRA. So again, there is no draft.

5 We haven't come up with a draft or made a decision

6 about whether we are going to issue a draft or not

7 on that. So, that is all of Group 4.

8 MS. COCHRAN: Thank you Lael. Although

9 there's many parts in this grouping, most of them

10 are very isolated kind of discussions, aiming at

11 one provision or two provisions within the part. So

12 hopefully, we can get through them fairly quickly.

13 Before we go to a break, for a few moments and see

14 if we can't pull up the Senate Committee, is there

15 anybody that wants to say something or has a

16 question? If not, then it may take us a few minutes

17 to get our connection, and hopefully, we can see it

18 up here on the big screen. Then we'll go ahead and

19 go off the record. We'll take a break.

20 (WHEREUPON, A break was taken.)

21 MS. COCHRAN: All right, since they've

22 gone into the business meeting, we'll go ahead and

23 get a little bit further into our agenda, while we

24 wait for the news feed to come in.

25 The first two parts in Group 4, as Lael laid

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1 out, are 556 and 558, which is the background and

2 licensing of our primary management officials and

3 key employees. And the intent of the commission

4 here is, of course, to formalize the pilot program

5 in such a way that we bring some uniformity into the

6 regions, and we make what is a process that's

7 currently engaged in by 99 percent of the tribes

8 already. So, is there any discussion or do you have

9 any comments? Does it work for you? Do you have

10 concerns about the fact that we broke out 556 and

11 558 to the processes that occur before the license

12 is issued? And then the secondary part being

13 processes after the license is issued? It seemed to

14 make sense, but I want to make sure.

15 In 556.4, is there any additional information

16 that - and this is a pretty exhaustive list, but if

17 the intent is to try to get to open up this

18 information to other tribal entities, so that you

19 quit paying over and over again for these people to

20 be backgrounded - is there any additional

21 requirements we might consider including in there

22 that's useful as you look at your applications?

23 It's a fairly exhaustive list, but.

24 We've put this question out in other areas of

25 the country, just to again get feedback. Are we

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1 missing something? Since this regulation was first

2 enacted, that we're not asking about the current

3 practice, says would be useful, especially because

4 the people that you're intending to try to perhaps

5 catch in the licensing process, I'm sure are

6 becoming more creative in how they are applying.

7 MR. CARROLL: Yeah, Bob Carroll. Just one

8 suggestion. This may be a little picyune, but on

9 Item Number 7 on your checklist there, it indicates

10 the name and address of any licensing or regulatory

11 agency with which a person has filed an application,

12 on and on. It says whether such license or permit

13 was granted. You might want to just expand that to

14 also include was license ever suspended or revoked?

15 MS. COCHRAN: Thank you. One of the

16 other questions that we wanted to engage in with the

17 tribes has to do with the idea of a no objection to

18 licensing letter. We don't know how many tribes

19 actually wait to hear back from us before they

20 license. Many don't. They'll do temporary licenses

21 or other types of things. But there are some that

22 will. Would it be helpful for us to consider such a

23 document, maybe coming out of the regional offices?

24 Is it just additional paperwork that wouldn't be

25 useful?

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1 I don't think there's a whole lot of tribes

2 that wait, but if there are, then we certainly want

3 to make sure that we are responding.

4 Are there any other concerns about the NIGC

5 that you might have, in releasing information to

6 other tribes that you can think of? In different

7 parts of the country there are concerns by some

8 tribes which . . . they're concerned actually about

9 legal liability. If it's associated with their

10 licensing, and that information is subsequently

11 shared, and it turns out to be inaccurate or false.

12 That could create a legal liability. Others say we

13 can do waivers in our application. So, there's ways

14 that you can address it. Others just feel it's

15 proprietary information that they have paid for,

16 perhaps, to obtain. There's a lot of different

17 reasons, but there are many, many who say we have no

18 problem. If a background has been run, we have no

19 problem sharing that information with other tribes

20 upon request. Is there any concern you want to

21 bring to the table? Should we notify the tribe that

22 we have released it?

23 MR. MICHAEL: In the practice of

24 non-Indian gaming law, it is very common for

25 different regulatory agencies to share information

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1 and cooperate between different state jurisdictions

2 where they have done a complete background, and the

3 same person is applying there. And they have

4 working relationships, each with the other.

5 This is a little bit different, because it's

6 not necessarily just, we're talking about the tribal

7 gaming agency sharing with another tribal gaming

8 agency. It wouldn't be the NIGC making available to

9 any tribal gaming agency the information that the

10 tribe has supplied to the NIGC, or both?

11 MS. ECHO-HAWK: We've been talking about

12 that, and in this context, it would be the

13 information that tribes have submitted to us. One

14 of the issues that we've heard, and we've actually

15 talked to Nevada about this, is how do we share

16 information in a way that is meaningful for tribes

17 and helpful, so you are not duplicating things. And

18 what is it, TAPS or TIMS or some, we have some

19 database, TAPS, TIMS, I don't know what, it's an

20 acronym that starts with a T.

21 That may not be as useful as we would like it

22 to be. The same with vendors for example, because

23 this is only for prime management officials and key

24 employees. But Coca-Cola has been licensed by

25 thousands of gaming operations, and do we really

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1 need to go through that whole thing again? So,

2 we've been trying to think about ways to do that.

3 Now, we included in there just for

4 clarification purposes that we can give this

5 information out to tribes or other requesting, I

6 guess they're civil and criminal regulatory

7 authorities. We wanted to be clear and let people

8 know that it is something we can do, the same as

9 they can do if they request.

10 MR. MICHAEL: Some of that might depend on

11 different situations on what representations have

12 been made to the applicant in the first place. We

13 have on forms a privacy notice, and if that notice

14 says that it will not be shared, it would be hard

15 then to share the information. Or we would have to

16 revise the notice. It's certainly a good idea. It

17 would be very efficient to be able to have a sharing

18 relationship for the information. Obviously, we'd

19 have to work around the privacy implications.

20 MS. ECHO-HAWK: Well, the privacy notice that

21 is required to be included on your form, that's

22 where we added that the NIGC can release

23 information. So they sign it. Assuming they read

24 it, they are put on notice that we can release this

25 information.

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1 MS. COCHRAN: And there has been some

2 discussion about, again, looking at the proper role

3 of NIGC within IGRA's boundaries, staying within our

4 lane. We're not the licensing entity. It's the

5 tribes. In this case, we would be a pass through.

6 Is that an appropriate function of this agency? I

7 can see arguments on both sides, and it's been

8 argued both ways. That's why we wanted to bring it

9 out to you, because we know it would be helpful.

10 And we want to make our agency achieve its other

11 purpose, which is to foster growth in Indian gaming.

12 So, we want to do that, within our lane.

13 MR. MICHAEL: One other thought occurs to

14 me. Guy Michael, Chitimacha. With respect to the

15 revision in the privacy notice, can that be

16 retroactive? What happens to people who applied

17 before the privacy notice was changed? And can you

18 only share the information with the new people who

19 signed the privacy notice when it was amended or

20 both, all of them?

21 MS. COCHRAN: That's a good question. 558

22 is again, once the license has been issued. And

23 Lael has gone through the changes. Is there any

24 initial comments? We do have highlighted in the

25 draft under 558.2 Subsection C, Subsection 2, the

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1 question of whether or not it's mandatory or

2 permissive if a tribe does not license an applicant,

3 that the tribe shall notify the commission and

4 either shall or may forward copies of its

5 eligibility determination to the commission for

6 inclusion in the record system. And again, this

7 does get in to discussions about the content of the

8 decision that's made when the tribe doesn't license

9 the applicant. The information that may attach to

10 that determination. Questions? Well, that's the

11 pilot program. Again, not a whole lot there. The

12 NOI- yes, please?

13 MR. CARROLL: Just for the record, again

14 on behalf of Chitimacha, we have employed the pilot

15 program for several years, and it has worked very,

16 very well. Between the NIGC staff and our tribal

17 commission staff, they've worked out a good system

18 of both communication and transfer of information.

19 So, we do commend that original project, and it has

20 worked up to this point. Just for the record.

21 MS. COCHRAN: Thank you. Part 571,

22 monitoring investigations. This spurred some

23 discussion more recently out in the Southwest.

24 Regarding the NIGC's access to papers, books,

25 records, including at sites maintained by third

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1 parties. The comments that we got in from the NOI

2 were again all over the place. Understand it

3 reflects the different concerns in different

4 regions. There is some who put forward that there

5 is a need for this, that they are having trouble

6 accessing their own records at their sites,

7 third-party sites. There was also some comments

8 that came back from the NOI which asked that the

9 section be revised to specifically exclude access to

10 any class III records. They were concerned about

11 the class III records. They felt like, on the other

12 end of the spectrum, NIGC should have access to any

13 gaming records of any nature, anywhere. And the

14 discussion that stemmed in from that in Albuquerque

15 also had to do with again, the authority of the NIGC

16 to do that.

17 If you look at 571.5, Subsection A, we included

18 the terminology, "Or any other person." Which is

19 defined . . . I want to get this right. Yeah, it's

20 under Subsection 2, "Person, means an individual,

21 Indian tribe, corporation, partnership or other

22 organization or entity." And the discussion really

23 had to do with whether or not the agency truly has

24 that level of authorities. As it was classified out

25 there, it was do you really have authority to enter

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1 anywhere, any time for any reason? And that may or

2 may not be true, so I wanted to bring that to your

3 attention for the lawyers in the room in particular.

4 MR. MICHAEL: Would that concern be

5 ameliorated if this were limited to the licensed

6 premises?

7 MS. COCHRAN: Say that again.

8 MR. MICHAEL: Would the concern about the

9 broadness of the NIGC's authority be addressed at

10 all if you limited that authority solely to the

11 licensed premises?

12 MS. ECHO-HAWK: That was, sort of, the

13 reason for the reg, was that tribes and the NIGC

14 sometimes would request information from say a

15 management contractor held in Vegas, for example.

16 And they couldn't get it. They would say you don't

17 have authority or whatever.

18 So, we wanted to clarify that we have access to

19 all that.

20 MS. COCHRAN: Now, there is another line

21 of thought that goes along with that. Which is

22 agency, you have subpoena authority. This is really

23 unnecessary. If you need it that badly, then you

24 have existing authorities.

25 The other comment that came out of the

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1 Southwest Region and Talalip, actually up in the

2 Northwest, was including in that 571.5 provision

3 that would allow notifications of the tribes. So,

4 that if we were to go to third party places, that we

5 notify the tribe in advance that we are going to

6 seek records on behalf of their operation.

7 MR. CARROLL: If I may? My first

8 instinct, I come from a law enforcement background,

9 it just seems to me that might have some

10 constitutional issues there, alone. Primarily based

11 on the entry aspect. If it's needed to gather

12 records from a third party location, particularly a

13 license holder, we would always, even in our

14 applications and our licenses, certain required

15 waivers are made, they give access. Those accesses,

16 broad as they are, have limitations.

17 I would think here with the definition of

18 person itself being relatively broad, whether one

19 person would have authority to waive, for example, a

20 corporate or partnership's, its rights and so forth,

21 would be a sperate issue.

22 But I just think that's going to have to be

23 tightened up, maybe in the area of even the entry.

24 If it can be tied to the licensee or the person to

25 whom there is an affiliation with the tribe,

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1 contractual or otherwise, if that person can waive

2 whatever rights they have, but it has to be related

3 to that contract and so forth. I think I'd feel

4 safer, in terms of future use of that, if it becomes

5 something that would be needed for an evidence point

6 of view.

7 Because a person granting entry to the

8 premises of any other person, even if it's a third

9 party. I mean that does include legal

10 representatives and CPAs and whatever else that

11 might be involved in the company. Then you're

12 hitting privilege as well as Fourth Amendment

13 issues. It seems a little broad. I mean just for

14 your own protection.

15 MS. COCHRAN: Well, thank you. Along that

16 same lines, I just recall now another conversation

17 that was had about the relationship that would have

18 to entities which might have liens. Valid liens

19 against the tribal entity. That we may infringe

20 upon other legal rights, we may not necessarily have

21 the authority for. So, thank you.

22 But above that in 571.4, the investigation

23 closure letter, Lael pointed out terminology. There

24 was a suggestion made that we get away from perhaps

25 the term, "Closure," because it does have a very

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1 distinct meaning within our regulations. And that

2 we consider some other terminology: conclusion,

3 investigation conclusion letter, perhaps.

4 Under 571.6, Subsection D, we've received some

5 feedback on this, asking whether or not, again,

6 whether or not that was within the authorities of

7 the commission. But also there was a request within

8 this whole section, that there seems to be an

9 emphasis in the existing language that materials be

10 made available at a time and place convenient to the

11 commission only. It was a request whether or not we

12 would consider some language which would allow

13 proper recognition of tribal lands and entry upon

14 tribal lands. And that there be convenience

15 requests to both parties. We said we would bring

16 that out in the discussion. So that is 571. Is

17 there any other comments?

18 Part 531 involves the content of management

19 contracts, and of course, this was brought out

20 during the NOI. Questions regarding whether or not

21 the commission should approve collateral agreements

22 to management contracts. And if so, what would be

23 our authority for that? Should we revise the part,

24 this particular part, to require submission approval

25 of collateral agreements to management contracts?

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1 We don't have a draft reg on this. There is no

2 draft. It is purely for discussion right now.

3 MR. MICHAEL: Chitimacha. We had

4 submitted a comment in this area about the

5 possibility of addressing the Wells Fargo decision

6 by excluding banks that make loans to tribes in

7 management agreements in the ordinary course of

8 business. And I guess that's, hopefully, that's

9 something that you will consider in evaluating what

10 types of collateral agreements, if any, need to be

11 reviewed by the commission.

12 Obviously, that's created some unease in the

13 lending community, as to what needs to be on a loan

14 agreement to avoid being deemed a manager.

15 MS. ECHO-HAWK: And that's something that

16 we've been thinking about quite a bit. In fact,

17 Larry Roberts, general counsel, he always wants us

18 to say that we are not reviewing old agreements at

19 this time, simply because we are waiting for the 7th

20 Circuit to make their decision. But that if you

21 have new agreements or agreements that you're

22 entering into, that the sooner you can get them to

23 us the better, if you want them reviewed. So, he

24 always tells us to say that.

25 The collateral agreement issue has obviously

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1 alarmed some people; other people like it. One of

2 the questions that is always asked is, "Well what is

3 a collateral agreement?" And that's a very good

4 question.

5 So, those are the things that we're hearing

6 from tribes. No draft yet, it seems we haven't been

7 able to, sort of, come up with a one-size-fits-all

8 and there are some concerns that we're thinking

9 about internally. The time that it takes to review

10 management agreements is quite lengthy. To review

11 and approve all these other collateral agreements,

12 it's not required by the act. The act says,

13 management agreements only. We're considering the

14 concerns that we may be overstepping our authority

15 and interfering in the business decisions of tribes.

16 So, all of those things have come up and haven't

17 been resolved yet. Of course, tribes are all over

18 the board too, so you know.

19 MS. COCHRAN: Is there any other thoughts

20 or comments?

21 Part 537, involving background investigations.

22 The essence of this part, as you well know, is to

23 ensure that the chair has the information that she

24 needs that's necessary to conduct a background

25 determination. We want to make sure that this part

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1 reflects that overall approach.

2 The draft rule, the one thing that we wanted to

3 bring out, in particular for you, to discuss under

4 the draft rule, does include section 537.1. I may

5 get lost in my subsections here. Well, page 4, 4 D

6 it looks like. And this would grant the chair

7 discretion to reduce the background investigation

8 that would be furnished by the tribe. So that the

9 burden is, the redundancies are taken out of the

10 background submissions, and the burden is lifted a

11 little bit.

12 The feedback that we've received on this

13 particular language is it's been well-received. And

14 that's one way that we wanted to streamline some of

15 the things that are going on, without compromising

16 the integrity of the process. That's absolutely not

17 the intent here.

18 Is there any comments or concerns? If there is

19 none, then we will finish up very quickly. It looks

20 like they're getting ready to start.

21 Part 502, the last part in this group, does

22 deal with definitions. We asked in the NOI whether

23 or not we should change the definition of net

24 revenues to more closely match terminology used in

25 GAAP. And the response has not been favorable to

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1 do that. Did you want to, or do you have any

2 additional comments or thoughts? That is it. I

3 know that's a fast and furious. But these issues, I

4 know the appeals provisions are new and may take you

5 some time to look at and to go through. But some of

6 this other stuff has been around for a while.

7 So, if there's any final comment on any

8 provision that you've seen, any of the discussion

9 drafts that are out there?

10 Well, I think we'll go ahead and end the

11 meeting so that we can focus on the chairwoman's

12 presentation. Again, I want to thank you for coming

13 out. I appreciate your time. I know we'll do this

14 again tomorrow. We'll get into the MICS and

15 technical standards. So, I appreciate your time.

16 Thank you for joining us, chairman. Thank each of

17 you for joining us. I look forward to our time

18 tomorrow, and we'll go ahead and go off the record.

19 (WHEREUPON, The meeting was concluded at 2:37 p.m.,

20 pursuant to reconvening on Friday, July 29th, 2011

21 at 9:00 a.m.)

22

23

24

25

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1

1 17:21 18:4,4 19:4

19:4 32:17 34:2,5

40:14 48:1,3,3 67:6

1,400 37:19 38:1

1,500 6:13

100 91:6

10th 108:3

11 90:6

11th 12:14

120 27:10 40:18

13 16:9

13175 14:15

15 102:21

17th 31:17

1951 1:9

1993 26:16

1:30 102:2

2

2 17:21 57:9 66:17

67:6,9 71:20,21

88:7 102:24 119:25

121:20

200 91:6

2006 32:20

2009 37:13

2011 1:6 129:20

20245 1:11

20th 31:11,14

21 15:7 38:5 77:23

21st 31:13

22nd 82:2,11

25,000 37:19

26 5:4

28th 1:6

29th 129:20

2:00 103:2

2:15 102:18

2:37 129:19

3

3 14:17,17 18:1 70:4

77:23

30 6:12 38:10 43:18

76:5 103:3 106:19

107:8

31st 18:22 26:10

33 12:15

4

4 17:22 95:15 103:5

103:6 113:7,25

128:5,5

5

5 15:8 17:25 38:5

95:15

5-7 67:15

50 38:10,11,11

502 103:15 128:21

514 18:5,12,14

24:18 34:12

519 34:6,13 72:3

523 18:5 26:14 39:7

524 72:3

531 109:23 125:18

537 103:13 108:16

127:21

537.1 109:8

537.1. 128:4

539 72:3

542 18:9 32:22

33:13 48:10,11

54:10

543 54:11

556 103:7,18 104:9

104:14,18 114:1,10

556.4 105:12 114:15

556.8 107:21

558 103:7,18 104:11

104:15 105:13

106:14 114:1,11

119:21

558.2 119:25

558.6 107:22

559 18:9,12 26:21

34:7 39:9 41:15,17

559.2 40:14

559.4 28:12

571 103:11 111:2,25

120:21 125:16

571.4 124:22

571.4. 111:18

571.5 121:17 123:2

571.6 125:4

573 57:9,21,22 87:7

87:14

573.1 58:5

573.4 67:20

577 72:3

580 72:11,16 73:6

581 73:7

583 75:5

583.6 75:11

584 75:13,16 80:6

585 72:11 75:13

76:15,22

5a2 74:7

6

6 67:22 70:5

60 16:2 27:10,11

30:25 40:19 41:8

104:21

7

7 80:9 115:9

7th 126:19

9

91 20:23

95 69:18 103:19

99 114:7

9:00 129:21

9:15 3:2,4

9th 60:23 109:22

112:18

a

a.m. 3:2 129:21

abbreviated 50:9

ability 23:24 99:5

able 9:16 23:21 73:1

77:9 79:17 89:5

92:3 99:24 118:17

127:7

absence 4:22 74:19

absolutely 43:2

45:19,19 61:23

100:7 128:16

accept 76:10,11

acceptable 55:16

accepted 25:1

accepting 4:8

access 22:7 23:22

103:12 108:6 111:5

111:13,14 120:24

121:9,12 122:18

123:15

accesses 123:15

accessing 121:6

accompli 65:8

account 34:18 82:19

85:6

accountants 53:2

accounting 25:1

35:6

accurate 16:18 19:6

19:6

accurately 60:18

ace 58:2

achieve 5:20 119:10

achieving 55:2

acknowledge 7:19

acronym 58:2

117:20

act 29:5,16 40:17

41:3 44:25 49:3,14

69:10 77:10,13

99:11,23 127:12,12

acting 78:14

action 51:19 58:11

58:13 59:2,5,15,17

59:17,18,19,20,22

63:4 65:10,17 69:2

74:16,18 75:2,3,15

75:22 77:1 78:4,4

81:8 83:15 84:10

86:13 87:2,3,18

94:10 97:1 99:16

[1 - action] Page 1

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100:21 112:3,8

actions 44:10 58:9

64:24 81:2

activities 29:17 44:7

84:25

actual 80:7,16

add 25:12 33:12

36:21 59:21 66:3

67:4

added 19:21 21:16

25:22 27:11 28:25

58:10 73:3 118:22

adding 25:17

addition 84:17

100:2,11

additional 16:3

41:10 67:12 106:19

114:15,20 115:24

129:2

additionally 19:2

address 32:17 48:4

54:1 57:19 86:19

115:10 116:14

addressed 122:9

addressing 126:5

adequately 29:3

39:3

adjust 38:13

administration 5:25

49:2

administrations

83:21

administrative

36:23 37:3 76:1

admission 24:17

advance 93:20

123:5

advantage 3:10

44:22 110:21

advent 6:23

adversarial 78:24

79:11

adverse 98:17

advise 112:3

advisory 53:9 54:6

63:6 81:10

affairs 3:24 8:15

11:8 102:19

affiliated 16:17

affiliation 123:25

afford 36:7

afis 23:22

afternoon 17:20,21

52:13,13 102:5,9,12

102:13

agencies 14:19

22:20 28:17 39:19

62:4 69:8,14,20

95:3 97:20,25

107:13 116:25

agency 8:10,16,24

9:1 12:15,24 13:3

19:12,15 27:12,16

27:21,25 28:19

29:23 31:22,24,25

32:3,13,25 34:15,18

34:21 35:23 36:9,24

37:24 39:14 40:17

40:24 41:3,9 44:11

45:8 47:10,16,20

48:9,25 58:4,8,13

59:15,17 60:10,10

60:15,16 61:18

62:13 63:4,24 65:23

68:11,22 69:2,12,15

69:17 71:4 73:18

74:16,18 75:3,15

79:2 81:7,12 83:10

83:15 84:10,18,24

85:9 87:17 95:10,18

96:6 97:24 98:9

99:16,18 104:20

106:2,4,4,23,24

107:7,9 109:8 110:2

115:11 117:7,8,9

119:6,10 121:23

122:22

agency's 44:7 63:22

84:21 101:14

agenda 3:20 9:7

13:19 102:1 113:23

agent 11:16

agents 43:9 56:6

91:22

aggressive 12:20

96:14

aggressively 94:21

ago 6:10 15:2 19:11

20:6

agree 65:15,22 69:8

70:13 82:7 86:23

97:17 100:18

agreed 4:3,7

agreement 110:10

126:14,25 127:3

agreements 109:25

109:25 110:3,14,19

111:23 125:21,25

126:7,10,18,21,21

127:10,11,13

ahead 3:4 19:18

101:19 103:22

104:6 113:18,22

129:10,18

aiming 113:10

alarmed 127:1

albuquerque 12:17

121:14

alj 80:14

alleviate 79:20

86:11

allow 31:11 36:12

37:23 38:13 56:21

107:5 108:6 123:3

125:12

allowed 78:14

100:13

allows 22:5 69:7

103:24

amazing 7:15

ameliorated 122:5

amend 107:24

amended 119:19

amendment 124:12

amendments 74:8

75:6

america 5:8

american 4:17 92:8

amicable 98:19

amount 7:21,22 8:7

21:8,13 23:11 34:20

35:12 38:8,8,9,12

38:18 39:25 43:13

50:12

annual 19:12 20:21

20:22 34:15 35:1,1

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date 19:4 64:20

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daughter 93:14

day 27:11 31:12

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Veritext/NJ Reporting Company

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Veritext/NJ Reporting Company

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willing 3:9 12:12

51:5 56:5 71:15

winter 30:17

wish 4:4 102:3

witnesses 80:2

women 7:25

wonderful 7:11

word 52:23 63:11

71:13

worded 96:15

words 19:9 51:17

72:22 89:1

work 5:18 7:16,21

8:7 15:5 19:14 22:3

22:9,10 28:18 38:7

48:21,21 49:25 51:5

52:18 53:15,22

54:21 55:7 56:8

91:11 104:22

107:14 108:12

114:9 118:19

worked 42:7 54:5

55:22 120:15,17,20

working 23:21

25:14 37:23 48:20

52:21,22 53:3 54:4

54:13,23 55:4,15

61:3 105:23 107:18

117:4

works 33:22

worksheets 42:3

world 35:21

worse 8:13 63:5

worth 68:13

worthwhile 38:16

84:8

would've 111:19

wound 89:24

wreak 36:10

wrench 29:19

writing 12:10,11,12

85:4

written 16:2,5,20

17:2 26:9 31:16

60:22 68:14 71:15

76:16 78:3,19 82:1

82:17 92:17 108:2

109:22 112:17

wrong 65:9 88:17

wrongdoing 67:11

71:7

www.nigc.gov.

16:21

x

x 98:8

y

yeah 28:20 30:6

33:4 41:22 42:14

43:22 45:21 52:2

62:3,8 63:13,15,20

66:19 70:7 80:11

87:14 115:7 121:19

year 15:2,3 18:19,20

18:21,25 19:8,23

20:24 34:20 35:4,9

35:10,11 41:23 42:1

83:22

years 4:10,11 6:10

8:24,25 19:11 20:6

28:3,5 36:24 49:1

50:2 53:9 84:7

99:14 111:21

120:15

yield 52:15

youth 6:21

yuma 11:20

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