1 NATIONAL INDIAN GAMING COMMISSION

2 REGULATORY REVIEW

3 TRIBAL CONSULTATION AGENDA - SEPTEMBER 16, 2011

4 COARSEGOLD, CA

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11 TRANSCRIPT OF PROCEEDINGS

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 September 16, 2011

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 9:00 a.m.

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 711 Lucky Lane

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 Coarsegold, California

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 Lilly White-Resendez, CSR No. 10354

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25 Job No. NJ338826

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1 APPEARANCES OF COUNSEL

2

 NATIONAL INDIAN GAMING COMMISSION

3 BY: DANIEL J. LITTLE, ASSOCIATE COMMISSIONER

 1441 L STREET NW

4 SUITE 9100

 WASHINGTON, DC 20005

5 202.632.7003 Ph 202.632.0045 Fax

 Daniel_little@nigc.gov

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7 NATIONAL INDIAN GAMING COMMISSION

 BY: LEAL ECHO-HAWK, COUNSELOR TO CHAIRWOMAN

8 1441 L. STREET NW

 SUITE 9100

9 WASHINGTON, DC 2005

 202.632.7003 Ph 202.632.0045 Fax

10 Lael_Echo-Hawk@nigc.gov

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1 COARSEGOLD, CALIFORNIA

2 FRIDAY, SEPTEMBER 16, 2011; 9:00 A.M.

3 -oOo4

5 PROCEEDINGS

6

7 MR. LITTLE: Good morning, everyone. We are

8 going to get started here. If any tribal members or

9 gaming commissioners or tribal designees want to come

10 and take a seat at the table, we invite you to come up

11 here.

12 I want to welcome everybody to the National

13 Gaming Commission's Regulatory Review Consultation

14 Session. I want to extend my gratitude to the Picayune

15 Rancheria for hosting this event. And at this time I'm

16 going to turnover to Picayune Counselor Hernandez to

17 open up properly with some words here. So, I think he

18 is a talking with the chairman.

19 Counsel, if you want to come to the mic or --

20 COUNSELOR HERNANDEZ: I can speak a loud.

21 MR. LITTLE: Okay. Fine.

22 COUNSELOR HERNANDEZ: Good morning, everyone.

23 Good to see you. Get comfortable. I'm going to say a

24 quick little brief words. I want to thank you for

25 coming and making it here safely. We know we are taking

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1 you away from the ones you love, your family and

2 friends. We just ask for you to be good to yourselves,

3 be good to your family and take care of each other. You

4 have a big responsibility. This is a huge, huge, agenda

5 you have on your table. And I just want to pray for you

6 that you guys are healthy and your minds are clear.

7

8 (Tribal prayer.)

9

10 MR. LITTLE: Chairman Lewis and Counselor

11 Hernandez, thank you very much for allowing the N.I.G.C.

12 to come on your land and provide us wonderful

13 hospitality. I had a great couple of nights in your

14 hotel and you have a wonderful facility and I'm sure

15 you're very proud of it. Thank you, once again.

16 Moving along. My name is Dan Little. I'm the

17 Associate Commissioner here with the N.I.G.C.. And on

18 behalf of Chairman Tracie Stevens and Vice Chairwoman

19 Steffani Cochran, I just want to welcome everybody for

20 coming here this morning. We are very grateful and

21 honored to address everyone and discuss these very

22 important issues contained in our Notice of Regulatory

23 Review.

24 Both Tracie and Steffani would like to be

25 here, but because of travel issues and other work on the

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1 Commission, they are back in Washington. But they do

2 send their regards and they looking forward to reviewing

3 the transcript and reading all the comments made here

4 today.

5 But before I get started, I'd like to

6 introduce some N.I.G.C. staff that are here today. To

7 my left, we have our Sacramento Regional Director Eric

8 Schlanski. With him today is, also from our Sacramento

9 office is Allen Phillips, field investigator and our

10 training coordinator for this region. Jean Wagner,

11 she's from our audit division here in the audience.

12 John Hayne from our office of general counsel in

13 Washington, DC is here. And Leal Echo-Hawk who's

14 counsel to the chair is here. And she's going to be

15 making some remarks here very shortly.

16 I also want to, I guess, let everyone know

17 that this event is being transcribed and with us,

18 Charlene is here, and she will be transcribing the

19 meeting, so if you happen to step out or if you're not

20 here for the entire consultation, these will be made

21 available on line at nigc.gov.

22 But the next thing I want to do, I'd like to

23 go actually around the room and invite everybody to

24 introduce themselves. I don't know if we have a

25 cordless microphone. Maybe we can start over here to

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1 the left, my left rather. And if we could just go

2 around and introduce yourself and the organization that

3 you're representing.

4 Mark Emerick, Executive Director for the

5 Picayune Rancheria of Chukchansi Indians.

6 Good morning, John G. Ross representing

7 Rincon. Scott Crowell up here today on behalf of

8 Rincon.

9 John Roberts, San Manuel Gaming Commission.

10 Stella Fuller, Pechanga Gaming Commissioner.

11 Shannon Williams, Picayune Ranch Gaming

12 Commissioner.

13 Angela Kars from Table Mountain, Legal

14 Counsel.

15 Jan De Paoli, Gaming Commissioner.

16 Corinna Raymond, General Manager Chicken

17 Ranch. Janet Costa, Tribal Administrator Chicken

18 Ranch.

19 Good morning everyone, Jason Andrews, Big

20 Sandy Rancheria and Tribal Gaming Commission.

21 Good morning. My name is Mark Pablo from the

22 Gaming Commission director of safety Rancheria Gaming

23 Commission.

24 Good morning. I'm Marlene Johnson with the

25 Big Sandy Ranch, Gaming Commissioner.

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1 Terri Poust, attorney. I'm here on behalf of

2 several clients.

3 Joe Morego, Gaming Commissioner 49 Palms.

4 Norm Hansen 49 Palms Gaming Commissioner.

5 Karl Slagley, Agua Caliente Gaming

6 Commission. John Toro, Agua Caliente Gaming

7 Commission. Phillip Orosco, Agua Caliente Gaming

8 Commission.

9 Kathy Ogas, Lytton Rancheria.

10 Larry Red Owl, Bishop Tribe and Gaming

11 Commission.

12 MR. LITTLE: All right. And next to me is

13 Eric Schlanski, our regional director.

14 I always like to see former N.I.G.C.

15 commissioners, so I'll make a special welcome to former

16 Commissioner Terri Poust and Norm Des Rosiers for coming

17 here today.

18 As many of you know that I came on the

19 commission almost a year and a half ago. Originally,

20 I'm from Connecticut. Prior to joining the Commission,

21 I worked with the Mashantucket Pequot Tribe in Foxwoods

22 Resort Casino.

23 Prior to that, I worked for the Connecticut

24 State Assembly and I served for over ten years in the

25 United States Army.

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1 Just a couple of things. The Commission is

2 committed to building meaningful government through work

3 and relationships with tribes, and respects you all as

4 the primary regulators of your operation.

5 We understand our responsibility of Federal --

6 just to let you know that tribes, state, and the

7 N.I.G.C. each have an important function in the

8 regulatory structure created by I.G.R.A.. We know this

9 industry is best protected when we all perform our roles

10 effectively.

11 Some regulations are an important tool to

12 ensuring the integrity -- to ensure this industry

13 remains high standards and public confidence. The

14 Regulatory Review Process gives the Commission

15 opportunity to hear first hand how the regulations are

16 working in your operation and learn about areas for

17 improvement.

18 I want to thank you again for attending today

19 and look forward to hearing your comments. I'm going to

20 turn the microphone over to Leal Echo-Hawk now and she's

21 going to run through a Power point presentation now that

22 will go through the agenda and then talk about the

23 process and how we got here. And then she's going to go

24 into the groups. And we'll do that as we get to the

25 groups, correct? So we are going to start with Group 1.

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1 So, Leal.

2 MS. ECHO-HAWK: Good morning. Can you guys

3 hear okay? Is everyone good? Good. Everyone

4 As Dan mentioned, my name is Leal Echo-Hawk

5 and I'm a member of the Pawnee Nation of Oklahoma and

6 I'm currently counselor to Chairwoman Stevens at the

7 N.I.G.C.. My primary responsibility there has been the

8 regulatory review.

9 Before I get started and I'll say this again,

10 certainly, anyone who -- we are kind of lonely up here

11 at the table. So if you're too crowded in a booth back

12 there, then please feel free to come forward. And we

13 will be -- we do have a mic, so if you are making

14 comments and you're at those back tables, just wave your

15 hand and we'll make sure that a mic gets to you because

16 this is being transcribed and we do need your name and

17 your tribal -- who you're representing for the record.

18 Tribal consultation. Tribal consultation

19 meetings are between tribal governments and the federal

20 government. Only tribes and their designees can attend

21 and participate in these meetings. These meetings are

22 not open to the public.

23 We need to put that out there for all of you

24 and, you know, just to be clear that this is not a

25 meeting for the press or the public.

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1 This series of consultation is followed up

2 with the Commission's commitment to the Executive Order

3 13,175. Particularly Section 3, C-3 which says,

4 In determining whether to establish Federal

5 standards, agencies will consult with tribal officials

6 as to the need for those standards.

7 So that's what we are doing today and we have

8 been doing over the past 12 meetings. We have been

9 taking about what regulations do we need and what should

10 those regulations look like and contain?

11 We developed this Regulatory Review Process.

12 We divided the regulations into five different groups.

13 These groups were formed by many factors. Group numbers

14 do not indicate their priority. But we looked at the

15 subject matter, at the amount of time that we estimated

16 and resources that we estimated it would take to review

17 those regulations and we came up with five different

18 groups.

19 We divided those groups into three phases. We

20 are currently in the preliminary drafting phase.

21 Very, very, quickly coming up on a Notice of

22 Proposed Rule phase.

23 And then finally, if those rules need to go

24 into a Final Rule, we'll go into that last phase here

25 over the next six months.

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1 All the preliminary drafts that you see are in

2 your packet. If you are at a table and you don't have a

3 packet, we'll get you some. They are over here on this

4 table. But they have all the preliminary discussion

5 drafts. These are all initial working drafts.

6 All the consultations, like I said, are

7 transcribed. Written comments and the transcripts are

8 on the N.I.G.C. web site at nigc.gov.

9 On the nigc.gov web site there is a new

10 section. There is a link to tribal comments. There's

11 also a link to draft regulations. And you can go there

12 on this one page and download copies of these discussion

13 drafts if you need to.

14 The commitment from the Commission has been

15 that every comment will be reviewed and considered. Any

16 Proposed or Final Rule will include a summary of those

17 comments. And a discussion of those, of the reason why

18 we either accepted or did not accept that comment. And

19 very importantly, the Commission is committed to a clear

20 and transparent process. That's why we are transcribing

21 these proceedings. That's why all the comments are

22 going up on the web site. We think that everyone

23 involved should be able to see and hear what other

24 people are saying in regards to this subject matter.

25 So we've got five groups. I'm not going to

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1 read through this list. It is in your handouts. It's

2 in your packet in the Power point.

3 And we are going to begin this morning with

4 Groups 1 and 2. Important to know, and this is in your

5 agenda, that Group 3, which now contains Class 2 Minimum

6 Internal Control Standards and Technical Standards, as

7 well as Part 542, which is Class 3 Minimum Internal

8 Control Standards. We have taken those out of these

9 meetings and we are going to focus on those in the

10 Tribal Advisory Committee that will begin meeting in

11 October, on October 20th in Connecticut.

12 So we are in the process of forming that

13 Tribal Advisory Committee. Today is the last day that

14 we are accepting Nominations. Currently, we've got

15 approximately 40 nominations in our office that will be

16 reviewed after we get back into the office next week.

17 So we will not be discussing these three issues or these

18 three regulations today.

19 So we've got Groups 4 and 5 that we'll be

20 discussing this afternoon.

21 So I'm going to begin with Group 1. Group 1

22 covers Part 514 which is the fee regs. Part 523 which

23 is appeals. Part 559 which is the facility license

24 regulation and then potentially the Buy regulation.

25 So we are very, very close to a Notice of

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1 Opposed Rule on the fee reg and so this presentation

2 actually contains some updated information that you

3 haven't seen before.

4 The discussion draft does a number of things.

5 It changes the fee calculation to being based on the

6 gaming operation's fiscal year instead of the calendar

7 year. It creates a more accurate figure and we have

8 less fee audits that we need to do. The fee rate will

9 be published on March 1st instead of February 1st. The

10 preliminary rate will be published on March 1st instead

11 of February 1st. This gives the agency and the

12 Commission more time to review the numbers as they come

13 in and make them more accurate preliminary rate, set a

14 more accurate preliminary rate.

15 We've done things like change some -- remove

16 some terms that didn't fit with industry standards and

17 try to make the regulation a little more lay person

18 friendly.

19 Moving back again to quarterly payments. A

20 couple of years ago the Commission moved from quarterly

21 payments to semi annual payments. Unfortunately, that

22 was something that doesn't comply with the Act. The

23 statutory language requires quarterly payments. So

24 that's what we are going to. This doesn't mean that you

25 can't prepay because I know a number of tribes do

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1 prepay, but we are going back to the requirement that if

2 you are not prepaying, then it will be a quarterly

3 payment. We've tried to put in some adjustment

4 periods. So if you go from a September 1 fiscal year to

5 a December 31st fiscal year, then there's a procedure

6 for how you notify the agency.

7 So the biggest changes that we've made, we've

8 added two sections. The first section is a late

9 payment -- it's sort of, we call it, internally we call

10 it a ticketing system or something similar to a

11 ticketing system. So if a tribe is late in making or

12 submitting your payments to the agency, basically, we

13 will, instead of issuing a Notice of Violation which

14 we've heard over and over again is much too punitive for

15 something as simple as submitting your fees late, the

16 agency would apply a sort of a late fee, a late charge.

17 I'm trying to think of a different word than fee because

18 we are not in the fee section, but it would be sort of

19 equivalent when you pay your parking ticket late and

20 there's an additional charge for that late payment.

21 That's what we've attempted to do in this section.

22 Currently, we are kicking around and this is

23 new information, a 10, so for payments that are one to

24 30 days late, a 10% fee, 31 to 60 days would be a 15%

25 fee, 61 to 90 days would be a 20% fee. And then after

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1 that the chair has the discretion to issue a Notice of

2 Violation.

3 The second session that we've added is the

4 fingerprint processing fee. Which we're trying to

5 formalize that process. It just clarifies how we

6 collect the fees and when the fee amount will be

7 published. Not all tribes utilize this function. It's

8 nothing that you are mandated to do, but it is something

9 that we do and wanted to make it clear to tribes how we

10 actually do it, put it in a regulation so that it be

11 transparent and everyone knows what that rate is.

12 Parts 523, which was an obsolete regulation,

13 that will be issued in order to propose rule making

14 proposing to repeal that part very soon.

15 Part 559 is the facility license notification

16 renewals and submission regulation. We made some

17 changes to that as well. Internally, that haven't --

18 that came from the comments that we've seen from

19 discussion, after we released the discussion draft. And

20 one of the key concerns that we heard from tribes is

21 that we were creating a process that -- a process for

22 review of the land, of the legal description of the

23 lands to see if it was Indian land eligible for gaming.

24 And that was not our intent. There is currently no

25 requirement in the regs that the N.I.G.C. do that

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1 determination before looking, while reviewing a facility

2 license. So we tweaked the language and you'll see it

3 soon in the notice of proposed rule that simply says

4 that the tribes can request an expedited review of that

5 land, legal description from the chair. The chair can

6 respond to that and the tribe can request a written

7 confirmation.

8 Our intent was to tell the tribes to tell the

9 N.I.G.C. if the tribes need a legal opinion from the

10 N.I.G.C. about the status of their land that we do it as

11 quickly as possible. And tribes don't have to sit

12 around and wait for us to kind of mosey through the work

13 that we do. If it's possible to make sure, to get that

14 information and that opinion to you quickly, then that's

15 what we want to do. So that was the intent. And we

16 tried to word smith the discussion draft and come up

17 with some other language, so hopefully this will work.

18 We also removed the renewal requirement from

19 the old -- from the current Part 559. New and newly

20 issued or renewed facility license just need to be sent

21 to the N.I.G.C. within 30 days. We just need to know if

22 the facility is open. Instead of requiring tribes to

23 send in an entire list of the laws and resolutions and

24 all of these things that were contained in the current

25 regs, the new regulation requires that the tribal

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1 attestation for the construction and maintenance of the

2 facility and operation, if conducted in a manner which

3 adequately protects the environment and safety. That's

4 the ego *** language. So instead of requiring a bunch

5 of documents from you, we just need an attestation that

6 the safety requirements in the act. ***

7 Notice needs to be sent to the N.I.G.C. within 30

8 days when a license is terminated or expired or if a

9 facility closes permanently or if it closes for more

10 than a 180 days.

11 Notice is not required in this proposed draft

12 to be sent to the agency for seasonal closures. We want

13 it to be as flexible a possible, we just need to know,

14 our enforcement staff just needs to know when a facility

15 is open. So we are trying to figure out ways to do that

16 and be reasonable with the time so that you're not

17 sending information to us repeatedly in, over short time

18 frames.

19 And then the last proposed regulation in Group

20 1, is a potential by Indian regulations, tribes have

21 been supportive of this and I just want it reiterate

22 because with we do get confused on this issue sometimes.

23 This is a regulation that tells the N.I.G.C. what to do.

24 It tells the N.I.G.C. to buy, when you're buying goods

25 and services that we need, to, when possible, buy

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1 Indian. It isn't telling tribes that they have to do

2 anything. This is just a direction to the N.I.G.C..

3 We've had a lot of support for this, but we are

4 internally trying to find out what our procurement

5 process is, how it works with the Federal Acquisitions

6 Regulation. And so it is something that we're still

7 working on internally. And so that's why there has not

8 been a proposed draft on that yet. And that is all of

9 Group 1.

10 MR. LITTLE: Thank you, Leal. As Leal said,

11 kind of a little housekeeping things. Once, again, it's

12 lonely up here. I invite you to come sit at the table

13 if you would like.

14 The second thing is, this meeting will be

15 transcribed, so when you do speak, please state your

16 name and your organization, that will help transcribing

17 your name easier.

18 We are scheduled on the agenda to go to

19 5:00 p.m. We may or may not reach that if we have

20 concluded the agenda. So if you've got comments, please

21 do them, you know, whenever you feel comfortable.

22 And like Leal said, this is government

23 consultation for tribal leaders and their

24 representatives. It's not open to the public or outside

25 media sources.

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1 So the first thing I think I want to do,

2 because there could be some folks that do have time

3 restrictions here, if there's any tribes that have

4 opening remarks that may not particularly just pertain

5 to Group 1, you can come up and sit at the table and

6 make those statements at anytime. You don't have to

7 just talk about Group 1. So I invite you to do that if

8 your time dictates.

9 If there isn't anyone, I think we will get

10 started on the 1st agenda item in Group 1, which is Part

11 514 that's the fees.

12 As Leal talked about, the purpose of this

13 regulation is to basically set up a process for

14 collecting fees from the industry through our fee

15 assessments that, you know, establishes a formula to

16 calculate the correct fee payments and then it

17 establishes a process for processing non-compliance

18 issues.

19 During the Notice of Inquiry and through

20 subsequent consultation, I think we've done 12 so far,

21 this is something that's of a very big interest to

22 tribes. It's actually of interest to some of our

23 internal staff too, mainly our comptroller because there

24 has been some difficulty converting to the biannual

25 assessment as far as budgeting purposes and things like

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1 that.

2 So if there's anyone that would like to

3 comment about moving back to the four times a year

4 assessment, will you please state so.

5 One of the other things we also heard at the

6 N.O.I. was, you know, folks like to talk about

7 calculating on a fiscal year. It's more accurate and

8 helps calculate fees better. So does anybody want to

9 start off with any comments or anything we've regarding

10 this?

11 MR. DES ROSIERS: Thank you. Norm Des

12 Rosiers. I don't know that the quarterly versus annual

13 is that big of a deal for any particular tribes,

14 especially when they have the option.

15 What we do have trouble with the clarity in

16 how you calculate a fee. And what I'm seeing and

17 hearing is that tribes are all over the map on

18 interpreting on how you calculate a fee. Some are

19 overpaying and are underpaying.

20 And it seems like -- you know, we just

21 experienced an audit, you know N.I.G.C. came out and

22 audited whether we are calculating right. And what we

23 are hearing is, you know, it's different for every tribe

24 and your interpretation and our interpretation aren't

25 quite the same. So all I'm asking, and we have

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1 submitted some written comment, that that -- I don't

2 know, that formula, or maybe the definitions of net

3 revenues and all of this be clarified so that we are all

4 on the same page with the right definitions on how to

5 calculate those fees.

6 That's my comment.

7 MR. LITTLE: I appreciate that. Thank you.

8 Anybody else have any comments regarding that or what's

9 included in the discussion draft that was put out in

10 April of this year?

11 Some of the other things -- I'm not sure if

12 anyone has any comments regarding us moving the

13 preliminary fee rate announcement or termination from

14 the Commission to March 1st or February 1st. I do know

15 in this last year when we had to do it, it was -- there

16 was some challenges there for our comptroller. I think

17 it would be, it would make it, it would make our

18 decision, you know, more informed, like we all like to

19 do, especially me.

20 I'm not sure if anybody has any problems with

21 that. We normally talk about the quarterly fee payments

22 and, again, those points are well taken.

23 Does anybody have any comments on the, we've

24 kind of coined the term, "ticketing system" for late fee

25 payments? You know, in reviewing past notice

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1 violations, we do see there was a considerable number of

2 late fees, N.O.V.'s, those consume a considerable amount

3 of time from our agency staff. They carry significant

4 repercussions for the tribes, you know, politically and

5 publicly, public relations wise.

6 I'm trying to find a balance here. We, you

7 know, this agency does not receive any federal

8 appropriations, so fee assessments are what funds this

9 organization. So they are critical and vital to our

10 operations and it's something that has to be dealt with

11 very, very seriously. However, is there a better way?

12 We've heard cases where you've had C.F.O.'s

13 that were sick or you've had, you know, different types

14 of issues, natural disasters that have come up where the

15 fees were submitted late. So we thought that maybe this

16 type of ticketing system could be a better way that we

17 are doing business. And that, you know, if tribes were

18 late, then they would know firsthand what the

19 consequences would be.

20 Now, Leal did point out that after the 90th

21 day, definitely the chair reserves its right to, you

22 know, issue a N.O.V. and issue a fine that is

23 appropriate. But up until that time, which I think the

24 majority would fall within if there's a process here.

25 And we did, we did say -- I think the suggestion that

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1 the Commission come up with a 10, a 15, a 20. I think

2 some of the folks in the general counsel were talking

3 25, 50, and 75. I thought that was a little bit too

4 harsh and we negotiated that back down -- I'm only

5 kidding.

6 Does anybody have any comments on the

7 ticketing system? Is it something that you think would

8 work? You're going to be the blabber mouth today,

9 Norm.

10 MR. DES ROSIERS: I encourage everyone to say

11 their peace, but as you know, I usually have something

12 to say.

13 I haven't read the latest language, but in

14 previous consultations two issues -- first of all, I

15 encourage, I support the notion of late fees as opposed

16 to a N.O.V. I think that's a great option.

17 Were you its two questions as to rise that I

18 don't know that has been answered are really, isn't that

19 a fine? And if it is, the people are willing and

20 voluntarily paying. But if they don't pay it, if they

21 pay what their assessment is, they paid their fee, but

22 they don't want to pay the late fine, so to speak, then

23 what happens?

24 And I raised that question before, and I don't

25 know if -- the previous language didn't address that,

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1 so. . .

2 MR. LITTLE: It's my understanding and I think

3 John or Leal can correct me, but the chairwoman always

4 reserves the right -- the chairwoman has the latitude to

5 either waive a fee or waive any -- I'm sorry, not a fee,

6 but waive a penalty or a fine, if she sees fit. Am I

7 correct?

8 MS. ECHO-HAWK: Yes. And the other thing is

9 that it is a fine, it does go to the treasury and not to

10 the agency. And if a tribe fails to pay that fee, we

11 just get a hold of the treasury and they send their

12 collection agency after it. They would use their

13 collection power under the regulations that we also have

14 within our section of the regs to enforce that.

15 MR. DES ROSIERS: But if it's a fine, then you

16 have a section of penal processes, penal fines that you

17 impose. Would it fall under that?

18 MS. ECHO-HAWK: The way that we've drafted it,

19 it would fall within the appeals.

20 MR. DES ROSIERS: It would not fall.

21 MS. ECHO-HAWK: No, it would.

22 MR. DES ROSIERS: Oh, it would fall. So if

23 I'm 60 days late, I would pay what my assessment fees

24 are, but choose not to pay the late fee, then that 60

25 day 15% is a fine and it would go through an appeal

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1 process. But you can't come back and -- or can you come

2 back on top of that and fine me by $25,000 a day for 60

3 days, and all of that?

4 MS. ECHO-HAWK: The Chairman could issue a

5 Notice of Violation, and so, yes, she could. So, yeah.

6 MR. DES ROSIERS: Well, I'm just suggesting if

7 those are the options, probably that language needs to

8 be clear in there, if that's what you potentially face.

9 MR. LITTLE: Yeah. The draft is on line,

10 actually, it's in the book here.

11 MS. ECHO-HAWK: It's in the book.

12 MR. LITTLE: It's in the book here. So

13 hopefully, that will answer any questions, but that's a

14 good point to raise and I appreciate that.

15 Thank you.

16 I didn't mean anything about the blabber

17 mouth, that was just for fun.

18 Does anyone else have any comments regarding

19 the ticketing system, the penalty process relating to

20 late fees?

21 The other item that Leal talked about was the

22 fingerprint processing fees. We just added a section to

23 clarify, you know, this process. And this isn't

24 utilized by all tribes. I know some tribes have this

25 included in their compacts, but a number of agencies

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1 does utilize the agency to process their fingerprinting

2 cards. We just want to formalize the process, you know,

3 to just layout clearly how the fees will be assessed and

4 utilized.

5 Any other any questions on that or comments?

6 I guess I could go through the book here and

7 find some questions to ask. I hate to move onto the

8 next part without thoroughly kind of exhausting what

9 might be on your minds here.

10 I guess if there are no more comments, I guess

11 we'll move onto Part 523 and that is the Review and

12 Approval of Existing Ordinances and Resolutions.

13 Like Leal talked about, the purpose of this

14 regulation is, it addresses the ordinances or

15 resolutions that were enacted prior to 1993, but were

16 not approved by the N.I.G.C. chair. From our

17 understanding any tribes that have these in effect right

18 now, during the Notice of Inquiry and the consultation,

19 tribes told us these regulations were obsolete and

20 should be repealed, but it's also a low priority,

21 something that I'm not sure -- it's not a big deal for a

22 lot of tribes. We don't have any discussion draft out

23 on it because, obviously, it's just repealing case

24 ordinances.

25 A couple of other things. There's no impact

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1 on your ordinance after 1993. Those ordinances are

2 subject to Part 522. So, I'm not sure if anyone has a

3 comment on Part 523.

4 Okay. Moving right along. Part 559. This is

5 the Facility License Notifications, Renewals and

6 Submissions.

7 We had a discussion draft that went out in May

8 of this year. I'm hoping a lot of you took a look at

9 that. The purpose of this regulation is to verify that

10 the Indian land, the Indian land status of each gaming

11 facility and ensures the construction and maintenance of

12 the facility are conducted in a manner that adequately

13 effects environmental public health and safety.

14 During the N.O.I. and subsequent consultations

15 tribes have told us that this regulation should be

16 revised. They didn't agree with the substance or the

17 process for adopting this regulation. We heard that the

18 N.I.G.C. exceeded its authority in promulgating this

19 regulation. Environmental, public health and safety

20 standards are implemented by tribal authorities. They

21 are, in many instances, requirement of tribal state

22 compacts and they are requirements of other federal

23 agencies such as O.S.H.A. and E.P.A. And these are

24 sufficient -- this is what we've heard in the N.O.I. --

25 we've heard this from tribes, that they are sufficient

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1 with complying with the portion that requires that.

2 Like Leal said, in the discussion draft that

3 we have up on line, it's included in your packet, we

4 have made some changes which I think the biggest is

5 requiring tribes to an attestation that they are

6 certifying, they are compliant, that they have, you

7 know, environmental public health and safety standards

8 that, you know, comply with what is required in I.G.R.A.

9 And like Leal also said, the draft includes

10 the process for expedited review. It limits the

11 requirement that a facility license be renewed every

12 three years.

13 I know this was a contentious issue when I was

14 with the tribes. And judging by the comments that we've

15 received, it's of a big interest. So I want to make

16 sure that if you've got any comments or questions that,

17 you know, you can let us hear about them.

18 Does anybody want to start off and talk about

19 this regulation? Does anybody have any comments on --

20 yes, thank you.

21 MS. POUST: I'm Terri Poust, attorney. I have

22 just two quick questions on this.

23 The first one, you're anticipating publishing

24 a proposed rule soon? When would we be able to get

25 that?

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1 MS. ECHO-HAWK: Right now, I would say my

2 goal, this is my personal goal because I can't say the

3 Commission's is to have the Notice of Proposed Rule out

4 before N.I.G.C. gets here. So before the 19th of

5 October is my goal to have a number of things out.

6 MS. POUST: Are you gonna be publishing them as

7 a group then?

8 MS. ECHO-HAWK: We are still working that

9 out. Some things have to go through the office -- this

10 particular draft, I'll just tell you, this may be beyond

11 that because it has to go to the office of management

12 and budget. They've got to take a look at it. And

13 they've got to send it out to other agencies for

14 comments because it does impact, you know, one of the

15 things that tribes are very clear about and we tried to

16 incorporate into the regs because a lot of this

17 especially health and safety are covered by other

18 agencies.

19 So O.M.B. is going to take this draft to those

20 other agencies and get their input on it. And once we

21 get that back, we'll publish it. So we're, we're right

22 before we send it to the O.M.B. I'm crossing my fingers

23 that the turn around will be short and then they will

24 publish it for comment from tribes.

25 And let me just say, we're going to have at

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1 least a 60 day comment period, written comment period

2 and we're going to try to incorporate other consultation

3 meetings as well, which is why you've seen us recently

4 cancel a bunch of meetings, but we've kept meetings

5 through December. Those meetings are anticipated to

6 cover these topics. We've tried to -- we're trying to

7 coordinate them with the tribal advisory committee

8 meetings. So if you want to be at both you can.

9 They'll be at the same location, but that's all

10 coordination we are doing now.

11 So that's the goal. My goal is to have most

12 of this out before we roll into the T.A.C. in the big

13 staff. That's my dream.

14 MS. POUST: And my last question, the last line

15 on the slide, "no renewal requirement," I'm unclear. Is

16 that just referring to the one section 5592 A or would

17 this be the license as a whole; what is that?

18 MS. ECHO-HAWK: If you recall, the current

19 regulation requires the tribes to renew their facility

20 license every three years. I'm not sure why that would

21 be because if you have a facility, unless you close it,

22 you're not going to do much. You're not going to pick

23 it up and move it. So internally -- and I know when I

24 was at the tribes, this was something that we had some

25 concern about because we have a facility, we built it.

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1 It costs millions and millions of dollars. We are not

2 going to move it somewhere else.

3 So this regulation eliminates that

4 requirement. So if a tribe issues a facility license,

5 it could be for 900 years. There's no requirement that

6 you have to renew it after a certain period of time.

7 You only have to -- if a tribe wants to renew

8 it, that's fine. But if you just have a facility

9 license and it's just a facility license with no time

10 lines on it, no time frames, then the only time we need

11 to know when that -- the only time you need to send

12 notice to us again is if you close a facility, you

13 reopen it, or we put in 180 days. That was what we

14 figured might work -- or six months. If you're going to

15 close your facility for more than six months, maybe you

16 should call us and let us know that. But that's outside

17 of a seasonal closure, because we do know that there are

18 some tribes that are open three months a year because of

19 their location.

20 MS. POUST: Thank you.

21 MR. LITTLE: Thank you, Terri.

22 MR. CROWELL: Scott Crowell from Rincon.

23 This is more kind of a record keeping thing.

24 I just want to make sure that our presence here today

25 and our silence on some of these, particularly Parts

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1 one, two, and three should not be viewed as that we

2 don't have a view. We are submitting comments. Rincon

3 submitted comments on this before.

4 The reason I'm speaking up now is because this

5 one was near and dear to the tribe's heart, both in

6 terms of the Notice of Inquiry and the written comments

7 that we've submitted. This is one area the tribe was

8 very pleased with the preliminary draft as being a C

9 change from the prior commissions. And our concern that

10 the prior commissions were overreaching beyond what

11 there statutory authority is. Norm and I go back and

12 forth on the Class 3 mix, I'm not sure whether we

13 disagree on the facility licensing to where, you know --

14 the prior commissions had, through several failed

15 efforts, had tried to put themselves in a position of

16 literally second guessing and taking a very

17 paternalistic view in terms of being able to determine

18 what, what a tribe's -- whether a tribe's was lost or

19 adequate in a self government point of view. And Phil

20 Hogan's response was, trust me, I'm not going to do

21 that. Yet, he was drafting regulations that would put a

22 potentially hostile commission. We don't know what the

23 decomposition of the N.I.G.C. might look like, you know,

24 under a Paylin administration, for example. And that we

25 need to be very, very conscious at all points to make

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1 sure that the regulatory authority granted by congress

2 is respected and the N.I.G.C. does not overreach.

3 And the preliminary draft represents, in my

4 point of view a C change from prior commissions and we

5 applaud that.

6 MR. LITTLE: All right. Thank you, Scott. I

7 to appreciate you making the comment about the lack

8 of -- the silence or the lack of comment not being

9 anything. We did receive your comments. I do

10 appreciate that. We do receive all of them. Leal has

11 been a stickler in making sure we review them, and read

12 them and go over them.

13 So we do get inundated with -- and gratefully

14 inundated with all of these comments. Actually, one of

15 the things I think was -- I really admire the tribal

16 community during this process here is, I recall during

17 my previous employment where we would take the generic

18 form letter that came out from one of the trade

19 associations and kind of put our stamp on it.

20 But I've been very impressed with the unique,

21 specific comments that were received from individual

22 tribes and organizations. I want to commend all of you

23 that these haven't been form letters. These have been

24 letters and comments that have been thought out and well

25 prepared. So I do appreciate that. Every comment is

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1 reviewed and it is read and it is given effort. So I do

2 appreciate that.

3 Is there anyone else?

4 MR. DES ROSIERS: Just for the record, Scott

5 and I agree on this.

6 MR. LITTLE: Never doubted that.

7 MR. DES ROSIERS: It's not common, but we go

8 way back in history. When the last version was enacted,

9 I think my comments were very consistent with Scotts.

10 And I'm sorry to see you leave the table, because I'm

11 sure we haven't heard the last from you. Stay up here.

12 MR. LITTLE: Is there any other comments

13 regarding Part 559 or any comments from the previous

14 parts that we've raised that you might have just thought

15 about now?

16 MR. DES ROSIERS: Just one question. I notice

17 the time is left blank here. Is there any

18 contemplation, 559.5 when do you need to notify the

19 chair the license is terminated or expires and it's, you

20 know, left blank on the page.

21 Is there any contemplation as to what that

22 time periods will be?

23 MR. LITTLE: I'd like to know what your opinion

24 is. I think that's one of the points here. We want to

25 know what is a reasonable amount of time. If you have

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1 some comments, what is a reasonable amount of time? Not

2 to put you on the spot here, you can comment on that

3 comment later on, but that is one that we are interested

4 in hearing from everyone. What is a reasonable amount

5 of time? And that is one reason why it was left blank.

6 MS. ECHO-HAWK: We have sort of internally

7 filled in the blank as working towards the new draft and

8 the new proposed rule and it's in the Power point. We

9 threw in 180 days. No rhyme or reason. We just figured

10 six months, you know, if you're closed more than six

11 months, tell us so that our enforcement guys aren't

12 there and see that it's all closed up and call us and we

13 send our S.W.A.T team and see what happened.

14 MR. LITTLE: Okay, then I guess moving along

15 on the agenda here. On Group 1, the last subject item

16 is the Buy Indian Act. And as Leal said, it's very

17 important and worth while to reiterate, this is not

18 something for the tribes. This is something for the

19 agency.

20 Like I said earlier, we are very cognizant of

21 the fact that our budget comes exclusively from the fee

22 assessment that you all provide. And it's, as other

23 federal agencies do utilize, a Buy Indian Act, you know,

24 this, this, proposed -- and we don't have a draft. I

25 guess we do have a draft. When did that come out?

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1 MS. ECHO-HAWK: No, we don't.

2 MR. LITTLE: It didn't come out yet? Okay.

3 You know, what we are proposing is that, you know, issue

4 a requirement. I'm not sure if you want to do a

5 regulation or an internal policy to that would require

6 our staff to procure Native sources when they are out

7 looking for goods and services. When we do groups like

8 this, when we do training events.

9 If you were here yesterday, my remarks -- our

10 headquarters in Washington, DC will be relocating in --

11 potentially relocating in 2013. There's many, many

12 qualified native contractors out there. This is where

13 this probably would take place or be utilized.

14 It's not a requirement of the tribes or the

15 N.I.G.C. You know, what we've heard in the N.O.I. and in

16 consultations, tribes are very supportive of this. But

17 you know some of my kind of comments were and this is

18 no, this is actually, I guess, an indication of, you

19 know, grade strides that a lot of the tribes or

20 facilities have made, that when we go out to do

21 trainings or we do consultations, a lot of time the

22 tribal facility is not the cheapest. And, in fact,

23 sometimes they are a lot more expensive. I applaud

24 that, that's great news. They are obviously doing what

25 the market demands and that's something that I

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1 definitely support.

2 However, are we, should we be required to

3 utilize that more expensive tribal facility when we

4 could go to a non-tribal facility that is less expensive

5 and save money? Those are some of the comments that I'm

6 interested in hearing. You know, if it would be

7 appropriate for us to spend more money in order for us

8 to utilize a native contractor.

9 Does anybody have any thoughts on this?

10 MS. POUST: Terri Poust again.

11 Just kind of piggy backing on something that

12 Scott said a few minutes ago, as well as what she just

13 said. The Commission is trying to decide whether or not

14 this should be a regulation or internal policy. I have

15 no doubt that this Commission would do what's right for

16 Indian country when it comes to looking at and evaluate

17 meetings and how they should acquire goods and

18 services.

19 A lot of these regulations, I'm looking at

20 them from the perspective of whose the next

21 commissioner. So in that regard, I would encourage you

22 to look at doing the regulation, not just an internal

23 policy. I think it would have a lot more teeth and it

24 would really work to ensure that not only that this

25 Commission does that and has followed a Buy Indian type

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1 of policy, but also ensure that future commissions would

2 do the same thing.

3 MR. LITTLE: Good point. Thank you.

4 Does anybody else have any comments on this or

5 want to talk more? And everybody is generally in

6 support of us having a Buy Indian Act.

7 Lael, do you have anything you want to add?

8 MS. ECHO-HAWK: Good job.

9 MR. LITTLE: We have a break scheduled at

10 10:15. It's 10:00 o'clock. I think I'm inclined to

11 take a break now and then go into Group 2. Okay. We're

12 going to break until 10:15, okay.

13 (Whereupon, a brief recess was taken).

14 MR. LITTLE: All right everybody, I think we

15 are going to get started again.

16 And according to the agenda, we are going to

17 move to Group 2 and those includes Parts 573 Enforcement

18 and the Sub Chapter H, Proceedings Before the

19 Commission. So I'm going to turn the mic back over to

20 Lael Echo-Hawk to go through the Power point on Group 2.

21 So, Lael.

22 MS. ECHO-HAWK: Okay. So Group 2 covers part

23 573, which is the enforcement regulation and then the

24 regulations concerning proceedings or appeals before the

25 Commission, including these numbered parts. But as you

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1 see in your handouts, we've taken those particular

2 parts, taken them apart and created a new sub chapter,

3 which we'll talk about here in a minute.

4 But first, Part 573, that's the enforcement

5 regulation. The discussion draft that you have in your

6 packet is also on line. As voluntary compliant is a

7 goal of the Commission, one of the concerns that we've

8 heard repeatedly from tribes is that Notices of

9 Violation would issue and they wouldn't have had any

10 notice or conversation or they would have had a very

11 preliminary conversation and then all the sudden the

12 Notice of Violation is issued and they didn't feel like

13 they had an opportunity to bring, to address the issues

14 that were raised or that were at issue in the Notice of

15 Violation.

16 So what we attempted to do is outline a

17 reenforcement action process. So I have received some

18 questions about whether or not this replaces the P, the

19 pre notice of violation, the process that happened, I

20 guess a while ago. I don't think many of those have

21 issued since. And it does.

22 We've created sort of two processes. This is

23 a -- we just had a meeting about this and the idea is

24 that this would be a graduated process. That ideally a

25 letter of concern about a particular issue would be sent

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1 out by the N.I.G.C. staff, this is not coming from the

2 chairwoman. That this would be from the N.I.G.C. Staff,

3 that there is some kind of incident or something that

4 needs to be addressed. It could be a violation. We are

5 not saying that it is a violation, but that it could

6 potentially be one.

7 The other action that could also happen is a

8 non compliance notice. Now, we've been talking about

9 this internally and the term non compliance notice.

10 We've heard a lot of comments about that. So we are

11 considering changing that to a warning letter or

12 something else that basically confirms the assessment of

13 the matter, that says, okay, there is a violation. We

14 need to address it. It provides a clear time frame.

15 And the other thing that we are adding to the, to this

16 process is something that we didn't put in and it was

17 sort of an oversight because we thought it would be. I

18 guess, we thought it was a no brainer, that we needed to

19 build in some time from for the tribe to respond. So if

20 we issue one of these notices, that the tribes have an

21 opportunity to respond to that to dispute whatever,

22 perhaps arguing and saying, no, it isn't a violation for

23 these reasons. And this is all prior to a Notice of

24 Violation.

25 Now, while this is intended to be a graduated

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1 process, this isn't a one, two kind of process. It's

2 not necessary -- they could be issued separately. A non

3 compliance notice or warning letter or whatever we term

4 it could be issued without a letter of concern going

5 out, depending on the circumstances.

6 So while the idea, the hope is that it's a

7 graduated process, so that we only have to issue a

8 letter of concern, if the issues on the letter of

9 concern are not met, then a non compliance notice or

10 warning letter would issued and then a Notice of

11 Violation. But they could also be issued independently

12 of one other, because this process does not -- it

13 doesn't limit the chair. The chair can still issue a

14 Notice of Violation if the circumstances require that.

15 One of the other issues that we have heard and

16 we are trying to address internally is making sure that

17 there's a time frame built into each of these letters or

18 notices. That a tribe knows they have X amount of time

19 to respond or come into compliance, so that it's not

20 something that's out there pending. That there isn't

21 this sort of limbo land where tribes, you know, don't

22 know, don't respond or think don't know they have to

23 respond within a certain amount of time. Just to be

24 very clear on what the issue is and what the time frames

25 are for correcting or responding lines.

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1 If the recommended corrective action is not

2 completed, then further action maybe taken. And like I

3 mentioned before, this doesn't limit the chair's

4 decision to issue a Notice of Violation when the

5 circumstance demands that. So that's Part 573. Again,

6 we are trying to refine it. Currently, we are working

7 on that, based on the comments that we've received from

8 tribes.

9 Then the proceedings before the Commission and

10 we've heard a lot about this and it's something that we

11 are going to actually define, what is a proceeding

12 before the Commission? In this context, it is an appeal

13 of an ordinance of disapproval of a management contract

14 approval or disapproval or an appeal of Notice of

15 Violation to bring closure order or to find dual fine

16 assessment.

17 All of these different kinds of proceedings

18 were sort of, kind of hodge podged, placed throughout

19 the regulation. So when we took a step back and we

20 began thing about how would this look holistically? How

21 could we make that easier to find, easier to navigate?

22 We came across a section of the regulation which is sub

23 chapter H, which is after the enforcement provision or

24 after the enforcement sub chapter. And it made sense to

25 us to kind of put all of these proceedings in that sub

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1 chapter. So they are all in one place. They are easy

2 to find. They are not sort of scattered throughout one

3 of the regulations. So if you're in the middle of one

4 of these issues, you can go straight to that sub chapter

5 and you'll find the information that you need.

6 You do have in your packet, you do have the

7 regulations. You also have the Power point, but what

8 this does, what we've tried to do is break it out into

9 each discrete section. So Parts 582 to 585 all deal

10 with specific proceedings.

11 Parts 580 is the rules of general application

12 in these proceedings. It will contain things like

13 definitions. When rules can be suspended or waived.

14 Who can appear. Service requirements. Definition of ex

15 parte communication. Those type of things, things that

16 apply throughout this whole sub chapter.

17 Part 580.1 covers all the motions that can

18 happen in these kind of proceedings and what the process

19 is for filing motions, for limited opinions,

20 intervention, motions on appeal when it's just based on

21 written submissions to the commission, filing a motion

22 et cetera.

23 One thing that we did add was a provision for

24 filing a motion for reconsideration. And I apologize to

25 all of you non lawyers in the room who don't care about

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1 this stuff. I don't blame you. But the lawyers in our

2 office were really excited about this and how we can

3 refine these particular regulations.

4 One of the issues we came across was that

5 sometimes tribes, sometimes tribes file a Motion For

6 Reconsideration, sometimes they didn't. There was a

7 practice if our office that if a tribe did file a Motion

8 For Reconsideration that they would be considered.

9 However, there was nothing in the regulations that said

10 a tribe could. The only way a tribe would know about

11 that was if their attorney had previously worked on one

12 or was very diligent and researched our web site in the

13 various appellate decisions to see that another tribe

14 had done it and so they figured we can do it too.

15 We wanted to formalize this. We wanted to

16 make sure that everyone knew there was a process for

17 reconsideration. And so that process was included in

18 Part 580.1.

19 Then Part 580.2, governs our potential appeals

20 of disapproval of gaming ordinances or amendments.

21 One of the comments that we received, that a

22 lot of the information that's contained in Parts 582 to

23 585 are repetitive. And it's true, but it's for a

24 reason. If you're simply filing an appeal of a

25 disapproval of a gaming ordinance, then you shouldn't

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1 have to go and see what happens when you file it. It

2 should just be contained in that same section and you

3 shouldn't have to go somewhere else to look for it.

4 So while it is repetitive, and you'll see that

5 particular section repeated throughout 582, 583, '84,

6 '85. It's because if you are utilizing that section,

7 Part 582, we don't want you to have to look at 852, 585

8 to find the information that you need. It all needs to

9 be in one place.

10 580.3 is the process for appealing an approval

11 or disapproval of management contracts or amendments to

12 management contracts. Who can file those approvals.

13 How to appeal. You know, the process, late filing.

14 What happens? Motions. Who can be a limited

15 participant, what the standard review was, et cetera.

16 And we had the question come up, well, why

17 would you appeal the approval of a management contract?

18 We thought about this and we left it in because we have

19 had instances where tribes, for example, the governing

20 counsel presented the governing contract to the

21 commission and it was appealed. Then the legislature

22 appealed it because they didn't want that particular

23 management contractor.

24 So if you have a question, if you were

25 wondering why that is, that's why that was left in.

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1 So Parts 584 and 585 were all included

2 previously in Part 577. So if you have been issued a

3 Notice of Violation, temporary closure orders, or civil

4 fine assessment, or the chair has decided to void or

5 modify a contract, this is the notice of late fee,

6 assessment fee, if you come across any of these things,

7 you can choose as a tribe to go one or two routes.

8 You can choose to have an actual formal

9 hearing were you present information, you do discovery,

10 you can take witnesses. Or you can choose to just file

11 your appeal just through written documents and it goes

12 straight to the Commission.

13 Part 584 is that hearing process. And it goes

14 before a presiding official, sort of an administrative

15 law judge. There is a hearing held, it's very

16 adversarial. You have attorneys on both sides

17 presenting evidence and making arguments.

18 The presiding official then issues a

19 recommendation to the Commission on the decision. And

20 then the Commission adopts or modifies that official's

21 decision.

22 On the other hand, you can go straight to an

23 appeal directly before the Commission. And when you do

24 that, you don't have a hearing, you just file the

25 paperwork.

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1 And so there's the two routes that you can go

2 and we tried to lay that clearly out in those different

3 sections.

4 There are some comments on the web site on

5 these, so if you're interested in hearing what other

6 tribes have to say, it's there. And I think with that,

7 I'll turn it back over to Dan.

8 MR. LITTLE: Okay. Thank you, Lael.

9 We're going to move on, up to Part 573,

10 Enforcement Regulation. As many of you know, the

11 purpose of this regulation is to set up the general

12 rules for the Commission to follow when taking

13 enforcement action. And this includes the process for

14 when a N.O.V. can be issued or a process when the chair

15 my issue a temporary closure and it provides a form for

16 that review process.

17 So during the N.O.I. and consultations, we

18 heard from tribes that our enforcement policy should

19 reflect a civil regulatory team rather than a punitive

20 criminal one. We also heard that the N.I.G.C. should

21 stop the voluntary compliant, which we have in our

22 draft. That we should adopt a process whereby a N.O.V.

23 is not surprised. And I think we've don that also by

24 creating some steps and that our regulation should focus

25 on prevention and not on -- the prevention of a N.O.V.

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1 And like we talked about earlier are, we all

2 are cognizant of the fact that an N.O.V. can have a very

3 serious economic impact. And the goal of this

4 commission is to maintain compliance, not issue

5 N.O.V.'s.

6 So in June, we issued a discussion draft.

7 Like Lael said, we did add a voluntary compliance

8 statement. And where it allows our staff to issue

9 letters of concern of non compliance. And then the

10 draft also specifies when a N.O.V. becomes a final

11 agency action.

12 So does anybody want to start off with some

13 comments regarding the discussion draft or any topics

14 that have not been covered, have not been raised by the

15 commission in any of the previous consultations here

16 today?

17 MS. POUST: Hi, Terri Poust, again.

18 I really appreciate what the commission is

19 talking about doing with coming up with this graduate

20 approach to enforcement, rather than just going to a

21 straight N.O.V. I think we have all seen situations in

22 the past where that has happened and not really

23 justified. So I really appreciate the intent of the

24 commission to kind of formulate this graduate approach.

25 My question though is really, and, again,

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1 looking at future commissions and how do you ensure that

2 that happens all the time? Because I noticed that the

3 way the language is, the chair still may issue an N.O.V.

4 You talk about if the circumstances warrant that. Are

5 you going to define that in anyway? And I know that

6 that may be difficult, but my fear is that if you lie

7 out this kind of graduated approach, but then still say,

8 but the chair can issue an N.O.V. if circumstances

9 warrant it.

10 Is that going to open the door to future

11 commissioners just to go back to, you know, what they've

12 been doing, which is, you know, you pay your fee two

13 days late, so we are just going to issue a N.O.V. So is

14 there some kind of a standard that's going to be set up

15 in regulation to, I guess, try and really spell out what

16 the circumstances would warrant those records from

17 N.O.V. versus the graduated approach?

18 MR. LITTLE: I think the pre enforcement

19 actions or the process is for staff to work with and

20 mainly, you know, our field staff to work with the

21 tribes to, you know, maintain compliance or when they

22 identified compliance issues to bring them up to the

23 standards. I think, you know, I mean, the commission

24 has to always reserve the right for the chair to enact a

25 N.O.V., you know, if, you know, he or she seems fit at

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1 the time. So, you know, I think we are very interested

2 in maintaining the authority of the chair, but trying to

3 create a process where the staff will work better with

4 the tribes.

5 Lael.

6 MS. ECHO-HAWK: That's been one of the

7 comments we've seen consistently in consultation and in

8 the letters that we've received. It's very difficult to

9 define and we've toyed around with some language. We've

10 thought about what we can do with the preamble language,

11 so we're thinking about it. If you've got some ideas

12 we'd love to see it, because it is -- we need to walk

13 that fine line, we need to know if there's someone in

14 there who's, you know, illegally managing or managing

15 without a contract or if there's some major issues going

16 on and we need to immediately -- the chair needs to take

17 immediate action. Then she needs to have that

18 authority.

19 On the other hand, you're right, the whole

20 reason we are going the route with the fees and with

21 this pre enforcement of the, this voluntary compliant

22 pre enforcement type proceeding is because the

23 commission has done that in the past. So we are really

24 trying to figure out how to work it. How do you put

25 that in regulations? It's very difficult. So if you

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1 have some suggestions, we'd like it to see it, but we

2 are playing with language and talking about what we can

3 include in the preamble, perhaps give guidance to future

4 application of that particular regulation.

5 MR. LITTLE: Thank you, Terri. We appreciate

6 that.

7 Are there any other comments regarding the

8 enforcement regulation or any of the voluntary

9 compliance process we're looking at trying to implement?

10 I guess we'll move onto the proceedings before

11 the commission. And that's, you know, Lael, pointed out

12 this is kind of a major kind of overhaul of this issue.

13 I know as an associate commissioner when I came onto,

14 came to the N.I.G.C. I was, I kind of felt that there

15 was an area, a need to better spell out the appeals

16 process so that there's a better understanding of, you

17 know, your rights under I.G.R.A and regulations. So I

18 think we've tried to make the process easier.

19 During the N.O.I. We did hear this, you know,

20 numerous times that the tribes were concerned about due

21 process, you know. I think in regards to timelines they

22 had before the commission, you know, that tribes felt

23 there was no finality when it comes to written appeals

24 and there's a sense that they are kind of hanging out

25 there.

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1 So we are looking to -- like Lael said,

2 looking to consolidate Parts 519, 524, 539 and 577 into

3 a new sub chapter. And we're proposing that to be Parts

4 580 to 585. And when I go through all the steps that

5 Lael had talked about or what each part does.

6 But does anyone have any comments or concerns

7 on, you know, and your reasons not to consolidate these

8 all into one part of the regulations? Any areas where

9 folks have had difficulties in the past from a

10 misunderstanding or lack of understanding of it. Is

11 there anything we need to clarify? Norm, do you have a

12 comment?

13 MR. DES ROSIERS: Yes, thank you. And I've

14 submitted nothing, so I wanted to make a comment on

15 this. Norman Des Rosiers, San Manuel.

16 But the one thing that jumps out at me and

17 I've been thinking a lot of the non lawyers, we have a

18 problem and I urge you to consider in your definition

19 section actually defining what "file" means. We talk

20 about filing briefs, filing motion, filing appeals, but

21 nowhere in here was I able to figure out just exactly

22 how that's done. What does file mean? Does that mean

23 submitting a document? Does that mean -- and who do I

24 submit it to and how do I submit it, electronically, by

25 mail? None of that filing stuff is defined in here.

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1 How that is actually done. Everything else is he pretty

2 clear, you know, what a brief must contain, what a

3 motion must contain, when to do it, but not what does

4 file really mean? Do I submit it to the office of

5 general counsel? Do I send it to the Chairman? That's

6 not in here or at least I didn't see it in here.

7 MS. ECHO-HAWK: Lawyers make very basic

8 assumptions, so if we can clarify that, we will. There

9 is in the service section.

10 MR. LITTLE: 519.

11 MS. ECHO-HAWK: Well, yeah, five, but it's now

12 580.4 Page 3 in the handout. It says, copies of the

13 appeal and appeal brief should be filed personally. So,

14 yeah, we are working on definitions for this section

15 too, and so I'll add that to my list to maybe make it a

16 little more clear.

17 MR. LITTLE: Thank you. Does anyone have any

18 other comments? I mean, this is a huge undertaking here

19 and I think something that is so important as, you know,

20 your right to appeal. Any of the major issues that

21 N.I.G.C. undertakes, whether it be an approval of a

22 management contract or, you know, this is a big section

23 here. And it's a big change.

24 Does anybody have any other comments,

25 suggestions, clarifications.

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1 I guess moving right along, in the general an

2 I guess we'll start of on Group 4. And that includes

3 Parts 556 and 558, background investigations for

4 management officials and key employees.

5 Part 571, the monitoring and investigations

6 and Part 537 on background investigations.

7 So Lael.

8 MS. ECHO-HAWK: Okay. So Group 4, Dan just

9 went over what that contains. Also, we do have, you do

10 have drafts in your packet. Part 556 and 558 formalize

11 what is commonly referred to as the pilot program,

12 that's been going on for some 10 years. So we didn't

13 think it was so much a pilot program anymore and maybe

14 we should actually change the regulation to, say, adjust

15 what we are actually doing.

16 Tribes were very supportive of this. Just

17 quickly the pilot program allows tribes to submit a

18 notice of results of background investigations that they

19 set. Then the tribe maintains all the documents and all

20 the reports. They just send us a notice of results and

21 basically a little more streamline and somewhat more

22 efficient. So that's what we intend to do.

23 Now, Part 556 includes all the procedures. We

24 tried to divide it up. Part 556 provides all the

25 procedures before a license is issued.

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1 And 558 includes the procedures after a

2 license has been issued. So tribes seeking to license a

3 key employee or primary management official have to

4 notify the agency of the background results no later

5 than 60 days after the applicant begins work.

6 Now, we know that there is a number of tribes

7 that have, you know, temporary licenses and those kinds

8 of things. So it's after the applicant begins work is

9 the way that the regulation reads.

10 We also tried to allow, we're trying to

11 streamline things and not make tribes duplicate

12 information, duplicate efforts.

13 So if a tribe, if one tribe had access to

14 information on a particular applicant, background

15 information, an investigative report, they can get that

16 background information from that tribe and simply update

17 it and then send us that updated notice of results.

18 That way tribes aren't, you know, if you have

19 a tribe who, you know, from here, say, who's going to a

20 tribe, you know, down the road and your gaming agency

21 talks to each other, you can obtain that information.

22 Then it's just a matter of updating and not recreating

23 the entire file.

24 Part 558, as you move along includes all the

25 procedures after the gaming license has been issued.

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1 Now, there is something that is a little bit different

2 about this, about the regulations than what's been

3 common practice in the pilot program. And that is that

4 a tribe has to provide us with a Notice of Results of

5 the background information and then they have to provide

6 us a notice of the license, that they've actually

7 licensed the individual. This is different than what

8 was going on for the most part, in the pilot program.

9 And it's a statutory requirement. It is an additional

10 step. We've had some concerns, tribes saying, oh,

11 you're making an additional step that's different than

12 what we are doing. But it's statutory and it's

13 something that we need to do.

14 We are trying to move ourselves into the

15 beginning of the 20th century. You know, or maybe the

16 end, I don't know, in our electronic submissions and our

17 I.T. We are working very hard to make sure that whatever

18 you submit to us it, doesn't take a lot of work. We are

19 not losing things on fax machines. We can actually

20 utilize a scanner and email address and those kinds of

21 things. So we're working on that internally.

22 Now, upon receipt of the Notice of Results,

23 the N.I.G.C. has an opportunity of 30 days to look at

24 that information and then either -- we are also trying

25 to formalize a process, you know, every region is doing

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1 this differently. Some regions were very, very good,

2 very quick and other regions didn't do this at all.

3 That is to issue a Letter of No Objection. We don't

4 object to this person obtaining a license. However, the

5 N.I.G.C., if it does issue a contend, it can either

6 object to the individual, it cannot issue a license to

7 that individual or it can request additional information

8 from the tribe.

9 Now, here's where it gets a little bit sticky

10 and it's something we've mentioned to tribes and we just

11 want to point out again, if the N.I.G.C. has an

12 objection within that 30 days and the tribe has already

13 issued the license to that applicant, once that license

14 is issued, along with it comes rights to a hearing and

15 due process proceedings. So if the individual has been

16 issued a license and the N.I.G.C. says, whoa, we've got

17 some issues to this particular applicant and this

18 licensee, then the tribe has to hold a hearing, suspend

19 the license, hold a hearing and then later provide the

20 N.I.G.C. notice of whatever the results were from that

21 hearing.

22 And again, future ordinances have to comply.

23 If the ordinance doesn't comply with us now, don't worry

24 about sending us an ordinance amendment until you are

25 actually doing that and then at that time make sure your

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1 ordinance submissions comply with this provision.

2 So the other things that were in Group 4 had

3 to do now -- and I just want to point out, we've pulled

4 a couple of thing from the discussion because the

5 commission's made the decision that we are not going to

6 be talking about them. That we are not going to go

7 forward with the amendment to this. One of those issues

8 was a Class 2 program. If you look in the draft, it's

9 on Part 537 at the very top of the 1st page. There was

10 an addition that said, "Including a management contract

11 that provides for management of both Class 2 and Class 3

12 gaming."

13 When we first started this process there was a

14 thought and there was a suggestion from our office that

15 we needed to clarify that management contractors of

16 these hybrid facilities that are of Class 2 and Class 3

17 facilities owned by one tribe needed to submit

18 background investigation. As we moved along in the

19 process we realized, perhaps that's not the

20 clarification we need. The commission has decided that

21 it's not and that's not something we are going to be

22 discussing or making an amendment on.

23 What we are still considering adding is Part

24 537.1 which allows the chair to exercise discretion and

25 reduce the background information requirements that need

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1 to be conducted on certain entities, such as a tribal

2 N.S.D., a national day, institutional investigator,

3 somebody that's already federally regulated. Now,

4 again, this is at the discretion of the chair, but it's

5 something that tribes suggested to us and it seems like

6 a reasonable amendment to make.

7 Then moving on into 571. Again, we had

8 included in a discussion draft a section where we talked

9 about an access to off site records, books, those kinds

10 of things. And as we've gone through the consultations,

11 we've heard over and over again that you can do it, but

12 you don't really need to do it because you have subpoena

13 authority. So what's the point, I mean, you can, but

14 it's not a necessary amendment.

15 The commission listened to that and has

16 decided that that's not an amendment that we are

17 considering at this time. It's not necessary. And so

18 the only amendment that we are currently looking at in

19 571 is the investigation preclusion letter. Now, this

20 is where the N.I.G.C. has begun an investigation and

21 concluded it. We've heard numerous times that tribes

22 have been notified we have done an investigation and it

23 was five years ago. Well, they never received any

24 notice that the investigation was closed. They didn't

25 receive a Notice of Violation. They are sort of out

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1 there in purgatory, like limbo. They don't know what's

2 happening with this investigation, but they have to

3 notify if they are bond holders or banks or other sort

4 of regulatory entities that they are still understand

5 investigation. So this allows the N.I.G.C. to advise

6 the party that the investigation has been concluded.

7 This doesn't say that the chair couldn't issue a Notice

8 of Violation or that there has been no violation. It's

9 just saying that the investigation is concluded. So

10 there is some peace of mind provided to the tribes.

11 And so that is what we've got for Group 4.

12 MR. LITTLE: Okay. Thank you, Lael.

13 So we are going to start off with Parts 556

14 and 558. We're going to kind of do it together with

15 that for background investigation for primary management

16 and key employees.

17 Part 556 in the discussion draft is basically

18 all the procedures that occur before a license is

19 issued. And then Part 558 is all the proceedings after

20 a license is issued.

21 As you all notice, the purpose of these

22 regulations is to weed out, you know, bad influences and

23 during the N.O.I, as Lael pointed out, we heard from the

24 tribes that a pilot program can't be going on for 10

25 years. It's no longer a pilot program. So, it's

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1 worked, it's worked well. And it's probably something

2 that should be formalized into a regulation, which we

3 have done in the discussion draft.

4 Is there any comments if favor of that or

5 maybe not in favor of formalizing the pilot program into

6 a regulation? Scott, go ahead.

7 MR. CROWELL: Scott Crowell on behalf of the

8 Rincon Band. Dan, I have with me today a copy of the

9 formal statement that has been approved by the tribal

10 counsel, similar to previous comments that we've

11 submitted. On Group 4, we've already submitted

12 comments, but since that time the preliminary drafts on

13 556 and 558 come out and the counsel has a couple of

14 comments that if you'll bear with me, I'll simply read

15 from the statement.

16 Since our last submission, N.I.G.C. has

17 circulated preliminary drafts on Parts 556 and 558, our

18 initial review is favorable and supportive with two

19 exceptions.

20 First, we agree that the tribe should be able

21 to turn to the N.I.G.C. for assistance to conduct

22 background investigations on any employee or entity for

23 which the T.G.A. seeks assistance. Being able to turn

24 to the N.I.G.C. to process fingerprint cards beyond

25 primary management officials and key employees enables

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1 tribes to make better informed and faster decisions.

2 This is particularly important because many states deny

3 or severely restrict tribes from a states database or

4 resources.

5 The cost of processing fingerprint cards,

6 however, should be borne by the participating tribes and

7 not out of fees paid by other tribes, who restrict

8 N.I.G.C. assistance to key employees and primary

9 management officials.

10 Second, the revision to 558.2 highlights a

11 provision that considers requiring notification to

12 N.I.G.C. of determinations of unsuitability in license

13 denials. We suspect this is highlighted because

14 I.G.R.A. requires that a tribe notify the N.I.G.C. of

15 licenses issued, but is silent on notifying N.I.G.C. Of

16 licenses denied. 25 U.S.C. 2710 sub two sub F sub two

17 sub one. The crux of the a abuses of the Hogan

18 commissions were the result of an agency culture that

19 believed it could fiat authority on the grounds that it

20 was a good idea, without regard to I.G.R.A.'s limits on

21 that authority. Class three M.I.C.S. facility licenses,

22 et cetera. Although, the proposed requirement to notify

23 N.I.G.C. of licenses denied is a good one, and improves

24 the data base on which all tribes can make better, more

25 informed licensing decisions, it falls outside the of

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1 the N.I.G.C.'s parameters of authority set forth by

2 I.G.R.A. and perpetuates the culture that lead to past

3 abuses. Accordingly, Rincon endorses the word "may" and

4 opposes using the word "shall." We do believe that a

5 tribe can compel its T.G.A. to submit such information

6 to the N.I.G.C. in its context of the tribal gaming

7 ordinance, but this is properly a matter of tribal self8 governance.

9 Finally, the preliminary draft appear to make

10 the quote pilot program permanent. We applaud this

11 change. It has been a farse to call it a pilot program

12 when it is older that most tribal gaming facilities.

13 MR. LITTLE: All right. Thank you for those

14 comments. Will we get a copy of that for the record?

15 MR. CROWELL: Yes.

16 MR. LITTLE: All right, thank you.

17 Does anyone have other comments you want to

18 add about the pilot program, formalizing it? Does

19 anybody have any comments about how by formalizing it,

20 it could effect any current ordinances? Does anyone

21 have any comments how we can improve the process

22 providing access or background information, whether it

23 be like Lael talked about, better communications or

24 sharing information or -- Lael?

25 MS. ECHO-HAWK: Just to kind of follow-up with

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1 the question Dan just asked and what Rincon's comments.

2 One of the issues that we've heard repeatedly

3 is a tribes would like to have access to a database that

4 means something, that you can actually see a person has

5 been licensed by X tribes for X long.

6 One of the concerns that we've had with this

7 particular section is, does that also mean that tribes

8 have access to individuals who have not been licensed?

9 And that if they had not been licensed, do we provide

10 the information for why or why not?

11 And in 556 and in 558, if you look at 556, one

12 of the requirements for an individual who's submitting

13 an application is that they provide notice of anytime

14 that they have not been licensed. Well, we, you know,

15 internally, we are like, well, why would that be?

16 There's a lot of reasons why an individual may not be

17 licensed. I remember when I was working for a tribe,

18 sometimes it took forever to get the person in the door

19 and ready for employment and they had already applied

20 for a gaming license, but by the time the operation got

21 around to hiring them, it was too late, they had got

22 another job and didn't need the license. But we've

23 heard stories of individuals who anecdotally didn't put

24 on their -- they applied for a license, but hadn't been

25 issued a license. They weren't considered unsuitable

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1 for the other tribe because they had not included that.

2 They had just forgotten that they had applied for the

3 job and at the same time they applied for a job they

4 applied for a gaming license. So you have that

5 instance.

6 And then you have instances where individuals

7 have submitted background information and they are

8 unsuitable for a number of reasons. We receive the

9 information on that, but if you don't submit the

10 background's investigative reports, we don't know why.

11 So when someone accesses the database like that, we need

12 to figure out what information is suitable for occlusion

13 in that kind of database. How do we get that

14 information if we are formalizing this Notice of Results

15 and then how can tribes actually use it in a meaningful

16 way.

17 So it's a dilemma we are facing internally.

18 If you have some thoughts about that, we'd love to hear.

19 MR. LITTLE: Thank you, Lael.

20 MR. ANDREWS: Jason Andrews, Big Sandy.

21 One of the questions I had and I was speaking

22 with Melissa over here, who's the licensed manager for

23 another tribes.

24 Is, as it is right now, I don't believe the

25 tribes are sending in authorizations to N.I.G.C., so I

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1 think there could be or may be an issue maybe internally

2 with the tribes to the applicant as far as putting on

3 that information. One suggestion could be that the

4 database just include the tribes that they were denied

5 by. And then some contact information or something of

6 the sort where now as a licensing investigator can

7 contact that tribe, send them the authorization and

8 release information and then they could communicate

9 tribe to tribe. Just an idea.

10 MR. LITTLE: Great. Thank you. Good point.

11 Was there any other comments? Norm.

12 MR. DES ROSIERS: Thank you. Well, I jokingly

13 asked Scott if he had read my submitted written comments

14 before he submitted his, because they were almost

15 identical. And, you know, the notion of a database and

16 access to people, you know, who have had a license and

17 had them denied or revoked or whatever, it's good. I

18 don't know of any tribe that wouldn't want access to

19 that kind of information.

20 However, as Scott pointed out and as I pointed

21 out if my written comments, I really firmly believe that

22 it must be voluntary. I don't think I.G.R.A. gives

23 N.I.G.C. the authority to manage. Well, I don't know.

24 And, again, I can't imagine -- maybe there's exceptions

25 to everything, but why a tribe wouldn't want to

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1 voluntary submit that. I mean, I do. And I've done it

2 for years, but it's been voluntary.

3 MR. LITTLE: That's a good point. Thank you,

4 Norm. Is there my other comments, any other comments on

5 556 and 558?

6 MR. CROWELL: If I could, I appreciate the

7 issues that you have to struggle with in terms of the

8 database being available without having a consistent or

9 uniform standard of, you know, whether tribes are

10 submitting their denial information and the background

11 basis on whether it's simply, you know, didn't get

12 around to it or if it was a negative termination

13 suitability. I would not -- I encourage you to develop

14 and make that database available, even though those

15 problems persist. I think, you know, every tribal

16 gaming commission that I've had the pleasure of working

17 with, you know, is able to discern, you know, the

18 reliability and the detail of information. And that

19 database would be additional information that the

20 tribes, that the tribes could use and, certainly, if

21 there's unanswered questions on the reason for denial,

22 short of a negative termination, suitability, et cetera,

23 then that's something that, that T.G.A. could follow-up

24 with the applicant or licensee and ask them to provide

25 additional information.

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1 The more information the T.G.A. has, the

2 better informed decision that can be made. So even

3 though there are problems with consistency and

4 verifiability of the information in that kind of

5 database, I don't think that outweighs the value that

6 the database would provide.

7 MR. LITTLE: Thank you. Let's move onto -- if

8 no one has any additional comments, we'll move onto Part

9 571. Monitoring Investigations.

10 And I think as Lael had discussed, the purpose

11 of the regulation spells out procedures used by the

12 commission to monitor gaming and conduct

13 investigations. In a discussion draft that was put out

14 in June, I think that the area we are going to focus on

15 is basically when an investigation is terminated. I

16 know we've been kind of toying with the terminology

17 there, not to say an investigation closure, because it

18 sounds like a closure of a facility, but the

19 investigation notification termination process. So in

20 the discussion draft and I'm hoping, I'm sure most of

21 you have had a chance to review it, it basically

22 provides a process that the N.I.G.C. would utilize to

23 notify a tribe that its investigation has been closed.

24 But it does not mean that an investigation cannot be

25 reopened at a later time or that there was no sufficient

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1 evidence that a violation has not occurred. It just

2 means that the investigation has concluded.

3 Does anyone have any comments regarding this,

4 you know, this draft proposed changed. Good things, bad

5 things?

6 We are breezing right through this agenda

7 here. We won't have anything to do after lunch.

8 MR. DES ROSIERS: That's the idea.

9 MR. LITTLE: I hate to move along if folks

10 have something to add. I guess we could talk about

11 Parts 537 Background Investigation of Management

12 Contracts.

13 This part just specifies what must be included

14 in a management contract for it to be approved. During

15 the N.O.I. and the consultations, you know, we heard

16 that the commission should streamline this process.

17 Does anybody have any comments regarding Part

18 537? I think one of the issues that was raised was when

19 a management contractor has multiple operations, do they

20 need to go through the same process, entire process for

21 back grounding if they work with a number of tribes?

22 So the discussion draft, it basically gives

23 the chair some discretion. Does anybody have any

24 comments regarding that, is that good, bad, helpful? No

25 comments? Everybody speak at once here.

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1 Well, I think that's the end of Group 4. I

2 guess we could go onto Group 5 or do you have anything,

3 Lael, that you want to add?

4 MS. ECHO-HAWK: So everyone is comfortable

5 with the issues that we've decided to take off the

6 table, I'm assuming, or we would have heard about them.

7 Thank you all so much. I mean, I just want to just

8 really extend my gratitude. The comments that have come

9 in have been so excellent. And they really have

10 provided a lot of guidance. So when we present these

11 issues and say, you know, to the commission, who do read

12 the comments, that overwhelming a tribe is not necessary

13 in the interest of time and money and tribal resources,

14 so you're not still spinning your wheels on issues that

15 we are not talking about anymore. I really appreciate

16 the comments have been great. The commission has been

17 super acceptive. So, hopefully, this helps us move this

18 process along.

19 So part, Group 5 -- you know what, I

20 overlooked two things in Group 4 because I forgot we

21 pulled them off the table and those were the discussion

22 about collateral agreement. If you remember, we've been

23 considering defining what collateral agreements are and

24 refining that and overwhelmingly, the response of

25 tribes -- well, not overwhelmingly, there's been a

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1 little debate it may be useful, but don't touch it.

2 And, you know, given some useful court opinions, that

3 that particular issue has also -- we are not considering

4 a regulation or doing anything with that, anything with

5 that particular definition.

6 Likewise, we were talking about the definition

7 that revenues overwhelmingly we heard there's a

8 statutory definition for net revenues. You can't really

9 do anything about it. So we are not going to do

10 anything with that definition as well.

11 So those are no longer issues that we are

12 considering internally or spending our time and

13 resources on developing any kind of regulation or

14 definition. Is everyone okay with that? So Group 5

15 contains -- and you'll notice that we, Group 5, Group 1

16 and Group 5 both contain a section identified for a

17 Class 3 mix. We've again have taken that issue off the

18 table. We are going to be talking about that with the

19 tribal advisory committee in the meetings that we've

20 planned beginning in October.

21 So Group 5 covers Part 518, self regulation

22 and Class 2 gaming and self proprietary interest. The

23 most recent discussion draft that you've seen and in

24 fact comments closed on Saturday, I don't know why on

25 Saturday. That's when the date calculator says. I

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1 apologize. So it closes tomorrow actually if you have

2 comments.

3 So that's the most recent discussion draft

4 that's in your handout. So we asked whether or not the

5 commission should review the Class 2 self regulation

6 certification. We heard back an overwhelmingly yes,

7 please do. You know out of 240 gaming tribes, 400 and

8 some operations, we had two tribes that are self

9 regulating. So obviously this regulation is not doing

10 what congress intended, it's not doing its job. It's a

11 very old regulation. It was written back in the late

12 1990's before we had M.I.C.S. So as we were going

13 through it we were saying, because we didn't even have

14 this other regulation at the time. So we looked at it,

15 we tried to reduce duplicative and burdensome

16 information, you know, things that were already sent to

17 the N.I.G.C. we already have from a management contract,

18 or gaming ordinance commission or facility licensing

19 commission or whatever it was. We didn't want to make

20 tribes submit that again. It seems duplicative on our

21 heads as well as yours.

22 But we did hear that the high standards did

23 need to be maintained and that is really a tribal

24 sovereignty issue. So we shift the focus from the

25 gaming operation, it was odd because if you look at the

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1 regulations, it fixated on the gaming operation and not

2 on regulation on the tribal regulatory side, which is

3 really what this is about. It's about the tribe

4 regulating itself. So we need to talk about how does a

5 tribe do that?

6 So if you look in your draft, and we've

7 reduced the submission requirements to make, you know,

8 not to reduce the information we have, but to eliminate

9 some of the duplicative things that were contained in

10 and to really focus again on tribal gaming regulatory

11 agency and not on the operation. So it contains things

12 like board charts, employment criteria, so we know

13 people are getting back grounded, funding descriptions,

14 we wanted to make sure there was adequate funding for

15 the regulatory agency. Who the regulators or, you know,

16 description of accounting systems, internal controls,

17 record keeping systems for investigation. Copies of

18 facility licensing, tribal regulations, if not included

19 with the ordinance. Now, I know that a number of tribes

20 include their regulations inside their ordinance, so we

21 would have that information. But I also know that there

22 are tribes that have regulations built outside of the

23 ordinance so they can amend them as needed without

24 having to seek the approval of the N.I.G.C. So I think

25 those tribal regulations were not included in the

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1 ordinance then you send them to us, but otherwise if we

2 already have them, no need. Okay.

3 So, then we identified some criteria that best

4 need certificate of self regulation. Some of this we

5 just couldn't change because it's language straight out

6 of the act, including this effective, honest accounting,

7 reputation for safe, fair and honest -- all this stuff

8 in the first bullet there, that's statutory language.

9 And we need to make sure that it's being conducted with

10 I.G.R.A., N.I.G.C. regs, and the tribal gaming ordinance

11 and regulations. A tribe has to have an adequate

12 system, you know, stuff that we know as tribes have

13 developed, you have this stuff. Adoption of and

14 implementation of M.I.C.S., M.I.C.S. adequate dispute

15 regulations processes for employees and customers, a

16 gaming regulatory body that monitors compliance,

17 monitors effectiveness of the accounting systems, does

18 audits, Class 2 gaming activities and receives that

19 information so they are able to conduct those audits

20 from the operation. Inspect the -- I.G.R.A has access

21 to inspection and access to books and papers related to

22 the Class 2 gaming activities. It was very important

23 for us to make sure, especially the chairwoman, she

24 comes from the northwest, those tribes are pretty

25 independent, we wanted to make clear this was about

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1 Class 2 gaming activities. We are not talking about

2 access to Class 2 and Class 3, you know tribes get to

3 decide how their gaming regulatory operations, but this

4 is a regulation that's focused on Class 2 because that's

5 what the statute said. We also took out some reference

6 to independent language, independent tribal regulatory

7 agency and while I know that commonly people say that's

8 what you need to have is an independent tribal

9 regulatory agency and not -- but the statute itself

10 doesn't require that. In fact, the tribal counsel can

11 be the tribal regulatory agency. So we wanted to make

12 sure that a tribe decides how they establish the

13 regulatory agency, their regulatory body. We don't

14 mandate something that's not required by statute, but,

15 again, giving tribes the opportunity to set regulatory

16 body structure up however they choose.

17 So, again, tribes can illustrate they have met

18 this criteria by doing so many of the things that you

19 already do, establish post game rules, have systems for

20 violation investigation, take enforcement action. All

21 of those things. Funding is something that we needed to

22 make sure was included in there. That a tribe is

23 adequately funding the agency. That we know that the

24 investigators are wanting to be paid, so they can

25 continue doing their jobs by the regulating agency and

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1 the gaming operation.

2 The tribe has to demonstrate the operation is

3 financially stable. We had a lot of comments about

4 that, I agree. However, this is language that come out

5 of the act. How you decide that, I think can be a

6 little -- we might have some issues with that, but it is

7 within the act, so we needed to leave it in, it's

8 regulation. So for the process to review petitions, you

9 are very lucky because today you do have the official of

10 self regulation here with you. Commissioner Little is

11 the office of self regulation. He's the one that signs

12 the certificates. So, again, it's a very daunting task

13 for him right now.

14 So within 120 days of receipt of a complete

15 petition, the office of regulation makes an initial

16 finding, issues a report. Either issues a certificate

17 or tells the tribe, you know, they didn't meet their

18 requirements. And then there's an opportunity for the

19 tribe to respond and include additional information or

20 request a hearing. If after, if the decision is that

21 the tribe is not eligible for a certificate of self

22 regulation, that decision can be appealed to the full

23 commission. And then we reference the new appeals

24 process. So it would go through Part 585, the appeal

25 process. Part 584 or 585.

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1 So annual reporting requirements. This was a

2 big issue too because out of our two tribes that have

3 certificates of self regulation, they submit wildly

4 different reports. One is much more summary. The other

5 is comprehensive. And there wasn't much -- I mean,

6 there was a reporting requirement, but it wasn't, it

7 seems burdensome, that's what we heard from the tribes.

8 That the burden for that was higher than, in fact,

9 having to his submit three reports. Essentially, it was

10 higher than the tribes that were not self regulating.

11 The access says that the tribe has to submit an

12 independent annual audit, which tribes do as matter of

13 course anyway. And submit a complete resume for all

14 employees hired after the receiving a certificate of

15 self regulation. That's what the act says.

16 So in the reg, we tried to finesse the

17 definition of employee by defining employee as primary

18 management or upper key employees. It still is pretty

19 heavy. I know that especially on operations say this

20 size or larger operations who hire thousands of

21 employees, it would be kind of a burdensome thing. And

22 we received a comments which we are considering -- we

23 received it recently, it's on the web site, and I forget

24 which tribe it was, but they mentioned that since we are

25 assisting our focus to the gaming and regulatory agency,

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1 then perhaps we should define employee not as key

2 employee or primary management official, but as a new

3 employee resume for the employees hired at the

4 regulatory agency.

5 So if you have an opinion on that, please let

6 us know, because I know this can be a very substantial

7 requirement. And then the tribe can have a continuing

8 duty to inform the commission of any change in

9 circumstances that might affect your certification

10 eligibility. This was an issue that was -- in fact John

11 Day back there, waive your hand, John, he helped work on

12 this draft and Sabella in our office and one of the

13 things that came across in the current reg, it doesn't

14 say what the statute says. And that is, these following

15 investigative enforcement powers are limited when a

16 tribe has a certificate of self regulation. And so we

17 included that in 518.9. And, again, this is statutory

18 language. The commission retains all of their

19 investigative enforcement powers, as well. And then the

20 power to investigate enforcement actions to violations.

21 But we wanted to make sure that we identified those

22 particular powers that the N.I.G.C. does not have during

23 the time that the tribe has a certificate of self

24 regulation. The comment period on this ends tomorrow.

25 We'd love to see your comments on this.

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1 MS. OGAS: Kathy Ogas, Lytton Rancheria of

2 California. We are going to submit written comments to

3 you tomorrow, but I do have a couple of comments at the

4 end. I notice that we have the hearing process for

5 denials or removals of certificate or maybe it's just

6 for removals. And then you have the more informal that

7 you can just request reconsideration of the commission.

8 And the way that they are kind of written right now

9 seems like you can only do one or the other. Is the

10 intent that you can do one and then do the other? So I

11 think the time lines don't work together.

12 MS. ECHO-HAWK: Yeah. The intent is that you

13 can basically ask Commissioner Little to basically

14 reconsider his decision. And if it's denial, then you

15 can go to a formal hearing. So thank you for that.

16 MS. OGAS: And then another one was just a

17 small one, the part about providing a list of internal

18 controls, are you just wanting like a list, we've got it

19 for accounting.

20 MS. ECHO-HAWK: Yes.

21 MS. OGAS: Okay. Thank you.

22 MR. LITTLE: Did you want to continue with

23 your Power point, Lael?

24 MR. DES ROSIERS: The part on the annual

25 reports or whatever have to be submitted, what I found

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1 real bothersome and I think I submitted my written

2 copies, this complete resume of the employees. First of

3 all, I don't know what resume, what that includes, that

4 probably should be defined. But more importantly, that

5 requirement, what I'd like to see and I don't think you

6 can do it statutorily, that's more burdensome that what

7 we do without being self regulated. I mean, under the

8 pilot project that's now being formulated, we don't have

9 to submit anything but a N.O.R., but we have to keep all

10 of that stuff and you have access to it any time you

11 want, anytime you look at those licensing files, that

12 include more than a private resume.

13 I'm suggesting if it can be done, that the

14 pilot program kind of mentality be part of that self

15 regulation instead of having to submit those resumes or

16 whatever that is, that we keep them on file. You can

17 have access to them.

18 MR. LITTLE: Good point. Thank you.

19 MS. ECHO-HAWK: And I would -- we need to

20 finesse the definition of resume, complete a employee

21 because that is statutory. We're trying to find out how

22 to make it reasonable. And we've thought about the

23 definition of resume. And I think you guys were maybe

24 the ones that suggested maybe it be the resume and then

25 the tribal gaming agency. Was that your comment? But

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1 that might be one way to do it because oftentimes the

2 regulatory agency employee number of employees is much

3 smaller. I think we received another comment that

4 perhaps we define it as maybe a commissioner's resume

5 or, you know, like director or whatever. But we are

6 trying to finesse that. And so we are open to

7 suggestions and I know that you -- but it's statutory,

8 so we are trying to figure out how to work it.

9 MS. POUST: Hi, Terri Poust. I have a couple

10 of differ comments on this. First, I greatly appreciate

11 again just reevaluating Part 518. It's long over due.

12 I'm very glad that you're doing that.

13 One, I'm very thankful that you are scaling

14 back some of the requirements. Some of the items the

15 commission is going to be looking at with regards to

16 whether or not a tribe, the regulatory system is deemed

17 worthy of status of self regulation.

18 My one concern though is that in scaling some

19 of those back, it seems like the requirements are

20 becoming more subjective. For example, the use of you

21 know adequate systems. You were just talking about

22 definitions. I know it's difficult to define a word

23 like adequate. But my concern begin, is not necessarily

24 with this commission, but with the next and with the

25 future commissions. What exactly is adequate? The

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1 review process becomes so much more subjective. And in

2 a way, by scaling back kind of specific requirements,

3 you are setting the bar even higher, depending on, you

4 know, the perception of the person that's looking at

5 this. Adequate, well I don't think it's adequate. It's

6 just not good enough. Instead of trying to come up with

7 very specific, you've got to do this, you know, and,

8 again, it becomes a little bit difficult to try and

9 articulate those, but I really would suggest that the

10 commission look at that and try to come up with, you

11 know, maybe bullet points, this, this, and this, versus

12 just have to be adequate, because it becomes a little

13 more problematic.

14 Another concern that I have is the

15 requirements of operating Class 2 games for a period of

16 3 years before you can even apply for this. And I think

17 this actually touches upon what you were talking about

18 as taking the focus off of operations and putting it on

19 the regulatory structure. Particularly, here in

20 California, unfortunately there's a lot of gamesmanship

21 that goes on between state, local government and

22 tribes. Sometimes you have to discontinue operation of

23 Class 2 games for a period of time, otherwise risk, you

24 know, your entire compact. So in some instances, you

25 know, holding not in control of the tribes, they are not

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1 going to be able to operate Class 2 games for a three

2 year consecutive period, you know, based on the local

3 process. And who's governor at the particular time and

4 allegations of those are not just Class 2 games, they

5 are Class 3. You are not paying revenues on them. Or

6 you are outside of your cap.

7 So, again, I think focusing in on the

8 regulatory structure of the tribe, has the tribe been

9 operating in gaming for three years, that's -- but I

10 think in narrowing it down to Class 2 versus Class 3

11 really jeopardizes the ability for some tribes to be

12 able to apply for this when they have a fantastic

13 regulatory structure.

14 So that's just something I'd like for you it

15 consider.

16 MR. LITTLE: Those are very helpful

17 suggestions and especially, you know, clarifying some

18 definitions. That's the purpose of these consultations

19 and getting this information out to you in as much time

20 as possible because, you know, having other eyes look at

21 these things can raise these issues to a point that we

22 can clarify them before the wheels are set in place and

23 that provides clarity down the road.

24 And that's a very good point about the

25 continuous operation for three years. The Class 2 or

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1 Class 3. I'm glad we came out here to California

2 because we probably wouldn't have heard that in other

3 parts of the country. So I appreciate that. Thank

4 you.

5 Does anybody, while we are still taking about

6 518 self regulation want to -- sir.

7 MR. EMERICK: Mark Emerick, Picayune

8 Rancheria.

9 When you're asking for the tribe's current set

10 of gaming regulations, are those going to be for public

11 knowledge such as the ordinances that are on the

12 N.I.G.C. web site?

13 MR. LITTLE: Do we publish those out?

14 MS. ECHO-HAWK: We do publish the ordinances.

15 We've been talking about what is foible and

16 what is not foible. And if you have a comment about

17 whether or not we should be publishing tribal

18 regulations on line, we'd be happy to hear them.

19 We've been -- I don't know where we came down

20 on the petition. Of course, all the private information

21 and all of that is not foible, but I don't know where we

22 came down with some of the other information that could

23 be submitted. If you have some concerns about that,

24 please let us know so that we can try to address it.

25 MR. EMERICK: Thank you.

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1 MR. LITTLE: Was there another comment over

2 here?

3 MR. ANDREWS: Jason Andrews, Big Sandy.

4 I think one of the concerns about, like you

5 said, the propriety information, there's also

6 information in there as far as, not necessarily

7 procedures, but how some of the gaming operations are

8 going to operate. Times we are open or closed, but more

9 importantly, gaming days information, so some type of

10 new regulation, which I know some tribes like to keep

11 for themselves because if the general public has

12 knowledge of your gaming day, they can also figure out

13 if I game so much this day, I can game so much that day,

14 they are not subject to Title 31. So that's just an

15 idea off the top of my head.

16 MR. LITTLE: Those are good ideas. Thank you.

17 Does anyone else want to add? You know, when

18 I first came on the commission, I think my first

19 official outing, Jeffrey, he told me this better be a

20 priority for you guys. So, we are really interested.

21 Not just because Jeff Green, who I admire, but because

22 this is what congress intended and what we should be

23 doing. And, you know, the fact that Lael pointed out

24 that there was 240 plus tribes. And only two of them

25 had achieved this status, that means it's something we

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1 need to work on. And it's not necessarily a tribal

2 issue. It could be a problem with the regulations just

3 not working. So we are very, very interested in, you

4 know, in making this more accessible because it's the

5 right thing to do. And it was the intent of congress.

6 Does anyone else have any of their comments.

7 MS. OGAS: Kathryn Ogas. I just want to agree

8 with you totally on that. And the reason tribes aren't

9 doing it is because it's just too onerous right now. I

10 think we have lots of tribes that would like to do it

11 and are capable, but it's just impossible to manifest.

12 MR. LITTLE: Okay. Thank you.

13 If there's no additional comments. I think

14 I'll turn the mic back over to Lael to finish the last

15 session of Group 5.

16 MS. ECHO-HAWK: So the last issue that we have

17 today is Sole Proprietary Interest is obviously a big

18 issue. This is an issue that comes up frequently, most

19 often in the context of management contracts, but not

20 exclusively. Some of you know about the recent decision

21 of Notice of Violation that was issued by the chairwoman

22 about two months ago. And this was significant

23 discussion in that and about what sole proprietary

24 interest, how these agreements violated the sole

25 propriety issues of the act. So we asked in November

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1 whether or not the commission should consider regulation

2 defining sole proprietary interest and provide a process

3 by which a tribes can request review outside of simply

4 saying a management contract.

5 We received wildly different comments. We

6 received comments that the commission should promulgate

7 a regulation that provided a review, but only at the

8 request of a tribe, but that the percentages contained

9 in I.G.R.A. also define what percentages would violate

10 the proprietary interest requirement. We've heard that

11 sole propriety interest, if that's defined then so

12 should primary beneficiary. We've heard two different

13 things. If you define it, that it's going to limit

14 assets to capital or if you define it, it may provide

15 stability to financing. Again, our comments have ranged

16 completely. Determination of self proprietary issues

17 should be left to the courts. So far we've seen, I

18 think, we've got one or two court cases that talk about

19 it, but nothing clear on point.

20 So you haven't seen a regulation issued from

21 us yet. We're still debating internally if that's

22 something we want to do, if it's something we need to

23 issue guidance on. We went through our files and we had

24 92, I think, different either management contract

25 approvals that contained some language about sole

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1 propriety interest and whether or not it was violated.

2 And they all, every issue is so fact specific. Every

3 time we get one of these requests, it's incredibly fact

4 specific. And it's very daunting. We've been talking

5 about how difficult it is to write a regulation to

6 define what a resume is. Imagine sole propriety

7 interest and all the variations of agreements that can

8 come before the commission.

9 So we haven't drafted a regulation yet and we

10 are still considering which direction that we should

11 go.

12 So that's the last issue on the agenda today.

13 MR. LITTLE: Okay. Sole propriety interest,

14 like Lael said, it's controversial. It's not without

15 different opinions. We do not have a discussion draft

16 because we are still trying to obtain information.

17 Does anybody want to start off with some

18 comments? Scott.

19 MR. CROWELL: Yes. What I'd like to do is

20 read the formal comments approved by the Rincon

21 counselor -- Scott Crowell, by the way -- and then speak

22 informally about an anecdote that I think highlights the

23 council's concerns.

24 In response to the N.I.G.C.'s initial Notice

25 of Inquiry for regulatory review, which preceded the

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1 current consultations, the Rincon Band recognized the

2 importance of the issue of sole propriety interest.

3 It is with grave concern that Rincon observes

4 the trends around the country wherein large portions of

5 tribal gaming revenue are sliced off and handed to state

6 treasuries, state agencies and local governments.

7 I.G.R.A's primary beneficiary rule also is triggered

8 when such large portions of tribal gaming revenue are

9 exported to state and local governments.

10 We express great caution, however, as whether

11 these issues can be properly addressed in the context of

12 N.I.G.C. regulations. We are not objecting to the

13 effort, but we are skeptical that regulations are the

14 appropriate means to address the issue. The existing

15 approach of opinion letters posted on the N.I.G.C.

16 web site creates a better means to at least get our

17 hands around the issue.

18 Certainly, any approach requires a look to the

19 aggregate impact on tribal gaming revenue, taking into

20 account all development and finance costs, management

21 fees, compact taxes, mitigation fees, et cetera. Terms

22 for one tribe in one location wholly unworkable for a

23 different tribe in a different location. The analysis

24 is necessarily very fact specific.

25 If the N.I.G.C. Does promulgate regulations,

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1 we believe that the very recent opinion issued in

2 connection with N.O.V. 11 dash 02 regarding the

3 agreement between the City of Duluth, Minnesota and the

4 Fond du lac band of Lake Superior Chippewa provides a

5 proper framework for the regulations. Required criteria

6 should be addressed and includes, one, the term of the

7 relationship. Two, the amount of revenue paid to the

8 third parties and, three, provided control over the

9 gaming activity provided to the third party. That is

10 taken out of the your Fond du Lac opinion.

11 Rincon notes that the N.I.G.C., in addressing

12 the second criteria in the context of Fond du Lac

13 opinion, focused on whether amounts received by the city

14 were commensurate with the services provided. Rincon

15 believes that goes to the crux of the issue. If the

16 entity is being paid more than the worth of the services

17 provided, then the excess is properly considered an

18 illegal propriety interest in the tribe's gaming

19 operation. Any regulation should expressly incorporate

20 that analysis. At a minimum, the second criteria should

21 be amended to read quote The amount of revenue paid to

22 third parties can commensurate to the services provided,

23 closed quote.

24 Rincon proposes a fourth criteria, aggregation

25 with other agreements. Many tribes are found to be

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1 whip-sawed from several fronts, where fees are paid out

2 to the state, on top of fees paid to the county and

3 local government pursuant to M.O.U.'s on top of

4 expensive financing and management fees, such that the

5 tribe is the last in line to receive the benefits of a

6 success of a successful casino, and the first in line to

7 absorb the burdens of an unsuccessful casino.

8 If the N.I.G.C. Proposes a preliminary draft

9 regulation, we will supplement our comments at that

10 time.

11 I'm not speaking hypothetically, there's at

12 least one tribe here in California that after the

13 millions of dollars that are paid to the state, paid to

14 the county, paid to the bond holders, paid to the

15 management company, the tribe has received nothing. I

16 mean, it's a very successful operation and the tribe

17 receives nothing.

18 So I applaud bringing attention to the sole

19 propriety issues. Something needs to be done about

20 these untenable situations. I think I shared the

21 comments that Lael had earlier, I'm not quite sure -- I

22 agree that a problem exists and I'm not quite sure how

23 to address it. But it's a problem that's got to get

24 stopped. It's a problem that's going the wrong way and

25 the problem that I have with looking at, you know, I'm

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1 probably guilty myself, I have to go back and look at it

2 whether you write into a management agreement, oh, this

3 doesn't violate the sole propriety interest requirement

4 of I.G.R.A. Well, you can't look at these things in

5 isolation. You've got to look at them in the aggregate

6 because this pining on that occurs to where you've got

7 these, you know, what's becoming standard now is this

8 waterfall buckets where the tribe's the last recipient

9 of the waterfall. That's got to get changed.

10 MR. LITTLE: I do appreciate you raising that

11 point. That's something that I've toyed with or, you

12 know, thought internally about is a culmination of all

13 of these contracts and bond holders and payments, and

14 you do wind up the tribe is not the primary beneficiary

15 of the gaming operation. So I do appreciate those

16 comments and thank you.

17 Does anyone else have any other comments on

18 sole propriety interest? Like Lael said, we are still

19 discussing this internally. You know, when, you know,

20 through the consultations we've heard a lot of different

21 opinions as far as some folks even saying that we

22 can't -- it's nearly impossible to, you know, even to

23 solve this, you know, to, yes, there's definitely a need

24 for the commission to do something about this. We're

25 differently interested in hearing any ideas that you

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1 might have. In moving forward with it, Scott.

2 MR. CROWELL: Case in point in terms of the

3 way to accomplish it where the facts are clearly, you

4 know, compel something being done, I applaud. It was,

5 you know, for those people in the room that don't

6 understand the significance, you know, the N.I.G.C.

7 issued the N.O.V. telling the Fond de Loc Band that they

8 cannot continue to pay the City of Deluth the ridiculous

9 fees that they were owing under the agreement between

10 the city and the tribe and I applaud that. I think

11 N.O.V.'S in situations that clearly step over the line

12 is one way that send a message, not just to a city like

13 Deluth, but the counties when they are thinking, I've,

14 got a provision in my compact. That gives me a sledge

15 hammer. You can't game unless you pay the piper or the

16 county. States can say, if you want to get around the

17 11th immunity, pay us 25% of your gross gaming revenue.

18 You know, those types of things. The N.I.G.C. stepped

19 up and sent the message that in and of itself creates a

20 chilling effect on those state and local governments to

21 look to overreach the negotiation table. I say keep

22 doing it more.

23 MR. LITTLE: Thank you. I appreciate that.

24 Are there any other comments that you might have on this

25 issue or any included in Group 5.

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1 Lael, is there anything else that you want to

2 cover on this?

3 MS. ECHO-HAWK: No.

4 MR. LITTLE: I think, and Scott, your point is

5 well taken. I think we are trying to find a necessary

6 balance in how do we not stop tribes accessing capital

7 if it becomes an issue were, you know, the bonding

8 market or the banks feel that, you know, they can't move

9 forward, and by us doing something will this limit, you

10 know, future funding or stop funding streams for

11 tribes? So it's not necessarily something you need to

12 comment on, but something that we are just thinking

13 about that we don't want to do anything to jeopardize

14 your ability to access capital for future projects, but

15 it's an issue that should be looked at.

16 MR. CROWELL: I guess that triggers -- the

17 thing is, yeah, it's different in the management of the

18 financing context. But if the overreaching of state and

19 local government is tackled, it's going to be easy for

20 tribes to get financing.

21 It's difficult for tribes to get financing

22 when 30% off the top, you know, is being paid to the

23 state and local treasuries and not for services being

24 provided to the tribe, but simply because they can.

25 And, you know, the N.I.G.C. took a bold move with Fond

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1 de Loc and you're going to see if you go after state and

2 local governments and I understand, you know, that there

3 are management agreements and bond financing

4 arrangements out there a might violate sole propriety

5 interest rule as well.

6 But the focus seems to be historically because

7 you have lawyers writing legal opinions and say this

8 isn't a management contract and this doesn't violate

9 self proprietary interest and et cetera. That you've got

10 all this body of discussion over here, but the real

11 problem is the overreaching in state and local

12 government and if you attack that, you're not going to

13 hinder financing, you're going to enhance financing as a

14 result to tribes.

15 MR. LITTLE: I appreciate that comment.

16 Is there any others. Is there any other

17 comments anyone wants to make about any of the other

18 groups? Norm, did you want to add something?

19 MR. DES ROSIERS: Yeah, I wanted to make a

20 general comment about the whole process here. First of

21 all, I commend the commission for this process. I think

22 it's worked quite well. I'd like the opportunity -- I'm

23 sure that most tribes like to comment on the discussion

24 draft.

25 The part of the process where I'm experiencing

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1 a little frustration -- I don't know if it's just me or

2 like I said I'd like to know if anybody else experienced

3 the same thing.

4 The notification of when a discussion draft

5 appears. I mean, there is no notification. And if I

6 don't remember every week or two to get on your web site

7 and nose around, I don't know there's a discussion draft

8 out there. So, I mean, maybe it's just me and I got

9 left off your mailing list. I don't know. But I'd like

10 to, I wish there could be some notification.

11 MR. LITTLE: That's a really good point and

12 we'll work on that.

13 MS. ECHO-HAWK: There's supposed to be a

14 process. So I'm sorry that it's not working. So we'll

15 work on the process.

16 The next thing that will go out will likely be

17 in the federal register, but we are working, you know,

18 it's kind of funny because we've heard tribes say, and I

19 think our staff maybe has cut and I just, I don't know,

20 have gotten sick of people saying, quit spamming us. So

21 they quit spamming you, because we were get being a lot

22 of complaints from people saying there's too much

23 communication, too much communication.

24 And so I don't know if that might have slowed

25 things down because we are really working hard to make

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1 sure that everything gets out. So, yeah, we'll work on

2 that, on fixing that again.

3 MS. OLGAS: I completely concur with Norm. I've

4 had to make myself a task because I completely forget

5 about it. So if I don't do it when a task comes up, I

6 will completely forget. I know you will be putting more

7 things so, we can watch up with them, but it would be

8 nice if we had a better system for the drafts.

9 MR. LITTLE: We'll definitely work on this and

10 we will get this out like Lael said. I think what

11 you're going to see from here on out is our Notice of

12 Proposed Rules, which will not be in the general

13 register. And I know you are very diligent in searching

14 that everyday. So we'll try to get that out too.

15 I mean there's loads of information on our

16 web site. We've overloaded our staff who operate our

17 web site. And I'm still situating for the day that they

18 say our web site is shut down. I know they can no

19 longer handle any more information. So that's a guide

20 point.

21 Any other general comments about the process

22 here? It's always good to get and feed back. Know that

23 these are tough to attends these events it's very

24 important to us that we get out here, get out to some of

25 the non traditional locations within the country. I

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1 love going to Southern California area, but it's very

2 nice coming up here also.

3 Notification, we will work on that. We've got

4 a T.A.C. that's going to be having there inaugural

5 meeting next month. Today is the deadline if you

6 haven't submitted your nomination application. The fax

7 machine works well if you want to get that in.

8 You know, that's going to -- as we went

9 through the process for, you know, like Lael said the

10 Class 2 and the Class 3 M.I.C.S., Technical Standards

11 were included in Part 3 and the Class 3 was included in

12 one of five, but clearly when you go around the country

13 and I think that's one of the benefits of these

14 consultations throughout the country. That is very

15 different opinions on how we should tackle this issue,

16 you know, how do we reach some kind of resolve?

17 Traveling advisory committees have worked well in the

18 past. You know, I think we are going to try a little

19 different process here although recent different process

20 where we are going to utilize a facilitators. That

21 will, you know, hopefully really, bring out some good

22 discussions, keep the group on task and get a good work

23 product here in a very short time frame.

24 Six meetings, six large group meetings. There

25 will be some smaller subcommittee meetings, but six

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1 meetings including the end of March with hopefully

2 something ready to go for a rule to be promulgated by

3 early summer of next year.

4 We are coming up on an legislation year, we

5 want you to be can cognizant of that fact. That

6 regulation sometimes get slowed down, not halted around

7 that time. We want to be cognizant of that and

8 hopefully get everything done and hopefully come to a

9 good work product of this committee that everybody can

10 be comfortable with and we can move forward with.

11 Do you have anything you want to add, Lael

12 about the T.A.C.?

13 I think we have gotten about 40 nomination

14 applications. I'm very, very impressed with the caliber

15 of folk that are coming in. Once again, it's just, you

16 know, it's a testament to where this industry has gone

17 and how it's matured and how, you know, the high caliber

18 of employees that Indian gaming produces. So I'm very

19 impressed.

20 I'm really looking forward to next week of

21 starting to go through the nomination applications and

22 looking for a good group of folks that represents the

23 country geographically by the size of your operation,

24 types of gaming that you all do, so I'm really looking

25 forward to that.

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1 MS. ECHO-HAWK: Just that the inaugural

2 meeting will be the 20th and 21st. You are all welcome

3 to attend that meeting. That meeting will be setting up

4 the ground rules. We will identify the members of the

5 committee right around the week of G2E. And then from

6 that point -- so that we will, that will be the initial

7 meeting will be setting up the ground rules. We'll

8 being talking about and working with the issue of how to

9 do we incorporate the experts in the industry, the

10 gaming manufactures, the lawyers, people who might not

11 be on the committee, but are attending the committee,

12 how do we incorporate their opinions?

13 So we are going to be working on this, but

14 we'll also be discussing all of those things. We'll

15 also be sending out the schedule for the next five

16 meetings, identifying the sections of the M.I.C.S. that

17 we are going to be going over, in what order,

18 categories, talking about using breakout groups, the

19 breakout groups. All of that is going to happen in

20 those two days. So it's a really, really important

21 meeting. If you have opinions about that, please slow

22 up because after the 21st, we hit the ground and we go.

23 And we have to go really, really fast.

24 MR. LITTLE: Is there any other comments about

25 T.A.C., about process, about any of the groups?

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1 I'm inclined to end this. However, and I'm

2 sure the staff is not going to be happy -- we are going

3 to come back after lunch in case there were any folks

4 that were scheduled to be here. We were scheduled to go

5 through 1:30 to 5:00. We'll be here at 1:30. We are

6 going to reopen the meeting, if there's any other

7 comments we'll go over them. If not, we'll probably

8 end.

9 FEMALE VOICE: I'm sorry. How many are you

10 picking for the T.A.C., if you have 40 applicants, how

11 many are you picking?

12 COMMISSIONER LITTLE: I don't think we've

13 decided yet. I don't want to just state a number,

14 because as we go through the application, we want to

15 make sure that we get a good representation of the

16 industry. And by setting an arbitrary number right now,

17 I think we'd be limiting ourselves. I would imagine

18 it's going to be over 10, but less than 20.

19 MS. ECHO-HAWK: I think, yeah, I know the

20 chairwoman is talking about it. And I think even

21 Commissioner Little, over 20 gets very unwieldy. Under

22 10, we might not have all the expertise that we need.

23 But, you know, yesterday we had between 35 and

24 40. And all day today, I've been seeing emails come in

25 with additional nominations. So the commission is going

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1 to have quite a chore next week to go through these.

2 COMMISSIONER LITTLE: Okay. If there's no

3 other comments, we are going to break for lunch. We'll

4 be back here at 1:30 if there's no additional comments

5 we will probably conclude at that time.

6 Thank you all.

7 (WHEREUPON, A LUNCH RECESS WAS TAKEN).

8 COMMISSIONER LITTLE: All right. We are going

9 to be bringing this meeting back to order for the

10 N.I.G.C. consultation for the Sacramento Region on

11 Groups 1, 2, 4, and 5.

12 Are there my additional comments regarding any

13 of the topics that we discussed this morning? Leal, do

14 have any closing comments?

15 MS. ECHO-HAWK: Nope.

16 MR. LITTLE: If not, I'm going to call this

17 meeting to a close and thank the individual that's still

18 here for coming back for the afternoon meeting. All

19 right. Safer travels.

20 (WHEREUPON, THE MEETING WAS CONCLUDED AT THE

21 HOUR OF 1:35 p.m.)

22

23

24

25

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1 STATE OF CALIFORNIA )

 )

2 COUNTY OF FRESNO )

3

 I, LILLY WHITE-RESENDEZ, Certified

4

Shorthand Reporter, do hereby certify:

5

 That said proceedings were taken before me at

6

the time and place therein set forth and were taken down

7

by me in shorthand and thereafter transcribed into

8

typewriting under my direction and supervision;

9

 I further certify that I am neither counsel

10

for, nor related to, any party to said proceedings, not

11

in anywise interested in the outcome thereof.

12

 IN WITNESS WHEREOF, I have hereunto subscribed

13

my name.

14

15

Dated: November 2, 2011

16

17

__________________________________

18 Lilly White-Resendez

CSR No. 10354

19

20

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02 90:2

1

1 8:25 12:4,21,21

14:4 17:20 18:9

19:5,7,10 35:15

71:15 102:11

10 14:23,24 23:1

54:12 60:24 101:18

101:22

10354 1:20 103:18

10:00 38:10

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11 90:2

11th 93:17

12 10:8 19:20

120 76:14

13,175 10:3

1441 2:3,8

15 14:24 23:1 24:25

16 1:3,14 3:2

180 17:10 31:13

35:9

1990's 72:12

1993 26:15 27:1

19th 29:4

1:30 101:5,5 102:4

1:35 102:21

1st 13:9,9,10,11

19:10 21:14,14 58:9

2

2 12:4,5 38:11,17,20

38:22 58:8,11,16

71:22 72:5 74:18,22

75:1,2,4 82:15,23

83:1,4,10,25 98:10

102:11 103:15

20 14:25 23:1

101:18,21

20005 2:4

2005 2:9

2011 1:3,14 3:2

103:15

2013 36:11

202.632.0045 2:5,9

202.632.7003 2:5,9

20th 12:11 56:15

100:2

21st 100:2,22

240 72:7 85:24

25 23:3 62:16 93:17

25,000 25:2

2710 62:16

3

3 10:3,3 12:5,7

32:12 53:12 58:11

58:16 71:17 75:2

82:16 83:5,10 84:1

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30 14:24 16:21 17:7

56:23 57:12 94:22

31 14:24 85:14

31st 14:5

35 101:23

4

4 12:19 54:2,8 58:2

60:11 61:11 70:1,20

102:11

40 12:15 99:13

101:10,24

400 72:7

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5

5 12:19 70:2,19

71:14,15,16,21

86:15 93:25 102:11

50 23:3

514 12:22 19:11

518 71:21 81:11

84:6

518.9. 78:17

519 52:2 53:10

522 27:2

523 12:22 15:12

26:11 27:3

524 52:2

537 54:6 58:9 69:11

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537.1 58:24

539 52:2

542 12:7

556 54:3,10,23,24

60:13,17 61:13,17

64:11,11 67:5

558 54:3,10 55:1,24

60:14,19 61:13,17

64:11 67:5

558.2 62:10

559 12:23 15:15

16:19 27:4 34:13

559.5 34:18

5592 30:16

571 54:5 59:7,19

68:9

573 38:17,23 39:4

42:5 47:9

577 46:2 52:2

580 43:11 52:4

580.1 43:17

580.1. 44:18

580.2 44:19

580.3 45:10

580.4 53:12

582 43:9 44:22 45:5

45:7

583 45:5

584 46:1,13 76:25

585 43:9 44:23 45:7

46:1 52:4 76:24,25

5:00 18:19 101:5

6

60 14:24 24:23,24

25:2 30:1 55:5

61 14:25

7

711 1:17

75 23:3

8

84 45:5

85 45:6

852 45:7

9

90 14:25

900 31:5

90th 22:20

9100 2:4,8

92 87:24

9:00 1:15 3:2

a

a.m. 1:15 3:2

ability 83:11 94:14

able 11:23 28:24

32:17 52:21 61:20

61:23 67:17 74:19

83:1,12

absorb 91:7

abuses 62:17 63:3

accept 11:18

accepted 11:18

accepting 12:14

acceptive 70:17

access 55:13 59:9

63:22 64:3,8 66:16

66:18 74:20,21 75:2

77:11 80:10,17

94:14

accesses 65:11

accessible 86:4

accessing 94:6

accomplish 93:3

account 89:20

accounting 73:16

74:6,17 79:19

accurate 13:7,13,14

20:7

achieved 85:25

acquire 37:17

acquisitions 18:5

act 13:22 17:6 35:16

35:23 38:6 74:6

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actions 49:19 78:20

activities 74:18,22

75:1

activity 90:9

actual 46:8

add 38:7 43:23 48:7

53:15 63:18 69:10

70:3 85:17 95:18

99:11

added 14:8 15:3

25:22

adding 40:15 58:23

addition 58:10

additional 14:20

56:9,11 57:7 67:19

67:25 68:8 76:19

86:13 101:25 102:4

102:12

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39:13 40:14 41:16

56:20 84:24 89:14

91:23

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89:11 90:6

addresses 26:14

addressing 90:11

adequate 32:19

73:14 74:11,14

81:21,23,25 82:5,5

82:12

adequately 17:3

27:12 75:23

adjust 54:14

adjustment 14:3

administration

32:24

administrative

46:14

administrator 6:17

admire 33:15 85:21

adopt 47:22

adopting 27:17

adoption 74:13

adopts 46:20

adversarial 46:16

advise 60:5

advisory 12:10,13

30:7 71:19 98:17

affect 78:9

afternoon 12:20

102:18

agencies 10:5 25:25

27:23 29:13,18,20

35:23 89:6

agency 13:11 14:6

14:12,16 17:12 22:3

22:7 24:10,12 26:1

35:19 48:11 55:4,20

62:18 73:11,15 75:7

75:9,11,13,23,25

77:25 78:4 80:25

81:2

agenda 1:3 4:4 8:22

12:5 18:18,20 19:10

35:15 38:16 69:6

88:12

aggregate 89:19

92:5

aggregation 90:24

ago 7:19 13:20

37:12 39:20 59:23

86:22

agree 27:16 34:5

61:20 76:4 86:7

91:22

agreement 70:22

90:3 92:2 93:9

agreements 70:23

86:24 88:7 90:25

95:3

agua 7:5,6,7

ahead 61:6

allegations 83:4

allen 5:9

allow 55:10

allowing 4:11

allows 48:8 54:17

58:24 60:5

amend 73:23

amended 90:21

amendment 57:24

58:7,22 59:6,14,16

59:18

amendments 44:20

45:11

amount 10:15 15:6

22:2 34:25 35:1,4

41:18,23 90:7,21

amounts 90:13

analysis 89:23 90:20

andrews 6:19 65:20

65:20 85:3,3

anecdotally 64:23

anecdote 88:22

angela 6:13

announcement

21:13

annual 13:21 20:12

77:1,12 79:24

answer 25:13

answered 23:18

anticipated 30:5

anticipating 28:23

anybody 20:8 21:8

21:20,23 23:6 28:18

28:19 37:9 38:4

48:12 53:24 63:19

69:17,23 84:5 88:17

96:2

anymore 54:13

70:15

anytime 19:6 64:13

80:11

anyway 49:5 77:13

anywise 103:11

apart 39:2

apologize 43:24

72:1

appeal 24:25 42:12

42:14 43:20 44:24

45:13,17 46:11,23

53:13,13,20 76:24

appealed 45:21,22

76:22

appealing 45:10

appeals 12:23 24:19

38:24 44:19 51:15

51:23 52:20 76:23

appear 43:14 63:9

appearances 2:1

appears 96:5

appellate 44:13

applaud 33:5 36:23

63:10 91:18 93:4,10

applicant 55:5,8,14

57:13,17 66:2 67:24

applicants 101:10

application 43:11

51:4 64:13 98:6

101:14

applications 99:14

99:21

applied 64:19,24

65:2,3,4

apply 14:16 43:16

82:16 83:12

appreciate 21:7

25:14 33:7,10,25

34:2 48:18,23 51:5

67:6 70:15 81:10

84:3 92:10,15 93:23

95:15

approach 48:20,24

49:7,17 89:15,18

appropriate 22:23

37:7 89:14

appropriations 22:8

approval 26:12

42:14 45:10,17

53:21 73:24

approvals 45:12

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approved 26:16

61:9 69:14 88:20

approximately

12:15

april 21:10

arbitrary 101:16

area 32:7 51:15

68:14 98:1

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cetera 43:22 45:15

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chairwoman 2:7

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chilling 93:20

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variations 88:7

various 44:13

verifiability 68:4

verify 27:9

version 34:8

versus 20:12 49:17

82:11 83:10

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vice 4:18

view 32:2,17,19 33:4

viewed 32:1

violate 87:9 92:3

95:4,8

violated 86:24 88:1

violation 14:13 15:2

25:5 39:9,12,15,19

40:4,5,13,22,24

41:11,14 42:4,15

46:3 59:25 60:8,8

69:1 75:20 86:21

violations 22:1

78:20

vital 22:9

voice 101:9

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voluntarily 23:20

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47:21 48:7 50:21

51:8 66:22 67:1,2

w

wagner 5:10

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3:24 4:5,19 5:16,22

8:18 16:15 17:12,21

19:1 20:8 23:22

26:2 28:15,18 30:8

31:24 33:22 34:24

36:4 38:5,7 45:7,22

48:12 57:11 58:3

63:17 66:18,25 70:3

70:7 72:19 79:22

80:11 84:6 85:17

86:7 87:22 88:17

93:16 94:1,13 95:18

98:7 99:5,7,11

101:13,14

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44:15 52:14 73:14

74:25 75:11 78:21

95:19

wanting 75:24 79:18

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41:10

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5:1,13 36:10

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34:8 44:10 49:3

55:9,18 65:16 79:8

81:1 82:2 88:21

91:24 93:3,12

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12:19 13:15 14:3,7

14:7,14,21 15:3,18

18:3 19:20 20:9

21:23 22:12 24:18

27:24,25 28:14 30:4

30:6 32:7 34:14

36:15 39:1,7,22

40:8,10 42:7,10

43:8 47:23 50:7,8,9

50:9 51:18 56:10

57:10,16 58:3 59:10

59:11,21 60:11

61:10,11 64:2,6,22

68:16 70:5,22 71:17

71:19 73:6 79:18

80:22 84:15,19

87:10,12,17,18 88:4

92:20 96:18 97:16

98:3 101:12

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47:4 77:23 84:12

89:16 96:6 97:16,17

97:18

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99:20 100:5 102:1

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7:15 100:2

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87:23 98:8

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16:17 23:8 31:14

37:24 49:19,20 50:3

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69:21 78:11 79:11

81:8 86:1 96:12,15

97:1,9 98:3,22 99:9

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44:11 61:1,1 95:22

98:17

working 8:16 11:5

18:7 29:8 35:7 42:6

53:14 56:17,21

64:17 67:16 86:3

96:14,17,25 100:8

100:13

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21:1 30:1 32:6

43:21 46:11 51:23

66:13,21 72:11 79:2

79:8 80:1

wrong 91:24

x

x 41:18 64:5,5

y

yeah 25:5,9 53:11

53:14 79:12 94:17

95:19 97:1 101:19

year 7:19 13:6,7

14:4,5 20:3,7 21:10

21:15 27:8 31:18

83:2 99:3,4

years 7:24 13:20

28:12 30:20 31:5

54:12 59:23 60:25

67:2 82:16 83:9,25

yesterday 36:9

101:23

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