NATIONAL INDIAN GAMING COMMISSION 

In the Matter of 1 

) NOV/TCO CO-03-02 

) Docket No. NIGC 2003-1 

Sac and Fox Tribe of the Mississippi in Iowa ) 

) September 10,2003 

DECISION AND ORDER 

Appeal to the National Indian Gaming Commission ("NIGC" or "Commission") 

from a Temporary Closure Order ("TCO"), issued by the NIGC Chairman ("Chairman") 

and directed at the Meskwaki Casino Bingo Hotel ("Casino"), owned and operated by the 

Sac and Fox Tribe of the Mississippi in Iowa ("Tribe"), a federally recognized Indian 

Tribe with tribal headquarters in Tama, Iowa. 

<II -)I Appearances: 

Cynthia Shaw, Esq., and John Hay, Esq., for the Chairman, NIGC 

Christopher Karns, Esq., for the Elected Walker Council ("Walker Council") 

Presiding Official: 

Andrew Pearlstein, Office of Hearings and Appeals, U.S. Department of the 

Interior 

ORDER 

After careful and complete review of the agency record (consisting of 25 documents), 

pleadings filed by the Walker Council and the Chairman, the Chairman's Decision Upon 

Expedited Review, the Presiding Official's Recommended Decision, and the July 22, 

2003 letter from Steven Olson ("Olson letter"), attorney for the Bear Faction to the 

Presiding Official ("PO"), with attached July 16, 2003, letter from the Bear Faction to 

Alex Walker, Jr. ("Bear letter"), the Commission finds that: 

1. The Chairman bears the burden of proof in administrative appeals of enforcement 

actions. The proper standard of review is a preponderance of the evidence. 

2. The Olson letter and the Bear letter constituted an improper ex parte 

communication. 
3. The improper ex parte communication did not so taint the decision-making 

process so as to make the ultimate decision of the agency unfair. 

4. The Commission rejects in its entirety the PO'S Recommended Decision because 

the PO exceeded the scope of review when he addressed issues not raised on 

appeal. The appropriateness of the sanction imposed by the Chairman was the 

sole issue raised by the parties for review on appeal. 

5. To determine whether closure of the Casino is the appropriate sanction, or 

whether a civil fine assessment is appropriate, we must first decide who is the 

recognized tribal leadership, legally authorized to govern the Tribe. 

6. We defer to the Secretary of the Interior's determination as to the recognized 

tribal leadership. The Secretary recognizes the Walker Council. The Walker 

Council is not currently in control of the tribal government or the Tribe's gaming 

operation. 

7. Because the federally recognized tribal leadership is not in control of either the 

tribal government or the Tribe's gaming operation, the gaming is, in effect, 

unregulated, and closure of the Casino is the only appropriate remedy. 

8. We find that closure of the Casino is based on substantial, uncontested violations 

and is the only appropriate remedy, and, therefore, make permanent the Order of 

Temporary Closure. 

9. Gaming may resume if, upon a petition by the Tribe to rescind the Closure Order, 

the Commission is convinced, following a visit by a designated NIGC 

employee(s), that the Tribe, acting through a duly elected, federally recognized 

Tribal Council, is in control of the Tribe and Casino, and that no violations of the 

IGRA, NIGC regulations or the Tribe's Gaming Ordinance exist. 

PROCEDURAL AND FACTUAL BACKGROUND 

The Sac & Fox Tribe of Mississippi in Iowa is a federally recognized Indian Tribe with 

headquarters in Tama, Iowa. The NIGC Chairman approved the Tribe's Gaming 

Ordinance on February 9, 1995. (AR#24). The Tribe then built and opened the 

Meskwaki Bingo Hotel and Casino. 

The federally recognized governing body of the Tribe is a seven-member Tribal Council. 

Its elected Chairman is Alexander Walker, Jr., whose term began in November 1999 and 

runs through November 2003. In September 2002, members of the dissident faction, led 

by Homer Bear ("Bear Faction"), circulated and presented recall petitions seeking to 

remove Chairman Walker and the rest of his Council from their positions before 

expiration of their terms under the Tribe's Constitution. The Walker Council disputed the 
validity of the petitions under the Tribal Constitution and refused to hold a recall election. 

(Walker Affidavit, pp. 5-6). No such election has been held to date.' 

On March 26, 2003, the "hereditary chief' of the Tribe appointed Homer Bear, Jr. as the 

Chairman of the Tribal ~ouncil.~ Mr. Bear and his appointees then assumed control of 

the Casino, as well as the Tribal government offices located in the Tribal Center. The 

Bear Faction appointed a new Casino General Manager and Tribal Gaming Commission 

Chairperson. (AR#7, p. 3, n.3). 

On April 1, 2003, Aurene Martin, Acting Assistant Secretary for Indian Affairs, U.S. 

Department of the Interior, asserted in a letter to Iowa Congressman Leonard Boswell 

that "the Department continues to recognize the elected Tribal Council led by Alex 

Walker, Jr., as the leadership of the Tribe." (AR# 20). In a letter to Mk. Bear dated May 

9, 2003, Terrance L. Virden, Deputy Commissioner of Indian Affairs with the 

Department's Bureau of Lndian Affairs, cited the Martin letter to the same effect - that 

the BIA continues to recognize the Walker Council as the elected leadership of the Tribe. 

(AR#l). Previous correspondence from the BIA stated that the BIA did not have the 

authority to intervene in the internal tribal leadership dispute. (AR# # 13,21). 

On April 30, 2003, the MGC Chairman issued Notice of Violation ("NOV"), NOV-03- 

02 (ARff9). In the NOV, the Chairman concluded that the Tribe was in violation of the 

IGRA and NIGC regulations as a result of the takeover by the Bear Faction because (1) 

the federally recognized tribal government was deprived of the sole proprietary interest in 

and responsibility for the gaming operation; (2) an authorized tribal official was denied 

access to enter and inspect the Casino; and 3) the occupation of the Casino presented a 

threat to public safety. The Chairman stated that to correct the violations, Respondents 

shall, "no later than 5:00 p.m., May 2, 2003, allow the federally recognized tribal 

government access to and control of the Tribe's gaming facility." (AR#9). 

On May 12,2003, the Chairman issued a Temporary Closure Order (AR#25). The 

underlying bases for the TCO are three substantial violations alleged in the NOV. The 

TCO required the immediate closure of the Casino, pursuant to 25 C.F.R. 5 573.6. 

Although Homer Bear, Jr., and the Tribe, were named as Respondents in the NOV and 

TCO, and served with copies of each, the Bear Faction did not appeal the NOV, nor did it 

seek expedited review of the TCO or appeal the TCO. Instead, it continued to operate the 

Casino until May 23,2003, when U.S. Marshals closed the casino. In re: Sac & Fox 

Tribe of the Mississippi in Iowa/Meskwaki Casino Litigation, Nos. 03- 

1 We understand that an election is scheduled for October 21, 2003, that the Bureau of Indian Affairs will 

supervise the election, and that the Walker and Bear Factions will be bound by the results of thls election. 

The parties have not asked us to stay our proceedings pending the outcome of this election, and we do not 

elect to do so sua sponte. 

2 In a related case, In re: Sac 6; Fox Tribe of the Mississippi in Iowa/Meskwaki Casino Litigation, Nos. 03- 

232912355123571239012392/2393,2003 U.S. App. LEXIS 17897 at* 3-4 (8" Cir. August 27,2003), the 

Court noted that there is no provision under the Tribal Constitution authorizing the appointment of a Tribal 

Council by a hereditary Chief of the Tribe. 
2329/2355/2357/2390/2392/2393, 2003 U.S. App. LEXIS 17897 at* 13 (gth cir. August 

27, 2003'). 

Alexander Walker, Jr., along with the Sac and Fox Tribe of Mississippi in Iowa ("Walker 

Council"), were named as Respondents in both the NOV and TCO. The Walker Council 

also did not appeal the NOV. It did, however, on June 12,2003, appeal the TCO. Prior 

to that, on May 19, 2003, the Walker Council had requested informal expedited review of 

the TCO pursuant to 25 C.F.R. fj 573.6(c). Chairman Walker and the Tribe requested that 

the TCO be rescinded in favor of other coercive measures for compliance against 

Respondent Homer Bear. Alternatively, Chairman Walker and the Tribe requested that 

the Order be modified to delay the effective date of the closure and to incorporate 

language clarifying the circumstances under which the Tribe would be permitted to 

conduct gaming. 

On May 23,2003, the Chairman issued a Decision Upon Expedited Review, denying the 

requests of Chairman Walker and the Tribe to rescind or modify the Order. Earlier that 

same morning, U.S. Marshals closed the Casino pursuant to a federal district court order. 

The Casino has remained closed since that date. 

On June 12, 2003, Christopher Karns, Esq., of the law firm of Dorsey & Whitney, on 

behalf of the Respondent Alex Walker, Jr., and the Tribe, filed a Notice of Appeal of the 

Chairman's Order temporarily closing the ~asino.~ OnJune 17,2003, the NIGC 

requested that this appeal be referred to a presiding official to conduct a hearing and issue 

a recommended decision, pursuant to the NIGC's administrative rules providing for such 

a referral as part of its appeals process.4 Subsequently, in accordance with an agreement 

between the Department of the Interior's Office of Hearings and Appeals and the NIGC, 

this appeal was promptly referred to Administrative Law Judge Andrew Pearlstein as the 

designated PO. 

On June 20,2003, the Walker Council filed its Supplemental Statement in Support of 

Appeal from Order of Temporary Closure ("Supplemental Statement"). In its 

Supplemental Statement, the Walker Council states that it elect[s] to have the 

Commission determine the matter based solely on written submissions, provided that 

Respondent Homer Bear did not request an oral hearing and the presentation of witness 

testimony. (Mr. Bear not only did not request an oral hearing, but, as stated previously, 

failed to file an appeal altogether). The Walker Council further states that "the Tribe and 

its federally recognized Tribal Council acknowledge the circumstances in the NOV.. ." 

(Supplemental Statement at 2). 

3 CO-03-02, Order of Temporary Closure, dated May 12, 2003. 

In pertinent part, the NIGC regulations, at 25 C.F.R. § 577.4, provide: 

(a) The Commission shall designate a presiding official who shall commence a hearing within 30 

days after the Commission receives a timely notice of appeal from the respondent. 
ill. 

In a conference call held on June 23, 2003, the Walker Council and the NIGC agreed that 

this matter could be resolved appropriately by means of written submissions, without an 

evidentiary hearing. On July 10, 2003, after confirming receipt of written submissions 

from the NIGC and the Walker Council, the PO closed the administrative record. The 

Bear Faction did not participate in the conference call. 

On July 16,2003, the PO sent the NIGC, the Walker Council and the Bear Faction a 

notice concerning possible resolution of the matter through settlement or alternative 

dispute resolution. On July 22,2003, the Bear Faction, by its attorney, Steven Olson, 

Esq., sent a letter to the PO in response to his inquiry to the NIGC and named 

respondents about the possibility of settling the dispute. Attached to the Olson letter was 

a copy of a July 16, 2003, letter from Homer Bear, Jr., to Alex Walker, Jr. Neither the 

NIGC nor the Walker Council were sent copies of the July 22 Olson letter and the 

accompanyng July 16 letter from Bear to Walker until August 15,2003, after the PO 

issued his Recommended Decision. It is apparent from the PO'S August 15 letter that he 

was not aware, at that time, that the Olson and Bear letters were an ex parte 

communication. It appears that this did not come to his attention until after his 

Recommended Decision was issued. 

On August 11,2003, the PO issued his Recommended Decision, finding that none of the 

bases for closure had a sufficient factual basis and recommending that the TCO be 

dissolved and the Casino reopen. In a letter from the PO to the NIGC, the Walker 

Council and the Bear Faction, dated August 15, 2003, the PO revealed the existence of 

the July 22 letter and the attached July 16 letter for the first time, and acknowledged that 

the correspondence "was apparently not copied by Mr. Olson to the NIGC or to counsel 

for the Tribe or Walker faction." The PO also acknowledged reading the July 22 and 

July 16 letters. Both letters appear to have been read by the PO before he issued his 

Recommended Decision on August 11 ,5 although he specifically noted that he did not 

consider the letters in issuing his Recommended Decision. 

On August 22,2003, the Walker Council and the Tribe objected in writing to the 

Recommended Decision by the PO, urging the Commission of the NIGC to reject the 

Recommended Decision in its entirety because of an ex parte communication it believed 

to be improper, and to remand the matter to a new PO for limited review of the issues 

raised by the parties to the appeal. The Walker Council also urges rejection of the 

Recommended Decision based on the PO'S consideration of issues beyond the scope of 

the administrative appeal and seeks remand for consideration of the merits of the sole 

issue raised by the parties on appeal, i.e. the appropriateness of the sanction. The Walker 

Council asks that, if the Recommended Decision is adopted, that the Commission reject 

the PO'S findings of fact and concIusions of law that support re-opening of the Casino 

under the Bear Faction's control. Finally, the Walker Council seeks clarification of the 

circumstances under which the Tribe will be permitted to re-open its gaming activity, in 

In the Recommended Decision, the PO mentions that "the parties, as well as the Bear Faction.. . all 

responded that mediation had been attempted unsuccessfully, most recently pursuant to an order of the 

federal Eighth Circuit Court of Appeals, and that such efforts were unlikely to be successful at this point." 
the event the Commission rejects the Recommended Decision but does not remand the 

W' matter. 

The NIGC also objected in writing to the PO'S Recommended Decision, urging its 

rejection by the Commission. The NIGC argues that the PO "gravely exceeded his 

authority" by deciding "fact issues" that were not before him and "reaching into the 

Agency Record without notifying the actual parties to the litigation that allegations made 

by Mr. Bear would be the basis for his decision." (Chairman's Objections to 

Recommended Decision at 1 1 - 12). 

DISCUSSION 

Burden of Proof and Standard of Review 

In administrative appeals of enforcement actions undertaken pursuant to 25 C.F.R. Part 

573, the Chairman bears the burden of proof and the standard of review is a 

preponderance of the evidence. In the Matter of JPW Consultants, NIGC 97-4; NIGC 

98-8; November 13, 1998 (citing In the Matter of Shingle Springs Band of Mewok 

Indians, NIGC 97- 1, December 3, 1998). 

Preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as whole, would accept as sufficient to find that a 

YII?4@' 

contested fact is more likely to be true than untrue. Id. at 4. Since the three violations 

alleged in the NOV as the basis for the TCO are conceded and not contested by the 

parties, we find each violation to be true for purposes of deciding the sole issue raised by 

the parties on appeal, i.e. the appropriateness of the Chairman's sanction for the 

violations. 

11. The Olson letter and the Bear letter constitute an improper ex parte 

communication. 

In their written objections to the Recommended Decision issued by the PO, both the 

NIGC and the Walker Council characterize the July 22 letter, and the accompanying July 

16 letter, as an improper ex parte communication. We agree. 

Neither the IGRA nor the NIGC7s regulations address ex parte communications. We 

therefore look to the Administrative Procedures Act ("APA")~, Standards of Conduct for 

6 We recognize that the APA's adjudication sections only apply to ahnistrative hearings that are 

conducted under a statute that specifically provides for hearings to be on the record, 5 U.S.C. 5 554(a), and 

that the NIGC, in the preamble to its appeals regulations, states that the IGRA does not. Vol. 58, No. 13, 

Fed. Reg. 5839. However, while perhaps not mandatory authority, the APA ex parte provision, and case 

law interpreting it, are persuasive authority because the adjudicatory regulations the NIGC does have are 

similar to the other APA adjudications sections, of which the ex parte provision is one subsection. For 

example, the APA requires that either the agency, one or more members of the agency, or one or more 

administrative law judges preside over the taking of evidence. 5 U.S.C. 5 556(b)(l)-(3). The NIGC chose 

'- the term, "Presiding Official", and uses the ALJs at the Department of the Interior for this function. The 
Administrative Law Judges ("ALJs") from the Department of the Interior ("Standards of 

LJ Conduct"), and case law for guidance. 

The APA prohibits any "interested person outside the agency" from making, or 

knowingly causing, "any ex parte communication relevant to the merits of the 

proceeding" to any decision-making official. 5 U.S.C. 557(d)(l)(A). The APA hrther 

requires that a person involved in the decision-making process who receives any written 

ex parte communication must include such communications in the record of the 

proceeding, as well as all written responses to the communications. 5 U.S.C. 

§ 557(d)( 1 )(C). 

The Standards of Conduct, governing ALJs of the Department of the Interior ("DOI"), 

and directly applicable to the PO in this case by virtue of his employ by the DOI, 

generally prohibit an ALJ from receiving and considering ex parte communications, 

stating: 

(b) Ex parte communication - (1) Prohibition. Except to 

the extent required for the disposition of ex parte matters as 

authorized by law, there shall be no communication 

concerning the merits of a proceeding between any party to 

the proceeding or any person interested in the proceeding 

or any representative of a party or interested person and 

any office personnel involved or who may reasonably be 

expected to become involved in the decision makrng 

process on that proceeding, unless the communication, . . . 

if written, is furnished to all other parties. . . The terms 

"interested person" and "person interested in the agency 

proceeding" include any individual or other person with an 

interest in the agency proceeding that is greater than the 

interest that the public as a whole may have. 

This regulation does not prohibit communications 

concerning case status or advice concerning compliance 

with procedural requirements unless they are of inquiry that 

is in fact an area of controversy in the proceeding . . . Any 

written communication made in violation of this regulation 

shall be included in the record. In proceedings other than 

informal rulemakings, copies of the . . . communication 

shall be provided to all parties, who shall be given an 

opportunity to respond in writing. [Emphasis added.] 

43 C.F. R. 9 4,27(b). 

APA requires that "when the agency makes the decision without having presided at the reception of the 

evidence, the presiding employee.. .shall first recommend a decision.. ." 5 U.S.C. 5 557(b). The NIGC 

'@I,-#' regulations also provide for a PO to issue a recommended decision. 25 C.F.R. 9577.14. 
In Professional Air Traffic Controllers Organization (PATCO) v. Federal Labor 

bmd 

Relations Authority (FLRA), 685 F.2d 547 (D.C. Cir. 1982), the U.S. Court of Appeals 

for the D C. Circuit expounded on the APA's general prohibition on ex parte 

communications, stating: 

The disclosure of ex parte communications serves two 

distinct interests. Disclosure is important in its own right to 

prevent the appearance of impropriety from secret 

communications in a proceeding that is required to be 

decided on the record. Disclosure is also important as an 

instrument of fair decision-making; only if a party knows 

the arguments presented to a decision-maker can the party 

respond effectively and ensure that its position is fairly 

considered. When these interests of openness and 

opportunity for response are threatened by an ex parte 

communication, the communication must be disclosed. It 

matters not whether the communication comes from 

someone other than a formal party or if the communication 

is clothed in the guise of a procedural inquiry. 

Id. at 563. 

Clearly, the PO here is involved in the decision-making process. In fact, he is integral to 

it. The use of a PO is provided for by NIGC regulations. MGC regulations direct that, 

%I& in appeals before the Commission, "[tlhe Commission shall designate a presiding 

official.. ." 25 C.F.R. fj 577.4(a).' NIGC regulations fkrther provide that the PO shall 

render a Recommended Decision. 25 C.F.R. 577.14. The Commission must then 

consider the Recommended Decision, but may "affirm or reverse, in whole or in part.. ." 

the Recommended Decision. 25 C.F.R. fj 577.15. Because the Bear Faction's ex parte 

communication in this matter was directed to the PO, and not copied to or otherwise 

provided to the parties to the action until after the PO issued his Recommended Decision, 

it is improper. 

111. The Improper Ex Parte Communication Did Not so Taint the Decision-making 

Process so as to Make the Ultimate Decision of the Agency Unfair. 

Both parties urge the Commission to reject the Recommended Decision because of the ex 

parte communication. The parties argue that the communication has tainted the 

proceedings, and point to the fact that the PO referenced the ex parte communication in 

his Recommended Decision. Additionally, the Walker Council asks that the matter be 

remanded to a new PO to issue a new Recommended Decision. We find that the 

7 The regulation further provides that the PO shall commence a hearing. However, 5 577.3 provides that 

the Respondznt may waive in writing the hearing and elect to have the matter decided on written 

submssions alone. Respondents Walker and the Tribe have so elected in this case. Respondent Bear did 

not appeal the NOV or TCO and is, therefore, not a party to this matter on appeal. 

'llll& 
improper ex parte communication did not so taint the proceedings as to make the ultimate 

u decision of the agency so unfair as to require remand to a new PO. 

Case law sets forth when an ex parte communication is so egregious as to undermine 

fundamental notions of due process and fairness. In Freeman Engineering Associates v. 

Federal Communications Commission (FCC), 103 F.3d 169, 184 (D.C. Cir. 1997), the 

Court cited to several factors that should inform this analysis, including: 

The gravity of the ex parte communication; whether the 

contacts may have influenced the agency's ultimate 

decision; whether the party making the improper contacts 

benefited fiom the agency's ultimate decision; whether the 

contents of the communications were unknown to opposing 

parties, who therefore had no opportunity to respond; and 

whether vacation of the agency's decision and remand for 

new proceedings would serve a useful purpose. 

See also PATCO v. FRLA, 685 F.2d 547,565 (D.C. Cir. 1982) 

Before evaluating the effect of the ex parte communication in this instance, we must first 

address whether the person responsible for the communication - here the Bear Faction - 

qualifies as a party to this administrative action, and, if it does not, whether it qualifies as 

an interested party for purposes of our analysis. We conclude that the Bear Faction, 

while not a party to this action, is an interested party. 

In the PATCO case, the Court discussed the application of the MA rule on ex parte 

communications: 

The MA, 5 U.S.C. 557(d), applies only to ex parte 

communications to or from an interested person. The term 

interested person is intended to be a wide, inclusive term 

covering any individual or other person with an interest in 

the agency proceeding that is greater than the general 

interest the public as a whole may have. The interest need 

not be monetary, nor need a person be party to, or 

intervenor in, the agency proceeding to come under this 

section. The term includes, but is not limited to, parties, 

competitors, public officials, and nonprofit or public 

interest organizations and associations with a special 

interest in the matter regulated. The term does not include a 

member of the public at large who makes a causal or 

general expression of opinion about a pending proceeding. 

Id. 
Homer Bear, Jr., was a named Respondent in the NOV and TCO. Although he was 

'Cd 

served with the NOV and TCO, he elected not to participate in the administrative 

proceeding. He chose neither to appeal the NOV or the TCO. However, although the 

Bear Faction was not a formal party to the administrative proceeding, this does not 

prevent our conclusion that the Bear Faction is an interested party. As the dissident tribal 

faction responsible for ousting the tribal government recognized by the DOI, it was the 

Bear Faction's actions that were the focus of the allegations against the Tribe in the NOV 

and the bases for the TCO. Further, any possibility of a successful settlement depended 

on participation by the Bear Faction. Their actions could help resolve the dispute and 

lead to dissolution of the TCO, or their actions could perpetuate the conflict, resulting in 

permanent closure of the gaming facility. The Bear Faction is undoubtedly an interested 

partyWe next address whether the communication irrevocably tainted the decision-making 

process so as to make the ultimate judgment of the agency unfair. We look to the 

checklist of factors utilized by the PATCO Court. 

(1) The gravity of the ex parte communication 

The ex parte communication was made in response to a notice sent by the PO to the 

Chairman, the Walker Council and the Bear Faction exploring whether the matter could 

be resolved through settlement or alternative dispute resolution. On July 22, 2003, the 

Bear Faction, by its attorney, Steven Olson, Esq., sent a letter to the PO in response to his 

inquiry to the parties about the possibility of settling the dispute. Attached to the Olson 

IIJ letter was a copy of a July 16,2003, letter from Homer Bear, Jr., to Alex Walker, Jr. 

The Olson Letter was directed at settlement. He informed the PO that mediation was 

unlikely to resolve the issue. He argued that it was the Walker Council's intransigence 

that doomed the mediation. The attached Bear Letter was arguably more egregious. It is 

replete with disparaging accusations and remarks regarding Alex Walker Jr. and his 

administration. However, the PO stated in his August 15, 2003 letter, in which he 

advises the parties of the ex parte communication, that he considered the letter "only in 

the context of one of the parties7 responses concerning settlement, which all agreed was 

unlikely." August 15, 2003 letter at 2. He hrther states that "[tlhe July 22 Olson letter 

and attachment were not cited or relied on in any manner as the basis for any findings or 

conclusions in the Recommended Decision." Id. 

We accept at face value the statements of the PO that he did not cite or rely on the ex 

parte communication. His assertions are entirely plausible. The letters were sent to the 

PO in response to an inquiry that he had initiated regarding possible settlement, not in 

response to one of the earlier, more substantive aspects of the proceedings, i.e. the NOV, 

TCO or written submissions by either party. The only mention of the ex parte letters by 

the PO in his Recommended Decision is at the beginning of the Decision, in a section 

entitled "Proceedings," in which the procedural posture of the matter is summarized. 

(Recommended Decision at 2). He concludes by discussing how he reached out to "the 

NIGC, Tribe and the Bear faction," regarding possible settlement, and how "all 
responded that mediation had been attempted unsuccessfully . . . and that such further 

bd efforts were not likely to be successfil at this point." (Id.). We accept the PO'S assertion 

that he did not consider the ex parte letters. 

(2) Whether the contacts may have influenced the agencv's ultimate decision 

The ultimate decision we reach here is to make permanent the TCO. As we find herein, 

the only issue on appeal was the appropriateness of closure as the sanction for the 

conceded violations. Neither the Olson Letter nor the Bear Letter touches on this specific 

issue. The Bear Letter does include the statement that, "the vast majority of the Tribe has 

repeatedly recognized that a Council headed by Homer Bear, Jr. is the true leadership of 

the Tribe." (Bear Letter at 3). This claim is supported with a detailed report of a recent 

tribal election in which "a record number of voters went to the polls and in which the 

Bear Faction's members received 97-98% of the vote, while members of the former 

Walker Council received just 2-3% of the vote." (Bear Letter at 1). 

Our decision rests on our recognition of the Walker Council as the legitimate leaders of 

the Tribe, based on continuing federal recognition by the DO1 of the Walker Council as 

the tribal leaders and our historic deference to the DO1 on these matters. Therefore, any 

arguments to the contrary, set forth in the letters which comprise the ex parte 

communication, have not influenced our decision. 

(3) Whether the party making the improper contacts benefited from the agency's 

ultimate decision 

vr114 

As stated above, the ultimate decision we reach here is to make permanent the TCO. The 

Casino will remain closed. The Tribe will not reap the benefits of Indian gaming unless 

and until the TCO is rescinded. We cannot fathom how this result could benefit the Bear 

Faction. Furthermore, our decision is based on acknowledgement of the Walker Council 

as the federally recognized government of the Tribe, which is contrary to the content of 

the Bear Faction's ex parte communication. 

(4) Whether the contents of the communications were unknown to opposing parties, 

who therefore had no opportunity to respond 

Although the contents of the Bear Letter were known to the Walker Council, it was 

clearly not known that the attorney for the Bear Faction, Steven Olson, had sent a copy of 

this letter to the PO, along with his own letter of July 22. Consequently, the only two 

parties, the Walker Council and the MGC, were not given notice that both letters had 

been sent to the PO, and they were thereby deprived of their ability to respond to the 

letters, which were submitted to the PO several days after the record had been closed by 

the PO. 

(5) Whether vacation of the agency's decision and remand for new proceedings 

would serve a usehl purpose 
We do not believe that remand for new proceedings would serve a useful purpose. As 

\r*u' discussed above, the PO has stated that the ex parte communication was not cited or 

relied on in any manner as the basis for any findings or conclusions in the 

Recommended Decision. Furthermore, the current record is sufficient for the 

Commission to decide the sole issue raised on appeal, based on the parties' written 

submissions, as they requested. Therefore, to remand the proceedings to a new PO 

would serve no purpose. 

IV. The Commission Reiects in its Entirety the PO'S Recommended Decision 

Because the PO Exceeded the Scope of Review When He Addressed Issues Not 

Raised on Appeal, and Did Not Address the Merits of the Issues Raised on 

Appeal. 

Both parties to this appeal, the Chairman and the Walker Council, argued in their filed 

objections to the Recommended Decision that the PO exceeded the scope of review when 

he made findings of fact and conclusions of law based on the underlying violations and 

bases for closure, which the Walker Council had not appealed. We agree, and, therefore, 

reject the Recommended Decision in its entirety. 

Both the Walker Council and the Bear Faction were identified as respondents in both the 

NOV and the TCO.~ The Bear Faction appealed neither the NOV nor the TCO.~ 

Therefore, the Bear Faction waived its right to contest the NOV and the TCO. 

The Walker Council did not appeal the NOV, but did appeal the TCO. The Walker 

w Council's pleadings clearly establish that the Walker Council, as the federally recognized 

leadership of the Tribe, admitted the violations and the underlying facts alleged in the 

NOV and Temporary Closure Order. Ln its Supplemental Statement, the Walker 

Council stated, "The Tribe and its federally recognized Tribal Council are not in control 

of the Tribe's governmental offices or gaming operations, or the revenues generated 

. . .thereby resulting in a violation of the [IGRA]." (Supplemental Statement in Support of 

Appeal from Order of Temporary Closure at 1). The Walker Council further stated that 

"the Tribe and its federally recognized Tribal Council acknowledge the circumstances in 

the NOV.. ." (Id. at 2). We understand this to mean that the Tribe, by its federally 

8 The General Manager is also identified as a respondent in the TCO, presumably because the TCO orders 

closure of the Casino and the General Manager is in charge of the day-to-day operations of the Casino. 

Nevertheless. the General Manager did not appeal the TCO. 

9 We have considered whether the Bear Faction's May 2 letter evidences an intent to appeal the NOV, and 

find that it does not. While it does respond to the allegations in the NOV, it does not comply with the other 

requirements of the NIGC regulation governing appeals. 25 CFR 5 577.3(a) provides that a respondent 

may request a hearing by submitting a notice of appeal, and Section 577.3(c) provides that a respondent 

may instead waive its right in writing to an oral hearing and instead elect to have the matter determined 

solely on the basis of written submissions. The Bear Faction has done neither. We also note that in its ex 

park communication to the PO, the Bear Faction specifically states that it made a strategic decision not to 

appeal. See July 22, 2003, letter from Steven Olson, Esq., attorney for the Bear Faction, to the PO. 
recognized tribal leadership, does not contest the facts upon which the NOV or TCO 

were based. 

pk*u* 

The MGC regulations provide that a respondent may request a hearing to contest whether 

an order of temporary closure issued by the Chairman should be made permanent or be 

dissolved by submitting a notice of appeal. 25 C.F.R. 5 577.3(a). After such notice is 

filed, the respondent must file with the Commission a supplemental statement that states 

"with particularity the relief desired and the grounds therefor. . . " 25 C.F.R. 4 577.3(c). 

At the hearing, a respondent has the option of presenting oral testimony or witnesses. Id. 

However, in lieu of an oral hearing, the NIGC regulations provide that the respondent 

may elect to have the merits of the appeal determined "solely on the basis of written 

submission." Id. 

The Walker Council waived its right to have a hearing, including presenting testimony 

and witnesses, and instead elected to have the merits of the appeal of the TCO decided 

solely on the basis of written submissions. Importantly, in its written submissions, the 

Walker Council did not dispute the violations alleged as the basis for the TCO or the facts 

that gave rise to those violations. Through its written submissions, the Walker Council 

narrowed the issues it could have appealed to only one -- the appropriateness of the 

sanction imposed by the Chairman, closure of the Casino. 

Such a narrowing of the issues on appeal is permissible, even in situations where an 

administrative agency is required to hold a trial-type evidentiary hearing (unlike here, 

where an evidentiary hearing is optional). In Persian Gulfoutward Freight Conference 

4 v. Federal Maritime Comnzission, 375 F.2d 335 (D.C. Cir. 1967), the petitioner sought 

review of a final order of the Federal Maritime Commission directing the petitioner to 

cease and desist from carrying cargo at certain tariff rates found to be outside of an 

approved agreement. The D.C. Court of Appeals found that an agency could decide an 

appeal on a memorandum of law and need not provide an evidentiary hearing, where the 

petitioner (the Persian Gulf Conference) was afforded an opportunity to demonstrate 

what facts it felt were material to the issue before the agency (the Federal Maritime 

Commission). The Court discussed its reasoning, stating: 

It is fundamental to the law that the submission of evidence 

is not required to characterize "a full hearing" where such 

evidence is immaterial to the issue to be decided. The 

Supreme Court has defined a full hearing as one in which 

ample opportunity is afforded to all parties to make, by 

evidence and argument, a showing fairly adequate to 

establish the propriety or impropriety, fiom the standpoint 

of justice and law of the step asked to be taken. Where no 

genuine or material issue of fact is presented[,] the court or 

administrative body may pass upon the issues of law after 

according the parties the right of argument. 

Id. at 341. 
The Respondent Walker Council, on behalf of the Tribe, narrowed the issues in its 

'*rrru' written submissions to whether closure was the appropriate sanction. The PO chose to 

ignore this narrowing of the issues by the only Respondent appealing, the Tribe and the 

Walker Council, and instead made recommended findings of fact and conclusions of law 

with respect to the underlying violations, consideration of which had been waived by the 

Bear Faction when it did not appeal, and which were agreed to by the Walker Council as 

part of its appeal. We must, therefore, reject the PO'S decision in its entirety and now 

consider and decide the sole issue raised by the parties on appeal, i.e. whether the 

Chairman's temporary closure of the Casino was appropriate. In deciding this issue, we 

rely on the closed record and the written submissions of the parties, as they agreed. 

V. To Determine Whether Closure of the Casino or a Civil Fine is the Appropriate 

Sanction, We Must First Determine Which Group Can Lawfully Act on Behalf of 

the Tribe and Correct the Violation. 

Before we can assess the appropriateness of the Chairman's sanction -- closure of the 

Casino -- we must first determine who is ultimately responsible for gaming, and, 

therefore, ultimately responsible for correcting the gaming violations. A sanction would 

be inappropriate if levied against one who has no power to correct the violations forming 

the basis for the sanction. 

In this case, the violations were directed to the Tribe. The Chairman noticed both Alex 

Walker, Chairman of the elected Council of the Tribe, and Homer Bear, nominal 

%m# Chairman of the dissident group that had assumed control of the leadership of the Tribe 

and the operation of the Casino. Despite the fact that both of these individuals were 

noticed, the Tribe is the entity with authority to game under the IGRA. See 25 U.S.C. 

$9 27 1 O(b)(l)(B), (d)(l)(A)(i), (d)(2)(A)-(C). Thus, the Tribe is ultimately responsible 

for correcting the violations. 

The Tribe acts through its governing body. Pursuant to the Tribe's Constitution, a Tribal 

Council is the governing body of the Tribe. (Article ID, Section 1). The Tribal Council 

is to have authority to represent the Tribe in all matters pertaining to the business of the 

Tribe. (Article III, Sec. 2). The Tribal Council shall consist of seven members elected at 

large fi-om members of the Tribe. (Article W, Section 1). 

The Tribe has both the ability and the power to correct the uncontested gaming 

violations. This can be accomplished by adherence to both the Tribe's Constitution and 

its Gaming Ordinance. 

VI. We Defer to the Secretary of the Interior's Determination as to the Recognized 

Tribal Leadership. The Secretary Recomizes the Walker Council. The Walker 

Council is not in Control of the Tribal Government or the Tribe's Gaming 

Operation. 
For a tribe to lawfully conduct gaming on its lands, the tribe must be "recognized as 

eligible by the Secretary [of the Interior] for the special programs and services provided W by the United States to Indians because of their status as Indians" and must be 

"recognized as possessing powers of self-government." 25 U.S.C. $2703(5). 

The Commission defers to the Secretary of the Interior's determination of whom the 

Secretary recognizes as the legitimate tribal leadership of a tribe. As we have stated in a 

prior Commission Decision: 

[Tlhe plain meaning of the [IGRA] establishes that only tribes 

recognized by the Secretary, acting through their designated 

representatives, may engage in Indian gaming. It follows that the 

Secretary, as the expert on such matters, would be the authority to 

determine who acts on behalf of the recognized tribe. 

Decision Letter, Tuscarora Tribal Business Council, July 19, 1994, at 5-6 (AR# 23). 

This Commission Decision sets forth a thorough legal analysis of why the Chairman 

should defer to the Secretary, why IGRA implies that the Chairman should rely on the 

Secretary for guidance on what group constitutes the governing body of a tribe, and why 

the Chairman's deference to the Secretary prevents the chaos caused when different 

federal agencies recognize different governing bodies of the same tribe. We find it 

unnecessary to reiterate that analysis here.'' 

We a ee with the Walker Council that, for the NIGC to ensure that the "governing body 

~IIII~ oft lf e Lndian tribe" is responsible for the gaming activity, the NIGC necessarily must 

know what entity to recognize as the governing body of the Tribe. Such recognition, as 

well as federal recognition of a tribe itself, is evidenced by a government-to-government 

relationship between the United States (through its executive branch officials) and the 

Tribe (through its governing body)." (Tribal Respondents' Objections to Recommended 

Decision, at 14). 

We find that the Walker Council is the group that can lawfully act on behalf of the Tribe 

and correct the bases for closure, and in so finding, we deferred to the Secretary of the 

Interior's determination that the Walker Council is the recognized tribal leadership. 

The recognized leadership is not currently in control of the Casino or its regulation. 

VII. Because the Recognized Tribal Leadership is not in Control, the Gaming is in 

Effect Unregulated. 

The Walker Council argues that closure of the Casino has "only halted an unauthorized 

group of dissidents from conducting gaming activity at the Meskwaki Settlement and has 

not stopped the other IGRA violations noted.. ." (Tribal Respondents' Objections to 

10 We share the Walker Council's concern, articulated in its Tribal Respondents' Objections to 

Recommended Decision, at 16, that the PO reached a contrary conclusion without even referencing this 

*II& b~nding agency precedent. 
Recommended Decision at 18-1 9). The Walker Council argues that the more 

W appropriate sanction is a fine against Homer Bear. We disagree. 

Merely fining the unrecognized faction, while allowing gaming to continue, does not 

address the critical issue: that Indian gaming under the IGRA must be operated by the 

Tribe and by the tribal leadership recognized by the Secretary. We cannot allow an 

unrecognized, dissident faction to operate an Indian casino. 

We recognize, as the Chairman did, that the Walker Council does not control the Bear 

Faction's actions. However, as the Chairman has stated, "When the federally recognized 

leadership is not in control of the gaming operation, the activity being conducted is not 

Indian gaming under the IGRA. I cannot allow such gaming to continue." (Decision 

Upon Expedited Review, at 3). We agree. Neither can we. 

Our decision is supported by the 8th Circuit Court of Appeals, in a case directly related to 

this one. When the Casino did not close pursuant to the TCO, the Chairman of the NIGC 

sought federal court enforcement of the TCO in the United States District Court for the 

Northern District of Iowa. The Court granted a preliminary injunction enforcing the 

TCO, and on May 23,2003, U.S. Marshals closed the Casino. Zn re: Sac & Fox Tribe at 

*13. On appeal, the 8th Circuit affirmed the district court's grant of the preliminary 

injunction. The 8th Circuit noted, in its analysis of whether the public interest favored 

enforcement of the TCO, that 

[plrior to enforcement of the closure order in this case, gaming 

operations had become, effectively, unregulated. The BIA did not 

recognize the [Bear Faction], yet the [Bear Faction] had 

appropriated control of the gaming operations and diverted tribal 

assets into new bank accounts. As such, it was no longer possible 

for the NIGC to ensure that the tribe was the primary beneficiary 

of the gaming operation.. .. 

VIII. We Find that Closure of the Casino is Based on Substantial, Uncontested 

Violations and is the Only Appropriate Remedy, and, Therefore, Make Permanent 

the Order of Temporary Closure. 

The "IGRA grants the Chairman broad authority to fashion remedies to cure perceived 

gaming violations, including the authority to order temporary closures." Id. at 21, citing 

25 U.S.C. tj 2713(b)(l). The Chairman may issue an order of temporary closure if one 

or more substantial violations exist. 25 C.F.R. $ 573.6(a). NIGC regulations set forth 12 

substantial violations that may, individually, form the basis for closure. Each of the three 

violations set forth in the TCO and conceded by the Walker Council may, individually, 

form the basis for closure, as each is a "substantial violation" as defined by NIGC 

regulations. The Commission has the power to, "by an affirmative vote of not less than 2 
members and after a full hearing," make permanent a temporary order of the Chairman 

W closing a gaming activity.. ." 25 U.S.C. 5 2706(a)(5). 

The Tribe, through its elected council -- the Walker Council -- argues that closure will 

not cure the violations, and instead seeks a civil fine against the dissident faction in an 

attempt to coerce compliance. It argues that the violations are the result of the actions of 

the Bear Faction and that correcting the violations can only be accomplished by the 

actions of the Bear Faction. We disagree. The alternate remedy of a civil fine, proposed 

by the Walker Council, does not persuade us. We find that closure is the only appropriate 

remedy, and we make permanent the TCO. 

The Tribe is ultimately responsible for its gaming operation. In this case, a break down 

in the governmental structure of the Tribe led to a government takeover by a dissident 

faction. That faction then assumed control of the Casino. 

The Tribal Council, chaired by Respondent Walker, is the government of the Tribe that is 

federally recognized by the Secretary of the Interior. The Tribe and its federally 

recognized Tribal Council are not in control of the Tribe's governmental offices or 

gaming operation. The exclusion of the federally recognized leadership fiom control 

over operations of the gaming facility led to three substantial violations of the IGRA, 

NIGC regulations, and the Tribe's Gaming Ordinance. The Tribe, through its Council, 

the Walker Council, admits that those substantial violations occurred. 

VIU We agree with the Chairman that, "allowing a gaming operation to remain open while an 

unrecognized faction has control would encourage unlawful takeovers of Indian gaming 

establishments creating a situation that is inimical to stable tribal governments and their 

gaming operations." (Chairman's Reply to Respondents' Supplemental Statement at 

4-5). 

Under the circumstances presented here, closure is not only the best remedy; it is the only 

practical remedy when an unrecognized faction has illegally taken over the tribal 

government and its gaming operation. We recognize that closure of the Casino has 

negatively impacted the Tribe, Casino employees and the surrounding community. We 

do not reach our decision to close the Casino in haste or without serious consideration. 

We do believe, however, that closure is the only appropriate remedy in a situation where 

control of the Casino has been wrested fiom the Tribe and its legitimate tribal 

government. We trust that, in the end, our decision will serve to strengthen not only the 

government of this Tribe, but will strengthen all tribal governments. 

Gaming may resume upon a petition by the Tribe to rescind the Closure Order, if the 

Commission is convinced, following a visit by a designated NIGC employee(s), that the 

Tribe, acting through a duly elected, federally recognized Tribal Council, is in control of 

the Tribe and Casino, and that no violations of the IGRA, NIGC regulations or the 

Tribe's Garning Ordinance exist. 

bud I I As addressed above, Respondent Walker Counc~l waved the hearing. 
NAL INDIAN GAMING COMMISSION. 

Cloyce Choney 

Commissioner Commissioner