1

2 Before the

3 NATIONAL INDIAN GAMING COMMISSION

4 Regulatory Review, Tribal Consultation

5

6

7 Friday, July 29th, 2011

8

9 Department of Interior, South Auditorium

10 1951 Constitution Ave NW

11 Washington D.C.

12 20245

13

14

15

16

17

18

19

20

21

22

23 Job No. NJ340556

24 Reported by:

25 CHARLES D. HOFFMAN

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1 Participants

2 (speakers on the record)

3 TRACIE STEVENS, Chairman, NIGC

4 DAN LITTLE, Commissioner, NIGC

5 STEFFANI COCHRAN, Esquire, NIGC

6 LAEL ECHO-HAWK, Esquire, NIGC

7 ROBERT CARROLL, Chitimacha Tribe of Louisiana

8 STEPHANIE BYRAN, Poarch Band of Creek Indians

9 LINDA MCGHE, Poarch Band of Creek Indians

10 DANIEL MCGHE, Poarch Band of Creek Indians

11 ERNIE STEVENS, National Indian Gaming Association

12 JUDY SHAPIRO, Esquire, Rosebud Sioux Tribe

13 JESS GREEN, Esquire, Chickasaw Tribe

14 ELIZABETH HOMER, Esquire, Homer Law

15 ELIOT MILHOLLIN, Seminole Tribe of Florida

16

17

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25

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1 PROCEEDINGS

2 (9:16 a.m.)

3 CHAIRWOMAN STEVENS: Good morning. Thanks

4 for waiting. I just wanted to make sure we had some

5 folks that were coming in, and make sure everybody

6 had the opportunity to get settled and get checked

7 in.

8 My name is Tracie Stevens. I'm the chairwoman

9 of the National Indian Gaming Commission. I will

10 turn it over for Steffani and Dan to introduce

11 themselves.

12 MS. COCHRAN: Good morning. My name is

13 Steffani Cochran. I'm the vice chairwoman of the

14 National Indian Gaming Commission, and I am a member

15 of the Chickasaw Nation of Oklahoma. Although home

16 for me right now is Santa Fe. So, it's a pleasure

17 to see everybody again, thank you for joining us.

18 COMMISSIONER LITTLE: Good morning

19 everyone. Like the chairwoman said, I'm Dam Little,

20 associate commissioner here. I just want to welcome

21 everybody and thank everybody for sticking it out

22 this whole week here to Friday morning. So, we know

23 who the troopers are, so thank you.

24 CHAIRWOMAN STEVENS: Today is the second

25 day of a two day consultation that we are conducting

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1 on a number of regulations that we are considering.

2 Your agendas, everyone should have an agenda. If

3 you don't, Rita has some right there in the back. I

4 do want to recognize the staff that we have here.

5 We've got Keith, one of our field

6 investigators. Rita, who works in the D.C. office.

7 And over here, we have Jean Wagner, who is in our

8 audit division. Melissa, who is also on the right,

9 is with our general counsel's office. Did I get

10 everybody?

11 So, I want to thank them for all their work in

12 setting this up. Also Lael Echo-Hawk is right here.

13 She'll be talking a bit more as we move through the

14 agenda.

15 We've structured our agendas in such a way that

16 we divide up the groups that we've identified of

17 regulations, so that we can, well one, everybody

18 knows what we're going to talk about at what time.

19 But two, to take small bites at the agenda.

20 Today we're going to be talking about Group 5

21 and Group 3. And on the agenda, you see Group 5 is

22 self regulation of class II gaming, sole proprietary

23 interests and minimum internal control standards for

24 class III.

25 Group 3 is for minimum internal control

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1 standards for class II and technical standards for

2 class II play.

3 So, those are the subjects we are going to be

4 talking about today. But I do want to say and make

5 this clear to everybody. While we are trying to do

6 this in bite-size portions, that doesn't negate the

7 possibility, or if there is a need for anybody to

8 make a statement that doesn't have anything to do

9 with these groups today, say it's something from one

10 of the other three groups or other regulations. If

11 your time is compressed and you need to make a

12 statement, we are open to that. The mic is always

13 open. We try to build in time to give tribes or

14 their representatives an opportunity to make any

15 written, submit any oral statements or their written

16 statements for the record. So, we are open to that.

17 It's a flexible agenda in other words. And so,

18 that's how we're going to conduct the meeting today.

19 Right up front here you'll see we've got time

20 here for tribal opening statements, and I'll be

21 opening the floor for any statements that need to be

22 made right now. Because of time or if you weren't

23 able to make it yesterday, please feel free if you

24 have any opening statements.

25 MS. BRYAN: Good morning. My name is

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1 Stephanie Bryan, and I am the vicechair for the

2 Poarch Band of Creek Indians. And I do have a

3 statement here and some comments, if you all would

4 allow me at this time to go ahead and move forward

5 with the comments.

6 Chairman Stevens, distinguished members of the

7 commission, my name is Stephanie Bryan, and I serve

8 as the vice chair of the Poarch Band of Creek

9 Indians, and the chair of the Poarch Creek Gaming

10 Commission. Since December 2006, I have had the

11 pleasure of participating in the Tribal Gaming

12 Working Group, TGWG, a coalition comprised of

13 representatives of the class II tribal gaming

14 industry, including elected officials, tribal

15 gaming regulators and operators, gaming equipment

16 manufacturers, suppliers, gaming laboratories,

17 tribal organization, gaming attorneys and a broad

18 spectrum of technical experts to prepare the

19 documents we are submitting to you today.

20 Before expounding further on the TGWG's work,

21 allow me to first commend you on the commission's

22 effort to reach out and conduct meaningful

23 consultation with tribal governments and to elicit

24 tribal input to this important regulatory review

25 endeavor.

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1 Speaking on behalf of my tribe, the Poarch Band

2 of Creek Indians, and no doubt on behalf of many

3 other tribal governments, particularly those who

4 have gone on record supporting our efforts, we are

5 heartened by the commission's commitment to work

6 collaboratively with tribal leaders and regulators

7 to ensure that the regulatory framework for class II

8 gaming is strong and effective.

9 As we all appreciate a lawful, robust and

10 well-regulated class II gaming environment serves

11 both the tribal and federal interests. On the May

12 15th, 2011, the TGWG forwarded the commission a set

13 of proposed minimum internal control standards for

14 class II gaming for its review and ultimate

15 publication as a proposed class II MICS. In so

16 doing, it was our expectation, of course, that all

17 tribal governments would have the opportunity to

18 review, consult, and comment on this draft, prior to

19 promulgation of a final rule.

20 The TGWG did not undertake this effort lightly.

21 As the commission may already be aware, I served as

22 co-chair of the TGWG MICS drafting process, along

23 with Mackey Morgan of the Chickasaw Nation, Jamie

24 Hummingbird of the Cherokee Nation of Oklahoma.

25 We all know that the current Part 543 is

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1 incomplete and largely mirrors Part 542, which is

2 specific to class III gaming. It is also largely

3 derived from increasingly outdated Nevada gaming

4 regulations. These Nevada regulations, of course,

5 govern commercial gaming activities and are not

6 reflective of any Indian gaming. Try as one might,

7 simply plunking a class III state regulatory

8 framework into the tribal class II gaming

9 environment is not a workable endeavor.

10 The class II regulatory framework, as you are

11 well aware, is premised on a more limited federal

12 role with tribal gaming regulatory agencies serving

13 as a primary regulator.

14 It is, we assert, also apparent that both Parts

15 542 and 543 in their current form are difficult to

16 use and apply due to duplication across multiple

17 sections, dated terminology and procedures that are

18 obsolete and not reflective of current technology.

19 The TGWG's proposed class II MICS were drafted

20 with the intent of ensuring that all controls are

21 covered in Part 543, while at the same time removing

22 some of the strict procedural steps and tasks not

23 appropriately characterized as standards,

24 recognizing, however, that many tribal governments

25 may find a certain degree of guidance helpful.

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1 These procedural steps and tasks were

2 consolidated by the TGWG into a comprehensive set of

3 guidance documents consistent with the MICS. These

4 are the documents I submit today. As a result, the

5 TGWG proposal allows for appropriate flexibility for

6 tribal gaming regulatory agencies and operations,

7 subject to TGRA oversight, to establish specific

8 controls, policies and procedures tailored to each

9 operation's individual circumstances. Still,

10 because of the use of both MICS and guidance

11 documents, these controls are subject to basic

12 common standards. Prior to the end of the

13 commission's regulatory review, the TGWG will also

14 submit a comprehensive set of checklists to

15 complement each section of the proposed MICS.

16 Taken together, we envision that these

17 documents will provide a comprehensive set of

18 unambiguous standards that will facilitate the

19 establishment of sound procedures centered around

20 best practices in the modern context of class II

21 gaming.

22 Before closing, I must note that this past

23 Tuesday, July the 26th, 2011, the Treasury

24 Department's Financial Crimes Enforcement Center,

25 FinCen, issued a final rule containing revisions to

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1 the Title 31 or Bank Secrecy Act Regulations. These

2 revisions may require revision to the TGWG's

3 proposed MICS, specifically Part 543.11, and the

4 related guidance document.

5 The TGWG considered delaying submission of the

6 guidance documents until it had the opportunity to

7 carefully review FinCen's revisions and make any

8 necessary edits. Ultimately, it was decided that

9 the wisest course would be to get the work product

10 in the NIGC's hand, so that the commission may

11 commence it's review.

12 Be assured, however, that the TGWG will

13 complete its review of the new Title 31 provisions

14 and offer any necessary revisions to the MICS and

15 the MICS guidance documents within the next two

16 weeks. It will also strive to finalize the

17 attendant checklist and submit those as well.

18 Very quickly, I'd like to go over the content

19 of the package we are submitting. The core of the

20 document consists of the guidance documents. Each

21 of which contained the pertinent MICS sections.

22 There are two appendices, one containing the red

23 line of the TGWG's proposed MICS, revisions and

24 others containing a red line version of the TGWG

25 proposed revisions to Part 547 and class II

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1 technical standards.

2 Please note that in completing the guidance

3 documents, the TGWG discovered that some additional

4 revisions to the MICS were necessary. The red line

5 version reflects both the previous revisions made by

6 the TGWG and the additional revisions made since our

7 initial submission.

8 We have also included a reference guide for the

9 commission's convenience. This reference guide

10 contains a detailed explanation of the TGWG's

11 objectives in relation to these proposed revisions

12 and the guidance documents.

13 In closing, we again wish to commend the NIGC

14 for providing Indian country the opportunity to

15 participate in this important endeavor. And at this

16 time, I am humbly honored to present the Tribal

17 Gaming Working Group's working document.

18 CHAIRWOMAN STEVENS: Thank you vice

19 chairwoman. We will take these and review these and

20 we will let the Poarch Band know what we plan to do

21 with these in advance. I know that there has been,

22 in our consultations, requests by other tribes to

23 see these documents and that the NIGC circulate

24 these for comment from other tribes. And as we

25 consider what to do with these, we will stay in

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1 communication with the tribe, and we appreciate all

2 the hard work of the tribes that are involved in

3 their resources and representatives.

4 We know this was, just from past experience in

5 doing a working group, it is time intensive,

6 resource intensive and must be taken seriously. The

7 work products must be taken seriously. This helps

8 the commission make a fully considered, thoughtful,

9 deliberative decision on how to proceed with class

10 II internal control standards. It is helpful to us

11 to have on the ground, practical experienced people

12 such as yourself, who are both a leader and a

13 commissioner, also a regulator, to provide feedback

14 to us that tells us, in real-time, what works best

15 to protect the industry.

16 So again, I want to thank you for coming all

17 the way out. Everybody who was involved in putting

18 this together, I just want to make very clear that

19 we understand the resources it took to do this. We

20 appreciate it, and we will be very thoughtful about

21 how we proceed with this information and Steffani or

22 Dan, is there anything that you want to add?

23 COMMISSIONER LITTLE: As part of our

24 consultation, relationship building initiative, one

25 of the things that we did was we reached out to some

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1 other states and other regulatory bodies, one of

2 which was Nevada. I'm very grateful for these

3 because this is similar to what Nevada does when

4 they develop their regulations. They work with the

5 industry, and I'm very pleased that we are doing the

6 same and want to commend the Tribal Gaming Working

7 Group for all the hard work and providing us with

8 some good information to work upon. So, thank you.

9 MS. BRYAN: Thank you as well. And as the

10 letter stated, the Tribal Gaming Working Group

11 consisted mainly of those in the class II industry:

12 the professions, the regulators that deal with this

13 on a daily basis. So, we feel that the document is

14 a great document that will benefit Indian country in

15 protecting the integrity of Indian gaming. So,

16 thank you for your consideration of this document,

17 and we will be in touch. I, as a leader, would like

18 to personally thank those that are here today that

19 were a part of this Tribal Gaming Working Group

20 because there were a lot of sacrifices made, a lot

21 of time away from families to create this important

22 document that will affect Indian country.

23 CHAIRWOMAN STEVENS: Again, thank you for

24 your submission and thanks to everybody that took

25 part. We will keep Indian country informed as we

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1 proceed through this entire regulatory process, but

2 specifically, for those who were involved with this

3 document and also those who are interested in seeing

4 this document. Last time we were at Tulalip, when

5 we were in WinCon especially, there was a lot of

6 interest by other tribes who were not participating

7 or were not able to participate in the working

8 group, to see the document and give some feedback.

9 So, we'll be in touch, and we'll keep the

10 communication open, so you know what we're doing and

11 how we proceed.

12 This may be the part where I turn it over to

13 Lael to begin talking about Group 5. You see on

14 your agenda we are going to start with Group 5

15 regulatory summary and comment on Part 518, so

16 proprietary interest in MICS for class III.

17 MS. ECHO-HAWK: Good morning. So

18 yesterday, we covered a lot of material. Today,

19 we'll cover the rest of the material you have in

20 your agenda and the chairwoman went over.

21 Start off with Group 5, which contains as the

22 chairwoman indicated, Part 518, which is

23 self-regulation of class II gaming, potential sole

24 proprietary interest regulation or policy. And then

25 finally, Group 5 also included class III minimum

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1 internal controls.

2 So Part 518, you don't currently have a draft.

3 We haven't developed one yet, so you don't have a

4 handout for this. But when we issued the notice of

5 inquiry, the commission asked whether we should

6 review the process for obtaining a self-regulation

7 certification a class II self regulation

8 certification. Now, this regulation has been around

9 since 1998, I believe, and we've only had two tribes

10 currently that have utilized this particular

11 regulation and obtained the certification.

12 We received a number of comments, including the

13 fact that the statement that the administrative

14 burden of completing the process outweighs the

15 benefits. Submission requirements are duplicative

16 and burdensome. The petition and recording

17 requirements undermine the purpose of certification.

18 We also heard that the high standards needed to be

19 maintained. The benefits and recognition for self

20 regulating tribes should be higher. And that

21 self-regulation is a hallmark of tribal sovereignty.

22 So, we've taken a look at this issue. We've

23 looked at the regulations. The regulations are old,

24 and you can tell that they were developed before we

25 developed, the agency developed, other regulations

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1 such as the MICS. And that some things that are

2 requested are also contained in ordinances, for

3 example. And so, we've been looking closely at the

4 regulation, and we're trying to figure out where the

5 duplications occur.

6 One thing that we've asked tribes to comment on

7 is how many tribes are actually interested in

8 pursuing self-regulation. Self regulation is for

9 class II activities only, and while we know that

10 there are about 30 to 35 class III only gaming

11 operations, there are also a number of hybrid

12 facilities. Those hybrid facilities, because they

13 contain class III machines, would have to comply

14 with the class III or the compact regulation

15 requirements. So, we are interested in seeing how

16 many tribes are interested in pursuing this and how

17 to address, sort of, the hybrid operation question.

18 In response to some of the comments that we

19 heard that the burdens outweigh the benefits of

20 obtaining a class II self-regulation certification,

21 we are interested to know if there are additional

22 responsibilities or incentives for the

23 self-regulating tribes. And then finally, whether

24 the annual reporting requirements should be amended.

25 We are also interested in knowing how exactly,

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1 like I mentioned, how we can streamline the

2 submission requirements for 518. And I know I've

3 received some comments on this, some comments that

4 the petition requirements should be significant, so

5 that we have all the information that we have. But

6 then the annual reporting requirements should then

7 be lessoned.

8 The petition requirements contain a lot of

9 information that's on the PowerPoint. We tried to

10 summarize what the regulation says. Then in 518.4

11 there is a number of criteria that a tribe must

12 satisfy to receive the certification, including the

13 statute language which is here on this slide. "A

14 finding that the tribe conducts gaming with an

15 effective and honest accounting of all revenues,

16 with a reputation for safe, fair and honest

17 operation on a fiscally and economically sound basis

18 and no criminal or dishonest activity."

19 And then there's additional findings for

20 accounting, licensing, investigation, enforcement

21 prosecution of violations of the gaming ordinance

22 regulations. And then there are some indicators for

23 the criteria, so it's a pretty long regulation. But

24 their "Adoption and implementation of MICS that

25 leads to stringent NIGC MICS."

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1 That one, kind of, we know that there are, that

2 tribes have adopted MICS, so we might be able to

3 play with some of this. Evidence that suitability

4 determinations are stringent as those for key

5 employees and primary management officials. Funding

6 for the TGRA. So, there is a lot of the indicators

7 that sort of supplement the criteria included in the

8 regulation.

9 So as you look at this, and if you've any

10 thoughts, take a look at the regulation. We're

11 interested in knowing if and how we can streamline

12 this process and make it so that it is utilized

13 better and by more tribes.

14 The other, the second issue in Group 5 is sole

15 proprietary interest. The notice of inquiry asked

16 whether the commission should consider regulation

17 defining sole proprietary interests and provide a

18 process by which the tribe may request review.

19 We had many, many comments on this. There was

20 concern about how a tribe could obtain the review by

21 the NIGC. One of the concerns that we've heard is

22 that, that process is not clear. Tribes don't know

23 when or how they can do that. So, we heard that the

24 commission should promulgate a regulation that

25 provides review only at the request of the tribe,

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1 that IGRA already defines the percentages for sole

2 proprietary interest. If sole proprietary interest

3 is defined, then so should primary beneficiary. A

4 clear definition may provide stability and access to

5 financing. And then on the flip side, a definition

6 might limit the tribal access to capital. Another

7 commenter stated that the determination of sole

8 proprietary interest should be left to the courts.

9 So, we're interested in your feedback and your

10 thoughts on this issue and whether or not we should

11 develop a regulation or we should outline a process.

12 How can we go about addressing this issue? Because

13 it is one that comes in front of the commission

14 frequently.

15 So, Group 5 also contained a reference to class

16 III minimum internal control standards, with the

17 thought that we would discuss the class III MICS in

18 Group 1 and then hopefully, come up with a

19 implementation strategy or a decision on how we are

20 going to address class III MICS. We are still

21 interested in your comments on that, so if you have

22 them we'd love to hear them.

23 Group 3 also contains the class II minimum

24 internal control standards that we heard from the

25 chairwoman or the vice chair of the Poarch Band on

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1 this morning, that it contains Part 543 and Part 547

2 class II minimum internal controls and technical

3 standards. The notice of inquiry asks how we should

4 deal with these parts. We know that right now we

5 have the class II bingo MICS set for an effective

6 date of October 13th of this year. The NIGC has

7 been drafting or was drafting, through last year,

8 changes to the class III mix. We are reviewing and

9 will review now the new documents that have been

10 submitted by the Tribal Gaming Working Group. But

11 we have heard a lot of comments that perhaps we

12 should take another shot at the Tribal Advisory

13 Committee.

14 So, if the commission decides to use a Tribal

15 Advisory Committee, the commission has been trying

16 to figure out how that would that work. There was a

17 lot of controversy over the last Tribal Advisory

18 Committee. How would we put a Tribal Advisory

19 Committee together? How would it be composed? How

20 would it be representative of regions, operation

21 size, regulators, operators, class II and class III

22 experience, background and expertise in various

23 subject matter, and how many members would be

24 included in the Tribal Advisory Committee? Whether

25 or not we should use a facilitator. That was a

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1 strategy that was used, I think, it was in the first

2 or second Tribal Advisory Committee, and it was one

3 that was fairly successful. And then, participation

4 by tribes who don't have actual representation on

5 the Tribal Advisory Committee. How would we build

6 that component in? And then, what product would be

7 developed by the Travel Advisory Committee? So,

8 would it be another draft rule? Would it be policy

9 guidance? What would we be looking for to come out

10 of the committee?

11 And then finally, how do we build in a

12 component, a consultation component? The commission

13 is aware that a Tribal Advisory Committee does not

14 substitute for Government to Government

15 consultation, as mandated by the Executive Order

16 13175. And so, how should the commission build in

17 that consultation component after the Tribal

18 Advisory Committee has completed their work? So,

19 those are the two groups that we are going to talk

20 about today, and I'll let the chairwoman take it

21 back over.

22 CHAIRWOMAN STEVENS: Thank you, Lael. One

23 thing I want to jump to right away, and I'm aware

24 that there are individuals who may have limited time

25 here today, is the advisory committee, the Tribal

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1 Advisory Committee. Even in the early onset of my

2 term in office a year ago, in the initial

3 consultations that I attended, I heard, and we've

4 all heard the tribes take on how advisory committees

5 happened over the previous, the prior eight years.

6 And that's very helpful information to have, so we

7 know what works and what doesn't work.

8 But the reason this is coming up today is we

9 are getting information from independent tribal

10 working group, proposals from tribes as alternative

11 standards under Executive Order 13175, and as we get

12 these alternative standards submitted to us, we have

13 to find a way to get input, but these are highly

14 technical, very detailed standards.

15 As you all know if you're in the industry,

16 internal controls are very specific to certain

17 areas. And doing a group meeting like this is, it

18 can be done; it's just going to take forever. So as

19 we've gone through this year, we've heard more

20 requests for another Tribal Advisory Committee

21 that's different than what we've seen in the prior

22 eight years.

23 I had the good fortune of working for the

24 Department of Interior for a year, working on one of

25 their Tribal Advisory Committees, setting them up

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1 and getting tribal inclusion on that committee. And

2 I've said this before. I'm a big fan of

3 facilitators.

4 One of the things that can happen on advisory

5 committees as you all know who have sat on them,

6 they can come to a grinding halt with one obstinate

7 person digging their heels in and not wanting to

8 move. If you've got an independent group and nobody

9 is in charge, it can be a little havoc making.

10 However, we also heard from tribes that

11 previous committees facilitated by NIGC staff was

12 not as flexible. Jess, behave. Strike one, Jess.

13 You've got two to go. Kidding. I'm just echoing

14 what I heard. So, there's two ends of that spectrum

15 of no control and too much control. And that's why

16 facilitators, I'm a big fan of them, because they'll

17 work with the group to set up ground rules on how

18 the group functions, how the group will come to

19 consensus when there is a log jam, keeping everybody

20 on time and on task and keeping order, doing a lot

21 of the, sort of, minutia, the work, the copying, the

22 transcribing, keeping everybody, herding the cats,

23 keeping everybody going the same direction. So, I'm

24 a big fan. That's my plug for facilitators, and we,

25 in all likelihood, are going to use a facilitator.

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1 The NIGC, who is part of the Department of the

2 Interior, has available to us great, wonderful

3 resources in one of the divisions called Cadr,

4 C-A-D-R, Collaborative Action and Dispute

5 Resolution. They work for all of the agencies in

6 Interior, which we are a part of. Did I tell you we

7 were a part of Interior? And that's a resource that

8 we should use. There's a number of options that

9 they can help us with. They're actually helping the

10 department with a number of these types of

11 committees, not just for the secretary, but for many

12 of the other bureaus that work with tribes. Very

13 cognizant of the tribal government to government

14 relationship with tribes that the federal government

15 has, Interior especially has.

16 So going down this path, we'll be working with

17 them, and it's also a way for us to reduce the

18 costs. We already pay Interior for lots of things

19 that they do for us, and this is just one of those

20 things that they can help us with. So the prospect

21 of having a facilitator, using the resources that we

22 have at hand, so that it is not as costly as

23 previous Tribal Advisory Committees were over the

24 previous eight years, because the NIGC took on all

25 of the burden. So there's that, that's why we're

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1 looking at it. We've got these alternative

2 standards. How do we address them? More

3 importantly, and this is where we would like to hear

4 from tribes, I mean generally, the consensus has

5 been, "Yes we'd like to do it again. We'd ike

6 another opportunity to weigh in, in a way that we

7 did not in the prior eight years." But as Lael

8 mentioned, there is a number of questions that we

9 are going to have to answer and need input on.

10 Who makes up the committee? How do we get

11 tribal input? I see the working group as a group of

12 experts that really are going to do the roll up

13 their sleeves and work on the documents. But then,

14 we're going to have to work in an element of

15 consultation where tribes have the opportunity to

16 weigh in and stay within time frames. Which again,

17 a facilitator is going to help us do.

18 So in listening to the vice chairwoman's

19 opening statement, there were representatives on the

20 independent Tribal Gaming Working Group that was

21 comprised of . . . mainly because these are class

22 II experts, tribal elected officials, gaming

23 regulators and operators, equipment manufacturers

24 and suppliers, gaming laboratories, tribal

25 organizations, gaming attorneys, and a broad

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1 spectrum of experts, as you know. You're going to

2 need that, whether you're talking about the cage or

3 surveillance or counting or machines. So, that will

4 be our challenge. We would like to hear how we

5 should have this comprised, what kinds of

6 qualification there should be, any thoughts on

7 nomination processes. We would want to get moving

8 with this as soon as we can in the next probably,

9 Lael is saying two weeks, I'm going to give myself a

10 cushion.

11 If I can do it faster that would be great. But

12 we've been thinking about it as we've been talking

13 to tribes as we've been on the road and, sort of,

14 compiling this information as we go. And any

15 thoughts on how your groups have worked previously,

16 how this particular group has worked, the

17 independent Tribal Gaming Working Group. I do want

18 to say that we are on, sort of, a tight timeline.

19 Our objective is to be finished with the majority of

20 this work, especially these very detailed MICS and

21 technical standards, in a year from now.

22 In federal time, that's pretty quick. So,

23 those are our thoughts initially, and we would like

24 to hear what you all have to say about Tribal

25 Advisory Committees.

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1 MS. BRYAN: Tracie, I would like to make a

2 comment in reference to that. I know, with the time

3 frame, that it's important that we move quickly. I

4 know, in the past, that there were letters sent out

5 to tribal leaders and nominations, and I know that

6 with the time frame that we're looking at, I'm not

7 sure how we can make that happen as quickly. But as

8 for a facilitator, I agree 100 percent that you do

9 need someone that can stay focused because just in

10 the Tribal Gaming Working Group efforts, it would

11 get to some point where we're just repeatedly going

12 over the same stuff and just not getting anywhere.

13 So if at some point, what is the consensus of the

14 group? We have to make a decision, so we can move

15 on, or we'll never finish this document.

16 So when you're given the timeframe, you do need

17 a facilitator that can keep on track, keep the

18 process moving as quickly as possible.

19 And as for who, formulating the TAC, those

20 individuals, I would say, that you would definitely

21 want those that have the expertise in that field,

22 whether it be class II, class III. I know it did

23 show class II and class III. So, if we're dealing

24 with class II, I think that the committee should be

25 comprised of those that have that knowledge that

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1 work strongly in class II, to have their input in

2 reference to that. But I do support a TAC and a

3 facilitator.

4 As for selection of who, that is a little hard

5 to decide. I know that there are some tribes that

6 are solely class II gaming, that's it. And there

7 are some tribes that derive of largely, they have

8 class III, but they do have a significant amount of

9 class II. So, it would be advantageous for it to

10 move much quicker, if you have the expertise in the

11 area that we're trying to promulgate some rules.

12 CHAIRWOMAN STEVENS: Thank you Stephanie.

13 I think one of the things we're clear that we want

14 to do is create an advisory committee that's diverse

15 and balanced. You bring up good points about class

16 II experts, or class III experts. We're looking at

17 regions because it is different from region to

18 region. Size of operations. What may be easily and

19 readily possible for a very large operation may be

20 cumbersome, burdensome for a very small operation.

21 So, we're looking for balance.

22 The other thing that I didn't mention, but you

23 have brought up is how do we bring in experts?

24 Because when we start getting into very technical

25 areas, how do we . . . not just a question of how

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1 do you get tribal consultation in once you have a

2 document formed, but how do you get expert advice.

3 And fortunately, in our initial conversations with

4 Cadr, they've done this so much they are confident

5 that the group can develop ways to bring in or

6 discuss with the experts at certain junctures of the

7 committee's work.

8 The other thing is, what areas will the

9 advisory committee cover? There's a number of

10 things that have been brought to our attention, and

11 you mentioned it in your opening statements. The

12 separation of II and III. There are controls that

13 are identical between II and II, but there's points

14 where they clearly diverge. They go different ways,

15 and I think we're going to have to address II and

16 III in the same group, so that we can say that's II

17 and that's III. And we have experts who can say

18 that's II and that's III, when we pull them apart,

19 or when those issues have to be mirrored.

20 Now, we've not made any determination on what

21 we're going to do with class III. Got plenty of

22 suggestions, we know that class III internal control

23 standards, how those are handled throughout Indian

24 country, it varies, and so we are getting a variety

25 of different approaches. But our thought here is

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1 that we're going to have to deal with that anyway,

2 regardless of what we do. Whether we issue guidance

3 or bulletins or a reg, it still needs to be done.

4 And can we walk and chew gum here? Can we talk

5 about more than just one issue, not just class II

6 MICS but III and the technical standards? So it

7 may, we may have to cover all of those issues with

8 the same advisory group, with built-in mechanisms to

9 bring in experts in those areas, that the group

10 would decide. And also consider too that the

11 current schedule that we have, we would probably

12 adjust it because we didn't anticipate a TAC, but

13 what we could do is adjust the schedule, peel away

14 what we're working on that's not MICS driven or

15 technical standard driven and get those on a

16 separate path. Separate but parallel path, and let

17 those go through as we're proceeding now, and then

18 have a separate parallel track of a Travel Advisory

19 Committee and whatever path and schedule that is

20 going to take.

21 So we may adjust that schedule that's posted

22 now, that we are working off of, and then reserve

23 some of those resources for the advisory committee.

24 So, those are just some thoughts that we have right

25 now. We're certainly open to any responses to what

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1 we've said today and what we've said in the past.

2 Yes, Jess.

3 MR. GREEN: My comments are in regard to

4 543 and 547. I have seen all the TACs, and there

5 were those that had one day conferences and those

6 that had two. My experience in working with

7 Stephanie's group, trying to put together the regs

8 that you just received is that a three day

9 conference is the most effective way to deal with

10 it. You start at 8:00 o'clock in the morning; you

11 go to 6:00 o'clock at night, and you only recruit

12 folks that are willing to work. It's really

13 tiresome on day three, but you make a lot of

14 progress. And two or three of those, you can go

15 through the document and address the differences

16 that are of concern.

17 You had class II and class II hybrid, as Lael

18 would call us, some of us that are not just class

19 II. People work on this, and industry people work

20 on this. The TACS in the past that have tried to do

21 class II regs have had failures because they were

22 composed largely of three quarters of class III

23 vendors that had no understanding of class II

24 issues. And I would certainly encourage you to shy

25 away. It's not that those people don't have

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1 expertise, but you will get the tribal part of the

2 TAC sending you letters saying we don't know how to

3 do this. They've done it before.

4 If you look in your file, you'll find them from

5 them. I think Stephanie may have even presented

6 them or had someone present them at Tulalip. Some

7 of those letters that say, "We don't know enough to

8 do this." As bad as I hate to admit it, I think the

9 TAC is valuable. I don't like the three strikes and

10 you're out, but I think there are ways. What I

11 really think is you just ought to select the people,

12 period. I mean, you should not solicit. You

13 should be in a position that your regional people

14 should know who has participated in this drafting,

15 and who is capable of helping you make this project

16 work.

17 The people on your TAC, I believe, should be

18 regulators, management people and elected tribal

19 leaders. And you should be cognizant of selecting

20 folks that have class II hybrid experience or class

21 II experience because those with hybrid experience

22 bring the class III concepts that you are concerned

23 that we not overlook. And if you select the right

24 folks, they will bring their expertise with them

25 that they want to present.

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1 I would suggest that you also, when you have

2 the conference, invite all others that want to

3 attend. In the past, we've even had folks excluded

4 from being in the room. And then we got to be in

5 room, and we couldn't talk. And then we got to be

6 in the room and we could talk at the end of the day

7 if we didn't get three strikes against us. Well, I

8 didn't get to talk on those days.

9 I think there is a huge benefit if you select

10 an elected leader to be a joint chair, and that the

11 tribal comments flow through the elected leader.

12 The NIGC, of course, sets up the agenda. The

13 elected leader sees the agenda coming and is able to

14 gather the comments that she believes need to be

15 heard from Indian country and flow through that

16 elected leader with suggestion that when we have

17 these issues that need experts, here are the ones

18 that I would like to have testify if we need any

19 testimony or explanation. I think that's a way for

20 you to deal with . . . the tribe deals with the

21 tribal side. I can bring my experts in and point

22 out that I don't think this is going to work for

23 these reasons.

24 We have, those of us that have worked on these

25 teams and even on the one that put together Hogen

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1 stuff, we have proven we can work very diligently

2 together if given an opportunity. And quite

3 frankly, I see this kind of conference taking two or

4 three days.

5 I would also like to back up and make a comment

6 about 518, self-regulation. Lael brought up that

7 she's not sure how much interest there is in self

8 regulation. Well, let me assure you all the hybrid

9 class II, class III locations in Oklahoma have a

10 real high degree of interest. And you ask yourself

11 why? I am exempt from your 2706(b) authorities. I

12 mean, it says you can't come poke around in my stuff

13 without asking. You don't get to demand an ISN.

14 That's what that exemption says. We're capable of

15 doing it ourselves. There are a lot of tribes that

16 are very interested.

17 Originally, the only NIGC fees were charged to

18 class II. The original concept of Congress was that

19 if you're capable of running it yourself, as tribes

20 will get to be, then you pay one quarter of what

21 everybody else does, period. Now you ask, "Well

22 what's the incentive?" That would be a tremendous

23 incentive for class II.

24 We have no problems, those of us that are

25 seeking class II regulation, with you requiring an

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1 enormous amount of information at the onset. We

2 think that is extremely wise. Those of us that have

3 been doing this for years have seen folks sue

4 federal agencies that's file was not full, and the

5 tribes have sovereign immunity, but third parties

6 would initiate suits about your decision making.

7 And so, we believe that you need to have a really

8 complete, in depth application form. I mean you

9 need to get a lot of information, enough so that you

10 won't have any problem protecting yourself if you

11 make a decision that this tribe is self regulated.

12 I think that's essential for all of us for you to be

13 able to defend the decision you make.

14 I believe we also need a well-defined set of

15 rules for when you challenge that self-regulation

16 concept. You were challenged yesterday about the

17 Mississippi Choctaws that you have no regulatory

18 authority over because they are self-regulating by

19 an act of Congress. Other tribes are looking at

20 that potential because we don't see any availability

21 of potential under these current regs, and the

22 current regs continue to require reporting which is

23 not contemplated in IGRA.

24 And my suggestion is that you keep that in

25 mind. If you've got a good set of regs for when you

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1 think somebody has fallen out of the program, and

2 you've got a good set of requirements for us to get

3 in that self-regulating program, and you've got some

4 real exemptions from fees when you're in it; you

5 will have a number of the hybrid tribes move into

6 that program quickly.

7 You will have the single class II tribes, I

8 think, that are capable and doing a good job, move

9 into that program quickly. You will find that

10 reduces the amount of money you have to expend

11 because you're no longer sending your agents out to

12 check and do the inspections of contracts and the

13 like, because the tribes are self-regulating and

14 exempt from your 2706(b)requirements.

15 And as bad as I hate, I would recommend a TAC

16 for this, a specialized TAC. I think you could have

17 a one day conference about the issue. You can then

18 determine who has a high degree of interest. You

19 could pull a TAC together and have a couple of days

20 conferences with your staff, and you would have an

21 idea of what changes tribes think ought to be made,

22 and what changes you think you are capable of

23 making. I think this is very quick, very efficient,

24 and actually could be very easily done if it is

25 focused. Thank you.

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1 CHAIRWOMAN STEVENS: Thank you Jess. I

2 probably shouldn't let you walk away from the

3 microphone because I wanted to make that I

4 understand you clearly. You said not to solicit

5 nominations for the TAC. Did I hear you correctly?

6 MR. GREEN: Yes. My experience with

7 having you solicit nominations is that you all tell

8 the tribes who you want them to nominate. They get

9 nominated, and the other ones just get left by the

10 wayside, anyway. Just go ahead and pick them.

11 CHAIRWOMAN STEVENS: Okay. Everybody

12 heard that on the record.

13 MR. GREEN: Y'all know who has expertise.

14 You've consulted, unlike the previous

15 administrations, you've been all over the United

16 States. You've heard people speak up about the

17 issues that they were interested in. You know the

18 tribes that will send expertise to answer tough

19 questions when, well, how do we actually do this?

20 Because unfortunately, your staff lacks a lot

21 of practical experience. The lawyers like me, have

22 none. You've got accounting questions, or you've

23 got operational questions, you need somebody from

24 accounting or operation that does it every day to

25 give you the appropriate answer. Otherwise, we're

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1 going to make regs that don't work.

2 I mean, I'm an old man, that's the one thing

3 I've learned. If you don't get the people doing the

4 job to look at what you're doing, you're going to

5 create a monster. And we don't need to make things

6 worse; we need to make them better.

7 CHAIRWOMAN STEVENS: Well, I'm with you on

8 creating a monster because it can get very unwieldy,

9 very quickly. And the way, in really thinking about

10 how we are going to do this, not everybody is going

11 to like all the decisions that we make. And that's

12 going to include selection of TAC members. Somebody

13 is going to be mad at us, whether we solicit or

14 whether we don't. And so we've just, I think,

15 accepted that. Whoever we pick and whatever process

16 we go through, someone will be unhappy. But I'm not

17 here to make everybody happy. I'm here to make sure

18 that we get the best advice, we get the best product

19 out of an advisory committee that best regulates and

20 protects the industry. So, I appreciate you

21 bringing that up. It's something that we'll have to

22 consider on the, do we just pick or do we go through

23 a call, basically, of suggested names.

24 MR. GREEN: The suggestion I have to deal

25 with that is you also invite all other interested

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1 people.

2 CHAIRWOMAN STEVENS: And that's next on my

3 list. And that would have to be something that, I

4 think, once we get an advisory committee together,

5 the rules of the road that any committee should set

6 forth before they start doing any work: ground rules

7 for the operation of the advisory committee, how

8 things will be decided and how they are going to

9 bring in experts and how are you going to bring in

10 everybody else, because that may also get unwieldy.

11 But there may certainly be a way to bring anybody

12 who wants to attend into the meeting. As long as

13 there are some ground rules, not so strict that,

14 "Hey, you can only comment at the end of the day,

15 after we're 16 subjects away from what you wanted to

16 talk about." But I'm sure that . . . I'm deferring

17 some of these ground rule type of decisions to the

18 committee, so they can decide how they want to

19 proceed with the facilitator at hand, who may have

20 experience to say what works and what doesn't work,

21 so we don't go down on a path that we discover later

22 is not going to help us.

23 MR. GREEN: I would suggest your invitees

24 to be in two tiers: the ones that come with a letter

25 of tribal authority that say they speak on behalf of

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1 tribal leadership and are authorized to directly

2 speak with the commission about these issues and

3 those that simply come. There is a distinct

4 difference between a bunch of lawyers showing up and

5 wanting to have their way6 CHAIRWOMAN STEVENS: And billing their

7 client?

8 MR. GREEN: And billing their clients.

9 And having tribal leaders send people that have

10 genuine interest, that have authority from tribal

11 government to make a communication.

12 CHAIRWOMAN STEVENS: Great suggestion.

13 MR. GREEN: And if you segregate those two

14 tiers, those of us that are professionals shouldn't

15 speak unless we are called on, and I thoroughly

16 agree with that. Again, if you've got a tribal

17 co-chair, they will sift through who they want to

18 speak and when.

19 I suppose the chairs would probably visit with

20 each other about, as you point out, when the

21 appropriate time on the program that's set by the

22 NIGC would be for those professionals to make

23 comments.

24 The tribal leaders that are sent, that are not

25 invited, but have letters, I think should have the

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1 ability to stand up and ask to be heard on

2 particular subjects on a different tier than the

3 rest of the world.

4 If I am carrying a letter that says I speak on

5 behalf of my tribe, that's a big thing. And you're

6 not going to get but four or five of those. Those

7 people ought to be considered, and that's a way for

8 you to deal with the people that were not selected

9 that have a high degree of interest.

10 CHAIRWOMAN STEVENS: Or people who just

11 want to sit and listen, the sit and listeners. And

12 just also to be clear, as we proceed in this

13 process, and we've said this before. I'm not going

14 to tell tribes who can speak for them. I'm not

15 going to limit this to only tribal leaders or only

16 auditors can be on this or only I say who you can

17 pick from your tribe.

18 Although, we do want to make sure, and we had

19 this issue at Interior, that who does come and speak

20 for the tribe is authorized by the governing body of

21 the tribe to speak for that tribe, and that we don't

22 have competing - not that this would this would ever

23 happen - but competing opinions from one tribe or

24 multiple opinions from one tribe. But it does

25 create some chaos, but we do really support the

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1 concept of having in writing from the governing

2 body, yes, I speak for my tribe. Whoever they pick,

3 if they are going to be in the room. And we have

4 talked about this concentrated conference workshop

5 idea, where it is not just one day here, one day

6 there, we can go on forever that way.

7 That's one of the suggestions that was given to

8 us by Cadr that seemed to work the best. They had

9 hands on experience doing No Child Left Behind,

10 doing the . . . there are some other groups that

11 did the enactment of the Healthcare Improvement

12 Plan. And that's how they did it, which was you

13 find a location that has as few distractions as

14 possible, maybe a little remote, so people can't get

15 away. Committed people, who will be there on time.

16 You're not going to find them out, or maybe their

17 schedule doesn't permit them to be there. I mean,

18 we have to find people who can commit fully to the

19 length of time this is going to take, the long, long

20 days that it's going to take and also time away from

21 their tribe. Because everybody has another job, and

22 then we also, aside from our jobs, actually have a

23 personal life and families and people who count on

24 us. But who are willing to make the sacrifice, make

25 the commitment and see it all the way through.

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1 That's one of the things that we've heard, and I

2 observed with previous advisory committees.

3 People were dropping like flies, and we couldn't get

4 this consistency. But we would need to look at

5 people who can make that sacrifice, make that

6 commitment. We thought about doing these

7 concentrated workshops. I mean, we all go to

8 conferences that last a week, right? And the work

9 is not necessarily that intensive, but this would

10 have to be very concentrated work, and we'd need

11 commitment to do that. So, I appreciate your

12 comments, Jess. I appreciate your suggestions.

13 Stephanie.

14 MS. BRYAN: Yes, I know through the

15 process of the Tribal Gaming Working Group, we did

16 at some point split off into subcommittees, in order

17 for us to make it happen as quickly. We had those

18 that had that expertise in IT working on this

19 document, then they bring it back, and we all

20 discuss. And I know, especially with Poarch Creek,

21 I can speak on behalf of Poarch Creek, if we were in

22 the Tribal Gaming Working Group and we were

23 discussing IT issues, technology, I'm clueless to

24 some point. I can read and interpret, but as far

25 as technology, I am not the wiz. That's why I have

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1 an IT director. So, I would always have them

2 participate and have valuable input because they

3 deal with it on a daily basis. So once again, I

4 strongly recommend that it is those individuals that

5 have that expertise, or else we never know what type

6 of regulations that we're going to try to put out

7 there, if they do not deal with this on a daily

8 basis.

9 CHAIRWOMAN STEVENS: Okay. The request is

10 if you have a cell phone, move it away from the

11 microphones, they are getting some feedback. That

12 includes the commissioners. We're moving all of our

13 phones.

14 The other thing before we break is some

15 thoughts. We talked about having class II, class

16 III and technical standards, how to deal with

17 experts, bringing those in, authorization from

18 tribes that they speak for their tribe, the

19 concentrated schedule, the commitment of people, how

20 to choose the committee.

21 One of the things we're thinking about doing,

22 and it's been proposed to us, and we know that

23 previous commissions and advisory committees have

24 done this, is taking these alternative standards

25 that we've received from a tribe, under the

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1 Executive Order 13175, and publishing them so that

2 tribes can comment while we develop our TAC and put

3 the structure together. And that when the Tribal

4 Advisory gets together in their inaugural meeting,

5 not only are they setting ground rules, but the work

6 has started for them.

7 Here's the document. Here are the comments

8 from the tribes after we've published it. Find the

9 differences and work on them. And so, we're looking

10 at, like, narrowing the scope and having that set up

11 before the committee has to start its work, rather

12 than starting from scratch. Not just this document

13 and comments from tribes, but NIGC's observations on

14 the comparison of the current MICS and what has been

15 proposed. I'd like to hear thoughts on that. We

16 figured that might be a way to garner tribal input,

17 set the stage for the work that the TAC would do and

18 save us all some time and some resources. And also,

19 give tribes an opportunity to weigh in.

20 MS. BRYAN: I definitely agree with that

21 process, Chairwoman Stevens, because if you do have

22 a document and you do get those comments, and you

23 know where there is going to be some controversial

24 issues that may not work for different tribes. And

25 then the TAC group can work from that, from those

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1 comments, and try to provide a document that will

2 benefit Indian country as a whole.

3 CHAIRWOMAN STEVENS: Thank you. Elliot?

4 MR. MILHOLIN: Just a quick question for

5 clarification. When you say, "Publication" do you

6 mean publication as a proposed rule in the Federal

7 Register under the APA, or do you mean publication

8 of discussion draft in the context of tribal

9 government to government consultation in the

10 pre-publication stage?

11 CHAIRWOMAN STEVENS: Actually, we're

12 discussing how we can do this, and we've been

13 talking to - is it the GPO? - the Printing Office,

14 about how we can do this because other agencies do

15 that. It may not be a proposed rule from us, but it

16 will probably be in the proposed section. They have

17 buckets of where you can publish things based on

18 what it is. So, it's not unheard of to put it into

19 the register, but it would not be a proposed rule

20 from us is what we're talking about. We're trying

21 to sort that out, so that it's clear what we're

22 doing. Certainly it would be a discussion draft,

23 but it wouldn't be a proposed rule for us.

24 As I said, other agencies apparently have done

25 this, where stakeholders have offered alternatives

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1 and that they're not necessarily the agency's

2 document, but you have to find some mechanism to get

3 this out. So, it would not be our proposed rule.

4 We wouldn't be triggering a proposed, the rule

5 making process by publishing this. So, we're still

6 working out the mechanism to publish. Yes, Liz.

7 MS. HOMER: Thank you Madam Chair,

8 Elizabeth Homer. A couple of things on the

9 consultation process. And at the risk like sounding

10 like I'm arguing with my colleague, Mr. Green, I've

11 been doing, I haven't always been a lawyer in

12 private practice. I've also served in government,

13 and I participated many, many, many consultation

14 efforts within the Department of the Interior and

15 other agencies.

16 And I think that number one, the way to make

17 consultation truly work is to establish a level of

18 trust. When everyone believes in the process and

19 trusts that the process is open and candid, and

20 everyone is acting in good faith, you have good

21 processes. People enjoy these joint collaborative

22 efforts if they are done positively.

23 I think that it's also important for the agency

24 . . . let me put on my fed hat. From the agency's

25 perspective, is I think that you need to give

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1 everybody an opportunity to volunteer to serve on

2 these things. And I think that if you don't, then

3 you get accused of cherry picking your buddies and

4 the go along to get along people that are just going

5 to, kind of, do the agency's bidding. And it

6 sometimes can get off on a bad start just because

7 there may be a suspicion out there. And the other

8 thing is that it is a big commitment, and your

9 letter of solicitation for input can make it very

10 clear that it is a big commitment of time. So,

11 you've got those kinds of issues. I think it's

12 very, very wise to use the third-party facilitator.

13 I think that right now the attitude in Indian

14 country toward the NIGC is very positive and very

15 hopeful. If it weren't, I would say you probably

16 wouldn't want to use an Interior department entity

17 to facilitate your meeting, that you would find

18 somebody completely independent. But I think that

19 because there is a sense throughout Indian country

20 that the NIGC is acting in good faith, that the

21 center is probably, or is an acceptable choice.

22 I also think that it's going to be really hard

23 to balance the group with class II and class III. I

24 think you're right, that there many things that are

25 identical: the way you handle accounting, the way

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1 you do a drop. Well, there actually may be some

2 differences in how you do a drop with class II and

3 how you do it with class III.

4 Bur most of your accounting kinds of things,

5 and those are going to be very similar. But there

6 are going to be really specific differences. And I

7 think that you want to make sure that if you're

8 going to try to do this together, both sections

9 together, that you do it in a way that there is

10 clearly a balance of expertise on your committee.

11 I've sat through, I guess years of, eight years

12 of going to almost all the NIGC consultations on the

13 MICS, and I had clients that were members of those

14 advisory committees, and it was a really terrible

15 process. There weren't ground rules. There wasn't

16 a protocol. There wasn't a consensus mechanism.

17 And consensus is very important. That doesn't mean

18 we have to be in complete agreement, but we can get

19 to someplace that we can all live with. All of

20 those kinds of things were not done in those

21 processes. They were not transparent. They started

22 out trying to close the doors on everyone, which, of

23 course increased the suspicion and established an

24 environment of distrust. And in some of them there

25 was not a commission level person there. So, it was

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1 not really a consultative process on a government to

2 government basis because the decision-makers weren't

3 at the table. It was being driven by the staff, and

4 I think that, that was a big mistake. And that was

5 something that certainly, during my tenure. You

6 know we all go back to our Halcyon days, right?

7 During my tenure, we made a special effort not to do

8 that. That there would be a commissioner, a

9 decision maker, present at all times during these

10 meetings, so that the agency was committed as well

11 as the participants on the working group.

12 And finally, the hardest issue and the one that

13 everyone has struggled with, going back 20 years of

14 doing negotiated rulemaking activities or other

15 collaborative processes in developing rules and

16 regulations and programs and what have you, is what

17 do you to start with?

18 We always tried, based on my experience, to not

19 have a purely federal document to start with.

20 Because that automatically, at least from the tribal

21 perspective, they view that as the agency has

22 already committed to this concept and this idea.

23 And they've already done all this work, so they're

24 not going to change, and we set up an adversarial

25 process.

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1 So for example, when I was the chair or the

2 co-chair of the committee that did the environment

3 public health and safety regulations, number one.

4 The first effort, I didn't come to the table with a

5 draft. We came to the table with a concept. Now

6 what we've done here with the TGWG is basically,

7 kind of, fixes this problem. Because you are not

8 necessarily, if you started with the TGWG's

9 document, it's not a federal document. Now we would

10 presume that you all would want to take a look at

11 it, but I think the most important thing about it,

12 whatever the specifics in the documents are, is the

13 concept. And is there buy-in across Indian country

14 of this concept, which starts out with this idea

15 that there are federal standards. These are the

16 standards; this is why we are doing these things.

17 Then you have tribal regulations. The tribal

18 regulations put more flesh on the federal standards,

19 so at the TGRA level. And then ultimately, these

20 documents, these standards are going to be

21 implemented as internal control policies and

22 procedures at the operational level.

23 So, you have these three things, each one

24 getting more specific. And if everyone buys into

25 that idea, you've got a nice place to start with

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1 this working group document. And, kind of, to the

2 last point I wanted to make, you were saying that

3 you were trying to figure out what would be the best

4 way to put this out for comment to Indian country.

5 I'm hopeful that we could agree or you could be

6 persuaded that what we've done here today does that.

7 Because you are publishing all of the things that

8 have been submitted, you are publishing the records

9 of these proceedings, and these documents have been

10 submitted as a part of this effort, so they can be

11 published on the agency's website and made available

12 to all of Indian country, and we can immediately

13 start that feedback process.

14 Because you know the committee, now we're not

15 saying that this is the end-all and be-all, but we

16 think we've done pretty good job. We've worked

17 really, really hard, but we also want other feedback

18 and input. Not everybody can spend weeks and months

19 and hours that this group did, and we want that.

20 So, we think that we found a way for the agency to

21 do that. It's not your product. You're not

22 endorsing it. You haven't even had a chance to look

23 at it yet. But we can get it out into the world and

24 get that process started.

25 CHAIRWOMAN STEVENS: Thank you Liz. So,

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1 you're suggesting skip the Federal Register and just

2 post it. Our internal discussions have been, there

3 are some folks who don't engage unless we put

4 something in the Federal Register. I mean we're

5 posting all sorts of stuff up on the web site. When

6 we get the most feedback is when we trigger a

7 Federal Register Notice. That's why we're thinking

8 about it. It goes right to Elliot's point. That

9 how are you going to do this? And correct me if I'm

10 wrong, but it seems like when Federal Register

11 stuff, when we print something in the Federal

12 Register, responses pour in.

13 We have, sort of, in some areas when we do the

14 discussion drafts, we post these on the website. We

15 get feedback, but it increases substantially when we

16 do a Federal Register notice, however that notice

17 appears. So, that's why we're thinking about it.

18 We can do both too. In terms of the Federal

19 Register, we want to be very careful about how we

20 present it.

21 MS. HOMER: Yeah, I think that's

22 absolutely correct. How you characterize it is

23 going to be key. But I would talk to the Federal

24 Register people. They're full of good ideas on

25 alternative ways of doing what it is you want to do

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1 including just a cross-referenced to your webpage.

2 CHAIRWOMAN STEVENS: Yeah, we're talking

3 to them now about how we can do this and exactly

4 what this is. It's not new, and you're right. They

5 have been very helpful. I'm looking at Ernie

6 because I'm not sure if you were waiting to make a

7 statement, but we're past our break time. Would you

8 mind if we took a break, or would you like to make

9 your statement?

10 MR. STEVENS: I am here, eyes and ears,

11 and I'm just here to support this working group that

12 put this document together. I'm here to be

13 supportive and respectful of this process of

14 communicating with the National Indian Gaming

15 Commission.

16 I think yesterday's hearing reflects how much

17 work we have to do and how hard our job is. And we

18 have a lot of people that understand where we come

19 from, a lot of people understand what we have to do,

20 and some people just don't understand. And no

21 matter how hard we work at this, they may not ever.

22 But I think for the most part the majority of

23 America understands what we're doing and why we make

24 these kinds of documents such a priority. What this

25 kind of work is such a priority for Indian country.

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1 So, I think that's really all I had. I just wanted

2 to be here for a little while. I'm trying to get

3 back. I have the benefit of being able to go home

4 just about every weekend. And again, to the extent,

5 to these lawyer lobbyists that helped us in this

6 working group, the tribal leaders and to yourselves,

7 the work you have to do.

8 I know that we are not always the most

9 agreeable and not always the easiest to work with.

10 But the professionalism and work commitment

11 expressed on behalf of the NIGC, I think is

12 commendable, and I wanted you folks to know that I

13 appreciate it. So hopefully, when me or my team,

14 I've only got one team member here today; he'll stay

15 with you. But when we are difficult or not

16 understanding some of the process, even though you

17 know we know the system. You know that we respect

18 you, and we appreciate what you do. So, to that

19 extent the working group, NIGC, we want to continue

20 to do the best we can do for the future of Indian

21 country. And I know that everybody knows that's our

22 process, but I wanted you to know, Chairwoman

23 Stevens, and your colleagues. I want you to know

24 that we respect you. We look forward to working

25 with you, and we want to do a good job because

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1 everybody here, no matter what our role, our

2 position, our capacity, we know that it is for the

3 future of our children and protecting the integrity

4 of Indian country.

5 I think that's why we're so successful at what

6 we do. It's not about your team or my team. It's

7 about our communities. And I think that's what I

8 tried to express yesterday in the hearing, and I

9 hope that, that's the statement. The press picks up

10 something different, but the statement is true, and

11 I said this the last time we testified, maybe about

12 a year ago. That our community, they're the ones

13 that judge us. They are the ones that look at us,

14 and they are the ones that are striving for us to be

15 successful at what we do.

16 So I'll conclude with this, Chairwoman Stevens.

17 I'm going to go home, and every time I get home, I

18 eat breakfast Saturday and Sunday morning with one

19 of my youngest of 10 grandkids, one of my daughters

20 or sons, always my wife of 32 years, but my grandma

21 is 101 years old. And you know she lived through

22 the depression era. She got taken away from her

23 parents. The guy that raised her was a Civil War

24 veteran. So, I won't give you the veteran spiel,

25 because everybody knows that people of Indian

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1 country are soldiers. But this guy used to ride by

2 the boarding school, and my grandma was not even

3 kindergarten age, to throw candy. But he would

4 always look straight ahead because the government

5 said, "You can't even look at your kids." But this

6 Civil War veteran, his brother is buried somewhere

7 in the South because he gave his life for this

8 country. So, we know that our responsibility

9 started with my grandpa. His name is David

10 Chrisshaw (phonetic), and to my grandmother, 101

11 years old, she lives on her own. She lives

12 independently in a facility built with gaming

13 dollars, but she never asked for anything. Her

14 house that she moved out of, she still paid taxes

15 on. And that's the bottom line. My little

16 grandbaby to my 101 year old grandmother, that's who

17 we're working for. And I wanted you to know, again,

18 if we are a little gruff sometimes, you can blame it

19 on Richard. But we've got a job to do, and we're

20 going to do it, and we're going to do the best. We

21 have a great working group, did a great task. But

22 we respect you. We appreciate you, and we want to

23 do the best for Indian country for my grandma, my

24 little grandbaby and everybody in between.

25 CHAIRWOMAN STEVENS: Thank you, Chairman

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1 Stevens. And one, I want to say thank you for

2 coming to the consultation today and representing

3 your member tribes. But two, I agree. We're not

4 always going to agree, and like I said, we're not

5 here to make everybody happy. We are going to come

6 across that, but that doesn't mean that we shouldn't

7 be respectful of one another. And just because we

8 disagree doesn't mean we should be disagreeable.

9 I am a proud Snohomish woman, and I was brought

10 up in a good way that even in the face of . . . and

11 I say that for all three of us, that we can disagree

12 and still move on with what we need to do. And then

13 finally, enjoy your time with your grandmother.

14 Take all of her wisdom and carry it with you and

15 pass it on to your grandbabies. So with that, let's

16 take a break. We've got about 15 or 20 minutes.

17 (WHEREUPON, A break was taken.)

18 CHAIRWOMAN STEVENS: Okay, we're going to

19 go ahead and get started again. I appreciate

20 everybody waiting. I do want to turn over the

21 meeting to Vice chairwoman Steffani Cochran and

22 Commissioner Dan Little. I have other engagements

23 right now that I need to go attend. So, I

24 appreciate everyone's attendance today, look forward

25 to your comments throughout the rest of the morning

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1 and afternoon. And for all of those who came in

2 from other areas, safe travels, thank you.

3 MR. LITTLE: All right, as we continue,

4 was there any other comments on the discussion

5 before we broke on the Tribal Advisory Committee?

6 Dan.

7 MR. MCGHE: This is Daniel McGhe, with

8 Poarch Creek. I was just talking with someone

9 outside, and it may be something to consider when

10 you do decide to do your advisory committee, is to

11 predetermine the dates and set them out for however

12 long you think it's going to take, because one of

13 the big obstacles, even with the TGWG and other

14 working groups, is finding a time when everybody can

15 be there to meet, and it would prolong the effort.

16 Whereas in the beginning, if someone knows they

17 are being considered for this committee and the

18 dates are there before them, they can commit to say,

19 "Okay, yes I can do this, and I can do it on these

20 dates," and put it on their calendar. So they don't

21 schedule things, and it always be open. Something

22 to consider.

23 COMMISSIONER LITTLE: That, I

24 wholeheartedly agree with you. That's a very good

25 comment, and I think something we have discussed

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1 before. I think, especially this commission, a lot

2 of us have pointed out that when we came on, we took

3 on these responsibilities. We knew that we were

4 here for a set amount of time, and we really wanted

5 to get something accomplished, and we are bound by,

6 basically, dates when our terms expire. We've got a

7 Presidential election coming up next year. So, we

8 understand that we have a small window to complete

9 this business here. I think our goal is August of

10 next year to have final rules completed. And this

11 Tribal Advisory Committee, we know, I think the last

12 one continued on for a couple of years. We don't

13 have that much time. We need to probably get

14 something done by early spring next year. So, very

15 good point, very well taken, and we'll definitely

16 consider that. So, thank you.

17 Was there any other comments on the discussion

18 of potentially, a Tribal Advisory Committee?

19 Before we move on, and I know there are some

20 tribal leaders at the table. I definitely want to,

21 if there is a particular issue you would like to

22 address now versus me just continuing on with the

23 agenda? We'll probably start with the self

24 regulation, regulation. I would entertain if

25 anybody wants to bring up an issue that is important

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1 to them right now? Yes, sir.

2 MR. CARROLL: Yes, Bob Carroll, with the

3 Chitimacha Tribe. Not the self regulation, but in

4 regard to the sole proprietary interest. That is an

5 area we would request clarification, do a definition

6 on that. We've had numerous interactions with

7 lenders. We are building a hotel now. And the

8 Wells Fargo issue came up, in terms of the other

9 aspects of the sole proprietary interest. So, I

10 know there was an offer whether people would want a

11 definition. We would. We would request a

12 clarification on that particular point.

13 And also our chairman had to leave. I just

14 wanted to express on behalf of the tribe the

15 appreciation to the commission for having the

16 consultations and allowing us to participate to the

17 level that we all are. We think it is very helpful.

18 The Tribal Advisory Committee is also a good step.

19 We have minimal class II in our facility now.

20 We're grossly disproportionate with regard to class

21 III. But just in terms of the reaching out, and we

22 know the timetable is getting tight for a lot of

23 these things. We'll be as aggressive as we can

24 getting comments back in regard to what Lael and

25 Steffani had provided us yesterday. They did a good

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1 job, so we appreciate the opportunity. Thank you.

2 COMMISSIONER LITTLE: Great, thank you. I

3 guess we can continue on the sole proprietary

4 interest discussion. Is there any other comments on

5 that? Is everybody, I guess, I could maybe, kind

6 of, throw out some, is there a general feeling that

7 this needs to be defined? Obviously, it needs to be

8 clarified, and if so, who should define it? Can't

9 hear you. Oh, deadline for comments. No, we don't

10 have one yet.

11 MR. MCGHE: I know Poarch Creek had some

12 concern, but they plan on writing something, putting

13 it in writing.

14 COMMISSIONER LITTLE: Okay. I hate to

15 move on. Jess, you are more than welcome to take a

16 seat at the table if you would like, if that would

17 be easier. I just want to get you to walk all the

18 way across the room there.

19 MS. COCHRAN: Turn on your microphone.

20 MR. GREEN: Thank you for allowing me to

21 sit down. I think the chair was just trying to

22 torture me by keeping me standing up.

23 I have said this before, but I want to be sure

24 that everybody understands. There is a real danger

25 about sole proprietary interest. And the danger

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1 doesn't lie in the definition. It lies in the

2 change of facts.

3 If the commission is ever put in a position to

4 opine whether this contract has a sole proprietary

5 interest, the contract may not be, today. That does

6 not mean that if economic conditions change that,

7 that contract or that loan or that lending situation

8 doesn't have the tribe on the treadmill where

9 they're just paying interest.

10 The critical issue when you start considering

11 these sort of ownership interests is that tribes

12 can't declare Chapter 11 bankruptcy. We don't have

13 any way, like Donald Trump, to write down the debt,

14 except by agreement. And this is one of the

15 provisions that helps us do that. The more

16 definition you put into it, you need to be cognizant

17 that, that's one of the uses of this provision.

18 And the sole proprietary interest can be

19 violated, not just by a single contract, but by a

20 careless manager that gives lots of 3 percent

21 contracts. If the manager waives sovereign immunity

22 of the facility and has the authority and gives too

23 many percentage contracts that come off the gross,

24 again, tribes are in a position that they don't make

25 any money. They've waived sovereign immunity. All

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1 the money is going someplace else.

2 The benefits of ownership no longer reside with

3 the tribe. And it may not be any single entity. So

4 when you start trying to consider what you need to

5 say about this, this is a very, very complex

6 situation. I know folks like Wells Fargo would like

7 for you to be able to review and say, "No, this is

8 not sole proprietary interest. No, this is not a

9 management contract." But while it may not be a

10 management contract or sole proprietary interest

11 today, if someone builds between you and the

12 population base and puts up a larger casino, it

13 might be tomorrow. And the problem that we do not

14 have a Chapter 11 ability, when the creditor

15 situation overwhelms us, has to be considered. This

16 is one of the mechanisms we use to hold that off

17 with, as well as, this becomes a management

18 contract.

19 Now long before the Wells Fargo decision, I

20 told lenders and bondholders that presented

21 obligations to me, I said, "This won't work." And

22 they said, "Why?" And I said, "Because when you

23 retain the right to come in and absorb and

24 administer the management or to make management

25 decisions, it becomes a management contract then.

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1 And then you've got all these requirements to go

2 through the NIGC." "Well we'll go get an opinion

3 now that says it's not."

4 I said, "That might work, but when the

5 situation occurs, and you start doing whatever it is

6 you intend to do, the actions may become a

7 management contract." Because again, life is also

8 about not only how the paper is written, but how the

9 work is actually accomplished.

10 I pay very close attention. There is a Sac and

11 Fox decision out of their Supreme Court in Oklahoma

12 recently, that has 15 pages or recitals of pleadings

13 about how they were in tribal court, they were in

14 federal court, they were back in tribal court. And

15 then the Tribal Supreme Court gives it's analysis.

16 And it's basic analysis is the totality of these

17 three agreements is a management contract, and

18 here's why. And the difference is that they cited

19 the little pieces that they attached could have been

20 left out of the contract, so that when you tie them

21 together, they might not have been a management

22 contract. But the way they were trying to use them

23 created that. And I think it was a very good

24 decision and a sign post for a lot of us that work

25 in this area.

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1 A combination of agreements, the combination of

2 unforeseen circumstances, the development of new

3 agreements with third parties, all have an impact on

4 what that sole proprietary interest is. And I'm not

5 sure that I'm smart enough to give you any

6 assistance whatsoever in writing regs. All I see is

7 I do not have the ability to foresee all of the

8 circumstances. I can only look at the circumstance

9 that occurs today. And I would caution you, if you

10 write any opinions, that you limit it to the

11 circumstances today. And if you write regs, that

12 you be very, very careful. Because changing

13 economic conditions, changing facts and management

14 decisions that occur can have a drastic effect on

15 what the sole proprietary interest is. Thank you.

16 COMMISSIONER LITTLE: Thank you for that

17 comment. Is there any other comments on whether or

18 not the sole proprietor interest should be defined

19 through a regulation? Steffani, you have something?

20 MS. COCHRAN: Jess, you have made the same

21 or similar statements, I know, consistently

22 throughout the consultation process. And in your

23 opinion, is there any inherent value to guidance

24 though, to help? Because what we are hearing from

25 the tribes outside of . . . you're absolutely

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1 right. It measures a point in time. But as tribes

2 prepare agreements, enter into agreements, compile

3 their documents, some were saying this helps us to

4 understand at least the parameters of those

5 negotiations at a period of time in the negotiation.

6 Is there any value to guidance documents where

7 we lay out what we'll do, the process, those types

8 of factors?

9 MR. GREEN: I think you have hit on

10 something that might be of value, that might solve

11 some of the tribal interests.

12 Guidance documents, it says you're only going

13 to look at the situation as it is actually in

14 practice right now. That the operations of the

15 documents, the way they're actually being used

16 together, could affect your decision later on. And

17 that the economic circumstances could change your

18 opinion. And that certainly, you don't need to have

19 in your lending documents that the lender can come

20 in and operate the facility.

21 I think these are things, that these kind of

22 guidance statements would be helpful. Might well

23 deal with some of the problems that you are having

24 with lenders. But the problem with lenders is they

25 don't get the fact that economic conditions can put

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1 them in a position where we are on a treadmill. And

2 if that ever happens, we don't have a sole

3 proprietary interest anymore. If all I'm doing is

4 paying interest and I can't foresee ever stopping,

5 and the tribe is not getting any money, we've got to

6 make a change. Because if I don't, the tribe will

7 just make it illegal. I mean, there is no basis for

8 us to continue.

9 And of course, a lot of these contracts try to

10 interfere with the legislative authority of the

11 tribe, saying the tribe will not make any act that

12 does this or this or this. Well, if they look at

13 the history of litigation, one legislature can't

14 bind the next one. Last year's general counsel can

15 certainly be different from this year's. Or this

16 year's tribal legislature, they will approach things

17 entirely differently, in my experience. I've been

18 working all over Indian country for 35 years and

19 that's the other thing I know, is that tomorrow's

20 legislative group will change, and they will have a

21 different approach.

22 And so yes, I think your concept of guidance is

23 very valuable.

24 MS. COCHRAN: But isn't there a

25 relationship here, Jess, when tribal gaming

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1 ordinance has to have a provision which says sole

2 proprietary interest will rest with the tribe. So a

3 new legislator, the tribe still has remedies under

4 its own provisions?

5 MR. GREEN: Not all the gaming ordinances

6 say that. We've got a lot of old gaming ordinances,

7 and you would be shocked at what some of them say.

8 MS. COCHRAN: Okay, then let me throw out

9 a thought. Again, just a thought. What if we look

10 at it in terms of making sure that those provisions

11 are part of the ordinances?

12 Because my understanding, and correct me if I'm

13 wrong, I don't practice in a legal sense in this

14 area day to day. Doesn't IGRA require it?

15 MR. GREEN: IGRA requires that you meet a

16 check list of requirements for your gaming ordinance

17 to be approved. There is no authority in IGRA for

18 you to require that we put anything in a gaming

19 ordinance. The issue is are these things met, and

20 if the chair finds they are, they are supposed to

21 approve them.

22 Now, there have been other chairs in the NIGC

23 that have made contrary statements, but that's what

24 the statute says. If you meet these requirements,

25 it shall be approved. And there are a lot of early

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1 ordinances that are in contradiction to some of your

2 later regulations. And the tribes that have those

3 are very careful to hold onto them because it

4 enlarges the scope of class II gaming in some

5 instances.

6 Again, we have the statement in IGRA that

7 governs if your tribal ordinance says you're going

8 to follow IGRA, then you basically have made this

9 statement.

10 It is important to understand that where the

11 conflict in sole proprietor interest comes is the

12 tribe is not getting enough money. And that's also

13 driven by economics and driven by other contracts,

14 not just this one. And while the first two

15 contracts you had don't create a sole proprietary

16 interest, this last consulting agreement that your

17 chairman entered into with them, even though he's

18 not identically the same group, it is essentially a

19 part of the same group, and that pushes you over the

20 edge.

21 Those are issues that I think are going to have

22 to be looked at, based on a time. A snapshot in

23 time.

24 MS. COCHRAN: Thank you, Jess. Thank you,

25 Commissioner.

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1 MR. CARROLL: I'd like to, if I could add

2 on that. Fundamentally, I agree with many of your

3 comments. But I just want to point out we face the

4 real-life issue now of in dealing with lenders,

5 confusion on the part of the lenders as to now

6 requesting very onerous terms to, what they think,

7 to protect their investment and so forth.

8 Understanding their recourse against the tribes is

9 limited.

10 What we felt is that some guidance is needed.

11 Now, we haven't, I'm not prepared to say it has to

12 be a regulation per se, but they are looking for

13 opinions. They're getting opinions often times from

14 commercial law firms with little or no experience in

15 Indian country. We have been asked on numerous

16 occasions now, to give legal opinions about the

17 enforceability of contracts that tribes are

18 executing. And the firms are picking up on the

19 issue coming out of Wells Fargo and so forth, and

20 saying, "Well now that this has been created, we

21 need a whole new set of requirements." And we've

22 resisted that. And little by little, we've been

23 chipping away at it, and we think we pushed it back

24 to where it is comfortable again. But it would be

25 helpful to us if there is a set of guidelines that

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1 we could point to that would take into account the

2 enforceability limitations. But also from the

3 perspective of the lenders, give them some comfort,

4 so that we're not being shut down in terms of

5 getting favorable lending rates and getting access

6 to lenders.

7 And I know this is being faced by many tribes,

8 but in our particular case, it has been very

9 current. We've been able to hammer out with the

10 commercial law firms representing the banks, based

11 on conversations we've had with the commission and

12 so forth. And then, some of the recent case law

13 that's come out that has been helpful.

14 So I'm confident it's going to be worked

15 through, but we've talked about it and said if we

16 can get some guidance, it would be really helpful.

17 The vehicle of that guidance is really open to

18 discussion.

19 COMMISSIONER LITTLE: Okay, thank you.

20 Does anybody else have any comments on this? Ms.

21 Homer.

22 MS. HOMER: Thank you, Commissioner. You

23 know, I think this is a very complicated issue, and

24 it has many ramifications. But at the same time,

25 it's a pretty simple and straightforward concept.

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1 And that concept is, nobody but an Indian tribe can

2 own a tribal gaming facility. And if a third party

3 is going to be managing a tribal gaming facility,

4 their contract has to be submitted for review by the

5 NIGC, for lawfulness and consistency with IGRA, and

6 that regardless of the above, the tribe has to be

7 the primary beneficiary of the gaming revenue. In

8 other words, you can't have predators coming in,

9 taking over the gaming operation and getting all of

10 the funds that are supposed to go to the tribal

11 government for basic governmental services and

12 benefits and programs of that nature.

13 I think it will be very hard to come up with a

14 hard and fast definition of sole proprietary

15 interest that meets the objective of having a

16 definition. Which is a definition that you apply

17 equally to all facts in all situations.

18 So, my view is that the underutilized NIGC

19 bulletin process is one potential mechanism for

20 addressing these things. Maybe in a discussion

21 sense to begin with, and maybe as time goes by, to

22 flesh it out further. But I do think the NIGC's

23 bulletins on management contracts need to be updated

24 with subsequent experience.

25 I think that probably, if you look at federal

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1 case law, the most highly developed case law is in

2 the area of management contracts. And I went

3 through this sad little exercise some years ago of

4 reading all the NIGC's sole proprietary interest

5 decisions. And there is some, there are some things

6 that can be elicited out of that, but I have to tell

7 you that it's basically a repetition of the same

8 things. The citation of the same cases. It's

9 really not helpful to read all of those opinions.

10 They are not helpful.

11 And I think that experience, there can be

12 certain principles that can be synthesized out and

13 provide some greater guidance to the industry.

14 I also think that in some respects, the NIGC needs

15 to hold the line around these core ideas. And that

16 goes back to my simple statement, Only tribes can

17 own a tribal gaming operation. Only tribes can

18 manage and regulate this, except in accordance with

19 a lawfully approved management contract, and the

20 tribe is to receive the primary benefit. I think

21 that, that's susceptible to a discussion paper or a

22 bulletin.

23 COMMISSIONER LITTLE: You just brought up

24 a pretty good point about when economic conditions

25 change and tribes don't have the ability to file for

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1 bankruptcy, and all they can do is renegotiate with

2 the lenders. And at some point, you're right, all

3 they are doing is paying interest. I mean, is there

4 a way to put together guidance that takes those

5 factors that do happen, and is happening, where the

6 only ability for a tribe to work out an agreement is

7 to renegotiate the terms of the contract and the

8 next thing you know, they are paying very, very high

9 interest.

10 MR. GREEN: Unfortunately, we do have some

11 tribes in that circumstance. And I have been

12 approached by major lenders who have asked me on

13 behalf of tribal, "What would you suggest to comfort

14 us?" And my statement is, "Put in your contract a

15 private Chapter 11 and require it of any person that

16 is going to be a major creditor of the tribe, so we

17 all go in this together."

18 You've got the biggest contract. If you're

19 going to make this big loan for something, you've

20 got the biggest contract. Do you want to have it

21 fixed, so you get it written down, or you get it

22 declared illegal? And again, this is not any

23 different than you would have if you signed an

24 agreement with Donald Trump. If the circumstances

25 change, so the money is not there to pay you,

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1 everybody needs to take a lesser amount, so we can

2 go on and continue operations, and everybody gets

3 something out of this arrangement.

4 That's the only guidance I've been able to give

5 to deal with the circumstance you just described,

6 where either the initial projections or a change in

7 economic conditions.

8 I mean in Oklahoma, there are two or three

9 gaming locations that were built way back early in

10 the 90's that were very large. I know one in

11 particular. And then after Oklahoma signed their

12 compacts where we got class III gaming, there were

13 two larger locations built on either side of one of

14 these places that basically turned a 3,000 seat

15 facility into a 300 seat facility. Simply because

16 they are only going to get 300 players, because the

17 other two locations on the two lead roads cut them

18 off to the population base.

19 If they had, had an enormous amount of debt on

20 the facility, it would not have been paid for.

21 Fortunately, they had already paid for the facility

22 and their big issue is how do I make ends meet? How

23 do I cut my size back, and how do I explained to the

24 tribal electorate that the money I made five years

25 ago, we're not going to be able to achieve?

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1 But these kind of circumstances are out there

2 in Indian country. And lenders, if they have

3 intelligent lawyers, it's been my experience, will

4 listen to you when you give them these kinds of

5 alternatives if they want to participate in the

6 deal.

7 Now, I also understand the frustration that

8 you're citing with the commercial lawyers having no

9 understanding of Indian law. And again, the Wells

10 Fargo banking disaster for them was caused by them

11 not hiring an expert in Indian law that would point

12 out to them you can't just run in and seize

13 management. And then when you have a disagreement,

14 instead of sitting down and talking to the tribe,

15 you can't just run over to federal court and make a

16 filing and seize management.

17 I mean there are a number of really bad

18 decisions made by the lender that caused that

19 decision. Because if they had sit down and worked

20 with the tribe, everybody would've understood that

21 needs to be some compromise. When you force things

22 to a quick decision, sometimes you get answers you

23 really didn't want. And I grasp, you all are being

24 asked to solve these problems. What I tend to

25 encourage you to tell them is that we're not the

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1 end-all answer to everything. We can give you some

2 guidance. I think Steffani's guidance idea is

3 great. I think Liz's bulletin concept is great.

4 But you need to be very careful about being, this is

5 time specific, and this is contract specific. And

6 if you put two of these together, this opinion will

7 not hold. And I think you need to be very cautious

8 in pointing out that just because you're not the

9 identical entity doesn't mean we won't put the

10 contracts together, because I certainly have seen

11 that happen in a number of places. Thank you.

12 COMMISSIONER LITTLE: Go ahead, Lael.

13 MS. ECHO-HAWK: So, one of the things that

14 we see frequently are tribes presenting to us a pile

15 of documents, a pile of agreements that are with

16 various . . . they are with the slot companies, slot

17 lease agreement, they are with a developer and a

18 consultant and a management contract, and you put

19 the total of that together and the tribe is no

20 longer, it appears is no longer the primary

21 beneficiary because all the money is going out.

22 One of the things we've been grappling with is

23 who has the ownership interest? Can all of them, do

24 all of those . . . I mean if we're talking about

25 sole proprietary interest, can the sole proprietary

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1 interest provision be violated by accumulation of

2 agreements with various individuals or companies?

3 MR. GREEN: You pushed first, go ahead.

4 MS. HOMER: I pushed first.

5 MS. ECHO-HAWK: This is not Jeopardy.

6 MS. HOMER: I've got to tell you, Lael, I

7 have seen exactly what you're talking about. I have

8 seen a complex development process project, and

9 everything was fine until you read the depository

10 agreement. An agreement that hardly anybody even

11 looks at, right? At least the client doesn't

12 realize how important the depository agreement is.

13 And in that depository agreement, it provides that

14 all of the money goes to the management contractor,

15 and none of it goes to the tribe. And it's

16 completely contrary to everything that's in the

17 "Approved management contract." Except for it says,

18 "This shall supersede any provisions in attachment

19 A." Which is the approved management contract. So

20 my rule of thumb in lawyering for my clients is the

21 more complex the arrangement the higher my radar

22 goes, as to how these different provisions operate.

23 There is another element here that, kind of,

24 goes into this discussion, which is the fact that

25 the tribes need these kinds of protections.

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1 People will say, "Well, some money is better than

2 none."

3 I've seen tribes at the desperate end of the

4 thing, where they really are facing a predatory

5 lending situation, but without that loan, it's a

6 mission impossible. And my heart really goes out to

7 them. But at the same time, that doesn't mean that

8 we relax federal standards or recommend federal

9 standards to relax, because that's the very

10 circumstances where the most protection is needed.

11 It's when you're really, really desperate, and the

12 lenders are taking advantage of that.

13 So I mean, part of me says yes, a deal is a

14 deal is a deal, and that we're all grown-ups here,

15 and that we have the competence and the capability

16 to enter into our own contracts. And I think all of

17 that is correct. Except that it needs to be

18 consistent with the law. And the law is there for a

19 particular set of reasons, and those reasons are

20 there to protect tribal interests. So, I think that

21 in some of these big cases where bad things have

22 happened, I know that the lenders, they go to

23 Congress. They probably contract the NIGC. They

24 feel kind of angry that they didn't get their own

25 competent counsel that understands what the law is.

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1 And so I guess part of me feels sympathetic, and the

2 other part says the law is there to protect the

3 tribes. And we need to hold the line there. Do we

4 need to give guidance? Yes. But we also need to

5 recognize that the tribes are not always in a

6 superior bargaining position, and the law is really

7 there to protect those tribes.

8 COMMISSIONER LITTLE: Go ahead, Jess.

9 MR. GREEN: I have actually been in a

10 circumstance when a depository agreement in

11 application prevented the tribe from getting money.

12 It wasn't in a gaming circumstance, but it was in

13 another circumstance.

14 The depository agreements, if you don't

15 scrutinize them carefully, usually say, number one,

16 the bank loan will get paid first. Because you've

17 got to deposit all the money to me and I'm going to

18 pay me first.

19 Secondary, I'm going to pay the management

20 contractor. Third, I'm going to pay the tribal

21 guaranteed payment, and if there are any payments

22 left over after that, then the tribe can access them

23 after they have set aside X amount of monies to

24 repair games. They've got like 40 percent if

25 anything is left that the tribe has to set aside to

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1 maintain the facility during the terms of the

2 lending agreement with the bank.

3 That's why I pointed out that operation of the

4 agreement is so imperative. As long as money is

5 being made at an appropriate level, the tribe is

6 always getting their payment and always getting some

7 extra.

8 But when economic conditions turn down or you

9 don't meet your projections, what happens is the

10 bank gets their money. The tribe doesn't even get

11 to buy tobacco, Coke or Pepsi, whichever one of the

12 two vendors. You have to use one or the other. I

13 don't know if you all are aware of that, but they

14 make you pick one. You either use Coke or Pepsi.

15 But you don't have money to pay that with. And so,

16 the facility just gets in a terrible bind. And so,

17 that's why I say that you certainly need to

18 scrutinize it. And again, if you don't look at that

19 depository agreement when you're reviewing all those

20 contracts, again, lot's of times it's not sent.

21 It's where the real danger lies. Because the bank

22 in practice will send the money, based on its

23 availability, and that depends on how it is

24 deposited.

25 And we don't have a Chapter 11 for tribes, and

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1 that's the source of these kind of problems. When

2 there's not enough money to pay everybody, what do

3 we do? And that's why I continue to emphasize that

4 you have to be sure that these things are time and

5 action specific. Because a depository agreement

6 with those kind of priorities, when there is plenty

7 of money works fine.

8 MS. HOMER: Could I just make one

9 suggestion? I think something that would be really

10 useful is to have an off the record roundtable,

11 maybe with Lael or some folks from the Office of

12 General Counsel and those attorneys that have had

13 experience on this side and maybe attorneys who have

14 had experience on the other side. Just, kind of,

15 talk about these issues, and there are creative ways

16 to address these issues. There are, I think Jess

17 mentioned one, which is to have a contract

18 provision, a default contract provision that does .

19 . . back in my Department of Interior days, we use

20 to do all these plans for the management of say a

21 dam. And we would have the drought year plan.

22 Well. if the contracts had the drought year

23 plan in it, then there would be those provisions

24 that would make it less contentious, and everyone

25 has discussed those things and are on board with it

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1 from the outset of the contract. So I think that

2 maybe we could, a group of attorneys could, help

3 advance the thinking on this. I'm not suggesting we

4 write a regulation or write a bulletin or whatever.

5 But we just do a brainstorm, and I know that Michael

6 Cox is here, and he's being awfully quiet. But he's

7 got tons of experience in this area, and I think

8 that the benefit of just, kind of, a roundtable

9 discussion, and Elliott, would be a really good

10 thing.

11 COMMISSIONER LITTLE: Okay, thank you.

12 Sir, do you have a comment?

13 MR. CARROLL: Just one other comment. I

14 just want it clear for the record. We face this in

15 two different contexts. One has been in the

16 management contract interpretation, where the

17 management may do some interpretations that would

18 infringe on the primary beneficiary and also the

19 sole proprietary interest principle.

20 And separate from that would be straight loans,

21 not necessarily involving a management contract,

22 maybe involving the gaming facility, but without the

23 manager, per se. So it's a problem that we don't

24 see as shrinking. It's actually becoming more

25 impactful as we progress. And I think all the

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1 suggestions have been very good, and I've actually

2 taken some notes here of some of the suggestions as

3 to alternatives. We've dealt with it head on. I

4 mean, we've been dealing with these commercial firms

5 representing the banks, and we've been successful in

6 backing them off on a lot of the Wells Fargo

7 principles.

8 But there's still this concern out there, and

9 we haven't been negatively impacted by that yet.

10 But it was in terms of interest rates and

11 availability of financing, we did feel some pressure

12 in that regard.

13 So whatever assistance we could be given,

14 whether a roundtable is setup. We would certainly

15 be willing to participate in that and help in any

16 way we could, because I think it's something we are

17 going to continue to face. It's funny, a lot of

18 these banks that we deal with don't seem to . . .

19 they look at it, and they say, "Well this is the way

20 we're going to lend the money, and that's it."

21 There's no recognition, no respect for the tribal

22 principles that are at play.

23 Fortunately, we've been successful in it, but I

24 think other banks that we haven't yet dealt with

25 really have to be educated. So, thank you.

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1 COMMISSIONER LITTLE: Okay, thank you.

2 You know we're coming up on our lunch break, and I

3 want to, I don't want to leave this subject if

4 there's still more comments. But I also want to

5 make sure we touch on self regulation, regulation

6 before noon, in case there is anyone here who can't

7 be here after lunch.

8 I know we did briefly speak about the self

9 regulation, regulation before, earlier this morning.

10 Does anybody want to talk about that or the

11 reasoning? I know some of the comments this morning

12 stated that the self regulation, in order to receive

13 a certificate, it should be, I don't want to say

14 cumbrous, but there should be a lot of information

15 requested. But in the NOIs, some of the comments

16 that we got was the fact that it's too cumbersome

17 right now, and tribes are avoiding applying for a

18 certificate because of that. How do we reach a

19 happy medium? What is too much information?

20 Reviewing the regulation, I think there's

21 requirements for public notices that seem

22 interesting when you read them, but does anybody

23 want to further continue discussion on the

24 self-regulation, regulation?

25 MS. HOMER: Just one comment on that. I

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1 think that if you took a look at the self-governance

2 regulations and compare that to the self regulation,

3 regulations promulgated by the NIGC, you're going to

4 see a completely different approach.

5 Under the current self-regulation program at

6 the NIGC, basically, the NIGC's audit division

7 descends upon your facility for a period of six or

8 eight weeks, they go through everything soup to

9 nuts. There is interviews with everybody. It is a

10 very difficult process. If you take a look at the

11 self governance regulations, to be a self-governance

12 tribe, and with that come tremendous responsibility

13 as well. Just as being self-regulating on your

14 gaming and selfgovernance context, I mean the tribe

15 is actually carrying out trust functions on behalf

16 of the United States, running all of its own

17 programs.

18 And basically, they require three years of

19 clean audits, a resolution from the tribal

20 government, and I think that there is one other

21 element which I now forget. But it is not nearly

22 as hard to become self-regulating for everything as

23 it is to become self-regulating for your gaming,

24 which you really are already the primary regulator

25 of the gaming.

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1 And notice that when the focus of the NIGC

2 study for self regulation is not on the regulatory

3 mechanism to determine the competence and ability of

4 the regulatory mechanism, it is a soup to nuts

5 review of the management. Which to me is like, I

6 guess if the management is operating well, you could

7 presume that the regulatory agency is operating well

8 or functioning well. But it would seem to me that

9 to be self-regulating, the focus is on do you have

10 an adequate capacity, a regulatory capacity? Or do

11 you have a sufficient staff? Those kinds of things,

12 as opposed to just long difficult review of

13 operations. So, I think that something in between.

14 Maybe three elements and then a six or eight week

15 evaluation is probably the right kind of place to

16 try to get.

17 COMMISSIONER LITTLE: And the once a

18 certificate is granted, do you have any comments on

19 a required annual report? Is that something that

20 you think is intrusive or overly burdensome?

21 MS. HOMER: I think the statute requires

22 that the NIGC get the audit, regardless of whether

23 you are self regulating, whether you are class II or

24 III, whatever. All of the annual audit reports go

25 back to the NIGC, so that's already done.

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1 There is already, I don't know if you guys know

2 this, but there is already an informal

3 self-regulation process. Your regional people make

4 a lot of their work plans around which tribes have

5 good, well functioning regulatory agencies that are

6 doing their job, and that's how they prioritize

7 their time. So, they're going to spend less time on

8 tribe X, because tribe X has got this comprehensive

9 system of regulation, and they're actually doing it,

10 and all of those kinds of things. So there already

11 is this, kind of, informal process anyway. I think

12 that there may be some guidance there. Or some

13 principles to be elicited from that informal

14 process, that would be useful to maybe capture in

15 language. And you could also do it through a

16 compacting process, kind of a voluntary process,

17 where if the Tribal Gaming Regulatory Agency, for

18 example, needs your help. Maybe there is a federal

19 case here, that there could be a way of making sure

20 the NIGC is always notified by the regulatory agency

21 when it needs assistance, support et cetera.

22 Strengthening tribal government is a key

23 purpose of the Indian Gaming Act, and I think that

24 making decisions from the commission that will

25 strengthen the regulatory framework of tribal

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1 government advances that legislative objective.

2 COMMISSIONER LITTLE: Thank you. Anybody

3 else? Mr. Green.

4 MR. GREEN: I want to reiterate my earlier

5 comments that I think, certainly, the history of the

6 organization, how well it's done is an issue. But I

7 want to join with Liz, in that you need to get away

8 from operations and get over to regulation. If I've

9 got 75 workers in my gaming regulatory body, if I

10 spend over 3 or 4 million dollars a year, and if I

11 handle tort claims, prize claims, and I've got a

12 history that I can demonstrate that these have been

13 done, these have been completed, this is my

14 relationship with the state government for any of

15 the claims that have arisen.

16 I think that kind of relationship showing

17 competence from the Gaming Commission is the history

18 you need in your file, not the competence of

19 operations. Because if you are challenged by a

20 third party for the self-regulation, and again

21 that's my big concern, I want your file to be full

22 not of documentation about operations, but

23 documentation about the regulator.

24 And when I said earlier, in my earlier

25 comments, that we don't mind filling up your file,

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1 we don't mind filling up your file with information

2 about our regulatory body.

3 Now certainly if there were historical failures

4 that we've had, that's an issue. But if my

5 regulatory body is well, and it services, its

6 actions are well documented, so that it's been able

7 to deal with problems. The fact that problems arise

8 shouldn't be the held against you. The issue is did

9 you deal with them? Because the bigger you are the

10 more problems you have. And were you able to deal

11 from a regulatory basis with those problems? And

12 as I said earlier, the benefit of becoming self

13 regulating is that you are omitted from 2706(b) 1

14 through 4 requirements, which is where you have most

15 of your ability to stick your nose in my business.

16 So, there are a lot of tribes that I think

17 would be more than willing to jump right in. The

18 other thing you end up is the more of these tribes

19 that you have given that self regulation certificate

20 to, the more you can point that tribes are doing a

21 good job, they are maturing and their regulatory

22 system's for class II are working.

23 And I think Liz has also pointed out that there

24 are little tribes that are always going to need lots

25 of assistance. They are not going to be petitioning

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1 for this. They want to be able to call you and have

2 you send your people down and tell them what to do

3 next. And as an attorney that represents some of

4 those people, I want you all to come promptly and

5 give me that assistance. Because I don't want a big

6 problem. I want somebody to tell my people what to

7 do next. So, thank you.

8 COMMISSIONER LITTLE: All right, thank

9 you. Do you have anything, Steffani?

10 MS. COCHRAN: (Indicating negatively.)

11 COMMISSIONER LITTLE: Does anybody else

12 have any comments about the self-regulation,

13 regulation? Any way we can streamline the process,

14 or is there any on the list of requirements that is

15 not necessary?

16 MS. HOMER: Well again, Dan, I think that

17 under the present process that the regulatory

18 framework is not really even a part of the

19 evaluation. And that's the biggest, kind of,

20 problem.

21 COMMISSIONER LITTLE: We're just about at

22 the lunch break here, and I don't know if we want to

23 take a break now?

24 MS. HOMER: Dan, can I make just one off

25 the record comment?.

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1 COMMISSIONER LITTLE: I think you'll be on

2 the record.

3 MS. HOMER: Do we have to stay on the

4 record?

5 COMMISSIONER LITTLE: Yeah, we, kind of,

6 do.

7 MR. GREEN: Make it at lunch.

8 MS. HOMER: Okay.

9 COMMISSIONER LITTLE: We're going to break

10 for lunch a couple of minutes early. We'll be back

11 at 1:30. In the event there are some folks that

12 were planning to be here after lunch, I'm not sure

13 how long that's going to go. So, we will see you at

14 1:30. So, thank you.

15 (WHEREUPON, A break was taken.)

16 COMMISSIONER LITTLE: All right, good

17 afternoon everybody. We're going to bring this

18 meeting back to order here. In the afternoon on the

19 agenda, we have Group 3, Part 543, the minimum

20 internal control standards for class II, and Part

21 547, the technical standards. I know we did discuss

22 some of these this morning, but I want to open up

23 the floor for any questions or any comments that any

24 of you that have stuck it out this afternoon here

25 want to make. Come on Linda, you've got some

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1 something to say, I know you do.

2 MS. COCHRAN: One of the things I'll, if

3 I could, Commissioner. I'll elaborate on, just for

4 people who may not have heard the statement made.

5 The chairwoman talked this morning, and I

6 talked yesterday as well, about the possibility of

7 using a TAC and pulling MICS off and pulling the

8 internal controls off. And one of the things that

9 we want to be clear is part of the thought process

10 behind that was if we pull it off, away from and put

11 it on a separate track from the other changes that

12 are going on in the other parts of the regs, we

13 won't slow those down.

14 We're really concerned about those getting

15 bogged down in the technicality of MICS and the

16 technical standards. So, they will take two

17 parallel but different paths, which should help

18 facilitate moving some things forward, is our hope.

19 COMMISSIONER LITTLE: And you know it's,

20 kind of, when we started the process here, we knew

21 that there could be a time during this whole

22 procedure here that we may have to adjust and do

23 something different. And clearly there is. We're

24 hearing from tribes that Tribal Advisory Committee

25 is what folks think could be very helpful in us

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1 coming to a resolution on these complicated issues.

2 So, does anybody have anything else they want

3 to share about potential Tribal Advisory Committee,

4 or composition, time frames, participation? I know

5 we've gone through these a lot. Linda, go ahead.

6 MS. MCGHE: Linda McGhe, Poarch Creek.

7 He's the one that broke my arm two months ago. I

8 told you my boss did it.

9 COMMISSIONER LITTLE: For the record?

10 MS. MCGHE: For the record. No, I just

11 wanted to reiterate what Daniel said about having

12 the time frame already laid out, so that people can

13 plan that we are going to be occupied on this for

14 the next six months or the next year, however long

15 it is going to take. But we are committed to be at

16 those things. And also, whoever you pick to be on

17 that committee, if they are allowed to bring

18 experts, to let those experts speak at the point in

19 time when something is being discussed, not let it

20 happen six, seven hours later, when it's, kind of,

21 null and void for them to speak at that time.

22 COMMISSIONER LITTLE: That's a very good

23 point. I appreciate you pointing that out; makes

24 sense. Anything?

25 MS. COCHRAN: The chairwoman, I know is

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1 already in the process, as we talked with Interior,

2 has asked our legal staff to examine FACA and some

3 of the limitations that we may or may not have under

4 federal law. And we look at that and interpret it

5 in light of our objectives. And the initial

6 indications are that we're going to be able to do

7 some things that haven't happened in the past, at

8 least initially. I know some of you weren't here

9 yesterday, and we covered a great deal of parts.

10 Did you have any comments you wanted to offer or

11 revisit from the agenda? I mean, we're happy to

12 take them.

13 COMMISSIONER LITTLE: Does anybody have

14 any comments about the technical standards? One

15 question I think that might be helpful to discuss is

16 back on the Tribal Advisory Committee, does anybody

17 have any comments on how we would handle class II

18 and class III? Whether they be separated, whether

19 we break into smaller working groups to handle those

20 specifically, whether they be done in a combined

21 effort? Guidelines.

22 MS. COCHRAN: Mr. Green, would you please

23 get on the record.

24 COMMISSIONER LITTLE: I'm sorry, Linda, go

25 ahead. You have the floor.

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1 MS. MCGHE: Yeah, I just wanted to say

2 working with class II and class III at the same

3 time, in my opinion, if you are not going to break

4 them out in different groups, it's going to defeat

5 your purpose. Because you're going to have class

6 III people in the room that are arguing over class

7 II regs, that they don't really know what they're

8 talking about and vice versa. So, I don't see any

9 problem with doing them at the same time, but you

10 need to break them apart because it's going to be

11 more confusing. And also, when you do set up the

12 committee, it is good to have a variety, and it

13 doesn't hurt to have the class II and class III on

14 the same agenda because there are people that have a

15 class II and class III facility at the same time.

16 So, that is going to be, kind of, difficult to keep

17 them separate that way, but I know we ran into a lot

18 of things that it was, we were reviewing the class

19 III regulations, and we were told when we were

20 reviewing stuff, "Well, this is not really a class

21 II issue. This is more class II. We're going to

22 put it over in class II."

23 And that was fine, but we never got to review

24 the class II document. We were just told this wa

25 now going to be over here in class II, but we didn't

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1 get to see how it fit in the context of that class

2 II document.

3 So that was a problem, by us studying both at

4 the same time. And that's when I was on the working

5 group.

6 COMMISSIONER LITTLE: Thank you.

7 MS. MCGHE: Yeah, the advisory committee.

8 COMMISSIONER LITTLE: Okay, thank you.

9 MS. HOMER: I will be very brief. But I

10 just want to point out a couple of things in Part

11 542. It still has all the class II in it, okay?

12 And that bingo section, which is the heart of the

13 minimum internal control standards, contains all.

14 It's all a mish mosh of different things: the

15 accounting standards, the audit provisions. In the

16 work product that we gave you, we pulled out all of

17 those redundancies. So, now there is an accounting

18 and auditing section. They are broken up into the

19 specific kinds of audits that are conducted: daily

20 audits, weekly audits, monthly audits, annual

21 financial audits, procedural MICS audits.

22 So, I think you have two choices with a 542.

23 And that is leave it alone and let somebody else

24 worry about that one and get the class II MICS and

25 technical standards final fixed and ready to go. Or

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1 you're going to have to do a major revision to 542

2 and strip out all of the class II stuff because

3 there's tons of class II stuff in Part 542. And

4 that's going to be a big job. That's a really big

5 job, and then you'll have to figure out whether you

6 need to replace that stuff.

7 My view is it might be better just to leave

8 well enough alone and do nothing with Part 542.

9 That just might be the thing to do.

10 COMMISSIONER LITTLE: What about

11 developing guidance documents?

12 MS. HOMER: You know I really love the

13 approach that we took. And I will just be honest

14 with you. When we first started doing this, I

15 wasn't a big fan of it. I was thinking, "Oh my God,

16 we're going to have relaxed standards here, and it's

17 going to look bad for the agency. It's going to

18 look bad for the tribes." I was worried about it.

19 I just thought somebody sees something that's

20 completely different looking. They're going to

21 think that we are somehow . . . we've let the horse

22 out of the barn here, and it's going to run amok.

23 But what I like about how we resolved that is

24 through these guidance documents, which can be

25 highly detailed.

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1 We actually started getting into fights that we

2 had gone too far in the guidance documents to

3 establish best practices. Because once you've said

4 these are the best practices, then if you don't do

5 the best practices, then you look bad. I go, "Yeah

6 well, that's probably is true. If you don't do the

7 best practices, it's probably not a good thing.

8 Deal with it."

9 But by doing it this way, we make really clear

10 what the standards are. Nobody's going to have to

11 say, "Oh gee, why are we doing this?" Because you

12 know you are doing this to prevent fraud or forgery.

13 You're doing this to prevent counterfeiting. You're

14 doing this to prevent embezzlement. And under the

15 MICS right now, I don't know if you guys have read

16 them. I mean they are gibberish, and they're really

17 made for manual systems, for back in the day when

18 you had coin operated slot machines. And that is

19 just not the environment that we live in, in Indian

20 country. I mean the irony of how Indian gaming has

21 developed that almost without exception, our casinos

22 are more modern, have better technology than what

23 you are going to have in Atlantic City or New

24 Jersey. And that's just how our industry has

25 developed. So, you have automated systems, but the

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1 MICS, the way they are right now, they don't tell

2 you how to deal with your automated system. You

3 have to figure it out yourself anyway.

4 So anyway, I think we might be beating the dead

5 horse of Part 542, when what we really need to do is

6 focus on our class II, where the authority isn't in

7 question, where most everybody is in agreement, and

8 we can actually get something done in the time that

9 you guys have available to you.

10 COMMISSIONER LITTLE: Thank you. Does

11 anyone else have any?

12 MR. GREEN: Please do not try to mix class

13 III and class II minimum internal control standard

14 discussions. You have issues with you being able to

15 spend any money. And again, I don't mean it to be a

16 threat, but I mean for you to fully understand. You

17 have less than a year and a half to complete, based

18 on your terms. If a lawsuit is initiated to stop

19 you from spending money, that's a year and a half,

20 because government is not going to answer for 90

21 days. I mean you've got to go over to Justice,

22 you've got to talk to them, and they've got to

23 develop a reaction. CRIT say you don't have any

24 authority to.

25 Now, the tribes are not interested in stirring

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1 up that CRIT argument with that kind of litigation.

2 I certainly hope that the commission is not because

3 that is what we would do. Those people that say we

4 need a CRIT remedy would feel obliged to take more

5 steps were that the circumstance.

6 If you want to finish something, the effort

7 that tribal people have spent trying to put these

8 class II things in front of you, I think needs to be

9 considered simply as class II. If you try to mix

10 that with your class III expenditure of funds, I

11 really believe someone is going to call your hand on

12 it because of your 20 percent increase. And if you

13 spend money on it after the lawsuit is instituted,

14 and the court then decides that you shouldn't have

15 spent money on it, where are you going to get that

16 money?

17 You are going to put yourself in a real

18 quandary. There's no need to force the CRIT issue

19 any further than it already is. And the Oklahoma

20 tribes in particular, compact says we're going to

21 use what we had in November of 2004, when the

22 compact was authorized. There is no provision for

23 those to be updated.

24 So by compact, unless the SCA, the State

25 Regulating Compliance Agency, unless they agree,

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1 that's what we'll have to use. But the compact says

2 that's what we're going to have to use from that

3 date.

4 I think your chairwoman made a very good point,

5 that 81 percent of the tribes have what their MIC

6 standards are going to be locked in stone in

7 compact. You've got another 1 percent that are self

8 regulated. The issue that you bring up for class

9 III only affects 18 percent, and please don't mix it

10 with our class II effort.

11 COMMISSIONER LITTLE: Okay, thank you for

12 that comment. Is there anything else that anyone

13 would like to say, regarding the class II MICS? Or

14 the technical standards, Part 547? Dan.

15 MR. MCGHE: And I'm not sure if I got your

16 intent, but were you asking advice on whether or not

17 you should have separate advisory committees for 543

18 and a separate one for 547? Or were you thinking of

19 one advisory committee to handle both?

20 COMMISSIONER LITTLE: I think there's just

21 one advisory. I think we wanted to break apart all

22 three things, parts 542, 543 and 547. I was just

23 trying to figure out what would be the best process?

24 To develop subgroups or working groups and then.

25 MR. MCGHE: Yeah, I agree with not mixing

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1 the class II and the class III. But I would also

2 consider strongly having a separate group tackle 543

3 and 547 because my experience is it's a totally

4 different group of people a lot of times, that are

5 attacking those technical issues.

6 Even when we were working in the TGWG group, we

7 ended up have to bring people in that had those

8 expertise. So, you may have a group that you know

9 for 543 is very strong and experienced and

10 qualified, but may not be your people you need for

11 547. They're going to end up bringing in people

12 anyway, so the people who actually do the document

13 will end up being a different set of people that

14 your committee chose. That's my opinion.

15 COMMISSIONER LITTLE: All right,

16 appreciate it, thank you.

17 MR. GREEN: I don't mean to disagree with

18 the concept, but these are linked at the hip. The

19 547 technical standards are further explanations,

20 and I grasp exactly what you're saying. You're

21 certainly more operationally motivated in 547 than

22 you are regulatory motivated. But you have to go

23 back and read the 543 to make sure the 547 works

24 with it. And I recall us doing exactly what you

25 said, and it being difficult. But I think there

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1 needs to be some real thought given to the fact that

2 they have to mesh hand in glove, and you may need to

3 get all of those people in the room at the same time

4 for that to happen. I know it's a lot more

5 cumbersome process.

6 COMMISSIONER LITTLE: So, what you're

7 saying is, setting aside 542, 543 and 547 should

8 work together, okay, thank you.

9 MS. HOMER: Well, let me suggest that I

10 think that at least the TGWG has proposed relatively

11 minor changes to Part 547. You already have a

12 regulation that with about four major points of

13 contention everyone is happy with and can live with.

14 It may be that Part 547 is a candidate for just

15 notice in comment rulemaking, as opposed to a Tribal

16 Advisory Committee to do any further work on it. I

17 mean it's pretty done, and it's working, and it's

18 working well, and people are pretty happy with it,

19 except for those four or five points of contention.

20 You've got a suggested way of addressing those

21 four or five points that we think is appropriate and

22 which nonetheless, kind of, took into account the

23 prior commission's concern about the safety of the

24 equipment. I think we found a way to finesse that,

25 that's acceptable. We made it really clear that the

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1 reflexive technology is unlawful, and we've actually

2 tightened up because there have been some recent

3 incidents in the press and in the paper that gave us

4 some insights as to these reflexive issues. So,

5 we've tightened that little piece of it up, and made

6 it clear what harm we're trying to prevent.

7 So, we may not really have to even have a big

8 major working group on that because it's not that

9 complex anymore. It used to be, not anymore.

10 MR. GREEN: I think your 543 people will

11 be able to grasp your 547 and just buzz right

12 through it.

13 MR. MCGHE: And I agree with that

14 approach. If you're not going to have a Tribal

15 Gaming Working Group then that would probably be the

16 best way to go. Like you said, you have a pretty

17 good document. If you were going to develop one,

18 then I would stick with what I said before.

19 MS. HOMER: And I think that what goes

20 with that is anyone that is going to have an issue

21 with the Part 547, is really going to be in the

22 industry, and they're not tribal leaders that are,

23 kind of, handy to you to use for a consultation

24 system. But through a notice in comment, their

25 opinions will be elicited as well, and you'll have

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1 the benefit of that. So, I just think that's simple

2 and easy to do.

3 MS. MCGHE: Yeah, I agree with Liz because

4 I remember when we were going over the 547 document,

5 there were very few changes from the document that

6 currently exists now. So, if a group of all of us

7 regulators and attorneys and tribal leaders couldn't

8 find that much to change then I think we, kind of,

9 need to leave that document alone.

10 COMMISSIONER LITTLE: Okay.

11 MS. MCGHE: Well, other than our few

12 changes.

13 COMMISSIONER LITTLE: Thanks for the

14 comment.

15 MR. GREEN: I want to put you on notice

16 that when we would take up the three or four changes

17 that we made, we would often start calling people

18 that we knew had vested interest in those issues, or

19 people who had argued with the Hogen administration,

20 and we would have various operator experts and legal

21 experts, all communicating about those changes. But

22 I don't think it's going to be a terribly complex

23 endeavor, but the same group of people that put

24 together 543, put together the 547 changes. They

25 will all be here at the same time, and I simply

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1 think it would be easy to go through both pieces,

2 since the same group of people examine them.

3 COMMISSIONER LITTLE: Okay, sounds good,

4 thank you. State your name.

5 MS. SHAPIRO: Judy Shapiro. There are a

6 couple of things that tie this together. I

7 understand that yesterday there was some discussion

8 about the fact that the NIGC decided not to post

9 these documents on the website, that they can get it

10 from elsewhere, that people can get it from

11 elsewhere. Is that correct? Did I misunderstand?

12 COMMISSIONER LITTLE: I don't think so, go

13 ahead.

14 MS. COCHRAN: Yeah, Judy, as of yesterday,

15 because we did not have this16 MS. SHAPIRO: Oh, you didn't have it.

17 MS. COCHRAN: The chairwoman talked this

18 morning about we were trying to figure out if there

19 is a way that we can share the information through

20 the Federal Register, our website or, now that we

21 have. Yeah, that was22 MS. SHAPIRO: I apologize, I missed that.

23 Okay, so I withdraw that concern. But the other

24 thing I heard, which also may be old news, is that

25 at some of your other consultations there has been

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1 discussion about people who had not been able to

2 participate in the Tribal Gaming Working Group and

3 perhaps are not fully educated on this one.

4 I think at the point that you reach discussion

5 of this document, I think it would be good to reach

6 out to tribes, particularly those were not able to

7 participate, and set up some process. Because I

8 know at least amongst some of my clients, there is

9 confusion out there, because there is a 543 that's

10 in place, there are proposed edits to 543, there's

11 this new proposed thing. I think that it would

12 serve the product and serve the tribal industry if

13 there were an education process ongoing soon, so

14 that tribal commissioners who have not been as

15 active in this process can see what's coming, and

16 can make good decisions now. I've gotten calls from

17 tribal gaming commissioners saying, "We're about to

18 open a class II facility, and so we're going to

19 adopt the existing 543. That works, right?" Well,

20 no.

21 And it would be good even if this were part of

22 the technical training stuff, to say these are the

23 areas that are in flux. These are the areas we are

24 thinking about. Here are some suggestions that have

25 been made to us. We would welcome an opportunity to

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1 talk with you about it, and to set up, perhaps, one

2 of these consultations to be more informational in

3 that way. An exchange of information from people

4 who have made this proposal, so it's not just a

5 massive document sitting on the website, but an

6 interactive process.

7 COMMISSIONER LITTLE: You know, I think

8 that's why the chairwoman this morning was talking

9 about, if there was a mechanism where we can take

10 what the Tribal Gaming Working Group has provided us

11 and maybe put it on line or use it as a discussion

12 starting point or something like that. So, we're

13 going to talk about that, and I'm sure we'll have

14 some information to share soon.

15 MS. SHAPIRO: So, I'm obviously redundant.

16 COMMISSIONER LITTLE: Never redundant,

17 Judy. Was there anything else? Any other comments?

18 Anything you want to share, Lael? Well, if there is

19 nothing else I would probably say maybe we can,

20 we'll probably wrap up here. One last shot.

21 Steffani, do you want to make any final comments?

22 MS. COCHRAN: No, I just want to say thank

23 you for your time, staying with us in this heat and

24 spending your afternoon with us. It really is

25 useful for us to take the time to listen, to talk

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1 with tribes, even if the conversations may be more

2 robust some days and shorter on others. So thank

3 you, please have safe travels going home, and I look

4 forward to seeing you soon.

5 COMMISSIONER LITTLE: I just want to

6 remind everybody, if you have comments that you want

7 to submit, you're more than welcome to submit

8 written comments. And I just want to thank all our

9 staff. I know they have been putting in a lot of

10 hours. A lot of the staff back in the office, in

11 the regional office, they spent a lot of time

12 putting together these consultations. And while

13 it's the commission that performs the consultations,

14 they are the ones that are doing all the work. So,

15 we are very grateful to them. And other than that,

16 I wish everybody safe travels and thank you for

17 coming.

18 (WHEREUPON, The proceedings were concluded at 2:22

19 p.m.)

20

21

22

23

24

25

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1

1 19:18 91:13 103:7

10 56:19

100 27:8

101 56:21 57:10,16

11 63:12 64:14

75:15 82:25

13175 21:16 22:11

45:1

13th 20:6

15 58:16 65:12

15th 7:12

16 39:15

18 103:9

1951 1:10

1998 15:9

1:30 93:11,14

2

20 50:13 58:16

102:12

2004 102:21

2006 6:10

2011 1:7 7:12 9:23

20245 1:12

26th 9:23

2706 34:11 36:14

91:13

29th 1:7

3

3 4:21,25 19:23

63:20 90:10 93:19

3,000 76:14

30 16:10

300 76:15,16

31 10:1,13

32 56:20

35 16:10 68:18

4

4 90:10 91:14

40 81:24

5

5 4:20,21 14:13,14

14:21,25 18:14

19:15

518 14:15,22 15:2

17:2 34:6

518.4 17:10

542 8:1,15 98:11,22

99:1,3,8 101:5

103:22 105:7

543 7:25 8:15,21

20:1 31:4 93:19

103:17,22 104:2,9

104:23 105:7

106:10 107:24

109:9,10,19

543.11 10:3

547 10:25 20:1 31:4

93:21 103:14,18,22

104:3,11,19,21,23

105:7,11,14 106:11

106:21 107:4,24

6

6:00 31:11

7

75 90:9

8

81 103:5

8:00 31:10

9

90 101:20

90's 76:10

9:16 3:2

a

a.m. 3:2

ability 41:1 64:14

66:7 74:25 75:6

88:3 91:15

able 5:23 14:7 18:2

33:13 35:13 55:3

64:7 72:9 76:4,25

91:6,10 92:1 96:6

101:14 106:11

109:1,6

absolutely 53:22

66:25

absorb 64:23

acceptable 48:21

105:25

accepted 38:15

access 19:4,6 72:5

81:22

accomplished 60:5

65:9

account 72:1 105:22

accounting 17:15,20

37:22,24 48:25 49:4

98:15,17

accumulation 79:1

accused 48:3

achieve 76:25

act 10:1 35:19 68:11

89:23

acting 47:20 48:20

action 24:4 83:5

actions 65:6 91:6

active 109:15

activities 8:5 16:9

50:14

activity 17:18

actual 21:4

add 12:22 71:1

additional 11:3,6

16:21 17:19

address 16:17 19:20

25:2 29:15 31:15

60:22 83:16

addressing 19:12

73:20 105:20

adequate 88:10

adjust 30:12,13,21

94:22

administer 64:24

administration

107:19

administrations

37:15

administrative

15:13

admit 32:8

adopt 109:19

adopted 18:2

adoption 17:24

advance 11:21 84:3

advances 90:1

advantage 80:12

advantageous 28:9

adversarial 50:24

advice 29:2 38:18

103:16

advisory 20:12,15

20:17,18,24 21:2,5

21:7,13,18,25 22:1

22:4,20,25 23:4

24:23 26:25 28:14

29:9 30:8,18,23

38:19 39:4,7 43:2

44:23 45:4 49:14

59:5,10 60:11,18

61:18 94:24 95:3

96:16 98:7 103:17

103:19,21 105:16

affect 13:22 67:16

afternoon 59:1

93:17,18,24 110:24

age 57:3

agencies 8:12 9:6

24:5 35:4 46:14,24

47:15 89:5

agency 15:25 47:23

50:10,21 52:20 88:7

89:17,20 99:17

102:25

agency's 47:1,24

48:5 52:11

agenda 4:2,14,19,21

5:17 14:14,20 33:12

33:13 60:23 93:19

96:11 97:14

agendas 4:2,15

agents 36:11

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aggressive 61:23

ago 22:2 56:12 74:3

76:25 95:7

agree 27:8 40:16

45:20 52:5 58:3,4

59:24 71:2 102:25

103:25 106:13

107:3

agreeable 55:9

agreement 49:18

63:14 70:16 75:6,24

78:17 79:10,10,12

79:13 81:10 82:2,4

82:19 83:5 101:7

agreements 65:17

66:1,3 67:2,2 78:15

79:2 81:14

ahead 6:4 37:10

57:4 58:19 78:12

79:3 81:8 95:5

96:25 108:13

allow 6:4,21

allowed 95:17

allowing 61:16

62:20

allows 9:5

alternative 22:10,12

25:1 44:24 53:25

alternatives 46:25

77:5 85:3

amended 16:24

america 54:23

amok 99:22

amount 28:8 35:1

36:10 60:4 76:1,19

81:23

analysis 65:15,16

angry 80:24

annual 16:24 17:6

88:19,24 98:20

answer 25:9 37:18

37:25 78:1 101:20

answers 77:22

anticipate 30:12

anybody 5:7 39:11

60:25 72:20 79:10

86:10,22 90:2 92:11

95:2 96:13,16

anymore 68:3 106:9

106:9

anyway 30:1 37:10

89:11 101:3,4

104:12

apa 46:7

apart 29:18 97:10

103:21

apologize 108:22

apparent 8:14

apparently 46:24

appears 53:17 78:20

appendices 10:22

application 35:8

81:11

apply 8:16 73:16

applying 86:17

appreciate 7:9 12:1

12:20 38:20 43:11

43:12 55:13,18

57:22 58:19,24 62:1

95:23 104:16

appreciation 61:15

approach 68:16,21

87:4 99:13 106:14

approached 75:12

approaches 29:25

appropriate 9:5

37:25 40:21 82:5

105:21

appropriately 8:23

approve 69:21

approved 69:17,25

74:19 79:17,19

area 28:11 61:5

65:25 69:14 74:2

84:7

areas 22:17 28:25

29:8 30:9 53:13

59:2 109:23,23

argued 107:19

arguing 47:10 97:6

argument 102:1

arisen 90:15

arm 95:7

arrangement 76:3

79:21

aside 42:22 81:23,25

105:7

asked 15:5 16:6

18:15 57:13 71:15

75:12 77:24 96:2

asking 34:13 103:16

asks 20:3

aspects 61:9

assert 8:14

assistance 66:6

85:13 89:21 91:25

92:5

associate 3:20

association 2:11

assure 34:8

assured 10:12

atlantic 100:23

attached 65:19

attachment 79:18

attacking 104:5

attend 33:3 39:12

58:23

attendance 58:24

attendant 10:17

attended 22:3

attention 29:10

65:10

attitude 48:13

attorney 92:3

attorneys 6:17

25:25 83:12,13 84:2

107:7

audit 4:8 87:6 88:22

88:24 98:15

auditing 98:18

auditorium 1:9

auditors 41:16

audits 87:19 98:19

98:20,20,20,21,21

august 60:9

authorities 34:11

authority 35:18

39:25 40:10 63:22

68:10 69:17 101:6

101:24

authorization 44:17

authorized 40:1

41:20 102:22

automated 100:25

101:2

automatically 50:20

availability 35:20

82:23 85:11

available 24:2 52:11

101:9

ave 1:10

avoiding 86:17

aware 7:21 8:11

21:13,23 82:13

awfully 84:6

b

b 34:11 36:14 91:13

back 4:3 21:21 34:5

43:19 50:6,13 55:3

61:24 65:14 71:23

74:16 76:9,23 83:19

88:25 93:10,18

96:16 100:17

104:23 111:10

background 20:22

backing 85:6

bad 32:8 36:15 48:6

77:17 80:21 99:17

99:18 100:5

balance 28:21 48:23

49:10

balanced 28:15

band 2:8,9,10 6:2,8

7:1 11:20 19:25

bank 10:1 81:16

82:2,10,21

[aggressive - bank] Page 2

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
banking 77:10

bankruptcy 63:12

75:1

banks 72:10 85:5,18

85:24

bargaining 81:6

barn 99:22

base 64:12 76:18

based 46:17 50:18

70:22 72:10 82:22

101:17

basic 9:11 65:16

73:11

basically 38:23 51:6

60:6 70:8 74:7

76:14 87:6,18

basis 13:13 17:17

44:3,8 50:2 68:7

91:11

beating 101:4

becoming 84:24

91:12

beginning 59:16

behalf 7:1,2 39:25

41:5 43:21 55:11

61:14 75:13 87:15

behave 23:12

believe 15:9 32:17

35:7,14 102:11

believes 33:14 47:18

beneficiary 19:3

73:7 78:21 84:18

benefit 13:14 33:9

46:2 55:3 74:20

84:8 91:12 107:1

benefits 15:15,19

16:19 64:2 73:12

best 9:20 12:14

38:18,18,19 42:8

52:3 55:20 57:20,23

100:3,4,5,7 103:23

106:16

better 18:13 38:6

80:1 99:7 100:22

bidding 48:5

big 23:2,16,24 41:5

48:8,10 50:4 59:13

75:19 76:22 80:21

90:21 92:5 99:4,4

99:15 106:7

bigger 91:9

biggest 75:18,20

92:19

billing 40:6,8

bind 68:14 82:16

bingo 20:5 98:12

bit 4:13

bite 5:6

bites 4:19

blame 57:18

board 83:25

boarding 57:2

bob 61:2

bodies 13:1

body 41:20 42:2

90:9 91:2,5

bogged 94:15

bondholders 64:20

boss 95:8

bottom 57:15

bound 60:5

brainstorm 84:5

break 44:14 54:7,8

58:16,17 86:2 92:22

92:23 93:9,15 96:19

97:3,10 103:21

breakfast 56:18

brief 98:9

briefly 86:8

bring 28:15,23 29:5

30:9 32:22,24 33:21

39:9,9,11 43:19

60:25 93:17 95:17

103:8 104:7

bringing 38:21

44:17 104:11

broad 6:17 25:25

broke 59:5 95:7

broken 98:18

brother 57:6

brought 28:23 29:10

34:6 58:9 74:23

bryan 5:25 6:1,7

13:9 27:1 43:14

45:20

buckets 46:17

buddies 48:3

build 5:13 21:5,11

21:16

building 12:24 61:7

builds 64:11

built 30:8 57:12

76:9,13

bulletin 73:19 74:22

78:3 84:4

bulletins 30:3 73:23

bunch 40:4

bur 49:4

burden 15:14 24:25

burdens 16:19

burdensome 15:16

28:20 88:20

bureaus 24:12

buried 57:6

business 60:9 91:15

buy 51:13 82:11

buys 51:24

buzz 106:11

byran 2:8

c

c 24:4

cadr 24:3 29:4 42:8

cage 26:2

calendar 59:20

call 31:18 38:23

92:1 102:11

called 24:3 40:15

calling 107:17

calls 109:16

candid 47:19

candidate 105:14

candy 57:3

capability 80:15

capable 32:15 34:14

34:19 36:8,22

capacity 56:2 88:10

88:10

capital 19:6

capture 89:14

careful 53:19 66:12

70:3 78:4

carefully 10:7 81:15

careless 63:20

carroll 2:7 61:2,2

71:1 84:13

carry 58:14

carrying 41:4 87:15

case 72:8,12 74:1,1

86:6 89:19

cases 74:8 80:21

casino 64:12

casinos 100:21

cats 23:22

caused 77:10,18

caution 66:9

cautious 78:7

cell 44:10

center 9:24 48:21

centered 9:19

certain 8:25 22:16

29:6 74:12

certainly 30:25

31:24 39:11 46:22

50:5 67:18 68:15

78:10 82:17 85:14

90:5 91:3 102:2

104:21

certificate 86:13,18

88:18 91:19

certification 15:7,8

15:11,17 16:20

17:12

cetera 89:21

chair 6:8,9 7:22

19:25 33:10 40:17

47:7 51:1,2 62:21

[banking - chair] Page 3

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
69:20

chairman 2:3 6:6

57:25 61:13 70:17

chairs 40:19 69:22

chairwoman 3:3,8

3:13,19,24 11:18,19

13:23 14:20,22

19:25 21:20,22

28:12 37:1,11 38:7

39:2 40:6,12 41:10

44:9 45:21 46:3,11

52:25 54:2 55:22

56:16 57:25 58:18

58:21 94:5 95:25

103:4 108:17 110:8

chairwoman's 25:18

challenge 26:4

35:15

challenged 35:16

90:19

chance 52:22

change 50:24 63:2,6

67:17 68:6,20 74:25

75:25 76:6 107:8

changes 20:8 36:21

36:22 94:11 105:11

107:5,12,16,21,24

changing 66:12,13

chaos 41:25

chapter 63:12 64:14

75:15 82:25

characterize 53:22

characterized 8:23

charge 23:9

charged 34:17

charles 1:25

check 36:12 69:16

checked 3:6

checklist 10:17

checklists 9:14

cherokee 7:24

cherry 48:3

chew 30:4

chickasaw 2:13 3:15

7:23

child 42:9

children 56:3

chipping 71:23

chitimacha 2:7 61:3

choctaws 35:17

choice 48:21

choices 98:22

choose 44:20

chose 104:14

chrisshaw 57:10

circulate 11:23

circumstance 66:8

75:11 76:5 81:10,12

81:13 102:5

circumstances 9:9

66:2,8,11 67:17

75:24 77:1 80:10

citation 74:8

cited 65:18

citing 77:8

city 100:23

civil 56:23 57:6

claims 90:11,11,15

clarification 46:5

61:5,12

clarified 62:8

class 4:22,24 5:1,2

6:13 7:7,10,14,15

8:2,7,8,10,19 9:20

10:25 12:9 13:11

14:16,23,25 15:7

16:9,10,13,14,20

19:15,17,20,23 20:2

20:5,8,21,21 25:21

27:22,22,23,23,24

28:1,6,8,9,15,16

29:21,22 30:5 31:17

31:17,18,21,22,23

32:20,20,22 34:9,9

34:18,23,25 36:7

44:15,15 48:23,23

49:2,3 61:19,20

70:4 76:12 88:23

91:22 93:20 96:17

96:18 97:2,2,5,6,13

97:13,15,15,18,20

97:21,22,24,25 98:1

98:11,24 99:2,3

101:6,12,13 102:8,9

102:10 103:8,10,13

104:1,1 109:18

clean 87:19

clear 5:5 12:18

18:22 19:4 28:13

41:12 46:21 48:10

84:14 94:9 100:9

105:25 106:6

clearly 29:14 37:4

49:10 94:23

client 40:7 79:11

clients 40:8 49:13

79:20 109:8

close 49:22 65:10

closely 16:3

closing 9:22 11:13

clueless 43:23

coalition 6:12

cochran 2:5 3:12,13

58:21 62:19 66:20

68:24 69:8 70:24

92:10 94:2 95:25

96:22 108:14,17

110:22

cognizant 24:13

32:19 63:16

coin 100:18

coke 82:11,14

collaborative 24:4

47:21 50:15

collaboratively 7:6

colleague 47:10

colleagues 55:23

combination 66:1,1

combined 96:20

come 19:18 21:9

23:6,18 34:12 39:24

40:3 41:19 51:4

54:18 58:5 63:23

64:23 67:19 72:13

73:13 87:12 92:4

93:25

comes 19:13 70:11

comfort 72:3 75:13

comfortable 71:24

coming 3:5 12:16

22:8 33:13 58:2

60:7 71:19 73:8

86:2 95:1 109:15

111:17

commence 10:11

commend 6:21

11:13 13:6

commendable 55:12

comment 7:18 11:24

14:15 16:6 27:2

34:5 39:14 45:2

52:4 59:25 66:17

84:12,13 86:25

92:25 103:12

105:15 106:24

107:14

commenter 19:7

comments 6:3,5

15:12 16:18 17:3,3

18:19 19:21 20:11

31:3 33:11,14 40:23

43:12 45:7,13,22

46:1 58:25 59:4

60:17 61:24 62:4,9

66:17 71:3 72:20

86:4,11,15 88:18

90:5,25 92:12 93:23

96:10,14,17 110:17

110:21 111:6,8

commercial 8:5

71:14 72:10 77:8

85:4

commission 1:3 3:9

3:14 6:7,10 7:12,21

10:10 12:8 15:5

18:16,24 19:13

20:14,15 21:12,16

40:2 49:25 54:15

60:1 61:15 63:3

72:11 89:24 90:17

[chair - commission] Page 4

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
102:2 111:13

commission's 6:21

7:5 9:13 11:9

105:23

commissioner 2:4

3:18,20 12:13,23

50:8 58:22 59:23

62:2,14 66:16 70:25

72:19,22 74:23

78:12 81:8 84:11

86:1 88:17 90:2

92:8,11,21 93:1,5,9

93:16 94:3,19 95:9

95:22 96:13,24 98:6

98:8 99:10 101:10

103:11,20 104:15

105:6 107:10,13

108:3,12 110:7,16

111:5

commissioners

44:12 109:14,17

commissions 44:23

commit 42:18 59:18

commitment 7:5

42:25 43:6,11 44:19

48:8,10 55:10

committed 42:15

50:10,22 95:15

committee 20:13,15

20:18,19,24 21:2,5

21:7,10,13,18,25

22:1,20 23:1 25:10

27:24 28:14 29:9

30:19,23 38:19 39:4

39:5,7,18 44:20

45:11 49:10 51:2

52:14 59:5,10,17

60:11,18 61:18

94:24 95:3,17 96:16

97:12 98:7 103:19

104:14 105:16

committee's 29:7

committees 22:4,25

23:5,11 24:11,23

26:25 43:2 44:23

49:14 103:17

common 9:12

communicating

54:14 107:21

communication

12:1 14:10 40:11

communities 56:7

community 56:12

compact 16:14

102:20,22,24 103:1

103:7

compacting 89:16

compacts 76:12

companies 78:16

79:2

compare 87:2

comparison 45:14

competence 80:15

88:3 90:17,18

competent 80:25

competing 41:22,23

compile 67:2

compiling 26:14

complement 9:15

complete 10:13 35:8

49:18 60:8 101:17

completed 21:18

60:10 90:13

completely 48:18

79:16 87:4 99:20

completing 11:2

15:14

complex 64:5 79:8

79:21 106:9 107:22

compliance 102:25

complicated 72:23

95:1

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component 21:6,12

21:12,17

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31:22

composition 95:4

comprehensive 9:2

9:14,17 89:8

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25:21 26:5 27:25

compromise 77:21

concentrated 42:4

43:7,10 44:19

concept 34:18 35:16

42:1 50:22 51:5,13

51:14 68:22 72:25

73:1 78:3 104:18

concepts 32:22

concern 18:20 31:16

62:12 85:8 90:21

105:23 108:23

concerned 32:22

94:14

concerns 18:21

conclude 56:16

concluded 111:18

conditions 63:6

66:13 67:25 74:24

76:7 82:8

conduct 5:18 6:22

conducted 98:19

conducting 3:25

conducts 17:14

conference 31:9

33:2 34:3 36:17

42:4

conferences 31:5

36:20 43:8

confident 29:4

72:14

conflict 70:11

confusing 97:11

confusion 71:5

109:9

congress 34:18

35:19 80:23

consensus 23:19

25:4 27:13 49:16,17

consider 11:25

18:16 30:10 38:22

59:9,22 60:16 64:4

104:2

consideration 13:16

considered 10:5

12:8 41:7 59:17

64:15 102:9

considering 4:1

63:10

consisted 13:11

consistency 43:4

73:5

consistent 9:3 80:18

consistently 66:21

consists 10:20

consolidated 9:2

constitution 1:10

consult 7:18

consultant 78:18

consultation 1:4

3:25 6:23 12:24

21:12,15,17 25:15

29:1 46:9 47:9,13

47:17 58:2 66:22

106:23

consultations 11:22

22:3 49:12 61:16

108:25 110:2

111:12,13

consultative 50:1

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consulting 70:16

contain 16:13 17:8

contained 10:21

16:2 19:15

containing 9:25

10:22,24

contains 11:10

14:21 19:23 20:1

98:13

contemplated 35:23

content 10:18

contention 105:13

105:19

contentious 83:24

context 9:20 46:8

87:14 98:1

[commission - context] Page 5

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
contexts 84:15

continue 35:22

55:19 59:3 62:3

68:8 76:2 83:3

85:17 86:23

continued 60:12

continuing 60:22

contract 63:4,5,7,19

64:9,10,18,25 65:7

65:17,20,22 73:4

74:19 75:7,14,18,20

78:5,18 79:17,19

80:23 83:17,18 84:1

84:16,21

contractor 79:14

81:20

contracts 36:12

63:21,23 68:9 70:13

70:15 71:17 73:23

74:2 78:10 80:16

82:20 83:22

contradiction 70:1

contrary 69:23

79:16

control 4:23,25 7:13

12:10 19:16,24

23:15,15 29:22

51:21 93:20 98:13

101:13

controls 8:20 9:8,11

15:1 20:2 22:16

29:12 94:8

controversial 45:23

controversy 20:17

convenience 11:9

conversations 29:3

72:11 111:1

copying 23:21

core 10:19 74:15

correct 53:9,22

69:12 80:17 108:11

correctly 37:5

costly 24:22

costs 24:18

counsel 68:14 80:25

83:12

counsel's 4:9

count 42:23

counterfeiting

100:13

counting 26:3

country 11:14 13:14

13:22,25 29:24

33:15 46:2 48:14,19

51:13 52:4,12 54:25

55:21 56:4 57:1,8

57:23 68:18 71:15

77:2 100:20

couple 36:19 47:8

60:12 93:10 98:10

108:6

course 7:16 8:4 10:9

33:12 49:23 68:9

court 65:11,13,14

65:14,15 77:15

102:14

courts 19:8

cover 14:19 29:9

30:7

covered 8:21 14:18

96:9

cox 84:6

create 13:21 28:14

38:5 41:25 70:15

created 65:23 71:20

creating 38:8

creative 83:15

creditor 64:14 75:16

creek 2:8,9,10 6:2,8

6:9 7:2 43:20,21

59:8 62:11 95:6

crimes 9:24

criminal 17:18

crit 101:23 102:1,4

102:18

criteria 17:11,23

18:7

critical 63:10

cross 54:1

cumbersome 28:20

86:16 105:5

cumbrous 86:14

current 7:25 8:15,18

30:11 35:21,22

45:14 72:9 87:5

currently 15:2,10

107:6

cushion 26:10

cut 76:17,23

d

d 1:25 24:4

d.c. 1:11 4:6

daily 13:13 44:3,7

98:19

dam 3:19 83:21

dan 2:4 3:10 12:22

58:22 59:6 92:16,24

103:14

danger 62:24,25

82:21

daniel 2:10 59:7

95:11

date 20:6 103:3

dated 8:17

dates 59:11,18,20

60:6

daughters 56:19

david 57:9

day 3:25,25 31:5,8

31:13 33:6 36:17

37:24 39:14 42:5,5

69:14,14 100:17

days 33:8 34:4

36:19 42:20 50:6

83:19 101:21 111:2

dead 101:4

deadline 62:9

deal 13:12 20:4 30:1

31:9 33:20 38:24

41:8 44:3,7,16

67:23 76:5 77:6

80:13,14,14 85:18

91:7,9,10 96:9

100:8 101:2

dealing 27:23 71:4

85:4

deals 33:20

dealt 85:3,24

debt 63:13 76:19

december 6:10

decide 28:5 30:10

39:18 59:10

decided 10:8 39:8

108:8

decides 20:14

102:14

decision 12:9 19:19

27:14 35:6,11,13

50:2,9 64:19 65:11

65:24 67:16 77:19

77:22

decisions 38:11

39:17 64:25 66:14

74:5 77:18 89:24

109:16

declare 63:12

declared 75:22

default 83:18

defeat 97:4

defend 35:13

deferring 39:16

define 62:8

defined 19:3 35:14

62:7 66:18

defines 19:1

defining 18:17

definitely 27:20

45:20 60:15,20

definition 19:4,5

61:5,11 63:1,16

73:14,16,16

degree 8:25 34:10

36:18 41:9

delaying 10:5

deliberative 12:9

demand 34:13

[contexts - demand] Page 6

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
demonstrate 90:12

department 1:9

22:24 24:1,10 47:14

48:16 83:19

department's 9:24

depends 82:23

deposit 81:17

deposited 82:24

depository 79:9,12

79:13 81:10,14

82:19 83:5

depression 56:22

depth 35:8

derive 28:7

derived 8:3

descends 87:7

described 76:5

desperate 80:3,11

detailed 11:10 22:14

26:20 99:25

determination 19:7

29:20

determinations 18:4

determine 36:18

88:3

develop 13:4 19:11

29:5 45:2 101:23

103:24 106:17

developed 15:3,24

15:25,25 21:7 74:1

100:21,25

developer 78:17

developing 50:15

99:11

development 66:2

79:8

difference 40:4

65:18

differences 31:15

45:9 49:2,6

different 22:21

28:17 29:14,25 41:2

45:24 56:10 68:15

68:21 75:23 79:22

84:15 87:4 94:17,23

97:4 98:14 99:20

104:4,13

differently 68:17

difficult 8:15 55:15

87:10 88:12 97:16

104:25

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