MESCALERO APACHE TRIBE

MESCALERO, NEW MEXICO

ORDINANCE NO. 95-06

WHEREAS, the Mescalero Apache Tribe, an Indian Tribe organized under the Indian

Reorganization Act of June 18, 1934 (25 U.S.C. Section 476) and under its Revised constitution

has full power to act for the Tribe;

WHEREAS, the Mescalero Apache Tribal Council has the power to act for the Tribe, and to

represent the Tribe in all matters under powers vested in it by Article XI of the Revised

Constitution of the Mescalero Apache Tribe;

WHEREAS, pursuant to Article XI, Section 1(d) of the Mescalero Apache Tribes Revised

Constitution, the Mescalero Apache Tribal Council has the power to adopt and approve plans of

operation to govern the conduct of any business or industry that will further the economic well

being of the members of the Tribe;

WHEREAS, it is the purpose of this Ordinance to comply with the directive of the Chairman of

the National Indian Gaming Commission (N.I.G.C.) set forth in his letter and enclosures of the

7th day of June, 1993, and received by the Tribe on the 23rd day of July, 1993;

NOW, THEREFORE, BE IT ORDAINED THAT:

I. Purpose

The Mescalero Apache Tribal Council (hereinafter Tribe), empowered by the Tribes

Constitution to enact ordinances, hereby enacts this ordinance in order to set the terms

for Class II and Class III gaming operations on tribal lands under the Indian Gaming

Regulatory Act (I.G.R.A.) P.L. 100-447, 25 U.S.C. Section 2703(7)(A).

II. Gaming Authorized

Class II and Class III gaming as defined in the I.G.R.A., P.L. 100-447, 25 U.S.C. Section

2703(7)(A) and by the regulations promulgated by the N.I.G.C. at 25 C.F.R. 502.3 (as

published in the Federal Register at 57 FR 12383-12393, April 9, 1992) is hereby

authorized.

III. Ownership of Gaming

The Tribe shall have the sole proprietary interest in and responsibility for the conduct of

any gaming operation authorized by this ordinance.

IV. Use of Gaming Revenue

A. New revenues from Class II and Class III gaming shall be used only for the

following purposes: to fund tribal government operations and programs; provide

for the general welfare of the Tribe and its members; promote tribal economic

development; donate to charitable organizations; or help fund operations of local

government agencies.

B. If the Tribe elects to make per capita payments to tribal members, it shall

authorize such payments only upon approval of a plan submitted to the Secretary

of the Interior under 25 U.S.C. 270 1(b)(3).

V. Audit

A. The Tribe shall cause to be conducted annually an independent audit of gaming

operations and shall submit the resulting audit reports to the N.I.G.C.

B. All gaming related contracts that result in the purchase of supplies, services, or

concessions in excess of S25,000.00 annually, except contracts for professional
legal and accounting services, shall be specifically included within the scope of

the audit that is described in subsection A above.

VI. Protection of the Environment and Public Health and Safety

Class II gaming facilities shall be constructed, maintained and operated in a manner that

adequately protects the environment and the public health and safety.

VII. License for Key Employees and Primary Management Officials.

The Tribe (acting through the President) shall ensure that the policies and procedures set

out in this section are implemented with respect to key employees and primary

management officials employed at any Class II or Class III gaming enterprise operated on Indian lands:

A. Definitions: For the purposes of this section, the following definitions apply:

1. Key employee means

(a) A Person who performs one or more of the following functions:

(1) Bingo Caller;

(2) Counting room supervisor;

(3) Chief of security;

(4) Custodian of gaming supplies or cash;

(5) Floor manager;

(6) Pit boss;

(7) Dealer;

(8) Croupier;

(9) Approver of Credit; or

(10) Custodian of gaming devices including persons with access

to cash and accounting records within such devices;

(b) If not otherwise included, any other person in the gaming

operation whose total cash compensation is in excess of $50,000

per year; or

(c) If not otherwise included, the four most highly compensated

persons in the gaming operation.

2. Primary management official means

(a) The person having management responsibility for a management

contract;

(b) Any person who has authority:

(1) To hire and fire employees of the gaming operation; or

(2) To set up working policy for the gaming operation; or

(3) The chief financial officer or other person who has

financial management responsibility of the gaming

operation.

B. Application Forms

I. The following notice shall be placed on the Application form for a key

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employee or a primary management official before that form is filled out

by an applicant:

In compliance with the Privacy Act of 1974, the following

information is provided: Solicitation of the information on

this form is authorized by 25 US.C. §2701 et seq. The

purpose of the requested information is to determine the

eligibility of individuals to be employed in a gaming

operation. The information will be used by NI. G. C.

members and staff who have needfor the information in the

performance of their official duties. The information may

be disclosed to appropriate Federal, Tribal, State, local or

foreign law enforcement and to regulatory agencies when

relevant to civil, criminal, or regulatory investigations or

prosecutions or when pursuant to a requirement by a tribe

or the NI.G.C. in connection with the hiring or firing of an

employee, the issuance or revocation of a gaming license,

or investigations of activities while associated with a tribe

or a gaming operation. Failure to consent to the

disclosures indicated in this notice will result in a tribe ~

being unable to hire you in a primary management official or key employee position.

The disclosure of your Social Security Number (SSN) is

voluntary. However, failure to supply a SSN may result in

errors in processing your application.

2. Existing key employees and primary management officials shall be

notified in writing that, if they have not already done so, they shall either:

(a) Complete a new application form that contains a Privacy Act

notice; or

(b) Sign a statement that contains the Privacy Act notice and consent

to the routine uses described in that notice.

3. The following notice shall be placed on the application form for a key

employee or a primary official before that form is filled out by an

applicant.

A false statement on any part of your application may be

groundsfor not hiring you, orforfiring you afier you begin

work. Also, you may be punished byline or imprisonment

or both.

(U.S. Code, title 18, section 1001.)

4. The Tribe shall notify, in writing, existing key employees and primary

management officials that, if they have not already done so, they shall

either:

(a) Complete a new application form that contains a notice regarding

false statements; or

(b) Sign a statement that contains the notice regarding false

statements.

C. Background Investigations

The Tribe shall request from each primary management official and from

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each key employee all of the following information:

(a) Full name, other names used (oral or written), social security

number(s), birth date, place of birth, citizenship, gender, all

languages (spoken or written);

(b) Currently and for the previous 5 (five) years; business and

employment positions held, ownership interests in those

businesses, business and residence addresses, and drivers license

numbers;

(c) The names and addresses of at least three personal references,

including one personal reference who was acquainted with the

applicant during each period of residence listed under paragraph

(1)(b) of this section;

(d) Current business and residence telephone numbers;

(e) A description of any existing and previous business relationships

with Indian tribes, including ownership interests in those

businesses;

(f) A description of any existing and previous business relationship

with the gaming industry generally, including ownership interests

in those businesses;

(g) The name and address of any licensing or regulatory agency with

which the person has filed an application for a license or permit

related to gaming, whether or not such license or permit was

granted;

(h) For each felony for which there is an ongoing prosecution or a

conviction, the charge, the name and address of the court involved,

and the date and disposition, if any;

(i) For each misdemeanor conviction or ongoing misdemeanor

prosecution (excluding minor traffic violations), within 10 years of

the date of the applications, the name and address of the court

involved and the date and disposition, if any;

U) For each criminal charge (excluding minor traffic charges),

whether or not there is a conviction, if such criminal charge is

within 10 years of the date of the application and is not otherwise

listed pursuant to paragraph (1)(h) or (1)(i) of this section, the

criminal charge, the name and address of the court involved and

the date and disposition;

(k) The name and address of any licensing or regulatory agency with

which the person has filed an application for occupational license

or permit, whether or not such license or permit was granted;

(1) A current photograph;

(m) Any other information the Tribe deems relevant; and

(n) Fingerprints consistent with procedures adopted by the Tribe

according to 25 C.F.R. 522.2(h).

i. these fingerprint exemplars shall be submitted on a form

acceptable to the N.I.G.C.

ii. these fingerprint exemplars shall be collected by the

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division of the Bureau of Indian Affairs, Mescalero

Agency, Law Enforcement Services, which is the law

enforcement agency that has primary responsibility for

maintaining law and order on the Mescalero Apache

Reservation.

2. The Tribe shall conduct an investigation sufficient to make a

determination under subsection D below. In conducting a background

investigation, the Tribe or its agent shall promise to keep confidential the

identity of each person interviewed in the course of the investigation.

D. Eligibility Determination

The Tribe (acting through its President) shall review a persons prior activities,

criminal record, if any, and reputation, habits and associations to make a finding

concerning the eligibility of a key employee of primary management official for

employment in a gaming operation. If the Tribe (acting through the President)

determines that employment of the person poses a threat to the public interest or

to the effective regulation of gaming, or creates or enhances dangers of

unsuitable, unfair, or illegal practices and methods and activities in the conduct of

gaming, a tribal gaming operation shall not employ that person in a key employee

or primary management official position.

E. Procedures for Forwarding Applications and Reports for Key Employees and

Primary Management Officials to the N.I.G.C.

1. When a key employee or primary management official begins work at a

gaming operation authorized by this ordinance, the Tribe shall forward to

the N.I.G.C. a completed application for employment and conduct the

background investigation and make the determination referred to in

subsection D of this section.

2. The Tribe shall forward the report referred to in subsection F of this

section to the N.I.G.C. within 60 days after an employee begins work or

within 60 days of the approval of this ordinance by the Chairman of the

N.I.G.C.

3. The gaming operation shall not employ as a key employee or primary

management official a person who does not have a license after 90 days.

F. Report to the N.I.G.C.

1. Pursuant to the procedures set out in subsection E of this section, the

Tribe (acting through the President) shall prepare and forward to the

N.I.G.C. an investigative report on each background investigation. An

investigative report shall include all of the following:

(a) Steps taken in conducting a background investigation;

(b) Results obtained;

(c) Conclusions reached; and

(d) The basis for those conclusions.

2. The Tribe shall submit, with the report, a copy of the eligibility

determination made under subsection D of this section.

3. If a license is not issued to an applicant, the Tribe (acting through the

President):

(a) Shall notify the N.I.G.C.; and

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(b) May forward copies of its eligibility determination and

investigative report (if any) to the N.I.G.C. for inclusion in the

Indian Gaming Individuals Records System.

4. With respect to key employees and primary management officials, the

Tribe (acting through the President) shall retain applications for

employment and reports (if any) of background investigations for

inspection by the Chairman of the N.I.G.C. or his designee for no less

than three (3) years from the date of termination of employment.

5. The President, may, by Executive Order, promulgate procedures,

consistent with this ordinance, for the orderly compilation and submission

of applications.

G. Granting a Gaming License

1. If, within a thirty (30) day period after the N.I.G.C. receives a report

under F above, the N.I.G.C. notifies the Tribe that it has no objection to

the issuance of a license pursuant to a license application filed by a key

employee or a primary management official for whom the Tribe has

provided an application and investigative report to the N.I.G.C., the Tribe

may issue a license to such applicant under the authority of the I.G.R.A.

2. The Tribe shall respond to a request for additional information from the

Chairman of the N.I.G.C. concerning a key employee or a primary

management official who is the subject of a report. Such a request shall

suspend the 30-day period under paragraph G. 1. of this section until the

Chairman of the N.I.G.C. receives the additional information.

3. If, within the thirty (30) day period described above, the N.I.G.C.

provides the Tribe with a statement itemizing objections to the issuance of

a license to a key employee or to a primary management official for

whom the Tribe has provided an application and investigative report to the

N.I.G.C., the Tribe shall reconsider the application, taking into account

the objections itemized by the N.I.G.C. The Tribe shall make the final

decision whether to issue a license to such applicant.

H. License Suspension

1. If, after the issuance of a gaming license, the Tribe receives from the

N.I.G.C. reliable information indicating that a key employee or primary

management official is not eligible for employment under subsection D.

above, the Tribe shall suspend such license and shall notify in writing the

licensee of the suspension and the proposed revocation.

2. The Tribe shall notify the licensee of a time and a place for a hearing on

the proposed revocation of a license.

3. After a revocation hearing, the Tribe shall decide to revoke or to reinstate

a gaming license. The Tribe shall notify the N.I.G.C. of its decision.

VII. License Locations

The Tribe shall issue a separate license to each place, facility or location on Indian lands

where Class II or Class III gaming is conducted under this Ordinance.

IX. Designation of Agent for Service of Process

The Tribe hereby designates Sara Misquez, Tribal Administrator, as agent for service of

process of official determination, order, or notice of violation pursuant to 25 C.F.R.

§5 19.

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Nothing in this subsection shall in any way be construed as operating as a waiver of

sovereign immunity.

X. Repealer of Prior Ordinances

To the extent that they are inconsistent with this ordinance, all prior Class II and Class III

gaming ordinances complying with requirements of the I.G.R.A. or Regulations

promulgated thereunder, be and hereby are repealed; HOWEVER, ordinances

establishing other regulations for Class II or Class III Gaming, which are more

restrictive, are, and remain, effective under the Tribal Constitution.

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CERTWICATION

The foregoing enactment of the Mescalero Apache Tribal Council is duly adopted and

approved on the 29th day of September, 1995, at a legally called session of the

Mescalero Apache Tribal Council, at which a quorum was present and at which a

majority of the members voted in favor thereof. This enactment is approved by the

President of the Mescalero Apache Tribe under authority of Article Xl, Section 1, of the

Revised Constitution.

Berle Kanseah,

Approved October ., 1995, in accordance ~th Article XII, Section 3, of the

Revised Constitution of the Mescalero Apache Tribe.

William Leeds, Acting Superintendent

Wendell Chino, President