Ho-Chunk Nation Department of Justice

Compliance Division

W9814 Airport Road, PO Box 667

Black River Falls, WI 54615

Phone (715) 284-7570 - (800) 280-2843 - FAX (715) 284-7740

Page 1 of 3

August 3, 2021

RE: National Indian Gaming Commission, Tribal Consultation Series A

Dear Chairman Simermeyer,

After review of the NIGC proposed changes to 25 CFR §502, §522 and §556, I would like to 

submit the following comments. I recognize that some of my comments may be in the minority, 

but I feel they should be included nonetheless. Thank you for your consideration in this matter. 

I have no comments for §537.

The issue of fingerprint submissions was raised during the July 27th virtual consultation that I 

attended. It is understood that NIGC received an audit finding because the FBI considered 25 

CFR §502.14 (d) too vague or possibly a determination at the tribal level versus the federal level. 

When this information was disseminated to the tribes in early 2020, tribe’s expressed concerns 

because they could no longer submit fingerprints through NIGC for tribal gaming commission 

staff and surveillance personnel or any other person designated under a tribal gaming ordinance. 

As the Compliance Director for the Ho-Chunk Nation for the past 16 plus years, it is this area 

that concerns me the most. In addition, NIGC requested comments regarding any impact or 

unforeseen consequences of the proposed changes. I hope my comments assist NIGC in this 

respect.

25 CFR §502.14 Key Employee Definition:

1. If I were the FBI, I would reject the proposed changes in §502.14 (a) (11) and (12) 

because it is no different than language in the current subsection (d) “Any other person 

designated by the tribe as a key employee.” The current and proposed language in these 

subsections are based on a tribe’s discretion, not a mandate established in federal law as

required in the FBI CHRI rules. Therefore, a tribe would still not be able to submit CHRI 

requests for the purpose of licensing tribal gaming commission staff or anyone else who 

is not directly employed by the gaming operation. 

2. With respect to criminal records checks of tribal gaming commission staff for licensing 

purposes, it is my opinion that licensing is not necessary because these persons perform a 

tribal governmental regulatory function. The Key Employee definition is based on 

functions an employee of a gaming operation performs with respect to the conduct of 

gaming. For clarity, I believe that the phrase “in a gaming operation” should be added to 

all proposed subsections of §502.14 and not just in §502.14 (d). Again, creating new 

subsections that gives tribe’s discretion to consider persons who maintain custody of 

gaming records or monitor compliance may not be sufficient to meet FBI requirements. 

3. In order to expand the definition of key employee to include individuals who are not 

direct employees of a gaming operation, the NIGC would need to rename the term to 

“Key Person”. The use of the word “employee” limits the definition to individuals 
NIGC/Tribal Consultations on Proposed Changes to 25 CFR §502 & §522

Page 2 of 3

employed by the gaming operation even if it is not specified. It also raises questions or 

causes confusion with respect to other “employees” of a tribe who do not work in a 

gaming operation, such as, I.T., or vendor employees, such as IGT Techs, who might 

have remote access to gaming software.

4. Why surveillance is currently not in this subsection has always been puzzling to this 

commenter. NIGC should simply add the surveillance function under §502.14 (a). 

Surveillance is an integral part of the gaming operation as established under 25 CFR §543 

without identifying the supervision or command and control of surveillance personnel.

5. Inserting “irrespective of employment status and compensation” to the definition does not 

help clarify the definition. If the focus of a key employee remains on the function 

performed, then there should be no reason to insert additional language about 

employment status and compensation. Each subsection should be clear enough in its 

interpretation and intent to stand on its own, this proposed language does not achieve that 

objective. The inclusion of “catch-all” provisions becomes problematic and should be 

avoided.

6. NIGC should consider clarifying the definition of “gaming operation” in §502.10 since it 

is used in §502.14 (d), but not in others. For example; the NIGC approved Ho-Chunk 

Nation gaming ordinance specifically states that areas such as hospitality, maintenance, 

food-n-beverage, hotel, etc. are not considered part of the “gaming operation.” This adds 

clarity regarding who is considered a key employee.

7. As a tertiary issue, the current vagueness of these definitions often raises questions about 

the scope of NIGC’s and a tribal gaming commission’s authority related to generally 

accepted non-gaming or ancillary activities associated with gaming. The Ho-Chunk 

Nation’s January 2021 NIGC compliance visit highlighted a conflict between NIGC’s 

interpretation of the current §502.14 (b) and the NIGC approved Ho-Chunk Nation 

gaming ordinance leading to individuals performing non-gaming related ancillary 

functions, such as food-n-beverage, requiring criminal records checks and licensing as a 

key employee when they are not performing key employee functions. The increase in the 

wage to $100K in the proposed change does not address this issue from a function or 

scope of regulatory authority standpoint. The recent incident also raises concerns 

regarding whether NIGC is performing compliance monitoring without regard for the 

tribe’s right to regulate gaming based on established NIGC approved tribal gaming 

ordinances.

8. The proposed §502.14 (b) might be too vague because the term “secured areas” is not 

defined.

25 CFR §502.19 Primary Management Official:

1. NIGC may want to reconsider and delete the proposed subsection (3) “To supervise a 

Key Employee” from the Primary Management Official definition. If NIGC adopts the 

proposed language in §502.14 to include a person who is “Custodian of licensing 

records” or “Compliance inspector or monitor” that would permit tribal gaming 

commissions to license their staff as key employees, then the NIGC is by default making 

tribal gaming commissioners Primary Management Officials with the adoption of 

subsection 502.19 (3). So, why create a conflict whereby a tribal gaming regulator is 

considered a Primary Management Official? This is contrary to the tribal gaming 

commission’s purpose and function as gaming regulators and are prohibited from having 
NIGC/Tribal Consultations on Proposed Changes to 25 CFR §502 & §522

Page 3 of 3

any management authority over a gaming operation. This supports my earlier comment 

in that tribal gaming regulators and their staff should not be considered key employees 

and should not be subject to licensing. Tribes may feel such licensing is necessary, but it 

is not. Tribes that currently license tribal regulatory staff have undoubtedly had the 

conversation of who regulates the regulators. Like the Ho-Chunk Nation, many tribal 

gaming commissioners are appointed individuals and not subject to licensing, but are 

held to standards “at least as stringent as” §556 & §558 as an appointed tribal officials. 

Tribal gaming commission staff can be held to the same standard through normal hiring 

practices and job descriptions without causing a conflict. The tribe may need to engage 

the services of a third party to perform a background check.

25 CFR §556.4: 

1. Clarity needs to be provided regarding §556.4 (a) (14) “Fingerprints consistent with 

procedures adopted by a tribe ...” The interpretation of this subsection created concerns 

and confusion during the Ho-Chunk Nation’s NIGC compliance visit in January 2021 

when the NIGC Compliance Officer initially stated that the tribe must have a copy of the 

FBI fingerprint card in the gaming file based on this provision. After much discussion, 

the NIGC Compliance Officer reversed his position and did not consider the absence of 

the FBI fingerprint card as a deficiency. The Ho-Chunk Nation implemented digital 

fingerprinting back in 2007 and stopped maintaining hard copy fingerprint or digital 

fingerprint cards because §556.4 (a) (14) only requires a tribe to obtain fingerprints based 

on the procedures adopted by the tribe. Subsection §556.4 (a) (14) also references §522.2 

(h), which also does not mandate the retention of FBI fingerprint cards. To maintain a 

copy of the procedure for obtaining fingerprints in each applicant file appears 

unnecessary. See additional comments pertaining to §522.2 below. 

25 CFR §522.2 (h): 

1. §522.2 (h) in the current and proposed change seems to mandate that tribes use law 

enforcement agencies to “take fingerprints” and conduct criminal history checks. In 

reality, many tribes use technology to capture and submit fingerprints as part of the 

procedures used to conduct their own criminal history checks on applicants through 

NIGC or their State Justice Departments. In Wisconsin, tribes can take and submit 

fingerprints directly to the WI DOJ CIB through Badger Net or can use the exclusive 

third party vendor Fieldprint or use NIGC. 

2. The proposed language in §522.2 (b) for a tribe to provide a copy of the procedures to 

conduct a background investigation should be sufficient and would inevitably include 

the process for obtaining fingerprint based FBI CHRI requests or NIGC can 

specifically mention that the FBI requirement must be included in the tribe’s

procedure. Subsection §522.2 (h) could then be deleted and §556.4 (a) (14) could be 

changed to reference §522.2 (b).

Sincerely,

Joe Buse

Compliance Director

Ho-Chunk Nation Dept. of Justice, Compliance Division