IN THE MATTER OF I 

The February 27,2012 Disapproval of the Final Decision and Order 

Amendment to the Gaming Ordinance of 

June 18,2012 

The Sac and Fox Nation of Oklahoma (Tribe) appeals the National Indian Gaming 

Commission Chairwoman's (the Chairwoman) February 27,2012 disapproval of an 

amendment to the Sac and Fox Nation Gaming Ordinance (the Amendment). 

FINAL DECISION AND ORDER 

After careful and complete review of the appeal filed by the Sac and Fox Nation of 

Oklahoma; the response filed by the Chairwoman through counsel; and a response filed by 

the Tribe. the Commission finds and orders that: 

1. The Chairwoman erred in disappmving the Amendment on the grounds it did not comply 

with 25 C.F.R. 5 522.2: 

2. The Chairwoman erred in disappmving the Amendment on the grounds it did not comply 

with 25 C.F.R. 5 556.2. 

3. The Chairwoman erred in disapproving the Amendment on the grounds it did not comply 

with 25 C.F.R. 5 558.2. 

4. It cannot waive the 90 day appeal decision deadline contained in 25 C.F.R. 5 524.3(a) as it 

would deny the Tribe its right to enact laws governing its gaming activity and it would deny 

the Tribe the right to immediately exercise its rights under 25 U.S.C. 5 2714. 

5. It cannot determine whether the parcels identified in the amendment are eligible for 

gaming because that issue is beyond the scope of this appeal. 

6. It cannot approve the Amendment because it does not have the authority to approve an 

ordinance unless it is consistent with federal law. 

7. The Commission remands the Amendment to the Chairwoman to determine within 90 days 

whether or not the parcels identified therein are eligible for gaming under IGRA. 
The Tribe's Class I1 gaming ordinance was initially approved by Chairman Anthony 

Hope on April 1, 1994. The Tribe's gaming ordinance has been amended four times since 

then, including a 2008 amendment to include Class 111 games, which was approved by 

Chairman Philip Hogen on November 20,2008. 

Part 556 of NIGC regulations require a tribe to include Privacy Act and false 

statement notices on all application forms for key employee or primary management official 

positions. See 25 C.F.R. $8 556.2 and 556.3. In 2009, the NIGC revised its regulations to 

update the notices. Although the new notices were required to be put on all application forms 

after a 180 day grace period, any ordinance that had been approved by the Chair prior to 

December 3 1,2009, the effective date of the revision, did not need to be amended or 

resubmitted for approval. Rather, if a tribe submits a new ordinance, or amends its previously 

approved ordinance, after the effective date, it must reflect the new language. Id. 

At the same time that the Privacy Act and false statement notice regulations were 

revised, NIGC regulations were also amended to require and authorize tribal officials to make 

eligibility determinations for granting a gaming license to key employees or primary 

management officials. See 25 C.F.R. 8 558.2. Prior to the change, the regulations required a 

determination of a key employee's and primary management official's eligibility for 

employment, rather than a gaming license. 

Atter the updated regulations had gone into effect, the Tribe amended its ordinance 

for a third time. The third amendment changed the process for removal of gaming 

commissioners and, as required, updated the Privacy Act and false statement notice 

provisions. Chairwoman Stevens approved the amendment on December 14,2010. 

On December 1,201 1, the Tribe submitted the amendment at issue here. Through 

resolution SF-1 1-194, the Tribe changed the ordinance's definition of Indian lands to include 

five specific parcels of land. The Tribe submitted the amended section of the ordinance only, 

rather than a restated copy of the entire ordinance with the only new change being the Indian 

lands definition. 

On February 27,2012, Chairwoman Stevens disapproved the Tribe's amended 

gaming ordinance on the grounds that the amended ordinance did not include the updated 

Privacy Act and false statement notices and did not comply with updated eligibility 

determinations for granting gaming licenses. Specifically, the disapproval letter stated: 

. . .NIGC regulations require ordinance submissions to include 

updated Privacy Act and False Statement notices as well as updated 

eligibility determinations to grant gaming licenses. 25 C.F.R. $9 

522.2,556.2,556.3,558.2. The Tribe's existing ordinance does not 

include the updated Privacy Act and False Statement notices or the 

updated eligibility determinations for granting gaming licenses, and 

the submitted ordinance amendments do not comply with these 

regulations. Any new submission must satisfy the requirements set 

forth in IGRA and NIGC regulations. 
The disapproval did not address whether the new definition of Indian lands complied 

with IGRA or whether the five specific parcels are Indian lands eligible for gaming under 

IGRA. The disapproval stated, however, that if the Tribe cwes the deficiencies, the MGC's 

Office of General Counsel will coordinate with the Department of the Interior, Office of the 

Solicitor on whether the Indian lands definition is permissible and whether the lands are in 

fact Indian lands eligible for gaming under IGRA. 

On March 28,2012, the Tribe appealed the disapproval on the grounds that the 

Tribe's ordinance complies with the regulations and that the MGC has no authority to 

regulate class I1 or class 111 gaming through the promulgation of regulations that impose 

additional requirements to those specified in IGRA for the approval of gaming ordinances. 

On May 7,2012, Counsel for the Chairwoman submitted a response to the Tribe's 

appeal. The response admitted that the Chairwoman erred in disapproving the Amendment 

based on 25 C.F.R. $3 522.2,556.2 and 556.3. However, Counsel for the Chairwoman 

maintained that the Amendment was rightfully disapproved because it did not comply with $ 

558.2. Additionally, the Chairwoman urged the Commission to waive the 90 day deadline for 

issuing a decision on the appeal so that it could determine the Indian lands issue. 

On May 15,2012, the Commission issued a scheduling order in this matter requesting 

a reply from the Tribe to the Chairwoman's Response to the Tribe's Appeal. 

On May 24,2012, the Tribe submitted its reply brief concurring in the Chairwoman's 

contention that Commission should decide the Indian lands issue, but objected to an open 

ended briefing schedule. The Tribe also argued that the Chairwoman's reliance on Chevron v. 

Natural Resources Defense Council, 467 U.S. 837 (1984) is misplaced. The Tribe further 

argued that even if Chevron is applicable, it can be resolved in the Tribe's favor at step one 

of its two-part test. Barring that, step two also makes clear that the Chairwoman's 

interpretation of IGRA is not entitled to deference. 

DISCUSSION 

THE CHAIRWOMAN ADMITS ERROR IN BASING DISAPPROVAL 

OF THE AMEMDMENT ON 

25 C.F.R $5 522.2,556.2, AND 556.3. 

The Chairwoman, through counsel, admitted error in disapproving the Amendment as 

to NIGC regulations, 25 C.F.R. $8 522.2,556.2, and 556.3. The ordinance updates required 

by those regulations were properly submitted by the Tribe in 2010 and approved by the 

Chairwoman on December 14,2010. 

11. THE CHAIRWOMAN ERRED IN DISAPPROVING 

THE AMENDMENT BASED ON 25 C.F.R. 5 558.2. 

The Tribe argues that that the Commission's promulgation of $ 558.2 was arbitrary 

and capricious and not authorized by IGRA. See Appeal, pp. 2-3. Specifically, the Tribe 

claims that IGRA does not authorize the Commission to add requirements for the approval of 

an amendment to tribal gaming ordinances. Id. at p. 3. We disagree with the Tribe and agree 

with the Chairwoman that 8 558.2 is a reasonable interpretation of IGRA. 
An agencv's - - intemretation of a statute which it administers is entitled to deference 

unless Congress has directly spoken to the precise question at issue or, if the statute is "silent 

or ambiguous," the agency's interpretation is not based on a reasonable construction of the 

statute. Chevron v. Natural Resources Defense Council, 467 U.S. 837,842 (1984). 

According to the Tribe, the Chairwoman's reliance on Chevron is misplaced. We 

disagree. The Tribe claimed that the Commission has no authority to issue 5 558.2 and that 

the interpretation is arbitrary and capricious. See Appeal, pp. 2-3. IGRA makes clear, though, 

that the NIGC administers IGRA and is required to "promulgate such regulations and 

guidelines as it deems appropriate to implement the provisions of [IGRA]." 25 U.S.C. 5 

2706@)(10). The question remaining, then, is whether the regulation is entitled to deference, 

which is determined by the test laid out by Chevron. 

We believe that 5 558.2 is a reasonable interpretation of IGRA. We disagree with the 

Tribe that the question can be resolved at step one of the Chevron test. We agree with the 

Chairwoman that IGRA is ambiguous as to the question at issue. IGRA requires a tribal 

gaming ordinance to include a background investigation procedure that contains a standard 

whereby any person whose prior activities, criminal record, etc. poses a threat to the public 

interest or regulation of gaming shall not be eligible for employment. See 25 U.S.C. 5 

2710@)(2)(f)(ii)(II). Although IGRA's use of the term employment seems clear when the 

specific sub-section is read in isolation, it becomes less so when put into the context of the 

surrounding provisions. Sections 2710@)(2)(f)(ii)(I) and (III) are concerned only with 

licensing. Therefore, the Statute is ambiguous and 5 558.2 is a reasonable interpretation of 

that ambiguity. 

However, we believe the Chairwoman wrongly applied 5 558.2 and that the Tribe's 

gaming ordinance, as amended, is in compliance with the regulatory requirements of 5 558.2. 

In 2009, when changing 25 C.F.R. 5 558.2's applicability to licensing rather than 

employment decisions, the Commission noted that the regulation "should be concerned with 

licensure and suitability determinations, not employment decisions." 74 FR 36926,36928 

(July 27,2009). We agree with this point, but believe that this pertains to the NIGC, not 

tribes. The Commission agrees that its focus in ensuring suitability determinations are made 

should be, and in fact is, limited to licensing decisions. If, however, a tribe wishes to broaden 

its focus through its ordinance to include employment decisions, it should be able to do so. 

This view is directly supported by the regulation itself. NIGC regulations require a 

tribe to "perform background investigations and issue licenses for key employees and 

primary management officials according to requirements that are at least as stringent as those 

in parts 556 and 558 of this chapter." 25 C.F.R. 5 522.4@)(5). When read in the context of 

this section, then, it is clear that part 558 is merely a minimum requirement that tribes must 

follow when making suitability determinations. 
Here, in addition to requiring that all key employees and primary management 

officials' be licensed, the Tribe's gaming ordinance goes beyond IGRA's mandate and also 

requires aN other employees (non-key employees) be licensed as well. See Sac & Fox 

Gaming Ordinance $8 1-531 - 1-536. Since only key employees and primary management 

officials are subject to IGRA, the licensing standard for non-key employees can be, and in 

this case is, different - the Tribe's gaming ordinance contains two separate licensing 

processes and suitability standards: Subchapter A - Key Employee and Primary Management 

Official Licensing; and, Subchapter B - Non-Key Employee Licensing. See Sac & Fox 

Gaming Ordinance $8 1-51 1 - 1-536. 

Further, all gaming licenses, whether issued to a key employee, primary management 

official, or a non-key employee are valid only "so long as the employee remains employed." 

See Sac & Fox Gaming Ordinance 5s 1-520 and 1-535. Although the Tribe's ordinance uses 

the term employment instead of license, the employment of a key employee and primary 

management official explicitly requires a license and vice versa. Thus, the gaming 

ordinance's use of the term employment is, in this case, at least as stringent as 5 558.2. 

Even if the term license were not synonymous with employment in this case, NIGC 

regulations prohibit the continued employment of a key employee or primary management 

official who does not have a license within 90 days of beginning work. See 25 C.F.R. 5 

558.3(b). Thus, a key employee's or primary management official's eligibility for 

employment is always dependent on the grant of a gaming license, whereas a key employee's 

or primary management official's gaming license need not be dependent on their 

ekployment. In such circumstances, a ordinance's use of the term employment is 

more stringent than license. 

Further, in drafting 5 558.2 the Commission could have specified in the regulation 

that verbatim language was required. This is exactly what the Commission did when 

promulgating revisions to 5 556.2 and 5 556.3. However, in the case of 5 558.2, the 

Commission chose to not require specific language. This choice is logical when considering 

that NIGC regulations require the Chair to approve an ordinance if, among other things, it 

provides that the tribe will "perform background investigations and issue licenses for key 

employees and primary management officials according to requirements that are at least as 

stringent as those in parts 556 and 558 of this chapter." 25 C.F.R. §522.4(b)(5). If 5 558.2 

requires tribes to adopt its language verbatim then a tribe would not be allowed to make its 

requirements more stringent and would therefore make the language of 5 522.4 meaningless. 

111. THE COMMISSION CANNOT PR0PERL.Y DETERMINE 

THE ELIGIBILITY OF THE PARCELS FOR GAMING IN 

THIS INSTANCE. 

As previously noted, the Chairwoman's disapproval of the Amendment did not 

address the issue of whether or not the parcels of land identified by the Tribe were eligible 

for gaming. Appeals under part 524 contemplate a summary determination by the 

' The Tribe's gaming ordinance defmes Key Employee and Primary Management Official exactly as 

defined in NIGC regulations, 25 C.F.R. $5 502.14 and 502.16, and references the corresponding NIGC 

regulation after each definition. See Sac & Fox Gaming Ordinance §$ 1-102(Q) and 1-102(Z). 
Commission on the narrow question of whether the Chairwoman properly observed IGRA's 

requirements for approving or disapproving an amendment to a tribal gaming ordinance. The 

Commission believes that it would he inappropriate to determine the Indian lands issue in the 

context of an appeal because the question was not considered by the Chairwoman in reaching 

her decision. The Chairwoman could have analyzed the Indian lands issue but did not. 

Further, if the Commission were to decide this issue on first impression, the Tribe would be 

deprived of its right to an administrative appeal. 

The Chairwoman correctly notes that the Commission has previously reviewed 

Indian lands eligibility without an underlying decision by the Chair. See In Re Wyandotte 

Nation Amended Gaming Ordinance (September 10,2004). That is not a common 

occurrence, though, as the Commission made clear by stating: "We do not typically agree to 

forego the Chairman's issuance of an ordinance disapproval letter and any resultant appellate 

process." Id. at p. 3. The Commission did so in Wyandotte based on specific factors that are 

not present here. 

In Wyandotte the NIGC Office of General Counsel (OGC) had prepared and issued a 

legal advisory opinion on the status of the relevant parcel for gaming. In fact, the OGC had 

revised its opinion on at least one occasion before the full Commission made its decision. No 

such opinion has been issued in this case. Additionally, in Wyandotte, the eligibility of the 

land for gaming under IGRA was the subject of active litigation. That is not the case here. 

Unlike in Wyandotte, we cannot point to any facts in this matter that warrant assuming the 

Chairwoman's authority to make a preliminary Indian lands determination or depriving the 

Tribe to its right to an administrative appeal of that decision. We therefore remand the Indian 

lands question to the Chairwoman for a decision. 

IV. THE COMISSION NEED NOT WAIVE THE 90 DAY 

REQUIREMENT FOR ISSUING A FINAL DECISION IN THIS 

The Chairwoman has requested that the Commission waive the 90 day time period set 

forth in 25 C.F.R. 9 524.3(a) so that it may solicit and consider further briefing on the Indian 

lands issue. But because we have decided that the Indian lands question must first be decided 

by the Chairwoman, a waiver of ow decision deadline for purposes of briefing on that issue 

is unnecessary. 

THE COMMISSION CANNOT APPROVE AN ORDINANCE 

UNLESS IT IS CONSISTENT WITH FEDERAL LAW. 

Finally, we find that we cannot grant the Tribe its requested relief of approving the 

ordinance amendment. IGRA permits tribes to game only on Indian lands over which they 

exercise jurisdiction. See 25 U.S.C. 5 2710(b)(l). Because the amendment to the Tribe's 

gaming ordinance is site specific, the status of those lands must first be determined by the 

Chair before it can be approved.2 We cannot approve an ordinance amendment that 

See Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295,323-324 (W.D.N.Y. 2007) 

("Whether proposed gaming will be conducted on Indian lands is a critical, threshold jurisdictional 

determination of the NIGC. Prior to approving an ordinance, the NIGC Chainnan must confirm that the 

situs of proposed gaming is Indian lands."). 
authorizes gaming on specific parcels of land without first determining the eligibility of the 

land for gaming under IGRA. Because that question is for the Chairwoman to decide, and no 

determinkon has been made, we cannot grant the Tribe the relief it requests. 

CONCLUSION 

Given all of the foregoing, the Commission orders that the Amendment be remanded 

to the Chairwoman to determine the eligibility of the identified parcels for gaming under 

IGRA. The Chairwoman is ordered to issue the determination with 90 days of tlus decision. 

It is so ordered by the National Indian Gaming Commission, this 18th day of June, 2012. 

Vice-Chairwoman 
Certificate of Service 

I hereby certify that on June 18,2012,1 served the foregoing final decision and order by 

hand delivery, electronic mail, and certified mail on: 

G. William Rice 

4809 East 9" St. 

Cushing, OK 74023 

gwilliamrice@hughes.net 

Lawrence S. Roberts 

General Counsel 

National Indian Gaming Commission 

1441 L St. NW 

Suite 9100 

Washington, DC 20005 

Jo-Ann Shyloski 

Associate General Counsel 

National Indian Gaming Commission 

1441 L St. NW 

Suite 9100 

Washington, DC 20005 

Dawn Sturdevant Baum 

Attorney 

National Indian Gaming Commission 

1441 L St. NW 

Suite 9100 

Washington, DC 20005 

Michael C. Hoenig 

NIGC Senior Attorney