V.

Implications; to articulate their own proposals and rationales; and to engage in
discussions with other affected Tribes.

The Consultation Process

The consultation process is triggered whenever the NIGC is considering, formulating or
implementing an Action with Tribal Implications. The timing, nature, complexity and
extent of the consultation will be appropriate to the Action with Tribal Implications
involved. Generally speaking, the process unfolds chronologically in the following

stages.

A.

Identifying Consultation Issues

The NIGC will have mechanisms and procedures in place to ensure that its
proposed actions are routinely screened for Tribal implications, consistent
with this Policy, and that any proposed actions deemed to be Actions with
Tribal Implications are then reported to the Commission. Additionally, as
soon as possible, the NIGC will identify the underlying matters which may
justify a proposed NIGC Action. Once identified, the NIGC will share this
information with Tribes, along with an explanation as to why an NIGC action
or decision may be necessary.

Early Consultation on Possible NIGC Action

The NIGC will consult with Tribes during the initial planning stage of an
Action with Tribal Implications that is under consideration by the NIGC. The
NIGC may conduct a meeting or other forms of interaction with Tribes at this
stage in order to receive and evaluate comments received.

Initial planning activities include efforts preparatory to issuance of draft
regulations, guidance, NIGC proposals, legislation and national or large-scale
regional changes in procedures or policies.

Initiating Consultation

Consultation is required when the criteria for an Action with Tribal
Implications are satisfied. When considering an Action with Tribal
Implications, the NIGC will notify the appropriate Tribes of the opportunity to
consult as set forth in this Policy.

A Tribe may request consultation with the NIGC when it believes that the
NIGC is considering an Action with Tribal Implications. Requests should be
made in writing to the TCO with a description of the specific Action. Once a
request for consultation is received from a Tribe or Tribal Official, the TCO
will promptly confirm receipt of the request and reply within 30 days.

Draft of March 8, 2011
Page 5 of 10


The NIGC will prioritize the development and maintenance of accurate, updated contact
lists for Tribes. It will collaborate with national and regional intertribal groups and other
Federal agencies to maximize effective communication with Tribes.

The NIGC will communicate and collaborate with Tribes to accomplish regular,
meaningful and early consultation. The NIGC will routinely post consultation
information on its website, including comments, transcriptions and outcomes. The NIGC
will assign designated employees responsibilities for communicating regularly with
Tribes about consultation-related matters.

The NIGC will identify and seek to address impediments, both external and internal, to
improving its consultation processes, and will routinely solicit Tribes’ evaluation of
specific consultation events and consultation practices generally.

With Other Federal Agencies

The NIGC will work with other Federal agencies to consult with Tribes on issues subject
to overlapping jurisdiction and responsibilities, such as gaming and law enforcement.
The NIGC will collaborate with other Federal agencies to maximize effective
communication with Tribes.

VIII. Trainings

The NIGC will establish annual targets for providing training opportunities for its staff.
NIGC employees will receive training on the government-to-government relationship
with Tribes; the consultation policy and process; the Federal government's trust and
treaty responsibilities; and basic information about Indian traditions, culture, history and
governments. Trainings for NIGC employees will acknowledge Tribal sovereignty, and
will promote self-governance and consultation, communication, collaboration and other
interaction with Tribes.

IX. Judicial Review
This policy is intended only to improve the internal management of the NIGC and is not

intended to create any right, benefit, or trust responsibility, substantive or procedural,
enforceable at law by a party against the United States, its agencies or any person.

Draft of March 8, 2011
Page 10 of 10


After due consideration of Tribal comments and suggestions, and the
Commission reaches an outcome, or fails to reach an outcome, consultation
results will be provided to Tribes by the NIGC within 45 days of any decision.
The results provided to Tribes will include a synopsis of Tribal issues and
concerns; a description of the NIGC’s consideration of the issues and
concerns; and either the acceptance of the Tribes’ suggested position or an
explanation of the NIGC’s determination. Consultation outcomes will be
available to Tribes and published on the NIGC website.

H. Post-Consultation Review

The NIGC will implement procedures for the receipt and consideration of
post-consultation complaints, objections and alleged inconsistencies with the
Policy and EO 13175. Complaints, objections and alleged inconsistencies will
be subject to internal review. Results of the internal review will be provided
to Tribes.

VI. Accountability and Transparency

The NIGC will ensure compliance with the Policy and EO 13175 by providing both
internal accountability within the NIGC and external accountability to Tribes.

A. NIGC Consultation Officials

To facilitate and enhance accountability, the NIGC Chairperson will appoint a
Tribal Consultation Officer (“TCO”) from the central office and a Point of
Contact (“POC”) from each regional office and assign them consultation-
related responsibilities. The TCO and POCs will coordinate consultation-
related activities within the NIGC and with Tribes at the direction of the
Commission. These responsibilities will include: (1) responding to inquiries
from Tribes about a specific consultation — past, ongoing or proposed; (2)
responding to inquiries about the consultation process in general; (3) receiving
requests from Tribes seeking to initiate consultation and then forwarding them
to the Commission for consideration and a response; (4) coordinating with the
Commission to identify and screen for potential consultation issues; (5)
preserving and maintaining complete consultation records; (6) assisting Tribes
seeking to access consultation records; and (7) receiving post-consultation
complaints, objections and alleged inconsistencies and then forwarding them
to the Commission for consideration and a response.

fl, Tribal Consultation Officer (“TCO”) — The TCO is the NIGC employee
primarily responsible for coordinating implementation of this Policy
within the NIGC and with other Federal agencies.

Draft of March 8, 2011
Page 7 of 10


G.

Pre-consultation Event Planning

The NIGC will work with Tribes to structure a process and establish a
timeline that maximizes the opportunity for timely input by Tribes and is
consistent with both Tribal and NIGC schedules.

When selecting a consultation location, the NIGC will informally seek Tribal
input and attempt to find a location which is convenient for attending Tribes.
When feasible, the NIGC will schedule its consultations at the same time as
regional and national intertribal conferences and gatherings and in
coordination with other Federal agencies.

Consultation Events

Adequate and timely notice of a consultation event and the opportunity to
consult will be provided to Tribes as set forth in this Policy. The format of the
consultation event will reflect the number of participants and the nature and
complexity of the proposed NIGC Action.

During the consultation event, NIGC participants will respond to questions
and concerns voiced by Tribal participants and communicate openly about the
NIGC’s rationales, policy goals and institutional limitations.

Consultation events will be transcribed. Transcriptions will be published on
the NIGC website. Written comments from Tribes, including those unable to
participate or attend, will be received, considered and published by the NIGC
on its website.

Consultation Event Follow-up

Following a consultation event, the NIGC may schedule additional, follow-up
consultation. Tribes can request additional, follow-up consultation. Less
formal dialogue and communication may continue between the NIGC and
participating Tribes after the consultation event. Depending on the nature of
the consultation, follow-up written comments may be accepted and considered
by the NIGC prior to final decision making.

To the extent possible, the NIGC will respond to unanswered questions and
remaining concerns of Tribes following the consultation, but before any final

decisions are made.

Consultation Conclusion

Draft of March 8, 2011
Page 6 of 10


Once consultation is concluded, and the Commission reaches an outcome, or
fails to reach an outcome, results will be provided to Tribes by the NIGC
within 45 days of any decision. The results provided to Tribes will include a
synopsis of Tribal issues and concerns; a description of the NIGC’s
consideration of the issues and concerns; and either the acceptance of the
Tribes’ suggested position or an explanation of the NIGC’s determination.
Consultation outcomes will be available to Tribes and published on the NIGC
website.

Consultation events will be transcribed. A complete record of the consultation
will be preserved and maintained by the TCO. Consultation records will
include, but not be limited to: (1) the notice of consultation provided to
Tribes; (2) requests from Tribes seeking to initiate consultation and the
NIGC’s response; (3) written comments submitted by Tribes; (4)
transcriptions of consultations; and (5) consultation summaries (final

outcome, a synopsis of Tribal issues and concerns, a description of the
NIGC’s consideration of consultation topics and Tribal comments, and a
justification for the position adopted by the NIGC, if contrary to the Tribes’
suggested position).

Consultation records will be accessible to any Tribe or Tribal Official upon
request to the TCO or regional POC. The NIGC will post consultation
information on its website, including comments, transcriptions and outcomes.
Annual consultation reports or summaries, compiled by the NIGC, will also
be posted on the NIGC website.

VII. | Communication, Coordination and Collaboration

The NIGC will strive to utilize a number of opportunities for improved communication
with Tribes, including consultation, information-sharing sessions, listening sessions,
meeting with individual Tribes, and informal discussions with Tribal leaders. The NIGC
may also use a Tribal leader task force or Tribal advisory group to help inform its
decision making and gain a better understanding of the Tribal perspective on a proposed
Action. The selection process for members of task forces and advisory groups will be
accomplished with input from Tribes.

With Tribes

Communication methods will avoid impersonal forms of communication; be designed to
effectively gain the attention of individual Tribal leaders; build on best practices; utilize
appropriate forms of technology; and be routinely assessed by Tribes for their
effectiveness. Communication will strive to be open and transparent.

Draft of March 8, 2011
Page 9 of 10


DRAFT NIGC GOVERNMENT-TO-GOVERNMENT
TRIBAL CONSULTATION POLICY

I Preamble

Consultation is at the heart of the special government-to-government relationship
between the United States and Indian Tribes. It is a process which facilitates and
formalizes the exchange of information between sovereigns and enables Tribes to
participate in Federal decision making before an agency takes an action or commits to a
decision with Tribal implications. As part of the consultation process, Tribal input is
sought, received, responded to and considered by Federal agencies. The process is not a
single act of communication, but one involving multiple steps which culminate in an
outcome that reflects the views, needs and objectives of both Federal and Tribal
participants.

The obligation of Federal agencies to engage with Tribes on a government-to-
government basis is rooted in the centuries-old, special relationship between the Federal
government and Tribes. Recognition of this special relationship can be found in the U.S.
Constitution, treaties, statutes, regulations, executive actions, judicial tulings and, since
2000, Federal policy established by Executive Order 13175, Consultation and
Coordination with Indian Tribes. As an independent Federal agency serving more than
240 Tribes with gaming operations, the National Indian Gaming Commission (“NIGC”)
engages with Tribes on a government-to-government basis when it consults with Tribes
in accordance with this Policy and EO 13175.

The Indian Gaming Regulatory Act (“IGRA”), signed into law in 1988, provided a
statutory basis for the operation of gaming by Indian Tribes and established the NIGC to
oversee Indian gaming and implement the Act’s regulatory scheme in partnership with
Tribes and other governmental entities. A key policy of IGRA is to promote Tribal
economic development, Tribal self-sufficiency and strong Tribal governments through
Indian gaming. This Tribal Consultation Policy represents the NIGC’s renewed and
unwavering commitment to regular, meaningful and timely consultation with Tribes as it
strives to fulfill its statutory mission. It reflects the continuing relevancy and vitality of
the government-to-government relationship and the importance of the NIGC and Tribes
working in partnership to best realize the purposes of IGRA.

16 Definitions

A. Consultation — A process which enables Tribes to participate in Federal
decision making before an agency takes an action, or commits to a decision,
with Tribal implications. It is not a single act of communication, but consists
of multiple steps which culminate in an outcome that reflects the views, needs
and objectives of both Federal and Tribal participants. Consultation is
triggered when the definition of an Action with Tribal Implications or Policies
that Have Tribal Implications (EO 13175), or both, are met. It can be forrnal

Draft of March 8, 2011
Page 1 of 10


The TCO will provide certificates of compliance with EO 13175 for draft
final regulations and proposed legislation with Tribal implications to the
Office of Management and Budget.

The TCO will be responsible for communicating regularly with Tribes
about consultation-related matters, including receiving and forwarding
requests for consultation from Tribes to the Commission and responding
to any inquiries about a specific consultation or the consultation process in
general. The TCO will compile and maintain an accurate, updated contact
list for communicating with Tribes. The TCO will preserve, maintain and
make accessible to Tribes a complete record of each consultation.

Point of Contact (“POC”) — Each NIGC regional office’s region director,
or whoever is designated by the Chairperson, will be the Point of Contact
responsible for coordinating consultation efforts within his or her region
and with the central office. The POC will communicate with Tribes in
their regions about consultation-related matters and work closely with the
TCO.

Internal Accountability and Reports

On an annual basis, the TCO, in collaboration with the regional POCs, shall
report to the Chairperson the results of agency-wide efforts to facilitate and
ensure meaningful, timely and regular consultation with Tribes. Reports are
intended to be comprehensive and should include, at a minimum: (1) the
scope of agency-wide consultation efforts; (2) the results of those efforts; (3) a
comprehensive list of the topics on which consultations were held; (4) a list of
attendees, including Tribal affiliation and title, if any; (5) a summary of the
extent of engagement of senior NIGC leadership in consultations;

(4) narratives describing significant consultation efforts; and (5) a list of
anticipated future consultation opportunities. The report will also include a
list of any training related to consultation and collaboration with Tribes.

If applicable, an NIGC employee’s performance evaluation will include an
assessment of his or her participation in consultation or training in furtherance

of this Policy.

External Accountability to Tribes

The TCO will work with the NIGC central and regional offices to compile a
list of proposed Actions with Tribal Implications requiring consultation and,
once finalized, share that list with Tribes. The TCO will receive inquiries
from Tribes attempting to initiate consultation and then forward them to the
Commission for consideration and a response. The TCO will communicate
and coordinate with Tribes about the pre-consultation planning for a
consultation event at the direction of the Commission.

Draft of March 8, 2011
Page 8 of 10


D.

Timely Notice — Timely notice of an opportunity to consult will be given to
Tribes at least 45 days prior to a scheduled consultation. If exceptional
circumstances prevent notice within 45 days of the consultation, an
explanation for the abbreviated notification will be provided in the invitation
letter.

Consultation Access ~ If an individual Tribe or Tribal region is primarily
impacted by the issue that is the subject of the consultation, the NIGC will
make every effort to hold the consultation in that area. If the consultation
involves joint action with other Federal agencies, the NIGC will attempt to
hold a joint consultation with the other agencies. The NIGC will also explore
opportunities for consultation through innovative sources, such as video
conferencing, teleconferencing and interactive web technology.

Consultation Formats — Consultation can take many forms and will reflect the
number of expected participants and the nature and complexity of the
proposed NIGC Action. For example, it may consist of national, regional or
individual meetings or teleconferences with Tribes or Tribal Officials. It may
consist of a series of meetings, open to all Tribes and Tribal Officials, or a
single meeting with one Tribe. It can be formal (rulemaking), with
established time lines and required publication of draft rules and comments, or
less formal (teleconferencing).

Consultation Structure — The seating arrangement, agenda and opportunities
for dialogue will seek to respect the sovereignty of Tribes and reflect the
government-to-government relationship.

Consultation Participants — Unless exceptional circumstances dictate
otherwise, NIGC representatives at consultations will include an official with
decision-making authority; a subject-matter expert knowledgeable about the
consultation topic; and, for regional consultations, the region’s POC. The
NIGC will seek participation by Tribes or Tribal Officials, and encourage
participation by other Tribal representatives knowledgeable about the
consultation topic.

Consultation Preparation — To prepare for an upcoming consultation,
participating NIGC employees will make every effort to learn about those
Tribes participating in consultation and affected by the proposed NIGC
Action, including a Tribe’s geographic location, governmental structure,
history, culture and economic base.

Sufficient Time for Consideration — Throughout the consultation process, the
NIGC will be as flexible as possible to allow sufficient time for Tribal
governmental bodies and organizations to adequately review and analyze
matters which may or do lead to a proposed NIGC Action with Tribal

Draft of March 8, 2011
Page 4 of 10


IV.

Indian gaming is used by Tribes as a tool to effectively serve Tribal
communities by strengthening Tribal governments, enhancing a community’s
self-sufficiency, and creating economic opportunities, growth and stability.

The NIGC will honor Tribal treaty and other rights.

The NIGC will strive to meet the responsibilities that arise from the unique
legal relationship between the Federal government and Tribal governments.

The NIGC will approach the consultation process on a government-to-
government basis with due respect for, and deference to, the sovereign rights,
power and authority of Tribal governments.

The NIGC will encourage Tribes to develop their own policies to achieve
program objectives, and, when possible, defer to Tribes to establish their own
standards.

In determining whether to establish Federal standards, the NIGC will consult
with Tribal officials as to the need for the Federal standards under
consideration and the availability of any alternatives that would limit the
scope of the standards or otherwise preserve the prerogatives, authority and
autonomy of Tribes.

Consultation Guidance

According to EO 13175, “each agency shall have an accountable process to ensure
meaningful and timely input by Tribal officials in the development of regulatory policies
with Tribal implications.” Although the substance and format of consultations can differ
dramatically, the following guidance applies to all NIGC consultations.

A.

Early Tribal Involvement — For Tribal participation in consultation to be
meaningful, it must happen early and often. The NIGC will include Tribes in
the conversation before it takes an Action with Tribal Implications or adopts a
Policy with Tribal Implications.

Consultation Triggers — Consultation is required whenever the NIGC is
considering an Action with Tribal Implications. The criteria found in the
definition of an Action with Tribal Implications must be satisfied before
consultation is required.

Adequate Notice — Adequate notice of an opportunity to consult will include
logistical information, such as date, time and place; anticipated NIGC
participants; a brief description of the topic(s) to be discussed; a timeline of
the process; and possible outcomes.

Draft of March 8, 2011
Page 3 of 10


IIL.

(rulemaking), with established time lines and required publication of draft
rules and comments, or less formal (teleconferencing).

Action with Tribal Implications (“Action”) — NIGC proposals for regulations,
rulemaking, legislation, guidance, policy formulation or actions that may have
a substantial direct effect on one or more Tribes, on the relationship between
Tribes and the Federal government, or on the distribution of power and
responsibilities between the Tribes and the Federal government.

EO 13175 Policies that Have Tribal Implications — Regulations, legislative
comments or proposed legislation, and other policy statements and actions
that have substantial direct effects on one or more Tribes, on the relationship
between the Federal government and Tribes, or on the distribution of power
and responsibilities between the Federal government and Tribes. EO 13175
requires certification by Federal agencies to the Office of Management and
Budget that a consultation on draft regulations or a legislative proposal
satisfied the EO’s consultation standards.

Indian Tribe (“Tribe”) — An Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior acknowledges
to exist as an Indian Tribe pursuant to the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. § 479a.

Tribal Official — An elected or duly appointed Tribal leader or official
delegate, designated in writing by a Tribe, or an authorized intertribal
organization.

NIGC Tribal Consultation Officer (“TCO”) — The NIGC employee primarily
responsible for coordinating consultation efforts within the NIGC and with
Tribes and for facilitating compliance with this Policy.

NIGC Consultation Point of Contact (“POC”) — The NIGC region director, or
whoever the Chairperson designates, responsible for coordinating consultation
efforts within his or her region and with the NIGC central office.

Consultation General Principles

To the extent permitted by law, the NIGC will follow these principles when considering,
formulating or implementing an Action with Tribal Implications.

A.

Indian gaming is Tribal government gaming. Its foundation rests upon the
inherent, sovereign powers of Tribes to make and enforce their own laws and
to govern their own territory. The NIGC acknowledges that Tribes, as
sovereign nations, have the right to make their own laws and be ruled by
them.

Draft of March 8, 2011
Page 2 of 10