MESCALERO APACHE TRIBE

MESCALERO, NEW MEXICO

/ 7 2o

ORDINANCE NO. 01- 04

WHEREAS the Mescalero Apache Tribe is a federally recognized Indian Tribe organized under the

Indian Reorganization Act of June 18, 1934 (25 U.S.C. § 476) and governed by its Revised

Constitution; and

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

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

Constitution of the Mescalero Apache Tribe; and

WHEREAS the Mescalero Apache Tribal Council has the duty to regulate the conduct of trade and

oversee the disposition of tribal property upon the reservation; and

WHEREAS the Mescalero Apache Tribal Council has the responsibility to protect and preserve

tribal resources; and

WHEREAS, the Mescalero Apache Tribal Council now wishes to provide additional guidance to the

Mescalero Apache Tribal Gaming Commission in order to assist them in the performance of their

licensing and regulatory functions as specified in the following ordinance.

NOW, THEREFORE, BE IT ORDAINED, that the Mescalero Apache Tribal Council does hereby

adopt the attached Mescalero Apache Gaming Ordinance.

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MESCALERO APACHE TRIBE

GAMING ORDINANCE

SECTION 1. NAME

The name of this Ordinance shall be the Mescalero Apache Gaming Ordinance.

SECTION 2. DEFINITIONS

The following words shall have the following meanings under this Ordinance, unless the context

otherwise requires.

A. Bingo means:

1. The game of chance commonly known as bingo or lotto (whether or not electronic,

computer, or other technologic aids are used in connection) when players:

a. Play for prizes with cards bearing numbers or other designations;

b. Cover numbers or designations when objects, similarly numbered or

designated, are drawn or electronically determined; and

c. Win the game by being the first person to cover a designated pattern on such

cards; and,

2. If played in the same location as bingo, pull-tabs, punchboards, tip jars, instant bingo,

and other games similar to bingo.

B. Class II gaming means:

1. Bingo or lotto (whether or not electronic, computer, or other techriologic aids are

used) when players:

a. Play for prizes with cards bearing numbers or other designations;

b. Cover numbers or designations when objects, similarly numbered or

designated, are drawn or electronically determined; and

c. Win the game by being the first person to cover a designated pattern on such

cards.

2. If played in the same location as bingo or lotto, pull-tabs, punchboards, tip jars,

instant bingo, and other games similar to bingo.

3. Nonbanking card games that are:

a. Not explicitly prohibited by New Mexico law and are played legally

anywhere in the state; and

b. Played in conformity with New Mexico laws and regulations concerning

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hours, periods of operation and limitations on wagers and pot prizes.

C. Class III Gaming means all forms of gaming that are not Class I gaming or Class H

gaming, including but not limited to:

1. Any house banking game, including but not limited to:

a. Card games such as baccarat, chemin de fer, blackjack (21) and pai gow (if

played as house banking games);

b. Casino games such as roulette, craps and keno;

2. Any slot machines as defined in 15 U.S.C. I 171(a)(1) and electronic or

electromechanical facsimiles of any game of chance;

3. Lotteries, in any form.

D. Commission or Mescalero Apache Tribal Gaming Commission means the

Mescalero Apache Tribal Gaming Commission established by this Ordinance.

E. Gaming Enterprise means the Mescalero Apache Gaming Enterprise, an unincorporated,

wholly owned entity of the Tribe.

F. Games of Chance includes Class II and Class ifi gaming, but does not include social

games played solely for prizes of minimal value, or traditional forms ofIndian gaming authorized by

the Mescalero Apache Tribal Council in connection with tribal ceremonies or celebrations.

G. Gaming Device or Gaming Equipment means any equipment or mechanical,

electromechanical, or electronic contrivance, component, or machine used remotely or directly in

connection with gaming.

H. Gaming Employee means any natural person employed by a Gaming Enterprise or

Management Contractor.

I. Gaming Facility means the building location or room in which Class II andlor Class HI

gaming is conducted on the Reservation.

J. Gaming Ordinance and Ordinance mean this Mescalero Apache Gaming Ordinance

and any amendments thereto.

K. Gaming Services means the provision or sale of any gaming device, games of chance,

cards, dice, coins, tokens, gaming related goods, poker tables, blackjack tables, equipment or any

mechanical, electromechanical, electronic device, machine, including training and consulting

services for table games, slots, cage, accounting, hard and soft count, surveillance, and management

to the Tribe, Gaming Enterprise, or Management Contractor in connection with the operation of

gaming in a Gaming Facility.

L. General Manager means the Manager of gaming for the Gaming Enterprise as appointed

by the Mescalero Apache Tribal President or, if the Gaming Enterprise enters into a Management

Contract, the chief Management Contractor shall be the General Manager.

M. Gross Receipts means receipts from the sale of shares, tickets, or rights in any manner

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connected with participation or the right to participate in any game of chance, including but not

limited to, any admission fee or charge, the sale of merchandise, refreshments, souvenirs, services,

equipment, or supplies, interest earned on deposits, and all other miscellaneous receipts.

N. IGRA means the Indian Gaming Regulatory Act, P.L. 100-447, 25 U.S.C.~ 2701-2721

and 18 U.S.C. §~1166-1 168.

0. Joint Powers Agreement means an agreement related to gaming and games of chance on

the Reservation entered into with the state of New Mexico or any other New Mexico governmental

entity under the New Mexico Joint Powers Agreements Act, § 11-1-7, N.M.S.A. 1978 (1994 RepI.).

P. Key Employee means:

1. A person who performs one or more of the following functions: Bingo caller;

Counting room supervisor; Chief of security; Custodian of gaming supplies or cash;

Floor manager; Pit boss; Dealer; Croupier; Approver of credit; or Custodian of

gambling devices including persons with access to cash and accounting records

within such devices; and,

2. if not otherwise included, any other person whose total cash compensation is in

excess of $50,000 per year; or

3. If not otherwise included, the 4 most highly compensated persons in the gaming

operation.

Q. License means a license duly issued by the Mescalero Apache Tribal Gaming Commission

to principals, primary management officials and key employees of any gaming enterprise conducted

on the Reservation and to others pursuant to this Gaming Ordinance.

R. Licensee means any entity or person who has been duly licensed by the Mescalero Apache

Tribal Gaming Commission.

S. Management Contract means a contract within the meaning of IGRA, 25 U.S.C. §~

2710(D) (9) and 2711, as defined in 25 C.F.R. Sec. 502.15: any contract, subcontract, or collateral

agreement between the Tribe (or the Gaming Enterprise) and a contractor or between a contractor

and a subcontractor if such contract or agreement provides for the management of all or part of a

gaming operation.

T. Management Contractor means any person or entity that has entered into a Management

Contract with the Gaming Enterprise Board.

U. Member of the Tribe or Tribal Member means an enrolled member of the Mescalero

Apache Tribe.

V. National Indian Gaming Commission and NIGC mean the National Indian Gaming

Commission established by the IGRA.

W. Net revenues means gross gaming revenues of an Indian gaming operation less -

1. Amounts paid out as, or paid for, prizes; and

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2. Total gaming-related operating expenses excluding management fees.

X. Occasion means a gathering at which a game of chance is played.

Y. Person means an individual, trust, firm, association, partnership, political subdivision,

government agency, municipality, industry, public or private corporation, or any other legal entity

whatsoever.

Z. Premises means any room, hail, building, enclosure, or outdoor or other area used for the

purpose of playing a game of chance.

AA. Primary Management Official means:

1. The person having management responsibility for a management contract:

2. Any person who has authority:

a. To hire and fire employees; or

b. To set up working policy for the gaming operation; or

3. The chief financial officer or other person who has financial management responsibility.

BB. President means the President of the Mescalero Apache Tribe

CC. Tribe means the Mescalero Apache Tribe.

DD. Reservation means the Mescalero Apache Indian Reservation and any lands title to which

is held in trust by the United States for the benefit of the Mescalero Apache Tribe or held by the

Mescalero Apache Tribe subject to a restriction by the United States against alienation, and lands the

Mescalero Apache Tribe exercises governmental power.

EE. Site License means a license duly issued by the Mescalero Apache Tribal Gaming

Commission for each Gaming Facility at each location at which games of chance are permitted to be

conducted on the Reservation.

FF. State Gaming Representative means that person designated by New Mexico State law

who will be responsible for actions of the state set out in the Tribal-State Compact.

GG. Temporary License means a license for no longer than 90 days issued by the Mescalero

Apache Tribal Gaming Commission to an applicant who has filed with the Mescalero Apache Tribal

Gaming Commission a completed application, pending the results ofbackground checks required by

this ordinance. Such temporary licenses shall be issued only when needed to acquire necessary

persoimel for the conduct of games of chance on the Reservation and they shall not be issued if the

background investigation undertaken discloses that the applicant has a criminal history or if other

grounds sufficient to disqualify the applicant are apparent on the face of the application. The

temporary license shall become void and of no effect upon:

1. The issuance of a license;

2. The issuance of a notice of denial; or

3. 90 days after the temporary license is issued, whichever occurs earlier.

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HH. Tribal Council, means the Tribal Council of the Mescalero Apache Tribe, the legislative

body of the Tribe.

II. Tribal Court means the Mescalero Apache Tribal Court.

JJ. Tribal-State Compact and Compact mean any compact entered into by the Tribe and

the State of New Mexico under Section 11(d) of the IGRA. (25 U.S.C. 2710(d)).

SECTION 3. Purposes

The purposes of this Gaming Ordinance are:

1. To make lawful, and provide for the regulation of, all playing of games of chance on the

Reservation;

2. To protect the inte~ity of all such gaming; and

3. To prevent improper or unlawful conduct in gaming.

SECTION 4. Interpretation

This Gaming Ordinance is an exercise of the sovereign power of the Tribe and shall be liberally

construed for the accomplishment of its purposes and to comply with the Indian Gaming Regulatory

Act.

SECTION 5. Gaming Policy

A. Games of Chance Prohibited. No person may operate or conduct any games of chance

within the boundaries of the Reservation except as authorized by the Mescalero Apache Tribal

Council.

B. Ownership of Gaming Enterprise. The Mescalero Apache Tribe shall have the sole

proprietary interest in, and responsibility for, the operation and conduct of any games of chance

operated or conducted on the Reservation.

C. Protection of Environment; Public Health and Safety. The construction and maintenance

of any gaming facility, and the operation and conduct of any and all games of chance, shall be done

in a maimer that adequately protects the environment and the public health and safety, and must be

done in a manner that meets the requirements of Section 13(C) of this ordinance.

D. Age Restrictions. No person under 21 years of age may participate in any Class HI gaming

on the Reservation, and no person under 21 years of age can be employed in any Class ifi gaming

activities, or be a key employee or primary management official of any gaming enterprise on the

Reservation.

E. Persons Barred from Personal Participation in Gaming. None of the following persons

serving in the following categories of employment or office may personally engage in gaming, play

any games of chance, or win any prizes awarded by the Gaming Enterprise in the Tribe until 90 days

after the termination of such employment or office:

1. Members of the Mescalero Apache Tribal Gaming Commission,

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2. General Manager of the Gaming Enterprise,

3. Primary Management officials,

4. Employees pf the Gaming Enterprise and the Mescalero Apache Tribal Gaming

Commission; however, the Mescalero Apache Tribal Gaming Commission is

authorized to exempt classes of employees from the prohibition of this section.

SECTION 6. Class II and Class HI Games Authorized

A. Class II Games. The Gaming Enterprise shall have authority to establish, equip, operate and

maintain bingo and Class II card games on premises located at such places as the Tribal Council has

designated or may designate.

B. Class III Games. The Gaming Enterprise shall have authority to establish, equip, operate,

and maintain a Class ifi gaming operation on premises located at such places on the Reservation as

the Tribal Council has designated or may designate.

C. Designation of Manager in Charge. The General Manager shall designate a primary

management official to be the manager in charge for each occasion. The manager in charge shall be

primarily responsible for the operation andlor conduct of Class H gaming andlor Class ifi gaming on

that occasion. The manager in charge must have obtained a license from the Mescalero Apache

Tribal Gaming Commission at least 5 days prior to the occasion. The manager in charge shall

supervise all activities on the occasion and shall be present on the premises continuously during the

playing of bingo games, Class II card games or Class ifi gaming and for a period of at least 1 hour

after the last game of the occasion has been completed.

D. Premises Open to Mescalero Apache Tribal Gaming Commission. Premises where any

Class II or Class ifi gaming is being operated or conducted, or where it is intended that a Class II or

Class III gaming will be operated or conducted, shall at all times be open to inspection by the

Mescalero Apache Tribal Gaming Commission and its agents and employees.

E. Employees. All persons who operate or conduct, or assist in operating or conducting, Class

II or Class 111 gaming shall be employed by the Gaming Enterprise and shall wear a gaming license

badge evidencing their names and the legend of the Gaming Commission.

F. Qualification For Employment; Testing. Employees of the Gaming Enterprise shall be of

good moral character and, as a condition of their employment, shall agree to any lawful means of

testing for truthfulness, at any time without prior notice, concerning the handling, collection andlor

disbursement of gross receipts. No person shall be employed by the Gaming Enterprise, whose prior

activities, criminal record if any, reputation, habits, or associations pose a threat to the public interest

or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable,

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

carrying on of business and financial arrangements incidental thereto.

G. Preference in Employment. The Gaming Enterprise shall provide preference in

employment and advancement to tribal members if they meet the qualifications for such employment

with the Gaming Enterprise.

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H. Personnel Policies. The Gaming Enterprise shall adopt written personnel policies that shall

be provided to each employee. These Personnel Policies shall provide a formal grievance procedure,

including appeal to persons of greater authority than the employees immediate supervisor.

SECTION 7. Mescalero Apache Tribal Gaming Commission

A. Establishment of Mescalero Apache Tribal Gaming Commission. There is hereby

established the Mescalero Apache Tribal Gaming Commission for the purposes of regulating all

games of chance within the Reservation and enforcing this Gaming Ordinance.

B. Powers and Duties. The Mescalero Apache Tribal Gaming Commission shall have the

following powers and duties:

1. To recommend to the Tribal Council whether it should permit or refuse to permit the

operation or conduct of any games of chance within the Reservation, and to specify

the recommendations for the operation or conduct of any permitted games of chance

within the Reservation.

2. To inspect and examine all premises within the Reservation at which games ofchance

are played to insure that all gaming facilities are constructed, maintained and

operated in a maimer that adequately protects the environment and the public health

and safety as required by Sections 5(C) and 13(C).

3. To issue separate site licenses to each Gaming Facility or specific location on the

Reservation where the Tribal Council authorizes gaming to occur.

4. To implement and administer a system, including the promulgation ofregulations, for

investigating, licensing and monitoring management, employees, vendors and others

connected with gaming activities, including the issuance of site licenses to gaming

facilities, and the issuance of temporary licenses and licenses to individuals and

entities and the verification of internal controls, as required under this Ordinance,

IGRA, and any procedures prescribed by the Secretary of the Interior.

5. To conduct background investigations regarding any person or entity in any way

connected with any gaming activity and issue licenses to, at minimum, all qualified

Gaming Enterprise Key Employees and Primary Management Officials under

requirements at least as strict as those established in Section 9(E)(6) of this

Ordinance; and grant, condition, suspend, revoke, and renew licenses and hear and

decide matters affecting such granting, conditioning, suspension, revocation, or

renewal of licenses.

6. To promulgate rules for any Class H or Class ifi gaming activity on the Reservation

in a maimer consistent with federal regulations enacted to implement the federal

IGRA.

7. To serve as the Tribal Gaming Agency for purposes of implementing the Tribal-State

gaming compact entered into between the Tribe and the State of New Mexico to

make such reports regarding Class III gaming to the State Gaming Representative as

required by the Tribal-State Compact and to inspect and make copies ofNew Mexico

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state records concerning all Class fIT gaming conducted under this Ordinance.

8. To inspect, examine, photocopy, and audit all papers, books, and records regarding

gaming activities conducted within the Reservation and any other matters necessary

to carry out the duties of the Tribal Gaming Commission under this Gaming

Ordinance.

9. To investigate any suspicion of wrongdoing related to any gaming activity.

10. To conduct or cause to be conducted such investigations as may be necessary to

determine in connection with any gaming activity, compliance with law, including

this Gaming Ordinance, or with any contracts or agreements related to gaming

activities.

11. To hold such hearings, sit and act at such times and places, take testimony, and

receive such evidence, as the Mescalero Apache Tribal Gaming Commission deems

relevant in fulfilling its duties.

12. To require by subpoena the attendance and testimony ofwitnesses and the production

of all books, papers, and documents relating to any matter under consideration or

investigation by the Mescalero Apache Tribal Gaming Commission, and to bring

actions in the Tribal Court for the enforcement of such subpoenas.

13. To administer oaths and affirmations to witnesses appearing before the Mescalero

Apache Tribal Gaming Commission.

14. To bring suit in the Tribal Court seeking temporary and permanent orders closing a

game of chance in accordance with this Gaming Ordinance.

15. To enter into contracts and memoranda of understanding, as directed by Tribal

Resolution of the Mescalero Apache Tribal Council, for activities necessary to the

discharge of the duties of the Mescalero Apache Tribal Gaming Commission,

provided that and to contract with the National Indian Gaming Commission for the

enforcement of federal regulations governing gaming on Indian reservations,

provided that the Mescalero Apache Tribal Gaming Commission may not employ any

person who would be disqualified from being a Commissioner under one or more of

the four prohibitions in Section 7(E) below.

16. The Mescalero Apache Tribal Gaming Commission shall submit an annual budget,

with supporting documentation as directed, to the Tribal Council for its consideration

and approval. The Mescalero Apache Tribal Gaming Commission shall submit

quarterly financial reports to the President of the Mescalero Apache Tribe.

17. To establish and collect license, investigation and regulatory fees to cover or help

cover the costs connected therewith.

18. To certif~ management contracts in accordance with this Gaming Ordinance.

19. To hear appeals in accordance with this Gaming Ordinance.

20. To keep minutes, records, and books in which shall be kept a true, faithful, and

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correct record of all proceedings of the Mescalero Apache Tribal Gaming

Commission.

21. To promulgate rules and regulations, in addition to those required by Section 7(B)(7)

above, as it deems appropriate to implement the provisions of this Gaming

Ordinance.

22. To recommend amendments to this Gaming Ordinance to the Tribal Council.

23. To submit an annual report to the Tribal Council and Tribal President on the

activities of the Mescalero Apache Tribal Gaming Commission, such report must

include information on the funding, income and expenses of the Mescalero Apache

Tribal Gaming Commission.

24. To take action as may be reasonable and appropriate to enforce this Ordinance and

the rules and regulations of the Mescalero Apache Tribal Gaming Commission.

C. Duties Not Delegated to the Mescalero Apache Tribal Gaming Commission.

1. The Commission shall have no involvement in the day-to-day operational decisions

of the Gaming Enterprise except to the extent that such issues involve compliance

with Presidential Executive Orders, Tribal Ordinances, Tribal Resolutions, the Indian

Gaming Regulatory Act, National Indian Gaming Commission regulations, or other

matters assigned to the Commission.

2. The Executive Director of the Mescalero Apache Tribal Gaming Commission shall

be appointed by the President of the Mescalero Apache Tribe. The Executive

Director shall report directly to the President of the Mescalero Apache Tribe and

shall provide a written report on a regular basis, at least monthly, as directed.

3. The Executive Director shall (or caused to be) hire, fire, and manage all employees of

the Gaming Commission under the direction of the Tribal President.

D. Procedure for Promulgation of Regulations. Where the Mescalero Apache Tribal Gaming

Commission is authorized to promulgate regulations, the following procedure shall be followed.

1. First, the Mescalero Apache Tribal Gaming Commission shall hold an informal

meeting with the Gaming Enterprise management to discuss the purpose of the

proposed regulation and its substantive content. The Mescalero Apache Gaming

Enterprise shall be given an opportunity to advise the Mescalero Apache Tribal

Gaming Commission of any policy concerns.

2. After the Gaming Enterprise has had an opportunity to advise the Mescalero Apache

Tribal Gaming Commission of its concerns, the Mescalero Apache Tribal Gaming

Commission shall put the proposed regulation in a form for formal circulation and

comment. At a minimum, the proposed regulation shall be posted in the tribal

offices, and a copy should be mailed to the Gaming Enterprise and the General

Manager. The Mescalero Apache Tribal Gaming Commission shall allow a

minimum of 14 and a maximum of 30 days for comment.

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3. The Mescalero Apache Tribal Gaming Commission may receive written comments

from interested parties. After considering comments, the Mescalero Apache Tribal

Gaming Commission shall publish the regulation in proposed final form by posting a

copy of the final regulation in the tribal offices and by sending a copy of the final

regulation to the Gaming Enterprise and to the General Manager.

4. The regulation shall become final 14 days after publication by posting and circulation

as specified in Section 7(D)(3) above.

5. Copies of all regulations enacted by the Commission shall be kept in the

Commissions offices. All Tribal Ordinances, Resolutions, Executive Orders and

regulations involving gaming or which affect gaming shall be kept with documents in

the Commission offices.

6. Nothing in this Ordinance shall infringe upon the power of the Tribal Council, prior

or subsequent to the effective date of the regulation, to modify or rescind any

regulation.

E. Composition; Terms. The Mescalero Apache Tribal Gaming Commission shall consist of

no fewer than three, and no more than five, Part-Time Commissioners appointed by the Tribal

President, subject to confirmation by the Tribal Council. Each Commissioner shall serve for a term

of one year. A Commissioner may serve after the expiration of his or her term of office until a

successor has been appointed, unless such Commissioner has been removed from office pursuant to

Section 8(G). Commissioners may serve for more than one term.

F. Qualifications of Commissioners. Commissioners shall be Tribal Members. No person

shall be eligible or qualified to serve, or continue to serve, as a Commissioner who:

1. Has been convicted of a felony or gaming offense;

2. Is an employee of any gaming enterprise;

3. Has any financial interest in, or responsibility for, any gaming activity, including any

indirect interest arising from the interest of an immediate family member (husband,

wife, son, daughter, brother, sister, father or mother); or,

4. Has any financial interest in, or responsibility for, any gaming-related contract,

including any indirect interest arising from the interest of an immediate family

member (husband, wife, son, daughter, brother, sister, father or mother).

G. Removal of Commissioners. A Commissioner may be involuntarily removed or suspended

from office by the Tribal President, subject to the approval of the Tribal Council without cause.

H. Resignations and Vacancies. Any Commissioner may resign at any time by giving written

notice of such resignation to the Executive Director of the Mescalero Apache Gaming Commission

or giving such notice to President of the Mescalero Apache Tribe. The resignation shall become

effective at the time specified in such notice, and the acceptance of such resignation shall not be

necessary to make it effective. Any vacancy on the Mescalero Apache Tribal Gaming Commission,

howsoever caused, shall be filled for the unexpired portion of the vacated Commissioners term by a

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qualified person appointed by the President with the consent of the Tribal Council.

1. Selection of Chairman. The Tribal President shall select one Commissioner to serve as

Chairman, one Commissioner to serve as Vice Chairman, and one Commissioner to serve as

Secretary. The Vice Chairman shall serve as Chairman during meetings of the Mescalero Apache

Tribal Gaming Commission at which the Chairman is absent.

J. Motions and Resolutions; Meetings; Quorum. The powers of the Mescalero Apache

Tribal Gaming Commission are vested in the Commissioners. All official actions of the Mescalero

Apache Tribal Gaming Commission shall be taken by motion or resolution approved by the

affirmative vote of a majority of the Mescalero Apache Tribal Gaming Commission members

present at a meeting with a quorum. The Mescalero Apache Tribal Gaming Commission shall meet

at the call of the Executive Director, the Chairman, or a majority of its members. However, the

Commission shall meet at least once every month. A simple majority of the members of the

Mescalero Apache Tribal Gaming Commission shall comprise a quorum.

K. Notice.

I. Notice of meetings stating the time, date, and tentative agenda shall be given in

writing to each Commissioner by letter mailed no fewer than five days before the

meeting or personally delivered no fewer than 24 hours before the meeting, provided,

however, that no written notice shall be required of regularly scheduled meetings or

meetings scheduled at a previous meeting, so long as such schedule or setting is made

known to all members.

2. Notice may be waived in a writing signed by all Commissioners entitled to such

notices, whether before or alter the meeting begins, and such waiver shall be deemed

equivalent to the giving of such notice. Attendance of any Commissioner at a

Mescalero Apache Tribal Gaming Commission meeting shall constitute his or her

waiver of notice, except where a Commissioner attends the meeting for the express

purpose of objecting to the transaction of any business on the ground that the meeting

is not lawfully called or convened.

L. Cooperation with Law Enforcement Agencies. The Mescalero Apache Tribal Gaming

Commission may cooperate with law enforcement officials the Bureau of Indian Affairs, the Federal

Bureau of Investigation, and other law enforcement agencies, when such cooperation is in the best

interests of the Tribe and will help to insure that fair, honest, and efficient games of chance are

operated and conducted within the Reservation.

M. Compensation for Service; Reimbursement of Expenses. Commissioners shall be

compensated for serving on the Mescalero Apache Tribal Gaming Commission in accordance with

the budget approved by the Mescalero Apache Tribal Council. In accordance with the budget

approved by the Tribal Council, Commissioners shall additionally be reimbursed for reasonable

expenses incurred in coimection with the performance of their Mescalero Apache Tribal Gaming

Commission duties at the rate at which such expenses are customarily reimbursed.

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SECTION 8. Mescalero Apache Triba Gaming Commissions

Relationship to Tribal Government

A. Agency of TribalGoverument. The Mescalero Apache Tribal Gaming Commission shall

be an agency of the Tribal Government and as such shall adopt personnel and administrative policies.

The Commission is the Tribal Gaming Agency for purposes of the Tribal-State Gaming Compact

between the Tribe and the State of New Mexico.

B. Independent Decision-Making Authority. Notwithstanding the fact that the Mescalero

Apache Tribal Gaming Commission is an agency of the Tribal Government, the decisions of the

Mescalero Apache Tribal Gaming Commission regarding licensing, suitability, compliance with

applicable law and other regulatory matters shall be within the exclusive province of the Mescalero

Apache Tribal Gaming Commission; provided, that any person or entity adversely affected by a

ruling of the Mescalero Apache Tribal Gaming Commission, including, but not limited to the

Mescalero Apache Gaming Enterprise or any employee thereof, may petition the Tribal Court for

review of such decision, in accordance with Section 14(H) below.

C. Gaming Responsibilities. The Commission will assure that the Gaming Enterprise:

1. Operates all Class ifi gaming pursuant to Tribe laws and regulations, the IGRA and

other applicable federal law;

2. Provides for the physical safety of patrons in every gaming facility;

3. Provides for the physical safety of employees of the Mescalero Apache Gaming

Enterprise;

4. Provides for the physical safeguarding of assets transported to and from the Gaming

facility and the cashiers cage department;

5. Provides for the protection of the property ofpatrons and the Gaming Enterprise from

illegal activities;

6. Participates in licensing of primary management officials and key employees of a

Class III Gaming Enterprise;

7. Detains persons who may be involved in illegal acts for the purpose of notifying law

enforcement authorities; and

8. Records and investigates any and all unusual occurrences related to Class ifi Gaming

within the gaming facility.

SECTION 9. Licenses for Operating and Conducting Games of Chance

A. Licenses Required.

1. Gaming Enterprise. The Gaming Enterprise shall be licensed by the Mescalero

Apache Tribal Gaming Commission.

2. Gaming Facility. Each Gaming Facility shall be licensed by the Mescalero Apache

Tribal Gaming Commission.

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3. Gaming Employees. All Gaming Employees shall be licensed by the Mescalero

Apache Tribal Gaming Commission and subject to background investigations.

4. Management Contractors. All Management Contractors, including their principals,

primary management officials, key employees and shareholders having in excess of

5% ownership or interest, shall be licensed by the Mescalero Apache Tribal Gaming

Commission and subject to background investigations.

5. Sales of Gaming Devices, equipment or services. Any person proposing to sell or

lease any Gaming Device, Gaming Equipment, or provide Gaming Services to a

Gaming Enterprise shall be licensed by the Mescalero Apache Tribal Gaming

Commission and subject to a background investigation before being permitted to sell

or lease any Gaming Device or Gaming Equipment or provide any Gaming Services

to any Gaming Enterprise, Gaming Facility, or Management Contractor.

6. Lenders, Investors and Providers of Financial Services. Lenders, investors and

providers of financial services, and such agents, employees and major shareholders of

such person as required by the Mescalero Apache Tribal Gaming Commission, shall

be licensed by the Mescalero Apache Tribal Gaming Commission and subject to

background investigation.

B. License Application. Each applicant for a license shall file with the Mescalero Apache

Tribal Gaming Commission a written application in the form prescribed by the Mescalero Apache

Tribal Gaming Commission, duly executed and verified, along with the applicants fingerprint card,

current photograph and any fees required by the Mescalero Apache Tribal Gaming Commission. At

a minimum, the application form shall contain all of the following information and requests for

information:

1. The following notice (~Privacy Act Notice) shall be provided to the applicant with

the application form, with instructions to the applicant to read and sign the Privacy

Act Notice before the application is executed and returned:

In compliance with the Privacy Act of 1974, the following information is provided:

Solicitation of the information on this form is authorized by 25 U.S.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 members and

staff of the Mescalero Apache Tribal Gaming Commission, and of the National

Indian Gaming Commission (NIGC) who have need for the information in

performance of their official duties. The information maybe disclosed to appropriate

federal, tribal, state, local or foreign law enforcement and regulatory agencies when

relevant to civil, criminal or regulatory investigations or prosecutions or when,

pursuant to a requirement by a Tribe or the NIGC, the information is relevant to 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 the Tribes

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

14
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. Any existing persons or entities that are required to notified in writing that they shall

either:

a. Complete a new application that contains a Privacy Act Notice; or

b. Sign a statement that contains the Privacy Act Notice and consent to the

routine uses of information described in that Notice.

3. The following notice (False Statement Notice) shall be placed on the application

form before that form is filled out by any applicant:

A false statement on any part be licensed by Section 9(A) above shall be of your

application may be grounds for not hiring you, denying you any license or for firing

you after you begin work, or revoking any license previously issued. Also, you may

be punished by fine or imprisonment. See 18 U.S. Code, §1001.

4. The Mescalero Apache Tribal Gaming Commission shall notify in writing any

persons or entities required to be licensed that they shall either:

a. Complete a new application form that contains a False Statement Notice; or

b. Sign a statement that contains the Notice.

5. The Mescalero Apache Tribal Gaming Commission shall request from each person or

entity required by Section 9(A) above to be licensed 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 10 years: business and employment positions

held, ownership interests in those businesses, business and residence

addresses, and drivers license numbers; provided, that any applicant who is a

primary management official, key employee, management contractor,

manufacturer or supplier of gaming devices and/or a person providing gaming

services, must provide such information from the age of 18;

c. The names and current addresses of at least three personal references,

including one personal reference who was acquainted with the applicant

during each period of residence listed under Section 10(B) (5) (b) above;

d. Current business and residence telephone numbers;

e. A description of existing or previous business relationships with Indian

tribes, including ownership interests in those businesses, and a description of

any potential or actual conflict of interest between the businesses and Indian

15
tribes;

f. A description of any existing and previous business relationships with the

gaming industry, including, but not limited to, 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 for which there is an ongoing prosecution or

conviction (excluding minor traffic violations) since age 18 years, the charge,

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

disposition, if any;

j. For each criminal charge (excluding minor traffic charges), whether or not

there is a conviction, if such criminal charge occurred since age 18 years and

is not otherwise listed pursuant to Section 9(B) (5) (h) or Section 9(B)(5)(i),

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

involved, and the disposition, if any;

k. The name and address of any licensing or regulatory agency with which the

person has filed an application for an occupational license or permit, as an

applicant, principal, primary management official or key employee, and

whether or not such license or permit was granted;

I. A current photograph;

m. Fingerprints shall be taken by the Commission or any other qualified Law

Enforcement Agency. Pursuant to a Memorandum ofUnderstanding between

the Tribe and the NIGC, a designated agency shall forward the fingerprint

cards directly to the NIGC.

n. The fee required by the Mescalero Apache Tribal Gaming Commission; and

o. Any other information that the Mescalero Apache Tribal Gaming

Commission deems relevant.

C. Background Investigations to Determine Eligibility to Work in Gaming Enterprises.

Upon receipt of a completed application and required fee for licensing, the Mescalero

Apache Tribal Gaming Commission shall conduct or cause to be conducted a

backgroUnd investigation to ensure that the applicant is qualified for licensing.

2. Background checks of applicants will be performed pursuant to the following

procedures:

16
a. The Mescalero Apache Tribal Gaming Commission will provide applications

to applicants upon request, and shall collect and maintain the applications;

b. Pursuant to a Memorandum of Understanding between the Tribe and the

NIGC, a designated agency or the Bureau of Indian Affairs Officers will

collect fingerprints from all applicants and forward the fingerprint cards

directly to the NTGC. The NIGC will obtain a criminal history record from

the Federal Bureau of Investigation on each applicant and forward such

information to the Mescalero Apache Tribal Gaming Commission.

c. The Mescalero Apache Tribal Gaming Commission shall investigate the

information provided in the applications. This investigation will include:

i. Contacting persons or entities identified in the application, and

verifying by written or oral communication that the information

contained in the application is accurate;

ii. Interviewing a sufficient number of knowledgeable people, such as

former employers, partners, business associates, and others referred to

in the application, to provide a basis for the Mescalero Apache Tribal

Gaming Commission to make a determination concerning whether

the applicant meets applicable eligibility requirements;

iii~ Reviewing relevant financial records of the applicant for the 3 years

preceding the application; and

iv. Contacting any state, federal, or other government agency that is

referred to in the application.

d. The Mescalero Apache Tribal Gaming Commission shall document any

information it obtains that calls into question whether the applicant would

meet the eligibility requirements under this Ordinance. The Mescalero

Apache Tribal Gaming Commission shall then document in detail the

disposition of these problem areas, indicating the follow-up investigations

performed on the problem areas and the result of such investigations.

e. The Mescalero Apache Tribal Gaming Commission will review the results of

the investigation. This review will include a determination as to the scope of

the investigation and whether sufficient information was obtained and

verified. If such information is found not sufficient, the Mescalero Apache

Tribal Gaming Commission will perform additional investigations.

3. In conducting a background investigation, the Mescalero Apache Tribal Gaming

Commission and its agents shall keep confidential the identity of each person

interviewed in the course of the investigation.

4. The Mescalero Apache Tribal Gaming Commission shall retain the right to conduct

additional background investigations of any person required to be licensed at any

17
time while the license is valid.

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

Mescalero Apache Tribal Gaming Commission shall retain applications for

employment and reports (if any) of background investigations for no less than 6 years

from the date of termination of employment.

6. Once the investigation is complete, the Mescalero Apache Tribal Gaming

Commission will decide whether the applicant meets the eligibility criteria under this

ordinance.

7. All background investigations and reports shall remain confidential.

D. Procedures for Forwarding Applications and Reports.

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

enterprise authorized by the Tribal-State Compact and this Ordinance, the Mescalero

Apache Tribal Gaming Commission shall forward to the NIGC a completed

suitability of employment report.

2. The Mescalero Apache Tribal Gaming Commission shall forward the report referred

to in Section 9(D) (4) to the NTGC and the State Gaming Representative within 60

days after an employee begins work.

3. A key employee or primary management official who does not have a license shall

not be employed after 90 days.

4. The Mescalero Apache Tribal Gaming Commission shall prepare and forward to the

NIGC and the State Gaming Representative a report on each background

investigation (Investigative Report). An Investigative Report shall include all of

the following:

a. Steps taken in conducting the background investigation;

b. Results obtained;

c. Conclusions reached; and

d. The basis for those conclusions.

5. The Mescalero Apache Tribal Gaming Commission shall submit with the report a

copy of the eligibility determination made under Section 9(C)(6).

6. If a license is not issued to an applicant, the Mescalero Apache Tribal Gaming

Commission shall notify the NIGC and the State Gaming Representative.

E. Granting a Gaming License; Standards.

1. Temporary License. Within 20 days of the receipt of a completed application for

licensing, and upon request of an applicant, the Mescalero Apache Tribal Gaming

Commission may issue a Temporary License to the applicant, unless the background

investigation undertaken discloses that the applicant has a criminal history, or unless

18
other grounds sufficient to disqualify the applicant are apparent on the face of the

application.

2. Temporary License Renewal. A temporary license may be renewed for good

cause.

3. Temporary License - limited validity. The temporary license shall become void and

be of no effect upon either:

a. The issuance of the license;

b. The issuance of a notice of denial; or

c. 90 days after the temporary license is issued, whichever occurs first.

4. If within 30 days after it receives an Investigative Report, neither the NIGC nor the

State Gaming Representative has notified the Mescalero Apache Tribal Gaming

Commission that it has an objection to the issuance of a license pursuant to a license

application filed by a principal, key employee or a primary management official, the

Mescalero~ Apache Tribal Gaming Commission may issue a license to such applicant.

5. The Mescalero Apache Tribal Gaming Commission shall review a persons prior

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

finding concerning the eligibility or suitability of an applicant, or a principal, key

employee or primary management official of an applicant, for employment or

involvement in a gaming enterprise. After such consultation, the Mescalero Apache

Tribal Gaming Commission shall either issue a license or deny the application. If the

Mescalero Apache Tribal Gaming Commission determines that employment or

involvement of the applicant poses a threat to the public interest, or to the effective

regulation of gaming or creates or enhances the danger of unsuitable, unfair, or illegal

practices, methods, or activities in the conduct of gaming, the Mescalero Apache

Tribal Gaming Commission shall deny the application.

6. The Mescalero Apache Tribal Gaming Commission may issue a license to any person

or entity who:

a. Has provided a complete and accurate application and complied fully with

any and all requests by the Mescalero Apache Tribal Gaming Commission for

information concerning the background and activities of the applicant;

b. If a natural person, has attained the age of 21 years;

c. Is not a person whose prior activities, criminal record, if any, habits, or

associations pose a threat to the public interest or to the effective regulation

and control of gaming, or create or enhance the danger of unsuitable, unfair,

or illegal practices, methods, and activities in the conduct of gaming or the

carrying on of the business and financial arrangements incidental thereto; and

d. Has not attempted to interfere or to influence, and has not interfered or

influenced, unduly for its gain or advantage, any decision or process relating

19
to gaming or the government of the Tribe.

7. The Mescalero Apache Tribal Gaming Commission shall respond to any request for

additional information from the NIGC or the State Gaming Representative

concerning a principal, key employee or primary management official who is the

subject of an Investigative Report. Such a request shall suspend the 30 day period

under Section 9(E)(4) until the NIGC or the State Gaming Representative receives

the additional information. However, in no event shall a request for additional

information by the State Gaming representative extend the 30 day period under

Section 9(E)(4) of this Ordinance for a total period of more than 60 days from the

date the State Gaming representative received the Investigative Report.

8. If, within the 30 day period described above, the NIGC or the State Gaming

Representative provides the Mescalero Apache Gaming Commission with a

statement itemizing objections to the issuance of a license to a principal, key

employee or primary management official for whom the Mescalero Apache Tribal

Gaming Commission has provided an application and Investigative Report, the

Mescalero Apache Tribal Gaming Commission shall reconsider the application,

taking into account the objections itemized by the NIGC andlor the State Gaming

Representative, and make a final decision whether to issue a license to such

applicant.~

F. Fees for Licensing. The fees for gaming licenses and background investigations shall be set

by the Mescalero Apache Tribal Gaming Commission from time to time and made available at any

time upon request.

G. Duration and Renewal of Licenses. All employee gaming licenses issued by the Mescalero

Apache Tribal Gaming Commission shall be valid for 3 years from the date of issuance. Any

employee applying for renewal of a license that has submitted the required application and any other

information required by the Mescalero Apache Tribal Gaming Commission at least 60 days before

the expiration of the license may continue to be employed under the expired license until the

Mescalero Apache Tribal Gaming Commission or NIGC, if required by the IGRA, takes final action

on the renewal application. Any person renewing a gaming license shall provide updated material

and information as requested on the renewal application form, but shall not be required to resubmit

historical data already provided to the Mescalero Apache Tribal Gaming Commission.

SECTION 110. Management Contract

The Mescalero Apache, Tribal Council does not intend to authorize the use of any management

contractor in regards to its gaming operations. The Mescalero Apache Tribal Gaming Commission is

not authorized to license any management contractor.

SECTION 11. Providers of Class III Gaming Equipment or Supplies

A. Standards. Within 30 days after the effective date of this Ordinance, the Mescalero Apache

Tribal Gaming Commission will adopt standards for any and all Class ifi gaming equipment, devices

or supplies to be purchased, leased or otherwise acquired by the Gaming Enterprise after the effective

date of this Ordinance for use in any Class II gaming, which standards shall be at least as strict as

20
the comparable standards applicable to Class Ill gaming equipment, devices or supplies within the

State of Nevada. Any and all Class III gaming equipment, devices or supplies acquired by the

Gaming Enterprise after the effective date of the Compact shall meet or exceed the standards thereby

adopted, and any and all Class ifi gaming equipment, devices, or supplies utilized by the Gaming

Enterprise in its gaming activities as of the effective date of the Compact shall be upgraded or

replaced, if necessaly, so as to comply with such standards, by no later than 1 year after the effective

date of the Compact.

B. License Required. Prior to entering into any future lease or purchase agreement for Class ifi

gaming equipment, the Gaming Enterprise shall obtain sufficient information and identification from

the proposed seller or lessor and all persons holding any direct or indirect financial interest in the

lessor or the lease/purchase agreement to permit the Mescalero Apache Tribal Gaming Commission

to license those persons in accordance with Section 10 above.

C. Installation. The seller, lessor, manufacturer, or distributor shall provide, assemble and

install all Class III gaming equipment, devices and supplies in a maimer approved and licensed by

the Mescalero Apache Tribal Gaming Commission.

SECTION 12. Financial Practices and Reporting

A. Monthly Reports. On or before the 20th day of each month, the Gaming Enterprise shall

complete a financial report for the preceding calendar month showing the amount of gross receipts

derived from games of chance, the operating expenses incurred or paid and the net revenues derived

from games of chance. It is the duty of the Gaming Enterprise to maintain and keep such books and

records as may be necessary to substantiate the particulars of each report. If the Gaming Enterprise

fails to complete such report within the time allowed, or if a report is not accurate and fully

completed, the Mescalero Apache Tribal Gaming Commission shall notify the Tribal President of

such deficiency within seven calendar days.

B. Maintenance of Books and Records; Mescalero Apache Tribal Gaming Commission

Access. Full and accurate books of account, in accordance with generally accepted accounting

principles shall be kept at the places of business of the Mescalero Apache Gaming Enterprise,

showing the condition of the business and all transactions. The Gaming Enterprise is authorized to

open and maintain bank accounts pursuant to written instructions from the Tribal President or Tribal

Council Resolution. All books and records shall be maintained for at least five years, including:

1. Revenues, expenses, assets, liabilities and equity for each Gaming Facility;

2. Daily cash transactions for each Gaming Facility, including but not limited to

transactions relating to each gaming table bank, game drop box, and gaming room

bank;

3. Returned checks, hold check or other similar credit instruments;

4. Individual and statistical game records (except card games) to reflect statistical drop

and statistical win; for electronic, computer, or other technologically assisted games,

analytic reports which show the total amount of cash wagered and the total amount of

prizes won;

21
5. Contracts, correspondence, and other transaction documents relating to all vendors

and contractors;

6. Records of all tribal gaming enforcement activities;

7. Audits prepared by or on behalf of the Tribe; and

8. Personnel information on all Gaming Enterprise employees or agents, hours worked,

employee profiles, and background checks.

C. Allowable Operating Expenses. No item of expense shall be incurred or paid in connection

with operating or conducting any game of chance except a bona fide expense, which is related and

necessary for the operation of the Gaming Enterprise.

D. Deposit of Gross Receipts; Payment of Operating Expenses. All gross receipts shall be

deposited in an operating account of the Gaming Enterprise. Withdrawals from such account shall

be made by consecutively numbered checks with two signatures duly signed; by wire transfer, or

automated clearing house (ACH) with Tribal approval, or by an officer of the Mescalero Apache

Tribe or other representatives duly authorized by the Gaming Enterprise Board, payable to a specific

person or organization. No check shall be drawn to cash or a fictitious payee.

E. Audits. The Mescalero Apache Tribal Executive Committee shall retain a certified public

accountant as the independent auditor of the Gaming Enterprise. The auditor shall not less

frequently than annually (but more frequently as the Gaming Enterprise may require) report to the

Executive Committee on the auditors examination of the books and records of the Gaming

Enterprise, and on the auditors recommendations with respect to management of the Gaming

Enterprise and any failure to comply with applicable law or contractual obligations. Copies of all

audits shall be promptly provided to the Tribal President and the Mescalero Apache Tribal Gaming

Commission. The Commission shall provide copies of all audits to the National Indian Gaming

Commission and the State Gaming Representative (to the extent required by law).

F. Audit of Contracts. Any contract for supplies, services (except contracts for professional

legal or accounting services as provided by 25 USC 2710(b)(2)(D)), or merchandise in an amount

greater than $25,000 annually, which contract relates to gaming activities, shall be subject to annual

outside independent certified audits.

G. Disposition of Net Revenues. The net revenues derived from games of chance, less

operating reserves, shall be deposited on a monthly basis into the general fund of the Tribe and such

other accounts as designated by the Tribe. Net revenues deposited into the general fund of the Tribe

shall be used for purposes in accordance with the IGRA.

H. Compliance with Bank Secrecy Act and Internal Revenue Service. The Gaming

Enterprise shall take all steps necessary to comply with the applicable provisions of the Bank

Secrecy Act, P.L. 91-508, Act of October 26, 1970,31 U.S.C. §~S 5311-314 and all record-keeping

and reporting requirements of the Internal Revenue Service.

SECTION 13. Protection of Patrons

A. Liability to Patrons. The Tribe or the Gaming Enterprise shall at all times maintain in effect

22
policies of liability insurance insuring the Tribe, the Gaming Enterprise, the Mescalero Apache

Tribal Gaming Commission, and their agents and employees against any claims, demands or liability

for bodily injury and property damages, made by a visitor, which claims were proximately caused by

the conduct of the Gaming Enterprise and

1. Occurring at a gaming facility, other premises, structures, on grounds or involving

vehicles and mobile equipment used by a gaming enterprise;

2. Arising out of a condition at the Gaming facility or on premises or roads and

passageways immediately adjoining it;

3. Occurring outside the gaming facility but arising from the activities of the Gaming

Enterprise;

4. As the result of a written contract that directly relates to the ownership, maintenance

or use of a gaming facility or when the liability of others is assumed by the gaming

enterprise; or

5. On a road or other passageway on Indian lands while the visitor is traveling to or

from the Gaming facility.

The policies shall provide bodily injury and property damage coverage in an amount of at least

$1,000,000 per person and $10,000,000 aggregate. The Tribe or Gaming Enterprise shall provide the

Mescalero Apache Tribal Gaming Commission annually a Certificate of Insurance showing that the

Tribe, and its agents and employees are insured to the extent and in the circumstances described in

this section. The Commission shall provide the State Gaming Representative a copy of each

Certificate of Insurance. If the State Gaming Representative so requests in writing, the Certificate of

Insurance may be furnished directly to the State Gaming Representative from the insurance carrier or

the insuring agency.

B. Specific Waiver of Immunity.

Nothing in this Ordinance shall serve to diminish the governmental powers or waive the sovereign

immunity of the Mescalero Apache Tribe.

C. Public Health and Safety. The Mescalero Apache Tribal Gaming Commission shall

establish for its Gaming Facilities health, safety, and construction standards that are at least as

stringent as the current editions of the National Electrical Code, the Uniform Building Code, the

Uniform Mechanical code, the Uniform Fire Code, and the Uniform Plumbing Code, and any and all

gaming facilities or additions thereto constructed by the Gaming Enterprise hereafter shall be

constructed and all facilities shall be maintained so as to comply with such standards. Inspections

will be conducted by the Mescalero Apache Tribal Gaming Commission with respect to these

standards at least aimually. The Gaming Enterprise shall correct any deficiencies noted in such

inspections within a reasonable period of time.

D. Patron Dispute Resolution Procedures. The Policy of the Tribe is to encourage resolution

of disputes at the lowest possible level, and as quickly as possible. These provisions should only be

followed when the dispute cannot be resolved on the floor or by the General Manager.

23
Whenever a patron of the gaming facility disputes the resolution of a conflict by the

General Manager of the gaming facility or its employees, whether such dispute

concerns payment of alleged winnings to a patron or other matters, and the General

Manager and the patron are unable to resolve the dispute to the satisfaction of the

patron, the General Manager shall inform the patron of his/her right to request that

the Mescalero Apache Tribal Gaming Commission conduct an investigation.

2. Upon request of the patron, the Mescalero Apache Tribal Gaming Commission,

through an agent, shall conduct whatever investigation it deems necessary and shall

determine its recommendation for resolution of the dispute.

3. Within 30 days after the date that the Mescalero Apache Tribal Gaming Commission

first receives notification from the General Manager or a request to conduct an

investigation from the patron, the Mescalero Apache Tribal Gaming Commission

shall make a recommendation to resolve the dispute. If the recommendation

concerns law enforcement action, then the Mescalero Apache Tribal Gaming

Commission shall take action to initiate the enforcement action by appropriate

authority. If the recommendation concerns action to be taken by management, the

Mescalero Apache Tribal Gaming Commission shall transmit its recommendation to

the General Manager with a copy to the patron.

4. The Gaming Commission shall then issue a written decision and mail it to the parties.

The decision of the Mescalero Apache Gaming Commission shall be final and

binding upon the patron and the General Manager and shall not be subject to judicial

review orto other legal action in federal, state or tribal court.

SECTION 14. Suspension or Revocation of Licenses

A. Grounds.

NTGC Information.

a. If, after the issuance of a gaming license, the Mescalero Apache Tribal

Gaming Commission receives from the NIGC reliable information indicating

that a key employee or a primary management official is not eligible for

employment under Section 9(E)(6) above, the Mescalero Apache Tribal

Gaming Commission shall suspend such license under the provisions of

Section 14(B) below and follow the procedures in Section 14(B) through (H)

as applicable.

b. After a revocation hearing, the Mescalero Apache Tribal Gaming

Commission shall decide to revoke or to reinstate a gaming license, and the

Mescalero Apache Tribal Gaming Commission shall notif~, the NIGC of its

decision.

2. Other grounds. If a licensee makes a false statement in any application for a license,

in any statement annexed thereto, or in any response to a request by the Mescalero

Apache Tribal Gaming Commission for information; if a licensee is determined to

24
have engaged in any prior activity unknown to the Commission at the time of

licensing which, if known, would have been grounds for disapproval of a license;

fails to keep sufficient books and records to substantiate the reports required by this

Gaming Ordinance; falsifies any books or records relating to any transaction

connected with the operation or conduct of any game of chance; is convicted of any

felony or gaming offense; interferes with, unduly influences, or attempts to interfere

or unduly influence any decision or process of the government of the Tribe relating to

gaming; or deliberately or substantially fails to provide information to or answer

relevant questions of the Mescalero Apache Tribal Gaming Commission or

otherwise fails to comply with this Gaming Ordinance or the terms of any license

granted pursuant hereto; his or her license may be suspended and, after notice and a

hearing before the Mescalero Apache Tribal Gaming Commission pursuant to this

Section, such license may be revoked. This sanction is in addition to any other

sanction that may be imposed under this Gaming Ordinance.

B. Notice; Immediate Suspension. Proceedings to suspend or revoke a license shall be

initiated by the Mescalero Apache Tribal Gaming Commission by serving a complaint upon the

licensee. If, in the Mescalero Apache Tribal Gaming Commissions judgment, the public interest; the

effective regulation and control of gaming; or the safe, fair and honest operation and conduct of

games of chance so require, the Mescalero Apache Tribal Gaming Commission may suspend a

license immediately, pending the holding of a hearing. Such an immediate suspension shall take

effect upon service of the complaint upon the licensee.

C. Contents of Complaint; Service. The complaint shall set forth the violations of this

Gaming Ordinance that the Mescalero Apache Tribal Gaming Commission has reasonable cause to

believe the licensee has committed. The Mescalero Apache Tribal Gaming Commission shall cause

the complaint and notice of hearing to be served personally upon the licensee or any agent of the

licensee, or to be sent by certified mail or overnight delivery to the licensee at the address shown

upon the license. The complaint shall notify the licensee of the place and date of a hearing, such date

to be not less than 20 days after the licensee receives a copy of the complaint.

D. Answer; Subpoenas. Upon receipt of a complaint and notice of hearing, the licensee shall

answer the complaint and shall inform the Mescalero Apache Tribal Gaming Commission whether

the licensee desires to present evidence. At the request of the licensee for good cause shown, or on

its own motion, the Mescalero Apache Tribal Gaming Commission shall issue subpoenas for the

attendance of witnesses and for the production of papers, books, records and documents.

E. Hearing; Written Decision; Notification to NIGC. The hearing shall be held and

concluded without unreasonable delay. The Mescalero Apache Tribal Gaming Commission shall

hear the matter and make a decision in writing, including findings of fact in support of its decision.

The Mescalero Apache Tribal Gaming Commission shall issue its decision within 30 days of the

hearing. The licensee shall be informed immediately of the decision and, in the event of a

suspension or revocation of his! her license, of the effective date of the suspension or revocation.

F. Surrender of License. When the Mescalero Apache Tribal Gaming Commission suspends

or revokes a license, the licensee shall surrender the license to the Mescalero Apache Tribal Gaming

25
Commission on or before :the effective date of the suspension or revocation. No license shall be

valid as of the effective date of the suspension or revocation, whether surrendered or not.

G. Additional Sanctions. Upon a determination to suspend or revoke a license, the Mescalero

Apache Tribal Gaming Commission, in addition to any other penalties that may be imposed, may

declare the licensee ineligible to operate or conduct games of chance, to participate, directly or

indirectly, in the operation or conduct of games of chance, or to apply for a license for a period not

exceeding 12 months. Such declaration of ineligibility may be extended to include any primary

management officials, key employees, owners, officers, or directors of the licensee, and any of its

subsidiary organizations, parent organizations, or affi hates.

H. Appeal to Tribal Court. Any licensee aggrieved by a decision of the Mescalero Apache

Tribal Gaming Commission, may appeal the order to the Tribal Court, and the Tribal Court shall

have jurisdiction to consider and resolve such appeal. The Tribal Court shall affirm the order of the

Mescalero Apache Tribal Gaming Commission unless such order was entered in violation of due

process, was arbitrary or capricious, or was otherwise in contravention of applicable law. The Tribal

Court may reverse, vacate, or modify the order of the Mescalero Apache Tribal Gaming Commission

if the Tribal Court determines that the order was unlawful. In reaching its decision, the Tribal Court

shall consider only such evidence relating to the order from which appeal is taken as appears in the

records of the Mescalero Apache Tribal Gaming Commission and was available to the Mescalero

Apache Tribal Gaming Commission at the time of its decision. Any reversal or modification of the

Mescalero Apache Tribal Gaming Commissions prior determination shall be reported to the NTGC.

SECTION 15. Prohibited Acts

In addition to the acts prohibited above, it shall be a violation of this Ordinance for any person to:

A. Conduct or participate in any gambling on the Reservation other than at an authorized and

licensed Gaming Facility, or traditional Class I or Class II gaming when conducted by a nonprofit

organization as permitted by the Tribal Council.

B. Receive, distribute, apply or divert any property, funds, proceeds, or other assets of the

Gaming Enterprise to the benefit of any person except as authorized by this Ordinance, the TribalState Compact, NTGC Regulations or IGRA.

C. Tamper with any Gaming Device or Gaming Equipment used in the conduct of any gaming

activity with the intent to cause any person to win or lose any wager other than in accordance with

the publicly announced rules of the Gaming Enterprise.

D. Do any other act in connection with the conduct of any Gaming Enterprise with the intent to

affect the outcome of any wager other than in accordance with the publicly-announced rules of such

Gaming Enterprise.

E. Alter or misrepresent the outcome of any other event on which wagers have been made after

the outcome is made sure but before it is revealed to the players.

F Place, increase or decrease a bet or to determine the course ofplay after acquiring knowledge,

not available to all players, of the outcome of the game or any event that affects the outcome of the

game or which is the subject of the bet or to aid anyone in acquiring such knowledge for the purpose

26
a

of placing, increasing or decreasing a bet or determining the course of play contingent upon that

event or outcome.

G. Claim, collect or take, or attempt to claim, collect or take, money or anything of value in or

from a Gaming Device or Gaming Equipment, with intent to defraud, without having made a wager

thereon, or to claim, collect or take an amount greater than the amount won.

H. Place or increase a wager or bet after acquiring knowledge of the outcome of the game or

other event that is the subject of the bet, including past-posting and pressing bets.

I. Reduce the amount wagered or cancel the bet after acquiring knowledge of the outcome of

the game or other event that is the subject of the bet, including pinching bets.

J. Manipulate, with the intent to cheat, any component of an electronic Game of Chance or

Gaming Device in a manner contrary to the designed and normal operational purpose for the

component, including, but not limited to manipulating a Gaming Device, with knowledge that the

manipulation affects the outcome of the game or with knowledge of any event that affects the

outcome of the game.

K. Knowingly use other than coins or tokens approved by the Mescalero Apache Tribal Gaming

Commission or other lawful coin or legal tender of the United States of America, or to use a coin not

of the same denomination as the coin intended to be used in the Gaming Device.

L. Possess, with the intent to use, any device to assist in projecting the outcome of the game, in

keeping track of the cards played, in analyzing the probability of the occurrence of an event relating

to the game, or in analyzing the strategy for playing or betting to be used in the game.

M. Use any device or means to cheat, or to possess any such device while at the Gaming Facility.

N. Knowingly entice or induce another to go to any place where gaming is being conducted or

operated in violation of the provisions of this Ordinance, IGRA, the Compact, or other applicable

law and regulation with the intent that the other person play or participate in that gaming.

0. Willful obstruction of any Commission investigation.

SECTION 16. Civil Penalties

Any person who violates any provision of this ordinance shall be subject to civil penalties,

termination of employment by the Gaming Enterprise, denial or revocation of a gaming license,

exclusion from attendance at any Gaming Facility, or exclusion from the Reservation if a nonmember of the Tribe. The Mescalero Apache Tribal Gaming Commission may impose a fine and

may require restitution. The Mescalero Apache Tribal Gaming Commission shall have the

jurisdiction to impose any penalties on any person within the jurisdiction ofthe Tribe. Civil penalties

may include requiring any person who violates this ordinance to pay the expenses and fees incurred

by the Gaming Enterprise, the Commission or the Tribe in enforcement activities of any kind

connected to the person found to have violated any provision of this Ordinance.

SECTION 17. Enforcement; Jurisdiction; Subpoenas

A. Civil Remedies in Court. The Mescalero Apache Tribal Gaming Commission may bring a

civil action in the Tribal Court against any person who violates this Gaming Ordinance or engages in

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an activity or activities prohibited herein and recover monetary damages, attorney fees, injunctive

relief, andlor any other relief that is just and equitable under the circumstances. The Tribal Court

may order a person who commits an intentional or willful violation to pay punitive damages, which

shall be assessed in an amount not to exceed 3 times the actual damages or $1,000.00, whichever is

greater. The Tribal Court may order a civil penalty not to exceed $5,000.00 for each day that a

violation occurs and for each separate violation. Any person who violates this Gaming Ordinance, or

whose employees or agents in the course of their employment or agency violate this Gaming

Ordinance, may have the right to engage in business on the Reservation suspended or terminated.

Nothing in this Gaming Ordinance shall be construed to authorize or require the exercise of criminal

jurisdiction over non-Indians except to the extent allowed by any applicable present or future Act of

Congress or any applicable federal court decision.

B. Tribal Court Jurisdiction. Except as otherwise provided in this Gaming Ordinance, the

Tribal Court shall have exclusive jurisdiction over all matters concerning the administration and

enforcement of this Gaming Ordinance; provided, however, that the Tribal Court shall defer the

exercise of its jurisdiction until any applicable administrative remedies have been exhausted, and

provided further that nothing in this Gaming Ordinance is intended nor shall it be interpreted to

preclude prosecution in federal court pursuant to the IGRA, as it may be amended from time to time,

any regulations promulgated thereunder, any other applicable federal or tribal law, or prosecution in

state court pursuant to an effective memorandum of understanding with the District Attorney for the

Twelfth Judicial District as approved by the Mescalero Apache Tribal Council.

Tribal Courtjurisdiction shall be concurrent with State courts and arbitration, to the extent permitted

bylaw.

C. Enforcement of Mescalero Apache Tribal Gaming Commission Subpoenas. If a person

subpoenaed to attend or to produce books, accounts, records, or other documents in any investigation

or hearing conducted by the Mescalero Apache Tribal Gaming Commission fails to obey the

command of the subpoena without reasonable cause, or if a person in attendance at any hearing or

investigation refuses, without lawful cause, to be examined, to answer a legal and pertinent question,

or to exhibit any book, account, record, or other document when ordered to do so by the

representative of the Mescalero Apache Tribal Gaming Commission conducting such investigation

or hearing, the Mescalero Apache Tribal Gaming Commission may apply to the Tribal Court for an

order directing the person to show cause why he should not comply with such subpoena. For

purposes of this Ordinance, if granted immunity by the Commission or the Tribal Court in writing no

person shall be excused from testifying or producing any books, accounts, records, or other

documents in any investigation or hearing on the ground that such testimony or documentary

evidence may tend to incriminate him or her. Immunity means that a person shall not be

prosecuted, punished, or subjected to any penalty or forfeiture resulting from such testimony or

production, provided that no person shall be exempt from prosecution or punishment for committing

perjury under a grant of immunity.

SECTION 18. Severability

In the event any section or provision of this ordinance or its application to any particular activity is

held to be invalid, the remaining sections and provisions of this ordinance and the remaining

28
applications of such section or provision shall continue in full force and effect.

SECTION 19. Sovereign Immunity

The Tribe does not in any way waive its sovereign immunity from suit in any court to contest the

validity of this ordinance or in any other matter. Nothing in this Ordinance is intended to waive

the sovereign immunity of the Tribe.

SECTION 20. Amendments

This Ordinance may be amended by official action of the Tribal Council.

SECTION 21. Repeal of Prior Laws

This Gaming Ordinance, upon becoming effective, and only then, shall operate to repeal all prior

inconsistent laws.

SECTION 22. Effective Date

This Ordinance shall be effective as of the date of its approval by the National Indian Gaming

Commission.

CERTIFICATION

The foregoing Mescalero Apache Gaming Ordinance was adopted at a duly called meeting of the

Mescalero Apache Tribal Council held on the 17 day of April, 2001 at which time a quorum was

present, by a vote of six in favor and no opposed or abstaining.

Sara Misquez, President

Mescalero Apache Tribe

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CERIINCATION

The foregoing enactment of the Mescalero Apache Tribal Council is duly

adopted and approved on the 8th day of August, 2001, at 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 XII, Section 1, of the Revised Constitution.

x~rdY?i~ ~D/cL&/~

Sandra Platero, Secretary

Sara Misquez, Presi~eni~