@013/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

Comment

areas Yhat protect assets of the tribe. This could be done with Standards that
reflect the protection of Tribes assets. As Class Iisa Important asset to all
tribes and we {mow what areas require we shauld submit suggestions that
best reflect that duty: The current MICS is nota minimum afl you have to do is
® fook at your NIGC checklist and review MICS audits and you will seel
(2) Whatis the appropriate starting palntfar this review (which document/draft should
beusedj? :
a. ‘The Tribal Gaming Working Group has Identified the last published NIGC draft
used by the last Tribal Advisory Committee as the starting point,
b. Abroad approach to IGRA, and a standard can be used to fulfill this
requirement. The NIGC needs to look to primary regulators for guidance as
they fulfill thelr role dally. :

“+V Giass 1 MTS for Gaming Equipment

Ta Should these regulations be vevised and If so, wiiat process should be used?

a, Yes. :

b. The current §547 Is in need of revisions and clarifications.

¢. Tribes have formed a working group that Is preparing a revised §547 to be
adopted by Tribes and'to be recommended ta the NIGC,

d, Tribes are wrlting Class Ii standards that fulfil Ctass fl in all aspects. The NIGC

“shoutd look at this concept. .

356

Background investigations for Licensing
‘This is NOT apriority item.

(a) Should the pilot program for submission and processing of fingefprints through the :
NIGC be formalized with regulations? -

a. Yes and No .
b, The pilot program has been a success In Tribal and NIGC cooperation. It |s also

a necessary and vital enforcement tool used by Tribal Gaming Regulators.

c. The NIGC continued facilitation of fingerprinting resources of the Fal Is vital
and should he made a part of the regulatory framework af the NIGC.

d. itis dear that synopsis and conclusion must.be submitted for any finger prints

to be accepted. If you read your regulations it leaves no. doubt that a pllot

1/31/2044 - 19230.3636

12

P.013

96%

4059644206

FEB-12-2011 11:35


@005/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

Comment

by Trites!
44) Fingerprint fees?
’. a, This is a useful service provided to the Tribes. It should allow for Trlbes if
Ordinance as approved to run vendors as primary IGRA Is to keep out
corruption.

b. IGRA requires a law enforcement agency to run back grounds, the NIGC
currently uses F8i to fulfill the law. (f FAI has concerns about meeting their
mission as members of working group they should consult with tribes!

{c}There Is no need to do this by. regulation; rather a Bulletin that sets out the process, ©
procedures, and fees Is all that Is needed, The Bulletin can be updated andrevisedas
needed. i

{5) Late payment system vs. NOV?

a. A late payment system fs preferable over the current practice of ‘ning an
NOV. The NOV should be retained as a final action if necessary, The late
payment system should include a grace period before assessing late penaities |
etc. A revised regulation must. conn state with supporting guidance given via
Bulletins, =

b. This area ls of great interest to Tribes. A late payment system thats
comprehensive and clear with due process protection would be a great step
forward In the relationship the NIGC has with Tribes.

¢.- IGRA allows Chairman the flexibility to do what is best for NIGC and Tribes. All

Tribes ask for (s fairness In its dealings!

01/32/2014 - 19230,3836

P.005

96%

4059644206

FEB-12-2011 11:34


@017/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

_ Comment _

b. tt ls fikely that there will not be a one fits all answer. Tribes and Tribal
governance process are varied hased on culture and practical considerations.

The NIGC must be prepared to adapt to Tribes not vice versa
(2) What types of communication, and what protacals should be Induded?

a. Decide after consultation with the Tribes

(3) If so, what process should be used?
a. Declde after consultation with the Tribes

Buy indian Act
This Is NOT a priority tem

{1) Should the NIGC ‘adopt a “Buy indian” regulation consistent with 25 U. S.C. an
a. Yes—simple and straightforward .
b. Since the Act was passed fn 1910, and sister agencies overlaoked: until 2040. 6
suggest folowing the three criteria that law and they have usedl.

02/31/2014 ~ 192303836

16

P.017

96%

4059644206

FEB-12-2011 11:35




@007/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

Appeals

§23 | Review and Approval of Existing (1) Should this section be eliminated because it andy applied to ordinances enacted prior | «

Ordinances of Resolutions to January 19937 :

This Is NOT a priority item. a. No,.IGRA requires the Chalman of the NIGC this duty to epprove and
disapprove ordinances, | don’t think the date of 1993 makes a ordinance less
effective, as Tribes are Primary Regulators and have to fallow ail laws and
regulations, so must NIGCI .

524 See §539 below

01/32/2014 - 19230386

P.007

96%

4059644206

FEB-12-2011 11:34


@006/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

__Tite _

__ Comment

Self Regulation of Class Il

Tins tS 4 pmoany
Tits tS A PReOairy EM.

(1) How can this section be made to be less burdensome to comply with and should it be

revised?
a. The NIGC should revise these regulations so as to make certain the steps to

b.. The factars should be those contained In §2710{c)(4) and be welghted to take

» fuls suggested that the NIGC adopt » negotated rule making pracess for
. arviendiing these provisions sa as to give Tribes. full volce and to create a

. Having ralsed this particular area for possible regulatory action, if tha NGC

_@:. GRA needs to be followed as to: fees collected from Self-Regudation a5

Self Regulation as clear as possible and not punitive in nature. The current
§548 Is not consistent with the Statute §2710( c)(4).

into. consideration’ years of operating with Integrity, honesty, and the
Implementation of a comprehensive Tribal regulatory regime. The
Independent audit conducted by the Tribes CPA should serve as the basis for
the accounting/process review and determination of financtal soundness.
Self-regulation Is a hallmark of soverelgnty and ought to be supported and
encouraged by this §518 not suppressed. :

transparent process end record.

decides to proceed or otherwise set this aside, a clear statemant as to the
reasons for such decision Is advisable and needed to maintain continulty for
Tribes, : ,

“g59¢of 1% has to be collected, and current Regulations at end has not met

$19

Service

See §539 below

yequirements of IGRA. .

03/31/2081 - 19230.3626

P.006

96%

4059644206

FEB-12-2011 11:34


(009/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

~_Somment _

“one that Tribes and the market likely will not find acceptable.
c. Given the above the following suggestions may form. the basis for a solution
that will address both long and short term needs: : 5
{. Make all declination, rejection, ar approval ietters available to the
_ public (with appropriate redactions}.
ll: Make all declinatloa, rejection, or approval letters final Agency Action
so that the parties have recourse and so that a body of Jurisprudence
; may develop. 5
lil. Perhaps limiting the review and potential regutation to a definition of
"Primary Beneficiary" would be helpful and glve enough guldance for
the development. of -a jurtsprudential approach. |t would also
necessarily Involve a statement on the limits of “revenue sharing” In
" Iight of the Rincon Case and the decision by. D0) disappraving the
~ abernatalel Pomo éf Upper Lake compact. ~ =
lv. Begin a arocess of camprehenstve review of the topic, conducted In

~~" conjunction with Tribes. The review would take into account Tribal | -

. exarience, experts In the evaluation of risk/reward and economics,
~*~» bustness experience, and the NIGC history of advisory opinions,
- “amorig other factors, The goal should be to develop guidelines to be
” ”. publishied Ina Bulletin. .

1. One last observation - the development of strict criteria for sole proprietary
interests published, as a regulation -would be a continuation of the
paternalistic policies of the federal gavernment toward Tries. Regardless, If

the NIGC wants to pursue thistt must be done in conjunction with Tribes.

2.” IGRA makes It clear on priority interest and sets 70-30 or 60-40 in two
sections of IGRA. One deals with Management agreements and ather with
individual run operations. The Creek Courts tank up Issue between Tribe and
Communities, | suggest you read as it held to 1GRAI

01/31/2011 - 19230336

P.009

96%

4059644206

FEB-12-2011 11:34


02/12/2011 11:19 FAX 4059644206 ADMINISTRATION @001/017

KICKAPOO TRIBE OF OKLAHOMA

SECON) 'Y ADMINISTRATION Ua
P.O. Box 70
AX McLoup, Ok 74851
ME Prone: 405.964.4204
FAX: 405-964-4206
COVER SHEET |
SEND TO: FROM:

aN. Kika pee Coming Commission |
lL Shaun Bnsmean |

|Meleoud OK
DATE:

OFFICE LOCATION:
n, DC ~IG-Hl
FAX NUMBER: : PHONE NUMBER:
L 2OA- 634-70 ble YO5- 9b ¥- TOl¢
— ea el InPORNATION

TOTAL PAGES, INCLUDING COVER:

COMMENTS:

‘THE INFORMATION CONTAINED IN THIS FACSIMILE INTENDED ONLY FOR THE USE OF THE.
INDIVIDUAL OR ENTITY NAMED ABOVE. IF YOU FEEL THIS IS A COMMUNICATION ERROR,
PLEASE NOTIFY US BY TELEPHONE AT (405) 964-4204.

FEB-12-2011 11:33 4059644206 95% P.001


@011/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

Nisc

| Regulation. _Iitle Somment _

“4 : c. IGRA sets forth your standard as Trustee, as It sets the.Standard at 70-30 or
60-40%, If contracts meet definition and ‘Tribes and parties agree, NIGC can
offer suggesttons but cannot refuse approval, if standards meet and are

. : ; agreed to.
537 Background Investigations for Persons or (1) Should changes be made to clarify the submission requirements for Class i and Class
Entities with a Financial Interest In, or ul background Investigations?
having Management Responsibility for, a _ a, Yes.
Management Contract b. Any clianges to 4537 It should be to make definitions and disclosures as
This Is NOT a-petority Item. _ consistent with other agency's ules as possible. For example, the SEC and
: other financial regulatory agencies have disclosure thresholds and
requirements; NIGC should to the extent possible and consistent with IGRA
P z milrrot those other agency requirements.
539 Appeals . {1) Should the NIGC ‘consider more comprehensive ‘and detalted procedural rules
‘This Is NOT 2 pricrity Item. addressing (a) sarvice of process and computation of time - §519; {b) intervention by

3TM parties; (c) mation practice and briefings; and (d) the nature of written submission

In enforcement appeals. :

ay. Ves, It would be good pradiice to formatly adopt procedural rules. The
underlying principle should be the guarantee of due process, The NIGC should,
adopt process and procedures that require it-to conduct regular periodic
meetings where a record Is made and final agency action is taken.

b, The NIGC should also adopt rules and procedures. that require a written

record be maintained of alt meetings and ‘available to the affected partles.
This record would also be avaflable for formal proceeding and litigation, =”

01/31/2044 - 192303836

10

P.OlL |

96%

4059644206

FEB-12-2011 11:35


@010/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

_ Comment

Tie

533

‘Approval of Management Cantracts
‘This Is NOT a priority iter.

(1) Should this section add standards for the trustee standard as-a basis for disapproving

management contracts?

a, The trustee standard within the federal government has proven to be at best
4. moving standard cloaked In the sole discretion -of the delegated
administrator. At worst, the trustee standard has been used as a:shleld for
misuse, missppropriation, misanthropy, and out and out thievery toward
‘Tribes, As such, any attempts to. codify this standard are fraught with dangers
and may be viewed thraugh a less than welcome perspective.

b. ithe desire to give notice ta Tribes and tha market that a trustee standard
wil! henceforth be an additional factor in the approval of a. management
contract, it waild be preferable to do so by issuing a Bulletin.

|. Set forth factors that make up the trustee standard for the NIGC Chalr
IL. Glve examples of how these factors may be applied ;
If, This Is necessary for Tribes and business to apply the standard to
“.. fature transactions. ;

ct. “This -wauld be @ continuation of the paternalistic polices af the federal

. government toward Tribes

{2) Suggest that 2 grounds for disapproval. be added = (a) not submftted.tn. accordance

with the requirements of §S33 and (b) submission does not contain.requirements of

§531. : :

a. If the submission does not fully meet the requirements of §533 or $531 then
{t should be-held and no work be done for a specified period of time, with
notice to the submitting parties. If the time period expires with no actlan by
the submitters then disapproval can be the res; ult.

b. This should be clarifled via a Bulletin.

1/34/2011 - 19230.3836

P.010

96%

4059644206

FEB-12-2011 11:36


@ 008/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

Tits

__ Comment

531

Coflateral Agreements.
This ts NOT a priority Item.

{2} Sole Proprietary Interest has historically been a lightening rod for both Tribes and

(1) Should the NIGC consider whether or not it has the power to approve collateral
agreements to determine {f the cumulative effect of such agreements viiates the
sale proprietary pravistons of IGRA?

a. The NIGC currently has the authority to require submission and review of all
docarnents that are collateral agreements to 4 Management Contract. It Is
unlikely that 8 regulatory definition will anticipate all of the possible
drcumstances end conditions under which future iianagement contracts

_ might be negotiated. It may be a better practice to ellminate or revise current
bulletins dealing with topic taking {nto accaunt the effect of the suhmissions
already acted upon by the NIGC and the practice and body of faw that has

developed as’a result,

non-tribal interests when attempting to form business relationships. The Ad Hoc
_ nature of the historical NIGC approach has not brought clarity, thus ‘eaving the field

open and subject to uncertainty. The most visible result to date ls the decision and

fallout form the Lac du Flambeau case. :

a, The NIGC has taken on a burden since this case of Issuing declination letters
specific to each set of agreements presented. Unfortunately; these decisions
are: not available to tlie pubile, so guidance Is again lacking and the void
continues. : - ;

b, Having a definition would in some ways help the market place, but also runs
‘the isk of shutting the door on many business deals that, given specific risks
and other business factors, will fikely not fit into the definition or exceptions.
A regulation by its nature must be definite, even with exceptions, and as such
cannot take Into account the limitless permutations business tisk and reward

can come up with. Therefore, the desire for a definition comes with a cost,

01/31/2611 - 192302836

7.

P,008

4059644206 96%

11:34

FEB-12-2011


004/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

NISC

__Tie

Somment

502.16

| Net Reveriués

Thisis NOF a priority iter. -

(1) Should the definition of “Net Revenues” be revised to be consistent with GAAP?
a. White it might be gaod oractice to the extent cansistant with §2703 {9} ‘to
conform calculations to GAAP, the statue defines Net Revenue and the NIGC

does not have authority to change the definition.

b. The NIGC needs to explain to Tribes how this benefits Tribes as change } Isnot |

disclosed beside reflecting GAAP,
(2). Should there be a separate definition for “allowable uses’?
a There {s no statutory authority to e@ipand the definitions under (GRA-The

3) susie esti tieguitader toma ter geallia regulatory action, I the NAGC decides

to proceed or otherwise set this askia, 3 clear statement as to the reasons ‘for such

decision is advisable and needed to maintaln continuity for Tribes.

$14

| Fees

‘This |s NOT a priority item.

Priarity for late payment procedure
system :

(1)° Fiscal vs, Calendar year for fee calculation?

a. Tribes should be allowed to elect elther method. Fiscal year calculations
should accommodate Tribal business practices.

b. {GRA outlines the collection of fees quarterly and allows Tribes freedom to
adapt system that fits thelr need.

(2) Implementation timeframes?

a. The NIGC current Regulations clearly explains how to calculate fees, as fees
aré based on last year revenues, It [s based off IGRA on a quarterty basis
which covers both fiscal and calendar year.

(3) Should the definition of “Gross Gaming Revenues” be revised to he cons|stent with
GAAP?
8. The statue defines Gross Revenue end the NIGC does not have authority to

change the definition. '
hb. Prlorto NIGC, all tribes were covered by A-133 that does act have GAAP

requirements. IGRA allowed for Tribes to fatlowlng normal accounting used

01/31/2011 - 1973031636

P.004

96%

4059644206

FEB-12-2011 11:34


014/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

_ Comment

| Remation ‘Title

program that cantalns the twa factors Is allowablet

ia ors saantine for non-Peimnary

New Fingerprinting for nan-Primary
Management Officials or Key Employees
This Is. NOT a priority Stem.

(4)

Should the fingerprinting process be expanded to inchide vendars, consultants, and —

other non-employees that have access to the gaming operations?

a. Yes, If requested by Tribes. This cannot be a mandate from the NGC; Tribes

must request such fingerprint tequests ona case-by-case bas!s and consistent

with Tribal regulations or ordinances.
b. This wifl require clase cooperation between the (NIGC and Tribes In orderto
be certain the procedural requirements of the Fat are adhered to as wellas

the NIGC and Tribal regulations.
c. Ifthe NIGC has approved Gaming ordinance that vegies back grounds on

these Individuals and tribes has submitted funds, the NIGC should honor. if”
FBI has ralsed Issue, they should read (GRA and consult with Trlbes to remedy | _

the problem! .

"4069644206

559 Facility License Notifications, Renewals,
and Submissions _
This ts NOT 2 priority Item.

(1) Should the section be revised and If so, what process should be utilized?

a, Yes.

b, There tsa view that the current §559 Is outside ‘the autharity of the NIGC and

has great potential to create another CRIT IIke situation ifand when

enfarcement actions are taken.
¢, itis the view of some that §559 should be withdrawn and/or enforcement

suspended until such time as substantial revisions or replacement can be

01/31/2011 - 19730.3836

13

P.014

96%

FEB-12-2011 11:36


@016/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

__ Comment

that same discretion. This would he analogous to the power to enter Into a /
settlement agreament.

(2) Under what conditions and circumstances \s it sppropriate to withdraw an NOV?

a. This would be at the discretion of the Chair.

b. Prior to a hearing before full Commission, *

ce After full commission meets and does not reach same conclusion as

Chairman.

Tribal Advisory Committee
This Is NOT a priority item

“} (1) When should a Tribal Advisory Committee (TAC) be formed?

a. When requested by Tribes and when the Chalr needs comprehensive advice
con a given toptc.

(2) Should a regutation be adopted ora policy staternent made? .

a. Policy statement along with plans for complying or exempting from FACA.

(3) Is financial cost a relevant factor In determining whether ar not to form a TAC?

a, Yes, but.a minor factor :

(4) The Executive Order — Improving Regulations and Regulatory Review ~ issued on

January 18" and the Presidential Memoranda Issued on the same topic on the same
day should be used In the development of any policy relating to TAC formation and
utilization. .

Sole Proprietary Interest
This ts NOT. ‘a priority Item

a. See comments above. ; -
b. (GRA, has established the Interest as. 70-30 and 60-40% no other Standard

exists.

New

“Communication policy or regulation
indentifying when and how the NIGC
communicates with Tribes

‘This is NOT apriarity tem

{1) Should there be a regulation that sets a process for determining how and with vhor

the NIGC communicates ata Tribe? -
a. After extensive consultation with Tribes; the NIGC should use poticy

statements and bulletins

61/31/2011 - 192303836

15

P.016

96%

4059644206

FEB-12-2011 11:36


003/017

ADMINISTRATION

02/12/2011 11:20 FAX 4059644206

| Regulation | _- Title Comment
502.45 Management Contract (1) Shauld the definition be exparided to Include any contract that paysa fee based on a ‘
This is NOT a priority item, - of gaming revenue?

a, NO, This would be an improper and unauthorized expansion of the NIGC's

. approval powers, Further, fees pald, as a % of gaming revenue does not by

Itself constitute a management contract. The NIGC should follow IGRA in all
it's considerations.

-} (2) Should the calculation tnclude reimbursement of expenses afd development and

. “other nongaming management fees - “acceptable compensation”?

a. NO. This proposal makes no sense because the reimbursement of expenses
would not’ qualify as compensation under GAAP and general business
principles. The jurisdiction of the NIGC to approve agreements does not
extend to agreements that ate not callateral.to a management contract. The

NIGC should follow IGRA In all it’s considerations.

"| (@) Having raved this particular area foe possible regulatory action, i the NIGC decides |

to proceed or otherwise set this aside, a dear statement as to the reasans for such
decision ts advisable. .

~| (4) Your statements should reflect how Gaming Tribes will benefit!

nf3i/2i0as - 49230, 3836

P.003

96%

4059644206

FEB-12-2011 11:34


(002/017

ADMINISTRATION

02/12/2011 11:19 FAX 4058644206

To: National india’ Gaming Commission

From: My, Martin Frye, Chalrman , Kickapoo Tribe of Oklahoma Gaming Commission

rye, Chale R, Kickapes ianam: min immiss

Date: February 11, 2011
Re: — FINAL COMMENTS - Framework for evaluating the NIGC Notice of Inquiry and Request for information

The NIGC review should be focused an the Primary Regulator — the Tribes, Federal regulations and standards need to be complimentary and
supportive.

The NIGC regulations and standards should deal with findamentel annie th due process, and protection of individual and Tribal rights in the
context of fulfilling regulatory oversight, enforcement, and approvals.

The above paradigm would have the effect of making the work of the NIGC complementary and collaborative with the primary regulator.

P.002

4059644206 96%

11:34

FEB-12-2011


@012/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

542 Class it MICS
‘Tris tS A PRIORITY ITEM.

(i) Should this section bre struck and replaced with recommended guidelines?

a. There '\s a diversity of opinion on this issue. Sore Tribat-state compacts make
reference ta'§542 and as stich are part of reguiatory framework approved in
the coripact, Thhs Is, where the argument has most strongly been made that ©
§542 must be updated. - .

b. There Is a view that §542 can he updated by

I, Stating clearly that the provisions are advisory only but that specific
‘Tribes may chaose to adopt the regulations along with NIGC oversight
by written agreement. This would require continual updating and

* revision of §542.{Timeframe avery 3to 5 years) ’

1. Another view Is that §542 state the above with the addition that the
provisions wil! be Issued as guidelines In a Bulletin. The Bulletin will be
regularly updated based on Input from Tribes and other affected
partles,(Tribes adopt standards consistent with IGRA)

(2) What are the Inplicatians? :

a. This process envistoned in (1) (b}{ll) above would mare closely resemble the
way that Nevada works with the Industry to keep mules current and relevant.

b. Standards could be submitted that TGAA approve to meet Compacts with
States and meet Industry Standards! .

543 Class tl MICS

This IS. A PRIORITY (TEM.

(1) How should these regulations be reviewed and revised?

a. Yes. : .
b, Affirst step In the process should be to withdraw the current §543 regulations

and/or suspend any enforcement of the regulations. The current §543 Is In
need of total replacement,

c. Tribes, as Primary Regulators, should develop Internal Controls, that reflect ail

i/at 2014 - 19230 3836

11

P.012

96%

4059644206

FEB-12-2011 11:36


@015/017

ADMINISTRATION

02/12/2011 11:21 FAX 4059644206

__ Comment

agreed.upon with Tribes. ¢

Any revistons or renlacament should not required elected governments to
take any actlons, etc. A comprehensive review and rewrite Is required so as to
address the limits of the NIGC’s authority to order Tribal governments to-act.
e, Itwoutd be preferable, after review, that the regulation be substantially

revised and the Issuance of a series of Butletins to cover best practices would

n

result,
f. Having ralsed this particular area for possible regulatory action, if the NIGC

dacides to proceed or otherwise set this aside, a clear statemantas to the.

Telbes, “

reasons for such deckton Is advisable and needed to maintain continuity for |.

571

Inspection and Access
‘This is NOT a priority Item.

. . Including at sites imaintained or owned by. 3” parties?

(2) Should this section be revised to darify access to papers, baoks, and records,

a. . Yes, The CRIT case has established some limits that must be recognized.
b. Other types of enforcement actions and requests for Information under for
example, §2715 require a dear set of criteria and procedurat rules so as to
protect Due Process.
c. IGRA, allows for Chairman to subpoena any Information he needs to make
_— decision. This process makes no difference as to party Involved!

573

Enforcement
Thisis NOT a priority Hem.

(4) Shauld there be a process for withdrawing a NOV after issuance?

a. Yes
b. Its the view of some that the Chalr possesses the power under the various

provislons of IGRA that authorize the issuance of an NOV. Ifthe Chair has the

discretion to authorize, then it follows that the Chair may withdrawal using

o1y3i/2018 - 19230.3826

14

P.015

96%

4059644206

FEB-12-2011 11:35