February 7, 2011

Lael Echo-Hawk

National Indian Gaming Commission
1441 L St. NW, Suite 9100
Washington, D.C. 20005

RE: _ Tribal Consultation Comments
Dear Ms. Echo-Hawk:

I am the chairman of the Barona Band of Mission Indians, formally known as the Barona
Group of the Capitan Grande Band of Mission Indians. As a follow-up to the San Diego
consultation, I am submitting the following comments regarding NIGC’s Notice of
Inquiry and Request for Information.

Records Retention Policy

We previously submitted comments regarding your records retention policy. We urge
you to change the status to “temporary” or allow tribes to retain the audits on a permanent
basis. I understand that private financial information should be FOIA protected;
however, in light of the BIA release of tribal revenue allocation plans, we want to take all
necessary precautions to protect the documents.

Fee Structure

25 CFR 514.1(a) applies annual fees to “Each gaming operation under the jurisdiction of
the Commission...”. IGRA says that the Commission shall establish fees to be paid by
“each gaming operation that conducts a class II or class III gaming activity that is
regulated by this chapter.” 25 U.S.C. §2717(a)(1). As you know, in Colorado River
Indian Tribes v. National Indian Gaming Commission 466 F3d 134 (D.C. cir, 2006), the
Court of Appeals for the District of Columbia found that NIGC has no statutory authority
to regulate Class III gaming activities.

1

1095 Barona Road, Lakeside, California 92040-1599 * Phone 619.443.6612 * Fax 619.443.0681


Since NIGC does not regulate Class III gaming, and regulatory fees are paid to the state,
no federal regulatory fees should be imposed on these activities. Your fee structure
should therefore be modified to apply to only those gaming activities that you have the
authority to regulate.

MICS

Following the CRIT decision, the Class III MICS developed by NIGC are now
inapplicable. Despite the legal status of the MICS, most tribes, including Barona, have
adopted the MICS, or a version that meets or exceeds the MICS. In addition, many states
have referenced the MICS, either in the tribal/state compacts, or in regulations
implementing the compacts.

The MICS have served as a useful resource for tribes and should be updated. One
suggestion made at the San Diego consultation meeting was that the MICS be made
available as a model that tribes and states could choose to adopt, at their discretion. We
agree with this suggestion.

MICS updates should be drafted with a Tribal Advisory Committee made up of a cross-
section of tribal regulators, that are chosen by those regulators to provide true
representation.

Tribal Advisory Committee

In the past, NIGC hand-picked advisory committee members to include only those that
may be like-minded. In addition, there were allegations by committee members that they
were there only for “face value” and that no real tribal input was appreciated or
considered.

Tribal Advisory Committees are a good idea when NIGC is addressing projects, such as
the MICS or technical standards that are too large to rely solely on standard notices and
comments. If TACs are formed, there should be a nomination process by region, so
tribes have an opportunity to choose the representatives that most reflect their views.
When meeting, positions taken by the TAC need to be addressed. It is a waste of time
and money if tribal regulator views are ignored.

Non-Key Employee Fingerprint Processing



One of IGRA’s stated purposes is to shield Indian gaming from organized crime and
other corrupting influences. At the same time, NIGC limits the availability of fingerprint
processing, which makes it more difficult to conduct background investigations.

Fingerprint reports often reveal criminal cases that have been omitted from background
questionnaires and are not located using available databases. It would be very helpful,
and would be an aid to IGRA’s stated purpose, to have this access for vendors and
independent contractors, particularly those that have access to non-public areas of the
gaming facility.

Pilot Licensing Program

The “pilot program” for background investigation submission has been in place since the
1990s. At this point, it no longer seems like a trial program and should be made
permanent through regulation. This could best be done with the notice and comment
process, as should all proposed regulations, other than those complex issues that require a
TAC.

Thank you for considering our comments. We appreciate the change in direction at
NIGC, and look forward to a relationship based on mutual respect.

If you have any questions, you may reach me at the address and telephone number on the
letterhead.

Sincerely,

TELS,

Edwin Romero
Chairman, Barona Band of Mission Indians