1 NATIONAL INDIAN GAMING COMMISSION MEETING

2 TAKEN ON AUGUST 19TH, 2011

3 IN TULSA, OKLAHOMA

4

5

6

7

8

9

10 APPEARANCES

11 Steffani A. Cochran

Vice-Chairwoman

12 1441 L Street Northwest

Suite 9100

13 Washington, DC 20005

(202) 632-7003

14 steffani_cochran@nigc.gov

15 Daniel J. Little

Commissioner

16 1441 L Street Northwest

Suite 9100

17 Washington, DC 20005

(202) 632-7003

18 Daniel_little@nigc.gov

19

20

21

22

23

24 Job No. NJ343897

25 REPORTED BY: Carla S. Kimbrough

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1 MS. COCHRAN: Good morning. If we have --

2 Tom, I don't know if there's anybody outside still.

3 MR. CUNNINGHAM: No.

4 MS. COCHRAN: Okay. Well, good morning. My

5 name is Steffani Cochran and for those of you who I've

6 not had an opportunity to meet, I'm vice chairwoman at

7 the National Indian Gaming Commission, and I want to

8 welcome you this morning for the second day of our

9 consultations.

10 I'm going to go ahead and get started. We hope

11 to get us done a little early today. I know it's

12 Friday. I know it's been a long week for all of us

13 and we would like to get you home, get me started on

14 my vacation. So if you'll let us move as quickly as

15 we can through the materials for you, we look forward

16 to some discussion today. I know many of you are

17 interested in the TAC and the MICS, how we're going to

18 handle the technical standards and, of course, that

19 will be on the agenda for today.

20 So before we begin, I see there's many that were

21 here yesterday, but there are also some new faces. If

22 I could and also for the court reporter, let's go

23 around the room and just introduce ourselves and

24 please identify which tribe you're representing. And

25 when you speak, people were great about this

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1 yesterday, if I could ask you to do it again today, to

2 please identify who you are because the court reporter

3 is going to transcribe this meeting as we've done with

4 all of our consultations. And so we want to make sure

5 that we properly attribute comments to the right

6 person. Unless you're Lael and you ask us to redact

7 it.

8 So with that I'm going to turn it over and let

9 Commissioner Little say good morning and then we'll go

10 around the room again and if you would identify

11 yourselves.

12 MR. LITTLE: Hi, good morning, everyone. I

13 just want to thank everybody for coming back today. I

14 see some new faces in the audience, and I look forward

15 to hearing your comments, so thank you.

16 MS. DITTLER: Esther Dittler, I'm a staff

17 attorney in the office of general counsel.

18 MR. HILL: Ronald Hill, the Acting

19 Commissioner from Muscogee Creek Nation.

20 MR. FLUTE: Homer Flute, Apache Tribe.

21 MR. WOOD: Richard Wood, Seneca-Cayuga

22 Tribe.

23 MR. KITCHKUMME: Rey Kitchkumme, Prairie

24 Band Potawatomi Gaming Commissioner.

25 MS. TOPPAH: Amber Toppah, Vice Chairman for

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1 the Kiowa Tribe of Oklahoma.

2 MS. ECHO-HAWK: Lael Echo-Hawk, you-all

3 heard me say chicken yesterday.

4 (Whereupon, members of the audience

5 introduce themselves.)

6 MS. COCHRAN: Well, thank you. And, wow,

7 there's a lot of representatives from Kickapoo. I

8 know you've come a long way, so thank you for joining

9 us. It's always a pleasure to see you. Before we

10 begin, I do want to invite anybody who wants to come

11 and sit at the table. We obviously have a smaller

12 crowd today. We encourage you if you'd like to come

13 join us, please feel free to do so. We do reserve it

14 for tribal leaders, but this is not a group large

15 enough that we need to adhere to that rule formally.

16 I do want to always acknowledge the tribal

17 leaders that are here and to thank for you joining us.

18 We know and I know personally that your time is

19 extremely valuable and that you have a lot on your

20 plates. And for you to take time to come out to join

21 us means a lot to us, and we recognize that you've

22 done that for us. So thank you.

23 Is there anybody who needs to make a statement

24 and or would like to make a statement before we begin

25 for the record? I'm happy to give you that time. At

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1 any point in time if you need to leave and you want to

2 read a statement or if you have something you want to

3 make sure gets into the record, please do so. Please

4 let us know. We're happy to do that. Yes, sir.

5 MR. HORTON: Sam Horton, Ft. Sill Apache

6 Gaming Commissioner.

7 Your chairman asked me a question yesterday and I

8 went back to my commissioners last night and her

9 question was -- my comment was, I don't really see a

10 reason for Class III MICS. And we just had a real

11 short call last night between four of us, and

12 basically I'm new at this. Many of us are new at

13 this, but the overall comment I made yesterday was, I

14 don't really see the needs for Class III MICS. I

15 think it's a waste of time.

16 And intrinsically, when I went back and the guys

17 on the Commission, who are older than myself in this

18 world, their comments were basically such that the

19 differences are subtle in between Class II and the

20 Class III MICS. And the surveillance comment that was

21 brought up as an example was one refers to the

22 situation be a manned and other the one staffed. And

23 that's not significant enough a difference for me to

24 see spending the time on it when the NIGC really

25 doesn't regulate Class III and that we are the final

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1 regulators. And then on top of that, NIGC gets paid

2 for Class III because of the fees they collect from

3 the casino.

4 I think a system of standards or suggestions put

5 out by bulletin are addressing the parts of the

6 Class II MICS that intrinsically are different, that

7 really do make a difference between Class II and

8 Class III. I think you'd spend a whole lot less time

9 developing a whole mirrored book of MICS for Class III

10 if we could just document and recommend by the way

11 these are suggestions we make as far as what Class III

12 should be or standards that could exist in Class III.

13 But to make two books that will run parallel in

14 my world of having Class II and Class III machines

15 interspersed, I really don't think I'm going to have a

16 commission or a casino staff that's ever going to

17 really totally understand the difference between the

18 machine on the left and the one on the right. Thank

19 you.

20 MS. COCHRAN: Thank for you following up and

21 letting us know about your conversation. Your

22 perspective is certainly not alone. I mean, we've

23 heard similar types of comments from other areas of

24 the country and it's part of the whole rainbow of

25 options that the Commission has available to it. So

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1 thank for you sharing that with us and letting us

2 know.

3 Are there any other statements? All right. I am

4 going to turn it over on Lael and I'm going to let her

5 walk us through the first group and then we'll dive

6 right in.

7 MS. ECHO-HAWK: Good morning again. Just

8 some logistics, we -- today we are going over Group 5

9 and Group 3. We did have some discussion yesterday on

10 Group 3, which is the Class II minimal internal

11 control standards and technical standards. You should

12 have an agenda, and just so you know if -- I know that

13 the Commission tries to be flexible so at times we may

14 shorten this up. So we try to follow this out, but

15 just so you're aware. Second, we did -- our wonderful

16 staff here did go and make copies of the PowerPoint.

17 The updated PowerPoint of the slides that were missing

18 yesterday are now included in there. Those are the

19 slides on the appeal section and I think it's like

20 slide 31 to 42 or something. So be sure to pick up

21 the PowerPoint because it is an updated copy, and

22 thank you to the staff who went home and made all

23 those copies.

24 So this morning we're going to start with

25 Group 5. Group 5 covers Part 518, which is

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1 self-regulation regulation. I always feel a little

2 odd saying that, but that's the regulation. We are

3 also going to be talking about sole proprietary

4 interests, and then very briefly we'll probably

5 discuss more of this in the Group 3 about the minimum

6 internal control standards for Group 3 -- or for

7 Class III gaming. So the notice of inquiry -- and I

8 also want to say that we did -- yesterday we posted a

9 draft of Part 518 so a new draft is out. Is it in the

10 handouts now? Was it on the table?

11 MR. CUNNINGHAM: (Nodding head.)

12 MS. ECHO-HAWK: Okay. So you should have a

13 copy of the brand new, top-of-the-line Part 518. This

14 is the discussion draft that we've been working on and

15 we posted it on the website. It is in your handouts

16 and hopefully you'll have some time to review it

17 between now and, I think, it's September 17th is the

18 day to comment on that.

19 But the notice of inquiry asked basically whether

20 or not we should review the process for obtaining

21 Class II self-regulation certification. Out of the

22 200-plus tribes that game, we have two self-regulating

23 tribes. And the Commission thought, well, maybe that

24 regulation isn't as effective as they could be so what

25 are those changes that we could make. And so we put

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1 the notice of inquiry out and we heard over and over

2 again that the administrative burden of completing the

3 process outweighs the benefits obtained.

4 The submission requirements were duplicative and

5 burdensome. The petition and annual reporting

6 requirements undermine the purpose of certification

7 and self-regulation, but that high standards should be

8 maintained when issuing a certification of

9 self-regulation. Self-regulation is a hallmark of

10 tribal sovereignty and that this was one mechanism for

11 recognizing that.

12 So we came up with some questions and asked how

13 many tribes -- and we'd like to hear today how many

14 tribes are interested in self-regulation. As we've

15 gone around and talked about this with another

16 consultations, we've seen a lot of interest. Now

17 self-regulation is for only Class II gaming

18 activities, but we've seen a lot of interest and not

19 just purely Class II tribes, but tribes that have

20 hybrid operations.

21 We're also trying to figure out, sort of, what

22 are these benefits? What are the additional

23 responsibilities that a tribe would take on or

24 incentives for self-reg tribes to become

25 self-regulating? How should the annual reporting

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1 requirements be amended?

2 Currently the regs require a report to be sent in

3 and a certification made by the tribal officials to

4 access, and you'll see that we made those change in

5 the regulation. The Act says that the tribe, only if

6 it sends in its annual audit as it would do, and then

7 a list of resumes' for key employees and primary -- or

8 for all the employees that's hired. And then we

9 amended the definition -- or we added the definition

10 of employee so that it would be for key employees and

11 management officials. And that's in the new -- in the

12 new draft. But instead of having to submit this

13 annual report, we went back to what the language of

14 the statute says, which says just the annual audit and

15 resumes'.

16 So the regulation is, if you look at it, you'll

17 see it has just a ton of information it requests. A

18 lot of that information is -- were things that we now

19 already have at the NIGC that we have available to us.

20 This regulation was drafted in 1998, and so it was

21 before we adopted MICS, and it was before sort of

22 gaming really took off. And I think there was, you

23 know, an effort made to be as comprehensive as

24 possible. But now as things have developed and tribes

25 have become more sophisticated and so has the NIGC, a

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1 lot of this stuff we already have.

2 And we really wanted to shift the focus because

3 it seemed to us that the focus of the regulation was

4 more on the operation and less on the regulation. So

5 we wanted to make sure that as we put this self-reg

6 draft together that we made sure that we stayed

7 focused on the regulatory structure and the regulatory

8 framework. And you'll see us in the draft try to make

9 that shift. We want to make sure that the tribe is

10 adequately regulating, that's the point of the

11 regulation. What happens in operations isn't --

12 doesn't -- while it may pertain in some small degree

13 to the regulation, our primary interest is making sure

14 that the tribe is regulating effectively. And so

15 that's what we tried to do.

16 There's a number of criteria included in the

17 current regulation. And really what it boils down to

18 is what the Act says. And that's a, Finding that the

19 tribe conducts gaming with an effective and honest

20 accounting of all revenues; with the reputation for

21 safe, fair, and honest operation; on a fiscally and

22 economically sound basis; and with no criminal or

23 dishonest activity. And finding that there's adequate

24 systems for all those things and that the gaming

25 activity has been conducted in compliance with IGRA

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1 and NIGC regulations and the tribe's ordinance and

2 gaming regulations. So that's what the Act says. So

3 we wanted to go back to that and that's what we tried

4 to do in the new draft.

5 There's a listing, and it's included in the

6 PowerPoint, a listing of all these indicators that

7 were included in the regulation, what those include.

8 And we tried to take out the things that weren't

9 really that germane to the regulation that were more

10 relevant to the operation. We tried to make sure that

11 the information that we request and the tribes have to

12 demonstrate really pertains to the regulation of

13 Class II gaming.

14 So you do have the draft. Comments on that close

15 on the 17th of September, written comments do. And we

16 really look forward to hearing from you about your

17 take on this particular issue. Whether you're

18 interested, sort of what the criteria should be, and

19 how we should go about making this regulation more

20 effective so the tribes can take advantage of it.

21 The next issue that we talked about in 5 -- in

22 Group 5 is a sole proprietary interest. We asked in

23 the notice of inquiry whether the Commission should

24 consider a regulation defining sole proprietary

25 interest and provide a process by which a tribe may

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1 request review. We had a lot of comments on this:

2 That the Commission should promulgate a regulation

3 only to provide review only at the request of a tribe;

4 that the percentages contained in IGRA, which is 60/40

5 or 70/30, define what percentages might violate the

6 Act; that if sole proprietary interest is defined,

7 then so should primary beneficiary.

8 And then on the other hand we heard, Well, a

9 clear definition of sole proprietary interest may

10 provide stability and access to financing. Completely

11 opposing view that a definition might limit tribal

12 access to capital and that a determination of sole

13 proprietary interest should be left to the courts.

14 We -- this is an issue that comes to the

15 Commission often. I think we did a survey of all the

16 times that we've issued a determination on sole

17 proprietary interest either by itself or in the

18 context of a management contract, and we've done it

19 over 92 opinions, very few actual final agency

20 actions. And that was one of the criticisms we

21 received is that when we make these decisions it's not

22 then under -- it's not been final agency action. So

23 there has been no -- a court hasn't had the

24 opportunity to take a look at this and then provide

25 perhaps additional guidance of what sole proprietary

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1 interest is and what a violation of that might look

2 like.

3 So we don't have a draft regulation out yet.

4 We're very interested in hearing what tribes have to

5 say. We've heard a number of tribes say it's too

6 fact. The fact patterns are too -- there's too many

7 fact patterns and that we couldn't define something

8 adequately in a way to cover all of the -- all of the

9 situations that might come up. But that perhaps

10 providing a process for review might be a way to at

11 least get -- allow tribes to put their foot in the

12 door so that they can get a perspective on what their

13 particular situation is and whether or not they might

14 be in that area where the sole proprietary interest

15 provisions of IGRA might be being violated.

16 And then finally, we'll talk about this a little

17 bit later, is we included in Group 5 the Class III

18 MICS, and I think we're going to talk about that in

19 the next group. So that is what we have for this

20 morning.

21 MS. COCHRAN: Well, thank you, Lael. I'm

22 kind of excited to see some feedback on the

23 self-regulation materials. This is the first

24 consultation time that we've had, this just came out.

25 I know many of you may not have had an opportunity to

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1 read it yet, but this is an area that I know -- I

2 personally take a great deal of interest in and have

3 spent a lot of time with the staff and with Lael

4 talking about how to get this to be a useful aspect of

5 IGRA.

6 The other thing that I like about this particular

7 group and this particular part, is it is one of the

8 places that I believe the Commission can showcase its

9 commitment to reducing redundancies in what we do.

10 This regulation was screaming to be realigned, not

11 only with what our authorities are under IGRA, but

12 also to reduce the burden that we've placed upon

13 tribes to take advantage of something that is

14 statutorily provided to them.

15 So I like this regulation. And I'm really

16 interested in seeing the feedback that comes in,

17 especially from an area like Oklahoma where this is, I

18 know, an important aspect, Class II being an important

19 aspect and large aspect of your business. So is there

20 any initial thoughts or comments that you want to

21 offer? Yes.

22 MR. HORTON: Ft. Sill Apache, Sam Horton.

23 Are there any self-regulating tribes in Oklahoma

24 at this point?

25 MS. COCHRAN: Sam, there are not. There are

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1 only two in the country. One of them is Grand Ronde

2 in Oregon and the other one is Menominee. And that's

3 one of the reasons why we, of course, focused it on

4 this, two tribes in entire country. And the feedback

5 that we got makes sense. You're operating from a

6 business perspective. You're looking at cost versus

7 benefits. And the regulation that was in place

8 flipped the expense to the tribe, the cost to the

9 tribe, whether it's monetarily or just your time. And

10 putting the materials together flipped it upside down

11 and made the benefits not worth it and hence you have

12 two tribes.

13 Is there any -- again, I don't know how much of

14 an opportunity you've had to look at the regulation.

15 Is there anybody here that maybe attempted it and

16 withdrew their efforts who can perhaps provide some

17 insight on the amount of reduction that we've done in

18 this as far as what's required, what must be reported,

19 how it must be reported?

20 MS. HUBER: Bernadette Huber, Iowa Tribe of

21 Oklahoma.

22 MS. COCHRAN: Good morning.

23 MS. HUBER: On page 3 of the draft, line 3

24 and line 13, one of the comments that we had when we

25 did the original review is that some of the

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1 requirements seem to be repetitious. And to me this

2 still -- maybe you can clarify a list of gaming

3 activity internal controls at the gaming operation and

4 then a set of the gaming regulations. It seems to me

5 that those are inclusive, they are repetitious of one

6 another. And I'm just wondering is there is a -- a

7 thought pattern why those should be a separate thing?

8 MS. COCHRAN: That's a good question. I'm

9 actually going to look to the attorneys because they

10 did so much of this drafting to maybe give you some

11 thoughts on what the thinking was.

12 MS. ECHO-HAWK: You're talking about

13 Numeral 10(x) there?

14 MS. HUBER: Yes.

15 MS. ECHO-HAWK: Well, what we've seen is

16 that a number of tribes will -- they send in their

17 ordinance for adoption, and their ordinance contains

18 everything that an ordinance must contain. And then

19 what they do is they adopt a set of regulations that

20 they can then amend as they need to and doesn't have

21 to come to us for approval or disapproval. So if the

22 gaming regulation -- if they do that, then they don't

23 have to send them to NIGC for updating so we might not

24 have the most current copy.

25 So the point of this was to make sure that we

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1 have the most current regulations, if they're not

2 already included in the ordinance, just to make sure

3 that we have the most updated regs that the tribe --

4 that the tribes regs, which could be their text, it

5 could be a number of things, but we might not have the

6 most updated copy because it wasn't included in the

7 ordinance submission, which is fine. It's just

8 another way to go about it.

9 MS. COCHRAN: Is your question, though,

10 coming from the perspective of that your internal

11 controls may be in your gaming regulations?

12 MS. HUBER: (Nodding head.) It's Number 7.

13 MS. COCHRAN: She's talking about how this

14 differs from this.

15 MS. ECHO-HAWK: Tribes structure their

16 ordinance in their internal controls and their

17 regulations all differently so they can come to us all

18 different ways. They can come to us all in one packet

19 in a gaming ordinance submission, but like I know at

20 the tribe that I worked with, their set of internal

21 controls was incredibly comprehensive and included

22 things that weren't included in the ordinance and were

23 not included in the regulations either.

24 So tribes do it all differently, and we just want

25 to make sure that as long as it's all -- if it's all

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1 there, great. You don't have to send two copies.

2 Just make sure that we have your internal controls,

3 your regulations, and your ordinance. So we just had

4 to say it.

5 MS. COCHRAN: Does that answer your

6 question?

7 MS. HUBER: It does answer my question, but

8 it does seem to me to still be repetitious.

9 MS. COCHRAN: Thank you. We received

10 comments throughout our consultations seeking us to

11 consider additional benefits that might flow outside

12 of the -- the Act. As you know IGRA allows for the

13 four activities of the Commission that will cease

14 during your period of self-regulation. The

15 Commission, by regulation, provides for the reduction

16 in fees so there's been some ideas floated around

17 about how we might make it more enticing. Is there

18 anybody who has thoughts or would like to add in to

19 that conversation? No? All right.

20 Well, I hope you'll take the time to look at it,

21 to give some feedback, to let us know if this is going

22 to work. It really is intended to provide a better

23 mechanism for the tribes to take advantage of what

24 IGRA allows for. And if we've fallen short or if

25 we've missed the mark in any way or if there are

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1 improvements, simple improvements, that can be made to

2 the proposed discussion draft, then we certainly

3 encourage you to do that. Good morning, Liz.

4 MS. HOMER: Good morning, Commissioner. I

5 think I, personally, I will say that we're very --

6 MS. COCHRAN: Liz, you're going to have to

7 identify yourself.

8 MS. HOMER: Beg pardon?

9 MS. COCHRAN: Identify yourself.

10 MS. HOMER: Elizabeth Homer. I want to

11 thank you all for focusing on this. A number of my

12 clients are very interested in the self-regulation

13 regulations, and it's very encouraging that -- very

14 briefly I've had an opportunity to look at this this

15 morning so my comments here are not going to be

16 comprehensive.

17 A couple of things, I think that, number one, on

18 this submission question, I think that somebody posed

19 or that you talked about, Lael, in terms of, you know,

20 resumes' of all the key employees, I think you might

21 be biting off a whole lot more than you really want on

22 an annual submission, you know, in terms of that. I

23 think that you-all do receive the suitability

24 determinations. I would presume that you would

25 continue to receive the suitability determinations so

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1 that you should have all of the tribe's licensees at

2 least in each of your regional offices.

3 I would also say the other -- you know, the other

4 thing that impresses me with respect to the

5 self-regulation, and, you know, bear with me, I'm

6 going to be a little politically incorrect here.

7 But -- and we talked about this during your

8 consultation in D.C. You know, the point -- I think

9 the problem with the old self-regulation regulation is

10 that it is so focused on management and not focused on

11 regulation. You know, and if you take the purpose and

12 intent of IGRA, which is to strengthen the

13 institutional framework of tribal government, to

14 strengthen the tribal government, and, of course,

15 self-regulation is an aspect of that, then what you

16 would think or what I would think if I had a shot at

17 this regulation again, is that the focus of this

18 should be on the regulatory framework.

19 And, you know, the Commission can do a lot to

20 support tribal gaming regulatory agencies. You know,

21 I have -- I will say that I represent a myriad of

22 different types of clients. I represent gaming

23 operations. I represent tribal councils and

24 enterprise wards. And so I have kind of a range of

25 experience here. And one of the things that I think a

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1 lot of tribes struggle with and my own clients have

2 struggled with historically, is that there isn't a

3 complete appreciation for the importance of your

4 regulatory agency and investing properly and paying

5 enough attention to your regulatory agency.

6 And the point of this regulation I would think is

7 to encourage that. You know, to encourage tribes to

8 really -- especially tribal legislatures that maybe

9 don't always adequately fund, tribal regulatory

10 agencies, not everyone, of course. I see you looking

11 at me. I told you I was going to be politically

12 incorrect. You know, I think that that is the

13 pinnacle. That is the hallmark of self-regulation, is

14 for the tribe itself to not only acknowledge the

15 importance of gaming regulation, but to really dig in

16 and make sure that its gaming regulatory agency is

17 adequately funded, adequately staffed, and is -- is

18 carrying out all of the duties that are required to

19 adequately and effectively regulate tribal gaming.

20 You know, I mean, and it's expensive. I mean, it

21 is expensive and, you know, that was kind of the idea

22 in the old regulation for reducing fees to the NIGC

23 for the self-regulating tribes. Because if you're --

24 if you're fully -- fully effective in your regulatory

25 structure, you're conducting routine investigations,

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1 routine hearings. It's not just a licensing entity as

2 you-all well know. But a lot of tribal governments

3 tend to -- and I'm not saying the gaming regulatory

4 agencies, but the funding, the legislatures, don't

5 always appreciate what all goes into it.

6 And so self-regulation should not be a simple

7 thing to get, but it shouldn't be an impossible thing

8 to get. And that's kind of what the problem has been

9 is the bar was so impossibly high and the focus was

10 just on the gaming operation side, not on the

11 regulatory side. And I think that this regulation has

12 a potential to make it really clear how important

13 tribal gaming regulatory agencies are to the health of

14 our tribal gaming industry. That's my comment.

15 MS. COCHRAN: I'm not sure I could put that

16 much better.

17 MS. HOMER: Thank you.

18 MS. COCHRAN: But that does -- Liz, that

19 does reflect our initial attempt in getting the

20 discussion draft out to the tribes is to redirect our

21 focus and to be more in line with what the intent is

22 and what it should accomplish. And I think we

23 didn't -- certainly as you see, we didn't eliminate

24 all the requirements. There's still a burden in

25 there, and we do believe that that burden should

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1 measure the tribe's ability to sustain its

2 certificate. But it shouldn't be so hard to get, you

3 know. So I hope you'll have some time before the 17th

4 to give us some feedback because your clients' input

5 is important. And we want to hear how close we've

6 come to that mark.

7 And I am going to ask Lael to briefly comment on

8 the resumes' because we had a long discussion about

9 this, what IGRA requires, which was surprising to me,

10 and what we can and cannot get out of this regulation

11 with regard to what we're asking on employees.

12 MS. ECHO-HAWK: Yeah, we were kind of stuck

13 by the Act because the Act says in the section that

14 talks about self-regulation, The tribe shall continue

15 to submit an annual independent audit and shall submit

16 to the Commission a complete resume' on all employees

17 hired and licensed by the tribe subsequent to the

18 issuance of self-regulation. All employees.

19 So what we did, because we were, like, that could

20 be a lot, we -- and in point -- 518.7(b) we said what

21 the Act says, annual independent audit, a complete

22 resume' for all employees hired bla, bla, bla, and

23 then for the purposes of this subsection, employees

24 shall consist of primary management officials as

25 defined and key employees as defined because those

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1 are -- those are the license, the information for the

2 licensees that we do receive. So when you license a

3 primary management official or a key employee, you

4 have to send us the stuff. So we're going to try to

5 figure out a way to do that without having a stack of

6 papers come in of 2000 employees. It is -- yes, the

7 Act has --

8 MS. HOMER: I think I might define -- you

9 might work on a resume' definition.

10 MS. ECHO-HAWK: Right, right. That's a good

11 point.

12 MS. COCHRAN: Well, and that's exactly when

13 we -- when I had the opportunity to sit with the

14 lawyers, I don't, unfortunately, have enough time to

15 spend all their discussions with them, but when I pop

16 in and stir up the pot and they answer my questions,

17 that was one of the things I know that we initially

18 threw out is, can we work in the definition side of

19 this to have the Act make sense in today's

20 environment.

21 MS. HOMER: And you could also look at it,

22 it says hired and licensed by the tribe. Could that

23 not be the regulatory agency's employees? You think

24 that it has to be defined as the -- as the gaming

25 operation's employees?

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1 MS. ECHO-HAWK: That might be a way to

2 define it. Because if we are focusing on the

3 regulatory side and not on the operation, then it

4 seems like maybe we're interested in who the

5 regulators are, not -- but that's a good -- that's a

6 good -- that might help us, so. Thank you.

7 MS. COCHRAN: That's exactly -- but that's

8 the kind of stuff, Liz, I'd like to -- I hope

9 you'll -- I'm encouraging you to submit some comments

10 to help us think broadly and think creatively in how

11 we can meet the Act, stay within our lane, but be not

12 burdensome, overly burdensome.

13 MS. HOMER: Don't worry. You'll hear from

14 us.

15 MS. COCHRAN: Okay. Any other comments on

16 self-regulation?

17 Sole proprietary interest. Lael did a really

18 nice job laying out this part and some of the things

19 that we've talked about. I think the only thing that

20 I would perhaps share with you in addition to the

21 comments that have come in on the enterlie (phonetic)

22 that these comments, type of comments, have been

23 presented during other consultations.

24 One of them is there was discussion that happened

25 in Tulalip that had to do with whether or not the sole

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1 proprietary interest on -- whether or not this was the

2 only mechanism for final agency action under this was

3 an NOV. So is an NOV the only mechanism that we have

4 to provide final agency action. So that was an

5 interesting discussion that we had.

6 There was also some more discussion on whether or

7 not there was even a need to make these types of

8 decisions final agency action, whether or not there

9 was a -- is this something that we just need to keep

10 in an advisory form but find a better way to

11 communicate the breadth of our decisions and our

12 advisory opinions to tribes so that you can use that

13 in your decision-making process.

14 Does anybody have any comments they'd like to

15 share? I think you-all are conspiring to get me to my

16 vacation early. I like this group.

17 MR. LITTLE: Either that or maybe they are

18 okay with us giving sole proprietorship for the

19 regulation.

20 MS. COCHRAN: Yes, Liz.

21 MS. HOMER: This is an incredibly important

22 issue.

23 MR. LITTLE: Just joking by the way.

24 MS. HOMER: Elizabeth Homer.

25 It's an incredibly important issue legally to

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1 tribes, and I think that the problem that you're going

2 to have with sole proprietary interest is from a

3 regulatory point of view. You're just going to want

4 to do probably a definition, and you'll try to come up

5 with a definition that will be able to be applied

6 equally to all circumstances at all times so that it's

7 a fair and good regulatory definition. It's all in

8 the manual that the Federal Register puts out.

9 But I have worked for ten years trying to come up

10 with a definition of sole proprietary interest that

11 could work under all circumstances, at all times, that

12 apply equally to all situations, and you can't do it.

13 I mean, we do this for fun sometimes, and you just

14 can't come up with it. So I think what I recommend or

15 what I recommend you consider is to -- is to approach

16 it as an interpretive role. You know, so you're not

17 coming up with elements that are going to be applied

18 in litigation like you would a definition.

19 But, you know, the only way I think to address

20 this issue is by the big picture. And that's going

21 all the way back to the sub -- to the fundamentals of

22 Indian law. What is this trying to accomplish? What

23 was Congress trying to accomplish when it put this

24 provision in? And I think that it's actually a fairly

25 simple -- it's a fairly simple concept, and that is

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1 nobody can foreclose on an Indian -- on an Indian

2 gaming operation. It's inalienable.

3 You know, no third party can come in and take a

4 piece of the tribe's revenue. It allows -- it allows

5 for the tribe to, you know, to encumber its revenue

6 stream, but not its land, not its gaming operation.

7 That is the tribe's. That is why the tribe has a sole

8 proprietary interest. Only the tribe can own it. And

9 it must be the primary beneficiary because, you know,

10 and you have to go back, you know, back into history.

11 You know, they did amend Section 81 a number of years

12 ago, but that was built into IGRA initially. And I

13 think it's those same old concepts is that there's

14 always something, someone out there trying to get

15 whatever it is the Indians got. You know, and this

16 language is intended to prevent that and to protect

17 the tribes' interest and to make sure that it is the

18 tribe that is going to benefit.

19 And I don't know how you put that in a

20 definition. It's just too hard to put that in a

21 simple definition. But an interpretive rule? I think

22 it is amenable to that, you know, and you can have a

23 discussion about, you know, about some of the case law

24 and, you know, principles, fundamental principles, of

25 federal Indian law. I think that that would work for

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1 you better than trying to put out a straight, you

2 know, regulation.

3 MS. COCHRAN: One of the suggestions that

4 has come out is for us to consider a roundtable type

5 of a discussion with some experienced people, most

6 likely lawyers, but not necessarily. I actually think

7 that has a lot of potential. Did you -- is this

8 something that you and your clients might find a good

9 way to look at the issue?

10 MS. HOMER: Oh, I think that that would

11 be -- I think that would be very beneficial. The same

12 with your practice, your proceedings, before the

13 Commission regulation. I highly recommend a

14 roundtable, you know, a roundtable on that one too.

15 Because I think this is -- you know, this is a lawyer

16 issue. This is -- this is not one that gaming

17 regulators are going to, you know, necessarily, you

18 know, want to take the time and go to the trouble of

19 being a part of at this point.

20 You know, this is really a legal, you know, legal

21 concept. There's law, there's, you know, a lot of

22 things that look into that discussion. And I think

23 that one thing we can do from the legal community is

24 to help frame those issues so then everyone can weigh

25 in on it. But I think until the issues are framed and

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1 thrown out there, it's hard for people to wrap their

2 arms around this subject matter.

3 MS. COCHRAN: Thank you. Good morning.

4 MR. BRIEN: Russ Brien, I'm here with the

5 Prairie Band, but this is more of a general

6 observation. It's not something I work with them

7 specifically on it. I don't have authority to speak

8 for them on this particular issue.

9 So, but what Liz was saying, I think particularly

10 on this sole proprietary interest issue, the thing

11 that I've seen in my practice over the years is trying

12 to fend off people who are trying to bring money to

13 the table to finance a facility or an expansion or

14 something like that, and they are looking in any way

15 possible to take, not just a security interest in a

16 revenue stream, but they want to creatively create an

17 equity interest in revenue. And that is really the

18 key that I think we really need to focus on on this

19 definition.

20 So if you could really focus on security interest

21 in revenue streams versus an equity interest in

22 revenues, that would go a long way to helping weed out

23 at the front some of the issues that I see in Indian

24 Country on day-to-day basis.

25 MS. COCHRAN: That's an excellent

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1 observation. Thank you. Lael.

2 MS. ECHO-HAWK: Can you send that in? And I

3 say that because that's a very substantive comment,

4 one we haven't heard before. And I think it makes a

5 very key distinction and it's something that, you

6 know, we at the agency may not have as much experience

7 in dealing with as the attorneys that work with tribes

8 on the ground in making that distinction. So -- and

9 then if the other attorneys or tribes in the room have

10 comments or have things like that that they can weigh

11 in on, that's very, very helpful. Thank you.

12 MR. TAHSULA: John Tahsula.

13 MS. COCHRAN: Good morning.

14 MR. TAHSULA: Just to pile on to what Liz

15 and Russ said here. But I think the comments made

16 earlier in other regions suggested that this is very

17 much a lawyer issue and a very fact specific issue

18 lended to one of those, which is very difficult to

19 have a sort of real substantive definition as Liz

20 said. Because I think, you know, history of the

21 Commission has shown that these all wrap together with

22 the primary beneficiary, and at some point you pull in

23 percentages. And so I think, you know, it's so fact

24 specific that it's very difficult to have a rule that

25 fits everything.

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1 And, you know, if -- I think what Russ and Liz

2 alluded to, if you had something that maybe set out

3 one of the goals of this from a foundational level and

4 then, you know, I think this also fits in with the

5 notion that we need to have a little better than

6 there's been in the past a process -- a process to get

7 through judicial reviews so there can be some real

8 lawyering that goes on.

9 But, you know, real interaction on a fact

10 specific basis with legal principles involved, but

11 that can fit that situation with the ultimate goal, if

12 needed, between the commission and the tribe. We

13 can't reach a final resolution in that specific

14 instance that there would be available court reviews.

15 If you could define agency action and get a court

16 review of that that would then build up a body sort of

17 law that would be applied, you know, to different

18 facts in the way that we've become accustomed to the

19 law being applied to different sets of facts but with

20 commonly-used principles.

21 I think that's really the only way we get

22 somewhere from this. There's a decent body decision

23 that's been developed over the years. Certainly those

24 can come in, you know, I think to influence, you know,

25 future decisions. But I think we still need more.

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1 More, you know, input into that as these things

2 develop. We're not the only lawyers in these. Other

3 lawyers, as Russ, you know, said, they get very

4 creative and we need to be able -- this also needs to

5 be flexible enough to help the tribes address those

6 situations. So that would be my suggestion.

7 MS. COCHRAN: Thank you. I echo your

8 comments because I've heard it in other consultations

9 that we've got to find a way to get some of this stuff

10 moving out of the Commission and into judicial review

11 and get a better sense of -- of allowing some

12 certainty in areas where there needs to be certainty,

13 flexibility where it needs to be flexible. So thank

14 you, John.

15 MR. FRIEND: Billy Friend, Wyandotte Nation.

16 MS. COCHRAN: Good morning.

17 MR. FRIEND: I guess, from a tribal

18 perspective, one of the things that we would like to

19 see most is some consistency. I think this has been

20 one of the most inconsistent areas as far as, you

21 know, we're concerned. You know, just from our own

22 experience, you know, entering into a development

23 agreement, sending that agreement in several months

24 prior to opening, and then two years into operation

25 receive an opinion letter that we're in violation of

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1 sole proprietary.

2 And so by this time, of course, the tribe has

3 even entered into a contractual agreement and so --

4 and I realize there was changes of administration.

5 But I think as far as tribes are concerned, it's not

6 so much that we want to see regulations, but we would

7 like to see some criteria or some guidelines or some

8 standards set that when we enter into these

9 agreements, we know basically the dos and the don'ts

10 instead of getting into an agreement and getting two

11 or three years down the road on a project and then

12 receive a letter and then going back to the NIGC and

13 asking for some help on the issue and then getting

14 complete opposite opinion back once again.

15 And I think mainly what we would like to just see

16 is consistency in this area. I don't think that -- as

17 the former speaker said, I think that we still need

18 flexibility because you can't take a cookie-cutter

19 approach to it, every -- every situation is different.

20 But we would definitely like to see some type of

21 criteria or guidelines or standards that are set

22 forth, that when we sit down to enter into an

23 agreement, we have some guidelines to follow. Thank

24 you.

25 MS. COCHRAN: Thank you. One of the

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1 comments that came up early on in this discussion,

2 which I think resonated with many of us, was a

3 description that sole proprietary interest is a

4 snapshot in time, it's one snapshot. Tribes move

5 forward, agreements are entered, more agreements are

6 entered or changed. And because of that and not only

7 because it is just that, a snapshot, the players, the

8 interest can change at any given moment, which makes

9 defining that a greater challenge, I think, for us.

10 And I thought that was an excellent way to be

11 described and why we need to be so meticulous and

12 thoughtful in how we approach this so that we can give

13 certainty, we can do a little better job perhaps of

14 getting timely information back, but also to be

15 cognizant that it's just a snapshot of time. Any

16 other thoughts?

17 All right. We'll take a quick break. Lael has

18 got to do some PowerPoint changes real quick and then

19 we'll do our last group and see where we go from

20 there. Maybe ten minutes or so and then we'll

21 reconvene.

22 (Break taken from 10:07 a.m. to 10:25 a.m.)

23 MS. COCHRAN: All right. If we could get

24 everybody seated again. Well, we're going to move

25 forward into the final group that's on our agenda,

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1 this is Group 3. This is probably the most watched

2 group for many reasons, and I'm going to turn the

3 microphone over to Lael to walk us through. I am

4 going to have -- there were a couple of people that

5 have come in and I'm going to ask that they identify

6 themselves for our court reporter. And then we have

7 some tribal leadership and Matthew Morgan is here,

8 I've seen. So anybody who didn't initially introduce

9 yourself, if you would just take a moment, introduce

10 yourself for the record, and then we'll turn back to

11 Lael.

12 MS. ROWE-KURAK: Janice Rowe-Kurak, Chairman

13 of the Iowa Tribe of Oklahoma.

14 MR. MORGAN: Matthew Morgan, Gaming

15 Commissioner Chickasaw Nation.

16 MS. O'TOOLE: Carrie O'Toole, Tribal Council

17 Prairie Band Potawatomi Nation.

18 MR. KITCHKUMME: Rey Kitchkumme, Prairie

19 Band Potawatomi Nation Gaming Commission.

20 MS. TOPPAH: Amber Toppah, Vice Chairman of

21 the Kiowa Tribe of Oklahoma.

22 MS. COCHRAN: Well, thank you for joining

23 us. We have one final group to cover so if you'll

24 bear with us I'm hoping perhaps even if it's not right

25 at the noon hour that maybe around the noon hour we

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1 can get done and let you start your weekend. And so

2 I'm going to turn it over on Lael.

3 MS. ECHO-HAWK: Okay. So the last and final

4 group that we have on the agenda for today and for

5 this meeting is Group 3, which covers Class II minimum

6 internal control standards and Class II technical

7 standards. When we sent the notice of inquiry out, we

8 asked how do we go forward with amending these parts?

9 We know that the effective date for the Class II bingo

10 currently is October 13th, 2011. You can look forward

11 to a Federal Register notice next week extending that

12 implementation date out because we are going to be

13 focusing on -- and I'll speak to that in a minute.

14 We're going to be focusing on amending the Class II

15 MICS so that implementation date will be extended for

16 one year. Just in case your clients are interested,

17 that will be in the Federal Register next week.

18 So the NIGC has been drafting changes to the

19 Class II MICS from -- oh, gosh, a long time. But not

20 a lot of work -- not a lot was really accomplished

21 from -- well, they started in 2006. These -- the

22 Class II bingo MICS that were due to be implemented in

23 October were from 2008. They're still not in place

24 yet. And there was a lot of, sort of work being done

25 on a number of different fronts on addressing the

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1 Class II MICS and technical standards.

2 However, nothing has really been adopted that's

3 been satisfactory to all parties. Even the things

4 being worked on were outdated. Tribal gaming working

5 group submitted a draft to the NIGC at our July 20 --

6 I believe, it was on July 28th or 29th, they submitted

7 their alternative standards to us. Forge Creek came

8 and provided us that information. That is now out for

9 notice. We've published a notice of availability and

10 request for comment in the Federal Register. You can

11 find that entire draft posted online. The Federal

12 Register contains the exact link, but if you go to our

13 reg review 2010 to 2011 page and click on Group 3,

14 you'll find that information there. We are looking

15 for comments on that and that's out currently.

16 We had a number of comments suggest that we begin

17 using a tribal advisory committee that tribes wanted

18 to take another shot at drafting the Class II

19 technical standards and minimum internal control

20 standards. So last week on October [sic] 10th, a

21 nomination letter and nomination form was sent out to

22 tribal leaders and gaming commissions all across the

23 United States. It's also published on our website and

24 we're asking for nominations for the tribal advisory

25 committee. Tribal advisory committee is going to be

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1 taking a look at Class II MICS, Class II technical

2 standards, and Class -- and also discussing what to do

3 with the Class III minimum internal control standards.

4 Nominations are due by September 16th because we have

5 to make a selection by October 3rd.

6 The inaugural meeting is set, currently set, for

7 October 20th through the 21st. We run into a little

8 bit of a glitch with NIGA's midyear and we're working

9 right now as we speak on trying to -- am I going too

10 fast? Okay. We're going -- we're working right now

11 on figuring out a way to reschedule or in working with

12 NIGA to perhaps move some days around so we can get

13 both NIGA and the inaugural meeting for the tribal

14 advisory committee done that week, likely in

15 Connecticut. We're working on that.

16 After the inaugural meeting, we have additional

17 five meetings scheduled, they're three-day meetings.

18 And the nomination letter is very clear that anyone

19 who is nominated, we need for you to -- we need for

20 those nominees and members to be willing to commit to

21 attending those meetings, all of them from start to

22 finish. We have a very short time frame. The TAC

23 work is due March 31st, 2012. So we've got about six

24 months to get all of this accomplished. And

25 March 31st is our deadline because we need to have

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1 time to take that information that the tribal advisory

2 committee comes up with, put together a notice of

3 proposed rule for comment, send it out for a 60-day

4 comment period to tribes, and consultations. We'll go

5 back out and do additional consultations.

6 The Commission is aware that -- very cognizant

7 that the tribal advisory committee does not substitute

8 for consultation, so it's important that we work that

9 in. And then we have to have this all finalized

10 before we get the notice that no more rules will be --

11 can be made final prior to the presidential election.

12 So we have a really short time frame, but this is

13 something that the Commission and I don't know -- but

14 I know the chairwoman is adamant that we resolve this

15 issue that's been looming out there for so many years

16 that we resolve it.

17 So some of the things that we're very interested

18 in hearing today is what factors should be considered

19 in formulating the tribal advisory committee. If you

20 look at those nomination letter and the nomination

21 form, we don't specify you must have this, you must

22 have that. We anticipate tribes know who's qualified

23 to sit on a committee like this, technical -- very

24 technical in nature. And we look forward to seeing a

25 very broad group of nominees.

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1 Some of the factors that we've come up with or

2 thinking about is, you know, we need to be

3 representative of regions, size of operation, have

4 regulators and operators with the Class II and

5 Class III experience, what an individual's background

6 and expertise is. There's a number of -- as you know

7 from MICS, there's a number of substantive subject

8 matters areas and making sure that we have all those

9 areas covered and then trying to figure out, like the

10 chairwoman said yesterday, you know, we've heard,

11 we've been trying to figure this out in the

12 Commission's experience, that 20 to 25 gets a

13 little -- anything over that number gets a little bit

14 unwieldy.

15 And so we're going to have to figure out a way to

16 have a broad representation of people on the tribal

17 advisory committee and then figure out a way to work

18 in the expertise that we'll need from industry, from

19 consultants, and the other people that tribes have to

20 advise them on these issues.

21 The tribal advisory committee is going to use the

22 tribal gaming working position group documents and the

23 comments that we received in those documents. We'll

24 be using the current NIGC MICS and then the draft NIGC

25 MICS that are on the website that the agency was

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1 working on prior to -- or after the 2008 MICS were

2 drafted. Just to reiterate, the Class II MICS

3 extension will be published next week in the Federal

4 Register, and that will be extended out for a year.

5 Questions that we're going to need to resolve and

6 we'd like your assistance in getting some feedback is

7 whether or not the TAC -- whether or not we should use

8 a facilitator, how we should use a facilitator, how

9 other tribes can participate in the TAC, even if they

10 don't have a member on the committee, how other, you

11 know, industry, the gaming labs, how other people can

12 prep manufacturers, how can we gain from their

13 knowledge and their expertise as we go through this

14 process.

15 What is the product that we're looking for? Are

16 we looking for a set of rules? What is it that the

17 TAC will provide the Commission? And then how do we

18 consult, how do we make sure that the consultation

19 component is built in following the TAC, the

20 March 31st, and the product that's sent to the

21 Commission via the tribal advisory committee.

22 So that's what we're grappling with right now.

23 We're not so much talking about the substance of the

24 Class II MICS technical standards or Class III MICS

25 right now. We're just figuring out the process and

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1 the Commission has decided to go forward with the

2 tribal advisory committee. So we need to make sure

3 that that process is comprehensive as possible.

4 I think we're -- that the Commission is aware

5 that, you know, it can't have a seat on the committee

6 for every tribe that's in gaming, we might get a

7 little criticism for who we select, but that's okay.

8 We're just trying to move forward and make sure

9 everyone is as involved that needs to be involved and

10 that everyone has an opportunity to have their voice

11 heard.

12 So with that, I will give it back to the

13 chairwoman -- vice chairwoman.

14 MS. COCHRAN: Well, that's about as current

15 as you can get. The TAC is something that we've spent

16 a great deal of time, not only listening to the

17 recommendations that the tribes have made and we took

18 many of them to heart. You know, I was just again

19 looking at some of my notes at the more recent

20 consultations. We were asked to predetermine dates

21 and notify during the solicitation period, which we've

22 done. We were asked to consider asking for volunteers

23 to select from, which we've done. So there's many

24 things that have come directly from the tribes as

25 suggestions on how we ought to approach this that we

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1 took to heart and built into the process because they

2 were good ideas, sound ideas.

3 The TAC is -- we do have our first recommendation

4 come in, and so we're excited to see, you know, what

5 comes through. We anticipate there's going to be a

6 wide range of experiences, a wide range of

7 personalities that will come through, but we're going

8 to work very hard to try to make it make sense, the

9 makeup of this committee make sense. And we're also

10 very committed to setting very firm ground rules to

11 make this work in the small amount of time that we

12 have.

13 As Lael pointed out, the chairwoman, and I know

14 Commissioner Little and myself, are extremely

15 committed to moving this forward and getting this

16 issue out of the agency in some way. And we're trying

17 to do everything we can to bring the resources to the

18 table as the tribes have brought their resources

19 through TGWG and other mechanisms so that we would get

20 it resolved.

21 So any other comments or feedback or thoughts or

22 has anybody not received a letter? We would like to

23 know if there was any breakdown in our communication

24 process. Is there anything that wasn't clear in the

25 letter? The chairwoman spoke a little bit yesterday

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1 about the need for as we look at this we're, of

2 course, interested in making sure that tribal

3 representatives and tribal leadership, whoever is put

4 on the committee, be prepared to commit the resources,

5 their time being the big one, we need the group there.

6 And the inaugural meeting is the most important

7 because that's where the ground rules will be set.

8 You know, how are discussions going to be handled.

9 How are real technical topics going to be addressed by

10 the group? How -- you know, how is this all going to

11 play out? And all that will be determined at that

12 inaugural meeting so that ground rules are set,

13 everybody knows the expectations, and we don't get

14 hung up on process in trying to get decisions made.

15 So is there anybody also who -- Liz, I know

16 you're sitting there and TGWG is -- you've been very

17 helpful in explaining the TGWG product. We put it up

18 on our website. If anybody hasn't had access to it or

19 doesn't know about this product, now is the time to

20 speak up. We need to make sure we get this

21 information to you. And Liz can certainly -- if

22 there's more information you want to share since D.C.,

23 I know there was a great deal of discussion at D.C.,

24 please.

25 MS. HOMER: Thank you, Commissioner. The

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1 tribal gaming working group has been working for

2 almost a year now to try to take the Part 543 of the

3 NIGC's regulations, which are the Class III MICS and

4 to revise those so that they fit more appropriately

5 with, one, the Class II gaming industry. Did I say

6 Class III before? I meant Class II.

7 And this is a working group that was actually

8 born when this regulation was first promulgated under

9 the last administration. And as you-all may recall,

10 originally the group started working on a set of

11 technical standards for Class II gaming machines. And

12 because neither -- I think at that time both the

13 Commission and the rest of the world figured out that,

14 you know, we didn't really have our arms around this

15 technology very well. And I think that there was a

16 basic agreement that, yes, we do need to have

17 technical standards that would be very helpful. It

18 may get us out of the game classification standoff

19 that went on for a number of years, legally, with

20 legal challenges going back and forth.

21 And so the Commission came up with the idea if

22 you had technical standards and you could submit your

23 machine to a gaming laboratory and the gaming

24 laboratory could verify that the machine operated this

25 way, it was a bingo-based game, it wasn't a slot

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1 machine, that, you know, maybe it would solve a lot of

2 problems that we had been having over the years on

3 this issue.

4 So this tribal gaming working group came together

5 at that time. It was made up of systems engineers,

6 gaming regulators, tribal leaders, tribal operators,

7 you know, just kind of everybody that was kind of up

8 to speed on the latest, greatest technology in the

9 Class II environment and came up with these technical

10 standards, which actually have worked pretty well. I

11 think the group is still recommending a few tweaks to

12 it, but overall the experience with that technical

13 standard has been -- that set of technical standards

14 has been very good.

15 Now once we were in the middle of writing these

16 technical standards to recommend to the NIGC, we

17 realized that, you know, one, you're going to have to

18 update -- you're going to have to have Class II

19 minimum internal control standards to make these

20 technical standards work. Because we found ourselves

21 trying to put in internal control procedures into a

22 technical standards, and it was something that

23 couldn't be verified by a laboratory. It was

24 something that would have done by a tribal gaming

25 regulatory agency. So then the group morphed into the

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1 Class II MICS tribal gaming working group, and we've

2 just kind of stayed together ever since.

3 It make sense. There's this long continuity in

4 terms of familiarity with all the regulations. And so

5 when the NIGC published last -- last fall, their

6 notice that they were going to undertake this

7 regulatory review, the tribal gaming working group

8 went, great. Because there are still a lot of

9 problems left in the regulations. There are still a

10 lot of things that need to be addressed in the

11 Class II MICS.

12 And so the group came together and we started

13 working on this, and we last -- what was it, two weeks

14 ago in D.C.? We -- our group finally finished the

15 endless process of writing and drafting these

16 technical -- I mean, these Class II MICS, and we

17 presented it to the NIGC. And I want to thank the

18 NIGC for, you know, respecting our work product. And

19 basically as I understand your Federal Register notice

20 of earlier this week, that that will be the baseline

21 document if that is acceptable to the new tribal

22 advisory committee. And that will be the starting

23 point for the development of the final rule -- or not

24 the final rule, but the proposed rule to be published

25 in the Federal Register and ultimately, you know, a

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1 final rule.

2 So it's been a lot of work. I think that

3 everyone is going to be pleasantly surprised when they

4 read these MICS because we've gotten rid of a lot of

5 the procedures. But we're also sensitive to the fact

6 that we don't want the rest of the world to think

7 we're deregulating tribal gaming here. They have to

8 be good and sound MICS, they have to make sense.

9 So what we did -- and this is kind of our little

10 innovation -- is we added comprehensive guidance

11 documents for each section of the MICS. So the MICS

12 would become the federal regulation, but then there

13 are guidance documents that would be published as

14 guidance documents that are much more detailed on what

15 you would do step-by-step applying best practices,

16 best industry practices.

17 So I think it's a pretty solid -- you know, I

18 think it's a pretty solid document. I think there's

19 some new issues that have come up because while we're

20 working on this, FinCEN went and published new

21 regulations so we have to figure out if FinCEN's new

22 regulations are going to affect our work product.

23 But given that it's really the beginning point is

24 not -- we don't expect the world to go, God, great

25 work TGWG, we're going to pass that. We're going to

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1 actually, you know, provide that as a service and as a

2 starting point for the NIGC to do a full consultation

3 process.

4 On your questions, yes, yes, yes, and yes. And

5 then I think that after that process, you really

6 probably ought to have a hearing so that everyone can

7 participate at the end of the process. I'll sit down

8 and be quiet now, thank you.

9 MS. COCHRAN: Thank you, Liz, for the

10 overview. The work product of the TGWG has begun its

11 breakdown in our agency to be looked at and thought

12 about and discussed and debated and analyzed in terms

13 of, you know, how the agency looks at the MICS. And

14 hopefully, you know, we'll have -- we'll be just as

15 prepared when the TAC is put together and we begin the

16 more substantive discussions between the two entities,

17 the tribal regulators and our agency. We'll be just

18 as prepared to have those conversations.

19 We've been very candid and we understand that

20 there's going to come point of disagreement. We need

21 to be well-versed and need to be articulate in our

22 concerns or our propositions and be prepared to have

23 those open and candid conversations and the TAC should

24 allow that to happen. So thank you, Liz. Yes.

25 MR. MORGAN: Matthew Morgan, Chickasaw

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1 Nation.

2 Madam Vice Chair, on your questions I like -- I

3 agree with Liz as well. I know the difficulty that

4 your Commission will have to take up will be, you

5 know, trying to get a group that will work together

6 and commit to the process that is very timely, and I

7 assume, you know, long hours over those three days.

8 The one point I want to keep in mind sometimes because

9 we discussed this the other day at our OIGA meeting.

10 Please remember Oklahoma is two regions now that

11 you're going through. We are two regions and that

12 will help us get more representation on the TAC. We

13 would very much like that.

14 MS. HOMER: Good point, Matthew.

15 MR. LITTLE: You know, that's part of the

16 record now, right?

17 MS. COCHRAN: Well, thank you. While I

18 can't assure you the representation of the group, what

19 I certainly can do is we are very cognizant of how

20 important Class II is in this area of the country and

21 how important it is for the tribes in this area. And

22 to the extent that we're looking for the most

23 knowledgeable people, it doesn't take a rocket

24 scientist to figure out that some of the best and

25 brightest in Class II are in this area. And I'll be

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1 expecting your name to come through. Are you

2 committing for six months?

3 MR. MORGAN: I do have the congratulations

4 e-mail, yes, ma'am.

5 MS. COCHRAN: Well, this is -- Liz, you

6 mentioned, you suggested, the idea of a hearing after

7 it's all said and done. And I think that's certainly

8 something we need to discuss in the Commission. But

9 Lael is absolutely right, whatever comes out of the

10 TAC will go through consultation regardless. And it

11 may come down to timing issue it may come down --

12 hearing maybe more efficient or hearing type, I don't

13 know. But thank you for the suggestion.

14 And that is something I do want to say very

15 clearly because I've gotten some minimal questions or

16 concerns about, Well, if my tribe is not on the TAC,

17 how is our voice going to be heard? Through the

18 consultations is actually probably the best place for

19 a tribe's voice if they're not able or willing to

20 participate in the TAC. That is still an avenue for

21 input.

22 Commissioner Little, I know you've been awfully

23 quiet, but you've been a large part of these

24 discussions. Is there anything you want to say?

25 MR. LITTLE: I think I'm interested in

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1 hearing from anyone. During the last advisory

2 committee, I attended a lot of the meetings and it

3 seems that they kind of fell apart at the end, lost a

4 lot of the members. Is there -- anybody have any

5 suggestions on composition? I know we're going to

6 take up Class II, Class III.

7 (Off-the-record discussion.)

8 MR. LITTLE: In any event, does anybody have

9 any -- suggestions on, you know, ways that we can

10 bring in all the, you know, different -- I guess not

11 just geography but, you know, as far as the types of

12 games that tribes have and how we maintain? Because I

13 think what happened on the last one, I think we lost a

14 lot of the Class II tribes. And then, you know,

15 immediately, you know, the product become -- became

16 something that wasn't reflective of that, you know,

17 major segment of this industry.

18 So does anybody have any suggestions on ways

19 that -- I think we've already talked about utilizing a

20 facilitator, and I'm not sure if NIGC has ever done

21 that in the past.

22 MS. HOMER: Long time ago.

23 MR. LITTLE: Long time ago?

24 MS. HOMER: (Nodding head.)

25 MR. LITTLE: Okay. Liz is correcting me.

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1 Thank you. And I'm very excited about that because I

2 think that could be very helpful. I know the

3 chairwoman has talked about it a number of occasions.

4 There are some benefits being a part of the Department

5 of the Interior, and that is they have a lot of

6 resources that we can tap into. And one of them is

7 utilizing some facilitators that, you know, have

8 minimal cost to the agency besides travel and things

9 like that. So, you know, if there's any suggestions,

10 and I'm not asking for them today, if you want to, you

11 know, send them in on how we could make this exercise

12 more effective. Because at the end of the day, at the

13 end of, you know, six months it's going to take to do

14 this, if everybody doesn't feel comfortable that the

15 process was correct and that, you know, tribes are

16 comfortable that their voice was heard, then it's --

17 it's, you know, it's a kind of a waste of everybody's

18 time and money and energy.

19 So I think the goal is just to make sure that

20 there's adequate buy-in and when we get done, we're

21 going to have something, you know, that we're ready to

22 move forward with.

23 I kind of -- you know, I find it, you know, very

24 comforting that our chairwoman is -- she's very

25 adamant that we're going to fix this and we're going

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1 to get this done. And I guess I've been in

2 Washington, D.C. too long and, boy, that's a -- that's

3 a -- you don't make statements like that. But I think

4 it's a testament to her desire and her drive and her

5 leadership that we're going to get this done. And I

6 feel comfortable that we are going to get this done.

7 And we're going to get this done because, you know,

8 we're all going to work very hard.

9 So that's all I really have to say. But I just

10 want to, you know, if you have any ideas, you don't

11 feel comfortable sending them in today, just --

12 Sheila.

13 MS. MORAGO: Sheila Morago.

14 I, again, want to just echo everybody. I'm glad

15 you guys are doing this. We're really excited about

16 this. But I just have a question in something -- if

17 you've thought about it, great.

18 But in the TAC form it says the person that you

19 nominate has to be committed to the full schedule and

20 have the resources to attend every meeting. Are you

21 concerned at all that they may very well take out a

22 huge segment of Indian Country in terms of smaller

23 operations, smaller tribes, that may have some very

24 capable people within their organizations but can't

25 afford the time nor the money because as you-all know,

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1 a smaller tribe with a smaller operation, your best

2 and brightest aren't going to be able to hit that time

3 frame and may not have the resources available for

4 them to pay for someone, plus staff, to do that. Did

5 you consider any of that at all?

6 MS. ECHO-HAWK: Yes, it was very much a

7 consideration when the Commission was talking about

8 this. One of the ways we tried to address it is

9 making sure that the NIGC cover the hotel and air fare

10 expenses for representatives of a Tier A, so annual

11 gross revenues of less than 5 million, 50 percent of

12 those costs for Tier B, which is gaming operations

13 with less than 15 million, and then we anticipate that

14 if anyone comes from a larger operation, 15-plus

15 million -- or over 15 million, then their tribe would

16 pick up those costs. We want to make sure that we

17 tried to be aware of that.

18 Now I think the Commission and the commissioners

19 can speak to this as well, one of the considerations

20 that we kind of wrapped our brain around was how can

21 we get this done in six meetings if we have people

22 coming in and out. We can't. So the Commission was

23 adamant when we were drafting the letter getting an

24 e-mail a day make sure that it's clear in there that

25 we have -- and, you know, of course, emergencies may

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1 come up.

2 But the expectation has been, and I think we laid

3 it out pretty clearly is that, you come and you attend

4 and you grind it out and you might be miserable and

5 hate people at the end of the third day, but that, in

6 order to get this thing done, that's sort of what we

7 need to do.

8 MS. COCHRAN: Lael is correct. I mean,

9 that's -- we did hash this over, the three of us

10 extensively and then absolutely in receiving the

11 advice of our senior leadership. We -- there's

12 also -- and part of this goes back to the inaugural

13 meeting.

14 The other thing that I think we anticipate what

15 we're going to be faced with is because there is an

16 intense commitment of resources is in the inaugural

17 meeting being mindful in setting, again, agreements

18 and ground rules about how can we best utilize that so

19 that the tribes aren't bringing in all their experts,

20 all six times, all three days.

21 And it may take very firm commitments to, I don't

22 know, I'm thinking out loud here, these three days

23 we're going to talk about surveillance issues so

24 that's -- it's not going to be discussed later on,

25 it's not going to be discussed before. So you can

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1 anticipate bringing in those experts for this time.

2 Something along -- being very firm in how process-wise

3 we communicate because we're aware, and we've tried to

4 make the initial steps to take the financial burden

5 away from the smaller tribes.

6 So how else can we contribute? And we

7 anticipate, and I've already heard some discussion

8 about tribes being prepared to collectively contribute

9 to the discussion, sending maybe their best and

10 brightest on this issue, another tribe sending their

11 best and brightest. So I know that that's going to

12 happen. Tribes are very ingenious when it comes to

13 maximizing their limited resources. They've done it

14 so long and will continue to do it. So that's -- I

15 hope that answers your question.

16 MS. MORAGO: Yes, thank you.

17 MS. COCHRAN: Sure. Lael is looking up, she

18 wants me to reiterate deadlines for nominations.

19 September 16th?

20 MR. MORGAN: Madam Vice Chair.

21 MS. COCHRAN: Yes.

22 MR. MORGAN: Matthew Morgan, Chickasaw

23 Nation.

24 When you're thinking about technical expertise as

25 we're going through, I know on the tribal gaming work

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1 group, one of the issues that seems to pop back up

2 this year and in previous years is remembering that

3 when you start talking in Class II, you have to start

4 talking about session bingo and pull tabs, and as

5 you're looking for technical expertise, just don't,

6 you know, be mindful of electronic gaming.

7 A lot of tribes still run a lot of those forms of

8 games around the country that, you know. We found

9 some difficulty sometimes getting those technical

10 expertise to the table and making sure that we weren't

11 somehow negatively impacting those groups as well.

12 (Off-the-record discussion.)

13 MS. COCHRAN: Liz, you're going to have to

14 come to us.

15 MR. MORGAN: Pull tabs was especially

16 difficult for us sometimes, trying to get technical

17 expertise. So as you're thinking about, you know, how

18 do we assemble this group. That is something I know

19 with had to deal.

20 MS. COCHRAN: Well, thank you. And

21 that's -- these are the comments that need to come

22 out, again, during the inaugural meeting so that we

23 get those insights so that we prepare the best we can.

24 We're not going to obviously be able to prepare for

25 everything, but we can certainly -- you-all just have

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1 gone through this. These things are very fresh in

2 your mind, and that's very useful information. Thank

3 you.

4 The only other thing I want to state out here, I

5 know it was said in D.C., and I think it was said in

6 New Mexico, as well, the TAC -- in forming the TAC and

7 utilizing the TAC in no way should conveyed or

8 inferred that it is a position of the NIGC on how

9 we're going to look at Class III or that we're

10 committed somehow to Class III regs. We have not made

11 that decision. The TAC doesn't infer that we have.

12 The TAC is -- at this point, its primary function is

13 Class II. Class III may very well get brought up in

14 some context or will have to be perhaps addressed or

15 dealt with, but it's not an inference. And I hope

16 nobody takes that away. I don't want any tribe to

17 take that away because we're going down this path that

18 we have a commitment to Class III regs in any way.

19 That's absolutely not correct.

20 All right. Is there anything else?

21 We have, again, tribal leaders amongst us. I

22 always want to be mindful of your comments and your

23 thoughts if there's something you'd like to say or

24 offer or ask of us. And thank you for your time.

25 Thank for you listening to us.

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1 Okay. Anything else from the audience? All

2 right. Well, I'm going to then -- Commissioner

3 Little, is there any final comments from you?

4 MR. LITTLE: No. I just want to thank

5 everybody for coming.

6 I think we have a question.

7 MS. ROWE-KURAK: I would like to add one

8 thing. I understand that several -- I'm sorry.

9 Janice Rowe-Kurak, Chairwoman of the Iowa Tribe of

10 Oklahoma.

11 And I would like to say I've attended several of

12 these consultations, and I'd like to say thank you to

13 the NIGC for being willing to work with us on this

14 because I know that we've been working on this a long

15 time. So I appreciate that you're respecting us and

16 our opinions.

17 MS. COCHRAN: Our pleasure. All right.

18 Well, I appreciate your time. I appreciate your

19 commitment to the process. I look forward to the next

20 time. I'm going to start my vacation in about

21 15 minutes so if there's any other comments, please

22 make them in 15 minutes, or I'll have to get back to

23 you in two weeks.

24 Ms. ECHO-HAWK: Happy vacation.

25 MS. COCHRAN: Thank you. And safe travels.

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1 The members of the Kickapoo Tribe that have come a

2 long ways, please, safe travels back home.

3 Thank you again for joining us.

4 (Proceedings concluded for the day at 11:02

5 a.m.)

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1 CERTIFICATE

2

3 I, Carla S. Kimbrough, do hereby certify that

4 on August 19, 2011, at the Doubletree Hotel, Tulsa,

5 Oklahoma, that the foregoing pages constitute a full,

6 true, and correct transcript of the proceedings held

7 on the date as indicated.

8 IN WITNESS WHEREOF, I have hereunto set my hand

9 and affixed my seal at my office in Tulsa County,

10 Oklahoma, this 29th day of August, 2011.

11

12

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22 __________________________________

23 Carla Sue Kimbrough, C.S.R.

24 Oklahoma Certified Shorthand Reporter

25 Certificate No. 1237

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1

10 17:13

10:07 36:22

10:25 36:22

10th 39:20

1237 64:25

13 16:24

13th 38:10

1441 1:12,16

15 57:13,14,15

62:21,22

16th 40:4 59:19

17th 8:17 12:15 24:3

19 64:4

1998 10:20

19th 1:2

2

20 39:5 42:12

200 8:22

2000 25:6

20005 1:13,17

2006 38:21

2008 38:23 43:1

2010 39:13

2011 1:2 38:10

39:13 64:4,10

2012 40:23

202 1:13,17

20th 40:7

21st 40:7

25 42:12

28th 39:6

29th 39:6 64:10

3

3 7:9,10 8:5,6 16:23

16:23 37:1 38:5

39:13

31 7:20

31st 40:23,25 43:20

3rd 40:5

4

42 7:20

5

5 7:8,25,25 12:21,22

14:17 57:11

50 57:11

518 7:25 8:9,13

518.7 24:20

543 47:2

6

60 41:3

60/40 13:4

632-7003 1:13,17

7

7 18:12

70/30 13:5

8

81 29:11

9

9100 1:12,16

92 13:19

a

a.m. 36:22,22 63:5

ability 24:1

able 28:5 34:4 53:19

57:2 60:24

absolutely 53:9

58:10 61:19

acceptable 49:21

access 10:4 13:10,12

46:18

accomplish 23:22

28:22,23

accomplished 38:20

40:24

accounting 11:20

accustomed 33:18

acknowledge 4:16

22:14

act 10:5 11:18 12:2

13:6 19:12 24:13,13

24:21 25:7,19 26:11

acting 3:18

action 13:22 27:2,4

27:8 33:15

actions 13:20

activities 9:18 19:13

activity 11:23,25

17:3

actual 13:19

adamant 41:14

55:25 57:23

add 19:18 62:7

added 10:9 50:10

addition 26:20

additional 9:22

13:25 19:11 40:16

41:5

address 28:19 34:5

57:8

addressed 46:9

49:10 61:14

addressing 6:5

38:25

adequate 11:23

55:20

adequately 11:10

14:8 22:9,17,17,19

adhere 4:15

administration 35:4

47:9

administrative 9:2

adopt 17:19

adopted 10:21 39:2

adoption 17:17

advantage 12:20

15:13 19:23

advice 58:11

advise 42:20

advisory 27:10,12

39:17,24,25 40:14

41:1,7,19 42:17,21

43:21 44:2 49:22

54:1

affect 50:22

affixed 64:9

afford 56:25

agencies 21:20

22:10 23:4,13

agency 13:19,22

22:4,5,16 27:2,4,8

32:6 33:15 42:25

45:16 48:25 51:11

51:13,17 55:8

agency's 25:23

agenda 2:19 7:12

36:25 38:4

ago 29:12 49:14

54:22,23

agree 52:3

agreement 34:23,23

35:3,10,23 47:16

agreements 35:9

36:5,5 58:17

ahead 2:10

air 57:9

allow 14:11 51:24

allowing 34:11

allows 19:12,24 29:4

29:4

alluded 33:2

alternative 39:7

amber 3:25 37:20

amenable 29:22

amend 17:20 29:11

amended 10:1,9

amending 38:8,14

amount 16:17 45:11

analyzed 51:12

annual 9:5,25 10:6

10:13,14 20:22

24:15,21 57:10

answer 19:5,7 25:16

answers 59:15

anticipate 41:22

45:5 57:13 58:14

59:1,7

anybody 2:2 4:10,23

16:15 19:18 27:14

37:8 45:22 46:15,18

54:4,8,18

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apache 3:20 5:5

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apart 54:3

appeal 7:19

appearances 1:10

applied 28:5,17

33:17,19

apply 28:12

applying 50:15

appreciate 23:5

62:15,18,18

appreciation 22:3

approach 28:15

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appropriately 47:4

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