[Federal Register Volume 69, Number 62 (Wednesday, March 31, 2004)]
[Notices]
[Pages 16973-16979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7191]



[[Page 16973]]

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NATIONAL INDIAN GAMING COMMISSION

RIN 3141-AA04


Government-to-Government Tribal Consultation Policy

AGENCY: National Indian Gaming Commission.

ACTION: Notice, policy statement.

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SUMMARY: This National Indian Gaming Commission Government-to-
Government Tribal Consultation Policy establishes a framework for 
consultation between the NIGC and tribes with respect to the regulation 
of Indian gaming.

EFFECTIVE DATE: This policy statement takes effect immediately.

FOR FURTHER INFORMATION CONTACT: Maria J. Getoff, Staff Attorney, NIGC, 
Suite 9100, 1441 L St. NW, Washington, DC 20005. Telephone: (202) 632-
7003; and fax, (202) 632-7066 (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION: The information in this preamble is 
organized as follows:

A. Background
B. Response to Public Comments

A. Background

    The Indian Gaming Regulatory Act (IGRA or Act), enacted on October 
17, 1988, established the National Indian Gaming Commission (NIGC or 
Commission) as an independent Federal regulatory agency to provide 
federal regulation and oversight of Indian gaming. In carrying out its 
statutory responsibilities under the IGRA, the Commission represents 
the Federal government in its unique government-to-government 
relationship with Indian tribes regarding the operation and regulation 
of gaming on Indian land under the Act. In order to promote and 
strengthen that relationship and also effectively implement the 
provisions of the IGRA and further its stated policies and purposes, 
the Commission is strongly committed to meaningful consultation with 
Indian tribes regarding the formulation and implementation of NIGC 
policies and regulations that may substantially effect or impact the 
operation or regulation of gaming on Indian land under the Act.
    The NIGC considers consultation to be a vitally important and 
effective means of communicating with gaming tribes to learn their 
concerns regarding the operation and regulation of Indian gaming, prior 
to, during, and after the formulation and implementation of related 
NIGC policies and regulations. Therefore, the NIGC has regularly 
engaged in consultations with Indian tribes on matters that impact 
Indian gaming. For instance, during 2003, five regional consultations 
were held across the United States as well as numerous consultations 
with individual tribes and representative organizations. Many tribes 
attended each of the regional consultation sessions. While the NIGC 
viewed these consultations as highly productive, they also provided 
insight into the need for a formal tribal consultation policy.
    As it developed this policy, the NIGC looked for guidance to 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, and the published tribal consultation policies of other 
Federal agencies. Executive Order 13175 sets forth certain criteria 
that federal agencies should follow when formulating and implementing 
policies that affect Indian tribes.\1\ The Executive Order further 
provides that agencies ``shall have a process to ensure meaningful and 
timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' 65 FR 67249, 67250 (November 
9, 2000).
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    \1\ The Executive Order mandates compliance by all federal 
agencies with the exception of independent regulatory agencies, 
which are encouraged to comply with its provisions. The NIGC is an 
independent regulatory agency. See 25 U.S.C. 2702(3).
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    On October 3, 2003, after several months of consultation with 
tribal leaders and intertribal organizations regarding the need for, 
and format and content of an NIGC consultation policy, the NIGC issued 
a Preliminary Draft Tribal Consultation Policy (Draft Policy) and 
solicited comments from tribes regarding the Draft Policy. Three of the 
five regional consultations held in 2003 occurred after the issuance of 
the Draft Policy, and informal comments were received during these 
consultations.\2\ In addition, the NIGC received 36 written comments. 
The scheduled comment period ended on February 6, 2004. The majority of 
commenters commended the Commission for its efforts to establish this 
policy as an important step to foster productive government-to-
government relations. Two commenters felt that the implementation of 
this policy actually limits consultation and does not allow tribes to 
express themselves fully. Due consideration has been given to each of 
the comments received. A discussion of specific comments follows.
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    \2\ The consultations occurred in Albuquerque, NM and Phoenix, 
AZ, October 23-24, 2003; in Temecula, CA, December 2-3, 2003; and in 
Crystal City, VA, February 3-5, 2004.
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B. Responses to Public Comments

    Comment: Several commenters recommended that the policy include a 
statement requiring all future proposed regulations published in the 
Federal Register include a statement that the Commission has complied 
with Executive Order 13175 through prior consultation and collaboration 
with tribal governments.
    Response: The Commission fully intends to follow this consultation 
policy with respect to future proposed regulations. The Commission 
established this policy because of its strong belief that consultation 
with tribes on all issues affecting Indian gaming, including the 
promulgation of regulations, is vitally important. Furthermore, this 
policy is based in part on Executive Order 13175. However, Executive 
Order 13175 does not mandate compliance by independent federal 
regulatory agencies, of which the NIGC is one. Therefore, the 
Commission determined that it is neither compulsory nor necessary that 
the NIGC comply with the Executive Order, and instead decided it was 
more appropriate to develop and adhere to the terms of its own tribal 
consultation policy as an independent federal regulatory agency.
    Comment: One commenter stated that, in Section I.A.1, there is no 
reference to Federal court decisions as part of the body of law that 
the NIGC must consider as it interprets the IGRA.
    Response: The first sentence of Section I.A.1 of the Draft Policy 
reads as follows ``The United States of America has a unique 
government-to-government relationship with Federally-recognized Indian 
tribes, as set forth and defined in the Constitution of the United 
States and Federal treaties, statues, Executive Orders, and court 
decisions.'' We have inserted the word, ``Federal'' in front of ``court 
decisions'' to make this clearer.
    Comment: One commenter questioned whether it was necessary to 
reiterate the findings and purposes of IGRA in Section I.A.2, arguing 
that the language of IGRA speaks for itself and does not add much to 
the consultation policy.
    Response: We have restated the statutory language because we 
believe it provides relevant background to the policy. The policy is 
intended to promote and strengthen the government-to-government 
relationship between the NIGC and Indian tribes, in order to 
effectively implement the provisions of the IGRA and further 
accomplishment of its stated policies and purposes. Since the policies 
and purposes of the Act are so central to the goals of the policy, the 
Commission

[[Page 16974]]

believes they should be stated in the policy.
    Comment: Several commenters suggested that the term, ``direct 
substantial effect'', used in Sections II.A. 5, III.A, III.F, and III.I 
should be defined, and should be defined liberally. Several commenters 
urged the NIGC to engage in consultation with tribes as to whether 
proposed regulation is necessary, and thereafter whether the proposed 
regulation has a potentially significant impact on tribes.
    Response: We have slightly modified the text, by replacing ``which 
will have direct substantial effect'' with ``which may substantially 
affect or impact.'' We do interpret this language liberally, and intend 
that whenever the Commission proposes to develop or implement policies 
or regulations that may substantially effect or impact the operation or 
regulation of gaming on Indian land, it will consult with the 
potentially affected tribes regarding the need, substance, and effect 
of such policies or regulations. In addition, the Commission will 
continue to consult on existing NIGC policies and regulations upon 
request and as otherwise needed.
    Comment: One commenter questioned how the regulated community would 
determine whether in fact the NIGC ``carefully considered'' tribal 
positions as the policy says it will in Section III.F. This commenter 
suggested that the NIGC adopt a policy that it would not invoke 
Exemption 5 of the Freedom of Information Act (FOIA) with respect to 
the decision-making process of the NIGC in arriving at a policy, 
procedure, program, requirement, restriction, or standard. Along these 
same lines, one commenter suggested that the policy include a 
requirement that the NIGC publicly report on issues of concern 
identified by tribes during consultation and how such matters were 
handled by the NIGC.
    Response: The Commission cannot agree to adopt a policy whereby it 
would release information protected by Exemption 5 of the FOIA. 
Exemption 5 allows the withholding of ``inter-agency or intra-agency 
memorandums or letters which would not be available by law to a party 
other than an agency in litigation with the agency.'' 5 U.S.C. 
552(b)(5). In addition, we believe premature release of information 
related to the decision-making process would hamper the free exchange 
of ideas and the open and frank discussions we wish to encourage during 
consultation on matters of policy. Furthermore, items discussed in the 
meetings might have no bearing on a final action. We would risk public 
confusion if we released information on discussion of issues and 
concerns that were not relevant to our final action.
    Finally, this consultation policy provides for early, robust and 
meaningful consultation regarding proposed NIGC policies and 
regulations before they are formulated and implemented. Once a final 
agency decision is made regarding the formulation and implementation of 
a policy or regulation, the NIGC will fully respond in writing to all 
relevant issues of concern raised in tribal comments during 
consultation and the rule-making process, in the same fashion it has 
done with regard to this policy and NIGC regulations in the past.
    Comment: Several commenters objected to the use of the term 
``domestic dependent'' to describe Indian tribes in Sections I.A.1 and 
II.A.1 as disrespectful of tribal sovereignty. These commenters 
proposed the term, ``sovereign Indian nation'' instead. These same 
commenters and others also objected to the use of the word, ``certain'' 
to modify the language, ``rights to self-government over their internal 
affairs'' and further objected to the use of the words, ``internal 
affairs'' as limiting in scope. Finally, some commenters objected to 
the term, ``under its protection.''
    Some commenters recommended that the policy restate the Executive 
Order's language that: ``The United States recognizes the right of 
Indian tribes to self-government and supports tribal sovereignty and 
self-determination.'' Other commenters suggested that we add the 
language, ``and, under certain circumstances, civil jurisdiction over 
non-members and non-Indians. Other commenters also suggested removing 
reference to tribal ``internal affairs'' from the first sentence of 
Section I.A.2 and ending the sentence with ``* * * tribal economic 
development, tribal self-sufficiency and strong tribal governments.'' 
One commenter suggested we either more fully describe the powers of 
self-government that tribes possess, or modify the sentence to end 
with, `` * * * and possess the powers of self-government over their 
internal affairs.''
    Response: We note that Executive Order 13175, which many tribes 
recommended we follow, uses the terms ``domestic dependent'' and 
``under its protection'', as do many Federal court cases, to describe 
the Federal government's trust responsibility to Indian tribes and the 
extent of tribal sovereignty. Nevertheless, we have removed the words, 
``domestic dependent'' and ``under its protection'' from Section I.A.1. 
We have also removed the language, ``and certain rights to self-
government over their internal affairs.'' We have added ``as recognized 
and defined in the Constitution of the United States, Federal treaties 
statutes, and Executive Orders, and Federal court decisions' to the end 
of the sentence. The sentence now reads, ``Since its formation, the 
United States has recognized Indian tribes as sovereign nations which 
possess and exercise sovereign authority over their members and 
territory to the extent recognized and defined in the Constitution of 
the United States, Federal treaties, statutes, and Executive Orders, 
and Federal court decisions.
    Comment: Several commenters recommended the removal of all 
reference to consultation with State and local governments. These 
commenters argued that the tribes already consult with these 
governments regarding class III gaming and that consultation with 
States and local governments on other matters are not appropriate in a 
policy regarding consultation with tribes. One commenter suggested we 
modify the language regarding states by adding the phrase, ``in some 
instances'' before the word ``state'' in Section I.B.3. One commenter 
felt differently, stating, ``We agree that all three governments 
charged with ensuring the success and integrity of tribal governmental 
gaming govern best when they communicate with one another with respect 
and candor.''
    Response: We agree with the last comment. The Commission recognizes 
that states may only have a negotiated role in the regulation of Class 
III gaming, and would, therefore, not consult with states with respect 
to the regulation of Class II gaming, which is strictly within the 
jurisdiction of tribes and the NIGC. However, the Commission also 
recognizes the considerable role states may have in the regulation of 
Class III gaming and, therefore, believes it critical to this 
consultation policy to confer with state authorities where necessary to 
implement the provisions of the IGRA and further its stated goals. 
Without strong communication among all three sovereigns, the integrity 
of the regulated gaming operations may be compromised. We hope to 
facilitate the level of mutual respect, communication and cooperation 
between tribal, federal and state governments intended by the IGRA and 
necessary to accomplish its stated policies and purposes.
    Comment: Several commenters argued that the Draft Policy implies 
that the NIGC has broad authority that, these commenters argue, it does 
not have. Several commenters argue that the NIGC has only limited 
regulatory responsibility over Class III gaming. These commenters point 
to Section

[[Page 16975]]

I.B.1, which states, ``The Act vests the Commission with certain 
regulatory powers and responsibilities for Indian gaming, including 
broad authority to promulgate such regulations and guidelines as it 
deems appropriate to implement and further the provisions of the Act.'' 
The commenters believe this statement conflicts with Congress' intent 
to limit the Commission's authority to those items expressed in IGRA, 
and suggests striking the term, ``certain'' and substituting the term 
``statutory.'' These commenters also suggest striking the term 
``broad'' and the phrase ``as it deems appropriate to implement and 
further the provisions of the Act and substitute the phrase ``to 
implement its authority consistent with the Act.''
    Response: The Commission does not believe that the inclusion of the 
words, ``certain'' and ``broad'' imply the existence of authority that 
does not exist. The IGRA does vest the Commission with certain powers 
and responsibilities, and the use of the word ``certain'' neither 
enhances nor diminishes the statutory authority granted to the NIGC by 
Congress. In addition, the exact language from IGRA is ``the Commission 
shall promulgate such regulations and guidelines as it deems necessary 
to implement the provisions of [the Act].'' 25 U.S.C. 2706(b)(10). This 
is by its very language a broad grant of authority. The Commission does 
agree that the word, ``further'' is redundant, and has removed it.
    Comment: Several commenters suggested striking the language in 
Section II.A.3., ``subject to independent Federal regulatory oversight 
and certain other conditions, restrictions and requirements prescribed 
by the Act'' and substitute the phrase ``subject to the requirements of 
the Act, tribal-state compact provisions, procedures in lieu of 
compacts, and regulations promulgated pursuant to the Act.''
    Response: The Commission agrees, in part, that the suggested 
language is more accurate and comprehensive and has, accordingly, 
changed the text to read ``subject to independent Federal regulatory 
oversight and the conditions, restrictions, and requirements of the 
IGRA, Tribal-State Compact provisions, Federal procedures in lieu of a 
Tribal-State Compact, and NIGC regulations promulgated pursuant to the 
Act.''
    Comment: With respect to the section regarding increasing 
flexibility for waiver of regulatory requirements, some commenters 
propose striking the language in Section IV.A., ``take whatever steps 
it determines appropriate and permitted by law'' and substituting 
``whenever appropriate and permitted by law.''
    Response: In its attempts to streamline the waiver process, the 
Commission will necessarily have to make the determination how best to 
accomplish this within the confines of the law. The Commission believes 
this language clarifies the conclusions it must reach before it may 
simplify the waiver process and therefore declines to substitute this 
language.
    Comment: The language in Section II.B.3 troubled two commenters. It 
provides that the NIGC will defer to tribal regulations and standards 
(and thereby either decline to promulgate, or grant a variance or 
waiver of, its own regulations and standards) when the Commission 
determines that tribal compliance and enforcement are ``readily 
verifiable'' by the NIGC. These commenters felt that this language 
might give rise to unlimited and unwarranted intrusion in the name of 
verification and suggested that ``both the concept and language of 
`verification' [be] thoroughly discussed and their consequences 
considered to eliminate any possibility that the phrase could be used 
to effectively nullify the primacy of tribal regulation.''
    Response: As generally indicated in Section II.B. 6. the purpose of 
the preceding Sections II.B.3. through 5. is not to make unwarranted 
intrusions into tribal gaming operation or regulation, but instead to 
``grant tribes the maximum administrative and regulatory discretion 
possible in operating and regulating their tribal gaming operations * * 
* '' In order to achieve this goal, the NIGC must first confirm that 
the proposed or established tribal regulations are permitted by IGRA; 
that they provide adequate regulation in furtherance of the Act's 
purposes; that there are tribal authorities and procedures in place to 
ensure tribal compliance with the regulations and their enforcement; 
and that similar Federal regulations are not also needed or otherwise 
required by IGRA. Verification of the adequacy, compliance, and 
enforcement of the tribal regulations will be accomplished through 
field inspections and audits in the same way that the NIGC now monitors 
and confirms compliance with NIGC required tribal internal control 
standards and approves related tribal variances from the NIGC's Minimum 
Internal Control Standards.
    Comment: One commenter requested removal of everything in Section 
II.B.5 after the word, ``tribe(s).'' No explanation was provided for 
this request. The complete sentence reads, ``[t]he NIGC will not 
formulate and implement Federal regulatory policies, procedures, 
programs, requirements, restrictions, or standards for Indian gaming 
that will impose substantial direct compliance or enforcement costs on 
an Indian tribe(s), if the Commission determines that such Federal 
regulation and standards are not required by IGRA or necessary to 
implement its provisions or further accomplishment of its policies and 
purposes.''
    Response: The Commission cannot agree never to implement policies 
or procedures that might impose costs on Indian tribes. All regulatory 
efforts involve some cost. Generally, the benefits of a tightly 
regulated casino outweigh the costs of that regulation. That said, we 
think the modifying language provides assurance that the NIGC will not 
move forward with any requirements that are not necessary to implement 
the IGRA or further its stated purposes.
    Comment: One commenter objects to the inclusion of the language, 
``and provide financial assistance to local governments'' in Section 
I.B.2. The commenter argues that the IGRA does not recognize that 
Indian gaming is conducted even in part to provide financial assistance 
to local governments.
    Response: We agree generally with this statement and have 
accordingly revised the language of Section I.B.2. This Section relates 
to the proper uses of net revenue under the IGRA, one of which is ``to 
help fund operations of local government agencies.'' 25 U.S.C. 
2710(b)(2)(B)(v). We have changed the language to make that clearer and 
to add one of the allowed uses of net revenue, which was inadvertently 
left out. The Section now reads, ``IGRA recognizes and provides that 
the operation of gaming on Indian lands is primarily a function of 
tribal sovereignty. Indian gaming is conducted by tribal governments, 
who may use the net revenues derived from this gaming only to fund 
tribal government operations or programs; provide for the general 
welfare of the tribe and its members; promote tribal economic 
development; donate to charitable organizations; or help fund 
operations of local government agencies.''
    Comment: One commenter suggested that the NIGC initiate 
consultation 60 days prior to a final decision regarding the 
formulation or implementation of regulatory policies or procedures.
    Response: The NIGC declines to set a specific time period for 
consultation. Section III.D. provides that the ``NIGC will initiate 
consultation by providing early notification to affected tribes of the 
regulatory policies, procedures,

[[Page 16976]]

programs, requirements, restrictions, and standards that it is 
proposing to formulate and implement, before a final agency decision is 
made regarding its formulation or implementation.'' We believe that an 
arbitrary time period might hamper the process, particularly when 
complicated or controversial programs are at issue. At these times, we 
expect that comprehensive consultations will take substantially longer 
than 60 days to complete. The Commission does not want to run the risk 
of shortchanging the process in the name of expediency. Similarly, we 
also want to avoid unnecessary delay in starting and completing the 
consultation process. As stated in Section III.A., ``* * * the NIGC is 
committed to regular, timely, and meaningful government-to-government 
consultation with Indian tribes.'' This commitment implicitly requires 
that tribes be adequately informed regarding proposed NIGC policies and 
regulations well enough in advance for them to provide thoughtful and 
meaningful input regarding the need, content, and implementation of 
such policies and regulations, before the agency has made its final 
decision on these issues.
    Comment: One commenter objects to Section III.G., which states that 
``[t]he NIGC has authority and responsibilities under IGRA to conduct 
investigations, take enforcement actions, and render regulatory and 
quasi-judicial decision making regarding * * * tribal compliance with 
the Act.'' The commenter believes that the NIGC does not have 
generalized authority to take enforcement actions or render quasi-
judicial decisions regarding compliance, especially over Class III 
gaming, and that the NIGC only has those authorities over specific 
tribal actions that are stated in IGRA.
    Response: We have changed the text cited by the commenter to read 
``the NIGC has authority and responsibilities under IGRA to conduct 
investigations, take enforcement actions, and issue regulatory and 
quasi-judicial decisions regarding the approval of tribal gaming 
ordinances and third party management contracts; the suitability of 
management contractors to participate in Indian gaming; and tribal 
compliance with the Act.''
    The IGRA specifically provides that the Chairman of the NIGC may 
issue orders of temporary closure and may levy and collect civil fines. 
25 U.S.C. 2705(a)(1) and (2). The Chairman has the authority to order 
temporary closure for substantial violations and to levy and collect 
civil fines for any violation of any provision of IGRA, any regulation 
prescribed by the Commission, or tribal regulations, ordinances, or 
resolutions approved by the Chairman. 25 U.S.C. 2713(b)(1) and (a)(1). 
These are enforcement powers. Pursuant to its authority to ``promulgate 
such regulations and guidelines as it deems appropriate to implement 
the provisions of [the IGRA],'' the NIGC has promulgated regulations 
governing the enforcement process. See 25 CFR part 573.
    With respect to ``quasi-judicial'' decisions, the IGRA provides 
that the Commission may ``hold such hearings, sit and act at all such 
times and places, take such testimony, and receive such evidence as the 
Commission deems appropriate.'' 25 U.S.C. 2706(b)(8). The IGRA further 
provides that the Commission shall, by regulation, provide an 
opportunity for an appeal and hearing before the Commission on fines 
levied and collected by the Chairman, 25 U.S.C. 2713(a)(2), and that, 
``not later than thirty days after the issuance by the Chairman of an 
order of temporary closure, the Indian tribe or management contractor 
involved shall have a right to a hearing before the Commission to 
determine whether such order shall be made permanent or dissolved.'' 25 
U.S.C. 2713(b)(2). Decisions of the Commission may be appealed to 
Federal district court. 25 U.S.C. 2713(c).
    Comment: One commenter suggested the development of a tribal 
liaison office or division whose primary purpose would be to facilitate 
the communication and consultation process with the various tribes.
    Response: The Commission believes that the provisions of the 
consultation policy itself will facilitate communication and 
consultation, and that a separate office is unnecessary. Furthermore, 
all Region Directors are tasked with the responsibility of facilitating 
communication with the tribes within their Region. However, as we move 
forward with implementation of the policy, we will revisit this issue 
and evaluate the need for any additional staff to oversee policy 
performance.
    Comment: One commenter would like to see the policy include 
consultation with tribal gaming commissions as well as tribal 
governments.
    Response: The policy provides that the primary focus of our 
consultation activities will be with individual tribes and their 
recognized governmental leaders. Consultation with authorized 
intertribal organizations and representative intertribal advisory 
committees will be conducted in coordination with individual tribal 
governments. While we recognize that tribal gaming commissions are 
often the in-house authority on gaming issues within tribes and often 
serve as the tribal governments' representatives at our formal and 
informal consultations, the government-to-government relationship 
requires that the ultimate decision of who will represent a tribe at 
the consultation table is decided by the tribal government.
    Comment: One commenter objects to the language in Section II.A.7 
which states that the NIGC will work with other Federal departments and 
agencies to enlist their support to assist the NIGC and tribes in 
providing adequate environmental protections for the health and safety 
of the public at tribal gaming facilities. This commenter argues that 
the NIGC does not provide environmental protection and has no 
legitimate role in doing so.
    Response: The IGRA requires that tribal gaming ordinances include a 
provision that the construction and maintenance of a gaming facility, 
and the operation of gaming be conducted in a manner which adequately 
protects the environment and the public health and safety. 25 U.S.C. 
2710(b)(2)(E). On July 12, 2002, the NIGC published an interpretive 
rule with respect to health and safety that defines the Commission's 
responsibilities. 67 FR No. 134, 46111 (July 12, 2002). The Commission 
has limited and discrete responsibility to provide regulatory oversight 
of tribal compliance with this ordinance provision. As we stated in the 
interpretive rule, it is the Commission's view that this section of 
IGRA requires tribal governments to adopt and apply health and safety 
standards. If the Commission determines that tribal standards are not 
routinely enforced, it will so notify the tribe. Only if the Commission 
finds imminent jeopardy to the environment, public health or safety 
will it proceed to enforcement if no corrective action is taken. Id. at 
46112. We believe the language of Section II.A.7. does not imply the 
Commission has powers it does not have with respect to health and 
safety. The role and responsibilities of the Commission are clearly set 
forth in the IGRA and the interpretive rule.
    Comment: Several commenters believe that the General Limitations 
section, Section V, absolves the NIGC of all responsibility to adhere 
to the policy. These commenters would like to see this section removed.
    Response: We decline to remove this section. This section clarifies 
that there are limits on the policy; it does not release the NIGC from 
responsibility to follow it. This is a comprehensive tribal 
consultation policy, which will inform and guide the Commission as it

[[Page 16977]]

continues to engage in active consultation with Indian tribes. 
Statements of policy do not typically create rights to administrative 
or judicial review, nor other causes of action. To avoid any 
misunderstanding in this regard, we believe it prudent to include this 
Section in the policy.
    Comment: One commenter suggested adding the following to Section 
V.: ``This policy is not intended to create a forum for resolution of 
issues between the Tribes and the NIGC. Nor is it meant to replace 
presently existing lines of communication. Both the Tribes and NIGC 
recognize that issues that are the subject of litigation or that are 
likely to become the subject of litigation are inappropriate for 
discussion in this process.
    Response: We agree that this language would improve the General 
Limitations section, and we have added it, with slight modifications.

    Dated: March 26, 2004.
Philip N. Hogen,
Chairman, National Indian Gaming Commission.
Nelson W. Westrin,
Vice-Chair, National Indian Gaming Commission.
Cloyce V. Choney,
Commissioner, National Indian Gaming Commission.

National Indian Gaming Commission Government-to-Government Tribal 
Consultation Policy

    The National Indian Gaming Commission (``NIGC'' or ``Commission''), 
in consultation with Federally-recognized Indian tribes, establishes 
and issues this Government-to-Government Tribal Consultation Policy, 
which shall take effect immediately and remain in effect until further 
order of the Commission.

I. Introduction

A. Fundamental Principles of the Government-to-Government Relationship

    1. The United States of America has a unique government-to-
government relationship with Federally-recognized Indian tribes, as set 
forth and defined in the Constitution of the United States and Federal 
treaties, statutes, Executive Orders, and Federal court decisions. 
Since its formation, the United States has recognized Indian tribes as 
sovereign nations, which possess and exercise inherent sovereign 
authority over their members and territory to the extent recognized and 
defined by the Constitution of the United States, Federal treaties, 
statutes, Executive Orders, and Federal court decisions. Pursuant to 
this unique government-to-government relationship, the Federal 
Government has enacted numerous statutes and promulgated numerous 
administrative regulations that establish and define its trust 
responsibilities to Indian tribes and address issues concerning tribal 
self-governance, tribal territory and resources, and tribal treaty and 
other rights.
    2. A principal goal of long-standing Federal Indian policy is to 
support the federally recognized sovereignty of Indian tribes by 
promoting tribal economic development, tribal self-sufficiency, and 
strong tribal governance and self-determination over their internal 
affairs. In 1988, to further this policy and also address congressional 
concerns regarding the absence of clear Federal standards or 
regulations for the conduct of Indian gaming, Congress enacted the 
Indian Gaming Regulatory Act (``IGRA'' or ``Act''), 25 U.S.C. 2701 et 
seq., for three specified purposes:
    (a) To provide a statutory basis for the operation of gaming by 
Indian tribes as a means of promoting tribal economic development, 
self-sufficiency, and strong tribal government;
    (b) To provide a statutory basis for the regulation of Indian 
gaming adequate to shield it from organized crime and other corrupting 
influences; ensure that tribes are the primary beneficiaries of their 
gaming operations; and assure that the gaming is conducted fairly and 
honestly by both the operator and players; and,
    (c) To declare that the establishment of independent Federal 
regulatory authority and Federal standards for Indian gaming and the 
establishment of the NIGC are necessary to meet congressional concerns 
regarding Indian gaming and protect it as a viable means of generating 
tribal governmental revenues and furthering the policies and purposes 
of IGRA.

B. Tribal, Federal, State and Local Rights and Interests Regarding the 
Operation and Regulation of Indian Gaming Under IGRA

    1. The NIGC was established by IGRA as an independent Federal 
regulatory agency. The Act vests the Commission with certain regulatory 
powers and responsibilities for Indian gaming, including broad 
authority to promulgate such regulations and guidelines as it deems 
appropriate to implement the provisions of the Act.
    2. IGRA recognizes and provides that the operation of gaming on 
Indian lands is primarily a function of tribal sovereignty. Indian 
gaming is conducted by tribal governments, who may use the net revenues 
derived from gaming only to fund tribal governmental operations or 
programs; provide for the general welfare of the tribe and its members; 
promote tribal economic development; donate to charitable 
organizations; and help fund operations of local government.
    3. The regulatory framework established by IGRA for Indian gaming 
provides differing, but complementary, regulatory authority and 
responsibility to Indian tribes, the NIGC, the Secretary of the 
Interior, and state governments, dependent upon which of three 
different statutorily defined classes of tribal gaming activity is 
conducted. Under IGRA, Class I gaming remains under the exclusive 
sovereign jurisdiction of Indian tribes and is not subject to the Act's 
other regulatory provisions. Indian tribes also retain primary 
sovereign regulatory authority and responsibility for the day-to-day 
regulation of Class II and Class III Indian gaming operations under 
IGRA. However, the Act also vests the NIGC with certain independent 
Federal regulatory powers and responsibilities regarding the regulation 
of Class II and Class III gaming activity on Indian lands. In addition, 
IGRA also requires that Class III Indian gaming activity be conducted 
in conformance with a Tribal-State compact that is in effect and 
approved by the Secretary of the Interior. Under IGRA, such Tribal-
State Compacts may include negotiated provisions for state 
participation in the regulation of Class III tribal gaming activity 
conducted on Indian lands within the state.
    4. IGRA's statutory system of shared regulatory authority and 
responsibility for Indian gaming will work most effectively to further 
the Act's declared policies and purposes, when the three involved 
sovereign governmental authorities work, communicate, and cooperate 
with each other in a respectful government-to-government manner. Such 
government-to-government relationships will make it possible for all 
three sovereign governments to mutually resolve their issues and 
concerns regarding the operation and regulation of Indian gaming, and 
efficiently coordinate and assist each other in carrying out their 
respective regulatory responsibilities for Indian gaming under IGRA.
    5. Accordingly, the NIGC deems it appropriate to issue this 
Government-to-Government Tribal Consultation Policy, to promote and 
enhance the government-to-government relationships, consultations, and 
mutual cooperation among Indian tribes, the NIGC, other involved 
Federal departments and agencies, and state and local governments, 
regarding the

[[Page 16978]]

operation and regulation of Indian gaming under IGRA.

II. NIGC Policy Making Principles and Guidelines

A. Fundamental Principles

    The NIGC will adhere to and be guided by the following fundamental 
principles of Federal Indian policy, when formulating and implementing 
Federal regulatory policies, programs, procedures, requirements, 
restrictions, or standards that may substantially affect or impact the 
operation or regulation of gaming on Indian lands by a Federally-
recognized tribal government under the provisions of IGRA:
    1. The NIGC recognizes and respects the Federally recognized 
sovereignty of Indian tribes, which possess and exercise inherent 
sovereign authority over their members and territory and have certain 
rights to self-government over their internal governmental affairs 
under Federal law.
    2. The NIGC recognizes and is committed to maintaining a respectful 
and meaningful government-to-government relationship with Federally-
recognized Indian tribes and their authorized governmental leaders, 
when exercising and discharging its regulatory authority and 
responsibilities for Indian gaming under IGRA.
    3. The NIGC acknowledges that Indian tribes retain and exercise 
primary sovereign authority and responsibility with respect to the day-
to-day operation and regulation of gaming on their tribal lands under 
IGRA, subject to independent Federal regulatory oversight and the 
conditions, restrictions, and requirements of the Act, Tribal-State 
Compact provisions, Federal procedures in lieu of Tribal-State 
compacts, and NIGC regulations promulgated pursuant to the Act.
    4. The NIGC will honor and respect the provisions of Tribal-State 
Class III Gaming Compacts that are duly approved by the Secretary of 
the Interior and in effect, or, in the alternative, Federal Class III 
tribal gaming procedures approved by the Secretary of the Interior, in 
lieu of a Tribal-State Compact, pursuant to IGRA and Department of 
Interior regulations.
    5. To the extent practicable and permitted by law, the NIGC will 
engage in regular, timely, and meaningful government-to-government 
consultation and collaboration with Federally recognized Indian tribes, 
when formulating and implementing NIGC administrative regulations, 
bulletins, or guidelines, or preparing legislative proposals or 
comments for Congress, which may substantially affect or impact the 
operation or regulation of gaming on Indian lands by tribes under the 
provisions of IGRA.
    6. The NIGC will encourage Federally-recognized Indian tribes and 
state and local governments to consult, collaborate and work 
cooperatively with each other in a respectful, good faith government-
to-government manner to mutually address and resolve their respective 
issues and concerns regarding the operation and regulation of gaming on 
Indian lands under IGRA, in furtherance of the policies and purposes of 
the Act.
    7. The NIGC will also work cooperatively with other Federal 
departments and agencies and with state and local governments to enlist 
their interest and support to assist the Commission and Indian tribes 
in safeguarding tribal gaming from organized crime and other corrupting 
influences; providing adequate law enforcement, fire, and emergency 
health care services, and environmental protections for the health and 
safety of the public in tribal gaming facilities; and accomplishing the 
other goals of IGRA.

B. Other Policy Making Principles and Guidelines

    To the extent practicable and permitted by law, the NIGC will also 
adhere to and be guided by the following additional principles and 
guidelines, when formulating and implementing Federal regulatory 
policies, programs, procedures, requirements, restrictions, or 
standards, that may substantially effect or impact the operation or 
regulation of gaming on Indian lands by a Federally-recognized tribal 
government(s) under the provisions of IGRA:
    1. The NIGC acknowledges and will reasonably consider variations in 
the nature and scale of tribal gaming activity across Indian country, 
as well as variations in the extent and quality of tribal gaming 
regulation and state regulatory involvement under the different Tribal-
State Compacts, when determining the need, nature, scope, and 
application of new or revised Federal regulatory policies, procedures, 
programs, requirements, restrictions, or standards for Indian gaming 
operations under IGRA.
    2. The NIGC will also provide technical assistance, advice, 
guidance, training, and support to help Indian tribes and tribal 
leaders and employees understand and comply with Federal policies, 
regulations and standards for Indian gaming.
    3. The NIGC will defer to tribally established regulations and 
standards for Indian gaming, when the Commission determines that they 
are permitted by IGRA and further its policies and purposes; that they 
adequately address congressional concerns regarding Indian gaming; that 
tribal compliance and enforcement are readily verifiable by the NIGC; 
and, that similar Federal regulations and standards are not statutorily 
required or necessary to implement the Act.
    4. The NIGC will also encourage and provide technical assistance, 
advice, guidance, and support to Indian tribes and tribal leaders to 
formulate and implement their own regulatory policies, procedures, 
requirements, restrictions, and standards for their gaming operations, 
in lieu of similar Federal regulations and standards, if the Commission 
determines that the proposed tribal regulations and standards are 
permitted by IGRA and further its policies and goals; that they will 
adequately address congressional concerns regarding Indian gaming; that 
tribal compliance and enforcement will be readily verifiable by the 
NIGC; and, that similar Federal regulations and standards are not 
statutorily required or necessary to implement the Act.
    5. The NIGC will not formulate and implement Federal regulatory 
policies, procedures, programs, requirements, restrictions, or 
standards for Indian gaming that will impose substantial direct 
compliance or enforcement costs on an Indian tribe(s), if the 
Commission determines that such Federal regulations and standards are 
not required by IGRA or necessary to implement its provisions or 
further accomplishment of its policies and purposes.
    6. In general, the NIGC will strive to grant Indian tribes the 
maximum administrative and regulatory discretion possible in operating 
and regulating gaming operations on Indian land under IGRA; and also 
strive to eliminate unnecessary and redundant Federal regulation, in 
order to conserve limited tribal resources, preserve the prerogatives 
and sovereign authority of tribes over their own internal affairs, and 
promote strong tribal government and self-determination, in accordance 
with Federal Indian policy and the goals of IGRA.

C. Applicability

    The NIGC will be guided by the above policy-making principles and 
guidelines in its planning and management activities, including budget 
development and execution, legislative

[[Page 16979]]

initiatives and comments, and policy and rule making processes.

III. Tribal Consultation Procedures and Guidelines

    A. To the fullest extent practicable and permitted by law, the NIGC 
is committed to regular, timely, and meaningful government-to-
government consultation with Indian tribes, whenever it undertakes the 
formulation and implementation of new or revised Federal regulatory 
policies, procedures, programs, requirements, restrictions, or 
standards for Indian gaming, either by means of administrative 
regulation or legislative initiative, which may substantially affect or 
impact the operation or regulation of gaming on Indian lands by a 
tribe(s) under IGRA.
    B. Based on the government-to-government relationship and in 
recognition of the sovereignty and unique nature of each Federally-
recognized Indian tribe, the primary focus of the NIGC's consultation 
activities will be with individual tribes and their recognized 
governmental leaders. Consultation with authorized intertribal 
organizations and representative intertribal advisory committees will 
be conducted in coordination with and not to the exclusion of 
consultation with individual tribal governments. When the NIGC 
determines that its formulation and implementation of new or revised 
Federal regulatory policies, procedures, programs, requirements, 
restrictions, or standards may substantially effect or impact the 
operation or regulation of gaming on Indian lands by a tribe(s) under 
IGRA, the Commission will promptly notify the affected tribes and 
initiate steps to consult and collaborate directly with the tribe(s) 
regarding the proposed regulation and its need, formulation, 
implementation, and related issues and effects. Tribes may and are 
encouraged, however, to exercise their sovereign right to request 
consultation with the NIGC at any time they deem necessary.
    C. The Chairman of the NIGC or his or her designee is the principal 
point of contact for consultation with Indian tribes regarding all NIGC 
programs and related policies and policy-making activities of the 
Commission under IGRA.
    D. The NIGC will initiate consultation by providing early 
notification to affected tribes of the regulatory policies, procedures, 
programs, requirements, restrictions, and standards that it is 
proposing to formulate and implement, before a final agency decision is 
made regarding their formulation or implementation.
    E. The NIGC will strive to provide adequate opportunity for 
affected tribes to interact directly with the Commission, to discuss 
and ask questions regarding the substance and effects of proposed 
Federal regulations and standards and related issues, and to provide 
meaningful input regarding the legality, need, nature, form, content, 
scope and application of such proposed regulations, including 
opportunity to recommend other alternative solutions or approaches. 
Such consultation will be conducted with tribes by means of scheduled 
meetings, telephone conferences, written correspondence, and other 
appropriate methods of communication, before a final agency decision is 
made regarding the formulation or implementation of the proposed 
Federal regulations or standards.
    F. As part of the tribal consultation process, the NIGC will answer 
tribal questions and carefully consider all tribal positions and 
recommendations, before making its final decision to formulate and 
implement proposed new or revised Federal regulatory polices, 
procedures, programs, requirements, restrictions, or standards that may 
substantially affect or impact the operation or regulation of gaming on 
Indian lands by affected tribe(s) under IGRA.
    G. As an independent Federal regulatory agency, the NIGC has 
authority and responsibilities under IGRA to conduct investigations, 
take enforcement actions, and render regulatory and quasi-judicial 
decisions regarding the approval of tribal gaming ordinances and third 
party management contracts, the suitability of management contractors 
to participate in Indian gaming, and tribal compliance with the Act. 
The nature of these statutory responsibilities necessarily places some 
limitations on the nature and type of consultation that the Commission 
may engage in with the involved tribes. These limitations on 
consultation are necessary to preserve the integrity of the NIGC's 
investigations, enforcement actions, and decision-making processes, and 
also comply with provisions of the Federal Administrative Procedures 
Act that limit Commission contact with parties in contested cases. 
Nevertheless, the NIGC will endeavor, to the extent practicable and 
permitted by law, to reduce procedural impediments to consulting 
directly with tribal governments to resolve issues regarding the 
operation and regulation of Indian gaming under IGRA.
    H. The NIGC will, to the extent necessary and appropriate, consult 
with affected tribes to select and establish fairly representative 
intertribal work groups, task forces, or advisory committees to assist 
the NIGC and tribes in developing administrative rules or legislative 
recommendations to address and resolve certain issues of regulatory 
concern regarding the operation and regulation of Indian gaming under 
IGRA.
    I. The NIGC will, to the extent it deems practicable, appropriate, 
and permitted by law, explore and consider the use of consensual policy 
making mechanisms, including negotiated rulemaking, when formulating 
and implementing Federal regulatory policies, procedures, programs, 
requirements, restrictions, or standards that may substantially effect 
or impact sovereign tribal rights of self-government regarding the 
operation or regulation of gaming under IGRA, or related tribal 
resources, or tribal treaty or other rights.

IV. Increasing Flexibility for Tribal Waivers of Regulatory 
Requirements

    A. The NIGC will review the provisions and processes under which 
Indian tribes may apply for waivers of regulatory requirements under 
NIGC regulations, and take whatever steps it determines appropriate and 
permitted by law to further streamline those processes, consistent with 
the policy making principles and guidelines set forth in Part II of 
this policy.
    B. This Part only applies to regulatory requirements that are 
discretionary and subject to waiver by the NIGC.

V. General Limitations

    This policy is not intended to nor does it create any right to 
administrative or judicial review, or any other right, benefit, trust 
responsibility, or cause of action, substantive or procedural, 
enforceable by any party against the United States of America, its 
departments, agencies or instrumentalities, its officers, or employees, 
or any other persons or entities.
    This policy is not intended to create a forum for resolution of 
specific disputes or issues that are the subject of litigation between 
the NIGC and a tribe(s) nor is it meant to replace presently existing 
lines of communication.

[FR Doc. 04-7191 Filed 3-30-04; 8:45 am]
BILLING CODE 7565-01-P