EXHIBIT 3.3
TRIBAL GAMING ORDINANCE
OF THE
PICAYUNE RANCHERIA OF
CHUKCHANSI INDIANS
TITLE I
REGULATION OF CLASS II AND CLASS III GAMING
A law to authorize, license and regulate the conduct of
Class II and Class III Gaming within the jurisdiction of the
PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS.
SECTION 1. FINDINGS, INTENT AND POLICY
1.1 Findings The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") on behalf of the General Council finds
that:
1.1.1 Tribal regulation and control of Gaming within the
jurisdiction of the Tribe is essential for the
protection of public health and welfare of the Tribe
and visitors to the Tribal community.
1.1.2 The Tribe has the legal authority to license and
regulate any Gaming Activity within the jurisdiction
of the Tribe.
1.1.3 Properly licensed and regulated Gaming are in
conformance with announced Federal policy promoting
Indian self-government and Indian Tribal economic
self-sufficiency.
1.1.4 It is essential that the Tribal Council regulate
Gaming in a manner commensurate with applicable
Federal, State and Tribal law and policy.
1.1.5 The present needs of the Tribe are not adequately
addressed by State and Federal programs including the
need for increased employment, training, housing,
health care, nutrition, educational opportunities,
preservation of culture, social services and
community and economic development.
1
1.1.6 Tribal operation and licensing of Gaming is a
legitimate means of generating revenue to address the
aforementioned needs and pursuing the Tribe's goals
of self-sufficiency and self-determination.
1.1.7 The State, in recognition of the Tribe's sovereign
right and need for Gaming, has entered into the
Compact pursuant to the terms and conditions of the
Indian Gaming Regulatory Act.
1.1.8 As a result of the foregoing, the adoption of a new
and expanded Gaming Ordinance is in the best interest
of the Tribe and State.
1.2 Intent The Tribal Council, on behalf of the Tribe, declares
that the intent of this Code is to:
1.2.1 Regulate, control, and oversee Gaming within the
jurisdiction of the Tribe.
1.2.2 State, declare and otherwise clarify that a License
related to Gaming is a revocable privilege, not a
right.
1.2.3 Ensure that the operation of Tribally regulated
Gaming can continue as a means of generating Tribal
revenue.
1.2.4 Ensure that Gaming is conducted fairly and honestly
by both Licensees and players, and that it remain
free from corrupt, incompetent, unconscionable and
dishonest practices.
1.2.5 Encourage Tribal economic development and employment
opportunities.
1.2.6 Ensure that all Gaming revenue is used for the
benefit of the Tribe and its community.
1.2.7 Ensure that the Tribe agree to resolution of gaming
disputes in a fair and impartial forum.
1.2.8 Ensure that Tribal Gaming laws are strictly and
fairly enforced upon Persons involved in Gaming
Activity within the jurisdiction of the Tribe.
1.3 Policy
1.3.1 Tribal Policy of Self-Government The Tribe is firmly
committed to the principle of Tribal self-government.
Consistent with Federal policy, Net Revenues received
by the Tribe shall be utilized and expended by the
Tribal Council by resolution and only for the
following purposes:
(1) To fund Tribal government operations or
programs.
2
(2) To provide for the general welfare of the
Tribe and its members.
(3) To promote Tribal economic development.
(4) To donate to charitable organizations.
(5) To help to fund operations of local
government agencies, general governmental
services, the maintenance of peace and good
order, the establishment of educational
systems and programs, and the promotion and
regulation of economic activities within the
sovereign jurisdiction of the Tribe.
1.3.2 Tribal Gaming Policy The establishment, promotion and
operation of Gaming is a desirable economic activity,
provided that such Gaming is regulated and controlled
by the Tribe pursuant to the Tribal/State Compact
authorized by the Indian Gaming Regulatory Act, and
that the Net Revenues received by the Tribe from
Gaming are used exclusively for the benefit of the
Tribe.
1.3.3 Tribal Ownership of Gaming Facility The Tribe shall
have sole proprietary interest in and responsibility
for the conduct of Gaming Facilities and/or
Enterprises authorized by this Code.
1.3.4 Tribal Class II Gaming Authorized Class II Gaming is
authorized as defined in the IGRA, P.L. 100-447, 25
U.S.C. Section 2703(7)(A) and by regulations
promulgated by the NIGC.
1.3.5 Tribal Class III Gaming Authorized Class III Gaming
is authorized and permitted only with respect to the
games identified pursuant to Section 4.1 of the
Tribal/State Compact as approved by the Secretary of
the Interior, and played in accordance within the
definitions and scope of the IGRA, P.L. 100-447, 25
U.S.C. Section 2703(8) and by regulations promulgated
by the NIGC.
SECTION 2. DEFINITIONS
In this Code, except where otherwise specifically provided or the
context otherwise requires, the following terms and expressions shall
have the following meanings:
2.1 "Adjusted Gross Revenues" means gross revenues less all cash
prizes or the aggregate price of merchandise prizes, except in
the case of the games of draw poker and stud poker. Regarding
games of draw poker and stud poker, "adjusted gross revenues"
means the time buy-ins or tournament fees collected by the
Licensee.
2.2 "Applicant" means any Person or entity who has applied for a
License under the provisions of this Code.
3
2.3 "Application" means a request for the issuance of a License
for employment ata Gaming Facility, or for approval of any act
or transaction for which approval is required or permitted
under the provisions of this Code.
2.4 "Association" means representatives from California tribes,
the California State Division of Gaming Control and the
California Gambling Control Commission as established pursuant
to Section 2.2 of the Compact.
2.5 "Authority" means the Chukchansi Economic Development
Authority, a body corporate and politic, and an agency and
instrumentality of the Tribe.
2.6 "Bingo" means the game of chance commonly known as bingo
(whether or not electronic, computer or other technologic aids
are used in connection therewith) which is played for prizes,
including monetary prizes, with cards bearing numbers or other
designations, in which the holder of each card covers such
numbers or designations when objects, similarly numbered or
designated, are drawn or electronically determined, and in
which the game is won by the first Person covering a
previously designated arrangement of numbers or designations
on such cards, including (if played in the same location)
pull-tabs, lotto, punch boards, tip-jars, instant bingo and
other games similar to bingo.
2.7 "Breakage" means the remainder by which the amount payable on
each dollar wagered exceeds a multiple of ten cents, and in a
minus pool, five cents.
2.8 "Capital Cost" means any disbursement for personal property,
the useful life of which is expected to extend beyond one
year.
2.9 "Cash" means any currency commonly accepted as legal tender,
including but not limited to currency, traveler's checks,
credit cards, and electronic debit cards.
2.10 "Casino" means an establishment in which several Gaming
activities or enterprises are operated.
2.11 "Charitable Gaming Ticket" means any game piece used in the
play of a paper pull tab game, or jar ticket game, or raffle.
2.12 "Cheating" means a Person's operating or playing in any game
in a manner in violation of the written or commonly understood
rules of the game, with the intent to create for himself or
someone in privity with him an advantage over and above the
chance of the game.
2.13 "Class II Gaming" means those Gaming activities defined as
Class II Gaming in the IGRA.
4
2.14 "Class III Gaming" means those Gaming activities defined as
Class III Gaming in the IGRA.
2.15 "Code" means this Tribal Gaming Ordinance of the Picayune
Rancheria of the Chukchansi Indians, as amended.
2.16 "Compact" means the Gaming compact between the Tribe and the
State, as authorized by the Indian Gaming Regulatory Act.
2.17 "Compensation" means all wages salaries, perks, bonuses and
all other forms of remuneration for services rendered.
2.18 "Contract" means any legally binding agreement made between a
Licensee and another Person for the purpose of conducting any
form of lawful Gaming Activity, or providing goods or services
to any lawful Gaming Activity or operation.
2.19 "Council" or "Tribal Council" means the governing body of the
Tribe.
2.20 "Determination of Suitability" means a formal finding by the
Tribal Commission or State Gaming Agency that the Applicant or
Licensee is suitable to obtain and/or maintain a License.
2.21 "Employee" means any person who (a) operates, maintains,
repairs, assists in any Gaming Activity, works in, or is in
any way responsible for supervising such Gaming Activities or
persons who conduct, operate, account for, or supervise any
such Gaming Activity, (b) is in a category under federal or
Tribal gaming law requiring licensing, (c) is an employee of
the Tribal Gaming Commission with access to confidential
information, or (d) is a person whose employment duties
require or authorize access to areas of the Gaming Facility
that are not open to the public.
2.22 "Enrolled Tribal Member" means a Person who is enrolled with
the Tribe, and whose name appears on the tribal membership
roll.
2.23 "Enterprise" means the economic entity that is licensed by the
Tribal Commission, operates the games, receives the revenues,
issues the prizes, and pays the expenses. A gaming enterprise
may be operated by the Tribe or a Management Contractor.
2.24 "Equipment for Games of Chance" (see "Gaming Device").
2.25 "Exclusive License" means a license, which precludes the
Tribal Commission from issuing to another a license for the
same specific form of Gaming during the life of the exclusive
license. An Applicant must demonstrate and the Tribal
Commission must find that the issuance of an Exclusive License
is in the economic interest and welfare of the Tribe.
5
2.26 "Financial Source" as that term is used in 5.1.4 of the
Compact and in this Code, means every Person with whom the
Tribe enters into an agreement or Contract for the purpose of
extending financing to the Tribe, the proceeds of which are
used either directly or indirectly to finance the Gaming
Facility or Enterprise.
2.27 "Games of Chance" means any game or activity, which falls
within the broad definition of Gaming or Gaming Activity.
2.28 "Gaming" or "Gaming Activity" means any activity, operation or
game of chance in which any valuable consideration may be
wagered upon the outcome determined by chance, skill, speed,
strength or endurance, and in which any valuable prize is
awarded to the player so wagering.
2.29 "Gaming Device" means a slot machine, including an electronic,
electromechanical, electrical, or video device that, for
consideration permits: individual play with or against that
device or the participation in any electronic,
electromechanical, electrical, or video system to which that
device is connected; the playing of games thereon or
therewith, including, but not limited to, the playing of
facsimiles of games of chance or skill; the possible delivery
of, or entitlement by the player to, a prize or something of
value as a result of the application of an element of chance;
and a method for viewing the outcome, prize won, and other
information regarding the playing of games thereon or
therewith.
2.30 "Gaming Facility" or "Gaming Establishment" means any building
in which Class III Gaming Activities or Gaming operations
occur, or in which the business records, receipts, or other
funds of the Gaming operation are maintained (but excluding
offsite facilities primarily dedicated to storage of those
records, and financial institutions), and all rooms,
buildings, and areas, including hotels, ancillary businesses,
parking lots and walkways, a principal purpose of which is to
serve the activities of the Gaming operation, provided that
nothing herein prevents the conduct of Class II Gaming (as
defined under IGRA) therein.
2.31 "Gaming Program" means any Tribal program, which oversees one
or more parts of the operation of Gaming. The Gaming Program
must be licensed by the Tribal Commission.
2.32 "Gaming Vendor" means the same as a "Gaming Resource Supplier"
as defined by the Compact or any Person or entity who,
directly or indirectly, manufactures, distributes, supplies,
vends, leases or otherwise purveys Class II Gaming or Class
III Gaming resources to the Gaming Facility, provided that the
Tribal Commission may interpret this definition to exclude a
purveyor of equipment or furniture that is not specifically
designed for, and is distributed generally for use other than
in connection of Gaming
6
2.34 "General Manager" means the Person having management
responsibilities for the Gaming Activity, and which shall have
access to all areas of the Gaming Facility.
2.35 "Gross Revenues" means all gaming and non-gaming revenues
collected or received from the lawful Gaming Enterprise.
2.36 "Immediate Family" means, with respect to the Person under
consideration, a husband, wife, father, mother, son, daughter,
brother, sister, father-in-law, mother-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law, stepfather,
stepmother, stepson, stepdaughter, stepbrother, stepsister,
half brother or half sister.
2.37 "Indian Gaming Regulatory Act" or "IGRA" means Public Law
100-497, 102 Stat. 2426, 25 U.S.C.ss.ss.2701, et seq. (1988),
as amended.
2.38 "Indian Lands" means:
2.38.1 Lands within the limits of the Tribe's exterior
boundaries, whereby the Tribe exercises sovereign
jurisdiction over such lands, notwithstanding the
issuance of any patent and including rights-of-way
running through such lands; and
2.38.2 Lands title to which is either held in trust by the
United States for the benefit of the Tribe or
individual Indian or held by the Tribe subject to
restriction by the United States against alienation
and over which the Tribe exercises governmental
powers; and
2.38.3 Lands that may be acquired by the Tribe that meet the
requirements of 25 U.S.C. Section 2719 et. seq.
2.39 "In privity with" means a relationship involving one who acts
jointly with another or as an accessory before the fact to an
act committed by the other or as a co-conspirator with the
other.
2.40 "IRS" means the United States Internal Revenue Service.
2.41 "Key Employee" means:
2.41.1 A Person who performs one or more of the following
functions:
(1) Bingo caller;
(2) Counting room supervisor and personnel;
7
(3) Chief of security, or any Person who
supervises or directs other employees
engaged in providing security or
surveillance services;
(4) Custodian of Gaming supplies or cash;
(5) Floor manager, manager or General Manager;
(6) Pit boss;
(7) Dealer;
(8) Croupier;
(9) Approver of credit or whose recommendation
in this regard are ordinarily sought or
followed; or
(10) Custodian of gambling devices including
Persons with access to cash and accounting
records within such devices;
2.41.2 If not otherwise included, any other Person whose
total cash compensation is in excess of $50,000 per
year; or
2.41.3 If not otherwise included, any other Person who
supervises or directs other employees engaged in the
control of Gaming assets and revenues and record
keeping, including the recording of cash and
evidences in indebtedness, and the maintenance,
review, or control of the records, accounts, and
reports of transactions; or
2.41.4 If not otherwise included, the four most highly
compensated Persons in the Gaming Facility; or
2.41.5 Any Applicant or Person the Tribal Commission finds
is important or necessary to the operation of the
Gaming Facility.
2.42 "License" means the official, legal and revocable permission
granted by the Tribal Commission to an Applicant to conduct
"Licensed" Gaming Activities of the Tribe.
2.43 "Licensee" means the Employee, Key Employee, Primary
Management Official, Vendor, Enterprise or Facility that has
legitimately obtained a valid License.
2.44 "Lotto" means a form of Gaming in which the revenues derived
from the sale of tickets or chances are pooled and those
revenues or parts thereof allotted by chance to one or more
chance takers or ticket purchasers. The amount of cash prizes
or winnings is determined by the Licensee conducting the
"lottery," and a progressive pool is permitted.
8
2.45 "Management Contract" means any Contract for the management of
Class II or Class III Gaming within the meaning of IGRA and
any Contract entered between the Tribe and a Vendor, which
authorizes the Vendor to manage any Gaming or Gaming Facility,
including any Contract defined as a Management Contract under
IGRA by the NIGC.
2.46 "Management Contractor" means any Person or entity who has
entered into a Class II or Class III Gaming Management
Contract or is a Vendor who is authorized to manage Gaming or
Gaming Facility, including any Person who is regarded as a
Management Contractor within the meaning of IGRA or the NIGC.
2.47 "National Indian Gaming Commission" or "NIGC" means the
National Indian Gaming Commission established by the IGRA.
2.48 "Net Revenues" means Gross Revenues less amounts paid out as
prizes and less total Gaming related operating expenses,
excluding Management Contractor fees.
2.49 "Participate" in any Gaming means operating, directing,
financing or in any way assisting in the establishment of or
operation of any class of Gaming or any site at which such
Gaming is being conducted, directly or indirectly, whether at
the site in Person or off the Reservation.
2.50 "Person" means any individual, partnership, joint venture,
corporation, joint stock company, company, firm, association,
trust, estate, club, business trust, municipal corporation,
society, receiver, assignee, trustee in bankruptcy, political
entity and any owner, director, officer or employee of any
such entity or any group of individuals acting as a unit,
whether mutual, cooperative, fraternal, nonprofit, or
otherwise, the government of the Tribe, any governmental
entity of the Tribe or any of the above listed forms of
business entities that are wholly owned or operated by the
Tribe; provided, however, that the term does not include the
Federal Government and any agency thereof. The plural of
"Person" is "people."
2.51 "Player" means a Person participating in a game with the hope
of winning money or other benefit, but does not include an
Licensee or any assistant of an Licensee.
2.52 "Primary Management Official" means:
2.52.1 The Person having management responsibility for the
overall operation of the Enterprise or Facility, or a
management contract; or
2.52.2 Any Person who has authority to:
9
(1) Hire and fire employees; or
(2) Set up working policy for the Gaming
Operation; or
(3) The Chief Financial Officer or other Person
who has financial management responsibility.
2.53 "Progressive Gaming" means any game in which a cash prize
which, not being won by any player during any game, is
retained and further monetarily enhanced by the Licensee or
eligible organization, and offered as a prize to players in
the next game.
2.54 "Pull-tabs, Punchboards and Tip Jars" means a form of Gaming
in which preprinted cards utilizing symbols or numbers in
random order which are uncovered by random choice in
expectation of cash prizes if prescribed combinations of
symbols and numbers are revealed.
2.55 "Raffle" means a form of Gaming in which each player buys a
ticket for a chance to win a prize with the winner determined
by a random method. "Raffle" does not include a slot machine.
2.56 "Reservation" means lands defined as "Indian Lands" herein.
2.57 "State" means the State of California.
2.58 "State Gaming Agency" means the entity of the State pursuant
to the Gambling Control Act, pursuant to Division 8 of the
Business and Professions Code, Chapter 5, Sec. 19800 et. seq.
2.59 "State Gaming Facility Compliance Agent" means the Person
appointed pursuant to Section 6.4.2(d) of the Compact.
2.60 "Tribal Commission" means the Tribe's Gaming Commission
described in Section 4 of this Code.
2.61 "Tribal Court" means any Court created by the Tribe pursuant
to the Tribe's Constitution.
2.62 "Tribe" means the Picayune Rancheria of the Chukchansi
Indians, including the Authority and any other political
subdivision, agency or instrumentality of the Tribe.
2.63 "Wager" means the initial bet made in any game.
10
SECTION 3. GENERAL PROVISIONS
3.1 Authority This Code is enacted pursuant to the inherent
sovereign powers of the Tribe pursuant to Article IV, Section
2, of the Constitution, and pursuant to the powers of the
Tribal Council pursuant to Article V of the Constitution.
3.2 Title, Repeal of Prior Laws, and Effect of Repeal This Code
may be cited as the Picayune Rancheria of the Chukchansi
Indians Gaming Code or "Code".
3.2.1 All titles, chapters and sections of the Tribal Code
which pertain to Gaming and are in effect as of the
date that this Code becomes operative, are hereby
repealed, and all other laws, or parts thereof,
inconsistent with the provisions of this Code are
hereby repealed.
3.2.2 Repeal of this Code, or any portion thereof, shall
not have the effect of reviving any prior Law,
Ordinance, or Resolution theretofore repealed or
suspended.
3.3 Construction In construing the provisions of this Code, unless
the context otherwise requires, the following shall apply:
3.3.1 This Code shall be liberally construed to effect its purpose
and to promote substantial justice.
3.3.2 Words in the present tense include the future and past tenses.
3.3.3 Words in the singular number include the plural, and words in
the plural number include the singular.
3.3.4 Words of the masculine gender or neuter include masculine and
feminine genders and the neuter.
3.4 Severability If any section of this Code is invalidated by a
court of competent jurisdiction, the remaining sections shall
not be affected thereby.
3.5 Effective Date The Code shall become effective upon the date
of its approval by the Chairman of the NIGC pursuant to the
IGRA.
SECTION 4. TRIBAL GAMING COMMISSION
4.1 Establishment The Tribal Council hereby charters, creates and
establishes the Picayune Rancheria of the Chukchansi Indians
Tribal Gaming Commission as a governmental subdivision of the
Tribe.
4.1.1 The Picayune Rancheria of the Chukchansi Indians
Tribal Gaming Commission shall be referred to
throughout this Code as the Tribal
11
Commission.
4.2 Location and Place of Business
4.2.1 Gaming Facility The Tribal Commission shall maintain its
headquarters, principal place of business and office within
the Gaming Facility.
4.2.2 Other Locations The Tribal Commission may, however, with a
majority vote from the Tribal Council, establish other places
of business in such other locations as the Tribal Commission
may from time to time determine to be in the best interest of
the Tribe.
4.3 Duration The Tribal Commission shall have perpetual existence
and succession in its own name, unless dissolved by the Tribal
Council pursuant to Tribal law.
4.4 Attributes As a governmental subdivision of the Tribe, the
Tribal Commission is under the directive and control of the
Tribal Council, but it is the purpose and intent of the Tribal
Council that the operations of the Tribal Commission be
conducted on behalf of the Tribe for the sole benefit and
interests of the Tribe, its members and the residents of the
Reservation.
4.4.1 Arm of Tribe In carrying out its purposes under this
Code, the Tribal Commission shall function as an arm
of the Tribe.
4.4.2 Tribal Actions Notwithstanding any authority
delegated to the Tribal Commission under this Code,
the Tribe reserves to itself the right to bring suit
against any Person or entity in its own right, on
behalf of the Tribe or on behalf of the Tribal
Commission, whenever the Tribe deems it necessary to
protect the sovereignty, rights and interests of the
Tribe or the Tribal Commission.
4.5 Recognition as a Political Subdivision of the Tribe The Tribe,
on behalf of the Tribal Commission, shall take all necessary
steps to acquire recognition of the Tribal Commission as a
political subdivision of the Tribe, recognized by all branches
of the United States Government as having been delegated the
right to exercise one or more substantial governmental
functions of the Tribe.
4.6 Sovereign Immunity of the Tribal Commission
4.6.1 Authority The Tribal Commission is clothed by Federal
and Tribal law with all the privileges and immunities
of the Tribe, except as specifically limited by this
Code, including sovereign immunity from suit in the
State, Federal or Tribal Court.
4.6.2 No Waiver Nothing in this Code shall be deemed or
construed to be a
12
waiver of sovereign immunity of the Tribal Commission
from suit, which shall only be waived pursuant to
subsection 4.7 below.
4.6.3 No Consent to Jurisdiction Nothing in this Code shall
be deemed or construed to be a consent of the Tribal
Commission to the jurisdiction of the United States
or of any state or of any other tribe with regard to
the business or affairs of the Tribal Commission.
4.7 Waiver of Sovereign Immunity of the Tribal Commission Except
as specified in Section 4.7.5 below, the sovereign immunity of
the Tribal Commission may be waived only by express
resolutions of both the Tribal Commission and the Tribal
Council after consultation with its attorneys.
4.7.1 Resolution Effecting Waiver All waivers of sovereign
immunity must be preserved with the resolutions of
the Tribal Commission and the Tribal Council of
continuing force and effect.
4.7.2 Policy on Waiver Waivers of sovereign immunity are
disfavored and shall be granted only when necessary
to secure a substantial advantage or benefit to the
Tribal Commission.
4.7.3 Limited Nature of Waiver Waivers of sovereign
immunity shall not be general but shall be specific
and limited as to duration, grantee, transaction,
property or funds, if any, of the Tribal Commission
subject thereto, court having jurisdiction pursuant
thereto and law applicable thereto.
4.7.4 Limited Effect of Waiver Neither the power to sue and
be sued provided in subsection 4.7 herein, nor any
express waiver of sovereign immunity by resolution of
the Tribal Commission, shall be deemed a consent to
the levy of any judgment, lien or attachment upon
property of the Tribal Commission other than property
specifically pledged or assigned, or a consent to
suit in respect of any land within the exterior
boundaries of the Reservation or a consent to the
alienation, attachment or encumbrance of any such
land.
4.7.5 Limited Waiver for Arbitration Actions With the
passage of this Code, the Tribal Commission and
Tribal Council hereby expressly waive the sovereign
immunity of the Tribal Gaming Commission from
arbitration actions, arising from Management
Contracts with the Management Contractor or from any
Collateral Agreement as per 25 C.F.R. ss. 502.5, and
which are entered into by the Tribal Commission in
connection with the financing, development,
management, and operation of Gaming.
4.8 Sovereign Immunity of the Tribe Except as expressly waived in
this section below, all inherent sovereign rights of the Tribe
as a Federally-recognized Indian
13
Tribe, with respect to the existence and activities of the
Tribal Council, are hereby expressly reserved, including
sovereign immunity from suit in any state, Federal or Tribal
court. The Tribe, however, does waive its sovereign immunity
from arbitration actions, and suit and judgment to compel or
enforce arbitration, only to the Management Contractor or in
any Collateral Agreement as per 25 C.F.R. ss. 502.5 for
disputes arising under Contracts entered into by the Tribe,
the Authority and/or the Tribal Council in connection with the
financing, development, management, and operation of gaming.
4.9 Assets of the Tribal Commission The Tribal Commission shall
have only those assets specifically assigned to it by the
Tribal Council or acquired in its name by the Tribe or by it
on its own behalf. No activity of the Tribal Commission nor
any indebtedness incurred by it shall implicate or in any way
involve any assets of tribal members or the Tribe not assigned
in writing to the Tribal Commission.
4.10 Membership
4.10.1 Number of Commissioners The Tribal Commission shall
be comprised of three (3) Tribal Gaming
Commissioners.
4.10.2 Organization The Commission will consist of a
Chairman and two (2) Commissioners.
(1) The Chairman shall direct Tribal Commission
meetings, be the supervisor, and be
responsible for the day-to-day operations of
the Tribal Commission.
(2) The Chairman shall be the agent for service
of process.
(3) The Tribal Commission shall keep minutes of
meetings and provide a copy to the Tribal
Council.
4.10.3 Qualifications for Tribal Commission Positions
(1) Preference shall be given to Enrolled Tribal
Members.
(2) Must pass the scrutiny of a background check
pursuant to 4.10.5 below.
(3) Tribal Commissioners shall have expertise,
experience, education or a combination
thereof in the following areas: finance,
management, legal, business, governmental
regulation, and Tribal policy and law.
(4) Tribal Commissioners shall be at least
twenty-five (25) years of age.
14
4.10.4 Date of Appointment The Tribal Council shall appoint
initial Tribal Commissioners as soon as practically
possible following adoption of this Code. All
subsequent appointments shall be made annually
thereafter at the General Council Meeting held during
the month of the anniversary date of the initial
appointment(s).
4.10.5 Background Check Prior to the time that any Tribal
Commission member takes office on the Tribal
Commission, the Tribe shall perform or arrange to
have performed a comprehensive background check on
each prospective member. No Person shall serve as a
Commissioner if:
(1) His/Her prior activities, criminal record,
if any, or reputation, habits or
associations:
(i) Pose a threat to the public interest; or
(ii) Threaten the effective regulation
and control of Gaming; or
(iii) Enhance the dangers of unsuitable,
unfair, or illegal practices,
methods, or activities in the
conduct of Gaming; or
(2) He/She has been convicted of or entered a
plea of nolo contendere to a felony of any
jurisdiction or to a misdemeanor involving
dishonesty or moral turpitude in any
jurisdiction; or
(3) He/She has a direct monetary or financial
interest in the conduct of any Gaming
Enterprise or is in privity with a
Management Contractor; or
(4) He/She is presently a member of the Tribal
Council.
4.11 Term of Office The first Tribal Commission shall be appointed
as follows: the Chairman shall be appointed for three (3)
years; a Commissioner appointed for two (2) years; and a
Commissioner appointed for one (1) year. Upon the expiration
of the first terms, each Commissioner thereafter shall be
appointed for three (3) year staggered terms.
4.12 Ex-Officio Members At the direction of the Tribal Council, any
member of the Tribal Council, Tribal or Bureau of Indian
Affairs employee, or any other Person may be designated to
Participate, without vote, in Tribal Commission meetings.
4.13 Meetings
15
4.13.1 Regular Meetings The Tribal Commission shall meet
formally each Monday. Nothing in this Code shall
prohibit the Commission from authorizing telephone
and off-site meetings.
4.13.2 Special Meetings Special meetings may be called at
the request of the Tribal Council or the Chairman of
the Tribal Commission.
4.13.3 Quorum A quorum for all meetings shall consist of
two (2) members.
4.13.4 Voting All questions arising in connection with the
actions of the Tribal Commission shall be decided by
majority vote.
4.14 Compensation of Commissioners The compensation of Tribal
Commissioners shall be established by the Tribal Council.
4.15 Removal of Members or Vacancies
4.15.1 Removal A Commissioner may be removed by the Council
for the following reasons: serious inefficiency,
neglect of duty, malfeasance, misfeasance,
nonfeasance, misconduct in office, or for any conduct
which threatens the honesty and integrity of the
Tribal Commission or otherwise violates the letter or
intent of this Code.
4.15.2 Due Process Except as provided below, no Commissioner
may be removed without notice and an opportunity for
a hearing before the Council, and then only after the
Commissioner has been given written notice of the
specific charges at least ten (10) days prior to such
hearing. At any such hearing, the Commissioner shall
have the opportunity to be heard in Person or by
counsel and to present witnesses on his behalf.
4.15.3 Temporary Suspension If the Council determines that
immediate suspension of a Commissioner is necessary
to protect the interests of the Tribe, the Council
may hold a hearing with the Commissioner to suspend
the Commissioner temporarily, and the question of
permanent removal shall be determined thereafter
pursuant to Tribal Commission hearing procedures
pursuant to 4.15.2 herein.
4.15.4 Written Record A written record of all removal
proceedings together with the charges and findings
thereon shall be kept by the Tribal Secretary.
4.15.5 Removal Final The decision of the Tribal Council upon
the removal of a Commissioner shall be final.
4.15.6 Vacancies If any Commissioner shall die, resign, be
removed or for any reason be unable to serve as a
Commissioner, the Council shall declare his/her
position
16
vacant and shall appoint another Person to fill the
position within thirty (30) days of the vacancy. The
terms of office of each Person appointed to replace
an initial Commissioner shall be for the balance of
any un-expired term for such position provided,
however, that any prospective appointee must meet the
qualifications established by this Code.
4.16 Conflict of Interest No Person shall serve as a Commissioner
if he/she or any member of his/her Immediate Family has an
ownership, partnership or other direct financial interest,
other than a regular salary interest, in any Gaming
Enterprise, or if he/she has any other Personal or legal
relationship which places him/her in a conflict of interest.
4.17 Powers of the Tribal Commission In furtherance, but not in
limitation, of the Tribal Commission's purposes and
responsibilities, and subject to any restrictions contained in
this Code or other applicable law, the Tribal Commission shall
have, and is authorized to exercise by majority vote, the
following powers in addition to all powers already conferred
by this Code:
4.17.1 To reasonably inspect and regulate all Gaming within
the jurisdiction of the Tribe, provided that the
Commission does not make management decisions as to
the day-to-day operations of the Gaming Enterprise.
4.17.2 To investigate any reported violations of this Code,
the Compact, or any other applicable law regarding
Gaming within the jurisdiction of the Tribe.
4.17.3 To act as liaison with the NIGC, the California
Division of Gambling Control and the California
Gaming Control Commission.
4.17.4 To publish and distribute copies of this Code and
Tribal Commission rules and any Tribal Council,
Tribal Commission or Tribal Court decisions regarding
Gaming matters.
4.17.5 To prepare and submit for Tribal Council approval
proposals, including budget and monetary proposals
related to the operation of the Tribal Commission,
which could enable the Tribe to better carry forth
the policies and intent of this Code.
4.17.6 To work directly, and only with the Tribal Council
with regard to any Gaming issues.
4.17.7 To make or cause to be made reasonable inspections or
investigations as it deems necessary to ensure
compliance with this Code. In undertaking such
investigations, the Tribal Commission may request the
assistance of Tribal Gaming staff, Federal and local
law enforcement officials, legal counsel and other
third parties.
17
4.17.8 To arrange for training of Tribal Commission members
and employees in areas relating to the regulation or
operation of Gaming.
4.17.9 Upon prior explicit resolution and approval of the
Tribal Council, to employ such advisors as it may
deem necessary. Advisors may include, but are not
limited to, lawyers, accountants, law enforcement
specialists and Gaming professionals.
4.17.10 To promulgate rules and regulations to implement and
further the provisions of this Code; provided such
rules or regulations are approved by Tribal Council
resolution or ordinance.
4.17.11 To accept, review, approve or disapprove any
Application for a License.
4.17.12 To consult with and make recommendations to the
Tribal Council regarding changes in Tribal Gaming
laws and policies.
4.17.13 To examine under oath, either orally or in writing,
in hearings or otherwise any Person or agent, officer
or employee of any Person, or any other witness with
respect to any matters related to this Code,
including enforcement of tribal Gaming laws,
regulations, and policies, and to compel by subpoena
the attendance of witnesses and the production of any
books, records, and papers with respect thereto.
4.17.14 To make, or cause to be made by its agents or
employees, an examination or investigation of the
place of business, equipment, facilities, tangible
Personal property and the books, records, papers,
vouchers, accounts, documents and financial
statements of any Gaming operating, or suspected to
be operating, within the jurisdiction of the Tribe.
4.17.15 To delegate to an individual member of the Tribal
Commission, or to an individual member of the Tribal
Council, or Tribal staff, such of its functions as
may be necessary to administer these ordinances
efficiently; provided, that the Tribal Commission may
not re-delegate its power to exercise any of the
substantial governmental functions of the Tribe or
its power to promulgate rules and regulations; and
provided further that the Tribal Gaming Commission
may not delegate to any Person the power to
permanently revoke a License.
4.17.16 To issue fines and sanctions to the Gaming Facility
if it is operating in violation of this Code, and
report significant violations of the Compact to the
State Gaming Agency.
4.17.17 To sue or be sued in courts of competent jurisdiction
within the United States and Canada, subject to
Sections 4.6 and 4.7 herein; provided, that
18
no suit shall be brought by the Tribal Commission
without the prior explicit written approval of the
Tribal Council.
4.17.18 To use the seal of the Tribal Gaming Commission or
the seal of the Tribe with the approval of the Tribal
Council.
4.17.19 To arbitrate, compromise, negotiate or settle any
dispute to which it is a party relating to the Tribal
Commission's authorized activities.
4.17.20 To exercise the Tribal power to tax, authorized by
the Tribal Constitution in accordance with a Tribal
Council resolution delegating such power to the
Tribal Commission solely for the purpose of allowing
it to charge administrative and License Application
fees to Gaming License Applicants which are
reasonably related to the costs of operating the
Tribal Commission.
4.17.21 To purchase insurance from any stock or mutual
company for any property or against any risk or
hazard.
4.17.22 With prior approval of the Tribal Council, to make
application and accept grants and other awards from
private and governmental sources in carrying out or
furthering the purposes of the Tribal Commission or
the Tribe.
4.17.23 To establish and maintain such bank accounts as may
be necessary or convenient.
4.17.24 To require the filing of any records, forms, and
reports and all other information desired by the
Tribal Council or required by this Code.
4.17.25 To provide for an internal system of record keeping
with adequate safeguards for preserving
confidentiality as deemed necessary by the Tribal
Commission for retaining records, forms and reports
at least three (3) years.
4.17.26 To adopt a schedule of fees to be charged for
Licenses.
4.17.27 To adopt a schedule of fees for services rendered
relating to transcripts and the furnishing or
certifying of copies of proceedings, files, and
records.
4.17.28 To conduct or arrange for background investigations
of all Applicants.
4.17.29 To discipline any Licensee or Person participating in
Gaming by ordering immediate compliance with this
Code, and to issue an order of temporary suspension
of any License issued under this Code.
19
4.17.30 To issue an order of temporary closure of a Gaming
Facility in the event the Tribal Commission
determines that immediate closure is necessary to
protect assets or interests of the Tribe pursuant to
the due process and hearings required by Section 4.22
herein.
4.17.31 To become self-regulating whenever the Tribe becomes
eligible for a certificate of self-regulation under
the IGRA.
4.17.32 To file with the State Gaming Agency a request to be
heard on any denial of a Determination of
Suitability.
4.17.33 To ask for the assistance of the State Gaming Agency
to carry out the Class III provisions of this Code
and to reimburse the State Gaming Agency for any
costs that it occurs in the provision of this
service.
4.17.34 To assist the Management Contractor in taking all
steps necessary and appropriate to insure the
physical safety of all Tribal Gaming Enterprises,
their Licensees, patrons and employees.
4.17.35 Notwithstanding any authority granted herein, the
Tribal Commission shall endeavor to follow rules,
regulations, standards, specification and procedures
which are consistent with the State Gaming Agency's
rules, regulations, standards, specifications and
procedures adopted pursuant to Sections 6.0 through
8.0 of the Compact.
4.17.36 To enact and adhere to its own internal controls
including a Conflict of Interest Policy governing
Commissioners and Tribal Gaming Commission staff.
4.18 Annual Budget The Tribal Commission shall prepare an annual
operating budget for all Tribal Commission activities and
present it to the Tribal Council by October 15 of each year.
4.19 Tribal Commission Regulations
4.19.1 Tribal Commission regulations necessary to carry out
the orderly performance of its duties and powers
shall include, but shall not be limited to, the
following:
(1) The Minimum Internal Control Standards
("MICS") as issued by the NIGC;
(2) Interpretation and application of this Code,
as may be necessary to enforce the Tribal
Commission's duties and exercise its powers;
20
(3) A regulatory system for overseeing Gaming,
including accounting, contracting,
management and supervision;
(4) The findings of any reports or other
information required by or necessary to
implement this Code; and
(5) The conduct of inspections, investigations,
hearings, enforcement actions and other
powers of the Tribal Commission authorized
by this Code.
4.19.2 No regulation of the Tribal Commission shall be of
any force or effect unless it is adopted by the
Tribal Commission by written resolution and
subsequently approved by a resolution of the Tribal
Council and both resolutions filed for the record in
the office of the Tribal Secretary.
4.20 Right of Entrance; Bi-Monthly Inspection. The Tribal
Commission and duly authorized officers and employees of the
Tribal Commission, during regular business hours, may
reasonably enter upon any premises of any Licensee or Gaming
Facility for the purpose of making inspections and examining
the accounts, books, papers and documents of any such Gaming
Facility.
4.20.1 Aid to Entry The Gaming Facility staff shall
facilitate such inspection or examinations by giving
every reasonable aid to the Tribal Commission and to
any properly authorized officer or employee.
4.20.2 Frequency of Inspection A Commissioner or a member of
the Tribal Commission's staff shall visit each Gaming
Facility at least once every two weeks during normal
business hours for the purpose of monitoring its
operation. Such visits shall be unannounced.
4.21 Investigation The Tribal Commission, upon complaint or upon
its own initiative or whenever it may deem it necessary in the
performance of its duties or the exercise of its powers, may
investigate and examine the operation and premises of any
Person or Licensee within its jurisdiction. In conducting such
investigation, the Tribal Commission shall make no order or
final decisions without affording any affected party notice
and a hearing.
4.22 Due Process; Notice; Hearings; Examiner The Tribal Commission
shall provide due process and provide notice and a hearing if
it is to utilize any of its enforcement capabilities in the
administration of its powers and duties hereunder.
4.22.1 No Hearing, Voluntary Resolution Whenever it shall
appear to the satisfaction of the Tribal Commission
that all of the interested parties involved in any
proposed hearing have agreed concerning the matter at
hand, the Tribal Commission may dismiss the issue
without a hearing.
4.22.2 Notice of Hearing The Tribal Commission shall, within
5 days after the
21
event giving rise to the concern, provide a written
notice setting forth, with specificity, the issues to
be resolved.
4.22.3 Hearing The Tribal Commission shall, within 5 days
after the notice of hearing pursuant to 4.22.2,
provide the affected parties the right to present
oral or written testimony to all people interested
therein as determined by the Tribal Commission.
4.22.4 Examiner The Tribal Commission shall act as examiner
for the purpose of holding any hearing, or the Tribal
Commission may appoint a Person qualified in the law
or possessing knowledge or expertise in the subject
matter of the hearing to act as examiner for the
purpose of holding any hearing. Any such appointment
shall constitute a delegation to such examiner of the
powers of the Tribal Commission under this Code with
respect to any such hearing.
4.22.5 Decision The Examiner shall render a written opinion
within 48 hours of the hearing.
4.22.6 A decision of the Examiner shall be final; provided,
however, that the Tribe, the Authority, and/or the
Tribal Commission may agree by Contract that the
rights of a party under a Contract for the financing,
development, operation and management of Gaming may
be subject to arbitration and other proceedings in
accordance with such Contract.
4.23 Quarterly Report of Tribal General Manager Reports. The Tribal
Commission shall file a quarterly report to the Tribal Council
summarizing reports received from each of the Tribe's Gaming
Facilities and make such comments as it deems necessary to
keep the Tribal Council fully informed as to the status of the
Tribal Commission's activities.
SECTION 5. GAMING LICENSES
5.1 Applicability
5.1.1 Every Employee, Key Employee, Primary Management
Official, Gaming Enterprise, and Gaming Facility that
aids, participates or is related to Gaming is
required to have a current and valid License as
issued by the Tribal Commission.
5.1.2 The Tribe will perform background investigations and
issue licenses to Key Employees and Primary
Management Officials according to requirements at
least as stringent as those in 25 C.F.R. Parts 556
and 558.
5.1.3 Every Gaming Vendor that provides or receives, or is
likely to provide or receive at least Twenty-five
Thousand Dollars in any twelve (12) month
22
period from the Enterprise is required to have a
current and valid License as issued by the Tribal
Commission.
5.1.4 Any Financial Source is required to have a current
and valid License issued by the Tribal Commission,
provided that any Financial Source presently
extending financing shall be Licensed within Ninety
(90) days of execution of this Code.
5.1.4.1 Exemptions: The following lenders,
regardless of their relationship to the
Tribe, and regardless of whether they would
otherwise be considered a Financial Source,
are exempt from the Financial Source
licensing requirements of this section:
federally or state regulated banks;
federally or state regulated savings and
loan institutions; any other federally or
state regulated lending institution
including commercial lenders licensed under
Division 9, Article 3, ss. 22000 et seq. of
the California Finance Code; any agency of
the federal, State or local government; or
any investor who, extends financing,
directly or indirectly, to the Tribe in an
amount less than 10% of the aggregate amount
of outstanding indebtedness (whether by
loans, securities such as bonds or
otherwise) of the Tribe.
5.2 Application Procedure
5.2.1 Submission to Tribal Commission An Applicant seeking
a License shall submit an Application to the Tribal
Commission on such form as the Tribal Commission may
require.
5.2.2. Privacy Act and False Statement The application form
shall include the following notices:
5.2.2.1. Privacy Act
In compliance with the Privacy Act of 1974,
the solicitation of information on this form
is authorized by 25 U.S.C. 2701 et seq. The
purpose of the requested information is to
determine the eligibility of individuals to
be employed in a gaming operation. The
information will be used by National Indian
Gaming Commission members and staff who have
need for the information in the performance
of their official duties. The information
may be disclosed to appropriate Federal,
Tribal, State, local, or foreign law
enforcement and regulatory agencies when
relevant to civil, criminal or regulatory
investigations or prosecutions or when
pursuant to a requirement by a tribe or the
National Indian Gaming Commission in
connection with the hiring or firing of an
employee, the issuance or revocation of a
23
gaming license, or investigation of
activities while associated with a tribe or
a gaming operation. Failure to consent to
the disclosures indicated in this notice
will result in a tribe's being unable to
hire you in a primary management official or
key employee position. The disclosure of
your Social Security Number (SSN) is
voluntary. However, failure to supply a SSN
my result in errors in processing your
application.
5.2.2.2. False Statement
A false statement on any part of your
application may be grounds for not hiring
you, or for firing you after you begin work.
Also, you may be punished by fine or
imprisonment (U.S. Code, title 18, section
1001).
5.2.3 Submission to State Gaming Agency The Applicant shall
also submit an application for a Determination of
Suitability along with required releases to the State
Gaming Agency.
5.2.4 Application Contents At a minimum, and regardless of
whether the information is relevant for the type of
License applied for, the Application shall contain
the following information:
(1) The full name (and other names ever used),
address, telephone number, age, birth date
and place, citizenship, gender, and social
security number or business identification
number of the Applicant.
(2) If the Applicant has resided at his current
address for less than five years, his
previous addresses.
(3) The name, address and telephone number of
the Licensee for whom he will work and the
specific location at which he will be
employed. A description of the job, task, or
service the Applicant will provide.
(4) The names and addresses of the Applicant's
Immediate Family.
(5) The Applicant's criminal and civil record,
if any, and an explanation of any crimes for
which he has been convicted or civil suits
he has lost, or to which he has entered a
plea of nolo contendere.
(6) A disclosure of any judgment rendered
against the Applicant.
24
(7) The names, addresses and telephone numbers
of three references who are not related to
the Applicant.
(8) A list of the Applicant's previous jobs over
the preceding five (5) years and his present
business affiliations.
(9) The identity of any ownership interest in
any past business ventures.
(10) The disclosure of whether there is a
previous contractual relationship with an
Indian tribe.
(11) A sworn statement whether the Applicant or
any member of his/her Immediate Family has a
past or current financial interest in any
Gaming-related enterprise anywhere.
(12) A list of all Gaming-related licenses the
Applicant has ever applied for, whether or
not they were granted such license.
(13) A list of all professional, occupational or
business licenses the Applicant has ever
applied for, whether or not they were
granted such license.
(14) A statement of all languages written or
spoken.
(15) Written permission giving the Tribal
Commission, any authorized State or local
law enforcement agency, the State Gaming
Agency and NIGC or its designees the right
to the Applicant's background, including his
criminal record.
(16) A complete disclosure of any pending or
anticipated civil or criminal action against
the Applicant.
(17) A sworn statement that if the License
applied for is issued, the Applicant will
submit to the jurisdiction of the Tribe and
the Tribal Court.
(18) A sworn statement that the Applicant will
abide by all applicable Tribal and Federal
laws, regulations and policies.
(19) A photograph of the Applicant taken within
the past year.
(20) A written statement that the information
contained in the Application is true and
correct to the best of Applicant's
knowledge.
25
5.2.5 Business Entities In addition to the relevant
information requested in 5.2.4, business entities
shall also submit the following:
(1) Each of its officers and directors;
(2) Each of its principle management employees,
including any chief executive officer, chief
financial officer, chief operating officer,
and general manager;
(3) Each of its owners or partners, if an
unincorporated business;
(4) Each of its members, if a limited liability
company;
(5) Each of its shareholders who own more than
10 percent of the shares of the corporation;
and
(6) Each person or entity that, alone or in
combination with others, has provided
financing in connection with Gaming
authorized under this Compact.
5.3 Review of License Application. The Tribal Gaming Commission
shall thoroughly review and conduct a background investigation
for each Tribal Gaming License Application sufficient to make
a determination of eligibility as required under this Code.
The Tribal Gaming Commission's review and background
investigation shall include, but is not limited to the
following:
5.3.1 The Tribal Gaming Commission shall enter into an
agreement with the Sheriff's Department of Madera
County, State of California, to take each Applicant's
fingerprints. Each Applicant shall submit the
completed fingerprint card along with his/her
Application to the Tribal Gaming Commission.
5.3.2 The Tribal Gaming Commission shall review diligently
the information provided in the Tribal Gaming License
Application, including, but not limited to,
contacting and investigating all resources identified
in the Tribal Gaming License Application. An
authorized Tribal official, identified by the Tribal
Gaming Commission, shall review an Applicant's prior
activities, criminal record (if any), reputation,
habits, and associations in order to make an
eligibility determination for Key Employees and
Primary Management Officials. For purposes of
conducting a criminal history check on each Key
Employee and Primary Management Official (in addition
to the check of the criminal history records
information maintained by the Federal Bureau of
Investigation, as described below), the Tribal Gaming
Commission shall enter into an agreement with the
Madera County Sheriff's Department for the
performance of criminal history checks by the
Sheriff's department and
26
the processing, transmission and reporting of
information and findings relating to such criminal
history checks.
5.3.3 The Tribal Gaming Commission shall provide a written
report as to findings and conclusions of the
foregoing background investigation, including, but
not limited to:
5.3.3.1 Steps taken in conducting diligence;
5.3.3.2 Results of the conducted diligence;
5.3.3.3 Conclusions from review of conducted
diligence; and
5.3.3.4 The basis for those conclusions.
5.3.4 The Tribal Gaming Commission shall transmit the
Applicant's Application, file, and eligibility
determination report to the NIGC and the State Gaming
Agency.
5.3.5 The Tribal Gaming Commission shall maintain the
Applicant's file, including applications, background
investigation reports, and eligibility determination
reports, for inspection by the NIGC for no less than
three (3) years from the date of termination of
employment.
5.3.6 The Tribal Gaming Commission, when it does not
license an Applicant, shall notify the NIGC and
forward copies of the Tribal Gaming Commission's
eligibility determination report and the
investigative report (if any).
5.4 Authorized Entity for Fingerprint Cards. The Tribal Gaming
Commission may contract with any entity, with approval from
the Tribal Council, and authorize such entity to receive and
process fingerprint cards for background investigation
purposes, so long as such background investigation shall, at a
minimum, include a check of criminal history records
maintained by the Federal Bureau of Investigation. The Tribal
Gaming Commission, if it chooses not to contract with any
other entity, shall designate the NIGC as its authorized
entity for receiving and processing fingerprint cards for
background investigation purposes, so long as such background
investigation , at a minimum, includes a check of criminal
history records information maintained by the Federal Bureau
of Investigation.
5.5 Notification and MOU with NIGC. If the Tribal Gaming
Commission chooses to utilize the NIGC pursuant to Section 5.4
above, the Tribal Gaming Commission, with consent of the
Tribal Council, shall notify the NIGC of the forwarding of
Tribal Gaming License applications to NIGC. Before obtaining
and processing fingerprint cards for background investigation
purposes, the Tribal
27
Gaming Commission shall enter into a Memorandum Of
Understanding ("MOU") with the NIGC providing that any and all
criminal results obtained from the fingerprint cards for
background investigation purposes shall be viewed by Tribal
government officials only.
5.6 Scope and Types of License
5.6.1 Gaming Employee License Employee Gaming Licenses are
for those Employees that deal in an area of Gaming or
Cash Handling within the Gaming Facility or
Enterprise. A License issued pursuant to this section
shall be effective for only the location, job and
employer contained in the Application; provided,
however, nothing herein shall prohibit a Primary
Management Official or Key Employee from
simultaneously performing the duties and
responsibilities of more than one position; provided
further, that the Primary Management Official or Key
Employee is performing a position that is directly in
lineal descent below them in the organizational
structure of the Enterprise and that they are
qualified and trained to perform the duties of the
positions so performed. Dealers may also be permitted
to deal various card games so long as they are
qualified and trained to perform the duties of the
positions so performed and are specifically licensed
for those positions.
5.6.2 Non-Gaming Employee License A Non-Gaming Employee
License is for employees that are not permitted in
areas of Gaming, for example, cooks, kitchen staff,
food servers, or hostess. A License issued pursuant
to this section shall be effective for only the
location, job and employer contained in the
Application. These Licenses will not require the same
level of background scrutiny required for Gaming
Licenses.
5.6.3 Part-Time or Full-Time Licenses The Employee's
License shall state clearly whether the Employee is a
part-time or full-time Employee.
5.6.4 Transferring Licenses A Licensee shall apply to have
his/her license transferred to a new location by
requesting that transfer in writing to the Tribal
Commission in a mannerwhich details the new job and
location.
5.7 Temporary Licensing Notwithstanding anything herein to the
contrary, if the Applicant has completed a License
Application, the Tribal Commission may immediately issue a
temporary License if:
5.7.1 The Tribal Commission has conducted a preliminary,
local, background investigation; and
5.7.2 Based on the preliminary investigation, the
information does not indicate that the Applicant has
a criminal history.
28
5.7.3 Temporary licenses may last no longer than 90 days.
5.8 License Issuance, Term and Substance
5.8.1 Issuance Upon completion of the necessary background
investigation, and after the Tribe has complied with
the 30-day NIGC review requirements found in 25
C.F.R. ss.558.3 and ss.558.4, the Tribal Commission
may issue a License on a conditional or unconditional
basis. If the NIGC objects to an Applicant, the Tribe
shall reconsider the Application, taking into account
the reasons for the objections noted by NIGC.
However, the Tribe shall have the final word on
whether to license an Applicant. Nothing herein
creates a property right in the License.
5.8.2 Term Any License issued pursuant to this section
shall be effective for a period of two (2) years from
the date of issuance.
5.8.3 License Substance The License shall state on its face
the name of the Applicant, the Tribal Logo, the
Licensee who employs him, and the license number. It
shall also include a photograph of Licensee.
5.9 License Denial Any Application for a License shall be denied
if the Tribal Commission, after an adequate review, determines
the Application is incomplete or deficient, or that the
employment of the Applicant poses a threat to the public
interest or the effective regulation of gaming, or creates or
enhances the danger of unsuitable, unfair or illegal practices
and methods and activities in the conduct of gaming,. If the
foregoing determinations about the Applicant are made, no
management contractor or Tribal gaming operation shall employ
the Applicant.
5.10 Renewals A Licensee shall petition to have the License renewed
by applying to the Tribal Commission for a renewal before the
License expires. Applicants may be required to provide updated
material as requested.
5.11 Requirement to Produce License Upon Request Licensees must
carry the License and visibly display the License during
working hours and must produce the License upon the request of
any Person.
5.12 License Suspension or Revocation of License
5.12.1 Temporary Suspension or Revocation The Tribal
Commission may suspend or revoke a License, after
notice and an opportunity for a hearing pursuant to
Section 4.22 herein, for any of the following
reasons:
(1) The Licensee withheld pertinent information
on the Application;
(2) The Licensee made false statements on the
Application;
29
(3) The Licensee participated in Gaming that was
not authorized by any Gaming License or
regulatory approvals, and therefore deemed
illegal;
(4) The Licensee attempted to bribe a Tribal
Council member, Commissioner or other
Person, in an attempt to avoid or circumvent
Tribal law;
(5) The Licensee offered something of value to a
Tribal Commission member;
(6) The Licensee knowingly promoted, played or
participated in any Gaming operated in
violation of Tribal or Federal law;
(7) The Licensee is knowingly involved in the
falsification of books or records which
relate to a transaction connected with the
operation of Gaming;
(8) The Licensee violated this Code or the rules
and regulations of the Tribal Commission;
(9) The Licensee has been convicted or has
entered a plea of nolo contendere to any
crime involving Gaming, fraud, theft, or
embezzlement.
(10) The Licensee has refused to comply with any
lawful order, inquiry or directive of the
Tribal Commission, the Tribal Council, the
Federal Government or any court of competent
jurisdiction;
(11) The Licensee has been convicted of, or
entered a plea of nolo contendere to, a
crime involving the sale of illegal
narcotics or controlled substances;
5.12.2 Procedure for Suspension
(1) Upon reasonable cause that a violation of
the Code has occurred, the Tribal Commission
or its designee may either undertake an
investigation of the Licensee, or serve upon
such Licensee an order to show cause why the
Licensee's License should not be revoked, or
why the Licensee should not be enjoined from
conducting Gaming.
(2) Additionally, if the NIGC notifies the Tribe
that it has received reliable information
indicating that a key employee or primary
management official is not eligible for
employment under 25 C.F.R. ss.558.2, the
Tribal Commission or its designee shall
suspend such license and
30
notify the licensee in writing that his/her
license has been suspended and may be
revoked.
(3) Such notice shall state the reason for the
suspension and/or order, and the time and
place for the hearing before the Tribal
Commission pursuant to Section 4.22 herein.
(4) The Licensee shall have an opportunity to
present testimony and cross-examine opposing
witnesses, and to present any other evidence
as to why a revocation order or injunction
should not be issued.
(5) The hearing shall be set for not less than
two (2) days or more than five (5) days from
the date of the notice. The hearing shall be
governed in all respects in accordance with
Tribal law and Tribal Commission
regulations. Any suspension decision of the
Tribal Commission after hearing shall be
final. The Tribe shall notify NIGC of its
decision.
5.13 Enterprise License The Gaming Enterprise authorized by the
Compact and this Code shall be licensed by the Tribal
Commission. The Tribal Commission shall automatically issue a
License if the following threshold criteria are met:
5.13.1 The Gaming is located on lands taken into trust after
October 17, 1988, as a settlement of a claim.
5.13.2 The Gaming is authorized pursuant to this Code, the
Compact and the IGRA.
5.13.3 The Gaming is authorized by a Tribal Council
resolution.
5.13.4 The Tribe has the sole proprietary interest and the
Management Contract is consistent with Tribal and
Federal law and is properly approved by the Chairman
of the NIGC.
5.14 Facility License The Gaming Facility authorized by the Compact
and this Code shall be licensed by the Tribal Gaming
Commission.
5.14.1 A Facility License shall be issued if the following
criteria are met:
(1) The Tribal Gaming Commission has determined,
based on the reports of qualified inspectors
and a review by the Tribal Gaming Commission
of all relevant contracts and operational
policies and procedures, including safety
manuals and intergovernmental agreements
relating to environmental protection,
health, safety and emergency services, that
the Gaming Facility has been constructed and
shall be maintained and operated in a manner
that adequately protects the envoronment and
the public health and safety.
31
(2) The construction, expansion or modification
of the Facility shall meet the Building and
Safety Code pursuant to Title VIII of this
Code.
(3) The construction, expansion or modification
of the Facility shall meet the standards of
the federal American with Disabilities Act
pursuant to Title IV of this Code.
(4) Upon the inspection of the health and safety
of the building, and upon the inspection
that all Gaming controls that are necessary
to insure the integrity of the Gaming are in
place, the Tribal Gaming Commission shall
issue to the Facility a Certificate of
Occupancy, which shall be reissued upon
similar inspections every two years.
5.14.2 Upon the issuance of a Facility License, the Tribal
Gaming Commission shall forward the License to the
State Gaming Agency within ten (10) days of issuance.
5.14.3 The Facility License shall be posted in a conspicuous
and public place in the Facility at all times.
5.15 State Gaming Agency Licensing
5.15.1 Except as provided in Sections 5.15.2 and 5.15.3
below, the Tribe will not employ or affiliate with
any Person whose application to the State Gaming
Agency for a determination of suitability has been
denied.
5.15.2 Notwithstanding Section 5.15.1, the Tribe may employ
a Person who has been denied for a determination of
suitability by the State Gaming Agency if :
(1) The Person holds a valid and current Tribal
License;
(2) The denial by the State Gaming Agency is
based on reasons that antedate the filing of
the Person's initial application to the
State Gaming Agency;
(3) The Person is not an Employee of another
Gaming Enterprise;
(4) The Person has been in continuous employ for
at least three years by the Tribe prior to
the effective date of the Compact.
5.15.3 Notwithstanding Section 5.15.1, the Tribe may employ
a Person who has been denied for a determination of
suitability by the State Gaming Agency if :
32
(1) The Person is an Enrolled Member of the
Tribe;
(2) The Person holds a valid and current Tribal
License;
(3) The denial by the State Gaming Agency is
based on reasons that antedate the filing of
the Person's initial application to the
State Gaming Agency;
(4) The Person is not an Employee of another
Gaming Enterprise;
5.16 Miscellaneous Licensing Provisions
5.16.1 No License shall be sold, lent, assigned or otherwise
transferred.
5.16.2 Each Licensee shall have a copy of the Code and
regulations readily available for inspection by any
Person at each authorized Gaming site.
5.16.3 The Tribe shall monthly provide the State Gaming
Agency with the name, badge identification number,
and job descriptions of all non-key Gaming Employees.
SECTION 6. BANK ACCOUNTS AND RECORDKEEPING
6.1 Bank Account The Tribe and/or the Authority, as applicable,
shall open a separate bank account for the Enterprise and all
receipts of each Gaming Activity shall be deposited in the
account.
6.2 Record Keeping Accounting records of the Gaming, Enterprise,
and Facility shall be kept on a double entry system of
accounting, maintaining detailed supporting and subsidiary
records. The Tribe shall maintain the following records for
not less than three (3) years:
6.2.1 Revenues, expenses, assets, liabilities and equity
for each location at which Class II and Class III
Gaming is conducted.
6.2.2 Daily cash transactions for Gaming, including but not
limited to transactions relating to each Gaming
table, game drop box and game room bank.
6.2.3 All markers, IOU's, returned checks, hold checks or
other similar credit instruments.
6.2.4 Individual and statistical game records to reflect
statistical drop and statistical win for electronic,
computer, or other technologically assisted games.
33
6.2.5 Contracts, correspondence and other transaction
documents relating to all Gaming Vendors.
6.2.6 Records of all customer complaints and Tribal Gaming
enforcement activities.
6.2.7 All gaming related audits prepared by or on behalf of
the Tribe or one of its subdivisions.
6.3 Audit Requirements
6.3.1 The Enterprise shall provide a copy of an annual
independent audit to the Tribal Commission, the
Tribal Council, the State Gaming Agency, and the
National Indian Gaming Commission.
6.3.2 Each contract between the Tribe and another Person
for supplies, services (other than legal and
accounting services) or concessions for a contract
amount in excess of $25,000 annually shall be subject
to an independent audit. Such audit shall be solely
limited to a monthly printout from the accounts
payable of the Gaming Operations of the checks
rendered . A copy of such audit will be provided to
the Tribal Gaming Commission, the Tribal Council,
State Gaming Agency and the National Indian Gaming
Commission.
6.4 Notices to the Public
6.4.1 The Gaming Facility shall have a copy of this Code
readily available for inspection by any Person at
each Gaming Facility.
6.4.2 The Gaming Facility shall post in a conspicuous
location near each game an explanation of the rules
of play of every game operated or shall otherwise
provide the public with such an explanation.
SECTION 7. GAMING ENTERPRISE RESTRICTIONS AND COMPLIANCE
7.1 Number of Facilities
7.1.1 The Tribe may establish and operate not more than two
Gaming Facilities, and only on those lands on which
Gaming may lawfully be conducted under IGRA.
7.1.2 The Tribe may combine and operate in each Gaming
Facility any forms and kinds of Gaming permitted
under the Compact, IGRA and this Code.
34
7.2 Gaming Device Restrictions
7.2.1 Number of Devices The Tribe may offer no more than
Two Thousand Gaming Devices combined for all
Facilities.
7.2.1 Transferability of Devices The Gaming Enterprise, or
any Licensee, is prohibited from selling, renting or
lending Gaming Devices to any Person without prior
written approval of the Tribal Commission.
7.2.2 Transportation of Devices Transportation of a Gaming
Device to or from the Gaming Facility within
California is permissible only if:
(1) The Tribal Commission has issued a permit to
transport the Device; and
(2) The Tribal Commission has provided at least
ten (10) days notice to the local County
Sheriff; and
(3) The final destination of the Device is a
gaming facility of any tribe in California
with a Tribal/State Compact; or
(4) The final destination is in a state or
country whereby the Device is otherwise
legal; or
(5) The final destination is located in
California for the purpose of testing,
repair or storage by a Person that is
licensed by the State Gaming Agency.
7.3 Gaming Device Technical Standards The technical standards for
Gaming Devices shall adhere to the Gaming Laboratories
International, Incorporated standards.
7.4 Age Restrictions
7.4.1 No Person under the age of Eighteen (18) shall be
employed by the Gaming Facility, Management
Contractor or the Tribal Commission.
7.4.2 No Person under Twenty-one (21) years of age shall be
employed in the service of alcoholic beverages at the
Gaming Facility.
7.4.3 No Person under the age of Twenty-one (21) shall be
permitted in any area where Gaming is occurring and
alcoholic beverages are being consumed.
7.4.4 No Person under the age of Twenty-one shall be
permitted to place any wager, directly or indirectly,
in any Gaming Activity.
35
7.4.5 No Person under the age of Twenty-one shall be
permitted in any room in which Gaming is being
conducted unless the person is en-route to a
non-gaming area of the Gaming Facility.
7.5 Methods of Payment
7.5.1 Gaming chips and other tokens of value may be sold
and redeemed by the Enterprise and only for full
value.
7.5.2 Consideration to participate in Gaming shall be cash
only. No other form of consideration shall be allowed
unless the Tribal Commission gives prior written
approval.
7.6 Compliance requirements
7.6.1 Evidence of win or loss incurred by a Player must,
upon request, be provided in such form as will be
acceptable to the Internal Revenue Service.
7.6.2 The Enterprise shall pay all fees and file all
reports required by law within the time prescribed.
7.6.3 The Enterprise shall respond immediately to all
inquiries, subpoenas, or orders of the Tribal
Commission, the State Gaming Agency, the Tribal
Council, or the NIGC.
7.6.4 The Enterprise shall make its premises and books and
records available for inspection during normal
business hours by the Tribal Commission, the State
Gaming Agency, the National Indian Gaming Commission
and members of the Tribal Council or their designee.
7.7 Miscellaneous
7.7.1 The Enterprise shall provide adequate security to
protect the public before, during, and after Gaming.
7.7.2 The Enterprise may not discriminate on the basis of
sex, race, color, or creed in its employment
practices related to Gaming.
SECTION 8. ENFORCEMENT
8.1 Jurisdiction Except as provided in this Code or the Compact,
the Tribal Commission shall have jurisdiction over all
violations of this Code.
8.2 Prohibited Acts In addition to other civil and criminal
offenses provided for in this Code, the following acts are
prohibited by any Person and subject any
36
violator to the civil or criminal penalties specified herein:
8.2.1 Participating in any Gaming, which is not authorized
by this Code.
8.2.2 Knowingly making a false statement in connection with
any Contract to participate in any Gaming Activity.
8.2.3 Attempting to bribe any Person participating in any
Gaming Activity.
8.2.4 Offering or accepting a loan, financing or other
thing of value between a Tribal Commission member or
employee and any Person participating in any Gaming
Activity.
8.2.5 Promoting or participating in any illegal Gaming
Activity.
8.2.6 Failing to keep sufficient books and records to
substantiate receipts, disbursements and expenses
incurred or paid from any Gaming Activity authorized
pursuant to this Code.
8.2.7 Falsifying any books or records that relate to any
transaction connected with any Gaming Activity
pursuant to this Code.
8.2.8 Conducting or participating in any Gaming Activity,
which results in Cheating.
8.2.9 Allowing participation in Gaming Activity by or with
an intoxicated or disorderly Player.
8.2.10 Allowing or participating in the sale of liquor when
such sale is prohibited by Tribal law.
8.2.11 Accepting consideration other than money, tokens or
chips for participation in any Gaming Activity.
8.2.12 Using bogus or counterfeit chips or Charitable Gaming
Tickets, or to substitute or use any cards,
Charitable Gaming Tickets or Gaming equipment that
has been marked or tampered with.
8.2.13 Employing or possessing any Cheating device or to
facilitate Cheating in any Gaming Activity.
8.2.14 Willfully using any fraudulent scheme or technique to
change the odds of any Game of Chance.
8.2.15 Soliciting, directly or indirectly, or using inside
information on the nature or status of any Gaming
Activity for the benefit of an individual.
37
8.2.16 Tampering with a Gaming Device, attempting to
conspire to manipulate the outcome or the payoff of a
Gaming Device, or otherwise unlawfully tampering with
or interfering with the proper functioning of the
machine.
8.2.17 Alter or counterfeiting a Gaming license.
8.2.18 Aiding, abetting, or conspiring with another Person
knowingly or knowingly to cause any Person to violate
any provision of this Code or any rules and
regulations adopted hereunder.
8.2.19 Operating, using or making available to the public
any illegal Gaming Device, apparatus, material or
equipment.
8.2.20 Selling, holding out for sale or transporting into or
out of the jurisdiction of the Tribe any illegal
Gaming Device, apparatus, material or equipment.
8.2.21 Assisting or allowing a Person who is under the age
of Twenty-one (21) to participate in a Gaming
activity.
8.2.22 Possessing any illegal narcotics or controlled
substances on any licensed Gaming site.
8.2.23 Stealing or attempting to steal funds or other items
of value from any Gaming Facility or from the Tribal
Commission.
8.2.24 Employing any Person at a licensed Gaming Facility
whom the Licensee knows has been convicted of a
Gaming crime or a crime of fraud.
8.3 Criminal Violation Any Indian who violates or fails to comply
with any provision of this Code, or who fails or neglects to
comply with any order, decision of the Tribal Commission,
shall be charged and given due process pursuant to Section
4.22 herein. If such Indian is found to be guilty of a crime,
he may be required to pay a fine not to exceed Five Thousand
Dollars ($5,000) or be incarcerated for not to exceed two (2)
years. Each day during which any such violation or failure to
comply continues shall constitute a separate violation of this
Code.
8.4 Civil Violation Any non-Indian who violates or fails to comply
with any provision of this Code, or who fails or neglects to
comply with any final order of the Tribal Commission, shall be
charged and given due process pursuant to Section 4.22 herein.
If the non-Indian is found liable, he may pay a civil fine not
to exceed Five Thousand Dollars ($5,000) for each violation
thereof. Each day during which any such violation or failure
to comply continues shall constitute a separate violation of
this Code. The amount of any such civil fine may be recovered
in a civil action in the Tribal Court.
38
8.5 Cumulative Fines All civil fines accruing under this Code
shall be cumulative and a suit for the recovery of one fine
shall not bar or affect the recovery of any other fine, or
judgment, penalty, forfeiture or damages, nor bar the power of
the Tribal Court to punish for contempt, nor bar any criminal
prosecution against any officer, director, agent, or employee
of any Licensee, or any other Person.
8.6 Purpose of Civil Penalties The civil fines imposed under this
Code are intended to be remedial and not punitive and are
designed to compensate the Tribe for the damage done to the
peace, security, economy and general welfare of the Tribe and
the Reservation, and to compensate the Tribe for costs
incurred by the Tribe in enforcing this Code. The civil fines
under this Code are also intended to coerce all people into
complying with this Code and Tribal Commission regulations and
not to punish such people for violation of such laws and
regulations.
8.7 Civil Action for Penalties In enforcing the civil infraction
provisions of this Code, the Tribal Commission shall proceed,
in the name of the Tribe, against a Person for violation of
such provision by civil complaint in any court of competent
jurisdiction, or, if applicable, only in such other forums as
the Tribe has agreed to by Contract. The Tribal Commission in
such action shall have the burden of showing, by the
preponderance of the evidence, that such Person violated the
applicable provision of this Code.
8.8 Seizure and Forfeiture of Property Property utilized in
violation of this Code shall be subject to seizure and
forfeiture by order of the Tribal Commission pursuant to such
procedures and rules as the Tribal Commission shall
promulgate.
8.9 Reporting of Offenders The Tribal Commission, upon final
conviction of any Person under this subsection, shall report
the name of the Person convicted to the Tribal Council, State
Gaming Board and NIGC.
SECTION 9. GAMING MANAGEMENT
9.1 Management by a Gaming Contractor
9.1.1 The Management Contractor, or if no Management
Contractor the Tribe, shall identify in writing a
Person(s) who shall serve as General Manager of the
Gaming Enterprise. The General Manager appointed
shall undergo a background check by the Tribal
Commission and shall obtain a License before
commencing work.
9.1.2 The General Manager shall have access to any area
within the Gaming Facility.
9.1.3 The General Manager shall present a written monthly
report to the Tribal Commission which estimates the
number of patrons served, the amount of income
generated, the numbers of employees working at the
39
establishment, a detailed description of any patron
complaints and other problems experienced at the
establishment, a written statement of any changes in
Primary Management Officials and all bills which are
thirty (30) days or more past due.
9.2 Rules and Regulations for Management The Tribal Commission
shall, with the input and suggestions of Primary Management
Officials, promulgate rules and regulations or specifications
governing the following subjects:
9.2.1 The enforcement of all relevant laws and rules with
respect to the Gaming Operation and the Facility;
9.2.2 Ensuring the physical safety of Enterprise patrons
and Employees;
9.2.3 The physical safeguarding of assets transported to,
within, and from the Gaming Facility;
9.2.4 The prevention of illegal activity from occurring
within the Gaming Facility including employee
procedures and surveillance;
9.2.5 The recording of occurrences that deviate from normal
operating policies including the following procedure
for reporting incidents:
(1) Specify that security personnel record all
incidents, regardless of immateriality;
(2) Require the assignment of a sequential
number to each report;
(3) Provide for permanent reporting in indelible
ink in a bound notebook;
(4) Require that each report include the
following:
(i) The record number.
(ii) The date.
(iii) The time.
(iv) The location of the incident.
(v) A detailed description of the
incident.
(vi) The persons involved in the
incident.
(vii) The security personnel assigned to
the incident.
9.2.6 The establishment of employee procedures designed to
permit detection of any irregularities, theft,
cheating, fraud, or the like;
9.2.7 Maintenance of a list of persons barred from the
Gaming Facility;
40
9.2.8 In accordance with section 8.4.1 of the Compact,
except as provided in subdivision 8.4.1(d) of the
Compact, no State Gaming Agency regulation shall be
effective with respect to the Enterprise unless it
has first been approved by the Association, and
further, the Tribe has had an opportunity to review
and comment on the proposed regulations.
9.3 Insurance Requirements Pursuant to the Tribal/State Compact,
the Management Contractor shall ensure that the Enterprise
shall carry a minimum of Five Million Dollars ($5,000,000.00)
liability insurance to protect the public in the event of an
accident.
9.4 IRS Requirements The General Manager shall be responsible for
seeing that Gaming Activity is managed in accordance with
Tribal and Federal law and that such Gaming Activity complies
with all IRS reporting requirements.
9.5 Audit Requirements
9.5.1 Annual Enterprise Audit The Tribal Commission and the
General Manager of the Enterprise shall obtain an
annual independent audit of such Enterprise by a
certified public accountant using the accounting
standards for audits of casinos of the American
Institute of Certified Public Accountants.
9.5.2 Contract Audits Each contract between the Management
Contractor and another Person for supplies, services
(other than legal and accounting services) or
concessions for a contract amount in excess of
Twenty-five Thousand Dollars ($25,000) annually shall
be subject to an independent audit. For the purposes
of the previous sentence, the term "services" does
not include contracts the purpose of which is to
extend financing to the Management Contractor, the
Tribe, or the Enterprise.
9.5.3 Copies A copy of all such audits shall be provided to
the Tribal Commission, the Tribal Council, State
Gaming Agency and the NIGC.
9.6 Annual Reports from Management Contractor. Management
Contractors must file an annual report with the Tribal
Commission and the Tribal Council between the 15th and the
last day of the 12th month duration of each such License
period. The report include, at a minimum, the following
information:
9.6.1 The name, address and telephone number of the
Licensee;
9.6.2 The names, addresses and titles of all of its current
managers of the Licensee;
9.6.3 A description of the Gaming operated and Gross
Revenue;
41
9.6.4 The name and address of the Person who will be
designated as Primary Management Official, or new Key
Employees over the next License Term;
9.6.5 Written proof that the Licensee has paid to the
National Indian Gaming Commission such fees as
Federal and Tribal law may require it to pay;
9.6.6 A sworn statement that the Licensee has complied with
the IRS including written notice of customer winning;
9.6.7 The number of full-time equivalent people, on an
annualized basis, employed by the operation during
the past twelve (12) months, together with a
projection of the number of full-time equivalent
people who are expected to be employed during the
next license period;
9.6.8 A sworn statement that the Licensee will continue to
comply with all Tribal and Federal laws applicable to
Gaming;
9.6.9 The name, address and signature of the agent who will
accept service of process on behalf of the Licensee,
who must reside on the Reservation;
9.6.10 If the Licensee is a corporation, a copy of any
amendment to its articles of incorporation, properly
certified by the incorporating government, unless a
current copy has already been filed with the Tribal
Commission;
9.6.11 If the Licensee is a limited liability company, a
copy of any amendment to its operating agreement or
its articles of organization, properly certified by
the state in which the company is organized, unless a
current copy has previously been filed with the
Tribal Commission.
9.7 Management Contracts
9.7.1 Each Management Contract is subject to the prior
approval of the National Indian Gaming Commission.
9.7.2 Each Management Contract shall be approved by the
Tribal Council. In make its selection, the Tribal
Council shall review the following:
(1) Background information on the proposed
Management Contractor including: its name,
its address, the names and addresses of each
Person or entity having a direct financial
interest or management responsibility for
the proposed management contractor, and (i)
in the case of a corporation the names and
addresses of each member of its board of
directors and all stockholders who hold
directly or indirectly ten percent (10%) or
more of its issued or outstanding stock; and
(ii) in the case of a limited liability
company, the names and addresses of each
member and each manager.
42
(2) A description of any previous experience
that each Person listed in subsection above
has had with other Gaming contracts with
Indian Tribes or with the Gaming industry
generally, including the name and address of
any tribal government or licensing agency
with which such Person has had a contract
relating to Gaming.
(3) A complete financial statement of each
Person listed in subsection 9.7.2(1).
(4) The Tribal Council shall undertake any
additional steps it can to determine the
character and reputation of each proposed
management contractor.
(5) If the Tribal Council, after reviewing the
above described information, still desires
to enter into a management contract with the
proposed management contractor, such
management contract shall be placed in
writing and submitted to legal counsel for
review before the Council approves it.
9.7.3 Any Management Contract approved by the Council must
contain at a minimum the following with respect to
the Gaming Enterprise to which the contract is
applicable:
(1) A provision requiring a monthly financial
accounting of the Gaming Enterprise's income
and expenses. Such reports shall be prepared
by an independent auditor who is mutually
acceptable to the Tribe and the Management
Contractor.
(2) A provision guaranteeing the Tribe a minimum
guaranteed payment that shall always take
precedence over the Management Contractor's
right to recoup development and construction
costs.
(3) An agreed upon ceiling for the Management
Contractor's development and construction
costs.
(4) A provision that the contract shall not
exceed seven (7) years or 40% of Net
Revenues.
(5) A provision for termination of the Contract
and the grounds for termination.
9.7.4 If the Council is satisfied with the information it
receives it shall submit its proposed contract along
with all of the above-described information to the
Tribal Commission, State Gaming Agency and to the
Chairman of the National Indian Gaming Commission for
Licensure approval.
43
SECTION 10. PROCEDURES FOR RESOLVING DISPUTES BETWEEN THE GAMING PUBLIC AND
GAMING MANAGEMENT
10.1 General Principles. The Tribe values its customers and
intends, at all times, to see that questions, concerns,
issues, and/or disputes raised by the gaming public are
addressed in a fair and orderly manner. .
10.2 Initial Dispute Resolution Procedure.
10.2.1 Members of the gaming public who, in the course of
their otherwise lawful and proper use of the Tribe's
gaming facilities, have questions or concerns about
the condition or operation of any part of the
GamingFacility, or who otherwise believe themselves
to be aggrieved by some aspect of the condition or
operation of any part of the GamingFacility, shall
direct their questions, concerns, or disputes
(hereinafter collectively "disputes") in the first
instance to gaming management at the Gaming Facility,
either orally or in writing.
10.2.2 Concerns or disputes shall be raised as soon as
reasonably possible after the events giving rise to
the dispute occur; however, no dispute may be raised
more than 10 calendar days after said events take
place.
10.2.3 Gaming management shall develop formal written
administrative procedures for the processing of
patron complaints and disputes, which procedures
shall be finalized only after Tribal review and
approval. The final procedures shall include the
following minimal requirements: Upon learning about a
dispute, gaming management shall expediently and
informally gather sufficient facts to make an initial
determination about the dispute (i.e. whether the
dispute has any merit, whether further investigation
is required, whether to take any corrective action,
etc.). Gaming management shall conduct an
investigation, if appropriate and inform the
complainant, either orally or in writing, about its
initial determination as soon as is reasonably
practicable. At that time, if the complainant
indicates that he or she has additional concerns or
is not satisfied, gaming management shall schedule an
informal hearing, if practical and appropriate, and
thereafter inform the complainant of its final
determination and inform the complainant that if they
are dissatisfied with the final determination they
may file an appeal with the Tribal Gaming Commission.
10.3 Formal Dispute Resolution Procedure.
10.3.1 Complainants who have followed the initial dispute
resolution procedure, and who are unsatisfied with
gaming management's initial determination, may appeal
that determination in writing to the Tribal Gaming
44
Commission no later than 5 days after being informed
about the initial determination.
10.3.2 The Tribal Gaming Commission may investigate the
dispute in any manner it chooses. The Commission
shall offer the complainant a fair opportunity to be
heard in person or through counsel about the dispute,
either before or after it makes its own inquiries.
The complainant's opportunity to be heard shall take
place within 30 days after the Commission receives
the complainant's written appeal.
10.3.3 After investigating (if it chooses to do so), and
within 30 days after affording the complainant an
opportunity to be heard, the Tribal Gaming Commission
shall issue a written opinion on the complainant's
appeal, and shall mail a copy of the opinion to the
complainant at his/her last known address. The
decision of the Gaming Commission shall be final.
45
TITLE II
REGULATION OF THE ENVIRONMENT
FOR CLASS III GAMING
Section 1. Compliance with Applicable Law. To the extent the National
Environmental Policy Act ("NEPA"), the California Environmental Quality Act
("CEQA"), or other environmental laws (collectively, "Environmental Laws") apply
to any Project (as that term is defined in the Tribal-State Compact between the
Tribe and the State of California), the Tribe shall take all actions necessary
to comply with such Environmental Laws.
Section 2. Environmental Impact Reports. All environmental reports prepared by
or at the request of the Tribe in conjunction with a Project shall be made
available to Tribal members by maintaining copies of the same at the
administrative offices of the Tribe. If any Environmental Laws apply to a
Project, copies of all such reports shall be provided to the governmental
entities as required by such Environmental Laws.
Section 3. Intergovernmental Agreements. To the extent that a Project or
proposed Project requires mitigation of off-Reservation impacts, the Tribe may,
by Tribal Council resolution, enter into applicable inter-governmental
agreements pursuant to the authority set forth in the Tribe's Constitution.
Section 4. Incorporation of Policies and Purposes. In the development and
operation of any Project, the Tribe shall use its best efforts, consistent with
the Tribe's governmental interests, to conform to the policies and purposes of
NEPA and CEQA, and shall at all times ensure that any provisions of such laws or
other Environmental Laws that apply to the Tribe or a Project are strictly
followed.
46
TITLE III
ADOPTION OF FEDERAL OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR
THE CLASS III GAMING FACILITY
The adoption of 29 C.F.R. part 1910 - Occupational Safety and Health Standards
and part 1926 - Safety and Health Regulations for Construction, together will
serve to regulate the safety and inspection of retail sale, wholesale/commercial
and light industrial labor practices, along with the standard of tribal labor
force protections from hazardous workforce environments and exposure to
potential contaminants within each of these areas, establishment of contract
work hours and other labor safety standards as deemed necessary by the tribal
government, along with the enforcement of these codes including the setting of
penalties.
SECTION 1. ADOPTION BY REFERENCE.
1.1 Findings. The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") Tribal Council on behalf of the General
Council finds that:
1.1.1 A certain document, three copies of which are on file
in the office of the Tribal Secretary, being marked
and designated as 29 C.F.R. part 1910 - Occupational
Safety and Health Standards and part 1926 - Safety
and Health Regulations for Construction, published by
the U.S. Department of Labor, Occupational Safety and
Health Administration, is hereby adopted as the
Tribal OSHA Standards, for regulating the safety and
inspection of retail sale, wholesale/commercial and
light industrial labor practices, along with the
standard of tribal labor force protections from
hazardous workforce environments and exposure to
potential contaminants within each of these areas,
establishment of contract work hours and other labor
safety standards as deemed necessary by the tribal
government, along with provisions for submission of
labor contracts, building plans and hazardous
activity permits for tribal government approval,
collection of fees, and enforcement of these codes
including the setting of penalties, where necessary.
1.2 Inconsistent Codes Repealed. All other codes or portions of
codes in conflict herewith are hereby repealed in that respect
only.
1.3 Certification of Adoption and Publishing. The Tribal Secretary
shall certify the adoption of this Tribal Ordinance and cause
the same to be published as required by law.
47
1.4 Effective Date. This Tribal Ordinance and the rules,
regulations, provisions, requirements, orders, and matters
established and adopted hereby shall take effect and be in
full force and effect from and after the date of its final
passage and approval.
48
TITLE IV
ADOPTION OF AMERICANS WITH DISABILITIES ACT STANDARDS
FOR CLASS III GAMING FACILITY
The adoption of 28 C.F.R. part 35, the Nondiscrimination on the Basis of
Disability in State and Local Government Services, will serve to effectuate
subtitle A of Title II of the Americans with Disabilities Act f 1990 (104 Stat.
327, Pub. L. 101-336, as amended), which prohibits discrimination on the basis
of disability by public entities.
SECTION 1. ADOPTION BY REFERENCE.
1.1 Findings. The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") Tribal Council on behalf of the General
Council finds that:
1.1.1 A certain document, three copies of which are on file
in the office of the Tribal Secretary, being marked
and designated as 28 C.F.R. part 35 -
Nondiscrimination on the Basis of Disability in State
and Local Government Services, is hereby adopted as
the Tribal ADA Standards, which prohibits
discrimination on the basis of handicap in tribally
assisted programs and activities.
1.2 Inconsistent Codes Repealed. All other codes or portions of
codes in conflict herewith are hereby repealed in that respect
only.
1.3 Certification of Adoption and Publishing. The Tribal Secretary
shall certify the adoption of this Tribal Ordinance and cause
the same to be published as required by law.
1.4 Effective Date. This Tribal Ordinance and the rules,
regulations, provisions, requirements, orders, and matters
established and adopted hereby shall take effect and be in
full force and effect from and after the date of its final
passage and approval.
49
TITLE V
ADOPTION OF THE FDA 1999 FOOD CODE FOR
A CLASS III GAMING FACILITY
The adoption of the 1999 edition of the "Food Code" regulating the retail sale,
commercial and institutional service, and vending of food; defining permit
holder, person in charge, employee, food, potentially hazardous food, food
establishment, safe material, sanitation, and other terms; and providing
standards for employee food safety knowledge, health, and practices; food
sources, preparation, holding temperatures, and protection; equipment design,
construction, installation, cleaning, and sanitation; water, and liquid and
solid wastes; facilities construction and maintenance, and storage and use of
poisonous and toxic materials; requiring a permit to operate a food
establishment; and providing for the restriction or exclusion of employees, the
examination and condemnation of food, and the enforcement of this code including
the setting of penalties.
SECTION 1. ADOPTION BY REFERENCE.
1.1 Findings. The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") Tribal Council on behalf of the General
Council finds that:
1.1.1 A certain document, three copies of which are on file
in the office of the Tribal Secretary, being marked
and designated as the Food Code, 1999 Recommendations
of the United States Public Health Service/Food and
Drug Administration as published by the U.S.
Department of Health and Human Services, Public
Health Service, Food and Drug Administration be, and
is hereby adopted as, the Food Code of the Tribe,
located in the State of California; for regulating
the design, construction, management and operation of
food establishments, and providing for plans
submission and approval and the issuance of permits
and collection of fees therefore.
1.2 Insertions and Changes. That the following provisions are
hereby revised as follows: Paragraph 8-811.10(B) Insert (as
provided by California law) Paragraph 8-813.10(B) Insert (as
provided by California law) Subparagraph 8-811.10(B)(2)
Insert (as provided by California law)
1.3 Inconsistent Codes Repealed. All other codes or portions of
codes in conflict herewith are hereby repealed in that
respect only.
1.4 Certification of Adoption and Publishing. The Tribal
Secretary shall certify the adoption of this Tribal
Ordinance and cause the same to be published as required by
law.
50
1.5 Effective Date. This Tribal Ordinance and the rules,
regulations, provisions, requirements, orders, and matters
established and adopted hereby shall take effect and be in
full force and effect for the period of 36 months from and
after the date of its final passage and approval.
51
TITLE VI
ADOPTION OF FEDERAL SAFE DRINKING WATER STANDARDS
The adoption of 40 C.F.R. part 141 - National Primary Drinking Water Regulations
and part 142 - National Primary Drinking Water Regulations Implementation,
together will serve to regulate the safety and inspection of ground and surface
water aquifers and public drinking water systems on tribal lands.
SECTION 1. ADOPTION BY REFERENCE.
1.1 Findings. The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") Tribal Council on behalf of the General
Council finds that:
1.1.1 A certain document, three copies of which are on file
in the office of the Tribal Secretary, being marked
and designated as 40 C.F.R. part 141 - National
Primary Drinking Water Regulations and part 142 -
National Primary Drinking Water Regulations
Implementation, published by the U.S. Environmental
Protection Agency, is hereby adopted as the Tribal
Safe Drinking Water Standards, for regulating the
safety and inspection of ground and surface water
aquifers and public drinking water systems on tribal
lands.
1.2 Inconsistent Codes Repealed. All other codes or portions of
codes in conflict herewith are hereby repealed in that
respect only.
1.3 Certification of Adoption and Publishing. The Tribal
Secretary shall certify the adoption of this Tribal
Ordinance and cause the same to be published as required by
law.
1.4 Effective Date. This Tribal Ordinance and the rules,
regulations, provisions, requirements, orders, and matters
established and adopted hereby shall take effect and be in
full force and effect from and after the date of its final
passage and approval.
52
TITLE VII
ADOPTION OF THE UNIFORM BUILDING CODE, UNIFORM MECHANICAL CODE,
UNIFORM PLUMBING CODE, NATIONAL ELECTRICAL CODE AND OTHER RELEVANT
FEDERAL BUILDING AND CONSTRUCTION STANDARDS
The adoption of 24 C.F.R. part 200.925c -- Model Codes, including the Uniform
Building Code, Uniform Mechanical Code, Uniform Plumbing Code, National
Electrical Code and others, together will serve to regulate the operational
safety and inspection of all relevant building and construction activities
conducted on tribal lands.
SECTION 1. ADOPTION BY REFERENCE.
1.1 Findings. The PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS
("Tribe" or "Tribal") Tribal Council on behalf of the General
Council finds that:
1.1.1 A certain document, three copies of which are on file
in the office of the Tribal Secretary, being marked
and designated as 5 U.S.C. 552(a) and 1 CFR part 51
is hereby adopted as the Tribal Uniform Building
Code, Tribal Uniform Mechanical Code, Tribal Uniform
Plumbing Code, Tribal Electrical Code and Tribal
Building and Construction Standards, for regulating
the construction of buildings on tribal lands. The
aforementioned documents are:
(A) Model Building Codes--
(i) Uniform Building Code, 1997 Edition,
including the Accumulative Supplements,
but excluding Part I--Administrative,
including the Appendix of the Code.
Uniform Plumbing Code, 1997 Edition, but
excluding Part I--Administration, but
including the Appendices of the Code.
Uniform Mechanical Code, 1997 Edition, but
excluding Part I--Administrative, but
including the Appendices of the Code. All
available from the International
Conference of Building Officials, 5360
South Workman Mill Road, Whittier,
California 90601.
(B) National Electrical Code, 1999 Edition; NFPA 70,
1993 Edition, including appendices. Available
from the National Fire Protection Association,
Batterymarch Park, Quincy, Massachusetts 02269.
53
1.1.2 Model Code Compliance Requirements.
(A) When a multifamily or care-type property is to
comply with one of the model building codes set
forth in paragraph 1.1.1 (A) of this section,
the following requirements of those model codes
shall not apply to those properties:
(i) Those provisions of the model codes that
do not pertain to residential or
institutional buildings;
(ii) Those provisions of the model codes that
establish energy requirements for
multifamily or care-type structures; and
(iii) Those provisions of the model codes that
require or allow the issuance of permits
of any sort.
1.1.3 Where the model codes set forth in paragraph 1.1.1
(A) of his section designate a building, fire,
mechanical, plumbing or other official, the
Secretary's designee in the HUD Field Office
serving the jurisdiction in which the property is
to be constructed shall act as such official.
1.1.4 Designation of Model Codes. When a multifamily or
care-type property is to comply with a model code,
it shall comply with one of the model codes
designated in paragraphs 1.1.3 (A-C) of this
section, and with any other code or codes
identified in the same paragraph. However, seismic
design is a mandatory requirement. In addition, the
property shall comply with all of the standards
that are incorporated into the code or codes by
reference. By the time of application for insurance
or other benefits, the developer or other
interested party shall notify the Department of the
code or group of codes to which the developer
intends to comply.
(A) Uniform Building Code, Uniform Plumbing Code
and Uniform Mechanical Code, 1997 Editions,
including the Accumulative Supplements to
the Building and Mechanical Codes, and the
1992 Code Changes to the Uniform Plumbing
Code, and the National Electrical Code 1999
Edition, NFPA 70, 1999 Edition.
(B) The National Electrical Code, NFPA 70, 1993
Edition.
1.2 Inconsistent Codes Repealed. All articles, titles, chapters,
or other codes or portions thereof, in conflict herewith are
hereby repealed in that respect only.
1.3 Certification of Adoption and Publishing. The Tribal Secretary
shall certify the adoption of this Tribal Ordinance and cause
the same to be published as required by law.
54
1.4 Effective Date. This Tribal Ordinance and the rules,
regulations, provisions, requirements, orders, and matters
established and adopted hereby shall take effect and be in
full force and effect from and after the date of its final
passage and approval.
55