TITLE
17 - GAMING
Section 17.01 - Purpose
17.01.01 Purpose
The Nisqually
Tribe (hereinafter "Tribe"), empowered by the Tribe's Constitution
to enact ordinances and Community Council Resolution No. 4-1989 which
authorizes a special election to adopt a gaming ordinance, hereby enacts
this ordinance in order to set the terms for Class II and Class III
gaming operations on tribal lands.
Historical and Statutory Notes
This Title
enacted June 14, 1995.
Section
17.02 - Gaming Authorized
17.02.01 Gaming Authorized
(a) Class
I gaming shall be allowed within the jurisdictional territory of the
Nisqually Tribe and shall not be regulated. Class I games include
social games solely for prizes of minimal value or traditional forms
of Indian gaming engaged in by individuals as a part of, or in connection
with, Tribal ceremonies or celebrations.
(b)
Class II gaming as defined in the Indian Gaming Regulatory Act, P.
L. 100-447, 25 U. S. C. Section 2703 (7) (A) (" IGRA") and
by the regulations promulgated by the National Indian Gaming Commission
as 25 C. F. R. § 502.3 (as published in the Federal Register
at 57 FR 12382-12393, April 9, 1992) is hereby authorized.
(c)
Class III gaming includes all forms of gaming that are not Class I
or Class II games. Class III gaming shall be conducted in accordance
with the terms of a gaming compact between the Tribe and the State
of Washington or as otherwise allowed by federal law.
(d)
The Gaming Commission shall, to the extent required, comply with any
reporting requirements established under a tribal-state compact to
which the Tribe is a party and other applicable law, including the
IGRA.
Section
17.03 - Ownership of Gaming and Operation of Gaming Establishments
17.03.01 Ownership of Gaming
The Tribe
shall have the sole proprietary interest in and responsibility for the
conduct of any gaming operation authorized by this Title.
17.03.02 Operation of Gaming Establishments
(a) Gaming
Permitted as Licensed. Except to the extent authorized by an agreement
pursuant to the provisions of IGRA or as otherwise permitted by law,
Gaming Activities shall only be conducted in tribally owned, operated
and licensed facilities pursuant to the provisions of this Act. Such
activities shall be conducted in accordance with the terms and conditions
of any license issued by the Tribe for such purposes as to each facility
before any Gaming Activities may occur therein. Such licenses shall
specify the hours of operation, type and scope of Gaming Activities
allowed therein, permitted uses of the facility for other activities,
rules of conduct for employees and patrons, regulation of alcoholic
beverages, food handling and entertainment, and such other matters
as the Gaming Commission or the Tribal Council may deem necessary
to the conduct of Gaming Activities therein.
(b)
Dispute Resolution. Patrons who have complaints against the
Gaming establishment shall have as their sole remedy the right to
file a petition for relief with the Gaming Commission. For such purposes,
disputes with any management contractor or its employees shall be
made to the Gaming Commission, and such shall be the exclusive remedy
for patron complaints. Complaints shall be submitted in writing and,
at the discretion of the Gaming Commission, the petitioner may be
allowed to present evidence. The Gaming Commission will render a decision
in a timely fashion and all such decisions will be final when issued.
Any patron having a claim against the gaming establishment or a management
contractor or its employees must submit such claim to the Gaming Commission
within thirty (30) days of its occurrence. All claims by patrons shall
be limited to a maximum recovery of $10,000 per occurrence, and a
cumulative limit of $20,000 per patron in any twelve (12) month period.
Except to the extent provided herein, all damage suits against an
employee, officer, agent, or manager or director of the Tribe or any
of its departments or divisions for disputes arising under this Act
or regulations promulgated hereunder, are prohibited.
Section
17.04 - Use of Gaming Revenue
17.04.01 Authorized Use
Net revenues
from Class II and Class III gaming shall be used only for the following
purposes: to fund tribal government operations and programs; provide
for the general welfare of the Tribe and its members; promote tribal
economic development; donate to charitable organizations; or help fund
operations of local government agencies.
17.04.02 Per Capita Payments
If the
Tribe elects to make per capita payments to Tribal members, it shall
authorize such payments only upon approval of a plan submitted to the
Secretary of the Interior under 25 U. S. C. § 2710(b)(3).
Section
17.05 - Audit
17.05.01 Annual Audit
The Tribe
shall cause to be conducted annually an independent audit of gaming
operations and shall submit the resulting audit reports to the National
Indian Gaming Commission.
17.05.02 Gaming Related Contracts
All gaming
related contracts that result in the purchase of supplies, services,
or concessions in excess of $25,000.00 annually, except contracts for
professional legal and accounting services, shall be specifically included
within the scope of the audit that is described in subsection 17.05.01
above.
Section
17.06 - Protection of the Environment and Public Health and Safety
17.06.01 Protection of the Environment and Public Health and Safety
Class II
and Class III gaming facilities shall be constructed, maintained and
operated in a manner that adequately protects the environment and the
public health and safety.
Section
17.07 - Licenses for Key Employees and Primary Management Officials
17.07.01 Licenses for Key Employees and Primary Management Officials
The Tribe
shall ensure that the policies and procedures set out in this section
are implemented with respect to key employees and primary management
officials employed at any Class II and Class III gaming enterprise operated
on Indian lands.
17.07.02 Definitions
Unless
specified otherwise, terms used herein shall have the same meaning as
in IGRA, including but not limited to references to "Net Revenues,"
"Class I," "Class II," and "Class III"
gaming, and except for references to "Commissioners," "Commission,"
or "Gaming Commission" which shall mean the Nisqually Gaming
Commission or its Commissioners, established and described herein.
(a)
"Closely Associated Independent Contractor" shall mean any
contractor that shares common ownership, officers or directors with
any management principal or person related thereto.
(b)
"Gaming" shall mean an activity in which a person stakes
or risks something of value on the outcome of a contest of chance
or a future contingent event, not under his or her control or influence,
upon an agreement or understanding that the person, or someone else,
will receive something of value in the event of a certain outcome,
but shall not include bona fide business transactions.
(c)
"Gaming Activities" shall mean any Class I, Class II, or
Class III gaming activity conducted by or under the jurisdiction of
the Tribe.
(d)
"Gaming Commission" shall mean the Nisqually Gaming Commission,
as established herein to monitor the Gaming Activities, investigate
wrongdoing, conduct background investigations, issue licenses, and
perform other duties as required for the regulation of Gaming on the
Reservation.
(e)
"Gaming Contractor" shall mean any person or entity that
supplies gaming devices or other gaming equipment, personnel or services
including gaming management or consulting services to any gaming activity
or enterprise.
(f)
"Gaming Enterprise" shall mean any gaming business, event,
enterprise or activity conducted by or under the jurisdiction of the
Tribe.
(g)
"Immediate Family" shall mean and is limited to, the subject
individual's spouse, children and parents - adopted or biological.
(h)
"Key Employee" shall mean a person who performs one or more
of the following functions: bingo caller, counting room supervisor,
chief of security, custodian of gaming supplies or cash, floor manager,
pit boss, dealer, croupier, approver of credit, or custodian of gaming
devices including those persons with access to cash and accounting
records within such devices. If not otherwise included, any other
person whose total cash compensation is in excess of $50,000 per year,
and the four (4) most highly compensated persons in the Gaming Enterprise
are included in the definition of key employees. At the discretion
of the Gaming Commission, other positions or persons may be included
under the subject of the requirements for key employees.
(i)
"National Indian Gaming Commission" ("NIGC") shall
mean the Commission established under IGRA.
(j)
"Person" shall mean any natural person or entity, including
but not limited to corporations, partnerships and trusts.
(k)
"Primary Management Official" shall mean the person who
has management responsibility for a management contract; any person
who has authority to hire and fire employees or to set up working
policy for the Gaming Enterprise; or the chief financial officer or
other person who has financial management responsibility. At the discretion
of the Gaming Commission, other positions or persons may be included
under the subject to the requirements for primary management officials.
(l)
"Related to" shall refer to persons who are related as a
father, mother, sister or brother.
(m) "Reservation"
shall mean all lands under the jurisdiction and control of the Tribe.
(n) "State"
shall mean the State of Washington.
(o) "Tribal
Council" shall mean the governing body of the Tribe, as set forth
in the Tribe's Constitution and By-laws.
(p)
"Tribal Court" shall mean any court established by the Tribe
to hear disputes or, if there is none, the Tribal Council.
(q)
"Tribal Member" shall mean any duly enrolled member of the
Tribe.
17.07.03 Application Forms
(a) The
following notice shall be placed on the application form for a key
employee or a primary management official before that form is filled
out by an applicant:
In compliance
with the Privacy Act of 1974, the following information is provided:
Solicitation of the 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 gaming license, or investigations or 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 may result in errors in processing your application.
(b)
Existing key employees and primary management officials shall be notified
in writing that they shall either:
(i)
Complete a new application form that contains a Privacy Act Notice;
or
(ii)
Sign a statement that contains the Privacy Act Notice and consent
to the routine uses described in that notice.
(c)
The following notice shall be placed on the application form for a
key employee or a primary management official before that form is
filled out by an applicant.
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.)
(d)
The Tribe shall notify in writing existing key employees and primary
management officials that they shall either:
(i)
Complete a new application form that contains a notice regarding
false statements; or
(ii)
Sign a statement that contains the notice regarding false statements.
17.07.04 Background Investigations
(a) The
Gaming Commission shall request from each Primary Management Official
and each Key Employee all of the information specified in subsections
(i) through (xiv) below. Further, each other applicant for a Class
A license, except as provided otherwise by the Gaming Commission,
shall also submit the information specified in (i) through (xiv) below.
The Gaming Commission reserves the right, at any time, to request
additional information either prior to, during, or subsequent to any
background investigation.
(i)
Full name, other names used (oral or written), social security number(s),
birth date, place of birth, citizenship, gender, all languages (spoken
or written);
(ii)
Currently and for the previous ten (10) years: business and employment
positions held, ownership interests in those businesses, business
and residence addresses, and driver's license numbers;
(iii)
The names and current addresses of at least three (3) personal references,
including one personal reference who was acquainted with the applicant
during each period of residence listed under paragraph (a)(ii) of
this section;
(iv)
Current business and residence telephone numbers;
(v)
A description of any existing and previous business relationships
with the gaming industry generally, including ownership interests
in those businesses;
(vi)
A description of any existing and previous business relationships
with Indian Tribes, including ownership interests in those businesses;
(vii)
The name and address of any licensing or regulatory agency with
which the person has filed an application for a license or permit
related to gaming, whether or not such license or permit was granted;
(viii)
For each felony for which there is an ongoing prosecution or conviction,
the charge, the name and address of the court involved, and the
date and disposition, if any, of the case;
(ix)
For each misdemeanor conviction or ongoing misdemeanor prosecution
(excluding minor traffic violations), within ten (10) years of the
date of the application, the name and address of the court involved
and the date and disposition, if any, of the case;
(x)
For each criminal charge (excluding minor traffic charges), whether
or not there is or was a conviction, if such criminal charge is
within ten (10) years of the date of the application and is not
otherwise listed pursuant to paragraph (a)( viii) or (a)( ix) above,
the criminal charge, the name and address of the court involved
and the date and disposition, if any, of the case;
(xi)
The name and address of any licensing or regulatory agency (federal,
tribal, state, local or foreign) with which the person has filed
an application for an occupational license or permit, whether or
not such license or permit was granted;
(xii)
A current photograph;
(xiii)
Any other information the Gaming Commission deems relevant; and
(xiv)
Fingerprints consistent with procedures adopted by the Gaming Commission
according to 25 C. F. R. § 522.2( h).
(b)
The Tribe shall conduct or cause to be conducted an investigation,
through the Gaming Commission sufficient to make a determination of
eligibility as required under this Act. In conducting a background
investigation, the Gaming Commission shall promise to keep confidential
the identity of each person interviewed in the course of the investigation.
17.07.05 Eligibility Determination
The Gaming
Commission shall review a person's prior activities, criminal record,
if any, and reputation, habits and associations to make a finding concerning
the eligibility of a key employee or primary management official for
employment in a gaming operation. If the Gaming Commission determines
that employment of the person poses a threat to the public interest
or to the effective regulation of gaming, or creates or enhances dangers
of unsuitable, unfair, or illegal practices and methods and activities
in the conduct of gaming, a tribal gaming operation shall not employ
that person in a key employee or primary management official position.
17.07.06 Procedures for Forwarding Applications and Reports for Key
Employees and Primary Management Officials to the National Indian Gaming
Commission
(a)
When a key employee or primary management official begins work at
a gaming operation authorized by this ordinance, the Gaming Commission
shall forward to the National Indian Gaming Commission a completed
application for employment and conduct the background investigation
and make the determination referred to in subsection 17.07.05 of this
section.
(b)
The Gaming Commission shall forward the report referred to in subsection
17.07.07 of this section to the National Indian Gaming Commission
within sixty (60) days after an employee begins work or within sixty
(60) days of the approval of this ordinance by the Chairman of the
National Indian Gaming Commission.
(c)
The gaming operation shall not employ as a key employee or primary
management official a person who does not have a license after ninety
(90) days.
17.07.07 Report to the National Indian Gaming Commission
(a) Pursuant
to the procedures set out in subsection 17.07.06 of this section,
the Gaming Commission shall prepare and forward to the National Indian
Gaming Commission an investigative report on each background investigation.
An investigative report shall include all of the following:
(i)
Steps taken in conducting a background investigation;
(ii)
Results obtained;
(iii)
Conclusions reached; and
(iv)
The basis for those conclusions;
(b)
The Gaming Commission shall submit, with the report, a copy of the
eligibility determination made under subsection 17.07.05 of this section.
(c)
If a license is not issued to an applicant, the Gaming Commission:
(i)
Shall notify the National Indian Gaming Commission; and
(ii)
May forward copies of its eligibility determination and investigative
report (if any) to the National Indian Gaming Commission for inclusion
in the Indian Gaming Individuals Records System.
(d)
With respect to key employees and primary management officials, the
Gaming Commission shall retain applications for employment and reports
(if any) of background investigations for inspection by the Chairman
of the National Indian Gaming Commission or his or her designee for
no less than three (3) years from the date of termination of employment.
17.07.08 Licenses
(a) Licensing
Requirements. It is the declared policy of the Tribe that all
Gaming Activities be licensed and controlled so as to protect the
morals, good order and welfare of Tribal Members and other persons
on the Reservation and to preserve the honesty, fairness and integrity
of such Gaming Activities. Accordingly, no person shall engage in
any Class II or Class III Gaming Activities on the Reservation without
an appropriate and valid Independent Class II or Class III license
issued by the Gaming Commission. Any gaming license which is issued,
or finding of suitability or approval by the Gaming Commission, shall
be deemed a privilege subject to suspension or revocation. No license
shall be issued that would place the Tribe in violation of the IGRA
and regulations promulgated thereunder and, as applicable, provisions
of a tribal-state compact, or of any applicable law.
(b)
Burden on Applicant. The burden of proving an applicant's qualification
to receive any license hereunder is at all times on the applicant.
Applicants must accept any risk of adverse public notice, embarrassment
or other action which may result from the application process and
expressly waive any claim for damages as a result thereof.
(c)
Applicant Claim of Privilege. An applicant may claim any privilege
afforded by law in connection with a gaming license application or
investigation, but a claim of privilege with respect to any testimony
or evidence pertaining thereto may constitute sufficient grounds for
denial, suspension or revocation.
(d)
Release of Information. All persons applying for a license
shall agree to release all information necessary in order for the
Gaming Commission to achieve its goals under this Act, and to furnish
such information to the Bureau of Indian Affairs, the NIGC, or such
other governmental agency as it may be required by law.
(e)
Types of Licenses. Three classes of licenses (Class A, Class
B, and Class C) shall be issued to persons and entities associated
with Gaming Activities.
(i)
Class A License. Before permitting any person to become permanently
associated with the Gaming Activities as an investor, management
entity, or other person owning or controlling ten percent (10%)
or more of any interest in any management entity, or any Primary
Management Official, Key Employee, Closely Associated Independent
Contractor, or other individual or entity with influence over the
management or operation of the gaming, or a Class II or Class III
gaming employee, supplier, manufacturer or distributor, such person
shall obtain a Class A license. The Gaming Commission shall conduct
or cause to be conducted a background investigation to determine
if such person has:
(A) Any criminal record or any reputation, prior activities, habits
or associations which might pose a threat to the public interest
or to the effective regulation of gaming.
(B)
Anything else in their background which might create or enhance
the dangers of unsuitable, unfair, or illegal practices and methods
and activities in the conduct of gaming.
Persons who do not meet the above qualifications shall be denied
a Class A license.
(ii)
Class B License. Persons who are not among those identified
in subsection (1) above, but are to be employed at a gaming facility
on the Reservation in some other capacity, such as in non-gaming
related activities, shall be required to obtain a Class B license
from the Gaming Commission. Such persons must establish that they
have not been convicted of a crime, or engaged in any activity,
which the Gaming Commission in its sole discretion deems would render
such person a danger to the safety or integrity of the Gaming Activities
or the safety or property of the Tribe, any Tribal Member, any gaming
employee or patron, or the public.
(iii)
Class C License. Minors (persons under 18 years of age) employed
at a gaming facility on the Reservation may be issued a Class C
license, which will entitle them to work in any position for which
a Class B license is required for adults and not otherwise prohibited
by law, provided such minors are not deemed by the Gaming Commission
to pose any threat to the safety or integrity of the Gaming Activities
or to the safety or property of the Tribe, any Tribal Member, any
gaming employee or patron, or the public. The Class C license shall
be valid for no more than six (6) months before renewal, and shall
be revoked upon the minor's reaching the age of eighteen (18), at
which time a Class A or Class B license, as may be appropriate,
will be required. Minors shall not be employed as dealers or otherwise
to operate or supervise the operations of games, or to serve liquor.
(f)
License Renewal. Class A and Class B licenses shall be subject
to renewal at least annually, and may be revoked or suspended upon
the occurrence of any act which, if known during the application process,
would have tended to disqualify such person for such a license.
(g)
Temporary Licenses. Pending completion of an investigation for
a license, temporary licenses of no more than ninety (90) days duration
may be issued by the Gaming Commission if in its sole discretion it
deems it appropriate to do so. Such licenses shall permit the licensee
to engage in such activities and pursuant to such terms and conditions
as may be specified by the Gaming Commission. Such temporary licenses
shall expire ninety (90) days from date of issuance, upon issuance
of a regular license, or until an earlier specified expiration date,
whichever occurs first. Only one temporary permit shall be issued
to any one applicant.
(h) License
Investigations. The Gaming Commission may employ all reasonable
means, including the engagement of outside services and investigators
and the holding of hearings, to acquire the information necessary
to determine whether or not a license should be issued. Applicants
shall also agree to release all information necessary in order for
the Gaming Commission to achieve its goals under this section and
to furnish such information to the Bureau of Indian Affairs, the NIGC,
or such other agency as may be required by law.
(i)
License Fees. Unless specifically waived by the Gaming Commission,
all license applicants shall be required to pay all applicable license
fees and costs when due, including a reasonable deposit for costs
incurred in obtaining information in connection with the license application.
Estimates of licensing costs shall be provided to applicants upon
reasonable request. Payment for all fees and costs must be received
by the Gaming Commission prior to issuance of the license.
(j)
Standards. All persons engaged by or associated with any Gaming
Activities on the Reservation shall conduct themselves with honesty,
integrity, and with such decorum and manners as may be necessary to
reflect positively on the Tribe, its members and the Gaming Activities
involved. Any failure to abide by such standards, or any violation
of any rule, ordinance, custom or tradition of the Tribe, the Reservation
or the Gaming Activities, or the terms or conditions of the license,
may be grounds for immediate suspension or revocation of any license
issued hereunder.
(k)
Appeals. All decisions of the Gaming Commission regarding the
issuance or revocation of licenses shall be final and effective when
issued. An applicant or licensee whose license is denied, revoked
or suspended may, within fifteen (15) days after the date of receipt
of a written decision of the Gaming Commission, file a petition with
the Gaming Commission requesting a hearing to reconsider the decision.
Any Tribal Member who is denied a license by the Gaming Commission
may, within sixty (60) days of written notice of such denial, appeal
the denial to the Gaming Commission, which shall have the power to
reverse its prior decision and order that such license be issued,
provided that no such license shall be issued for more than
one (1) year, subject to the renewal procedure set forth herein, and
provided further that no order of the Gaming Commission that a
license be issued shall be valid if such issuance would place the
Tribe in violation of any tribal-state compact to which the Tribe
is a party, or of any applicable law.
17.07.09 License Suspension
(a) If,
after the issuance of a gaming license, the Tribe receives from the
National Indian Gaming Commission reliable information indicating
that a key employee or a primary management official is not eligible
for employment under subsection 17.07.05 above, the Gaming Commission
shall suspend such license and shall notify in writing the licensee
of the suspension and the proposed revocation.
(b)
The Gaming Commission shall notify the licensee of a time and a place
for a hearing on the proposed revocation of a license.
(c)
After a revocation hearing, the Gaming Commission shall decide to
revoke or to reinstate a gaming license. The Gaming Commission shall
notify the National Indian Gaming Commission of its decision.
Section
17.08 - License Locations
17.08.01 License Locations
The Tribe
shall issue a separate license to each place, facility or location on
Indian lands where Class II and Class III gaming is conducted under
this ordinance.
Section
17.09 - Repeal
17.09.01 Repeal
All prior
gaming ordinances are hereby repealed.
Section
17.10 - Amendments
17.10.01 Amendments
All provisions
of this Act are subject to revision, repeal or amendment by the Tribal
Council at any time. Regulations promulgated by the Gaming Commission
under this Act are subject to revision, repeal or amendment by the Gaming
Commission at any time.
Section
17.11 - Sovereign Immunity
17.11.01 Sovereign Immunity Preserved
Nothing
in this Act is intended or shall be construed as a waiver of the sovereign
immunity of the Tribe; and no manager, officer or employee of the Gaming
Commission or the Tribe shall be authorized, nor shall they attempt,
to waive the immunity of the Tribe.
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