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Nisqually Tribal Code

March 2003 Edition

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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