The California Tribal-State
Compact
After many years
of negotiations with the state of California, 61 federally
recognized tribes finalized their tribal-state compacts in
September 1999. These tribal-state compacts are required by
IGRA for tribes wishing to enter into Class III gaming. In
2003, Governor Gray Davis negotiated three new compacts with
previously non-compacted tribes. In 2004, Governor Arnold
Schwarzenegger negotiated three radically new compacts (one
of which has not been ratified by the state legislature) and
renegotiated amendments to the existing 1999 compacts of seven
tribes.
Some of the key
components of the 1999 compact are:
The new compacts
permit Nevada-style slot machines and banked games like Blackjack.
The compact limits each reservation to two
casinos and no more than a total of 2,000 machines.
The compact provides a "draw" system
for gaming and non-gaming tribes to receive licenses for their slot
machines. This permits tribes new to gaming an opportunity to
"catch up" to existing casinos.
The compact provides a revenue-sharing plan
paid into by the tribes that will be distributed to the non-gaming
tribes. There are no guarantees on how much each tribe that chooses to
remain non-gaming will receive.
The compact also provides strict guidelines and
state assistance if required for the licensing of all employees and
vendors affiliated with the casino.
The compact requires the Tribal Gaming
Commission to conduct thorough background checks on proposed employees.
The compact provides guidelines for employee/employer hearings and how
to suspend or revoke gaming licenses.
The compact creates a State Gaming Commission
that makes a "determination of suitability" on all applicants.
The compact reinforces the responsibilities of
the Tribal Gaming Commission.
The compact provides the steps for resolutions
of disputes.
The compact requires that gaming tribes have a
$5 million patron liability insurance policy.
The tribal-state compact requires the tribe to
adopt standards that are no less stringent than:
- The State's food and beverage code.
- Federal safe water standards.
- UBC or local code standards.
- Federal workplace and OSHA standards.
- Tribal health and safety standards.
- Federal and state laws prohibiting
discrimination (but not prohibiting tribal preference).
- Tribal and state laws prohibiting the
cashing of welfare/social security checks.
- Prohibits free or reduced drink prices.
- Prohibits extensions of credit.
- Adequate emergency medical and fire
services.
- Participation in state's or comparable
Workers' Compensation program.
- Participation in state's unemployment
insurance program.
- Withholding of all required state and SUI
taxes (excludes tribal members).
The Tribe must adopt a labor ordinance
permitting employees to organize and select a union by secret ballot.
If alcohol is served, the tribe must follow all
applicable Alcohol Beverage Controls.
Firearms are strictly prohibited except for
authorized law enforcement personnel.
The tribe will adopt an off-reservation
environmental impact study.
Prior to commencing any project, the tribe
will:
- Inform public of project.
- Determine any significant off-reservation
environmental impacts.
- Submit tribal reports to State Clearinghouse
and county superintendent boards.
- Consult with board and city council to
discuss mitigation.
- Meet and receive public comments.
During project, the tribe will:
- Keep board and city council informed of
progress.
- Make good-faith efforts to mitigate any and
all significant adverse environmental impacts.
The California voters passed Proposition 1A in
March 2000 that approved Indian gaming on reservation lands.
Soon after, in May 2000, the tribal-state
compacts received approval from the Bureau of Indian Affairs and those
terms became effective immediately.
TRIBAL-STATE
GAMING COMPACT
Between
the *1, a federally recognized Indian Tribe,
and the
STATE OF CALIFORNIA
This
Tribal-State Gaming Compact is entered into on a
government-to-government basis by and between the *1, a
federally-recognized sovereign Indian tribe (hereafter
"Tribe"), and the State of California, a sovereign State of
the United States (hereafter "State"), pursuant to the Indian
Gaming Regulatory Act of 1988 (P.L. 100-497, codified at 18 U.S.C. Sec.
1166 et seq. and 25 U.S.C. Sec. 2701 et seq.) (hereafter "IGRA"),
and any successor statute or amendments.
PREAMBLE
A.
In 1988, Congress enacted IGRA as the federal statute governing Indian
gaming in the United States. The purposes of IGRA are to provide a
statutory basis for the operation of gaming by Indian tribes as a means
of promoting tribal economic development, self-sufficiency, and strong
tribal governments; to provide a statutory basis for regulation of
Indian gaming adequate to shield it from organized crime and other
corrupting influences; to ensure that the Indian tribe is the primary
beneficiary of the gaming operation; to ensure that gaming is conducted
fairly and honestly by both the operator and players; and to declare
that the establishment of an independent federal regulatory authority
for gaming on Indian lands, federal standards for gaming on Indian
lands, and a National Indian Gaming Commission are necessary to meet
congressional concerns.
B.
The system of regulation of Indian gaming fashioned by Congress in IGRA
rests on an allocation of regulatory jurisdiction among the three
sovereigns involved: the federal government, the state in which a tribe
has land, and the tribe itself. IGRA makes Class III gaming activities
lawful on the lands of federally-recognized Indian tribes only if such
activities are: (1) authorized by a tribal ordinance, (2) located in a
state that permits such gaming for any purpose by any person,
organization or entity, and (3) conducted in conformity with a gaming
compact entered into between the Indian tribe and the state and approved
by the Secretary of the Interior.
C-1.
The Tribe is currently operating a tribal gaming casino offering Class
III gaming activities on its land. On September 1, 1999, the largest
number of Gaming Devices operated by the Tribe was *2.
C-2.
[ALTERNATE PARAGRAPH] The Tribe does not currently operate a gaming
facility that offers Class III gaming activities. However, on or after
the effective date of this Compact, the Tribe intends to develop and
operate a gaming facility offering Class III gaming activities on its
reservation land, which is located in *3 County of California.
D.
The State enters into this Compact out of respect for the sovereignty of
the Tribe; in recognition of the historical fact that Indian gaming has
become the single largest revenue-producing activity for Indian tribes
in the United States; out of a desire to terminate pending "bad
faith" litigation between the Tribe and the State; to initiate a
new era of tribal-state cooperation in areas of mutual concern; out of a
respect for the sentiment of the voters of California who, in approving
Proposition 5, expressed their belief that the forms of gaming
authorized herein should be allowed; and in anticipation of voter
approval of SCA 11 as passed by the California legislature.
E.
The exclusive rights that Indian tribes in California, including the
Tribe, will enjoy under this Compact create a unique opportunity for the
Tribe to operate its Gaming Facility in an economic environment free of
competition from the Class III gaming referred to in Section 4.0 of this
Compact on non-Indian lands in California. The parties are mindful that
this unique environment is of great economic value to the Tribe and the
fact that income from Gaming Devices represents a substantial portion of
the tribes’ gaming revenues. In consideration for the exclusive rights
enjoyed by the tribes, and in further consideration for the State’s
willingness to enter into this Compact, the tribes have agreed to
provide to the State, on a sovereign-to-sovereign basis, a portion of
its revenue from Gaming Devices.
F.
The State has a legitimate interest in promoting the purposes of IGRA
for all federally-recognized Indian tribes in California, whether gaming
or non-gaming. The State contends that it has an equally legitimate
sovereign interest in regulating the growth of Class III gaming
activities in California. The Tribe and the State share a joint
sovereign interest in ensuring that tribal gaming activities are free
from criminal and other undesirable elements.
Section
1.0. PURPOSES AND OBJECTIVES.
The
terms of this Gaming Compact are designed and intended to:
(a)
Evidence the goodwill and cooperation of the Tribe and State in
fostering a mutually respectful government-to-government relationship
that will serve the mutual interests of the parties.
(b)
Develop and implement a means of regulating Class III gaming, and only
Class III gaming, on the Tribe's Indian lands to ensure its fair and
honest operation in accordance with IGRA, and through that regulated
Class III gaming, enable the Tribe to develop self-sufficiency, promote
tribal economic development, and generate jobs and revenues to support
the Tribe's government and governmental services and programs.
(c)
Promote ethical practices in conjunction with that gaming, through the
licensing and control of persons and entities employed in, or providing
goods and services to, the Tribe's Gaming Operation and protecting
against the presence or participation of persons whose criminal
backgrounds, reputations, character, or associations make them
unsuitable for participation in gaming, thereby maintaining a high level
of integrity in tribal government gaming.
Sec.
2.0. DEFINITIONS.
Sec.
2.1. "Applicant" means an individual or entity that applies
for a Tribal license or State certification.
Sec.
2.2. "Association" means an association of California tribal
and state gaming regulators, the membership of which comprises up to two
representatives from each tribal gaming agency of those tribes with whom
the State has a gaming compact under IGRA, and up to two delegates each
from the state Division of Gambling Control and the state Gambling
Control Commission.
Sec.
2.3. "Class III gaming" means the forms of Class III gaming
defined as such in 25 U.S.C. Sec. 2703(8) and by regulations of the
National Indian Gaming Commission.
Sec.
2.4. "Gaming Activities" means the Class III gaming activities
authorized under this Gaming Compact.
Sec.
2.5. "Gaming Compact" or "Compact" means this
compact.
Sec.
2.6. "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.
Sec.
2.7. "Gaming Employee" means any person who (a) operates,
maintains, repairs, assists in any Class III gaming activity, 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 Agency 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.
Sec.
2.8. "Gaming Facility" or "Facility" 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 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.
Sec.
2.9. "Gaming Operation" means the business enterprise that
offers and operates Class III Gaming Activities, whether exclusively or
otherwise.
Sec.
2.10. "Gaming Ordinance" means a tribal ordinance or
resolution duly authorizing the conduct of Class III Gaming Activities
on the Tribe's Indian lands and approved under IGRA.
Sec.
2.11. "Gaming Resources" means any goods or services provided
or used in connection with Class III Gaming Activities, whether
exclusively or otherwise, including, but not limited to, equipment,
furniture, gambling devices and ancillary equipment, implements of
gaming activities such as playing cards and dice, furniture designed
primarily for Class III gaming activities, maintenance or security
equipment and services, and Class III gaming consulting services.
"Gaming Resources" does not include professional accounting
and legal services.
Sec.
2.12. "Gaming Resource Supplier" means any person or entity
who, directly or indirectly, manufactures, distributes, supplies, vends,
leases, or otherwise purveys Gaming Resources to the Gaming Operation or
Gaming Facility, provided that the Tribal Gaming Agency may exclude a
purveyor of equipment or furniture that is not specifically designed
for, and is distributed generally for use other than in connection with,
Gaming Activities, if the purveyor is not otherwise a Gaming Resource
Supplier as described by of Section 6.4.5, the compensation received by
the purveyor is not grossly disproportionate to the value of the goods
or services provided, and the purveyor is not otherwise a person who
exercises a significant influence over the Gambling Operation.
Sec.
2.13. "IGRA" means the Indian Gaming Regulatory Act of 1988 (P.L.
100-497, 18 U.S.C. Sec. 1166 et seq. and 25 U.S.C. Sec. 2701 et seq.)
any amendments thereto, and all regulations promulgated thereunder.
Sec.
2.14. "Management Contractor" means any Gaming Resource
Supplier with whom the Tribe has contracted for the management of any
Gaming Activity or Gaming Facility, including, but not limited to, any
person who would be regarded as a management contractor under IGRA.
Sec.
2.15. "Net Win" means "net win" as defined by
American Institute of Certified Public Accountants.
Sec.
2.16. "NIGC" means the National Indian Gaming Commission.
Sec.
2.17. "State" means the State of California or an authorized
official or agency thereof.
Sec.
2.18. "State Gaming Agency" means the entities authorized to
investigate, approve, and regulate gaming licenses pursuant to the
Gambling Control Act (Chapter 5 (commencing with Section 19800) of
Division 8 of the Business and Professions Code).
Sec.
2.19. "Tribal Chairperson" means the person duly elected or
selected under the Tribe's organic documents, customs, or traditions to
serve as the primary spokesperson for the Tribe.
Sec.
2.20. "Tribal Gaming Agency" means the person, agency, board,
committee, commission, or council designated under tribal law,
including, but not limited to, an intertribal gaming regulatory agency
approved to fulfill those functions by the National Indian Gaming
Commission, as primarily responsible for carrying out the Tribe's
regulatory responsibilities under IGRA and the Tribal Gaming Ordinance.
No person employed in, or in connection with, the management,
supervision, or conduct of any gaming activity may be a member or
employee of the Tribal Gaming Agency.
Sec.
2.21. "Tribe" means the (tribal name), a federally-recognized
Indian tribe, or an authorized official or agency thereof.
Sec.
3.0 CLASS III GAMING AUTHORIZED AND PERMITTED. The Tribe is hereby
authorized and permitted to engage in only the Class III Gaming
Activities expressly referred to in Section 4.0 and shall not engage in
Class III gaming that is not expressly authorized in that Section.
Sec.
4.0. SCOPE OF CLASS III GAMING.
Sec.
4.1. Authorized and Permitted Class III gaming. The Tribe is hereby
authorized and permitted to operate the following Gaming Activities
under the terms and conditions set forth in this Gaming Compact:
(a)
The operation of Gaming Devices.
(b)
Any banking or percentage card game.
(c)
The operation of any devices or games that are authorized under state
law to the California State Lottery, provided that the Tribe will not
offer such games through use of the Internet unless others in the state
are permitted to do so under state and federal law.
(e)
Nothing herein shall be construed to preclude negotiation of a separate
compact governing the conduct of off-track wagering at the Tribe’s
Gaming Facility.
Sec.
4.2. Authorized Gaming Facilities. The Tribe may establish and operate
not more than two Gaming Facilities, and only on those Indian lands on
which gaming may lawfully be conducted under the Indian Gaming
Regulatory Act. The Tribe may combine and operate in each Gaming
Facility any forms and kinds of gaming permitted under law, except to
the extent limited under IGRA, this Compact, or the Tribe's Gaming
Ordinance.
Sec.
4.3. Sec. 4.3. Authorized number of Gaming Devices
Sec.
4.3.1 The Tribe may operate no more Gaming Devices than the larger of
the following:
(a)
A number of terminals equal to the number of Gaming Devices operated by
the Tribe on September 1, 1999; or
(b)
Three hundred fifty (350) Gaming Devices.
Sec.
4.3.2. Revenue Sharing with Non-Gaming Tribes.
(a)
For the purposes of this Section 4.3.2 and Section 5.0, the following
definitions apply:
(i)
A "Compact Tribe" is a tribe having a compact with the State
that authorizes the Gaming Activities authorized by this Compact.
Federally-recognized tribes that are operating fewer than 350 Gaming
Devices are "Non-Compact Tribes." Non-Compact Tribes shall be
deemed third party beneficiaries of this and other compacts identical in
all material respects. A Compact Tribe that becomes a Non-Compact Tribe
may not thereafter return to the status of a Compact Tribe for a period
of two years becoming a Non-Compact Tribe.
(ii)
The Revenue Sharing Trust Fund is a fund created by the Legislature and
administered by the California Gambling Control Commission, as Trustee,
for the receipt, deposit, and distribution of monies paid pursuant to
this Section 4.3.2.
(iii)
The Special Distribution Fund is a fund created by the Legislature for
the receipt, deposit, and distribution of monies paid pursuant to
Section 5.0.
Sec.
4.3.2.1. Revenue Sharing Trust Fund.
(a)
The Tribe agrees with all other Compact Tribes that are parties to
compacts having this Section 4.3.2, that each Non-Compact Tribe in the
State shall receive the sum of $1.1 million per year. In the event there
are insufficient monies in the Revenue Sharing Trust Fund to pay $1.1
million per year to each Non-Compact Tribe, any available monies in that
Fund shall be distributed to Non-Compact Tribes in equal shares. Monies
in excess of the amount necessary to $1.1 million to each Non-Compact
Tribe shall remain in the Revenue Sharing Trust Fund available for
disbursement in future years.
(b)
Payments made to Non-Compact Tribes shall be made quarterly and in equal
shares out of the Revenue Sharing Trust Fund. The Commission shall serve
as the trustee of the fund. The Commission shall have no discretion with
respect to the use or disbursement of the trust funds. Its sole
authority shall be to serve as a depository of the trust funds and to
disburse them on a quarterly basis to Non-Compact Tribes. In no event
shall the State’s General Fund be obligated to make up any shortfall
or pay any unpaid claims.
Sec.
4.3.2.2. Allocation of Licenses.
(a)
The Tribe, along with all other Compact Tribes, may acquire licenses to
use Gaming Devices in excess of the number they are authorized to use
under Sec. 4.3.1, but in no event may the Tribe operate more than 2,000
Gaming Devices, on the following terms, conditions, and priorities:
(1).
The maximum number of machines that all Compact Tribes in the aggregate
may license pursuant to this Section shall be a sum equal to 350
multiplied by the number of Non-Compact tribes as of September 1, 1999,
plus the difference between 350 and the lesser number authorized under
Section 4.3.1.
(2)
The Tribe may acquire and maintain a license to operate a Gaming Device
by paying into the Revenue Sharing Trust Fund, on a quarterly basis, in
the following amounts:
|
Number
of Licensed Devices
|
Fee
Per Device Per Annum
|
|
|
|
|
1-350
|
$0
|
|
|
|
|
351-750
|
$900
|
|
|
|
|
751-1250
|
$1950
|
|
|
|
|
1251-2000
|
$4350
|
|
|
|
(3)
Licenses to use Gaming Devices shall be awarded as follows:
(i)
First, Compact Tribes with no Existing Devices (i.e., the number of
Gaming Devices operated by a Compact Tribe as of September 1, 1999) may
draw up to 150 licenses for a total of 500 Gaming Devices;
(ii)
Next, Compact Tribes authorized under Section 4.3.1 to operate up to and
including 500 Gaming Devices as of September 1, 1999 (including tribes,
if any, that have acquired licenses through subparagraph (i)), may draw
up to an additional 500 licenses, to a total of 1000 Gaming Devices;
(iii)
Next, Compact Tribes operating between 501 and 1000 Gaming Devices as of
September 1, 1999 (including tribes, if any, that have acquired licenses
through subparagraph (ii)), shall be entitled to draw up to an
additional 750 Gaming Devices;
(iv)
Next, Compact Tribes authorized to operate up to and including 1500
gaming devices (including tribes, if any, that have acquired licenses
through subparagraph (iii)), shall be entitled to draw up to an
additional 500 licenses, for a total authorization to operate up to 2000
gaming devices.
(v)
Next, Compact Tribes authorized to operate more than 1500 gaming devices
(including tribes, if any, that have acquired licenses through
subparagraph (iv))., shall be entitled to draw additional licenses up to
a total authorization to operate up to 2000 gaming devices.
(vi).
After the first round of draws, a second and subsequent round(s) shall
be conducted utilizing the same order of priority as set forth above.
Rounds shall continue until tribes cease making draws, at which time
draws will be discontinued for one month or until the Trustee is
notified that a tribe desires to acquire a license, whichever last
occurs.
(e)
As a condition of acquiring licenses to operate Gaming Devices, a
non-refundable one-time pre-payment fee shall be required in the amount
of $1,250 per Gaming Device being licensed, which fees shall be
deposited in the Revenue Sharing Trust Fund. The license for any Gaming
Device shall be canceled if the Gaming Device authorized by the license
is not in commercial operation within twelve months of issuance of the
license.
Sec.
4.3.2.3. The Tribe shall not conduct any Gaming Activity authorized by
this Compact if the Tribe is more than two quarterly contributions in
arrears in its license fee payments to the Revenue Sharing Trust Fund.
Sec.
4.3.3. If requested to do so by either party after March 7, 2003, but
not later than March 31, 2003, the parties will promptly commence
negotiations in good faith with the Tribe concerning any matters
encompassed by Sections 4.3.1 and Section 4.3.2, and their subsections.
SEC.
5.0 REVENUE DISTRIBUTION
Sec.
5.1. (a) The Tribe shall make contributions to the Special Distribution
Fund created by the Legislature, in accordance with the following
schedule, but only with respect to the number of Gaming Devices operated
by the Tribe on September 1, 1999:
| Number
of Terminals in Quarterly Device Base |
Percent
of Average Gaming Device Net Win |
| 1
- 200 |
0% |
| 201
– 500 |
7% |
| 501-1000 |
7%
applied to the excess over 200 terminals, up to 500 terminals,
plus 10% applied to terminals over 500 terminals, up to 1000
terminals. |
| 1000+ |
7%
applied to excess over 200, up to 500 terminals, plus 10%
applied to terminals over 500, up to 1000 terminals, plus 13%
applied to the excess above 1000 terminals. |
(b)
The first transfer to the Special Distribution Fund of its share of the
gaming revenue shall made at the conclusion of the first calendar
quarter following the second anniversary date of the effective date of
this Compact.
Sec.
5.2. Use of funds. The State’s share of the Gaming Device revenue
shall be placed in the Special Distribution Fund, available for
appropriation by the Legislature for the following purposes: (a) grants,
including any administrative costs, for programs designed to address
gambling addiction; (b) grants, including any administrative costs, for
the support of state and local government agencies impacted by tribal
government gaming; (c) compensation for regulatory costs incurred by the
State Gaming Agency and the state Department of Justice in connection
with the implementation and administration of the Compact; (d) payment
of shortfalls that may occur in the Revenue Sharing Trust Fund; and (e)
any other purposes specified by the Legislature. It is the intent of the
parties that Compact Tribes will be consulted in the process of
identifying purposes for grants made to local governments.
Sec.
5.3. (a) The quarterly contributions due under Section 5.1 shall be
determined and made not later than the thirtieth (30th) day
following the end of each calendar quarter by first determining the
total number of all Gaming Devices operated by a Tribe during a given
quarter ("Quarterly Device Base"). The "Average Device
Net Win" is calculated by dividing the total Net Win from all
terminals during the quarter by the Quarterly Terminal Base.
(b)
Any quarterly contribution not paid on or before the date on which such
amount is due shall be deemed overdue. If any quarterly contribution
under Section 5.1 is overdue to the Special Distribution Fund, the Tribe
shall pay to the Special Distribution Fund, in addition to the overdue
quarterly contribution, interest on such amount from the date the
quarterly contribution was due until the date such quarterly
contribution (together with interest thereon) was actually paid at the
rate of 1.0% per month or the maximum rate permitted by state law,
whichever is less. Entitlement to such interest shall be in addition to
any other remedies the State may have.
(c)
At the time each quarterly contribution is made, the Tribe shall submit
to the State a report (the "Quarterly Contribution Report")
certified by an authorized representative of the Tribe reflecting the
Quarterly Device Base, the Net Win from all terminals in the Quarterly
Device Base (broken down by Gaming Device), and the Average Device Net
Win.
(d)
If the State causes an audit to be made pursuant to subdivision (c), and
the Average Device Net Win for any quarter as reflected on such quarter’s
Quarterly Contribution Reports is found to be understated, the State
will promptly notify the Tribe, and the Tribe will either accept the
difference or provide a reconciliation satisfactory to the State. If the
Tribe accepts the difference or does not provide a reconciliation
satisfactory to the State, the Tribe must immediately pay the amount of
the resulting deficiencies in the quarterly contribution plus interest
on such amounts from the date they were due at the rate of 1.0% per
month or the maximum rate permitted by applicable law, whichever is
less.
(e)
The Tribe shall not conduct Class III gaming if more than two quarterly
contributions to the Special Distribution Fund are overdue.
Sec.
6.0. LICENSING.
Sec.
6.1. Gaming Ordinance and Regulations. All Gaming Activities conducted
under this Gaming Compact shall, at a minimum, comply with a Gaming
Ordinance duly adopted by the Tribe and approved in accordance with IGRA,
and with all rules, regulations, procedures, specifications, and
standards duly adopted by the Tribal Gaming Agency.
Sec.
6.2. Tribal Ownership, Management, and Control of Gaming Operation. The
Gaming Operations authorized under this Gaming Compact shall be owned
solely by the Tribe.
Sec.
6.3. Prohibition Regarding Minors. (a) Except as provided in subdivision
(b), the Tribe shall not permit persons under the age of 18 years to be
present in any room in which Class III Gaming Activities are being
conducted unless the person is en-route to a non-gaming area of the
Gaming Facility.
(b)
If the Tribe permits the consumption of alcoholic beverages in the
Gaming Facility, the Tribe shall prohibit persons under the age of 21
years from being present in any area in which Class III gaming
activities are being conducted and in which alcoholic beverages may be
consumed, to the extent required by the state Department of Alcoholic
Beverage Control.
Sec.
6.4. Licensing Requirements and Procedures.
Sec.
6.4.1. Summary of Licensing Principles. All persons in any way connected
with the Gaming Operation or Facility who are required to be licensed or
to submit to a background investigation under IGRA, and any others
required to be licensed under this Gaming Compact, including, but not
limited to, all Gaming Employees and Gaming Resource Suppliers, and any
other person having a significant influence over the Gaming Operation
must be licensed by the Tribal Gaming Agency. The parties intend that
the licensing process provided for in this Gaming Compact shall involve
joint cooperation between the Tribal Gaming Agency and the State Gaming
Agency, as more particularly described herein.
Sec.
6.4.2. Gaming Facility. (a) The Gaming Facility authorized by this
Gaming Compact shall be licensed by the Tribal Gaming Agency in
conformity with the requirements of this Gaming Compact, the Tribal
Gaming Ordinance, and IGRA. The license shall be reviewed and renewed,
if appropriate, every two years thereafter. Verification that this
requirement has been met shall be provided by the Tribe to the State
Gaming Agency every two years. The Tribal Gaming Agency's certification
to that effect shall be posted in a conspicuous and public place in the
Gaming Facility at all times.
(b)
In order to protect the health and safety of all Gaming Facility
patrons, guests, and employees, all Gaming Facilities of the Tribe
constructed after the effective date of this Gaming Compact, and all
expansions or modifications to a Gaming Facility in operation as of the
effective date of this Compact, shall meet the building and safety codes
of the Tribe, which, as a condition for engaging in that construction,
expansion, modification, or renovation, shall amend its existing
building and safety codes if necessary, or enact such codes if there are
none, so that they meet the standards of either the building and safety
codes of any county within the boundaries of which the site of the
Facility is located, or the Uniform Building Codes, including all
uniform fire, plumbing, electrical, mechanical, and related codes then
in effect provided that nothing herein shall be deemed to confer
jurisdiction upon any county or the State with respect to any reference
to such building and safety codes. Any such construction, expansion or
modification will also comply with the federal Americans with
Disabilities Act, P.L. 101-336, as amended, 42 U.S.C. § 12101 et seq.
(c)
Any Gaming Facility in which gaming authorized by this Gaming Compact is
conducted shall be issued a certificate of occupancy by the Tribal
Gaming Agency prior to occupancy if it was not used for any Gaming
Activities under IGRA prior to the effective date of this Gaming
Compact, or, if it was so used, within one year thereafter. The issuance
of this certificate shall be reviewed for continuing compliance every
two years thereafter. Inspections by qualified building and safety
experts shall be conducted under the direction of the Tribal Gaming
Agency as the basis for issuing any certificate hereunder. The Tribal
Gaming Agency shall determine and certify that, as to new construction
or new use for gaming, the Facility meets the Tribe's building and
safety code, or, as to facilities or portions of facilities that were
used for the Tribe's Gaming Activities prior to this Gaming Compact,
that the facility or portions thereof do not endanger the health or
safety of occupants or the integrity of the Gaming Operation. The Tribe
will not offer Class III gaming in a Facility that is constructed or
maintained in a manner that endangers the health or safety of occupants
or the integrity of the gaming operation.
(d)
The State shall designate an agent or agents to be given reasonable
notice of each inspection by the Tribal Gaming Agency’s experts, which
state agents may accompany any such inspection. The Tribe agrees to
correct any Gaming Facility condition noted in an inspection that does
not meet the standards set forth in subdivisions (b) and (c). The Tribal
Gaming Agency and the State’s designated agent or agents shall
exchange any reports of an inspection within 10 days after completion of
the report, which reports shall also be separately and simultaneously
forwarded by both agencies to the Tribal Chairperson. Upon certification
by the Tribal Gaming Agency’s experts that a Gaming Facility meets
applicable standards, the Tribal Gaming Agency shall forward the
experts' certification to the State within 10 days of issuance. If the
State’s agent objects to that certification, the Tribe shall make a
good faith effort to address the State's concerns, but if the State does
not withdraw its objection, the matter will be resolved in accordance
with the dispute resolution provisions of Section 9.0.
Sec.
6.4.3. Suitability Standard Regarding Gaming Licenses. (a) In reviewing
an application for a gaming license, and in addition to any standards
set forth in the Tribal Gaming Ordinance, the Tribal Gaming Agency shall
consider whether issuance of the license is inimical to public health,
safety, or welfare, and whether issuance of the license will undermine
public trust that the Tribe's Gaming Operations, or tribal government
gaming generally, are free from criminal and dishonest elements and
would be conducted honestly. A license may not be issued unless, based
on all information and documents submitted, the Tribal Gaming Agency is
satisfied that the applicant is all of the following, in addition to any
other criteria in IGRA or the Tribal Gaming Ordinance:
(a)
A person of good character, honesty, and integrity.
(b)
A person whose prior activities, criminal record (if any), reputation,
habits, and associations do not pose a threat to the public interest or
to the effective regulation and control of gambling, or create or
enhance the dangers of unsuitable, unfair, or illegal practices,
methods, or activities in the conduct of gambling, or in the carrying on
of the business and financial arrangements incidental thereto.
(c)
A person who is in all other respects qualified to be licensed as
provided in this Gaming Compact, IGRA, the Tribal Gaming Ordinance, and
any other criteria adopted by the Tribal Gaming Agency or the Tribe. An
applicant shall not be found to be unsuitable solely on the ground that
the applicant was an employee of a tribal gaming operation in California
that was conducted prior to the effective date of this Compact.
Sec.
6.4.4. Gaming Employees. (a) Every Gaming Employee shall obtain, and
thereafter maintain current, a valid tribal gaming license, which shall
be subject to biennial renewal; provided that in accordance with Section
6.4.9, those persons may be employed on a temporary or conditional basis
pending completion of the licensing process.
(b)
Except as provided in subdivisions (c) and (d), the Tribe will not
employ or continue to employ, any person whose application to the State
Gaming Agency for a determination of suitability, or for a renewal of
such a determination, has been denied or has expired without renewal.
(c)
Notwithstanding subdivision (a), the Tribe may retain in its employ a
person whose application for a determination of suitability, or for a
renewal of such a determination, has been denied by the State Gaming
Agency, if: (i) the person holds a valid and current license issued by
the Tribal Gaming Agency that must be renewed at least biennially; (ii)
the denial of the application by the State Gaming Agency is based solely
on activities, conduct, or associations that antedate the filing of the
person’s initial application to the State Gaming Agency for a
determination of suitability; (iii) the person is not an employee or
agent of any other gaming operation; and (iv) the person has been in the
continuous employ of the Tribe for at least three years prior to the
effective date of this Compact.
(d)
Notwithstanding subdivision (a), the Tribe may employ or retain in its
employ a person whose application for a determination of suitability, or
for a renewal of such a determination, has been denied by the State
Gaming Agency, if the person is an enrolled member of the Tribe, as
defined in this subdivision, and if (i) the person holds a valid and
current license issued by the Tribal Gaming Agency that must be renewed
at least biennially; (ii) the denial of the application by the State
Gaming Agency is based solely on activities, conduct, or associations
that antedate the filing of the person’s initial application to the
State Gaming Agency for a determination of suitability; and (iii) the
person is not an employee or agent of any other gaming operation. For
purposes of this subdivision, "enrolled member" means a person
who is either (a) certified by the Tribe as having been a member of the
Tribe for at least five (5) years, or (b) a holder of confirmation of
membership issued by the Bureau of Indian Affairs.
(e)
Nothing herein shall be construed to relieve any person of the
obligation to apply for a renewal of a determination of suitability as
required by Section 6.5.6.
Sec.
6.4.5. Gaming Resource Supplier. Any Gaming Resource Supplier who,
directly or indirectly, provides, has provided, or is deemed likely to
provide at least twenty-five thousand dollars ($25,000) in Gaming
Resources in any 12-month period, or who has received at least
twenty-five thousand dollars ($25,000) in any consecutive 12-month
period within the 24-month period immediately preceding application,
shall be licensed by the Tribal Gaming Agency prior to the sale, lease,
or distribution, or further sale, lease, or distribution, of any such
Gaming Resources to or in connection with the Tribe's Operation or
Facility. These licenses shall be reviewed at least every two years for
continuing compliance. In connection with such a review, the Tribal
Gaming Agency shall require the Supplier to update all information
provided in the previous application. For purposes of Section 6.5.2,
such a review shall be deemed to constitute an application for renewal.
The Tribe shall not enter into, or continue to make payments pursuant
to, any contract or agreement for the provision of Gaming Resources with
any person whose application to the State Gaming Agency for a
determination of suitability has been denied or has expired without
renewal. Any agreement between the Tribe and a Gaming Resource Supplier
shall be deemed to include a provision for its termination without
further liability on the part of the Tribe, except for the bona fide
repayment of all outstanding sums (exclusive of interest) owed as of, or
payment for services or materials received up to, the date of
termination, upon revocation or non-renewal of the Supplier’s license
by the Tribal Gaming Agency based on a determination of unsuitability by
the State Gaming Agency.
Sec.
6.4.6. Financial Sources. Any person extending financing, directly or
indirectly, to the Tribe's Gaming Facility or Gaming Operation shall be
licensed by the Tribal Gaming Agency prior to extending that financing,
provided that any person who is extending financing at the time of the
execution of this Compact shall be licensed by the Tribal Gaming Agency
within ninety (90) days of such execution. These licenses shall be
reviewed at least every two years for continuing compliance. In
connection with such a review, the Tribal Gaming Agency shall require
the Financial Source to update all information provided in the previous
application. For purposes of Section 6.5.2, such a review shall be
deemed to constitute an application for renewal. Any agreement between
the Tribe and a Financial Source shall be deemed to include a provision
for its termination without further liability on the part of the Tribe,
except for the bona fide repayment of all outstanding sums (exclusive of
interest) owed as of the date of termination, upon revocation or
non-renewal of the Financial Source’s license by the Tribal Gaming
Agency based on a determination of unsuitability by the State Gaming
Agency. The Tribe shall not enter into, or continue to make payments
pursuant to, any contract or agreement for the provision of financing
with any person whose application to the State Gaming Agency for a
determination of suitability has been denied or has expired without
renewal. A Gaming Resource Supplier who provides financing exclusively
in connection with the sale or lease of Gaming Resources obtained from
that Supplier may be licensed solely in accordance with licensing
procedures applicable, if at all, to Gaming Resource Suppliers. The
Tribal Gaming Agency may, at its discretion, exclude from the licensing
requirements of this section, financing provided by a federally
regulated or state-regulated bank, savings and loan, or other federally-
or state-regulated lending institution; or any agency of the federal,
state, or local government; or any investor who, alone or in conjunction
with others, holds less than 10% of any outstanding indebtedness
evidenced by bonds issued by the Tribe.
Sec.
6.4.7. Processing Tribal Gaming License Applications. Each applicant for
a tribal gaming license shall submit the completed application along
with the required information and an application fee, if required, to
the Tribal Gaming Agency in accordance with the rules and regulations of
that agency. At a minimum, the Tribal Gaming Agency shall require
submission and consideration of all information required under IGRA,
including Section 556.4 of Title 25 of the Code of Federal Regulations,
for licensing primary management officials and key employees. For
applicants who are business entities, these licensing provisions shall
apply to the entity as well as: (i) each of its officers and directors;
(ii) each of its principal management employees, including any chief
executive officer, chief financial officer, chief operating officer, and
general manager; (iii) each of its owners or partners, if an
unincorporated business; (iv) each of its shareholders who owns more
than 10 percent of the shares of the corporation, if a corporation; and
(v) each person or entity (other than a financial institution that the
Tribal Gaming Agency has determined does not require a license under the
preceding section) that, alone or in combination with others, has
provided financing in connection with any gaming authorized under this
Gaming Compact, if that person or entity provided more than 10 percent
of (a) the start-up capital, (b) the operating capital over a 12-month
period, or (c) a combination thereof. For purposes of this Section,
where there is any commonality of the characteristics identified in
clauses (i) to (v), inclusive, between any two or more entities, those
entities may be deemed to be a single entity. Nothing herein precludes
the Tribe or Tribal Gaming Agency from requiring more stringent
licensing requirements.
Sec.
6.4.8. Background Investigations of Applicants. The Tribal Gaming Agency
shall conduct or cause to be conducted all necessary background
investigations reasonably required to determine that the applicant is
qualified for a gaming license under the standards set forth in Section
6.4.3, and to fulfill all requirements for licensing under IGRA, the
Tribal Gaming Ordinance, and this Gaming Compact. The Tribal Gaming
Agency shall not issue other than a temporary license until a
determination is made that those qualifications have been met. In lieu
of completing its own background investigation, and to the extent that
doing so does not conflict with or violate IGRA or the Tribal Gaming
Ordinance, the Tribal Gaming Agency may contract with the State Gaming
Agency for the conduct of background investigations, may rely on a state
certification of non-objection previously issued under a gaming compact
involving another tribe, or may rely on a State gaming license
previously issued to the applicant, to fulfill some or all of the Tribal
Gaming Agency's background investigation obligation. An applicant for a
tribal gaming license shall be required to provide releases to the State
Gaming Agency to make available to the Tribal Gaming Agency background
information regarding the applicant. The State Gaming Agency shall
cooperate in furnishing to the Tribal Gaming Agency that information,
unless doing so would violate any agreement the State Gaming Agency has
with a source of the information other than the applicant, or would
impair or impede a criminal investigation, or unless the Tribal Gaming
Agency cannot provide sufficient safeguards to assure the State Gaming
Agency that the information will remain confidential or that provision
of the information would violate state or federal law. If the Tribe
adopts an ordinance confirming that Article 6 (commencing with section
11140) of Chapter 1 of Title 1 of Part 4 of the California Penal Code is
applicable to members, investigators, and staff of the Tribal Gaming
Agency, and those members, investigators, and staff thereafter comply
with that ordinance, then, for purposes of carrying out its obligations
under this Section, the Tribal Gaming Agency shall be considered to be
an entity entitled to receive state summary criminal history information
within the meaning of subdivision (b)(12) of section 11105 of the
California Penal Code. The California Department of Justice shall
provide services to the Tribal Gaming Agency through the California Law
Enforcement Telecommunications System (CLETS), subject to a
determination by the CLETS advisory committee that the Tribal Gaming
Agency is qualified for receipt of such services, and on such terms and
conditions as are deemed reasonable by that advisory committee.
Sec.
6.4.9. Temporary Licensing of Gaming Employees. Notwithstanding anything
herein to the contrary, if the applicant has completed a license
application in a manner satisfactory to the Tribal Gaming Agency, and
that agency has conducted a preliminary background investigation, and
the investigation or other information held by that agency does not
indicate that the applicant has a criminal history or other information
in his or her background that would either automatically disqualify the
applicant from obtaining a license or cause a reasonable person to
investigate further before issuing a license, or is otherwise unsuitable
for licensing, the Tribal Gaming Agency may issue a temporary license
and may impose such specific conditions thereon pending completion of
the applicant's background investigation, as the Tribal Gaming Agency in
its sole discretion shall determine. Special fees may be required by the
Tribal Gaming Agency to issue or maintain a temporary license. A
temporary license shall remain in effect until suspended or revoked, or
a final determination is made on the application. At any time after
issuance of a temporary license, the Tribal Gaming Agency may suspend or
revoke it in accordance with Sections 6.5.1 or 6.5.5, and the State
Gaming Agency may request suspension or revocation in accordance with
subdivision (d) of Section 6.5.6. Nothing herein shall be construed to
relieve the Tribe of any obligation under Part 558 of Title 25 of the
Code of Federal Regulations.
Sec.
6.5. Gaming License Issuance. Upon completion of the necessary
background investigation, the Tribal Gaming Agency may issue a license
on a conditional or unconditional basis. Nothing herein shall create a
property or other right of an applicant in an opportunity to be
licensed, or in a license itself, both of which shall be considered to
be privileges granted to the applicant in the sole discretion of the
Tribal Gaming Agency.
Sec.
6.5.1. Denial, Suspension, or Revocation of Licenses. (a) Any
application for a gaming license may be denied, and any license issued
may be revoked, if the Tribal Gaming Agency determines that the
application is incomplete or deficient, or if the applicant is
determined to be unsuitable or otherwise unqualified for a gaming
license. Pending consideration of revocation, the Tribal Gaming Agency
may suspend a license in accordance with Section 6.5.5. All rights to
notice and hearing shall be governed by tribal law, as to which the
applicant will be notified in writing along with notice of an intent to
suspend or revoke the license.
(b)
(i) Except as provided in paragraph (ii) below, upon receipt of notice
that the State Gaming Agency has determined that a person would be
unsuitable for licensure in a gambling establishment subject to the
jurisdiction of the State Gaming Agency, the Tribal Gaming Agency shall
promptly revoke any license that has theretofore been issued to the
person; provided that the Tribal Gaming Agency may, in its discretion,
re-issue a license to the person following entry of a final judgment
reversing the determination of the State Gaming Agency in a proceeding
in state court conducted pursuant to section 1085 of the California
Civil Code.
(ii)
Notwithstanding a determination of unsuitability by the State Gaming
Agency, the Tribal Gaming Agency may, in its discretion, decline to
revoke a tribal license issued to a person employed by the Tribe
pursuant to Section 6.4.4(c) or Section 6.4.4(d).
Sec.
6.5.2. Renewal of Licenses; Extensions; Further Investigation. The term
of a tribal gaming license shall not exceed two years, and application
for renewal of a license must be made prior to its expiration.
Applicants for renewal of a license shall provide updated material as
requested, on the appropriate renewal forms, but, at the discretion of
the Tribal Gaming Agency, may not be required to resubmit historical
data previously submitted or that is otherwise available to the Tribal
Gaming Agency. At the discretion of the Tribal Gaming Agency, an
additional background investigation may be required at any time if the
Tribal Gaming Agency determines the need for further information
concerning the applicant's continuing suitability or eligibility for a
license. Prior to renewing a license, the Tribal Gaming Agency shall
deliver to the State Gaming Agency copies of all information and
documents received in connection with the application for renewal.
Sec.
6.5.3. Identification Cards. The Tribal Gaming Agency shall require that
all persons who are required to be licensed wear, in plain view at all
times while in the Gaming Facility, identification badges issued by the
Tribal Gaming Agency. Identification badges must display information
including, but not limited to, a photograph and an identification number
that is adequate to enable agents of the Tribal Gaming Agency to readily
identify the person and determine the validity and date of expiration of
his or her license.
Sec.
6.5.4. Fees for Tribal License. The fees for all tribal licenses shall
be set by the Tribal Gaming Agency.
Sec.
6.5.5. Suspension of Tribal License. The Tribal Gaming Agency may
summarily suspend the license of any employee if the Tribal Gaming
Agency determines that the continued licensing of the person or entity
could constitute a threat to the public health or safety or may violate
the Tribal Gaming Agency’s licensing or other standards. Any right to
notice or hearing in regard thereto shall be governed by Tribal law.
Sec.
6.5.6. State Certification Process. (a) Upon receipt of a completed
license application and a determination by the Tribal Gaming Agency that
it intends to issue the earlier of a temporary or permanent license, the
Tribal Gaming Agency shall transmit to the State Gaming Agency a notice
of intent to license the applicant, together with all of the following:
(i) a copy of all tribal license application materials and information
received by the Tribal Gaming Agency from the applicant; (ii) an
original set of fingerprint cards; (iii) a current photograph; and (iv)
except to the extent waived by the State Gaming Agency, such releases of
information, waivers, and other completed and executed forms as have
been obtained by the Tribal Gaming Agency. Except for an applicant for
licensing as a non-key Gaming Employee, as defined by agreement between
the Tribal Gaming Agency and the State Gaming Agency, the Tribal Gaming
Agency shall require the applicant also to file an application with the
State Gaming Agency, prior to issuance of a temporary or permanent
tribal gaming license, for a determination of suitability for licensure
under the California Gambling Control Act. Investigation and disposition
of that application shall be governed entirely by state law, and the
State Gaming Agency shall determine whether the applicant would be found
suitable for licensure in a gambling establishment subject to that
Agency’s jurisdiction. Additional information may be required by the
State Gaming Agency to assist it in its background investigation,
provided that such State Gaming Agency requirement shall be no greater
than that which may be required of applicants for a State gaming license
in connection with nontribal gaming activities and at a similar level of
participation or employment. A determination of suitability is valid for
the term of the tribal license held by the applicant, and the Tribal
Gaming Agency shall require a licensee to apply for renewal of a
determination of suitability at such time as the licensee applies for
renewal of a tribal gaming license. The State Gaming Agency and the
Tribal Gaming Agency (together with tribal gaming agencies under other
gaming compacts) shall cooperate in developing standard licensing forms
for tribal gaming license applicants, on a statewide basis, that reduce
or eliminate duplicative or excessive paperwork, which forms and
procedures shall take into account the Tribe's requirements under IGRA
and the expense thereof.
(b)
Background Investigations of Applicants. Upon receipt of completed
license application information from the Tribal Gaming Agency, the State
Gaming Agency may conduct a background investigation pursuant to state
law to determine whether the applicant would be suitable to be licensed
for association with a gambling establishment subject to the
jurisdiction of the State Gaming Agency. If further investigation is
required to supplement the investigation conducted by the Tribal Gaming
Agency, the applicant will be required to pay the statutory application
fee charged by the State Gaming Agency pursuant to California Business
and Professions Code section 19941(a), but any deposit requested by the
State Gaming Agency pursuant to section 19855 of that Code shall take
into account reports of the background investigation already conducted
by the Tribal Gaming Agency and the NIGC, if any. Failure to pay the
application fee or deposit may be grounds for denial of the application
by the State Gaming Agency. The State Gaming Agency and Tribal Gaming
Agency shall cooperate in sharing as much background information as
possible, both to maximize investigative efficiency and thoroughness,
and to minimize investigative costs. Upon completion of the necessary
background investigation or other verification of suitability, the State
Gaming Agency shall issue a notice to the Tribal Gaming Agency
certifying that the State has determined that the applicant would be
suitable, or that the applicant would be unsuitable, for licensure in a
gambling establishment subject to the jurisdiction of the State Gaming
Agency and, if unsuitable, stating the reasons therefor.
(c)
The Tribe shall monthly provide the State Gaming Agency with the name,
badge identification number, and job descriptions of all non-key Gaming
Employees.
(d)
Prior to denying an application for a determination of suitability, the
State Gaming Agency shall notify the Tribal Gaming Agency and afford the
Tribe an opportunity to be heard. If the State Gaming Agency denies an
application for a determination of suitability, that Agency shall
provide the applicant with written notice of all appeal rights available
under state law.
Sec.
7.0. COMPLIANCE ENFORCEMENT.
Sec.
7.1. On-Site Regulation. It is the responsibility of the Tribal Gaming
Agency to conduct on-site gaming regulation and control in order to
enforce the terms of this Gaming Compact, IGRA, and the Tribal Gaming
Ordinance with respect to Gaming Operation and Facility compliance, and
to protect the integrity of the Gaming Activities, the reputation of the
Tribe and the Gaming Operation for honesty and fairness, and the
confidence of patrons that tribal government gaming in California meets
the highest standards of regulation and internal controls. To meet those
responsibilities, the Tribal Gaming Agency shall adopt and enforce
regulations, procedures, and practices as set forth herein.
Sec.
7.2. Investigation and Sanctions. The Tribal Gaming Agency shall
investigate any reported violation of this Gaming Compact and shall
require the Gaming Operation to correct the violation upon such terms
and conditions as the Tribal Gaming Agency determines are necessary. The
Tribal Gaming Agency shall be empowered by the Tribal Gaming Ordinance
to impose fines or other sanctions within the jurisdiction of the Tribe
against gaming licensees or other persons who interfere with or violate
the Tribe's gaming regulatory requirements and obligations under IGRA,
the Tribal Gaming Ordinance, or this Gaming Compact. The Tribal Gaming
Agency shall report significant or continued violations of this Compact
or failures to comply with its orders to the State Gaming Agency.
Sec.
7.3. Assistance by State Gaming Agency. The Tribe may request the
assistance of the State Gaming Agency whenever it reasonably appears
that such assistance may be necessary to carry out the purposes
described in Section 7.1, or otherwise to protect public health, safety,
or welfare. If requested by the Tribe or Tribal Gaming Agency, the State
Gaming Agency shall provide requested services to ensure proper
compliance with this Gaming Compact. The State shall be reimbursed for
its actual and reasonable costs of that assistance, if the assistance
required expenditure of extraordinary costs.
Sec.
7.4. Access to Premises by State Gaming Agency; Notification;
Inspections. Notwithstanding that the Tribe has the primary
responsibility to administer and enforce the regulatory requirements of
this Compact, the State Gaming Agency shall have the right to inspect
the Tribe's Gaming Facility with respect to Class III Gaming Activities
only, and all Gaming Operation or Facility records relating thereto,
subject to the following conditions:
Sec.
7.4.1. Inspection of public areas of a Gaming Facility may be made at
any time without prior notice during normal Gaming Facility business
hours.
Sec.
7.4.2. Inspection of areas of a Gaming Facility not normally accessible
to the public may be made at any time during normal Gaming Facility
business hours, immediately after the State Gaming Agency's authorized
inspector notifies the Tribal Gaming Agency of his or her presence on
the premises, presents proper identification, and requests access to the
non-public areas of the Gaming Facility. The Tribal Gaming Agency, in
its sole discretion, may require a member of the Tribal Gaming Agency to
accompany the State Gaming Agency inspector at all times that the State
Gaming Agency inspector is in a non-public area of the Gaming Facility.
If the Tribal Gaming Agency imposes such a requirement, it shall require
such member to be available at all times for those purposes and shall
ensure that the member has the ability to gain immediate access to all
non-public areas of the Gaming Facility. Nothing in this Compact shall
be construed to limit the State Gaming Agency to one inspector during
inspections.
Sec.
7.4.3. (a) Inspection and copying of Gaming Operation papers, books, and
records may occur at any time, immediately after notice to the Tribal
Gaming Agency, during the normal hours of the Gaming Facility’s
business office, provided that the inspection and copying of those
papers, books or records shall not interfere with the normal functioning
of the Gaming Operation or Facility. Notwithstanding any other provision
of California law, all information and records that the State Gaming
Agency obtains, inspects, or copies pursuant to this Gaming Compact
shall be, and remain, the property solely of the Tribe; provided that
such records and copies may be retained by the State Gaming Agency as
reasonably necessary for completion of any investigation of the Tribe’s
compliance with this Compact.
(b)(i)
The State Gaming Agency will exercise utmost care in the preservation of
the confidentiality of any and all information and documents received
from the Tribe, and will apply the highest standards of confidentiality
expected under state law to preserve such information and documents from
disclosure. The Tribe may avail itself of any and all remedies under
state law for improper disclosure of information or documents. To the
extent reasonably feasible, the State Gaming Agency will consult with
representatives of the Tribe prior to disclosure of any documents
received from the Tribe, or any documents compiled from such documents
or from information received from the Tribe, including any disclosure
compelled by judicial process, and, in the case of any disclosure
compelled by judicial process, will endeavor to give the Tribe immediate
notice of the order compelling disclosure and a reasonable opportunity
to interpose an objection thereto with the court.
(ii)
The Tribal Gaming Agency and the State Gaming Agency shall confer and
agree upon protocols for release to other law enforcement agencies of
information obtained during the course of background investigations.
(c)
Records received by the State Gaming Agency from the Tribe in compliance
with this Compact, or information compiled by the State Gaming Agency
from those records, shall be exempt from disclosure under the California
Public Records Act.
Sec.
7.4.4. Notwithstanding any other provision of this Compact, the State
Gaming Agency shall not be denied access to papers, books, records,
equipment, or places where such access is reasonably necessary to ensure
compliance with this Compact.
Sec.
7.4.5. (a) Subject to the provisions of subdivision (b), the Tribal
Gaming Agency shall not permit any Gaming Device to be transported to or
from the Tribe’s land except in accordance with procedures established
by agreement between the State Gaming Agency and the Tribal Gaming
Agency and upon at least 10 days’ notice to the Sheriff’s Department
for the county in which the land is located.
(b)
Transportation of a Gaming Device from the Gaming Facility within
California is permissible only if: (i) The final destination of the
device is a gaming facility of any tribe in California that has a
compact with the State; (ii) The final destination of the device is any
other state in which possession of the device or devices is made lawful
by state law or by tribal-state compact; (iii) The final destination of
the device is another country, or any state or province of another
country, wherein possession of the device is lawful; or (iv) The final
destination is a location within California for testing, repair,
maintenance, or storage by a person or entity that has been licensed by
the Tribal Gaming Agency and has been found suitable for licensure by
the State Gaming Agency.
(c)
Gaming Devices transported off the Tribe’s land in violation of this
Section 7.4.5 or in violation of any permit issued pursuant thereto is
subject to summary seizure by California peace officers.
Sec.
8.0. RULES AND REGULATIONS FOR THE OPERATION AND MANAGEMENT OF THE
TRIBAL GAMING OPERATION.
Sec.
8.1. Adoption of Regulations for Operation and Management; Minimum
Standards. In order to meet the goals set forth in this Gaming Compact
and required of the Tribe by law, the Tribal Gaming Agency shall be
vested with the authority to promulgate, and shall promulgate, at a
minimum, rules and regulations or specifications governing the following
subjects, and to ensure their enforcement in an effective manner:
Sec.
8.1.1. The enforcement of all relevant laws and rules with respect to
the Gaming Operation and Facility, and the power to conduct
investigations and hearings with respect thereto, and to any other
subject within its jurisdiction.
Sec.
8.1.2. Ensuring the physical safety of Gaming Operation patrons and
employees, and any other person while in the Gaming Facility. Nothing
herein shall be construed to make applicable to the Tribe any state
laws, regulations, or standards governing the use of tobacco.
Sec.
8.1.3. The physical safeguarding of assets transported to, within, and
from the Gaming Facility.
Sec.
8.1.4. The prevention of illegal activity from occurring within the
Gaming Facility or with regard to the Gaming Operation, including, but
not limited to, the maintenance of employee procedures and a
surveillance system as provided below.
Sec.
8.1.5. The recording of any and all occurrences within the Gaming
Facility that deviate from normal operating policies and procedures
(hereafter "incidents"). The procedure for recording incidents
shall: (1) specify that security personnel record all incidents,
regardless of an employee's determination that the incident may be
immaterial (all incidents shall be identified in writing); (2) require
the assignment of a sequential number to each report; (3) provide for
permanent reporting in indelible ink in a bound notebook from which
pages cannot be removed and in which entries are made on each side of
each page; and (4) require that each report include, at a minimum, all
of the following:
(a)
The record number.
(b)
The date.
(c)
The time.
(d)
The location of the incident.
(e)
A detailed description of the incident.
(f)
The persons involved in the incident.
(g)
The security department employee assigned to the incident.
Sec.
8.1.6. The establishment of employee procedures designed to permit
detection of any irregularities, theft, cheating, fraud, or the like,
consistent with industry practice.
Sec.
8.1.7. Maintenance of a list of persons barred from the Gaming Facility
who, because of their past behavior, criminal history, or association
with persons or organizations, pose a threat to the integrity of the
Gaming Activities of the Tribe or to the integrity of regulated gaming
within the State.
Sec.
8.1.8. The conduct of an audit of the Gaming Operation, not less than
annually, by an independent certified public accountant, in accordance
with the auditing and accounting standards for audits of casinos of the
American Institute of Certified Public Accountants.
Sec.
8.1.9. Submission to, and prior approval, from the Tribal Gaming Agency
of the rules and regulations of each Class III game to be operated by
the Tribe, and of any changes in those rules and regulations. No Class
III game may be played that has not received Tribal Gaming Agency
approval.
Sec.
8.1.10. Addressing all of the following:
(a)
Maintenance of a copy of the rules, regulations, and procedures for each
game as played, including, but not limited to, the method of play and
the odds and method of determining amounts paid to winners;
(b)
Specifications and standards to ensure that information regarding the
method of play, odds, and payoff determinations shall be visibly
displayed or available to patrons in written form in the Gaming
Facility;
(c)
Specifications ensuring that betting limits applicable to any gaming
station shall be displayed at that gaming station;
(d)
Procedures ensuring that in the event of a patron dispute over the
application of any gaming rule or regulation, the matter shall be
handled in accordance with, industry practice and principles of
fairness, pursuant to the Tribal Gaming Ordinance and any rules and
regulations promulgated by the Tribal Gaming Agency.
Sec.
8.1.11. Maintenance of a closed-circuit television surveillance system
consistent with industry standards for gaming facilities of the type and
scale operated by the Tribe, which system shall be approved by, and may
not be modified without the approval of, the Tribal Gaming Agency. The
Tribal Gaming Agency shall have current copies of the Gaming Facility
floor plan and closed-circuit television system at all times, and any
modifications thereof first shall be approved by the Tribal Gaming
Agency.
Sec.
8.1.12. Maintenance of a cashier's cage in accordance with industry
standards for such facilities.
Sec.
8.1.13. Specification of minimum staff and supervisory requirements for
each Gaming Activity to be conducted.
Sec.
8.1.14. Technical standards and specifications for the operation of
Gaming Devices and other games authorized herein to be conducted by the
Tribe, which technical specifications may be no less stringent than
those approved by a recognized gaming testing laboratory in the gaming
industry.
Sec.
8.2. State Civil and Criminal Jurisdiction. Nothing in this Gaming
Compact affects the civil or criminal jurisdiction of the State under
Public Law 280 (18 U.S.C. Sec. 1162; 28 U.S.C. Sec. 1360) or IGRA, to
the extent applicable. In addition, criminal jurisdiction to enforce
state gambling laws is transferred to the State pursuant to 18 U.S.C. §
1166(d), provided that no Gaming Activity conducted by the Tribe
pursuant to this Gaming Compact may be deemed to be a civil or criminal
violation of any law of the State.
Sec.
8.3. (a) The Tribe shall take all reasonable steps to ensure that
members of the Tribal Gaming Agency are free from corruption, undue
influence, compromise, and conflicting interests in the conduct of their
duties under this Compact; shall adopt a conflict-of-interest code to
that end; and shall ensure the prompt removal of any member of the
Tribal Gaming Agency who is found to have acted in a corrupt or
compromised manner.
(b)
The Tribe shall conduct a background investigation on a prospective
member of the Tribal Gaming Agency, who shall meet the background
requirements of a management contractor under IGRA; provided that, if
such official is elected through a tribal election process, that
official may not participate in any Tribal Gaming Agency matters under
this Compact unless a background investigation has been concluded and
the official has been found to be suitable. If requested by the tribal
government or the Tribal Gaming Agency, the State Gaming Agency may
assist in the conduct of such a background investigation and may assist
in the investigation of any possible corruption or compromise of a
member of the agency.
Sec.
8.4. In order to foster statewide uniformity of regulation of Class III
gaming operations throughout the state, rules, regulations, standards,
specifications, and procedures of the Tribal Gaming Agency in respect to
any matter encompassed by Sections 6.0, 7.0, or 8.0 shall be consistent
with regulations adopted by the State Gaming Agency in accordance with
Section 8.4.1. Chapter 3.5 (commencing with section 11340) of Part 1 of
Division 3 of Title 2 of the California Government Code does not apply
to regulations adopted by the State Gaming Agency in respect to tribal
gaming operations under this Section.
Sec.
8.4.1. (a) Except as provided in subdivision (d), no State Gaming Agency
regulation shall be effective with respect to the Tribe’s Gaming
Operation unless it has first been approved by the Association and the
Tribe has had an opportunity to review and comment on the proposed
regulation.
(b)
Every State Gaming Agency regulation that is intended to apply to the
Tribe (other than a regulation proposed or previously approved by the
Association) shall be submitted to the Association for consideration
prior to submission of the regulation to the Tribe for comment as
provided in subdivision (c). A regulation that is disapproved by the
Association shall not be submitted to the Tribe for comment unless it is
re-adopted by the State Gaming Agency as a proposed regulation, in its
original or amended form, with a detailed, written response to the
Association’s objections.
(c)
Except as provided in subdivision (d), no regulation of the State Gaming
Agency shall be adopted as a final regulation in respect to the Tribe’s
Gaming Operation before the expiration of 30 days after submission of
the proposed regulation to the Tribe for comment as a proposed
regulation, and after consideration of the Tribe’s comments, if any.
(d)
In exigent circumstances (e.g., imminent threat to public health and
safety), the State Gaming Agency may adopt a regulation that becomes
effective immediately. Any such regulation shall be accompanied by a
detailed, written description of the exigent circumstances, and shall be
submitted immediately to the Association for consideration. If the
regulation is disapproved by the Association, it shall cease to be
effective, but may be re-adopted by the State Gaming Agency as a
proposed regulation, in its original or amended form, with a detailed,
written response to the Association’s objections, and thereafter
submitted to the Tribe for comment as provided in subdivision (c).
(e)
The Tribe may object to a State Gaming Agency regulation on the ground
that it is unnecessary, unduly burdensome, or unfairly discriminatory,
and may seek repeal or amendment of the regulation through the dispute
resolution process of Section 9.0.
Sec.
9.0. DISPUTE RESOLUTION PROVISIONS.
Sec.
9.1. Voluntary Resolution; Reference to Other Means of Resolution. In
recognition of the government-to-government relationship of the Tribe
and the State, the parties shall make their best efforts to resolve
disputes that occur under this Gaming Compact by good faith negotiations
whenever possible. Therefore, without prejudice to the right of either
party to seek injunctive relief against the other when circumstances are
deemed to require immediate relief, the parties hereby establish a
threshold requirement that disputes between the Tribe and the State
first be subjected to a process of meeting and conferring in good faith
in order to foster a spirit of cooperation and efficiency in the
administration and monitoring of performance and compliance by each
other with the terms, provisions, and conditions of this Gaming Compact,
as follows:
(a)
Either party shall give the other, as soon as possible after the event
giving rise to the concern, a written notice setting forth, with
specificity, the issues to be resolved.
(b)
The parties shall meet and confer in a good faith attempt to resolve the
dispute through negotiation not later than 10 days after receipt of the
notice, unless both parties agree in writing to an extension of time.
(c)
If the dispute is not resolved to the satisfaction of the parties within
30 calendar days after the first meeting, then either party may seek to
have the dispute resolved by an arbitrator in accordance with this
section, but neither party shall be required to agree to submit to
arbitration.
(d)
Disagreements that are not otherwise resolved by arbitration or other
mutually acceptable means as provided in Section 9.3 may be resolved in
the United States District Court where the Tribe’s Gaming Facility is
located, or is to be located, and the Ninth Circuit Court of Appeals
(or, if those federal courts lack jurisdiction, in any state court of
competent jurisdiction and its related courts of appeal). The disputes
to be submitted to court action include, but are not limited to, claims
of breach or violation of this Compact, or failure to negotiate in good
faith as required by the terms of this Compact. In no event may the
Tribe be precluded from pursuing any arbitration or judicial remedy
against the State on the grounds that the Tribe has failed to exhaust
its state administrative remedies. The parties agree that, except in the
case of imminent threat to the public health or safety, reasonable
efforts will be made to explore alternative dispute resolution avenues
prior to resort to judicial process.
Sec.
9.2. Arbitration Rules. Arbitration shall be conducted in accordance
with the policies and procedures of the Commercial Arbitration Rules of
the American Arbitration Association, and shall be held on the Tribe's
land or, if unreasonably inconvenient under the circumstances, at such
other location as the parties may agree. Each side shall bear its own
costs, attorneys' fees, and one-half the costs and expenses of the
American Arbitration Association and the arbitrator, unless the
arbitrator rules otherwise. Only one neutral arbitrator may be named,
unless the Tribe or the State objects, in which case a panel of three
arbitrators (one of whom is selected by each party) will be named. The
provisions of Section 1283.05 of the California Code of Civil Procedure
shall apply; provided that no discovery authorized by that section may
be conducted without leave of the arbitrator. The decision of the
arbitrator shall be in writing, give reasons for the decision, and shall
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