This section sets forth the provisions of the Model Tribal
Gaming Compact.
MODEL TRIBAL GAMING COMPACT
Between the [Name of Tribe]
and the STATE OF OKLAHOMA
This Compact is made and entered into by and between the [Name
of Tribe], a federally recognized Indian tribe ("tribe"), and the
State of Oklahoma ("state"), with respect to the operation of
covered games (as defined herein) on the tribe's Indian lands as
defined by the Indian Gaming Regulatory Act, 25 U.S.C., Section
2703(4).
Part 1. TITLE
This document shall be referred to as the "[Name of Tribe] and
State of Oklahoma Gaming Compact".
Part 2. RECITALS
1. The tribe is a federally recognized tribal government
possessing sovereign powers and rights of self-government.
2. The State of Oklahoma is a state of the United States of
America possessing the sovereign powers and rights of a state.
3. The state and the tribe maintain a government-to-government
relationship, and this Compact will help to foster mutual respect
and understanding among Indians and non-Indians.
4. The United States Supreme Court has long recognized the
right of an Indian tribe to regulate activity on lands within its
jurisdiction.
5. The tribe desires to offer the play of covered games, as
defined in paragraphs 5, 10, 11 and 12 of Part 3 of this Compact, as
a means of generating revenues for purposes authorized by the Indian
Gaming Regulatory Act, 25 U.S.C., Section 2701, et seq., including
without limitation the support of tribal governmental programs, such
as health care, housing, sewer and water projects, police,
corrections, fire, judicial services, highway and bridge
construction, general assistance for tribal elders, day care for the
children, economic development, educational opportunities and other
typical and valuable governmental services and programs for tribal
members.
6. The state recognizes that the positive effects of this
Compact will extend beyond the tribe's lands to the tribe's
neighbors and surrounding communities and will generally benefit all
of Oklahoma. These positive effects and benefits may include not
only those described in paragraph 5 of this Part, but also may
include increased tourism and related economic development
activities.
7. The tribe and the state jointly wish to protect their
citizens from any criminal involvement in the gaming operations
regulated under this Compact.
Part 3. DEFINITIONS
As used in this Compact:
1. "Adjusted gross revenues" means the total receipts received
from the play of all covered games minus all prize payouts;
2. "Annual oversight assessment" means the assessment described
in subsection B of Part 11 of this Compact;
3. "Central computer" means a computer to which player
terminals are linked to allow competition in electronic bonanza-
style bingo games;
4. "Compact" means this Tribal Gaming Compact between the state
and the tribe, entered into pursuant to Section 280 of this title;
5. "Covered game" means the following games conducted in
accordance with the standards, as applicable, set forth in Sections
270 through 277 of this title: an electronic bonanza-style bingo
game, an electronic amusement game, an electronic instant bingo
game, nonhouse-banked card games; any other game, if the operation
of such game by a tribe would require a compact and if such game has
been: (i) approved by the Oklahoma Horse Racing Commission for use
by an organizational licensee, (ii) approved by state legislation
for use by any person or entity, or (iii) approved by amendment of
the State-Tribal Gaming Act; and upon election by the tribe by
written supplement to this Compact, any Class II game in use by the
tribe, provided that no exclusivity payments shall be required for
the operation of such Class II game;
6. "Covered game employee" means any individual employed by the
enterprise or a third party providing management services to the
enterprise, whose responsibilities include the rendering of services
with respect to the operation, maintenance or management of covered
games. The term "covered game employee" includes, but is not
limited to, the following: managers and assistant managers;
accounting personnel; surveillance and security personnel; cashiers,
supervisors, and floor personnel; cage personnel; and any other
person whose employment duties require or authorize access to areas
of the facility related to the conduct of covered games or the
maintenance or storage of covered game components. This shall not
include upper level tribal employees or tribe's elected officials so
long as such individuals are not directly involved in the operation,
maintenance, or management of covered game components. The
enterprise may, at its discretion, include other persons employed at
or in connection with the enterprise within the definition of
covered game employee;
7. "Documents" means books, records, electronic, magnetic and
computer media documents and other writings and materials, copies
thereof, and information contained therein;
8. "Effective date" means the date on which the last of the
conditions set forth in subsection A of Part 15 of this Compact have
been met;
9. "Electronic accounting system" means an electronic system
that provides a secure means to receive, store and access data and
record critical functions and activities, as set forth in the State-
Tribal Gaming Act;
10. "Electronic amusement game" means a game that is played in
an electronic environment in which a player's performance and
opportunity for success can be improved by skill that conforms to
the standards set forth in the State-Tribal Gaming Act;
11. "Electronic bonanza-style bingo game" means a game played
in an electronic environment in which some or all of the numbers or
symbols are drawn or electronically determined before the electronic
bingo cards for that game are sold that conforms to the standards
set forth in the State-Tribal Gaming Act;
12. "Electronic instant bingo game" means a game played in an
electronic environment in which a player wins if his or her
electronic instant bingo card contains a combination of numbers or
symbols that was designated in advance of the game as a winning
combination. There may be multiple winning combinations in each
game and multiple winning cards that conform to the standards set
forth in the State-Tribal Gaming Act;
13. "Enterprise" means the tribe or the tribal agency or
section of tribal management with direct responsibility for the
conduct of covered games, the tribal business enterprise that
conducts covered games, or a person, corporation or other entity
that has entered into a management contract with the tribe to
conduct covered games, in accordance with IGRA. The names,
addresses and identifying information of any covered game employees
shall be forwarded to the SCA at least annually. In any event, the
tribe shall have the ultimate responsibility for ensuring that the
tribe or enterprise fulfills the responsibilities under this
Compact. For purposes of enforcement, the tribe is deemed to have
made all promises for the enterprise;
14. "Facility" means any building of the tribe in which the
covered games authorized by this Compact are conducted by the
enterprise, located on Indian lands as defined by IGRA. The tribe
shall have the ultimate responsibility for ensuring that a facility
conforms to the Compact as required herein;
15. "Game play credits" means a method of representing value
obtained from the exchange of cash or cash equivalents, or earned as
a prize, in connection with electronic gaming. Game play credits
may be redeemed for cash or a cash equivalent;
16. "Player terminals" means electronic or electromechanical
terminals housed in cabinets with input devices and video screens or
electromechanical displays on which players play electronic bonanza-
style bingo games, electronic instant bingo games or electronic
amusement games;
17. "Independent testing laboratory" means a laboratory of
national reputation that is demonstrably competent and qualified to
scientifically test and evaluate devices for compliance with this
Compact and to otherwise perform the functions assigned to it in
this Compact. An independent testing laboratory shall not be owned
or controlled by the tribe, the enterprise, an organizational
licensee as defined in the State-Tribal Gaming Act, the state, or
any manufacturer, supplier or operator of gaming devices. The
selection of an independent testing laboratory for any purpose under
this Compact shall be made from a list of one or more laboratories
mutually agreed upon by the parties; provided that the parties
hereby agree that any laboratory upon which the National Indian
Gaming Commission has relied for such testing may be utilized for
testing required by this Compact;
18. "IGRA" means the Indian Gaming Regulatory Act, Pub. L. 100-
497, Oct. 17, 1988, 102 Stat. 2467, codified at 25 U.S.C., Section
2701 et seq. and 18 U.S.C., Sections 1166 to 1168;
19. "Nonhouse-banked card games" means any card game in which
the tribe has no interest in the outcome of the game, including
games played in tournament formats and games in which the tribe
collects a fee from the player for participating, and all bets are
placed in a common pool or pot from which all player winnings,
prizes and direct costs are paid. As provided herein,
administrative fees may be charged by the tribe against any common
pool in an amount equal to any fee paid the state; provided that the
tribe may seed the pool as it determines necessary from time to
time;
20. "Patron" means any person who is on the premises of a
gaming facility, for the purpose of playing covered games authorized
by this Compact;
21. "Principal" means, with respect to any entity, its sole
proprietor or any partner, trustee, beneficiary or shareholder
holding five percent (5%) or more of its beneficial or controlling
ownership, either directly or indirectly, or any officer, director,
principal management employee, or key employee thereof;
22. "Rules and regulations" means the rules and regulations
promulgated by the Tribal Compliance Agency for implementation of
this Compact;
23. "Standards" means the descriptions and specifications of
electronic amusement games, electronic bonanza-style bingo games and
electronic instant bingo games or components thereof as set forth in
Sections 270 through 277 of this title as enacted in 2004 or as
amended pursuant to paragraph 27 of this Part or subsection D of
Part 13 of this Compact, including technical specifications for
component parts, requirements for cashless transaction systems,
software tools for security and audit purposes, and procedures for
operation of such games;
24. "State" means the State of Oklahoma;
25. "State Compliance Agency" ("SCA") means the state agency
that has the authority to carry out the state's oversight
responsibilities under this Compact, which shall be the Office of
Management and Enterprise Services or its successor agency. Nothing
herein shall supplant the role or duties of the Oklahoma State
Bureau of Investigation under state law. The Oklahoma Horse Racing
Commission and the Oklahoma Tax Commission shall have no role in
regulating or oversight of any gaming conducted by a tribe;
26. "Tribal Compliance Agency" ("TCA") means the tribal
governmental agency that has the authority to carry out the tribe's
regulatory and oversight responsibilities under this Compact.
Unless and until otherwise designated by the tribe, the TCA shall be
the [Name of Tribe] Gaming Commission. No covered game employee may
be a member or employee of the TCA. The tribe shall have the
ultimate responsibility for ensuring that the TCA fulfills its
responsibilities under this Compact. The members of the TCA shall
be subject to background investigations and licensed to the extent
required by any tribal or federal law, and in accordance with
subsection B of Part 7 of this Compact. The tribe shall ensure that
all TCA officers and agents are qualified for such position and
receive ongoing training to obtain and maintain skills that are
sufficient to carry out their responsibilities in accordance with
industry standards;
27. "State-Tribal Gaming Act" means the legislation in which
this Model Tribal Gaming Compact is set forth and, at the tribe's
option, amendments or successor statutes thereto;
28. "Tribal law enforcement agency" means a police or security
force established and maintained by the tribe pursuant to the
tribe's powers of self-government to carry out law enforcement
duties at or in connection with a facility; and
29. "Tribe" means the [Name of Nation].
Part 4. AUTHORIZATION OF COVERED GAMES
A. The tribe and state agree that the tribe is authorized to
operate covered games only in accordance with this Compact.
However, nothing in this Compact shall limit the tribe's right to
operate any game that is Class II under IGRA and no Class II games
shall be subject to the exclusivity payments set forth in Part 11 of
this Compact. In the case of electronic bonanza-style bingo games,
there have been disagreements between tribes and federal regulators
as to whether or not such games are Class II. Without conceding
that such games are Class III, the tribe has agreed to compact with
the state to operate the specific type of electronic bonanza-style
bingo game described in this Compact to remove any legal uncertainty
as to the tribe's right to lawfully operate the game. Should the
electronic bonanza-style bingo game or the electronic instant bingo
game described in this act be determined to be Class II by the NIGC
or a federal court, then the tribe shall have the option to operate
such games outside of this Compact; provided, any obligations
pursuant to subsection F of Part 11 of this Compact shall not be
affected thereby.
B. A tribe shall not operate an electronic bonanza-style bingo
game, an electronic instant bingo game or an electronic amusement
game pursuant to this Compact until such game has been certified by
an independent testing laboratory and the TCA as meeting the
standards set out in the State-Tribal Gaming Act for electronic
bonanza-style bingo games, electronic instant bingo games or
electronic amusement games, as applicable or any standards contained
in the Oklahoma Horse Racing Commission rules issued pursuant to
subsection B of Section 268 of this title that modify the standards
for such games that may be conducted by organizational licensees.
Provided, the tribe may rely on any certification of an electronic
bonanza-style bingo game, an electronic instant bingo, or electronic
amusement games by the Oklahoma Horse Racing Commission which was
obtained by an organization licensee pursuant to the State-Tribal
Gaming Act to establish certification compliance under this Compact.
The tribe may also rely on any certification of an electronic
bonanza-style bingo game, electronic instant bingo or an electronic
amusement game by the TCA obtained by another tribe which has
entered into the model compact to establish certification compliance
under this Compact.
Part 5. RULES AND REGULATIONS; MINIMUM REQUIREMENTS FOR
OPERATIONS
A. Regulations. At all times during the Term of this Compact,
the tribe shall be responsible for all duties which are assigned to
it, the enterprise, the facility, and the TCA under this Compact.
The tribe shall promulgate any rules and regulations necessary to
implement this Compact, which at a minimum shall expressly include
or incorporate by reference all provisions of Part 5 and the
procedural requirements of Part 6 of this Compact. Nothing in this
Compact shall be construed to affect the tribe's right to amend its
rules and regulations, provided that any such amendment shall be in
conformity with this Compact. The SCA may propose additional rules
and regulations related to implementation of this Compact to the TCA
at any time, and the TCA shall give good faith consideration to such
suggestions and shall notify the SCA of its response or action with
respect thereto.
B. Compliance; Internal Control Standards. All enterprises and
facilities shall comply with, and all covered games approved under
the procedures set forth in this Compact shall be operated in
accordance with the requirements set forth in this Compact,
including, but not limited to, those set forth in subsections C and
D of this Part. In addition, all enterprises and facilities shall
comply with tribal internal control standards that provide a level
of control that equals or exceeds those set forth in the National
Indian Gaming Commission's Minimum Internal Control Standards (25
C.F.R., Part 542).
C. Records. In addition to other records required to be
maintained herein, the enterprise or tribe shall maintain the
following records related to implementation of this Compact in
permanent form and as written or entered, whether manually or by
computer, and which shall be maintained by the enterprise and made
available for inspection by the SCA for no less than three (3) years
from the date generated:
1. A log recording all surveillance activities in the
monitoring room of the facility, including, but not limited to,
surveillance records kept in the normal course of enterprise
operations and in accordance with industry standards; provided,
notwithstanding anything to the contrary herein, surveillance
records may, at the discretion of the enterprise, be destroyed if no
incident has been reported within one (1) year following the date
such records were made. Records, as used in this Compact, shall
include video tapes and any other storage media;
2. Payout from the conduct of all covered games;
3. Maintenance logs for all covered games gaming equipment used
by the enterprise;
4. Security logs as kept in the normal course of conducting and
maintaining security at the facility, which at a minimum shall
conform to industry practices for such reports. The security logs
shall document any unusual or nonstandard activities, occurrences or
events at or related to the facility or in connection with the
enterprise. Each incident, without regard to materiality, shall be
assigned a sequential number for each such report. At a minimum,
the security logs shall consist of the following information, which
shall be recorded in a reasonable fashion noting:
a. the assigned number of the incident,
b. the date of the incident,
c. the time of the incident,
d. the location of the incident,
e. the nature of the incident,
f. the identity, including identification information, of
any persons involved in the incident and any known
witnesses to the incident, and
g. the tribal compliance officer making the report and
any other persons contributing to its preparation;
5. Books and records on all covered game activities of the
enterprise shall be maintained in accordance with generally accepted
accounting principles (GAAP); and
6. All documents generated in accordance with this Compact.
D. Use of Net Revenues. Net revenues that the tribe receives
from covered games are to be used for any one or more of those
purposes permitted under IGRA:
1. To fund tribal government operations or programs;
2. To provide for the general welfare of the tribe and its
members;
3. To promote tribal economic development;
4. To donate to charitable organizations; or
5. To help fund operations of local government agencies.
E. 1. The tribe's rules and regulations shall require the
enterprise at a minimum to bar persons based on their prior conduct
at the facility or who, because of their criminal history or
association with criminal offenders, pose a threat to the integrity
of the conduct of covered games.
2. The TCA shall establish a list of the persons barred from
the facility.
3. The enterprise shall employ its best efforts to exclude
persons on such list from entry into its facility; provided, neither
persons who are barred but gain access to the facility, nor any
other person, shall have any claim against the state, the tribe or
the enterprise or any other person for failing to enforce such bar.
4. Patrons who believe they may be playing covered games on a
compulsive basis may request that their names be placed on the list.
All covered game employees shall receive training on identifying
players who have a problem with compulsive playing and shall be
instructed to ask them to leave. Signs and other materials shall be
readily available to direct such compulsive players to agencies
where they may receive counseling.
F. Audits. 1. Consistent with 25 C.F.R., Section 571.12,
Audit Standards, the TCA shall ensure that an annual independent
financial audit of the enterprise's conduct of covered games subject
to this Compact is secured. The audit shall, at a minimum, examine
revenues and expenses in connection with the conduct of covered
games in accordance with generally accepted auditing standards and
shall include, but not be limited to, those matters necessary to
verify the determination of adjusted gross revenues and the basis of
the payments made to the state pursuant to Part 11 of this Compact.
2. The auditor selected by the TCA shall be a firm of known and
demonstrable experience, expertise and stature in conducting audits
of this kind and scope.
3. The audit shall be concluded within five (5) months
following the close of each calendar year, provided that extensions
may be requested by the tribe and shall not be refused by the state
where the circumstances justifying the extension request are beyond
the tribe's control.
4. The audit of the conduct of covered games may be conducted
as part of or in conjunction with the audit of the enterprise, but
if so conducted shall be separately stated for the reporting
purposes required herein.
5. The audit shall conform to generally accepted auditing
standards. As part of the audit report, the auditor shall certify
to the TCA that, in the course of the audit, the auditor discovered
no matters within the scope of the audit which were determined or
believed to be in violation of any provision of this Compact.
6. The enterprise shall assume all costs in connection with the
audit.
7. The audit report for the conduct of covered games shall be
submitted to the SCA within thirty (30) days of completion. The
auditor's work papers concerning covered games shall be made
available to the SCA upon request.
8. Representatives of the SCA may, upon request, meet with the
auditors to discuss the work papers, the audit or any matters in
connection therewith; provided, such discussions are limited to
covered games information and pursue legitimate state covered games
interests.
G. Rules for Play of and Prizes for Covered Games. Summaries
of the rules for playing covered games and winning prizes shall be
visibly displayed in the facility. Complete sets of rules shall be
available in pamphlet form in the facility.
H. Supervisory Line of Authority. The enterprise shall provide
the TCA and SCA with a chart of the supervisory lines of authority
with respect to those directly responsible for the conduct of
covered games, and shall promptly notify those agencies of any
material changes thereto.
I. Sale of Alcoholic Beverages. The sale and service of
alcoholic beverages in a facility shall be in compliance with state,
federal and tribal law in regard to the licensing and sale of such
beverages.
J. Age Restrictions. No person who would not be eligible to be
a patron of a pari-mutuel system of wagering pursuant to the
provisions of subsection B of Section 208.4 of this title shall be
admitted into any area in a facility where covered games are played,
nor be permitted to operate, or obtain a prize from or in connection
with the operation of, any covered game, directly or indirectly.
K. Destruction of Documents. Enterprise books, records and
other materials documenting the conduct of covered games shall be
destroyed only in accordance with rules and regulations adopted by
the TCA, which at a minimum shall provide as follows:
1. Material that might be utilized in connection with a
potential tort claim pursuant to Part 6 of this Compact, including,
but not limited to, incident reports, surveillance records,
statements, and the like, shall be maintained at least one (1) year
beyond the time which a claim can be made under Part 6 of this
Compact or, if a tort claim is made, beyond the final disposition of
such claim;
2. Material that might be utilized in connection with a prize
claim, including but not limited to incident reports, surveillance
records, statements, and the like, shall be maintained at least one
hundred eighty (180) days beyond the time which a claim can be made
under Part 6 of this Compact or, if a prize claim is made, beyond
the final disposition of such claim; and
3. Notwithstanding anything herein to the contrary, all
enterprise books and records with respect to the conduct of covered
games or the operation of the enterprise, including, but not limited
to, all interim and final financial and audit reports and materials
related thereto which have been generated in the ordinary course of
business, shall be maintained for the minimum period of three (3)
years.
L. Location. The tribe may establish and operate enterprises
and facilities that operate covered games only on its Indian lands
as defined by IGRA. The tribe shall notify the SCA of the operation
of any new facility following the effective date of this Compact.
Nothing herein shall be construed as expanding or otherwise altering
the term "Indian lands", as that term is defined in the IGRA, nor
shall anything herein be construed as altering the federal process
governing the tribal acquisition of "Indian lands" for gaming
purposes.
M. Records of Covered Games. The TCA shall keep a record of,
and shall report at least quarterly to the SCA, the number of
covered games in each facility, by the name or type of each and its
identifying number.
PART 6. TORT CLAIMS; PRIZE CLAIMS; LIMITED CONSENT TO SUIT
A. Tort Claims. The enterprise shall ensure that patrons of a
facility are afforded due process in seeking and receiving just and
reasonable compensation for a tort claim for personal injury or
property damage against the enterprise arising out of incidents
occurring at a facility, hereinafter "tort claim", as follows:
1. During the term of this Compact, the enterprise shall
maintain public liability insurance for the express purposes of
covering and satisfying tort claims. The insurance shall have
liability limits of not less than Two Hundred Fifty Thousand Dollars
($250,000.00) for any one person and Two Million Dollars
($2,000,000.00) for any one occurrence for personal injury, and One
Million Dollars ($1,000,000.00) for any one occurrence for property
damage, hereinafter the "limit of liability", or the corresponding
limits under the Governmental Tort Claims Act, whichever is greater.
No tort claim shall be paid, or be the subject of any award, in
excess of the limit of liability;
2. The tribe consents to suit on a limited basis with respect
to tort claims subject to the limitations set forth in this
subsection and subsection C of this Part. No consents to suit with
respect to tort claims, or as to any other claims against the tribe
shall be deemed to have been made under this Compact, except as
provided in subsections B and C of this Part;
3. The enterprise's insurance policy shall include an
endorsement providing that the insurer may not invoke tribal
sovereign immunity in connection with any claim made within the
limit of liability if the claim complies with the limited consent
provisions of subsection C of this Part. Copies of all such
insurance policies shall be forwarded to the SCA;
4. Any patron having a tort claim shall file a written tort
claim notice by delivery to the enterprise or the TCA. The date the
tort claim notice is filed with the enterprise or the TCA shall be
deemed the official date of filing the tort claim notice. The tort
claim notice shall be filed within one (1) year of the date of the
event which allegedly caused the claimed loss. Failure to file the
tort claim notice during such period of time shall forever bar such
tort claim; provided that a tort claim notice filed with the
enterprise or the TCA more than ninety (90) days, but within one (1)
year, after the event shall be deemed to be timely filed, but any
judgment thereon shall be reduced by ten percent (10%).
5. If the tort claim notice is filed with the TCA, the TCA
shall forward a copy of the tort claim to the enterprise and the SCA
within forty-eight (48) hours of filing, and if the tort claim
notice is filed with the enterprise, the enterprise shall forward a
copy of the tort claim to the TCA and the SCA within forty-eight
(48) hours of filing;
6. The tort claim notice shall state the date, time, place and
circumstances of the incident upon which the tort claim is based,
the identity of any persons known to have information regarding the
incident, including employees or others involved in or who witnessed
the incident, the amount of compensation and the basis for said
relief; the name, address and telephone number of the claimant, and
the name, address and telephone number of any representative
authorized to act or settle the claim on behalf of the claimant;
7. All tort claim notices shall be signed by the claimant. The
rules and regulations may additionally require that the tort claim
notices be signed under oath. The rules and regulations may also
require that as a condition of prosecuting tort claims, the claimant
shall appear to be interviewed or deposed at least once under
reasonable circumstances, which shall include the attendance of the
claimant's legal counsel if requested; provided that the enterprise
shall afford claimant at least thirty (30) days' written notice of
the interview or deposition; and provided further that the
claimant's failure to appear without cause for any interview or
deposition properly noticed pursuant to this paragraph shall be
deemed a voluntary withdrawal of the tort claim;
8. The enterprise shall promptly review, investigate, and make
a determination regarding the tort claim. Any portion of a tort
claim which is unresolved shall be deemed denied if the enterprise
fails to notify the claimant in writing of its approval within
ninety (90) days of the filing date, unless the parties by written
agreement extend the date by which a denial shall be deemed issued
if no other action is taken. Each extension shall be for no more
than ninety (90) days, but there shall be no limit on the number of
written agreements for extensions; provided, that no written
agreement for extension shall be valid unless signed by the claimant
and an authorized representative of the enterprise. The claimant
and the enterprise may continue attempts to settle a claim beyond an
extended date; provided, settlement negotiations shall not extend
the date of denial in the absence of a written agreement for
extension as required by this paragraph;
9. A judicial proceeding for any cause arising from a tort
claim may be maintained in accordance with and subject to the
limitations of subsection C of this Part only if the following
requirements have been met:
a. the claimant has followed all procedures required by
this Part, including, without limitation, the delivery
of a valid and timely written tort claim notice to the
enterprise,
b. the enterprise has denied the tort claim, and
c. the claimant has filed the judicial proceeding no
later than the one-hundred-eightieth day after denial
of the claim by the enterprise; provided, that neither
the claimant nor the enterprise may agree to extend
the time to commence a judicial proceeding; and
10. Notices explaining the procedure and time limitations with
respect to making a tort claim shall be prominently posted in the
facility. Such notices shall explain the method and places for
making a tort claim, that this procedure is the exclusive method of
making a tort claim, and that claims that do not follow these
procedures shall be forever barred. The enterprise shall make
pamphlets containing the requirements in this subsection readily
available to all patrons of the facility and shall provide such
pamphlets to a claimant within five (5) days of the filing of a
claim.
B. Prize Claims. The enterprise shall ensure that patrons of a
facility are afforded due process in seeking and receiving just and
reasonable compensation arising from a patron's dispute, in
connection with his or her play of any covered game, the amount of
any prize which has been awarded, the failure to be awarded a prize,
or the right to receive a refund or other compensation, hereafter
"prize claim", as follows:
1. The tribe consents to suit on a limited basis with respect
to prize claims against the enterprise only as set forth in
subsection C of this Part; no consents to suit with respect to prize
claims, or as to any other claims against the tribe shall be deemed
to have been made under this Compact, except as provided in
subsections A and C of this Part;
2. The maximum amount of any prize claim shall be the amount of
the prize which the claimant establishes he or she was entitled to
be awarded, hereafter "prize limit";
3. Any patron having a prize claim shall file a written prize
claim notice by delivery to the enterprise or the TCA. The date the
prize claim is filed with the enterprise or the TCA shall be deemed
the official date of filing the prize claim notice. The prize claim
notice shall be filed within ten (10) days of the event which is the
basis of the claim. Failure to file the prize claim notice during
such period of time shall forever bar such prize claim;
4. If the prize claim notice is filed with the TCA, the TCA
shall forward a copy of the prize claim to the enterprise and the
SCA within forty-eight (48) hours of its filing; and if the prize
claim notice is filed with the enterprise, the enterprise shall
forward a copy of the tort claim to the TCA and the SCA within
forty-eight (48) hours of filing;
5. The written prize claim notice shall state the date, time,
place and circumstances of the incident upon which the prize claim
is based, the identity of any persons known to have information
regarding the incident, including employees or others involved in or
who witnessed the incident, the amount demanded and the basis for
said amount, the name, address and telephone number of the claimant,
and the name, address and telephone number of any representative
authorized to act or settle the claim on behalf of the claimant;
6. All notices of prize claims shall be signed by the claimant.
The rules and regulations may additionally require that the prize
claim notices be signed under oath;
7. The enterprise shall promptly review, investigate and make a
determination regarding the prize claim. Claimants shall cooperate
in providing information, including personal sworn statements and
agreeing to be interviewed, as the enterprise shall reasonably
request. The claimant is permitted to have counsel present during
any such interview;
8. If the prize claim is not resolved within seventy-two (72)
hours from the time of filing the claim in accordance with paragraph
5 of this subsection, the TCA shall immediately notify the SCA in
writing that the claim has not been resolved;
9. In the event the claim is resolved, the TCA shall not be
obligated to report that fact to the SCA, but shall make TCA reports
available for review;
10. Any portion of a prize claim which is unresolved shall be
deemed denied if the enterprise fails to notify the claimant in
writing of its approval within thirty (30) days of the filing date,
unless the parties agree by written agreement to extend the date.
Each extension shall be for no more than thirty (30) days, but there
shall be no limit on the number of written agreements for
extensions; provided, that no written agreements for extension shall
be valid unless signed by the claimant and an authorized
representative of the TCA. The claimant and the enterprise may
continue attempts to settle a claim beyond an extended date;
provided, settlement negotiations shall not extend the date of
denial in the absence of a written extension required by this
paragraph;
11. A judicial proceeding for any cause arising from a prize
claim may be maintained in accordance with and subject to the
limitations of subsection C of this Part only if the following
requirements have been met:
a. the claimant has followed all procedures required by
this Part, including without limitation, the delivery
of a valid and timely written prize claim notice to
the enterprise,
b. the enterprise has denied the prize claim, and
c. the claimant has filed the judicial proceeding no
later than one hundred eighty (180) days after denial
of the claim by the enterprise; provided that neither
the claimant nor the enterprise may extend the time to
commence a judicial proceeding; and
12. Notices explaining the procedure and time limitations with
respect to making a prize claim shall be prominently posted in the
facility. Such notices shall explain the method and places for
making claims, that this procedure is the exclusive method of making
a prize claim, and that claims that do not follow this procedure
shall be forever barred. The enterprise shall make pamphlets
containing the requirements in this subsection readily available to
all patrons of the facility and shall provide such pamphlets to a
claimant by the TCA within five (5) days of the filing date of a
claim.
C. Limited Consent to Suit for Tort Claims and Prize Claims.
The tribe consents to suit against the enterprise in a court of
competent jurisdiction with respect to a tort claim or prize claim
if all requirements of paragraph 9 of subsection A or all
requirements of paragraph 11 of subsection B of this Part have been
met; provided that such consent shall be subject to the following
additional conditions and limitations:
1. For tort claims, consent to suit is granted only to the
extent such claim or any award or judgment rendered thereon does not
exceed the limit of liability. Under no circumstances shall any
consent to suit be effective as to any award which exceeds such
applicable amounts. This consent shall only extend to the patron
actually claiming to have been injured. A tort claim shall not be
assignable. In the event any assignment of the tort claim is made
in violation of this Compact, or any person other than the patron
claiming the injury becomes a party to any action hereunder, this
consent shall be deemed revoked for all purposes. Notwithstanding
the foregoing, consent to suit shall not be revoked if an action on
a tort claim is filed by (i) a court appointed representative of a
claimant's estate, (ii) an indispensable party, or (iii) a health
provider or other party subrogated to the claimant's rights by
virtue of any insurance policy; provided, that nothing herein is
intended to, or shall constitute a consent to suit against the
enterprise as to such party except to the extent such party's claim
is:
a. in lieu of and identical to the claim that would have
been made by the claimant directly but for the
appointment of said representative or indispensable
party, and participation of such other party is in
lieu of and not in addition to pursuit of the claim by
the patron, and
b. the claim of such other party would have been subject
to a consent to suit hereunder if it had been made by
the claimant directly; and
2. For prize claims, consent is granted only to the extent such
claim does not exceed the prize limit. Under no circumstances shall
any award exceed the prize limit. This consent shall only extend to
the patron actually claiming to have engaged in the play of a
covered game on which the claim is based. Prize claims shall not be
assignable. In the event any assignment of the prize claim is made,
or any person other than the claimant entitled to make the claim
becomes a party to any action hereunder, this consent shall be
deemed revoked for all purposes. Notwithstanding the foregoing,
consent to suit shall not be revoked if an action on a prize claim
is filed by (i) a court-appointed representative of a claimant's
estate, or (ii) an indispensable party, provided that nothing herein
is intended to, or shall constitute a consent to suit against the
enterprise as to such party except to the extent such party's claim
is:
a. in lieu of and identical to the claim that would have
been made by the claimant directly but for the
appointment of said representative or indispensable
party, and participation of such other party is in
lieu of and not in addition to pursuit of the claim by
the patron, and
b. the claim of such other party would have been subject
to a consent to suit hereunder if it had been made by
the claimant directly.
D. Remedies in the Event of No or Inadequate Insurance for Tort
Claim. In the event a tort claim is made and there is no, or
inadequate, insurance in effect as required under this Compact, the
enterprise shall be deemed to be in default hereunder unless, within
ten (10) days of a demand by the SCA or a claimant to do so, the
enterprise has posted in an irrevocable escrow account at a state or
federally chartered bank which is not owned or controlled by the
tribe, sufficient cash, a bond or other security sufficient to cover
any award that might be made within the limits set forth in
paragraph 1 of subsection A of this Part, and informs the claimant
and the state of:
1. The posting of the cash or bond;
2. The means by which the deposit can be independently verified
as to the amount and the fact that it is irrevocable until the
matter is finally resolved;
3. The right of the claimant to have this claim satisfied from
the deposit if the claimant is successful on the claim; and
4. The notice and hearing opportunities in accordance with the
tribe's tort law, if any, otherwise in accordance with principles of
due process, which will be afforded to the claimant so that the
intent of this Compact to provide claimants with a meaningful
opportunity to seek a just remedy under fair conditions will be
fulfilled.
Part 7. ENFORCEMENT OF COMPACT PROVISIONS
A. The tribe and TCA shall be responsible for regulating
activities pursuant to this Compact. As part of its
responsibilities, the tribe shall require the enterprise do the
following:
1. Operate the conduct of covered games in compliance with this
Compact, including, but not limited to, the standards and the
tribe's rules and regulations;
2. Take reasonable measures to assure the physical safety of
enterprise patrons and personnel, prevent illegal activity at the
facility, and protect any rights of patrons under the Indian Civil
Rights Act, 25 U.S.C., Sec. 1302-1303;
3. Promptly notify appropriate law enforcement authorities of
persons who may be involved in illegal acts in accordance with
applicable law;
4. Assure that the construction and maintenance of the facility
meets or exceeds federal and tribal standards for comparable
buildings; and
5. Prepare adequate emergency access plans to ensure the health
and safety of all covered game patrons. Upon the finalization of
emergency access plans, the TCA or enterprise shall forward copies
of such plans to the SCA.
B. All licenses for members and employees of the TCA shall be
issued according to the same standards and terms applicable to
facility employees. The TCA shall employ qualified compliance
officers under the authority of the TCA. The compliance officers
shall be independent of the enterprise, and shall be supervised and
accountable only to the TCA. A TCA compliance officer shall be
available to the facility during all hours of operation upon
reasonable notice, and shall have immediate access to any and all
areas of the facility for the purpose of ensuring compliance with
the provisions of this Compact. The TCA shall investigate any such
suspected or reported violation of this Compact and shall require
the enterprise to correct such violations. The TCA shall officially
enter into its files timely written reports of investigations and
any action taken thereon, and shall forward copies of such reports
to the SCA within fifteen (15) days of such filing. Any such
violations shall be reported immediately to the TCA, and the TCA
shall immediately forward the same to the SCA. In addition, the TCA
shall promptly report to the SCA any such violations which it
independently discovers.
C. In order to develop and foster a positive and effective
relationship in the enforcement of the provisions of this Compact,
representatives of the TCA and the SCA shall meet, not less than on
an annual basis, to review past practices and examine methods to
improve the regulatory scheme created by this Compact. The meetings
shall take place at a location mutually agreed to by the TCA and the
SCA. The SCA, prior to or during such meetings, shall disclose to
the TCA any concerns, suspected activities, or pending matters
reasonably believed to possibly constitute violations of this
Compact by any person, organization or entity, if such disclosure
will not compromise the interest sought to be protected.
Part 8. STATE MONITORING OF COMPACT
A. The SCA shall, pursuant to the provisions of this Compact,
have the authority to monitor the conduct of covered games to ensure
that the covered games are conducted in compliance with the
provisions of this Compact. In order to properly monitor the
conduct of covered games, agents of the SCA shall have reasonable
access to all areas of the facility related to the conduct of
covered games as provided herein:
1. Access to the facility by the SCA shall be during the
facility's normal operating hours only; provided that to the extent
such inspections are limited to areas of the facility where the
public is normally permitted, SCA agents may inspect the facility
without giving prior notice to the enterprise;
2. Any suspected or claimed violations of this Compact or of
law shall be directed in writing to the TCA; SCA agents shall not
interfere with the functioning of the enterprise; and
3. Before SCA agents enter any nonpublic area of the facility,
they shall provide proper photographic identification to the TCA.
SCA agents shall be accompanied in nonpublic areas of the facility
by a TCA agent. A one-hour notice by SCA to the TCA may be required
to assure that a TCA officer is available to accompany SCA agents at
all times.
B. Subject to the provisions herein, agents of the SCA shall
have the right to review and copy documents of the enterprise
related to its conduct of covered games. The review and copying of
such documents shall be during normal business hours or hours
otherwise at tribe's discretion. However, the SCA shall not be
permitted to copy those portions of any documents of the enterprise
related to its conduct of covered games that contain business or
marketing strategies or other proprietary and confidential
information of the enterprise, including, but not limited to,
customer lists, business plans, advertising programs, marketing
studies, and customer demographics or profiles. No documents of the
enterprise related to its conduct of covered games or copies thereof
shall be released to the public by the state under any
circumstances. All such documents shall be deemed confidential
documents owned by the tribe and shall not be subject to public
release by the state.
C. At the completion of any SCA inspection or investigation,
the SCA shall forward a written report thereof to the TCA. The TCA
shall be apprised on a timely basis of all pertinent,
nonconfidential information regarding any violation of federal,
state, or tribal laws, the rules or regulations, or this Compact.
Nothing herein prevents the SCA from contacting tribal or federal
law enforcement authorities for suspected criminal wrongdoing
involving the TCA. TCA may interview SCA inspectors upon reasonable
notice and examine work papers and SCA in the same fashion that SCA
inspectors may examine auditors' notes and make auditor inquiry
unless providing such information to the TCA will compromise the
interests sought to be protected. If the SCA determines that
providing the information to the TCA will compromise the interests
sought to be protected, then the SCA shall provide such information
to the tribe in accordance with Part 13 of this Compact.
D. Nothing in this Compact shall be deemed to authorize the
state to regulate the tribe's government, including the TCA, or to
interfere in any way with the tribe's selection of its governmental
officers, including members of the TCA; provided, however, the SCA
and the tribe, upon request of the tribe, shall jointly employ, at
the tribe's expense, an independent firm to perform on behalf of the
SCA the duties set forth in subsections A and B of this Part.
Part 9. JURISDICTION
This Compact shall not alter tribal, federal or state civil
adjudicatory or criminal jurisdiction.
Part 10. LICENSING
A. 1. Except as provided in paragraph 6 of Part 3 of this
Compact, no covered game employee shall be employed at a facility or
by an enterprise unless such person is licensed in accordance with
this Compact. In addition to the provisions of this Part which are
applicable to the licensing of all covered game employees, the
requirements of 25 C.F.R., Part 556, Background Investigations for
Primary Management Officials and Key Employees, and 25 C.F.R., Part
558, Gaming Licenses for Key Employees and Primary Management
Officials, apply to Key Employees and Primary Management Officials
of the facility and enterprise.
2. All prospective covered game employees shall apply to the
TCA for a license. Licenses shall be issued for periods of no more
than two (2) years, after which they may be renewed only following
review and update of the information upon which the license was
based; provided, the TCA may extend the period in which the license
is valid for a reasonable time pending the outcome of any
investigation being conducted in connection with the renewal of such
license. In the event the SCA contends that any such extension is
unreasonable, it may seek resolution of that issue pursuant to Part
11 of this Compact.
3. The application process shall require the TCA to obtain
sufficient information and identification from the applicant to
permit a background investigation to determine if a license should
be issued in accordance with this Part and the rules and
regulations. The TCA shall obtain information about a prospective
covered game employee that includes:
a. full name, including any aliases by which applicant
has ever been known,
b. social security number,
c. date and place of birth,
d. residential addresses for the past five (5) years,
e. employment history for the past five (5) years,
f. driver license number,
g. all licenses issued and disciplinary charges filed,
whether or not discipline was imposed, by any state or
tribal regulatory authority,
h. all criminal arrests and proceedings, except for minor
traffic offenses, to which the applicant has been a
party,
i. a set of fingerprints,
j. a current photograph,
k. military service history, and
l. any other information the TCA determines is necessary
to conduct a thorough background investigation.
4. Upon obtaining the required initial information from a
prospective covered game employee, the TCA shall forward a copy of
such information to the SCA, along with any determinations made with
respect to the issuance or denial of a temporary or permanent
license. The SCA may conduct its own background investigation of
the applicant at SCA expense, shall notify the TCA of such
investigation within a reasonable time from initiation of the
investigation, and shall provide a written report to the TCA of the
outcome of such investigation within a reasonable time from the
receipt of a request from the TCA for such information. SCA
inspector field notes and the SCA inspector shall be available upon
reasonable notice for TCA review and inquiry.
5. The TCA may issue a temporary license for a period not to
exceed ninety (90) days, and the enterprise may employ on a
probationary basis, any prospective covered game employee who
represents in writing that he or she meets the standards set forth
in this Part, provided the TCA or enterprise is not in possession of
information to the contrary. The temporary license shall expire at
the end of the ninety-day period or upon issuance or denial of a
permanent license, whichever event occurs first. Provided that the
temporary license period may be extended at the discretion of the
TCA so long as good faith efforts are being made by the applicant to
provide required information, or the TCA is continuing to conduct
its investigation or is waiting on information from others, and
provided further that in the course of such temporary or extended
temporary licensing period, no information has come to the attention
of the TCA which, in the absence of countervailing information then
in the record, would otherwise require denial of license. A
permanent license shall be issued or denied within a reasonable time
following the completion of the applicant's background
investigation.
6. In covered gaming the tribe shall not employ and shall
terminate, and the TCA shall not license and shall revoke a license
previously issued to, any covered game employee who:
a. has been convicted of any felony or an offense related
to any covered games or other gaming activity,
b. has knowingly and willfully provided false material,
statements or information on his or her employment
application, or
c. is a person whose prior activities, criminal record,
or reputation, habits, and associations pose a threat
to the public interest or to the effective regulation
and control of the conduct of covered games, or create
or enhance the dangers of unsuitable, unfair, or
illegal practices, methods, and activities in the
conduct of covered games or the carrying on of the
business and financial arrangements incidental
thereto.
7. The SCA may object to the employment of any individual by
the enterprise based upon the criteria set forth in paragraph 6 of
subsection A of this Part. Such objection shall be in writing
setting forth the basis of the objection. The SCA inspector's work
papers, notes and exhibits which formed the SCA conclusion shall be
available upon reasonable notice for TCA review. The enterprise
shall have discretion to employ an individual over the objection of
the SCA.
8. The TCA shall have the discretion to initiate or continue a
background investigation of any licensee or license applicant and to
take appropriate action with respect to the issuance or continued
validity of any license at any time, including suspending or
revoking such license.
9. The TCA shall require all covered game employees to wear, in
plain view, identification cards issued by the TCA which include a
photograph of the employee, his or her first name, a four-digit
identification number unique to the license issued to the employee,
a tribal seal or signature verifying official issuance of the card,
and a date of expiration, which shall not extend beyond such
employee's license expiration date.
B. 1. Any person or entity who, directly or indirectly,
provides or is likely to provide at least Twenty-five Thousand
Dollars ($25,000.00) in goods or services to the enterprise in any
twelve-month period, or who has received at least Twenty-five
Thousand Dollars ($25,000.00) for goods or services provided to the
enterprise in any consecutive twelve-month period within the
immediately preceding twenty-four-month period, or any person or
entity who provides through sale, lease, rental or otherwise covered
games, or parts, maintenance or service in connection therewith to
the tribe or the enterprise at any time and in any amount, shall be
licensed by the TCA prior to the provision thereof. Provided, that
attorneys or certified public accountants and their firms shall be
exempt from the licensing requirement herein to the extent that they
are providing services covered by their professional licenses.
2. Background investigations and licensing shall follow the
same process and apply the same criteria as for covered game
employees set forth in paragraph 6 of subsection A of this Part.
3. In the case of a license application of any entity, all
principals thereof shall be subjected to the same background
investigation required for the licensing of a covered game employee,
but no license as such need be issued; provided, no license shall be
issued to the entity if the TCA determines that one or more of its
principals will be persons who would not be qualified to receive a
license if they applied as covered game employees.
4. Nothing herein shall prohibit the TCA from processing and
issuing a license to a principal in his or her own name.
5. Licenses issued under this subsection shall be reviewed at
least every two (2) years for continuing compliance, and shall be
promptly revoked if the licensee is determined to be in violation of
the standards set forth in paragraph 6 of subsection A of this Part.
In connection with such a review, the TCA shall require the person
or entity to update all information provided in the previous
application.
6. The enterprise shall not enter into, or continue to make
payments pursuant to, any contract or agreement for the provision of
goods or services with any person or entity who does not meet the
requirements of this Part including, but not limited to, any person
or entity whose application to the TCA for a license has been
denied, or whose license has expired or been suspended or revoked.
7. Pursuant to 25 C.F.R., Part 533, all management contracts
must be approved by the Chair of the National Indian Gaming
Commission. The SCA shall be notified promptly after any such
approval.
8. In addition to any licensing criteria set forth above, if
any person or entity seeking licensing under this subsection is to
receive any fee or other payment based on the revenues or profits of
the enterprise, the TCA may take into account whether or not such
fee or other payment is fair in light of market conditions and
practices.
C. 1. Subject to the exceptions set forth in paragraph 4 of
this subsection, any person or entity extending financing, directly
or indirectly, to the facility or enterprise in excess of Fifty
Thousand Dollars ($50,000.00) in any twelve-month period shall be
licensed prior to providing such financing. Principals thereof
shall be subjected to background investigations and determinations
in accordance with the procedures and standards set forth in
subsection A of this Part. Licenses issued under this section shall
be reviewed at least every two (2) years for continuing compliance,
and shall be promptly revoked if the licensee is determined to be in
violation of the standards set forth in paragraph 6 of subsection A
of this Part. In connection with such a review, the TCA shall
require the person or entity to update all information provided in
the previous application.
2. The SCA shall be notified of all financing and loan
transactions with respect to covered games or supplies in which the
amount exceeds Fifty Thousand Dollars ($50,000.00) in any twelve-
month period, and shall be entitled to review copies of all
agreements and documents in connection therewith.
3. A supplier of goods or services who provides financing
exclusively in connection with the sale or lease of covered games
equipment or supplies shall be licensed solely in accordance with
licensing procedures applicable, if at all, to such suppliers
herein.
4. Financing provided by a federally regulated or state-
regulated bank, savings and loan, or trust, or other federally or
state-regulated lending institution; Excerpt shown. Open the full section in Lexace.
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