Exhibit 10.1
TRIBAL-STATE COMPACT
BETWEEN
THE STATE OF CALIFORNIA
AND THE
CHUCKHANSI INDIANS
TRIBAL-STATE GAMING COMPACT
Between the CHUCKCHANSI INDIANS, 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 Chuckchansi Indians, 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. 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 Madera
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 Stares: 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
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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 Ill 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.
Sec. 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.
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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.
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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
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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 Chuckchansi Indians, 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 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.
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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.
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.
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,
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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
1250-2000 $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.
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(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.
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 43.1 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 | Percent of Average |
| Quarterly Device Base | 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. |
| -----------------------|---------------------------------------------------|
| | 7% applied to excess over 200, up to |
| | 500 terminals, plus 10% applied to terminals |
| 1000+ | 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
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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.
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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. ss. 12101 et seq.
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(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.
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(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
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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
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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
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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
15
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
16
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
17
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
18
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
19
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
20
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;
21
(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. ss.
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
22
assist in the investigation of any possible corruption or compromise of
a member of the agency.
Sec. 8.4 In order to xxxxxx 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.
23
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 xxxxxx 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
24
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 be binding. Judgment on the award may
be entered in any federal or state court having jurisdiction thereof.
Sec. 9.3 No Waiver or Preclusion of Other Means of Dispute
Resolution. This Section 9.0 may not be construed to waive, limit, or
restrict any remedy that is otherwise available to either party, nor may
this Section be construed to preclude, limit, or restrict the ability of
the parties to pursue, by mutual agreement, any other method of dispute
resolution, including, but not limited to, mediation or utilization of a
technical advisor to the Tribal and State Gaming Agencies; provided that
neither party is under any obligation to agree to such alternative method
of dispute resolution.
Sec. 9.4 Limited Waiver of Sovereign Immunity. (a) In the event
that a dispute is to be resolved in federal court or a state court of
competent jurisdiction as provided in this Section 9.0, the State and the
Tribe expressly consent to be sued therein and waive any immunity therefrom
that they may have provided that:
(1) The dispute is limited solely to issues arising under this
Gaming Compact;
(2) Neither side makes any claim for monetary damages (that is,
only injunctive, specific performance, including enforcement of a provision
of this Compact requiring payment of money to one or another of the
parties, or declaratory relief is sought); and
(3) No person or entity other than the Tribe and the State is
party to the action, unless failure to join a third party would deprive the
court of jurisdiction; provided that nothing herein shall be construed to
constitute a waiver of the sovereign immunity of either the Tribe or the
State in respect to any such third party.
(b) In the event of intervention by any additional party into any
such action without the consent of the Tribe and the State, the waivers of
either the Tribe or the State provided for herein may be revoked, unless
joinder is required to preserve the court's jurisdiction; provided that
nothing herein shall be construed to constitute a waiver of the sovereign
immunity of either the Tribe or the State in respect to any such third
party.
(c) The waivers and consents provided for under this Section 9.0
shall extend to civil actions authorized by this Compact, including, but
not limited to, actions to compel arbitration, any arbitration proceeding
herein, any action to confirm or enforce any judgment or arbitration award
as provided herein, and any appellate proceedings emanating from a matter
in which an immunity waiver has been granted. Except as stated herein or
elsewhere in this Compact, no other waivers or consents to be sued, either
express or implied, are granted by either party.
25
Sec. 10.0 PUBLIC AND WORKPLACE HEALTH, SAFETY, AND LIABILITY.
Sec. 10.1 The Tribe will not conduct Class III gaming in a manner
that endangers the public health, safety, or welfare; provided that nothing
herein shall be construed to make applicable to the Tribe any state laws or
regulations governing the use of tobacco.
Sec. 10.2 Compliance. For the purposes of this Gaming Compact, the
Tribal Gaming Operation shall:
(a) Adopt and comply with standards no less stringent than state
public health standards for food and beverage handling. The Gaming
Operation will allow inspection of food and beverage services by state or
county health inspectors, during normal hours of operation, to assess
compliance with these standards, unless inspections are routinely made by
an agency of the United States government to ensure compliance with
equivalent standards of the United States Public Health Service. Nothing
herein shall be construed as submission of the Tribe to the jurisdiction of
those state or county health inspectors, but any alleged violations of the
standards shall be treated as alleged violations of this Compact.
(b) Adopt and comply with standards no less stringent than federal
water quality and safe drinking water standards applicable in California;
the Gaming Operation will allow for inspection and testing of water quality
by state or county health inspectors, as applicable, during normal hours of
operation, to assess compliance with these standards, unless inspections
and testing are made by an agency of the United States pursuant to, or by
the Tribe under express authorization of, federal law, to ensure compliance
with federal water quality and safe drinking water standards. Nothing
herein shall be construed as submission of the Tribe to the jurisdiction of
those state or county health inspectors, but any alleged violations of the
standards shall be treated as alleged violations of this Compact.
(c) Comply with the building and safety standards set forth in
Section 6.4.
(d) Carry no less than five million dollars ($5,000,000) in public
liability insurance for patron claims, and that the Tribe provide
reasonable assurance that those claims will be promptly and fairly
adjudicated, and that legitimate claims will be paid: provided that nothing
herein requires the Tribe to agree to liability for punitive damages or
attorneys' fees. On or before the effective date of this Compact or not
less than 30 days prior to the commencement of Gaming Activities under this
Compact, whichever is later, the Tribe shall adopt and make available to
patrons a tort liability ordinance setting forth the terms and conditions,
if any, under which the Tribe waives immunity to suit for money damages
resulting from intentional or negligent injuries to person or property at
the Gaming Facility or in connection with the Tribe's Gaming Operation,
including procedures for processing any claims for such money damages;
provided that nothing in this Section shall require the Tribe to waive its
immunity to suit except to the extent of the policy limits set out above.
(e) Adopt and comply with standards no less stringent than
federal workplace and occupational health and safety standards; the
Gaming Operation will allow for inspection of
26
Gaming Facility workplaces by state inspectors, during normal hours of
operation, to assess compliance with these standards, unless inspections
are regularly made by an agency of the United States government to ensure
compliance with federal workplace and occupational health and safety
standards. Nothing herein shall be construed as submission of the Tribe to
the jurisdiction of those state inspectors, but any alleged violations of
the standards shall be treated as alleged violations of this Compact.
(f) Comply with tribal codes and other applicable federal law
regarding public health and safety;
(g) Adopt and comply with standards no less stringent than federal
laws and state laws forbidding employers generally from discriminating in
the employment of persons to work for the Gaming Operation or in the Gaming
Facility on the basis of race, color, religion, national origin, gender,
sexual orientation, age, or disability; provided that nothing herein shall
preclude the tribe from giving a preference in employment to Indians,
pursuant to a duly adopted tribal ordinance.
(h) Adopt and comply with standards that are no less stringent
than state laws prohibiting a gaming enterprise from cashing any check
drawn against a federal, state, county, or city fund, including but not
limited to, Social Security, unemployment insurance, disability payments,
or public assistance payments.
(i) Adopt and comply with standards that are no less stringent
than state laws, if any, prohibiting a gaming enterprise from providing,
allowing, contracting to provide, or arranging to provide alcoholic
beverages, or food or lodging for no charge or at reduced prices at a
gambling establishment or lodging facility as an incentive or enticement.
(j) Adopt and comply with standards that are no less stringent
than state laws, if any, prohibiting extensions of credit.
(k) Provisions of the Bank Secrecy Act, P.L. 91-508, October 26,
1970, 31 U.S.C. Sec. 5311-5314, as amended, and all reporting requirements
of the Internal Revenue Service, insofar as such provisions and reporting
requirements are applicable to casinos.
Sec. 10.2.1 The Tribe shall adopt and, not later than 30 days
after the effective date of this Compact, shall make available on request
the standards described in subdivisions (a)-(c) and (e)-(k) of Section 10.2
to which the Gaming Operation is held. In the absence of a promulgated
tribal standard in respect to a matter identified in those subdivisions, or
the express adoption of an applicable federal statute or regulation in lieu
of a tribal standard in respect to any such matter, the applicable state
statute or regulation shall be deemed to have been adopted by the Tribe as
the applicable standard.
Sec. 10.3 Participation in state statutory programs related to
employment. (a) In lieu of permitting the Gaming Operation to participate
in the state statutory workers' compensation system, the Tribe may create
and maintain a system that provides redress for employee work-related
27
injuries through requiring insurance or self-insurance, which system must
include a scope of coverage, availability of an independent medical
examination, right to notice, hearings before an independent tribunal, a
means of enforcement against the employer, and benefits comparable to those
mandated for comparable employees under state law. Not later than the
effective date of this Compact, or 60 days prior to the commencement of
Gaming Activities under this Compact, the Tribe will advise the State of
its election to participate in the statutory workers' compensation system
or, alternatively, will forward to the State all relevant ordinances that
have been adopted and all other documents establishing the system and
demonstrating that the system is fully operational Sand compliant with the
comparability standard set forth above. The parties agree that independent
contractors doing business with the Tribe must comply with all state
workers' compensation laws and obligations.
(b) The Tribe agrees that its Gaming Operation will participate in
the State's program for providing unemployment compensation benefits and
unemployment compensation disability benefits with respect to employees
employed at the Gaming Facility, including compliance with the provisions
of the California Unemployment Insurance Code, and the Tribe consents to
the jurisdiction, of the state agencies charged with the enforcement of
that Code and of the courts of the State of California for purposes of
enforcement.
(c) As a matter of comity, with respect to persons employed at the
Gaming Facility, other than members of the Tribe, the Tribal Gaming
Operation shall withhold all taxes due to the State as provided in the
California Unemployment Insurance Code and the Revenue and Taxation Code,
and shall forward such amounts as provided in said Codes to the State.
Sec. 10.4 Emergency Service Accessibility. The Tribe shall make
reasonable provisions for adequate emergency fire, medical, and related
relief and disaster services for patrons and employees of the Gaming
Facility.
Sec. 10.5 Alcoholic Beverage Service. Standards for alcohol
service shall be subject to applicable law.
Sec. 10.6 Possession of firearms shall be prohibited at all times
in the Gaming Facility except for state, local, or tribal security or law
enforcement personnel authorized by tribal law and by federal or state law
to possess fire arms at the Facility.
Sec. 10.7 Labor Relations.
Notwithstanding any other provision of this Compact, this Compact
shall be null and void if, on or before October 13, 1999, the Tribe has not
provided an agreement or other procedure acceptable to the State for
addressing organizational and representational Rights of Class III Gaming
Employees and other employees associated with the Tribe's Class III gaming
enterprise, such as food and beverage, housekeeping, cleaning, xxxx and
door services, and laundry employees at the Gaming Facility or any related
facility, the only significant purpose of which is to facilitate patronage
at the Gaming Facility.
28
Sec. 10.8 Off-Reservation Environmental Impacts.
Sec. 10.8.1 On or before the effective date of this Compact, or
not less than 90 days prior to the commencement of a Project, as defined
herein, the Tribe shall adopt an ordinance providing for the preparation,
circulation, and consideration by the Tribe of environmental impact reports
concerning potential off-Reservation environmental impacts of any and all
Projects to be commenced on or after the effective date of this Compact. In
fashioning the environmental protection ordinance, the Tribe will make a
good faith effort to incorporate the policies and purposes of the National
Environmental Policy Act and the California Environmental Quality Act
consistent with the Tribe's governmental interests.
Sec. 10.8.2 (a) Prior to commencement of a Project, the Tribe will:
(1) Inform the public of the planned Project;
(2) Take appropriate actions to determine whether the project will
have any significant adverse impacts on the off-Reservation environment;
(3) For the purpose of receiving and responding to comments,
submit all environmental impact reports concerning the proposed Project to
the State Clearinghouse in the Office of Planning and Research and the
county board of supervisors, for distribution to the public.
(4) Consult with the board of supervisors of the county or
counties within which the Tribe's Gaming Facility is located, or is to be
located, and, if the Gaming Facility is within a city, with the city
council, and if requested by the board or council, as the case may be, meet
with them to discuss mitigation of significant adverse off-Reservation
environmental impacts;
(5) Meet with and provide an opportunity for comment by those
members of the public residing off-Reservation within the vicinity of the
Gaming Facility such as might be adversely affected by proposed Project.
(b) During the conduct of a Project, the Tribe shall:
(1) Keep the board or council, as the case may be, and potentially
affected members of the public apprized of the project's progress; and
(2) Make good faith efforts to mitigate any and all such
significant adverse off-Reservation environmental impacts.
(c) As used in Section 10.8.1 and this Section 10.8.2, the term
"Project" means any expansion or any significant renovation or modification
of an existing Gaming Facility, or any significant excavation,
construction, or development associated with the Tribe's Gaming Facility or
proposed Gaming Facility and the term "environmental impact reports" means any
29
environmental assessment, environmental impact report, or environmental
impact statement, as the case may be.
Sec. 10.8.3 (a) The Tribe and the State shall, from time to time,
meet to review the adequacy of this Section 10.8, the Tribe's ordinance
adopted pursuant thereto, and the Tribe's compliance with its obligations
under Section 10.8.2, to ensure that significant adverse impacts to the
off-Reservation environment resulting from projects undertaken by the Tribe
may be avoided or mitigated.
(b) At any time after January 1, 2003, but not later than March 1,
2003, the State may request negotiations for an amendment to this Section
10.8 on the ground that, as it presently reads, the Section has proven to
be inadequate to protect the off-Reservation environment from significant
adverse impacts resulting from Projects undertaken by the Tribe or to
ensure adequate mitigation by the Tribe of significant adverse
off-Reservation environmental impacts and, upon such a request, the Tribe
will enter into such negotiations in good faith.
(c) On or after January 1, 2004, the Tribe may bring an action in
federal court under 25 U.S.C. Sec. 2710(d)(7)(A)(i) on the ground that the
State has failed to negotiate in good faith, provided that the Tribe's good
faith in the negotiations shall also be in issue. In any such action, the
court may consider whether the State's invocation of its rights under
subdivision (b) of this Section 10.8.3 was in good faith. If the State has
requested negotiations pursuant to subdivision (b) but, as of January 1,
2005; there is neither an agreement nor an order against the State under 25
U.S.C. Sec. 2710(d)(7)(B)(iii), then, on that date, the Tribe shall
immediately cease construction and other activities on all projects then in
progress that have the potential to cause adverse off-Reservation impacts,
unless and until an agreement to amend this Section 10.8 has been concluded
between the Tribe and the State.
Sec. 11.0 EFFECTIVE DATE AND TERM OF COMPACT.
Sec. 11.1 Effective Date. This Gaming Compact shall not be
effective unless and until all of the following have occurred:
(a) The Compact is ratified by statute in accordance with state law;
(b) Notice of approval or constructive approval is published in
the Federal Register as provided in 25 U.S.C. 2710(d)(3)(B); and
(c) SCA 11 is approved by the California voters in the March 2000
general election.
Sec. 11.2 Term of Compact; Termination.
Sec. 11.2.1 Effective. (a) Once effective this Compact shall be in
full force and effect for state law purposes until December 31, 2020.
30
(b) Once ratified, this Compact shall constitute a binding and
determinative agreement between the Tribe and the State, without regard to
voter approval of any constitutional amendment, other than SCA 11, that
authorizes a gaming compact.
(c) Either party may bring an action in federal court, after
providing a sixty (60) day written notice of an opportunity to cure any
alleged breach of this Compact, for a declaration that the other party has
materially breached this Compact. Upon issuance of such a declaration, the
complaining party may unilaterally terminate this Compact upon service of
written notice on the other parry. In the event a federal court determines
that it lacks jurisdiction over such an action, the action may be brought
in the superior court for the county in which the Tribe's Gaming Facility
is located. The parties expressly waive their immunity to suit for purposes
of an action under this subdivision, subject to the qualifications stated
in Section 9.4(a).
Sec. 12.0 AMENDMENTS; RENEGOTIATIONS.
Sec. 12.1 The terms and conditions of this Gaming Compact may be
amended at any time by the mutual and written agreement of both parties.
Sec. 12.2 This Gaming Compact is subject to renegotiation in the
event the Tribe wishes to engage in forms of Class III gaming other than
those games authorized herein and requests renegotiation for that purpose,
provided that no such renegotiation may be sought for 12 months following
the effective date of this Gaming Compact.
Sec. 12.3 Process and Negotiation Standards. All requests to amend
or renegotiate this Gaming Compact shall be in writing, addressed to the
Tribal Chairperson or the Governor, as the case may be, and shall include
the activities or circumstances to be negotiated, together with a statement
of the basis supporting the request. If the request meets the requirements
of this Section, the parties shall confer promptly and determine a schedule
for commencing negotiations within 30 days of the request. Unless expressly
provided otherwise herein, all matters involving negotiations or other
amendatory processes under Section 4.3.3(b) and this Section 12.0 shall be
governed, controlled, and conducted in conformity with the provisions and
requirements of IGRA, including those provisions regarding the obligation
of the State to negotiate in good faith and the enforcement of that
obligation in federal court. The Chairperson of the Tribe and the Governor
of the State are hereby authorized to designate the person or agency
responsible for conducting the negotiations, and shall execute any
documents necessary to do so.
Sec. 12.4 The Tribe shall have the right to terminate this Compact
in the event the exclusive right of Indian tribes to operate Gaming Devices
in California is abrogated by the enactment, amendment, or repeal of a
state statute or constitutional provision, or the conclusive and
dispositive judicial construction of a statute or the state Constitution by
a California appellate court after the effective date of this Compact that
Gaming Devices may lawfully be operated by another person, organization, or
entity (other than an Indian tribe pursuant to a compact) within California.
31
Sec. 13.0 NOTICES
Unless otherwise indicated by this Gaming Compact, all notices
required or authorized to be served shall be served by first-class mail at
the following addresses:
Governor Tribal Chairperson
State Capitol Chuckchansi Indians
Xxxxxxxxxx, Xxxxxxxxxx 00000 00000 Xxxx 000
Xxxxxxxxxx, XX 00000
Sec. 14.0 CHANGES IN IGRA. This Gaming Compact is intended to meet
the requirements of IGRA as it reads on the effective date of this Gaming
Compact, and when reference is made to the Indian Gaming Regulatory Act or
to an implementing regulation thereof, the referenced provision is deemed
to have been incorporated into this Compact as if set out in full.
Subsequent changes to IGRA that diminish the rights of the State or the
Tribe may not be applied retroactively to alter the terms of this Gaming
Compact, except to the extent that federal law validly mandates that
retroactive application without the State's or the Tribe's respective
consent.
Sec. 15.0 MISCELLANEOUS.
Sec. 15.1 Third Party Beneficiaries. Except to the extent
expressly provided under this Gaming Compact, this Gaming Compact is not
intended to, and shall not be construed to, create any right on the part of
a third party to bring an action to enforce any of its terms.
Sec. 15.2 Complete agreement; revocation of prior requests to
negotiate. This Gaming Compact, together with all addenda and approved
amendments, sets forth the full and complete agreement of the parties and
supersedes any prior agreements or understandings with respect to the
subject matter hereof.
Sec. 15.3 Construction. Neither the presence in another
tribal-state compact of language that is not included in this Compact, nor
the absence in this Compact of language that is present in another
tribal-state compact shall be a factor in construing the terms of this
Compact.
Sec. 15.4 Most Favored Tribe. If, after the effective date of this
Compact, the State enters into a Compact with any other tribe that contains
more favorable provisions with respect to any provisions of this Compact,
the State shall, at the Tribe's request, enter into the preferred compact
with the Tribe as a superseding substitute for this Compact; provided that
the duration of the substitute compact shall not exceed the duration of
this Compact.
32
Sec. 15.5 Representations.
By entering into this Compact, the Tribe expressly represents
that, as of the date of the Tribe's execution of this Compact: (a) the
undersigned has the authority to execute this Compact on behalf of his or
her tribe and will provide written proof of such authority and ratification
of this Compact by the tribal governing body no later than October 9, 1999;
(b) the Tribe is (i) recognized as eligible by the Secretary of the
Interior for special programs and services provided by the United States to
Indians because of their status as Indians, and (ii) recognized by the
Secretary of the Interior as possessing powers of self-government. In
entering into this Compact, the State expressly relies upon the foregoing
representations by the Tribe, and the State's entry into the Compact is
expressly made contingent upon the truth of those representations as of the
date of the Tribe's execution of this Compact. Failure to provide written
proof of authority to execute this Compact or failure to provide written
proof of ratification by the Tribe's governing body will give the State the
opportunity to declare this Compact null and void.
IN WITNESS WHEREOF, the undersigned sign this Compact on behalf of the
State of California and the Chuckchansi Indians.
Done at Sacramento, California, this 10th day of September 1999.
STATE OF CALIFORNIA CHUCKCHANSI INDIANS
__________________________________ _______________________________
By Xxxx Xxxxx By XXXXX XXXXX
Governor of the State of California Chairperson of the
Chuckchansi Indians
33
ATTEST:
________________________________________
Xxxx Xxxxx
Secretary of State, State of California
[California State Seal]
[GRAPHIC OMITTED]
34
ADDENDUM "A" TO TRIBAL-STATE GAMING COMPACT
-------------------------------------------
BETWEEN THE CHUKCHANSI INDIANS
------------------------------
AND THE STATE OF CALIFORNIA
---------------------------
Modification No. 1
------------------
Section 6.4.4(d) is modified to read as follows:
Section 6.4.4(d) is modified to read as follows:
(d) (1) 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 (A) the person holds a valid and current license issued
by the Tribal Gaming Agency that must be renewed at least biennially; (B)
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 (C) the person is not an employee or agent of any other
gaming operation.
(2) For purposes of this subdivision, "enrolled member" means a person
who is either: (A) a person certified by the Tribe as having been a member
of the Tribe for at least five (5) years; (B) a holder of confirmation of
membership issued by the Bureau of Indian Affairs: or (C), if the Tribe has 100
or more enrolled members as of the date of execution of this Compact, a person
certified by the Tribe as being a member pursuant to criteria and standards
specified in a tribal Constitution that has been approved by the Secretary of
the Interior.
Modification No. 2
------------------
Section 8.4.1(e) is modified to read as follows:
(e) The Tribe may object to a State Gaming Agency regulation on the
ground that it is unnecessary, unduly burdensome, conflicts with a published
final regulation of the NIGC, or is unfairly discriminatory, and may seek repeal
or amendment of the regulation through the dispute resolution process of Section
9.0; provided that, if the regulation of the State Gaming Agency conflicts with
a final published regulation of the NIGC, the NIGC regulation shall govern
pending conclusion of the dispute resolution process.
Modification No. 3
------------------
Section 12.2 is modified to read as follows:
Sec. 12.2. (a) This Gaming Compact is subject to renegotiation in the
event the Tribe wishes to engage in forms of Class III gaming other than those
games authorized herein and requests renegotiation for that purpose, provided
that no such renegotiation may be sought for 12 months following the effective
date of this Gaming Compact.
1
(b) Nothing herein shall be construed to constitute a waiver of any
rights under IGRA in the event of an expansion of the scope of permissible
gaming resulting from a change in state law.
Modification No. 4
------------------
Section 11.2.1(a) is modified to read:
Sec. 11.2.1. Effective. (a) Once effective this Compact shall be in
full force and effect for state law purposes until December 31, 2020. No sooner
than eighteen (18) months prior to the aforementioned termination date, either
party may request the other party to enter into negotiations to extend this
Compact or to enter into a new compact. If the parties have not agreed to extend
the date of this Compact or entered into a new compact by the termination date,
this Compact will automatically be extended to June 30, 2022, unless the parties
have agreed to an earlier termination date.
Modification No. 5
------------------
Section 12.4 is modified to read as follows:
Sec. 12.4. In the event the exclusive right of Indian tribes to
operate Gaming Devices in California is abrogated by the enactment,
amendment, or repeal of a state statute or constitutional provision, or the
conclusive and dispositive judicial construction of a statute or the state
Constitution by a California appellate court after the effective date of
this Compact, that Gaming Devices may lawfully be operated by another
person, organization, or entity (other than an Indian tribe pursuant to a
compact) within California, the Tribe shall have the right to: (i)
termination of this Compact in which case the Tribe will lose the right to
operate Gaming Devices and other Class III gaming, or (ii) continue under
the Compact with an entitlement to a reduction of the rates specified in
Section 5.1(a) following conclusion of negotiations, to provide for (a)
compensation to the State for actual and reasonable costs of regulation, as
determined by the state Department of Finance: (b) reasonable payments to
local governments impacted by tribal government gaming; (c) grants for
programs designed to address gambling addiction: (d) and such assessments
as may be permissible at such time under federal law.
Modification No. 6
------------------
Section 10.2(d) is modified to read as follows:
(d) Carry no less than five million dollars (55,000.000) in public
liability insurance for patron claims, and the Tribe shall request its
insurer to promptly and fairly settle all valid claims; provided that
nothing herein requires the Tribe to agree to liability for punitive
damages, any intentional acts not covered by the insurance policy, or
attorneys' fees. On or before the effective date of this Compact or not
less than 30 days prior to the commencement of Gaming Activities under this
Compact, whichever is later, the Tribe shall adopt and make available to
patrons a tort liability ordinance setting forth the terms and conditions,
if any, under which the Tribe waives immunity to suit for money damages
resulting from intentional or
2
negligent injuries to person or property at the Gaming Facility or in
connection with the Tribe's Gaming Operation, including procedures for
processing any claims for such money damages; provided that nothing in this
Section shall require the Tribe to waive its immunity to suit except to the
extent of the policy limits and insurance coverage set out above.
Modification No. 7
------------------
Section 10.2(k) is modified to read as follows:
(k) Comply with provisions of the Bank Secrecy Act, P.L. 91-508,
October 26, 1970, 31 U.S.C. Sec. 5311-5314, as amended, and all reporting
requirements of the Internal Revenue Service, insofar as such provisions and
reporting requirements are applicable to casinos.
3
IN WITNESS WHEREOF, the undersigned sign this Addendum on behalf of the
State of California and the Chukchansi Indians.
STATE OF CALIFORNIA CHUCKCHANSI INDIANS
__________________________________ __________________________________
By Xxxx Xxxxx By Xxxxx Xxxxx
Governor of the State of California Chairperson of the Chuckchansi
Indians
Executed this 8th day of October, Executed this 1st day of October,
1999, at Sacramento, California. 1999, at Coarsegold, California
4
ATTEST:
________________________________________
Xxxx Xxxxx
Secretary of State, State of California
[California State Seal]
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5
ADDENDUM "B" TO TRIBAL-STATE GAMING COMPACT
-------------------------------------------
BETWEEN THE CHUKCHANSI INDIANS
------------------------------
AND THE STATE OF CALIFORNIA
---------------------------
In compliance with Section 10.7 of the Compact, the Tribe agrees to
adopt an ordinance identical to the Model Tribal Labor Relations Ordinance
attached hereto, and to notify the State of that adoption no later than October
12, 1999. If such notice has not been received by the State by October 13, 1999,
this Compact shall be null and void. Failure of the Tribe to maintain the
Ordinance in effect during the term of this Compact shall constitute a material
breach entitling the State to terminate this Compact. No amendment of the
Ordinance shall be effective unless approved by the State.
Attachment: Model Tribal Labor Relations Ordinance.
IN WITNESS WHEREOF, the undersigned sign this Addendum on behalf of the
State of California and the Chukchansi Indians.
STATE OF CALIFORNIA CHUCKCHANSI INDIANS
__________________________________ __________________________________
By Xxxx Xxxxx By Xxxxx Xxxxx
Governor of the State of California Chairperson of the Chuckchansi
Indians
Executed this 8th day of October, Executed this 1st day of October,
1999, at Sacramento, California. 1999, at Xxxxxxxxxx, Xxxxxxxxxx
# # # #
0
XXXXXX:
________________________________________
Xxxx Xxxxx
Secretary of State, State of California
[California State Seal]
[GRAPHIC OMITTED]
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7
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Picayune Rancheria
Of the
CHUKCHANSI INDIANS
00000 Xxxx 000 x Xxxxxxxxxx, XX 00000 o (000) 000-0000 o FAX (000) 000-0000
Governor Xxxx Xxxxx
State Capital
Sacramento, California
Re: Notice of Adoption Of Tribal Labor Relations Ordinance
------------------------------------------------------
Dear Xxxxxxxx Xxxxx:
Pursuant to Section 10.7 of the Tribal-Stare Gaming Compact entered into by the
Chukchansi Indians, I hereby notify you that the Chukchansi Indians adopted the
Tribal Labor Relations Ordinance pursuant to Section 10.7 of the Tribal-State
Gaming Compact on October 1.
I declare under penalty of perjury that the foregoing is true and
correct. Executed this 1st day of October, 1999, at Coarsegold, California.
____________________________________
(Signature)
____________________________________
(Print Name)
____________________________________
(Title)
____________________________________
(Address)
____________________________________
(Date)
________________________________________
Xxxx Xxxxx
Secretary of State, State of California
[California State Seal]
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2
TRIAL LABOR RELATIONS ORDINANCE
September 14, 1999
Section 1: Threshold of applicability
(a) Any tribe with 250 or more persons employed in a tribal casino and
related facility shall adopt this Tribal Labor Relations Ordinance (TLRO or
Ordinance). For purposes of this ordinance, a "tribal casino" is one in which
class III gaming is conducted pursuant to a tribal-state compact. A "related
facility" is one for which the only significant purpose is to facilitate
patronage of the class III gaming operations.
(b) Any tribe which does not operate such a tribal casino as of
September 10, 1999, but which subsequently opens a tribal casino, may delay
adoption of this ordinance until one year from the date the number of employees
in the tribal casino or related facility as defined in 1(a) above exceeds 250.
(c) Upon the request of a labor union, the Tribal Gaming Commission
shall certify the number of employees in a tribal casino or other related
facility as defined in 1(a) above. Either party may dispute the certification of
the Tribal Gaming Commission to the Tribal Labor Panel.
Section 2: Definition of Eligible Employees
(a) The provisions of this ordinance shall apply to any person
(hereinafter "Eligible Employee") who is employed within a tribal casino in
which Class III gaming is conducted pursuant to a tribal-state compact or
other related facility, the only significant purpose of which is to
facilitate patronage of the Class III gaming operations, except for any of
the following:
(1) any employee who is a supervisor, defined as any individual
having authority, in the interest of the tribe and/or employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibility to direct them or to adjust
their grievances, or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment;
(2) any employee of the Tribal Gaming Commission;
(3) any employee of the security or surveillance department, other
than those who are responsible for the technical repair and maintenance of
equipment;
(4) any cash operations employee who is a "cage" employee or money
counter; or (5) any dealer.
Section 3: Non-interference with regulatory or security activities
Operation of this Ordinance shall not interfere in any way with
the duty of the Tribal Gaming Commission to regulate the gaming operation
in accordance with the Tribe's National
Indian Gaming Commission-approved gaming ordinance. Furthermore, the
exercise of rights hereunder shall in no way interfere with the tribal
casino's surveillance/security systems, or any other internal controls
system designed to protect the integrity of the tribe's gaming operations.
The Tribal Gaming Commission is specifically excluded from the definition
of tribe and its agents.
Section 4: Eligible Employees free to engage in or refrain from concerted
activity
Eligible Employees shall have the right to self-organization, to form,
to join, or assist employee organizations, to bargain collectively through
representatives of their own choosing, to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all such activities.
Section 5: Unfair Labor Practices for the tribe
It shall be an unfair labor practice for the tribe and/or employer
or their agents:
(1) to interfere with, restrain or coerce Eligible Employees in
the exercise of the rights guaranteed herein;
(2) to dominate or interfere with the formation of administration of
any labor organization or contribute financial or other support to it, but this
does not restrict the tribe and/or employer and a certified union from agreeing
to union security or dues checkoff;
(3) to discharge or otherwise discriminate against an Eligible Employee
because s/he has filed charges or given testimony under this Ordinance;
(4) to refuse to bargain collectively with the representatives of
Eligible Employees.
Section 6: Unfair Labor Practices for the union
It shall be an unfair labor practice for a labor organization or
its agents:
(1) to interfere, restrain or coerce Eligible Employees in the
exercise of the rights guaranteed herein;
(2) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce to engage
in, a strike or a primary or secondary boycott or a refusal in the course of his
employment to use, manufacture, process, transport or otherwise handle or work
on any goods, articles, materials, or commodities or to perform any services; or
to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce or other terms and conditions of employment. This
section does not apply to section 11;
(3) to force or require the tribe and/or employer to recognize or
bargain with a particular labor organization as the representative of Eligible
Employees if another labor organization has been certified as the representative
of such Eligible Employees under the provisions of this TLRO;
(4) to refuse to bargain collectively with the tribe and/or employer,
provided it is the representative of Eligible Employees subject to the
provisions herein;
2
(5) to attempt to influence the outcome of a tribal governmental
election, provided, however, that this section does not apply to tribal members.
Section 7: Tribe and union right to free speech
The tribe's and union's expression of any view, argument or
opinion or the dissemination thereof, whether in written, printed, graphic or
visual form, shall not constitute or be evidence of interference with, restraint
or coercion, if such expression contains no threat of reprisal or force or
promise of benefit.
Section 8: Access to Eligible Employees
(a) Access shall be granted to the union for the purposes of
organizing Eligible Employees, provided that such organizing activity shall
not interfere with patronage of the casino or related facility or with the
normal work routine of the Eligible Employees and shall be done on non-work
time in non-work areas that are designated as employee break rooms or
locker rooms that are not open to the public. The tribe may require the
union and or union organizers to be subject to the same licensing rules
applied to individuals or entities with similar levels of access to the
casino or related facility, provided that such licensing shall not be
unreasonable, discriminatory, or designed to impede access.
(b) The Tribe, in its discretion, may also designate additional
voluntary access to the Union in such areas as employee parking lots and
non-Casino facilities located on tribal lands.
(c) In determining whether organizing activities potentially
interfere with normal tribal work routines, the union's activities shall
not be permitted if the Tribal Labor Panel determines that they compromise
the operation of the casino:
(1) security and surveillance systems throughout the casino, and
reservation;
(2) access limitations designed to ensure security;
(3) internal controls designed to ensure security;
(4) other systems designed to protect the integrity of the tribe's
gaming operations, tribal property and/or safety of casino personnel,
patrons, employees or tribal members, residents, guests or invitees.
(d) The tribe shall provide to the union, upon a thirty percent (30%)
showing of interest to the Tribal Labor Panel, an election eligibility list
containing the full first and last name of the Eligible Employees within the
sought after bargaining unit and the Eligible Employees' last known address
within ten (10) working days. Nothing herein shall preclude a tribe from
voluntarily providing an election eligibility list and an earlier point of a
union organizing campaign.
(e) The tribe agrees to facilitate the dissemination of information
from the union to Eligible Employees at the tribal casino by allowing posters,
leaflets and other written materials to be posted in non-public employee
break areas where the tribe already posts announcements
3
pertaining to Eligible Employees. Actual posting of such posters, notices,
and other materials, shall be by employees desiring to post such materials.
Section 9: Indian preference explicitly permitted
Nothing herein shall preclude the tribe from giving Indian
preference in employment, promotion, seniority, lay-offs or retention to
members of any federally recognized Indian tribe or shall in any way affect
the tribe's right to follow tribal law, ordinances, personnel policies or
the tribe's customs or traditions regarding Indian preference in
employment, promotion, seniority, lay-offs or retention. Moreover, in the
event of a conflict between tribal law, tribal ordinance or the tribe's
customs and traditions regarding Indian preference and this Ordinance, the
tribal law, tribal ordinance or the tribe's customs and traditions shall
govern.
Section 10: Secret ballot elections required
(a) Dated and signed authorized cards from thirty percent (30%) or more
of the Eligible Employees within the bargaining unit verified by the elections
officer will result in a secret ballot election to be held within 30 days from
presentation to the elections officer.
(b) The election shall be conducted by the election office. The
election officer shall be a member of the Tribal Labor Panel chosen pursuant to
the dispute resolution provisions herein. All questions concerning
representation of the tribe and/or Employer's Eligible Employees by a labor
organization shall be resolved by the election officer. The election officer
shall be chosen upon notification by the labor organization to the tribe of its
intention to present authorization cards, and the same election officer shall
preside thereafter for all proceedings under the request for recognition;
provided however that if the election officer resigns, dies or is incapacitated
for any other reason from performing the functions of this office, a substitute
election officer shall be selected in accordance with the dispute resolution
provisions herein.
(c) The election officer shall certify the labor organization as the
exclusive collective bargaining representative of a unit of employees if the
labor organization has received the majority of votes by employees voting in a
secret ballot election that the election officer determines to have been
conducted fairly. If the election officer determines that the election was
conducted unfairly due to misconduct by the tribe and/or employer or union, the
election officer may order a re-run election. If the election officer determines
that there was the commission of serious Unfair Labor Practices by the tribe
that interfere with the election process and preclude the holding of a fair
election, and the labor organization is able to demonstrate that it had the
support of a majority of the employees in the unit at any point before or during
the course of the tribe's misconduct, the election officer shall certify the
labor organization.
(d) The tribe or the union may appeal any decision rendered after the
date of the election by the election officer to a three (3) member panel of the
Tribal Labor Panel mutually chosen by both parties.
4
(e) A union which loses an election and has exhausted all dispute
remedies related to the election may not invoke any provisions of this labor
ordinance at that particular casino or related facility until one year after the
election was lost.
Section 11: Collective bargaining impasse
Upon recognition, the tribe and the union will negotiate in good
faith for a collective bargaining agreement covering bargaining unit
employees represented by the union. If collective bargaining negotiations
result in impasse, and the matter has not been resolved by the tribal forum
procedures sets forth in Section 13(b) governing resolution of impasse
within sixty (60) working days or such other time as mutually agreed to by
the parties, the union shall have the right to strike. Strike-related
picketing shall not be conducted on Indian lands as defined in 25 U.S.C.
Sec. 2703 (4).
Section 12: Decertification of bargaining agent
(a) The filing of any petition signed by thirty percent (30%) or more
of the Eligible Employees in a bargaining unit seeking the decertification of a
certified union, will result in a secret ballot election to be held 30 days from
the presentation of the petition.
(b) The election shall be conducted by an election officer. The
election officer shall be a member of the Tribal Labor Panel chosen pursuant to
the dispute resolution provisions herein. All questions concerning the
decertification of the labor organization shall be resolved by an election
officer. The election officer shall be chosen upon notification to the tribe and
the union of the intent of the employees to present a decertification petition,
and the same election officer shall preside thereafter for all proceedings under
the request for decertification; provided however that if the election officer
resigns, dies or is incapacitated for any other reason from performing the
functions of this office, a substitute election officer shall be selected in
accordance with the dispute resolution provisions herein.
(c) The election officer shall order the labor organization decertified
as the exclusive collective bargaining representative if a majority of the
employees voting in a secret ballot election that the election officer
determines to have been conducted fairly vote to decertify the labor
organization. If the election officer determines that the election was conducted
unfairly due to misconduct by the tribe and/or employer or the union the
election officer may order a re-run election or dismiss the decertification
petition.
(d) A decertification proceeding may not begin until one (1) year after
the certification of a labor union if there is no collective bargaining
agreement. Where there is a collective bargaining agreement, a decertification
petition may only be filed no more than 90 days and no less than 60 days prior
to the expiration of a collective bargaining agreement. A decertification
petition may be filed anytime after the expiration of a collective bargaining
agreement.
5
(e) The tribe or the union may appeal any decision rendered after the
date of the election by the election officer to a three (3) member panel of the
Tribal Labor Panel mutually chosen by both parties.
Section 13: Binding dispute resolution mechanism
(a) All issues shall be resolved exclusively through the binding
dispute resolution mechanisms herein, with the exception of a collective
bargaining negotiation impasse, which shall only go through the first level of
binding dispute resolution.
(b) The first level of binding dispute resolution for all matters
related to organizing, election procedures, alleged unfair labor practices, and
discharge of Eligible Employees shall be an appeal to a designated tribal forum
such as a Tribal Council, Business Committee, or Grievance Board. The parties
agree to pursue in good faith the expeditious resolution of these xxxxxx within
strict time limits. The time limits may not be extended without the agreement of
both parties. In the absence of a mutually satisfactory resolution, either party
may proceed to the independent binding dispute resolution set forth below. The
agreed upon time limits are set forth as follows:
(1) All matters related to organizing, election procedures and alleged
unfair labor practices prior to the union becoming certified as the collective
bargaining representative of bargaining unit employees, shall be resolved by the
designated tribal forum within thirty (30) working days..
(2) All matters after the union has become certified as the collective
bargaining representative and relate specifically to impasse during
negotiations, shall be resolved by the designated tribal forum within sixty (60)
working days;
(c) The second level of binding dispute resolution shall be a
resolution by the Tribal Labor Panel, consisting of ten (10 arbitrators
appointed by the mutual selection of the parties which panel shall serve all
tribes that have adopted this ordinance. The Tribal Labor Panel shall have
authority to hire staff and take other actions necessary to conduct elections,
determine units, determine scope of negotiations, hold hearings, subpoena
witnesses, take testimony, and conduct all other activities needed to fulfill
its obligations under this Tribal Labor Relations Ordinance.
(1) Each member of the Tribal Labor Panel shall have relevant
experience in federal labor law and/or federal Indian law with preference given
to those with experience in both. Names of individuals may be provided by such
sources as, but not limited to, Indian Dispute Services, Federal Mediation and
Conciliation Service, and the American Academy of Arbitrators.
(2) Unless either party objects, one arbitrator from the Tribal Labor
Panel will render a binding decision on the dispute under the Ordinance. If
either party objects, the dispute will be decided by a three-member panel of the
Tribal Labor Panel, which will render a binding decision. In the event there is
one arbitrator, five (5) Tribal Labor Panel names shall be submitted to the
parties and each party may strike no more than two (2) names. In the event
6
there is a three (3) member panel, seven (7) TLP names shall be submitted to the
parties and each party may strike no more than two (2) names. A coin toss shall
determine which party may strike the first name. The arbitrator will generally
follow the American Arbitration Association's procedural rules relating to labor
dispute resolution. The arbitrator or panel must render a written, binding
decision that complies in all respects with the provisions of this Ordinance.
(d) Under the third level of binding dispute resolution, either party
may seek a motion to compel arbitration or a motion to confirm an arbitration
award in Tribal Court, which may be appealed to federal court. If the Tribal
Court does not render its decision within 90 days, or in the event there is no
Tribal Court, the matter may proceed directly to federal court. In the event the
federal court declines jurisdiction, the tribe agrees to a limited waiver of its
sovereign immunity for the sole purpose of compelling arbitration or confirming
an arbitration award issued pursuant to the Ordinance in the appropriate state
superior court. The parties are free to put at issue whether or not the
arbitration award exceeds the authority of the Tribal Labor Panel.
7
ATTACHMENT TO
ADDENDUM B
TABLE OF CONTENTS
Sec. 1.0 PURPOSES AND OBJECTIVES..........................................2
Sec. 2.0 DEFINITIONS......................................................2
Sec. 3.0 CLASS III GAMING AUTHORIZED AND PERMITTED........................5
Sec. 4.0 SCOPE OF CLASS III GAMING........................................5
Sec. 5.0 REVENUE DISTRIBUTION.............................................8
Sec. 6.0 LICENSING........................................................9
Sec. 7.0 COMPLIANCE ENFORCEMENT..........................................18
Sec. 8.0 RULES AND REGULATIONS FOR THE OPERATION AND
MANAGEMENT OF THE TRIBAL GAMING OPERATION......................20
Sec. 9.0 DISPUTE RESOLUTION PROVISIONS...................................24
Sec. 10.0 PUBLIC AND WORKPLACE HEALTH, SAFETY,
AND LIABILITY...................................................26
Sec. 11.0 EFFECTIVE DATE AND TERM OF COMPACT..............................30
Sec. 12.0 AMENDMENTS; RENEGOTIATIONS......................................31
Sec. 13.0 NOTICES.........................................................32
Sec. 14.0 CHANGES IN IGRA.................................................32
Sec. 15.0 MISCELLANEOUS...................................................32
