EXHIBIT 10.1
TRIBAL-STATE COMPACT
BETWEEN
THE STATE OF CALIFORNIA
AND THE
DRY CREEK RANCHERIA
OF POMO INDIANS
TABLE OF CONTENTS
PREAMBLE.....................................................................1
Section 1.0. PURPOSES AND OBJECTIVES........................................2
Sec. 2.0. DEFINITIONS......................................................3
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.......................................................10
Sec. 7.0. COMPLIANCE ENFORCEMENT..........................................19
Sec. 8.0. RULES AND REGULATIONS FOR THE OPERATION
AND MANAGEMENT OF THE TRIBAL GAMING OPERATION...................22
Sec. 9.0. DISPUTE RESOLUTION PROVISIONS...................................26
Sec. 10.0. PUBLIC AND WORKPLACE HEALTH, SAFETY, AND LIABILITY..............28
Sec. 11.0. EFFECTIVE DATE AND TERM OF COMPACT..............................33
Sec. 12.0. AMENDMENTS; RENEGOTIATIONS......................................33
Sec. 13.0 NOTICES.........................................................34
Sec. 14.0. CHANGES IN IGRA.................................................34
Sec. 15.0. MISCELLANEOUS...................................................35
ATTACHMENTS:
ADDENDUM A
ADDENDUM B
NOTICE OF ADOPTION OF MODEL TRIBAL LABOR RELATIONS ORDINANCE
MODEL TRIBAL LABOR RELATIONS ORDINANCE
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TRIBAL-STATE GAMING COMPACT
Between the DRY CREEK RANCHERIA, 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 Dry Creek Rancheria, 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 Sonoma
County of California.
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D. The State enters into this Compact out of respect for the
sovereignty of the Tribe; in recognition of the historical fact that Indian
gaming has become the single largest revenue-producing activity for Indian
tribes in the United States; out of a desire to terminate pending "bad faith"
litigation between the Tribe and the State; to initiate a new era of
tribal-state cooperation in areas of mutual concern; out of a respect for the
sentiment of the voters of California who, in approving Proposition 5, expressed
their belief that the forms of gaming authorized herein should be allowed; and
in anticipation of voter approval of SCA 11 as passed by the California
legislature.
E. The exclusive rights that Indian tribes in California, including the
Tribe, will enjoy under this Compact create a unique opportunity for the Tribe
to operate its Gaming Facility in an economic environment free of competition
from the Class III gaming referred to in Section 4.0 of this Compact on
non-Indian lands in California. The parties are mindful that this unique
environment is of great economic value to the Tribe and the fact that income
from Gaming Devices represents a substantial portion of the tribes' gaming
revenues. In consideration for the exclusive rights enjoyed by the tribes, and
in further consideration for the State's willingness to enter into this Compact,
the tribes have agreed to provide to the State, on a sovereign-to-sovereign
basis, a portion of its revenue from Gaming Devices.
F. The State has a legitimate interest in promoting the purposes of
IGRA for all federally-recognized Indian tribes in California, whether gaming or
non-gaming. The State contends that it has an equally legitimate sovereign
interest in regulating the growth of Class III gaming activities in California.
The Tribe and the State share a joint sovereign interest in ensuring that tribal
gaming activities are free from criminal and other undesirable elements.
Section 1.0. PURPOSES AND OBJECTIVES.
The terms of this Gaming Compact are designed and intended to:
(a) Evidence the goodwill and cooperation of the Tribe and State in
fostering a mutually respectful government-to-government relationship that will
serve the mutual interests of the parties.
(b) Develop and implement a means of regulating Class III gaming, and
only Class III gaming, on the Tribe's Indian lands to ensure its fair and honest
operation in accordance with IGRA, and through that regulated Class III gaming,
enable the Tribe to develop self-sufficiency, promote tribal economic
development, and generate jobs and revenues to support the Tribe's government
and governmental services and programs.
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(c) Promote ethical practices in conjunction with that gaming, through
the licensing and control of persons and entities employed in, or providing
goods and services to, the Tribe's Gaming Operation and protecting against the
presence or participation of persons whose criminal backgrounds, reputations,
character, or associations make them unsuitable for participation in gaming,
thereby maintaining a high level of integrity in tribal government gaming.
Sec. 2.0. DEFINITIONS.
Sec. 2.1. "Applicant" means an individual or entity that applies for a
Tribal license or State certification.
Sec. 2.2. "Association" means an association of California tribal and
state gaming regulators, the membership of which comprises up to two
representatives from each tribal gaming agency of those tribes with whom the
State has a gaming compact under IGRA, and up to two delegates each from the
state Division of Gambling Control and the state Gambling Control Commission.
Sec. 2.3. "Class III gaming" means the forms of Class III gaming
defined as such in 25 U.S.C. Sec. 2703(8) and by regulations of the National
Indian Gaming Commission.
Sec. 2.4. "Gaming Activities" means the Class III gaming activities
authorized under this Gaming Compact.
Sec. 2.5. "Gaming Compact" or "Compact" means this compact.
Sec. 2.6. "Gaming Device" means a slot machine, including an
electronic, electromechanical, electrical, or video device that, for
consideration, permits: individual play with or against that device or the
participation in any electronic, electromechanical, electrical, or video system
to which that device is connected; the playing of games thereon or therewith,
including, but not limited to, the playing of facsimiles of games of chance or
skill; the possible delivery of, or entitlement by the player to, a prize or
something of value as a result of the application of an element of chance; and a
method for viewing the outcome, prize won, and other information regarding the
playing of games thereon or therewith.
Sec. 2.7. "Gaming Employee" means any person who (a) operates,
maintains, repairs, assists in any Class III gaming activity, or is in any way
responsible for supervising such gaming activities or persons who conduct,
operate, account for, or supervise any such gaming activity, (b) is in a
category under federal or tribal gaming law requiring licensing, (c) is an
employee of the Tribal Gaming Agency with access to confidential information, or
(d) is a person whose employment duties require or authorize access to areas of
the Gaming Facility that are not open to the public.
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Sec. 2.8. "Gaming Facility" or "Facility" means any building in which
Class III gaming activities or gaming operations occur, or in which the business
records, receipts, or other funds of the gaming operation are maintained (but
excluding offsite facilities primarily dedicated to storage of those records,
and financial institutions), and all rooms, buildings, and areas, including
parking lots and walkways, a principal purpose of which is to serve the
activities of the Gaming Operation, provided that nothing herein prevents the
conduct of Class II gaming (as defined under IGRA) therein.
Sec. 2.9. "Gaming Operation" means the business enterprise that offers
and operates Class III Gaming Activities, whether exclusively or otherwise.
Sec. 2.10. "Gaming Ordinance" means a tribal ordinance or resolution
duly authorizing the conduct of Class III Gaming Activities on the Tribe's
Indian lands and approved under IGRA.
Sec. 2.11. "Gaming Resources" means any goods or services provided or
used in connection with Class III Gaming Activities, whether exclusively or
otherwise, including, but not limited to, equipment, furniture, gambling devices
and ancillary equipment, implements of gaming activities such as playing cards
and dice, furniture designed primarily for Class III gaming activities,
maintenance or security equipment and services, and Class III gaming consulting
services. "Gaming Resources" does not include professional accounting and legal
services.
Sec. 2.12. "Gaming Resource Supplier" means any person or entity who,
directly or indirectly, manufactures, distributes, supplies, vends, leases, or
otherwise purveys Gaming Resources to the Gaming Operation or Gaming Facility,
provided that the Tribal Gaming Agency may exclude a purveyor of equipment or
furniture that is not specifically designed for, and is distributed generally
for use other than in connection with, Gaming Activities, if the purveyor is not
otherwise a Gaming Resource Supplier as described by of Section 6.4.5, the
compensation received by the purveyor is not grossly disproportionate to the
value of the goods or services provided, and the purveyor is not otherwise a
person who exercises a significant influence over the Gambling Operation.
Sec. 2.13. "IGRA" means the Indian Gaming Regulatory Act of 1988 (P.L.
100-497, 18 U.S.C. Sec. 1166 et seq. and 25 U.S.C. Sec. 2701 et seq.) any
amendments thereto, and all regulations promulgated thereunder.
Sec. 2.14. "Management Contractor" means any Gaming Resource Supplier
with whom the Tribe has contracted for the management of any Gaming Activity or
Gaming Facility, including, but not limited to, any person who would be regarded
as a management contractor under IGRA.
Sec. 2.15. "Net Win" means "net win" as defined by American Institute
of Certified Public Accountants.
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Sec. 2.16. "NIGC" means the National Indian Gaming Commission.
Sec. 2.17. "State" means the State of California or an authorized
official or agency thereof.
Sec. 2.18. "State Gaming Agency" means the entities authorized to
investigate, approve, and regulate gaming licenses pursuant to the Gambling
Control Act (Chapter 5 (commencing with Section 19800) of Division 8 of the
Business and Professions Code).
Sec. 2.19. "Tribal Chairperson" means the person duly elected or
selected under the Tribe's organic documents, customs, or traditions to serve as
the primary spokesperson for the Tribe.
Sec. 2.20. "Tribal Gaming Agency" means the person, agency, board,
committee, commission, or council designated under tribal law, including, but
not limited to, an intertribal gaming regulatory agency approved to fulfill
those functions by the National Indian Gaming Commission, as primarily
responsible for carrying out the Tribe's regulatory responsibilities under IGRA
and the Tribal Gaming Ordinance. No person employed in, or in connection with,
the management, supervision, or conduct of any gaming activity may be a member
or employee of the Tribal Gaming Agency.
Sec. 2.21. "Tribe" means the Dry Creek Rancheria, 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.
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(e) Nothing herein shall be construed to preclude negotiation of a
separate compact governing the conduct of off-track wagering at the Tribe's
Gaming Facility.
Sec. 4.2. Authorized Gaming Facilities. The Tribe may establish and
operate not more than two Gaming Facilities, and only on those Indian lands on
which gaming may lawfully be conducted under the Indian Gaming Regulatory Act.
The Tribe may combine and operate in each Gaming Facility any forms and kinds of
gaming permitted under law, except to the extent limited under IGRA, this
Compact, or the Tribe's Gaming Ordinance.
Sec. 4.3. Sec. 4.3. Authorized number of Gaming Devices
Sec. 4.3.1. The Tribe may operate no more Gaming Devices than the
larger of the following:
(a) A number of terminals equal to the number of Gaming Devices
operated by the Tribe on September 1, 1999; or
(b) Three hundred fifty (350) Gaming Devices.
Sec. 4.3.2. Revenue Sharing with Non-Gaming Tribes.
(a) For the purposes of this Section 4.3.2 and Section 5.0, the
following definitions apply:
(i) A "Compact Tribe" is a tribe having a compact with the State that
authorizes the Gaming Activities authorized by this Compact.
Federally-recognized tribes that are operating fewer than 350 Gaming Devices are
"Non-Compact Tribes." Non-Compact Tribes shall be deemed third party
beneficiaries of this and other compacts identical in all material respects. A
Compact Tribe that becomes a Non-Compact Tribe may not thereafter return to the
status of a Compact Tribe for a period of two years becoming a Non-Compact
Tribe.
(ii) The Revenue Sharing Trust Fund is a fund created by the
Legislature and administered by the California Gambling Control Commission, as
Trustee, for the receipt, deposit, and distribution of monies paid pursuant to
this Section 4.3.2.
(iii) The Special Distribution Fund is a fund created by the
Legislature for the receipt, deposit, and distribution of monies paid pursuant
to Section 5.0.
Sec. 4.3.2.1. Revenue Sharing Trust Fund.
(a) The Tribe agrees with all other Compact Tribes that are parties to
compacts having this Section 4.3.2, that each Non-Compact Tribe in the State
shall receive the sum of $1.1 million per year. In the event there are
insufficient monies in the Revenue Sharing Trust Fund to pay $1.1 million per
year to each Non-Compact Tribe, any available monies in that Fund shall be
distributed to Non-Compact Tribes in equal shares. Monies in excess of the
amount necessary to $1.1 million to each Non-Compact Tribe shall remain in the
Revenue Sharing Trust Fund available for disbursement in future years.
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(b) Payments made to Non-Compact Tribes shall be made quarterly and in
equal shares out of the Revenue Sharing Trust Fund. The Commission shall serve
as the trustee of the fund. The Commission shall have no discretion with respect
to the use or disbursement of the trust funds. Its sole authority shall be to
serve as a depository of the trust funds and to disburse them on a quarterly
basis to Non-Compact Tribes. In no event shall the State's General Fund be
obligated to make up any shortfall or pay any unpaid claims.
Sec. 4.3.2.2. Allocation of Licenses.
(a) The Tribe, along with all other Compact Tribes, may acquire
licenses to use Gaming Devices in excess of the number they are authorized to
use under Sec. 4.3.1, but in no event may the Tribe operate more than 2,000
Gaming Devices, on the following terms, conditions, and priorities:
(1) The maximum number of machines that all Compact Tribes in the
aggregate may license pursuant to this Section shall be a sum equal to 350
multiplied by the number of Non-Compact tribes as of September 1, 1999, plus the
difference between 350 and the lesser number authorized under Section 4.3.1.
(2) The Tribe may acquire and maintain a license to operate a Gaming
Device by paying into the Revenue Sharing Trust Fund, on a quarterly basis, in
the following amounts:
Number of Licensed Devices Fee Per Device Per Annum
1-350 $0
351-750 $900
751-1250 $1950
1251-2000 $4350
(3) Licenses to use Gaming Devices shall be awarded as follows:
(i) First, Compact Tribes with no Existing Devices (i.e., the number of
Gaming Devices operated by a Compact Tribe as of September 1, 1999) may draw up
to 150 licenses for a total of 500 Gaming Devices;
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(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 rounds)
shall be conducted utilizing the same order of priority as set forth above.
Rounds shall continue until tribes cease making draws, at which time draws will
be discontinued for one month or until the Trustee is notified that a tribe
desires to acquire a license, whichever last occurs.
(e) As a condition of acquiring licenses to operate Gaming Devices, a
non-refundable one-time pre-payment fee shall be required in the amount of
$1,250 per Gaming Device being licensed, which fees shall be deposited in the
Revenue Sharing Trust Fund. The license for any Gaming Device shall be canceled
if the Gaming Device authorized by the license is not in commercial operation
within twelve months of issuance of the license.
Sec. 4.3.2.3. The Tribe shall not conduct any Gaming Activity
authorized by this Compact if the Tribe is more than two quarterly contributions
in arrears in its license fee payments to the Revenue Sharing Trust Fund.
Sec. 4.3.3. If requested to do so by either party after March 7, 2003,
but not later than March 31, 2003, the parties will promptly commence
negotiations in good faith with the Tribe concerning any matters encompassed by
Sections 4.3.1 and Section 4.3.2, and their subsections.
SEC. 5.0 REVENUE DISTRIBUTION
Sec. 5.1. (a) The Tribe shall make contributions to the Special
Distribution Fund created by the Legislature, in accordance with the following
schedule, but only with respect to the number of Gaming Devices operated by the
Tribe on September 1, 1999:
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Number of Terminals in Quarterly Percent of Average Gaming Device
Device Base Net Win
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1 - 200 0%
201 - 500 7%
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7% applied to the excess over 200 terminals, up to
500 terminals, plus 10% applied to terminals over
501 - 1000 500 terminals, up to 1000 terminals.
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7% applied to excess over 200, up to 500
terminals, plus 10% applied to terminals over 500,
1000+ up to 1000 terminals, plus 13% applied to the
excess above 1000 terminals.
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(b) The first transfer to the Special Distribution Fund of its share of
the gaming revenue shall made at the conclusion of the first calendar quarter
following the second anniversary date of the effective date of this Compact.
Sec. 5.2. Use of funds. The State's share of the Gaming Device revenue
shall be placed in the Special Distribution Fund, available for appropriation by
the Legislature for the following purposes: (a) grants, including any
administrative costs, for programs designed to address gambling addiction; (b)
grants, including any administrative costs, for the support of state and local
government agencies impacted by tribal government gaming; (c) compensation for
regulatory costs incurred by the State Gaming Agency and the state Department of
Justice in connection with the implementation and administration of the Compact;
(d) payment of shortfalls that may occur in the Revenue Sharing Trust Fund; and
(e) any other purposes specified by the Legislature. It is the intent of the
parties that Compact Tribes will be consulted in the process of identifying
purposes for grants made to local governments.
Sec. 5.3 (a) The quarterly contributions due under Section 5.1 shall be
determined and made not later than the thirtieth (30th) day following the end of
each calendar quarter by first determining the total number of all Gaming
Devices operated by a Tribe during a given quarter ("Quarterly Device Base").
The "Average Device Net Win" is calculated by dividing the total Net Win from
all terminals during the quarter by the Quarterly Terminal Base.
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(b) Any quarterly contribution not paid on or before the date on which
such amount is due shall be deemed overdue. If any quarterly contribution under
Section 5.1 is overdue to the Special Distribution Fund, the Tribe shall pay to
the Special Distribution Fund, in addition to the overdue quarterly
contribution, interest on such amount from the date the quarterly contribution
was due until the date such quarterly contribution (together with interest
thereon) was actually paid at the rate of 1.0% per month or the maximum rate
permitted by state law, whichever is less. Entitlement to such interest shall be
in addition to any other remedies the State may have.
(c) At the time each quarterly contribution is made, the Tribe shall
submit to the State a report (the "Quarterly Contribution Report") certified by
an authorized representative of the Tribe reflecting the Quarterly Device Base,
the Net Win from all terminals in the Quarterly Device Base (broken down by
Gaming Device), and the Average Device Net Win.
(d) If the State causes an audit to be made pursuant to subdivision
(c), and the Average Device Net Win for any quarter as reflected on such
quarter's Quarterly Contribution Reports is found to be understated, the State
will promptly notify the Tribe, and the Tribe will either accept the difference
or provide a reconciliation satisfactory to the State. If the Tribe accepts the
difference or does not provide a reconciliation satisfactory to the State, the
Tribe must immediately pay the amount of the resulting deficiencies in the
quarterly contribution plus interest on such amounts from the date they were due
at the rate of 1.0% per month or the maximum rate permitted by applicable law,
whichever is less.
(e) The Tribe shall not conduct Class III gaming if more than two
quarterly contributions to the Special Distribution Fund are overdue.
Sec. 6.0. LICENSING.
Sec. 6.1. Gaming Ordinance and Regulations. All Gaming Activities
conducted under this Gaming Compact shall, at a minimum, comply with a Gaming
Ordinance duly adopted by the Tribe and approved in accordance with IGRA, and
with all rules, regulations, procedures, specifications, and standards duly
adopted by the Tribal Gaming Agency.
Sec. 6.2. Tribal Ownership, Management, and Control of Gaming
Operation. The Gaming Operations authorized under this Gaming Compact shall be
owned solely by the Tribe.
Sec. 6.3. Prohibition Regarding Minors. (a) Except as provided in
subdivision (b), the Tribe shall not permit persons under the age of 18 years to
be present in any room in which Class III Gaming Activities are being conducted
unless the person is en-route to a non-gaming area of the Gaming Facility.
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(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.
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(e) Nothing herein shall be construed to relieve any person of the
obligation to apply for a renewal of a determination of suitability as required
by Section 6.5.6.
Sec. 6.4.5. Gaming Resource Supplier. Any Gaming Resource Supplier who,
directly or indirectly, provides, has provided, or is deemed likely to provide
at least twenty-five thousand dollars ($25,000) in Gaming Resources in any
12-month period, or who has received at least twenty-five thousand dollars
($25,000) in any consecutive 12-month period within the 24-month period
immediately preceding application, shall be licensed by the Tribal Gaming Agency
prior to the sale, lease, or distribution, or further sale, lease, or
distribution, of any such Gaming Resources to or in connection with the Tribe's
Operation or Facility. These licenses shall be reviewed at least every two years
for continuing compliance. In connection with such a review, the Tribal Gaming
Agency shall require the Supplier to update all information provided in the
previous application. For purposes of Section 6.5.2, such a review shall be
deemed to constitute an application for renewal. The Tribe shall not enter into,
or continue to make payments pursuant to, any contract or agreement for the
provision of Gaming Resources with any person whose application to the State
Gaming Agency for a determination of suitability has been denied or has expired
without renewal. Any agreement between the Tribe and a Gaming Resource Supplier
shall be deemed to include a provision for its termination without further
liability on the part of the Tribe, except for the bona fide repayment of all
outstanding sums (exclusive of interest) owed as of, or payment for services or
materials received up to, the date of termination, upon revocation or
non-renewal of the Supplier's license by the Tribal Gaming Agency based on a
determination of unsuitability by the State Gaming Agency.
Sec. 6.4.6. Financial Sources. Any person extending financing, directly
or indirectly, to the Tribe's Gaming Facility or Gaming Operation shall be
licensed by the Tribal Gaming Agency prior to extending that financing, provided
that any person who is extending financing at the time of the execution of this
Compact shall be licensed by the Tribal Gaming Agency within ninety (90) days of
such execution. These licenses shall be reviewed at least every two years for
continuing compliance. In connection with such a review, the Tribal Gaming
Agency shall require the Financial Source to update all information provided in
the previous application. For purposes of Section 6.5.2, such a review shall be
deemed to constitute an application for renewal. Any agreement between the Tribe
and a Financial Source shall be deemed to include a provision for its
termination without further liability on the part of the Tribe, except for the
bona fide repayment of all outstanding sums (exclusive of interest) owed as of
the date of termination, upon revocation or non-renewal of the Financial
Source's license by the Tribal Gaming Agency based on a determination of
unsuitability by the State Gaming Agency. The Tribe shall not enter into, or
continue to make payments pursuant to, any contract or agreement for the
provision of financing with any person whose application to the State Gaming
Agency for a determination of suitability has been denied or has expired without
renewal. A Gaming Resource Supplier who provides financing exclusively in
connection with the sale or lease of Gaming Resources obtained from that
Supplier may be licensed solely in accordance with licensing procedures
applicable, if at all, to Gaming Resource Suppliers. The Tribal Gaming Agency
may, at its discretion, exclude from the licensing requirements of this section,
financing provided by a federally regulated or state-regulated bank, savings and
loan, or other federally- or state-regulated lending institution; or any agency
of the federal, state, or local government; or any investor who, alone or in
conjunction with others, holds less than 10% of any outstanding indebtedness
evidenced by bonds issued by the Tribe.
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Sec. 6.4.7. Processing Tribal Gaming License Applications. Each
applicant for a tribal gaming license shall submit the completed application
along with the required information and an application fee, if required, to the
Tribal Gaming Agency in accordance with the rules and regulations of that
agency. At a minimum, the Tribal Gaming Agency shall require submission and
consideration of all information required under IGRA, including Section 556.4 of
Title 25 of the Code of Federal Regulations, for licensing primary management
officials and key employees. For applicants who are business entities, these
licensing provisions shall apply to the entity as well as: (i) each of its
officers and directors; (ii) each of its principal management employees,
including any chief executive officer, chief financial officer, chief operating
officer, and general manager; (iii) each of its owners or partners, if an
unincorporated business; (iv) each of its shareholders who owns more than 10
percent of the shares of the corporation, if a corporation; and (v) each person
or entity (other than a financial institution that the Tribal Gaming Agency has
determined does not require a license under the preceding section) that, alone
or in combination with others, has provided financing in connection with any
gaming authorized under this Gaming Compact, if that person or entity provided
more than 10 percent of (a) the start-up capital, (b) the operating capital over
a 12-month period, or (c) a combination thereof. For purposes of this Section,
where there is any commonality of the characteristics identified in clauses (i)
to (v), inclusive, between any two or more entities, those entities may be
deemed to be a single entity. Nothing herein precludes the Tribe or Tribal
Gaming Agency from requiring more stringent licensing requirements.
Sec. 6.4.8. Background Investigations of Applicants. The Tribal Gaming
Agency shall conduct or cause to be conducted all necessary background
investigations reasonably required to determine that the applicant is qualified
for a gaming license under the standards set forth in Section 6.4.3, and to
fulfill all requirements for licensing under IGRA, the Tribal Gaming Ordinance,
and this Gaming Compact. The Tribal Gaming Agency shall not issue other than a
temporary license until a determination is made that those qualifications have
been met. In lieu of completing its own background investigation, and to the
extent that doing so does not conflict with or violate IGRA or the Tribal Gaming
Ordinance, the Tribal Gaming Agency may contract with the State Gaming Agency
for the conduct of background investigations, may rely on a state certification
of non-objection previously issued under a gaming compact involving another
tribe, or may rely on a State gaming license previously issued to the applicant,
to fulfill some or all of the Tribal Gaming Agency's background investigation
obligation. An applicant for a tribal gaming license shall be required to
provide releases to the State Gaming Agency to make available to the Tribal
Gaming Agency background information regarding the applicant. The State Gaming
Agency shall cooperate in furnishing to the Tribal Gaming Agency that
information, unless doing so would violate any agreement the State Gaming Agency
has with a source of the information other than the applicant, or would impair
or impede a criminal investigation, or unless the Tribal Gaming Agency cannot
provide sufficient safeguards to assure the State Gaming Agency that the
information will remain confidential or that provision of the information would
violate state or federal law. If the Tribe adopts an ordinance confirming that
Article 6 (commencing with section 11140) of Chapter 1 of Title 1 of Part 4 of
the California Penal Code is applicable to members, investigators, and staff of
the Tribal Gaming Agency, and those members, investigators, and staff thereafter
comply with that ordinance, then, for purposes of carrying out its obligations
under this Section, the Tribal Gaming Agency shall be considered to be an entity
entitled to receive state summary criminal history information within the
meaning of subdivision (b)(12) of section 11105 of the California Penal Code.
The California Department of Justice shall provide services to the Tribal Gaming
Agency through the California Law Enforcement Telecommunications System (CLETS),
subject to a determination by the CLETS advisory committee that the Tribal
Gaming Agency is qualified for receipt of such services, and on such terms and
conditions as are deemed reasonable by that advisory committee.
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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.
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Sec. 6.5.1. Denial, Suspension, or Revocation of Licenses. (a) Any
application for a gaming license may be denied, and any license issued may be
revoked, if the Tribal Gaming Agency determines that the application is
incomplete or deficient, or if the applicant is determined to be unsuitable or
otherwise unqualified for a gaming license. Pending consideration of revocation,
the Tribal Gaming Agency may suspend a license in accordance with Section 6.5.5.
All rights to notice and hearing shall be governed by tribal law, as to which
the applicant will be notified in writing along with notice of an intent to
suspend or revoke the license.
(b) (i) Except as provided in paragraph (ii) below, upon receipt of
notice that the State Gaming Agency has determined that a person would be
unsuitable for licensure in a gambling establishment subject to the jurisdiction
of the State Gaming Agency, the Tribal Gaming Agency shall promptly revoke any
license that has theretofore been issued to the person; provided that the Tribal
Gaming Agency may, in its discretion, re-issue a license to the person following
entry of a final judgment reversing the determination of the State Gaming Agency
in a proceeding in state court conducted pursuant to section 1085 of the
California Civil Code.
(ii) Notwithstanding a determination of unsuitability by the State
Gaming Agency, the Tribal Gaming Agency may, in its discretion, decline to
revoke a tribal license issued to a person employed by the Tribe pursuant to
Section 6.4.4(c) or Section 6.4.4(d).
Sec. 6.5.2. Renewal of Licenses; Extensions; Further Investigation. The
term of a tribal gaming license shall not exceed two years, and application for
renewal of a license must be made prior to its expiration. Applicants for
renewal of a license shall provide updated material as requested, on the
appropriate renewal forms, but, at the discretion of the Tribal Gaming Agency,
may not be required to resubmit historical data previously submitted or that is
otherwise available to the Tribal Gaming Agency. At the discretion of the Tribal
Gaming Agency, an additional background investigation may be required at any
time if the Tribal Gaming Agency determines the need for further information
concerning the applicant's continuing suitability or eligibility for a license.
Prior to renewing a license, the Tribal Gaming Agency shall deliver to the State
Gaming Agency copies of all information and documents received in connection
with the application for renewal.
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Sec. 6.5.3. Identification Cards. The Tribal Gaming Agency shall
require that all persons who are required to be licensed wear, in plain view at
all times while in the Gaming Facility, identification badges issued by the
Tribal Gaming Agency. Identification badges must display information including,
but not limited to, a photograph and an identification number that is adequate
to enable agents of the Tribal Gaming Agency to readily identify the person and
determine the validity and date of expiration of his or her license.
Sec. 6.5.4. Fees for Tribal License. The fees for all tribal licenses
shall be set by the Tribal Gaming Agency.
Sec. 6.5.5. Suspension of Tribal License. The Tribal Gaming Agency may
summarily suspend the license of any employee if the Tribal Gaming Agency
determines that the continued licensing of the person or entity could constitute
a threat to the public health or safety or may violate the Tribal Gaming
Agency's licensing or other standards. Any right to notice or hearing in regard
thereto shall be governed by Tribal law.
Sec. 6.5.6. State Certification Process. (a) Upon receipt of a
completed license application and a determination by the Tribal Gaming Agency
that it intends to issue the earlier of a temporary or permanent license, the
Tribal Gaming Agency shall transmit to the State Gaming Agency a notice of
intent to license the applicant, together with all of the following: (i) a copy
of all tribal license application materials and information received by the
Tribal Gaming Agency from the applicant; (ii) an original set of fingerprint
cards; (iii) a current photograph; and (iv) except to the extent waived by the
State Gaming Agency, such releases of information, waivers, and other completed
and executed forms as have been obtained by the Tribal Gaming Agency. Except for
an applicant for licensing as a non-key Gaming Employee, as defined by agreement
between the Tribal Gaming Agency and the State Gaming Agency, the Tribal Gaming
Agency shall require the applicant also to file an application with the State
Gaming Agency, prior to issuance of a temporary or permanent tribal gaming
license, for a determination of suitability for licensure under the California
Gambling Control Act. Investigation and disposition of that application shall be
governed entirely by state law, and the State Gaming Agency shall determine
whether the applicant would be found suitable for licensure in a gambling
establishment subject to that Agency's jurisdiction. Additional information may
be required by the State Gaming Agency to assist it in its background
investigation, provided that such State Gaming Agency requirement shall be no
greater than that which may be required of applicants for a State gaming license
in connection with nontribal gaming activities and at a similar level of
participation or employment. A determination of suitability is valid for the
term of the tribal license held by the applicant, and the Tribal Gaming Agency
shall require a licensee to apply for renewal of a determination of suitability
at such time as the licensee applies for renewal of a tribal gaming license. The
State Gaming Agency and the Tribal Gaming Agency (together with tribal gaming
agencies under other gaming compacts) shall cooperate in developing standard
licensing forms for tribal gaming license applicants, on a statewide basis, that
reduce or eliminate duplicative or excessive paperwork, which forms and
procedures shall take into account the Tribe's requirements under IGRA and the
expense thereof.
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(b) Background Investigations of Applicants. Upon receipt of completed
license application information from the Tribal Gaming Agency, the State Gaming
Agency may conduct a background investigation pursuant to state law to determine
whether the applicant would be suitable to be licensed for association with a
gambling establishment subject to the jurisdiction of the State Gaming Agency.
If further investigation is required to supplement the investigation conducted
by the Tribal Gaming Agency, the applicant will be required to pay the statutory
application fee charged by the State Gaming Agency pursuant to California
Business and Professions Code section 19941(a), but any deposit requested by the
State Gaming Agency pursuant to section 19855 of that Code shall take into
account reports of the background investigation already conducted by the Tribal
Gaming Agency and the NIGC, if any. Failure to pay the application fee or
deposit may be grounds for denial of the application by the State Gaming Agency.
The State Gaming Agency and Tribal Gaming Agency shall cooperate in sharing as
much background information as possible, both to maximize investigative
efficiency and thoroughness, and to minimize investigative costs. Upon
completion of the necessary background investigation or other verification of
suitability, the State Gaming Agency shall issue a notice to the Tribal Gaming
Agency certifying that the State has determined that the applicant would be
suitable, or that the applicant would be unsuitable, for licensure in a gambling
establishment subject to the jurisdiction of the State Gaming Agency and, if
unsuitable, stating the reasons therefor.
(c) The Tribe shall monthly provide the State Gaming Agency with the
name, badge identification number, and job descriptions of all non-key Gaming
Employees.
(d) Prior to denying an application for a determination of suitability,
the State Gaming Agency shall notify the Tribal Gaming Agency and afford the
Tribe an opportunity to be heard. If the State Gaming Agency denies an
application for a determination of suitability, that Agency shall provide the
applicant with written notice of all appeal rights available under state law.
Sec. 7.0. COMPLIANCE ENFORCEMENT.
Sec. 7.1. On-Site Regulation. It is the responsibility of the Tribal
Gaming Agency to conduct on-site gaming regulation and control in order to
enforce the terms of this Gaming Compact, IGRA, and the Tribal Gaming Ordinance
with respect to Gaming Operation and Facility compliance, and to protect the
integrity of the Gaming Activities, the reputation of the Tribe and the Gaming
Operation for honesty and fairness, and the confidence of patrons that tribal
government gaming in California meets the highest standards of regulation and
internal controls. To meet those responsibilities, the Tribal Gaining Agency
shall adopt and enforce regulations, procedures, and practices as set forth
herein.
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Sec. 7.2. Investigation and Sanctions. The Tribal Gaming Agency shall
investigate any reported violation of this Gaming Compact and shall require the
Gaming Operation to correct the violation upon such terms and conditions as the
Tribal Gaming Agency determines are necessary. The Tribal Gaming Agency shall be
empowered by the Tribal Gaming Ordinance to impose fines or other sanctions
within the jurisdiction of the Tribe against gaming licensees or other persons
who interfere with or violate the Tribe's gaming regulatory requirements and
obligations under IGRA, the Tribal Gaming Ordinance, or this Gaming Compact. The
Tribal Gaming Agency shall report significant or continued violations of this
Compact or failures to comply with its orders to the State Gaming Agency.
Sec. 7.3. Assistance by State Gaming Agency. The Tribe may request the
assistance of the State Gaming Agency whenever it reasonably appears that such
assistance may be necessary to carry out the purposes described in Section 7.1,
or otherwise to protect public health, safety, or welfare. If requested by the
Tribe or Tribal Gaming Agency, the State Gaming Agency shall provide requested
services to ensure proper compliance with this Gaming Compact. The State shall
be reimbursed for its actual and reasonable costs of that assistance, if the
assistance required expenditure of extraordinary costs.
Sec. 7.4. Access to Premises by State Gaming Agency; Notification
Inspections. Notwithstanding that the Tribe has the primary responsibility to
administer and enforce the regulatory requirements of this Compact, the State
Gaming Agency shall have the right to inspect the Tribe's Gaming Facility with
respect to Class III Gaming Activities only, and all Gaming Operation or
Facility records relating thereto, subject to the following conditions:
Sec. 7.4.1. Inspection of public areas of a Gaming Facility may be made
at any time without prior notice during normal Gaming Facility business hours.
Sec. 7.4.2. Inspection of areas of a Gaming Facility not normally
accessible to the public may be made at any time during normal Gaming Facility
business hours, immediately after the State Gaming Agency's authorized inspector
notifies the Tribal Gaming Agency of his or her presence on the premises,
presents proper identification, and requests access to the non-public areas of
the Gaming Facility. The Tribal Gaming Agency, in its sole discretion, may
require a member of the Tribal Gaming Agency to accompany the State Gaming
Agency inspector at all times that the State Gaming Agency inspector is in a
non-public area of the Gaming Facility. If the Tribal Gaming Agency imposes such
a requirement, it shall require such member to be available at all times for
those purposes and shall ensure that the member has the ability to gain
immediate access to all non-public areas of the Gaming Facility. Nothing in this
Compact shall be construed to limit the State Gaming Agency to one inspector
during inspections.
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Sec. 7.4.3. (a) Inspection and copying of Gaming Operation papers,
books, and records may occur at any time, immediately after notice to the Tribal
Gaming Agency, during the normal hours of the Gaming Facility's business office,
provided that the inspection and copying of those papers, books or records shall
not interfere with the normal functioning of the Gaming Operation or Facility.
Notwithstanding any other provision of California law, all information and
records that the State Gaming Agency obtains, inspects, or copies pursuant to
this Gaming Compact shall be, and remain, the property solely of the Tribe;
provided that such records and copies may be retained by the State Gaming Agency
as reasonably necessary for completion of any investigation of the Tribe's
compliance with this Compact.
(b)(i) The State Gaming Agency will exercise utmost care in the
preservation of the confidentiality of any and all information and documents
received from the Tribe, and will apply the highest standards of confidentiality
expected under state law to preserve such information and documents from
disclosure. The Tribe may avail itself of any and all remedies under state law
for improper disclosure of information or documents. To the extent reasonably
feasible, the State Gaming Agency will consult with representatives of the Tribe
prior to disclosure of any documents received from the Tribe, or any documents
compiled from such documents or from information received from the Tribe,
including any disclosure compelled by judicial process, and, in the case of any
disclosure compelled by judicial process, will endeavor to give the Tribe
immediate notice of the order compelling disclosure and a reasonable opportunity
to interpose an objection thereto with the court.
(ii) The Tribal Gaming Agency and the State Gaming Agency shall confer
and agree upon protocols for release to other law enforcement agencies of
information obtained during the course of background investigations.
(c) Records received by the State Gaming Agency from the Tribe in
compliance with this Compact, or information compiled by the State Gaming Agency
from those records, shall be exempt from disclosure under the California Public
Records Act.
Sec. 7.4.4. Notwithstanding any other provision of this Compact, the
State Gaming Agency shall not be denied access to papers, books, records,
equipment, or places where such access is reasonably necessary to ensure
compliance with this Compact.
Sec. 7.4.5. (a) Subject to the provisions of subdivision (b), the
Tribal Gaming Agency shall not permit any Gaming Device to be transported to or
from the Tribe's land except in accordance with procedures established by
agreement between the State Gaming Agency and the Tribal Gaming Agency and upon
at least 10 days' notice to the Sheriff's Department for the county in which the
land is located.
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(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.
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Sec. 8.1.5. The recording of any and all occurrences within the Gaming
Facility that deviate from normal operating policies and procedures (hereafter
"incidents"). The procedure for recording incidents shall: (1) specify that
security personnel record all incidents, regardless of an employee's
determination that the incident may be immaterial (all incidents shall be
identified in writing); (2) require the assignment of a sequential number to
each report; (3) provide for permanent reporting in indelible ink in a bound
notebook from which pages cannot be removed and in which entries are made on
each side of each page; and (4) require that each report include, at a minimum,
all of the following:
(a) The record number.
(b) The date.
(c) The time.
(d) The location of the incident.
(e) A detailed description of the incident.
(f) The persons involved in the incident.
(g) The security department employee assigned to the incident.
Sec. 8.1.6. The establishment of employee procedures designed to permit
detection of any irregularities, theft, cheating, fraud, or the like, consistent
with industry practice.
Sec. 8.1.7. Maintenance of a list of persons barred from the Gaming
Facility who, because of their past behavior, criminal history, or association
with persons or organizations, pose a threat to the integrity of the Gaming
Activities of the Tribe or to the integrity of regulated gaming within the
State.
Sec. 8.1.8. The conduct of an audit of the Gaming Operation, not less
than annually, by an independent certified public accountant, in accordance with
the auditing and accounting standards for audits of casinos of the American
Institute of Certified Public Accountants.
Sec. 8.1.9. Submission to, and prior approval, from the Tribal Gaming
Agency of the rules and regulations of each Class III game to be operated by the
Tribe, and of any changes in those rules and regulations. No Class III game may
be played that has not received Tribal Gaming Agency approval.
Sec. 8.1.10. Addressing all of the following:
(a) Maintenance of a copy of the rules, regulations, and procedures for
each game as played, including, but not limited to, the method of play and the
odds and method of determining amounts paid to winners;
(b) Specifications and standards to ensure that information regarding
the method of play, odds, and payoff determinations shall be visibly displayed
or available to patrons in written form in the Gaming Facility;
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(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.
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(b) The Tribe shall conduct a background investigation on a prospective
member of the Tribal Gaming Agency, who shall meet the background requirements
of a management contractor under IGRA; provided that, if such official is
elected through a tribal election process, that official may not participate in
any Tribal Gaming Agency matters under this Compact unless a background
investigation has been concluded and the official has been found to be suitable.
If requested by the tribal government or the Tribal Gaming Agency, the State
Gaming Agency may assist in the conduct of such a background investigation and
may assist in the investigation of any possible corruption or compromise of a
member of the agency.
Sec. 8.4. In order to 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 I 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).
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(e) The Tribe may object to a State Gaming Agency regulation on the
ground that it is unnecessary, unduly burdensome, or unfairly discriminatory,
and may seek repeal or amendment of the regulation through the dispute
resolution process of Section 9.0.
Sec. 9.0. DISPUTE RESOLUTION PROVISIONS.
Sec. 9.1. Voluntary Resolution; Reference to Other Means of Resolution.
In recognition of the government-to-government relationship of the Tribe and the
State, the parties shall make their best efforts to resolve disputes that occur
under this Gaming Compact by good faith negotiations whenever possible.
Therefore, without prejudice to the right of either party to seek injunctive
relief against the other when circumstances are deemed to require immediate
relief, the parties hereby establish a threshold requirement that disputes
between the Tribe and the State first be subjected to a process of meeting and
conferring in good faith in order to 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.
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Sec. 9.2. Arbitration Rules. Arbitration shall be conducted in
accordance with the policies and procedures of the Commercial Arbitration Rules
of the American Arbitration Association, and shall be held on the Tribe's land
or, if unreasonably inconvenient under the circumstances, at such other location
as the parties may agree. Each side shall bear its own costs, attorneys' fees,
and one-half the costs and expenses of the American Arbitration Association and
the arbitrator, unless the arbitrator rules otherwise. Only one neutral
arbitrator may be named, unless the Tribe or the State objects, in which case a
panel of three arbitrators (one of whom is selected by each party) will be
named. The provisions of Section 1283.05 of the California Code of Civil
Procedure shall apply; provided that no discovery authorized by that section may
be conducted without leave of the arbitrator. The decision of the arbitrator
shall be in writing, give reasons for the decision, and shall 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.
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(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.
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.
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(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 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.
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(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 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 and 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.
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(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.
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;
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(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 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.
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(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.
(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
party. 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).
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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.
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 Dry Creek Rancheria
Xxxxxxxxxx, Xxxxxxxxxx 00000 X.X. Xxx 000
Xxxxxxxxxxx, Xxxxxxxxxx 00000
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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.
Sec. 15.6. 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.
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IN WITNESS WHEREOF, the undersigned sign this Compact on behalf of the
State of California and the Dry Creek Rancheria.
Done at Sacramento, California, this 10th day of September 1999.
STATE OF CALIFORNIA DRY CREEK RANCHERIA
/s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxxx
------------------- ----------------------
By Xxxx Xxxxx By Xxxxx Xxxxxxx
Governor of the State of California Chairperson of the Dry Creek
Rancheria
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ATTEST:
/s/ Xxxx Xxxxx
-------------------
By Xxxx Xxxxx
Secretary of State, State of California
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Consistent with 25 U.S.C.A. Sec. 2710 (d)(8), the Compact between the Sovereign
Nation of the Dry Creek Rancheria of Pomo Indians of California and the
Sovereign State of California dated September 10, 1999, is hereby approved on
this 5th day of May, 2000, by the Assistant Secretary - Indian Affairs, United
States Department of the Interior.
UNITED STATES DEPARTMENT OF THE INTERIOR
/s/ Xxxxx Xxxxx
--------------------
Xxxxx Xxxxx
Assistant Secretary - Indian Affairs
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ADDENDUM "A" TO TRIBAL-STATE GAMING COMPACT
BETWEEN THE DRY CREEK RANCHERIA OF POMO 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:
1
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.
(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.
2
Modification No. 6
Section 10.2(d) is modified to read as follows:
(d) Carry no less than five million dollars ($5,000,000) 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 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.
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IN WITNESS WHEREOF, the undersigned sign this Addendum on behalf of the
State of California and the Dry Creek Rancheria of Pomo Indians.
STATE OF CALIFORNIA DRY CREEK RANCHERIA OF
POMO INDIANS
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxxxxx
------------------- -------------------------
By Xxxx Xxxxx Xxxxxxx Xxxxxxxx Vice Chairperson
Governor of the State of California By Xxxxx Xxxxxxx
Chairperson of the Dry Creek
Rancheria of Pomo Indians
Executed this 8th day of October, Executed this 26th day of September,
1999, at Sacramento, California. 1999, at Geyserville, California.
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ATTEST:
/s/ Xxxx Xxxxx
-------------------
By Xxxx Xxxxx
Secretary of State, State of California
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XXXXXXXX "X" TO TRIBAL-STATE GAMING COMPACT
BETWEEN THE DRY CREEK RANCHERIA OF POMO 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 Dry Creek Rancheria of Pomo Indians.
-------------------------------------- ---------------------------------------
STATE OF CALIFORNIA DRY CREEK RANCHERIA OF
POMO INDIANS
/s/ Xxxx Xxxxx /s/ Xxxxxxx Xxxxxxxx
------------------- -------------------------
By Xxxx Xxxxx By Xxxxx Xxxxxxx
Governor of the State of California Chairperson of the Dry Creek
Rancheria of Pomo Indians
Executed this 8th day of October, Xxxxxxx Xxxxxxxx, Vice Chairperson
1999, at Sacramento, California
Executed this 26th day of September,
1999, at Geyserville, California
-------------------------------------- ---------------------------------------
October 4, 1999
The Honorable Xxxx Xxxxx
Governor, State of California
State Capitol Building
Xxxxxxxxxx, Xxxxxxxxxx 00000
RE: Notice of Adoption of Model Tribal Labor Relations Ordinance
Dear Xxxxxxxx Xxxxx:
This will certify that on September 26, 1999, the Dry Creek Rancheria
of Pomo Indians, at a duly called meeting of the General Membership, passed
Resolution No. 00-00-000, adopting the Model Tribal Labor Relations Ordinance
dated September 14, 1999, (per Addendum "B"), to become effective as of the
effective date of the Compact and adopted in accordance with the terms set forth
in Section 1 of said Ordinance.
Unless we hear from your office immediately, we will assume that this
is in full compliance with Section 10.7 of the Compact.
Sincerely,
/s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
Tribal Chairman
Dry Creek Rancheria of Pomo Indians
ATTEST:
/s/ Xxxx Xxxxx
-------------------
By Xxxx Xxxxx
Secretary of State, State of California
ATTACHMENT TO
ADDENDUM B
TRIBAL 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 Gaining 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 or 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 Eligible
Employees.
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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;
(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.
-3-
(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 at 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 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.
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(b) The election shall be conducted by the 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
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.
(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).
-5-
Section 12: Decertification of bargaining agent
(a) The filing of a 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.
(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.
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(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 matters 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 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 that
two (2) names. In the event 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.
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(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.
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