4. “The proposed change streamlines the process for granting a waiver. It would allow the Commission to delegate its authority to grant waivers permitting tribes to submit financial reviews or consolidated audits. . . . To mitigate the risk [of financial reviews and consolidated audits], the Commission required tribes to be in strict compliance with the audit regulations for the past three years in order to qualify – or to receive a waiver from the Commission. The proposed change allows the Commission to delegate its authority to grant a waiver to other divisions, thereby allowing a faster response to the tribe.” We assume that any designee under the NIGC’s proposed revision here would be another Commissioner, NIGC staff, or a specific department within the NIGC, but we urge that the details 1. “NIGC regulations at 25 C.F.R. § 585.4 provide that in appeals on written submissions to the Commission, the Chair may not file or respond to motions. The Commission shares the attached proposed regulatory change to 25 C.F.R. § 585.4 to allow the NIGC Chair to file motions in appeals on written submissions and to respond to motions when invited, directed, or granted leave to do so by the Commission.” We are troubled by proposed revisions to 25 C.F.R. § 585.4 (b) which would permit the Chair to respond to motions filed in appeals proceedings before the NIGC. Adding to the Chair’s powers during these appellate proceedings when the Chair already gets to vote on whether to uphold or reverse the Chair’s prior decision seems to deepen fundamental fairness and due process concerns. Under IGRA, the Chair serves as the sole decisionmaker in whether to initiate an enforcement action against - not a gaming operation or enterprise - but a Tribal government. Part 585 provides an appellant with an avenue to appeal the Chair’s initial decision via written submissions to the NIGC. Currently, throughout the appeals process in Part 585, when the NIGC is reviewing the Chair’s initial decision, the Chair may act as a member of the larger NIGC body and is seemingly granted authority to vote on whether any other motion listed in § 585.4 (a) may be filed by an appellant, and the ultimate disposition of the appeal. be spelled out in the rule to prevent uncertainty or confusion. C. Appeals on Written Submissions (25 C.F.R. Part 585) Adding to this largely unconstrained authority, allowing the Chair to file responsive motions creates a circumstance where the Chair is acting as a litigator, an appellate judge, and a party to the matter on appeal. Additionally, the proposed revisions here contain no requirement that the Chair would have to abstain from the NIGC vote to determine whether the Chair is authorized to file responsive motions in the first place. Finally, under this proposed regime, the Chair will seemingly be permitted to rule on the competing motions – one of which is the Chair’s own submission. The NIGC appellate processes have long presented fundamental fairness and due process concerns. Allowing the Chair to become an adverse litigant by responding to motions filed by appellant Tribal governments, while simultaneously serving a member of the body voting whether or not to authorize the Chair to respond to such motions and on the disposition of the competing motions,
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