offends our understanding of the traditional notions of due process of law. As the Supreme Court has stated, “[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” Tumey v. Ohio , 273 U.S. 510, 532 (1927). In sum, we believe that should the NIGC desire to have the Chair respond to written motions under Part 585, the Chair must be required to recuse himself or herself from all decisions made by the NIGC as a body in this Part. We believe that this should be the case whether the NIGC chooses to promulgate a regulation authorizing the Chair to file responsive motions under Part 585. We are concerned that if the Chair is to be permitted by regulation to rule on his or her own responsive motions filed in response to a Tribal government in a pending appeal would greatly undermine the integrity of the NIGC’s adjudicative process. Accordingly, we believe that further consideration is needed in relation to the amendment of § 585.4 (b). 2. “NIGC regulations provide a structure for settlement in proceedings before a Presiding Official, but not for proceedings on written submissions to the Commission. The Commission suggests addressing this discrepancy by establishing the attached settlement process. It is similar to that provided for in PO hearings, with some necessary modifications to suit appeals directly before the Commission.” Processes advancing the potential for settlements benefit both parties. As such, we are not clear on the utility of an arbitrary deadline in relation to requests for settlement negotiations on written submissions. Accordingly, we support including a provision allowing for settlement negotiation for proceedings on written submission to the Commission, but urge that the NIGC remain open to good faith settlement negotiations at all stages of the proceeding. D. Fees (25 C.F.R. Part 514) 1. “The Commission proposes exploring options for including a mechanism within the NIGC fee regulations to adjust the assessed fiscal year in response to extreme and unexpected variations in assessable gross revenues. The assessed fiscal year is defined by NIGC fee regulations as the gaming operation’s fiscal year ending prior to January 1 of the year the Commission adopted fee rates. This definition is intended to result in all gaming operations applying the same fiscal year’s audited revenues to the same fee rate, but it also results in at least a calendar year transpiring between the end of the assessed fiscal year and a fee payment calculated using that fiscal year. Thus, during the pandemic, fee payments were calculated using pre-pandemic assessed fiscal years and post-pandemic, fee payments will be calculated using pandemic impacted assessed fiscal years. The Commission seeks tribal input, feedback, and suggestions on a mechanism to adjust the assessed fiscal year to address these concerns in response to extreme and unexpected variations in assessable gross revenues.” The Covid-19 Pandemic has certainly posed numerous challenges for the world at-large and brought numerous issues heretofore unconsidered to the forefront. While we are inclined to support broader changes in the NIGC’s fee calculation and assessment timelines in the event of “extreme and unexpected variations in assessable gross revenues,” we believe that more discussion
4
Made with FlippingBook - Online catalogs