Finally, we are concerned that the scope of collections permitted to be requested from tribes by the NIGC through the Office of Self-Regulation is overly broad, especially in the context of self- regulated tribes. First, it is our opinion that it is unreasonable to base “grounds for revocation of a certificate of self-regulation” on a tribe’s failure to comply with a “ request ” from the Office of Self-Regulation. The nature of the word “request” itself implies that acquiescence is not mandatory, even if tribes would generally comply with such a request in the spirit of good faith. Accordingly, we would either recommend altering the language here to provide that 1) that tribes will not unreasonably deny requests from the Office of Self-Regulation, and 2) to eliminate reasonable refusal of a request as grounds for revocation of a certificate of self-regulation. Moreover, we assert that there is a need to limit the amount of information that the Office of Self- Regulation will request under this section. While “information relevant to any material change in circumstances” affecting a tribe’s continued eligibility for self-regulated status may be of use to the NIGC, requiring that tribes also provide “information that may lead to information that is relevant to any material change in circumstances” is overburdensome, unclear, and, most importantly, does not rise to the standard of information that would impact the tribe’s continuing ability to self-regulate. Indeed, by requiring the provision of such information, the NIGC would impermissibly adopt for itself regulatory responsibilities that, under law, are to be delegated to the self-regulated tribe. ii. “Section 518.13 – The Office of Self-Regulation will become the proponent of any case to revoke a certificate before the Commission, and will provide any recommendation to revoke a certificate to the Commission and the tribe…” We are concerned that the regulation, as written is vague and presents certain logistical issues. Further, we opposed the deletion of language outlining how the Office of Self-Regulation determines that a tribe “no longer meets or did not comply with the eligibility criteria” for self- regulation. At a minimum the regulation should outline: 1) the information utilized to bring about consideration of such a determination; 2) the process by which information is considered prior to the determination; and 3) the standard for making such a determination – specifically including whether the Commission/Office of Self-Regulation must make the determination by a majority vote, a consensus, or some other factor. This concern is further complicated by the current nature of staffing of the Office of Self-Regulation, which we understand is limited to a single person— the Director and a member of the Commission. We urge the NIGC to assess how to populate or otherwise operate this office in a manner that does not risk offending principles of due process. Regarding the fact that an active NIGC Commission member serve as Director of the Office of Self-Regulation creates several problems. First, there is a conflict in the context of how the determinations are made to pursue the revocation of a certificate of self-regulation. We are concerned that due process is implicated where the decision maker is acting in the role of “the proponent of any case to revoke a certificate” and also a member of the body deciding whether such proponent has met their burden of proof under § 518.14.
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