or paid for prizes awarded, and less an allowance for capital expenditures for structures as reflected in the gaming operation's audited financial statements. Free play is not part of “assessable gross gaming revenues” for gaming operations because it is not revenue. It is contra-revenue, so it is not assessable gross gaming revenue. As the District Court noted in Grisham , assessing state fees on “free play” would be akin to an illegal tax. For thirty years, the NIGC has recognized this principle and if NIGC is considering a change to this policy there must be prior informed consultation with the affected Indian tribes. The NIGC letter lacks clarity and should be withdrawn. Were the NIGC to include the value of free play in calculating GGR, this would undermine a hard-won legal victory for tribal governments and potentially create conflicts between tribal and state governments were states to follow suit in an effort to increase their compact fees. Given that free play is not revenue, but rather is contra-revenue such a change in NIGC policy would be unjust. The NIGC data collection effort and perhaps unannounced effort to add “free play” into the calculation of GGR for the purpose of generating increased NIGC Fees during the National COVID-19 Pandemic and Economic Crisis 5 violates Executive Order No. 13175, Consultation and Coordination with Indian Tribal Governments, the Unfunded Mandates Act, and the Paperwork Reduction Act. To the extent the August 14, 2020 Dear Tribal Leader Act reflects a change in policy with regard to the calculation of NIGC gaming fees, we urge that it be withdrawn. The NIGC must engage in a tribal consultation process. The NIGC’s effort to increase regulatory burdens, data collections, and perhaps fee collections on Tribal Government Gaming has resulted in the following violations of Executive Order No. 13175, the Unfunded Mandates Reform Act, and the Paperwork Reform Act: • NIGC Violation of Executive Order N . 13175 (2000): Executive Order 13175 reaffirms the Federal government's commitment to tribal sovereignty, self-determination, and self-government. Its purpose is to ensure that all Executive departments and agencies consult with Indian tribes and respect tribal sovereignty as they develop policy on issues that impact Indian communities. Matters subject to consultation requirements include “actions that have substantial direct effects on one or more Indian tribes.” Exec. Order No. 13175, Section 1(a). Requiring interim reporting of gross gaming revenues outside of the statutory annual audit submission process is an action that has substantial direct effects on hundreds of Indian tribes and imposes unfunded mandates to employ legal, accounting and CPA services. NIGC should have consulted with Tribal Governments prior to imposing the additional regulatory burden. NIGC is not exempt from Executive Order No. 13175 under 44 U.S.C. sec. 3502(5) (statutory reference to NIGC as an independent agency was considered and removed during the enactment of IGRA). 5 The Dear Tribal Leader Letter explains: “having this information for each facility ensures the NIGC is adequately assessing training and technical assistance needs, as well as setting an accurate and appropriate fee rate.”
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