chapter or right to appeal under part 585 of this chapter. The Commission may, after an opportunity for a hearing, revoke a certificate of self-regulation by a majority vote of its members if it determines that the tribe no longer meets or did not comply with the eligibility criteria of § 518.5, the approval criteria of § 518.3, the requirements of § 518.10, or the requirements of § 518.11.” 3 Our previous points of issue with the changes made to this section have largely gone unaddressed. First, the deletion of language outlining how the Office of Self-Regulation would determine that a tribe “no longer meets or did not comply with the eligibility criteria of §518.3” still leaves self- regulated tribes with unanswered questions. What information is being utilized to bring about consideration of such a determination? What is the process by which information is considered prior to a determination of non-compliance? And what is the governing standard in that process – does the Commission or Office of Self-Regulation make a determination by majority vote, a consensus, or some other, undefined means? As written, the current rule states that, following the opportunity for a hearing, the Commission may revoke a certificate by a majority vote, but the rule is silent on the process to get to the preliminary determination of non-compliance that would trigger a potential hearing or appeal. Our concern about that silence is further compounded by our understanding that the staffing of the Office of Self-Regulation is limited to a single person – the Director and a member of the Commission. This indicates to us that one person would be responsible for making the determination of non-compliance that would then drain tribal resources and time in responding to during a hearing or appeal process that may be unwarranted upon review by more than one individual. We continue to urge the NIGC to assess their current staffing limitation for this office and consider ways to ensure the office can operate in a manner that does no risk aggrieving principles of due process and fairness. D. Due Process Concerns for Appealing a Revocation (25 C.F.R. § 518.14) “A tribe may request a hearing regarding the Office of Self-Regulation’s recommendation that the Commission revoke a certificate of self-regulation. Such a request shall be filed with the Commission pursuant to part 584 of this chapter. Failure to request a hearing within the time provided by part 584 of this chapter shall constitute a wavier of the right to a hearing. At any hearing where the Commission considers revoking a certificate, the Office of Self- Regulation bears the burden of proof to support its recommendation by a preponderance of the evidence. The decision to revoke a certificate is a final agency action and is appealable to Federal District Court pursuant to 25 U.S.C. 2714.” 4 As expressed during the consultation process, we are not opposed to the rule revision that designates the Office of Self-Regulation as the “proponent of any case to revoke a certificate before the Commission.” However, as the proposed rule is current written, we do have a substantial due
3 Self-Regulation of Class II Gaming, 87 Fed. Reg. 20351 (proposed Apr. 7, 2022) (to be codified at 25 C.F.R. pt. 518.13). 4 Self-Regulation of Class II Gaming, 87 Fed. Reg. 20351 (proposed Apr. 7, 2022) (to be codified at 25 C.F.R. pt. 518.14).
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