Section GMG.01.09 — Mohican Gaming Commission

(a) Establishment. The Tribe hereby creates and establishes the Mohican Gaming Commission (hereinafter "Commission"), a subordinate organization, as a governmental subdivision of the Tribe, while reserving the right to review actions of this body.

(b) Location and Place of Business. The Commission shall be a resident of and maintain its headquarters, principal place of business and office(s) on the Stockbridge-Munsee Reservation or lands held in trust for the benefit of the Stockbridge-Munsee Community.

(c) Duration. The Commission shall have perpetual existence and succession in its own name, unless dissolved by the Tribal Council pursuant to Tribal law.

(d) Attributes. As a governmental subdivision of the Tribe, the Commission has been delegated the right to exercise one or more of the substantial governmental functions of the Tribe, including rule making authority for the purpose of regulation of tribal gaming pursuant to the IGRA, tribal law and the Tribal/State Compact. It is the purpose and intent of the Tribe in creating the Gaming Commission that the operations of the Commission be conducted on behalf of the Tribe for the sole benefit and interests of the Tribe, its members and the residents of the Reservation and communities surrounding the tribal gaming enterprises. In carrying out its purposes under this Ordinance, the Commission shall function as a branch of the tribal government. Notwithstanding any authority delegated to the Commission under this Ordinance, the Tribe reserves to itself the right to bring suit against any person or entity in its own right, on behalf of the Tribe or on behalf of the Commission whenever the Tribe deems it necessary to protect the sovereignty, rights and interests of the Tribe or the Commission.

(e) Sovereign Immunity of the Commission. The Commission and their duly appointed agents are hereby clothed with all the privileges and immunities of the Tribe, except as specifically limited by this Ordinance or other tribal law, including sovereign immunity from suit in any tribal, federal or state court. Except as provided in this section, nothing in this Ordinance nor any action of the Commission shall be deemed or construed to be a waiver of sovereign immunity from suit of the Commission or its duly appointed agents, or to be a consent of the Tribe or the Commission to the jurisdiction of the United States or of any state or any other tribe with regard to the business affairs of the Tribe or the Commission to any cause of action, case or controversy, or to the levy of any judgment, lien or attachment upon any property of the Tribe or of the Commission, or to be a consent of the Tribe or the Commission or its duly appointed agents, to suit in respect to any Indian land, or to be a consent of the Tribe or the Commission to the alienation, attachment or encumbrance of any such land. The Tribal Council retains authority to waive the sovereign immunity of the Commission and its agents.

(f) Sovereign Immunity of the Tribe. All inherent sovereign rights of the Tribe as a federally recognized Indian tribe with respect to the existence and activities of the Commission are hereby expressly reserved, including sovereign immunity from suit in any tribal, federal or state court. Nothing in this Ordinance nor any action of the Commission shall be deemed or construed to be a waiver of sovereign immunity from suit of the Tribe, or to be a consent of the Tribe to the jurisdiction of the United States or of any state or of any other tribe with regard to the business or affairs of the Commission or the Tribe, or to be a consent of the Tribe to any cause of action, case, or controversy, or to the levy of any judgment, lien, or attachment upon any property of the Tribe, or to be a consent to suit in respect to any Indian land, or to be a consent to the alienation, attachment, or encumbrance of any such land.

(g) Assets of the Commission. The Commission shall have only those assets specifically assigned to it by the Tribal Council or acquired in its name by the Tribe or by the Commission on its own behalf. No activity of the Commission nor any indebtedness incurred by it shall implicate or in any way involve or effect any assets of tribal members or the Tribe not assigned in writing to the Commission.

(h) Membership.

(1) Number of Commissioners. The Tribal Council shall employ the number of Commissioners necessary to perform the duties of the Commission.

(2) Qualification of Commissioners.

(A) Shall be an enrolled member at least twenty-one (21) years of age.

(B) Shall have at least three to five (3-5) years of experience in at least one of the following areas:

(i) Business Management

(ii) Economic Development

(iii) Marketing

(iv) Law

(v) Finance/Accounting

(vi) Security/Law Enforcement

(vii) Gaming

(D) No individual shall be eligible for employment with or to continue services on the Commission who has any direct financial interest in, or management responsibility for any gaming activity operated by the Tribe, or any direct or indirect interest in any gaming-related contract with the Tribe.

(E) No individual shall be eligible for employment with or to continue services on the Commission who has any conflict of interest as defined in this Ordinance, UNLESS such conflict has been fully disclosed to the entire Tribal Council and the Tribal Council has agreed, in writing, to permit the individual to be appointed or to continue with his or her term.

(F) No individual shall be eligible for employment with or to continue services on the Commission who is an employee of any tribal gaming enterprise or of another gaming enterprise outside the Tribe's ownership and/or management.

(3) Background Check. Prior to the time any Commissioner takes office on the Commission, the Tribe shall perform a comprehensive background check on each prospective member. No person shall serve as a Commissioner if:

(A) His or her prior activities, criminal record, if any, or reputation, habits or associations pose a threat to the public interest; or threaten the effective regulation and control of gaming; enhance the dangers of unsuitable, unfair, or illegal practices, methods, or activities in the operation of gaming or the carrying on of the gaming business and gaming financial arrangements incidental thereto; or

(B) If he or she has been convicted of or entered a plea of guilty or nolo contendere (no contest) to a felony or any gaming offense in any jurisdiction or to a misdemeanor involving dishonesty, fraud, misrepresentation in any connection or any offense involving moral turpitude.

(C) Applicants for the Commission shall not be eligible for the Commission if their background investigation shows a criminal history. A tribal gaming waiver shall not act to rehabilitate the applicant for consideration for the Commission. Criminal history, for purposes of this section shall mean any felony, any misdemeanor involving theft, fraud, misrepresentation or gambling related offenses.

(i) Meetings.

(1) Regular Meetings. The Commission shall hold at least one regular monthly meeting that shall take place on the date determined by the Commission by-laws, or as otherwise determined by the Commission.

(2) Special Meetings. Special meetings may be called at the request of the Tribal Council, Gaming Management, the Chairperson of the Commission, the Compliance Department or at least a majority of the members of the Commission.

(3) Compensation of Commissioners. Commissioners shall receive a salary set by the Tribal Council.

(4) Quorum. A quorum for all meetings shall consist of a simple majority of Commission members.

(5) Voting. All questions arising in connection with the action of the Commission shall be decided by majority vote.

(6) Executive Session. No decisions shall be made in Executive Session. Use of executive session shall include, but not be limited to matters of personnel or other issues of a confidential or privileged nature.

(j) Organization. The Commission shall develop its own operating procedures and shall elect from within itself a Chairperson to direct meetings, and such other officers as the Commission requires.

(k) Removal of Members and Filling Vacancies.

(1) Removal. A Commissioner may be removed by the Tribal Council for inefficiency, neglect of duty, misconduct in office, or for any conduct that threatens the honesty or integrity of the Commission or otherwise violates the letter or intent of this Ordinance. Except as provided below, no Commissioner may be removed without notice and an opportunity for a hearing before the Tribal Council, and then only after the Commissioner has been given written notice of the specific charges at least ten days prior to such hearing. At any such hearing, the Commissioner shall have the opportunity to be heard in person or by counsel and to present evidence on his or her behalf. If the Tribal Council determines that immediate removal of a Commissioner is necessary to protect the interests of the Tribe, the Tribal Council may immediately remove the Commissioner temporarily, and the question of permanent removal shall be determined thereafter pursuant to Commission hearing procedures. A written record of all removal proceedings together with the charges and findings thereon shall be kept by the Tribal Secretary for at least seven (7) years.

(2) Vacancies. If any Commissioner shall die, resign, be removed, or for any reason be unable to serve as a Commissioner, the Tribal Council shall declare his or her position vacant and shall hire another person to fill the position.

(l) Powers and Duties of the Commission. In furtherance, but not in limitation, of the Commission's purposes and responsibilities, and subject to any restrictions contained in this Ordinance or other applicable law, the Commission shall have the authority to issue citations and assess fines for violations of applicable gaming laws and to refer violations of the Ordinance to the Tribal Prosecutor for enforcement, consistent with this Ordinance and regulations drafted for that purpose and approved by the Tribal Council. All proposed citations or assessments of fines shall be reviewed by legal counsel and the Commission for legal sufficiency. The Commission is also authorized to exercise by majority vote the following powers in addition to all powers already conferred by this Ordinance:

(1) Jurisdiction to issue, restrict, suspend, revoke and renew any licenses issued by the Commission.

(2) To insure that investigations are conducted and to receive and review investigative reports from the Compliance Department, said Department created by the Tribal Council to conduct background investigations on applicants for licenses issued by the Commission or as otherwise may be required. Where necessary, to request additional information from the Compliance Department regarding such investigations in the regulatory process.

(3) To insure that completed gaming applications and completed investigative reports for gaming management officials and key employees are forwarded to the NIGC prior to issuing a gaming license.

(4) To review a person's prior activities, criminal record if any, reputation, habits and associations to make a finding concerning the suitability for licensing, to work for or do business with the tribal gaming enterprise(s) or to continue such employment or business relationship. Such review shall include investigative reports provided to the Commission by the Compliance Department.

(5) To issue separate license to each place, facility or location on tribal lands where the Stockbridge-Munsee Tribe elects to allow gaming.

(6) The Commission shall obtain annual independent outside audits, pursuant to the terms of the Tribal/State Compact, and submit these audits to the NIGC as required by federal regulations, and to the State Gaming Board as required by the Compact, consistent with Section GMG.01.12.

(7) To ensure that net revenues from any gaming activities are used for the limited purposes set forth in the Tribal Gaming Ordinance.

(8) To promulgate gaming regulations pursuant to tribal law and consistent with Section GMG.01.09(m)(2) of this Ordinance.

(9) To monitor and regulate all tribal gaming activities to ensure compliance with tribal law/regulations. The Commission shall have such access to tribal gaming facilities and to key employees as necessary in order to carry out this responsibility.

(10) To interact with other regulatory and law enforcement agencies regarding the regulation of gaming, as necessary to fulfill their duties.

(11) To be completely familiar with the IGRA, the federal regulations promulgated thereunder, the Tribal Gaming Ordinance, the Tribal/State Compact and related laws and to monitor the facility for compliance with those laws.

(12) To conduct investigations of possible violations of any gaming laws or regulations and take appropriate action as authorized through this Ordinance or in regulations duly promulgated by the Commission and approved by the Tribal Council.

(13) To provide independent information to the Tribe on the status of the Tribe's gaming activities. See Section GMG.01.09(l)(24) on reporting for more detail.

(14) To issue oaths, take testimony and conduct hearings on regulatory matters, including all matters related to primary gaming management officials and key employee licenses or any other licenses issued by the Commission under this Ordinance. Hearings may also be held for licensing of gaming services vendors.

(15) Be familiar with the minimum internal control standards or procedures for all tribal gaming operations, including credit policies and procedures for acquiring supplies and equipment.

(16) Establish any supplementary criteria for the licensing of primary gaming management officials, key employees and other employees, vendors or contractors subject to the approval of the Tribal Council.

(17) Establish or approve standards for and issue licenses or permits to persons and entities who deal with the gaming operation(s) such as manufacturers and suppliers of machines, equipment and supplies, such license to be called a "gaming services vendor license."

(18) To maintain records on licensees and on persons denied licenses including persons otherwise prohibited from engaging in gaming activities within the tribe's jurisdiction, consistent with federal law, the Tribal/State Compact requirements and this Ordinance.

(19) To perform audits of gaming business transactions to ensure compliance with gaming regulations.

(20) To establish, review, and if applicable, approve rules of new games consistent with the requirements of the Tribal/State Compact and other applicable laws, and audit games, tables, equipment, machines, cards, dice and chips or tokens used in the gaming operation. To audit the video surveillance standards.

(21) To insure that a mechanism is in place to resolve patron disputes, and other problems, pursuant to the Tribal Gaming Ordinance and other tribal regulations and policies that may be in place regarding those issues.

(22) With prior approval of the Tribal Council, to make application and accept grants and other awards from private and governmental sources in carrying out or furthering the purposes of the Commission or the Tribe.

(23) To exercise all authority delegated to it or conferred upon it by law and to take all action that shall be reasonably necessary and proper for carrying into execution the foregoing powers and all of the powers vested in this Ordinance as permitted by the purposes and powers herein stated and that are deemed to be in the best interests of the Tribe, exercising prudent and good judgment, all in compliance with applicable law.

(24) To require by regulation the filing of any records, forms and reports and all other information desired by the Council for implementation of this Ordinance relating to any gaming activity or gaming operation or any investigation as required by tribal law and the IGRA. The Commission shall submit to the Tribal Council on a regular basis minutes from all meetings and a monthly status report on the tribal gaming enterprise(s).

(25) To provide for an internal system of record keeping with adequate safeguards for preserving confidentiality as deemed necessary by the Commission. All applications, background investigations shall be retained by the Compliance Department for at least seven years from the termination of employment or business relationship and Commission decisions related to the licensing of primary gaming management officials, key employees or any other entity licensed by the Commission, shall be retained in Commission files for a period of at least seven (7) years from termination of employment or business relationship.

(26) To adopt a schedule of fees to be charged for gaming licenses issued pursuant to this Ordinance.

(27) To adopt a schedule of fees and charges for services rendered relating to transcripts and the furnishing or certifying of copies of proceedings, files and records.

(28) To compel obedience of its lawful orders by proceedings of mandamus or injunction or other proper proceedings in the name of the Tribe in Tribal Court or in any other court having jurisdiction of the parties and of the subject matter; provided that no suit shall be brought by the Commission without the prior explicit written approval of the Tribal Council after consultation with the Tribal attorney(s). This provision is not to be interpreted as a waiver of sovereign immunity by the Tribal Council for suit in Tribal Court but is intended to address all cases except those that might involve the Tribal Council as a Gaming Operator.

(29) To discipline any licensee or other person participating in any gaming activity by ordering immediate compliance with this Ordinance or applicable regulations and to issue an Order of Temporary Suspension of any license issued under this Ordinance, consistent with the terms under this Ordinance governing such suspension, whenever the Commission is notified of a violation by any such person of this Ordinance or any other applicable law. The Commission shall provide notice to the Tribal Council prior to suspension to the General Manager.

(30) To issue an order of cease and desist to any primary gaming management official or key employee engaged in activities that may be detrimental to the gaming facilities, tribal gaming assets, public health and safety or any other interest of the Tribe.

(31) Notice of Violation. The Commission may issue a written notice of violation to any person for violations of any provision of this Ordinance, applicable federal law, applicable tribal law or the Tribal State Compact. A Notice of Violation shall contain:

(A) A citation to tribal, federal or state requirement that has been or is being violated;

(B) A description of the circumstances surrounding the violation, set forth in common and concise language;

(D) A time no less than 15 days and no greater than 30 days for the recipient to complete the corrective measures referenced in subsection (c) above if the respondent cannot take measures to correct the violation immediately; and

(E) Notice of rights of appeal.

(32) Order of Temporary Closure.

(A) With notice to the Tribal Council and simultaneously with, or subsequently to, the issuance of a notice of violation under Section GMG.01.09(l)(31) of this part, the Commission may issue an order of temporary closure of all or part of the Gaming Facility operations if one or more of the following substantial violations are present:

(i) The respondent fails to correct violations within the time permitted in a notice of violation.

(ii) The gaming operation operates for business without a license.

(iii) The gaming operation operates for business without either background investigation having been completed for, or tribal licenses granted to all key employees and primary gaming management officials as provided for in this Ordinance.

(iv) The gaming operation refuses to allow an authorized representative of the Commission or another authorized tribal official to enter or inspect a gaming operation.

(v) The gaming operation's facility is constructed, maintained or operated in a manner that threatens the environment or the public health and safety, in violation of a tribal ordinance, applicable federal law, or the Tribal State Compact.

(B) Order effective upon service. The Tribal Council shall close the gaming operation, or that part of the operation indicated by the order, upon service of an order of temporary closure, unless the order provides otherwise.

(C) Informal expedited review. Within seven (7) days after service of an order of temporary closure, the respondent may request, orally or in writing, informal expedited review by the Commission.

(i) The Commission and if needed to assist the Commission, a Compliance Officer or Internal Auditor shall complete the expedited review provided for by this paragraph within two (2) days after receipt of a timely request.

(ii) The Commission shall, within two (2) days after the expedited review provided for by this paragraph:

(I) Decide whether to continue an order of temporary closure; and

(II) Provide the respondent with an explanation of the basis for the decision.

(iii) Whether or not a respondent seeks informal expedited review under this paragraph, within thirty (30) days after the Commission serves an order of temporary closure the respondent may appeal the order to the Tribal Court under Section TCT.02.23.

(33) To suspend or revoke the Gaming Operator's License held by the Tribal Council, consistent with suspension and revocation procedures, and to report the suspension or revocation of said license to the NIGC who has the authority to close tribal gaming facilities for failure to comply with federal regulations.

(34) To carry out the procedures necessary to obtain a certificate of self-regulation under the IGRA, upon request and approval by the Tribal Council.

(35) Annual Budget. The Commission shall prepare an annual operating budget for all Commission activities and present it to the Tribal Council within the required time frame.

(36) Confidentiality. The Commission shall maintain confidentiality of information specified as confidential, including information gathered in the background and licensing process and any financial information regarding performance of the gaming enterprise. Violation of this confidentiality provision shall be subject to disciplinary action from the Tribal Council and may be deemed "cause" for suspension or termination from the Commission.

(37) Gaming Waiver Hearings. The Compliance Department shall accept applications for gaming waivers from those persons interested in obtaining or retaining an Employee Gaming License, but who have a bar to licensing. The Compliance Department shall provide to the Commission a report stating whether the applicant is eligible for a gaming waiver. The Commission shall conduct the gaming waiver hearing if necessary or requested by the applicant and forward a recommendation to the Tribal Council regarding the applicant's suitability to receive a gaming waiver. The Tribal Council shall make the final decision on waiver applications.

(38) Advisors. To retain professional advisors such as attorneys, consistent with Tribal law and practices.

(m) Commission Regulations.

(1) Commission Regulations necessary to carry out the orderly performance of its duties and powers shall include, but shall not be limited to:

(A) Internal operational procedures of the Commission and its staff;

(B) A regulatory system to monitor all gaming activity, including accounting, contracting, gaming management and supervision, not to be confused with day-to-day management activities. The Commission shall meet the standards of 25 CFR Part 518 to become a self-regulated entity for purposes of regulating Class II gaming. Upon successful approval by the NIGC, the Commission shall regulate Class II gaming as a self-regulated entity;

(C) The conduct of inspections, hearings, enforcement actions and other powers of the Commission authorized by this Ordinance.

(2) No regulation of the Commission shall be of any force or effect unless it is adopted by the Commission by written resolution and subsequently approved by a resolution of the Tribal Council and filed for record both in the office of the Tribal Secretary and in the Office of the Clerk of the Tribal Court.

(3) The Tribal Court and any other court of competent jurisdiction shall take judicial notice of all Commission regulations adopted pursuant to this Code, and not inconsistent with any other tribal or federal law.

(n) Right of Entrance; Inspection of Books and Records. The Commission and duly authorized officers, employees and agents of the Commission, may enter upon any premises of any Gaming Operator, Gaming Facility or Ancillary Facility for the purpose of making inspections and examining the accounts, books, papers and documents of such party with the proper sign in and out along with escort in secured areas. The Gaming Operator, Gaming Facility or Ancillary Facility shall facilitate such inspection or examinations by giving every reasonable aid to the Commission and to any properly authorized officer, employee or agent of the Commission.

(o) Right of Entrance; Inspections of Gaming Operations. A Commissioner or a member of the Commission's staff shall visit each tribally owned or tribally operated Gaming Facility regularly during normal hours of operation for the purpose of monitoring its operation. Such visits shall be unannounced.

(1) Commission Audits. The Commission and Internal Auditor shall be provided necessary access and cooperation from all Gaming Facility and Ancillary Facility personnel when conducting both scheduled and unscheduled audits or investigations.

(p) Investigations. The Commission or its designated agent, upon complaint or upon its own initiative or whenever it may deem it necessary in the performance of its duties or the exercise of its powers, may investigate and examine the operation and premises of any facility that is subject to the provisions of this Ordinance. The investigation may be conducted by the Commission itself, or by any entity the Commission may deem best suited for the specific investigation. If the Commission designates a separate entity to conduct an investigation on its behalf, such entity shall be considered an agent of the Commission while carrying out its designated duties.

(q) Hearings. Pursuant to Commission Hearing Proceedings, the Commission may hold any hearing it deems to be reasonably required in administration of its powers and duties under this Ordinance. No hearing shall be held without affording the appropriate due process rights.

(r) Appointment of Examiner; Power of Examiner. The Commission may appoint any person qualified in the law or possessing knowledge or expertise in the subject matter of the hearing to act as examiner for the purpose of holding any hearing which the Commission or any member thereof has power or authority to hold. Any such appointment shall constitute a delegation to such examiner of all powers of a Commissioner under this Ordinance with respect to any such hearing. The Commission remains responsible for rendering the decision.

(s) Bank Account for Tribally Owned or Tribally Managed Gaming Facility. The Commission shall ensure that the Tribe opens a separate bank account for each tribally owned or tribally managed gaming activity, and all money of such facility shall be deposited in that account. The Commission shall ensure that the check writing authority designated in Section GMG.01.06 of this Ordinance is followed. Check writing authority shall not include wire transfer authority.

(t) Quarterly Report of Gaming General Manager Reports. The Commission shall file a quarterly report with the Tribal Council and make such comments as it deems necessary to keep the Council fully informed as to the status of its various gaming activities.

(u) Travel. The Gaming Commission shall notify the Tribal Council and Gaming Management regarding travel plans. Travel plans shall be made taking into consideration the best duties and responsibilities of the Commission, the best interest of the gaming enterprise and the amount of money for such travel available in the Commission's operating budget. All travel shall be subject to review by the Tribal Council.