nothing in the indian gaming regulatory act or it expressively requires that the patron physically be present on indian lands for the game being conducted on indian lands to be legal judge botak leah erred and rewriting it to contain that express requirement and the united states is here today seeking a permits that's not quite right the united states is formally approved indian gaming where the patron uses the phone to call in as bet the united states is formally approved indian gaming where a proxy for the patron is an indian lands so we presume that they're seeking a permits only as to the result of this unexplained contradiction in the actions of the united states reinforces he pays position on two of the subs in the legal questions that issue in this ambiguous lead requires the patron to be physically present on indian lands at the time the bank being a game is being conducted and conducted it's hard not to throw those take you to the statements you say that there's already been decisions of phone calls made off in my hand do not violate the act there's already been a formal federal actions taken that if you're talking about eighty and talking both about eighteen t and the  hundred five a determination by the national indian gaming commission regarding a proposal by multimedia games that both approved phone betting and approved the use of proxy play and where those those are  the i don't know these these acronyms e g of the while just called the internet gambling statute those that occurred before that statute yes they did and be interested in your thoughts because it seems to me there's significance in the timing of the stance that you have which is out there past way back in one nine hundred eighty eight and then of course we have quite a technology change and we have the whole impact of the internet on gambling and so why why are those necessarily it's positive when we now have some very specific rules on internet gambling under the internet legal gaming activity illegal but secondly congress did invision that these types of advances in technology you would occur in the future in fact you know the the  language of the statute itself in defining class to gaming specifically makes reference to the ability of tribes to be used to be able to use electronic aids in the play of the class to game a bingo which is the only game at issue here and in the underlying senate report they indicate they stated that the committee intends the tris be given the opportunity to take advantage of modern methods of conducting class through games and the language regarding technology is designed to provide maximum flexibility and went on to say it's the committee's intent that with the passage of the sacked no other federal statute such as those listed below included in the wire act well preclude the use of otherwise legal devices use only in the  conjunction of being or lotto or such other games on or off indian lands and those are both from the senate report a company in the passage of egress so although although in one thousand nine hundred eighty eight i don't think anybody in this room would have had the idea that the internet would be so pervasive in every aspect of modern life but congress did know that those technology technological changes were coming and congress intended for tribes to be able to have maximum flexibility in being able to take advantage and use those technologies in the play of specifically the play the specifically defined game of being go and the passage of the act ok your position was down to the fact that gambling of course is legal on tribal lands but it's also legal in california anywhere you have access to the internet correct i mean it's it wouldn't that really be the ultimate result of your position that that a person in california would be able to access a a on reservation game and be able to play that i'd be able to be able to have that game played on his  yes well now we could well go to the be half part but so for sitting here in the court room and we took the little disk that we were provided would we could sort of semi play the game on that and i have to input my amount and all those kind of things your position as well is not really taking place in california even though i'm sitting in the court room if i had true access through the internet with all the decisions that had to be made you're just saying the proxy person is doing that not me in california that's right what you're doing when you're sitting at your terminal is authorized both the stablished scene and on reservation account and authorizing an on reservation proxy to play the game on your behalf but that person isn't really specifically defines what constitutes the game of bingo that involves the plate for prizes including monetary prizes with cards growing numbers or other designations in which the holder of the card cover such numbers or designation one object similarly numbered or does it need it are drawn or electronically determined and three in which the game is won by the first person covering the previously does it needed arrangements of numbers or does ignitions to such cards all three of those actions occur on the pay indian land it's not really a person is it i mean it's just a series of computers it does well you know the the as as congress and vision do you know the  maximum flexibility to be able to have those things being done in an electronic manner but but part of the process of the stablish in the accounts is the designation of an on reservation agent on behalf of the player and there are circumstances in which which that game can be that you deny if the if the person shows up on the exclusion list of the of the tribal gaming commission if they if the electronic exclusion not no no and the the standard i mean to me that is as described there how many people are generally there monitoring as the agent well in this one involved that were involved of course if the if if if we were you know grew then and then more individuals would likely be employed to be able to take on that responsibility but that but but that person does have the ability to stop the play for any one of a number of reasons and whether it's just sitting here in california what are the actions that a player takes on his or her computer  to use by the proxy for the players play correct and then and then he instructs the his agent as to the number of cards and the price of the cards to be played in any particular game it's really in many respects the same as california's advance wager depositing program where california is one of one of of a few states that dominate the internet horseracing industry where a person a stablish has an account with with the a d w and instructs their agent at the a d w on how that account is to be used to me made on w gers on specific races and then that agent or proxy at the a t w makes the wager on behalf of the of the california resident or actually california laws allow a resident of any state that allows for interstate gaming to be able to play in those games it's hard to imagine this idea of a proxy if you forgive me but it's sound and i think it was maybe the district court that said the whole thing is  between the patron and the ip the pay nation to authorize that proxy to do certain things on behalf of of the patron and in the contract law is very clear and in fact you even have you know the end i g c commission's approval making clear that when that proxy is acting on behalf of the patron it's the that agent and the actions that agent that are on that you know and and under the indian gaming regulatory act at the gate at the state permits that game for any person organization in a day then the tribe is untile to play that game as class it's it is citizens of california what citizens of california are able to play bingo yes right anywhere anywhere in the state subject to state regulation on state lands and subject to tribal regulation on tribal lands thank you i was there the rest of my please the court my name is glendora going to an assistant united states attorney i represent appellee the united states i'm here with bill torn grin who is the deputy attorney general representing the state of california desert rose bingo is by design a gaming operation that seeks to collect revenues from off site illegal gambling as judge battalion noted in his underlying decision several facts are undisputed it is  california allows charitable bingo that's what the statute allows california incidentally requires for that charitable being go that the patron be present in this case the patrons cannot be present in fact if they wanted to go on indian lands to play this game in they'd be turned away insofar as there is no mechanism by which they can engage in the gaming on indian lands there are no terminals there they must use their personal computers their i pads their phones off indian lands to engage in this gaming that's undisputed it's let me ask you this i know that the casino so to speak is closed now but let's say it opened up and put in a couple of terminals and i'm in california and i call him up and say i want to play bingo or are please him my friend who is on indian land at that point please execute these transactions for me with that the legal in that what if i email but if i email my request to my friend who is on indian land and say i would like to play bingo and the casino decides it's going to open up and put in some terminals would that the illegal under the agree as well and your honored that raises two issues in it initially is the conduct itself illegal under california law we haven't gone there in so far as whether an e mail soliciting  bat is you know it violates california law the next issue is simply it's not whether it's illegal and or aggressive it's whether it's covered by it's whether or not a group provides a safe harbor to the tribe to in gauging this activity without state regulation of the activity that's occurring off indian lands and in that instance the e mail to the friend that activity is not covered by its gambling activity that is off indian lands and and and that's actually addressed in one of the and i g c decisions national let me get this right i think it's national indian being go that addresses yes national and in being go that you'll fly it find cited in the reply brief from at page eighteen it's a november two thousand in that case the gaming proponent said we want to engage in this gaming and we want people to be able to make bets are to engage a proxy either by telephone or email they then withdrew the request and i g c comp and it commented specifically that that had if you're going to engage in this activity this this offsite emails or telephone calls it's going to avoid our opinion as to the as to whether this is protected by egress and it's also going to expose the tribe to civil and criminal penalties because quote all gaming activity must take place on indian lands as required by egress so so coming full circle to your question your honor it comes down to the fact that egress simply doesn't regulate that offsite activity just as it does not regulate the off site activity at issue in this case namely the of the patron pulling up his computer logging on funding an account selecting cards and then pressing submit requests which automatically debits his account and puts him in a position where it and throughout the litigation of this case the term proxy used by desert roast bingo has taken on three different meanings if you will not one of those meanings is the traditional sense of the individual who is on site who's in gage on site to gamble for someone and then actively engages in the gambling instead you'll find for example that when you're a player and your and your on the computer let's say you submit your bet you press submit request and that proxy means other patrons that's meaning one meaning to they call the program operated by one of their servers the proxy player that's the name of the program in fact the the  description of david shall let the president to operates this gaming is to monitor the operation of the proxy player and it's undisputed that's a reference to the computer is it our server yes then that's that's reference number two then there's reference number three and that's mr xi let in the individuals who work with him who are occasionally called while they are called proxy monitors but their job mr selects job and his proxy monitors job is simply to be present and monitor operate a helpdesk they are not actively engaging in this game contrast that if you will with the three that i can think of and i g d's and i g c decisions that address proxy in every one of those cases an individual is on indian land when they gauge the proxy in every one of those cases that proxy then actively engages in the game play they don't simply sit back and let computers do it so to answer your question your honor which i believe was is their proxy here the question is or the answer is no there simply is not a proxy here in fact the only individual actively engaging in the gaming is the patron they're the ones gambling and and that activity occurs off indian lands is not subject to egress and is governed by you and warrants the relief we're have a vision and i could vision in that scenario the state of california taking prosecutorial action against the patrons that might then lead to a similar issue being before this court but that's how i w the intervention of this new federal statute that changes the whole game that that authorizes my office your honor yes to to essentially enjoin gaming that that involves the  cited in the opening brief at page twenty six if you need to find out it's july twenty sixth one thousand nine hundred five decision the game at issue there quote is a class two game conducted on a daily basis with over fifty indian tribes linked by close circuit telephone lines and satellite television in other words this is of the number of games that are traditionally intra tribal the game is is conduct and involves other tribal lands gaming and is linked but this this of opinion doesn't stand for the proposition that you can call in and make a bet from off  the reply brief that i understand is the first time the notions been raised and that's this that some level of deference should be afforded s y g c the tribal regulator in determining where the gambling  occurs as i read the brief i it's my understanding that the argument is essentially that some sort of level of either chevron or skidmore deference should be afforded to s y g c in its decision that this gambling occurs on indian lands we take issue with that strenuously on a number of grounds incidentally at the trial at the lower court level s y d c did seek deference as it related to the classification of the game and judge battalion determined that no i'm not going to afford to do that difference or that deference because there's nothing in it that that suggests that congress intended to provide legislative authority if you will to a tribal entity and and the judge commented that that it would turn essentially the hierarchy upside down if hundreds of tribes could sensually issue regulations that have the force of law affectively trumping the n i g c the same is true here but even to a greater degree because what they're seeking what they're asking for is deference as it relates to essentially a determination of what the law is and it teed as as the court i'm sure well knows skidmore chevron deference isn't even appropriate if congress has already spoken to the issue and they have you could mean it was not a big u s i think it's our position that  it is not ambiguous and that gaming that occurs gaming activity which we know from bay mills means the gambling has to be on indian lands in order for mine i believe i've addressed the issues that have been raised i'm happy to answer any questions of the court has any thank you i would thank you for your time a couple of technical points that this want to correct is that the two thousand and i g c approval of national indie or letter regarding national indian fingo that said you can't use email or or or  internet relied upon the district court decision and the court allowing case in that district court decision was vacated by this court and much of the same discussion that i think goes to this whether it were as ambiguous but we really weren't looking at this at this indian lands that are on indian lands question and the district court said you that was a necessary part of your approval and those approvals were final and who disagreed with that in this dissent yes he did yes he did but but but it was the dissent the the majority of the decision said said you know when you took that final agency action and that constitutes approval of the gaming activity that was no quite quite the contrary yet the underlying gaming activity is in violation of the ending any regulatory act you argue would apply you know he made the statement that he wouldn't be here but for you i go and you know and you know we think that's right you know that being and you i express lee says you can't use you i get to go after an act that would otherwise otherwise be lawful you i get did not make the use of the internet illegal they if the underlin statute provides for provides ford or allow support then you i get can't make that legal lacked illegal and to say well it be different why would look to the state if it were phone or e mail and and only well know the state doesn't have any jurisdiction over a class to gaming the only the united states does and in the united states would be able to bring in foresman action for gaming not performed in compliance with the indian gaming regulatory