Tracie Stevens, Chairperson
Daniel Little, Commissioner
August 13, 2013

Page 5

U.S.C. § 2703(7)(A)(i), none of which are similar to the traditional
numbered ball, multi-player, card-based game we played as
children. ... Instant bingo, for example, is as the Fifth Circuit
explained in Julius M. Israel Lodge of B'nai B'rith No. 2113 v.
Commissioner, 98 F.3d 190 (Sth Cir. 1996), a completely different
creature from the classic straight-line game. Instead, instant bingo
is a self-contained instant-win game that does not depend at all on
balls drawn or numbers called by an external source. See id. at
192-93.

Moreover, § 2703(7)(A)(i)'s definition of class II bingo includes
“other games similar to bingo," 25 U.S.C. § 2703(7)(A)(),
explicitly precluding any reliance on the exact attributes of the
children's pastime.

103 Electronic Gambling Devices, 223 F.3d at 1096. See also 162 MegaMania Gambling
Devices, 231 F.3d at 723. ("While the speed, appearance and stakes associated with MegaMania
are different from traditional, manual bingo, MegaMania meets all of the statutory criteria of a
Class II game, as previously discussed.")

4 In the preamble to its 1992 definition regulations, the NIGC stated:

[One] commenter suggested that class II gaming be limited to games involving
group participation where all players play at the same time against each other for
acommon prize. In the view of the Commission, Congress enumerated those
games that are classified as class II gaming (with the exception of "games
similar to bingo"). Adding to the statutory criteria would serve to confuse rather
than clarify. Therefore, the Commission rejected this suggestion.

[Another] commenter questioned whether the definition of bingo in the IGRA
limits the presentation of bingo to its classic form. The Commission does not
believe Congress intended to limit bingo to its classic form. If it had, it could
have spelled out further requirements such as cards having the letters "B" "I"
"N""G" "O" across the top, with numbers 1-15 in the first column, etc. In
defining class II to include games similar to bingo, Congress intended to include
more than "bingo in its classic form" in that class.

... Congress enumerated the games that fall within class II except for games
similar to bingo. For games similar to bingo, the Commission added a definition
that includes the three criteria for bingo and, in addition, requires that the game
not be a house banking game as defined in the regulations. The Commission
believes that Congress did not intend other criteria to be used in classifying
games in class II.

Definitions under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12,382, 12,383, 12,387 (April 9, 1992).

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Daniel Little, Commissioner
August 13, 2013

Page 10

any form of electronic, computer or other technologic aid, so long as the aid does not permit a
single player to play alone with or against the machine.

Sincerely,
HOBBS, STRAUS, DEAN & WALKER, LLP

bb MMA

“ Joseph H. Webster

ce: Jim Shore, Esq.

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Daniel Little, Commissioner
August 13, 2013

Page 7

set out above, we must look to whether the statutory elements of the game are met." 78 Fed.
Reg. at 38000. The Commission's position is fully consistent with the statute and regulations.

The IGRA provides that Class II gaming does not include "electronic or
electromechanical facsimiles of any game of chance," 25 U.S.C. § 2703(7)(B)(ii), however, the
term "facsimile" is not defined by the statute. The Commission has defined facsimile to mean:

Electronic or electromechanical facsimile means a game played in
an electronic or electromechanical format that replicates a game of
chance by incorporating all of the characteristics of the game,
except when, for bingo, lotto, and other games similar to bingo, the
electronic or electromechanical format broadens participation by
allowing multiple players to play with or against each other rather
than with or against a machine.

25 C.F.R. § 502.8 (emphasis added). Thus, the definition provides that a bingo game can be
played in an "electronic or electromechanical format" without becoming a facsimile as long as
the format requires the players to play with or against each other rather than with or against a
machine.

The Ordinance Letter failed to recognize that a format that requires players to play with
or against each other necessarily is one that does not incorporate or replicate all of the features of
the bingo game. The most fundamental aspect of the game — players competing against each
other with different bingo cards against a common ball draw — is not electronic or automatic.

The game is, in fact, a live bingo game that is taking place across a linked network of actual
players. This remains the case whether or not auto-daub is used. Stated another way, the
fundamental characteristics of the game are preserved, unaltered by the game's electronic format.
As explained by the NIGC:

IGRA permits the play of bingo, lotto, and other games similar to
bingo in an electronic or electromechanical format, even a wholly
electronic format, provided that multiple players are playing with
or against each other. These players may be playing at the same
facility or via links to players in other facilities. A manual
component to the game is not necessary. What IGRA does not
allow with regard to bingo, lotto, and other games similar to bingo,
is a wholly electronic version of the game that does not broaden
participation, but instead permits a player to play alone with or
against a machine rather than with or against other players.

67 Fed. Reg. 41,166, 41,171 (June 17, 2002) (emphasis added).

6 The one touch auto-daub aid feature would, in the context of an electronically linked bingo game, assist the

player and the playing of the game by tracking and covering bingo numbers for the player. As such, it falls squarely
within the Commission's definition of electronic, computer, or other technologic aids found at 25 C.F.R. § 502.7.

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August 13, 2013

Page 6

While Congress was clear that tribal bingo was not limited by traditional notions of the
game, it was equally clear that it intended for tribes to have "maximum flexibility" to use
"modern" technology to conduct bingo games. S. Rep. No. 100-446, at 9 (1988), reprinted in
1988 U.S.C.C.A.N. 3071, 3079. In this regard, it is relevant that this type of bingo aid feature
predates passage of the IGRA in 1988.°

It also is relevant that this very same bingo aid feature is widely permitted today by the
federal government on U.S. military reservations and in many other non-Indian bingo facilities.
The Commission's proposed interpretation is consistent with Congress' intent that tribes have
"maximum flexibility" to use such "modern" technology to play bingo games, and in its statutory
authorization for tribes to use such aids. As the Commission correctly noted, it "should give
consideration to an interpretation of bingo that embraces rather than stifles technological
advancements in gaming." 78 Fed. Reg. at 38000.

2. The One Touch Auto-Daub Feature Would Not Transform the Game of Bingo
into a Class III Facsimile.

The use of the one touch auto-daub feature does not transform a game from Class II
bingo into a Class III facsimile. As explained by the Commission: "the previous interpretation
concluded ‘as it is applied to bingo, . . . the "except when" language of 502.8 [] require[s] some —
even minimal participation in the game by the players above and beyond the mere pressing of a
button to begin the game.' We find this interpretation in error because whether a game
constitutes bingo or not cannot be reduced to the number of times a button is pushed. Rather, as

$ For example, an auto-daub aid feature for bingo was patented in 1986. As described in Electronic Card and

Board Game, U.S. Patent No. 4,624,462 (Nov. 25, 1986):

The primary objective of the invention is to provide an electronic card and board
game which relieves the player from the tedious and error-prone operation of
manual marking matches on the game card. In particular, it is the objective of
the invention to provide a completely automated bingo game in which the player
does not have even to touch or watch the game card or the game board at any
time during successive rounds of the game, whereas the caller has only to push a
single button to control the game. It is the further objective of the invention to
provide a design of the game board which facilitates a broad and easy selection
of the game cards and games being played with the help of the same game
board. An additional objective of the invention is to preclude unauthorized or
untimely change of the game card by the player.

In fact, fully electromechanical linked aids to the game of bingo featuring full auto-daub were developed as early as
1956 which allowed a player to "either participate in illuminating the numbers or sit back and watch his board
operate automatically" and ensured that the "player does not have to watch or exert himself play a board to be
assured of winning if in fact the board before him comes up with a winning combination." U.S. Patent No.
2,760,619 (Aug. 28, 1956). See also, e.g., Electrically Operated Bingo Game Apparatus, U.S. Patent No. 3,671,041
(une 20, 1072). Moreover, linked electronic gaming systems were well-known before 1988. See, ¢.g., Video
Consultants of Nebraska, Inc. v. Douglas, 367 N.W.2d 697, 699 (Neb. 1985) ("Each location consists of one or more
lottery game terminals connected to an agent terminal.")

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Tracie Stevens, Chairperson
Daniel Little, Commissioner
August 13, 2013

Page 9

The courts have agreed with this interpretation. In the MegaMania cases, the courts ruled
that MegaMania is not an exact copy or duplicate of bingo and thus not a facsimile because the
game of bingo is not wholly incorporated into the player station; rather, the game of bingo is
independent from the player station, so that the players are competing against other players in the
same bingo game and are not simply playing against the machine. See 103 Electronic Gambling
Devices, 223 F.3d at 1100; 162 MegaMania Gambling Devices, 231 F.3d at 7245 The addition
of a one touch auto-daub aid feature does not change the fact that players are competing against
each other in a common game.

Thus, no additional participation is required to prevent the game from becoming a
facsimile. Instead, the NIGC definition of facsimile correctly recognizes that, regardless of the
number of electronic aids used in a bingo game, the game does not become a facsimile if "the
electronic or electromechanical format broadens participation by allowing multiple players to
play with or against each other rather than with or against a machine." 25 C.F.R. § 502.8
(emphasis added). As long as there are players playing against each other, the game is not a
facsimile.

Conclusion

The Seminole Tribe is pleased that the Commission has decided to clarify that a game
that is otherwise Class II bingo is not converted into a Class III game through the addition of a
one touch auto-daub feature. Congress provided a bright line test to distinguish electronically-
aided Class II games from Class III games. That line is not based on the number of player
"touches" required to interact with the game. Rather, Class II bingo includes any game that
meets the three statutory requirements set forth by Congress. Such games may be played with

8 The applicable test for distinguishing between aids and facsimiles was explained by the Tenth Circuit:

Courts reviewing the legislative history of the Gaming Act have recognized an
electronic, computer or technological aid must possess at least two
characteristics: (1) the "aid" must operate to broaden the participation levels of
participants in a common game, see Spokane Indian Tribe v. United States, 972
F.2d 1090, 1093 (9th Cir. 1992); and (2) the "aid" is distinguishable from a
"facsimile" where a single participant plays with or against a machine
rather than with or against other players. Cabazon Band of Mission Indians
y. National Indian Gaming Comm'n, 14 F.3d 633, 636-37 (D.C. Cir.), cert.
denied, 512 U.S. 1221 (1994) (Cabazon III). Courts have adopted a plain-
meaning interpretation of the term "facsimile" and recognized a facsimile of a
game is one that replicates the characteristics of the underlying game. See
Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1994)
("the first dictionary definition of ‘facsimile’ is 'an exact and detailed copy of
something.’ " (quoting Webster's Third New Int'l Dictionary 813 (1976))), cert.
denied, 516 U.S. 912 (1995); Cabazon I, 827 F. Supp. at 32 (same); Cabazon
IIL, 14 F.3d at 636 (stating "[a]s commonly understood, facsimiles are exact
copies, or duplicates.").

162 MegaMania Gambling Devices, 231 F.3d at 724 (emphasis added).

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STRAUS Washington, DC 20037 F 202.296.8834

DEAN &

WALKER

August 13, 2013

VIA e-mail to reg.review@nigc.gov

Tracie Stevens, Chairperson

Daniel Little, Associate Commissioner
National Indian Gaming Commission
1441 L St., N.W., Suite 9100
Washington, DC 20005

Re: Comments on Classification of "Electronic One Touch Bingo System," 78 Fed.
Reg. 37998 (June 25, 2013)

Dear Chairperson Stevens and Commissioner Little:

Below please find comments on behalf of the Seminole Tribe of Florida ("Tribe") on the
National Indian Gaming Commission's ("NIGC" or "Commission") proposal to classify as Class
II "server based electronic bingo system games that can be played utilizing only one touch ofa
button (‘one touch bingo')." 78 Fed. Reg. at 37998. As detailed below, the Tribe strongly
supports the NIGC's proposed classification, which is fully consistent with the text of the Indian
Gaming Regulatory Act ("IGRA"), the legislative history, the NIGC's regulations and applicable
case law.

The Seminole Tribe has been a leader in the development of Indian gaming. The Tribe
was the first tribe to open a high stakes bingo hall and has been conducting gaming to provide
revenue for tribal programs for over 30 years. The Tribe also has been actively involved for
many years in the development of Class II standards and regulations and has consistently
opposed legislative and regulatory efforts to impose unreasonable restrictions on Class II
gaming. Until recently, the Tribe was limited to Class II gaming due to the failure of the State of
Florida to negotiate a Class III gaming compact. However, several years ago the Tribe and the
State entered into a Class III compact that permits the Tribe to offer slot machines and other
forms of gaming. However, that compact is for a limited term and eventually will need to be
renegotiated. Thus, Class II gaming remains very important to the Tribe, which currently
operates a number of Class II technologic aid devices at its gaming facilities.

The Tribe agrees with the Commission's proposal "to reinterpret the position regarding
one touch bingo as set forth in the Metlakatla Ordinance disapproval." 78 Fed. Reg. at 37999.
The Metlakatla disapproval was issued in 2008 in response to a tribal ordinance amendment that
sought to clarify that:

Class II gaming includes an electronic, computer or other
technologic aid to the game of bingo that, as part of an

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Daniel Little, Commissioner
August 13, 2013

Page 8

The NIGC's existing definition of facsimile is consistent with legislative history and case
law. The legislative history indicates that Congress did not intend the facsimile prohibition to
restrict the use of electronics to play games that meet the IGRA definition of bingo. Instead, the
term facsimile was used as shorthand for games where, unlike true bingo games, the player plays
only with or against the machine and not with or against other players. As explained in the
Senate Report:

The Committee specifically rejects any inference that tribes should
restrict class II games to existing games [sic] sizes, levels of
participation, or current technology. The Committee intends that
tribes be given the opportunity to take advantage of modern
methods of conducting class II games and the language regarding
technology is designed to provide maximum flexibility. In this
regard, the Committee recognizes that tribes may wish to join with
other tribes to coordinate their class II operations and thereby
enhance the potential of increasing revenues. For example, linking
participant players at various reservations whether in the same or
different States, by means of telephone, cable, television or
satellite may be a reasonable approach for tribes to take.
Simultaneous games participation between and among reservations
can be made practical by use of computers and
telecommunications technology as long as the use of such
technology does not change the fundamental characteristics of the
bingo or lotto games and as long as such games are otherwise
operated in accordance with applicable Federal communications
law. In other words, such technology would merely broaden the
potential participation levels and is readily distinguishable from the
use of electronic facsimiles in which a single participant plays a
game with or against a machine rather than with or against other
players.

S. Rep. No. 100-446, at 9 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3079 (emphases added).

Thus, as now recognized by the Commission, the use of technology, even if it allows
fundamental characteristics of bingo to be played in an electronic format, does not necessarily
make a bingo game a "facsimile." Rather, a bingo game played using technologic aids (which
are expressly permitted by 25 U.S.C. § 2703(7)(A)(i)), only becomes a facsimile if the
technology permits the player to play "with or against a machine rather than with or against other
players."

7 A good example of a facsimile of a game of chance is video poker, when played in self-contained game

terminals. Such a game, although it uses poker graphics and terminology, is a wholly electronic game that does not
permit competition among players.

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Daniel Little, Commissioner
August 13, 2013

Page 4

player presses a button one time or two, the player is engaging with the machine, participating in
the bingo game, and competing with fellow players on the electronically linked bingo system."
78 Fed. Reg. at 37999.

In other words, the use of the one touch auto-daub feature does nothing to disturb the
competition between players. The aid feature can only be used in the context of an actual bingo
game where multiple players with unique bingo cards compete and play against a common ball
draw. The players play against each other in exactly the same way as they do in any other bingo
game. The only difference is that the aid assists the player with tracking and covering the
numbers, much like the agents the NIGC Office of General Counsel has consistently opined are
permissible. See, e.g., Nat'l Indian Gaming Comm'n, National Indian Bingo Game Classification
Op. (Nov. 14, 2000), available at
http://www.nige.gov/Portals/0/NIGC%20Uploads/readingroom/gameopinions/bingo/nationalindi
anbingo!11400.pdf).’ For this reason, the Tribe agrees with the Commission that "the previous
interpretation's requirement that the cover of the bingo card be done manually by the player
through an additional pressing of a button is an additional requirement not mandated by the
statute." 78 Fed. Reg. at 37999.

The Ordinance Letter suggested that it was based on how the game of bingo was
"traditionally" played. However, the IGRA explicitly recognized that the game of bingo it
authorized was not limited to the children's paper game, and explicitly authorized the use of
technologic aids in connection therewith. Accordingly, it is the statutory definition of bingo and
not tradition that controls whether a game meets the definition of Class II bingo. As explained
by the Ninth Circuit:

The Government's efforts to capture more completely the Platonic
"essence" of traditional bingo are not helpful. Whatever a
nostalgic inquiry into the vital characteristics of the game as it was
played in our childhoods or home towns might discover, IGRA's
three explicit criteria, we hold, constitute the sole legal
requirements for a game to count as class II bingo.

There would have been no point to Congress's putting the three
very specific factors in the statute if there were also other, implicit
criteria. The three included in the statute are in no way arcane if
one knows anything about bingo, so why would Congress have
included them if they were not meant to be exclusive?

Further, IGRA includes within its definition of bingo "pull-
tabs, . . . punch boards, tip jars, [and] instant bingo . . . [if played in
the same location as the game commonly known as bingo]," 25

3 Further, the one touch aid feature requires the player to take an affirmative action to begin play and cannot

operate unless at least two players have purchased bingo cards for that game.

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Daniel Little, Commissioner
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Page 3

evaluated what it means for a player to "cover" the numbers on a bingo card when electronic
covering is used. U.S. v. 103 Elec. Gambling Devices, No. 98-1984, 1998 WL 827586, at *6
(N.D. Cal. Nov. 23, 1998), aff'd 223 F.3d 1091 (9th Cir. 2000). In rejecting the argument that
MegaMania failed to satisfy the definition of bingo because of its electronic daub feature, the
court stated that "[t]here is nothing in IGRA . . . that requires a player to independently locate
each called number on each of the player's cards and manually 'cover' each number
independently and separately." Id. To the contrary, the court emphasized that IGRA "merely
require[s] that a player cover the numbers without specifying how they must be covered." Id.
Thus, the manner in which players cover numbers on their card(s) is irrelevant.’

Whether or not one touch auto-daub aid is utilized, the game is still won by the first
person to cover the winning bingo pattern based on the sequence of bingo numbers for that game
and the other cards in play. The first player is the one who covers the winning bingo pattern in
the fewest quantity of bingo numbers drawn/determined for that game. Nothing about the auto-
daub feature changes the quantity of bingo numbers necessary to be the first player with the
winning bingo pattern. Even with auto-daub the "cover" function is performed during the game's
natural progression, only after each release of balls, and thus IGRA's sequencing requirement
that the cover take place after the release of bingo numbers continues to be satisfied. Auto-daub
cannot operate independent of the player, and it has no impact on the outcome of the game. The
statutory requirements of bingo are satisfied so long as numbers are covered when similarly
numbered objects are drawn or electronically determined. The one touch auto-daub aid feature
merely assists the player with tracking and covering numbers so the player will not miss a win.”

Further, the Ordinance Letter was fundamentally wrong that the element of competition
in a bingo game is defined by the ability to sleep a bingo. Rather, the competition lies not in the
ability to sleep, but in the fact that each player is competing against the other players in the game
to be the first to cover a game-winning pattern on his/her bingo card based on the results of a
random ball draw or selection of bingo numbers. Whether or not a player wins depends on the
cards in play by that player and other players and the unique sequence of bingo numbers
drawn/determined for that game. This competition between the players is present whether or not
a player is permitted to "sleep" a bingo. As correctly noted by the Commission, "[w]hether a

' The Ordinance Letter cited a 2003 opinion from the NIGC Office of General Counsel as support.
However, such opinions are not final agency action. Instead, they constitute only the legal opinions of the NIGC's
lawyers. As explained by the Tenth Circuit Court of Appeals in Seneca-Cayuga Tribe of Oklahoma v. National
Indian Gaming Commission, 327 F.3d 1019, 1043 (10th Cir. 2003):

[A]n agency's opinion letter is not binding, nor, unlike an NIGC regulation
enacted pursuant to the rigors of the Administrative Procedure Act, is it entitled
to any deference. Instead, the NIGC's opinion letter is at most persuasive
authority; it is entitled only to that weight that its power to persuade compels.

In the 2003 opinion the Office of General Counsel opinion cites to no authority in making its argument that IGRA's
language implies a specific kind of either physical or electronic participation and is otherwise unpersuasive.

2 This is especially important when a player is playing multiple bingo cards, as is common in both Indian and
non-Indian bingo halls.

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Daniel Little, Commissioner
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Page 2

electronically linked bingo system, assists the player by covering,
without further action by the player, numbers or other designations
on the player's electronic bingo card(s) when the numbers or other
designations are electronically determined and electronically
displayed to the player.

Id. This type of auto-daub aid feature often is referred to as "one touch" since, once activated,
further action by the player during the game is not required.

The former NIGC Chairman took the position in the Metlakatla ordinance disapproval
("Ordinance Letter") that the use of the aid feature described above would convert a Class II
bingo game into a Class III game. The Ordinance Letter included two arguments to support this
position: (1) the IGRA requirement that a bingo game must be won by the first person to cover
the winning numbers requires competition, which is lacking in a bingo game played with one
touch auto-daub; and (2) by "allowing the game system, rather than the player, to 'cover' the
bingo card incorporates all characteristics of the game of bingo into an electronic machine and
system, and thereby renders one touch bingo a Class III electronic facsimile of a game of
chance." 78 Fed. Reg. at 37999.

As detailed below, the Tribe agrees with the Commission that the two arguments
expressed in the Ordinance Letter were incorrect as a matter of law. Contrary to the views set
forth in that earlier letter, the use of the one touch auto-daub feature in connection with a linked
bingo game is consistent with the IGRA's definition of bingo and does not convert a Class II
bingo game into a Class III facsimile.

1. The Use of OneTouch Auto-Daub is Consistent with the IGRA Definition of
Bingo.

As has been held by the federal courts, the three statutory requirements of bingo set forth
in the IGRA are the sole legal requirements for a game to qualify as bingo. United States v. 162
MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000); United States v. 103 Elec.
Gambling Devices, 223 F.3d 1091 (9th Cir. 2000). Nevertheless, the Ordinance Letter asserted
that the use of one touch auto-daub prevents a game from qualifying as Class II bingo, even if it
satisfies the IGRA requirements for bingo in all other respects. According to the Ordinance
Letter, the "first person to cover" requirement in the IGRA definition of bingo requires
competition between players and there can be competition in a bingo game only if the players are
permitted to "sleep" a bingo by not covering numbers or other designations that are drawn or
electronically determined and displayed to the players that would result in a winning pattern.
The Tribe agrees with the Commission that the IGRA definition of bingo does not support such a
requirement.

In fact, nothing about the phrase "first person to cover" or any other aspect of the IGRA

definition of bingo suggests that the ability to sleep a bingo is a required element of the game.
Indeed, in determining whether a game satisfied the statutory elements of bingo, the courts have

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