NOV I 4 2000 

Bertram E. Hirsch, Esq. 

P.O. Box 220145 

Great Neck, NY 11022 

Re: National Indian Bingo Game Classification Opinion 

Dear Mr. Hirsch: 

This letter responds to your request on behalf of your client, Parker Gaming, Inc. (Parker) for 

a game classification opinion of its proposed game called National Indian Bingo (NIB). We 

have reviewed your June 1, 2000, request as well as your subsequent letters of June 30, 2000, 

July 28, 2000, August 18, 2000, and October 25, 2000. We conclude that NIB is a Class I1 

game pursuant to the Indian Gaming Regulatory Act (IGRA) and is therefore subject to 

regulation by Tribes and the National Indian Gaming Commission (NIGC). This opinion 

IPI? supercedes our prior opinion regarding NIB issued on August 9, 1999. 

This opinion is based solely on the written materials submitted. No prototype of the game has 

been developed. When a tribe begins operation of NIB, continued play will be subject to our 

field review. If there are any changes made to the game as described below, such changes 

might materially alter our opinion. 

BACKGROUND 

On August 9, 1999, in response to a game classification request by Parker, the NIGC issued an 

opinion that NIB was a class I11 game. This opinion was based on written submissions 

provided by Parker and oral representations made to the NIGC. 

On December 17, 1999, you filed a Complaint on behalf of Parker in the United States District 

Court, District of South Dakota, which challenged the August 9, 1999, opinion and sought a 

declaratory judgment that NIB is a class I1 game pursuant to the IGRA. 

During January and February 2000, you had discussions with NIGC Staff Attorney Maria 

Getoff, during which it became apparent that the August 9, 1999 decision might have been 

based on incomplete information and/or a misunderstanding of certain game features. In 

addition, Ms. Getoff raised questions about the game that prompted Parker to consider 'I 1- modifications to the game. 

NATIONAL HEADQUARTERS 1441 L St. NW, Suite 9100, Washington, DC 20005 Tel: 202.632.7003 Fax: 202.632.7066 WWW.NICC.GOV 

REGIONAL OFFICES Portland. OR; Sacramento. CA; Phoenix, AZ; St. Paul. MN; Tulsa. OK 
,& Based on these discussions, it was agreed that Parker would seek voluntary dismissal of its 

Complaint and resubmit a request for a classification opinion on the revised NIB game. On 

February 4, 2000, Parker voluntarily dismissed its lawsuit. The NIGC agreed that it would 

seek to render a decision within 60 days of receipt of the resubmitted request. 

On June 1, 2000, Parker resubmitted its request. Upon review of the resubmission, the NIGC 

determined that additional information was required before it could render an opinion. The 

NIGC received the requested information on June 30, 2000. On several subsequent occasions, 

additional questions were raised and the NIGC requested more information from Parker. This 

information was provided on July 28, 2000, and August 18, 2000. 

DESCRIPTION OF GAME 

As described in the materials, NIB is a linked bingo game with a progressive jackpot. The 

game would be played live once per week, at a gaming facility of one of the participating 

tribes. Bingo players located at the gaming facilities of the other participating tribes would 

play the game by watching a digital reader board display. Bingo cards would be purchased 

throughout the week preceding a live bingo game. 

Bingo Card Dispensin~ Machine 

There are two ways a player would be able to purchase a bingo card. First, a player, using the q'''w ' bingo card-dispensing machine, could directly purchase bingo cards. Alternatively, a player 

physically located on Indian land could establish an account at a tribal gaming facility and 

appoint the tribal gaming facility as legal agent for the purpose of purchasing bingo cards. The 

facility would then purchase cards upon instruction from the player who is physically present 

on Indian land and pay for the purchase from the account. In this way, a player could instruct 

the tribal gaming facility to purchase, for instance, one card for each of the next four weekly 

games. 1 

NIB would utilize traditionally configured paper bingo cards bearing letters and numbers. Live 

drawings would be conducted with traditional bingo balls, marked with letter and number 

combinations, drawn from a bingo blower. Players would compete for two jackpots: a weekly 

jackpot and a progressive jackpot. 

A bingo card holder would win the progressive jackpot if he covers a row using the first four 

letter or number combinations drawn and a "floating free space." If the progressive jackpot is 

won, the game would continue until there is a winner of a smaller weekly jackpot. A weekly 

' Parker's original submission provided for the establishment of accounts and the purchase of cards via telephone, 

mail or e-mail. Parker withdrew these features due to our conclusion that all gaming activity must take place on 

Indian lands as required by IGRA. The use of any off-reservation game features, including account 

establishment or card purchase, would void this opinion and subject the tribe to civil and criminal prosecution. 

2 
jackpot winner is one who is the first to cover any five of the letter or number combinations 

'11" drawn and those letter or number combinations are arranged in either a vertical, horizontal, or 

diagonal row. With either jackpot, if there is more than one winning card, the prize is shared 

equally among holders of all winning bingo cards. 

Use of Agents to Play Game 

NIB could be played by the purchaserlplayer or through a designated legal agent. Because the 

tribal gaming facility would not know the identities of the players who are present in person, 

the tribal gaming facility, acting as the legally appointed agent for each player, would play all 

of the cards purchased for a given drawing. To assure that each purchaser designates the tribal 

gaming facility as legal agent, the bingo card dispenser machine would dispense an original 

card with a tear off or peel off duplicate card attached. Each player would be required to 

validate the original card by filling in the identifying information on the card and by 

designating the tribal gaming facility as legal agent to play the card and at time won, to claim, 

receive, and hold any prize for and on behalf of an absent purchaser. 

Purchasers would further be required to tear or peel off and retain the duplicate and deposit the 

original in a secure deposit box. If the purchaser is present when the bingo game is played the 

purchaser could play using the duplicate and covering the numbers when balls are drawn. If 

the purchaser is not physically present, the tribal gaming facility acting as agent, would play 

the original card by covering the numbers on the original card when the bingo balls are drawn. 

In either situation, the agent would play all original cards. 'lllc~' 

Binno Card ReaderIDauber Machine 

Each tribal gaming facility would carry out its agent responsibilities by the use of tribal gaming 

facility employees. The tribal gaming facility employees would use Bingo Card 

ReaderIDauber (ReaderIDauber) machines to read and daub the cards. These machines would 

be similar to other "bingo minder" machines in use throughout Indian country. The materials 

submitted indicate that Parker is unable to identify presently the number of players who would 

be represented by each tribal gaming facility employee playing the game. The volume of cards 

would dictate the number of bingo card ReaderJDauber machines that would be necessary for 

all of the purchased cards to be played simultaneously. NIB will, however, use the bingo card 

ReaderIDauber machines that within current technology can read and daub the largest volume 

of cards. 

At the start of the game, all of the original cards purchased for that drawing would be placed in 

one or more bingo card ReaderIDauber machines. As each letter or number combination is 

drawn by the bingo blower, the agent in charge of the machine would enter into the machine 

the data identifying each letter or number combination and instruct the machine to scan or read 

each of the cards it holds and identify each card having the combination drawn. Upon further 

instruction by the agent the machine would daub or cover each corresponding number or letter 

combination on each card. 

3 
1J APPLICABLE LAW 

IGRA defines class I1 gaming in relevant part to include: 

(i) the game of chance commonly known as bingo (whether or not electronic, computer, 

or other technologic aids are used in connection therewith) -- 

(I) which is played for prizes, including monetary prizes, with cards 

bearing numbers or other designations: 

(11) in which the holder of the card covers such numbers or designations 

when objects, similarly numbered or designated, are drawn or electronically 

determined; and 

(111) in which the game is won by the first person covering a previously 

designated arrangement of numbers or designations on such cards. 

NIGC regulations similarly define class I1 gaming as follows: 

(a) Bingo or lotto (whether or not electronic, computer, or other technologic 

aids are used) when players: 

(1) Play for prizes with cards bearing numbers or other designations: 

(2) Cover numbers or designations when objects, similarly numbered or 

designated, are drawn or electronically determined; and 

(3) Win the game by being the first person to cover a designated pattern 

on such cards. 

25 C.F.R. 502.3. 

In addition, if technological aids are used, the following definition applies: 

Electronic, computer or other technologic aid means a device such as a 

computer, telephone, cable, television, satellite or bingo blower that when used- 

(a) Is not a game of chance but merely assists a player or the playing of a 

game; 

(b) Is readily distinguishable from the playing of a game of chance on an 

electronic or electromechanical facsimile; and 

(c) Is operated according to applicable Federal communications law. 

25 C.F.R. 502.7. 

Class I1 gaming specifically does not include "(ii) electronic or electromechanical 

facsimiles of any game of chance or slot machine of any kind. " 25 U.S. C. 

4 
2703(7)(B)(ii). Electronic or electromechanical facsimile means any gambling device 

as defined in the Johnson Act at 15 U.S.C. 5 1171(a)(2) or (3). 25 C.F.R. 5 502.8. 

The Johnson Act defines a gambling device as follows: 

(1) any so-called "slot machine" or any other machine or mechanical device an essential 

part of which is a drum or reel with insignia thereon, and (A) which when operated 

may deliver, as the result of the application of an element of chance, any money or 

property or (B) by the operation of which a person may become entitled to receive, 

as the result of the application of an element of chance, any money or property; or 

(2) any other machine or mechanical device (including but not limited to, roulette 

wheels and similar devices) designed and manufactured primarily for use in 

connection with gambling, and (A) which when operated may deliver, as the result 

of the application of chance, any money or property, or (B) by the operation of 

which a person may become entitled to receive, as the result of the application of an 

element of chance, any money or property . . . . 

15 U.S.C. 5 1711(a). 

ANALYSIS 

Use of Agents to Play Game 

lllUwJ IGRA contains no statutory prohibition on the use of agents to play the game of bingo. The 

bingo definition contained in IGRA requires only that the "holder of the cardn cover the 

numbers. 25 U.S.C. 8 2703 (7)(A)(i)(II). The "holder" is not defined. The holder in NIB is 

either the player or the player's designated agent. Although the bingo definition in the NIGC 

regulations replaces the word "holder" with the word "player," this is a distinction without a 

difference when the law of agency is applied to the analysis. It is a fundamental tenet of the 

law of agency that the acts of the agent &e deemed to be the acts of the principal. See 3 Am. 

Jur. 2D Agency 5 2 (1986); See also] Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 

630 F2d 250, 272 (5' Cir. 1980); U.S. v. Sylvanus, 192 F.2d 96, 108 (7" Cir. 1951); and 

Art Van Service. Inc. v. Pollard, 344 F.2d 883, 887 (9" Cir. 1965). When the agent plays the 

NIB card for the player, the act of playing the card is deemed to be the act of the 

playerlprincipal. The legal effect is that the agent is the player. Therefore, the use of agents 

violates neither IGRA's provision regarding the holder nor NIGC's regulations that discuss the 

player. 

The Three-Part Bingo Definition 

To qualify as a class I1 game, NIB must meet the three-part definition of bingo. First, it must 

be played for prizes with cards bearing numbers or other designations. 25 U.S.C. 
8 2703(7)(A)(i)(I). The materials submitted by Parker describe the game as utilizing 

4 traditionally configured paper bingo cards bearing letters and numbers. The game is played 

for prizes. Therefore, NIB meets the first part of the definition. 

Second, IGRA requires holders to cover the numbers or other designations when objects, 

similarly numbered or designated, are drawn or electronically determined. 25 U. S.C. 

5 2703(7)(A)(i)(II). NIB would utilize live drawings conducted with traditional bingo balls, 

marked with letter and number combinations, drawn from a bingo blower. Players or their 

designated agents would cover the letter and number combinations on the bingo cards when the 

bingo balls are drawn from the bingo blower. 

As described in the submission, the letter and number combinations would be covered by the 

agent and by those players who are physically present. The agent will utilize a ReaderIDauber 

to cover combinations determined by the bingo blower (The individual player may use a device 

commonly used in the industry, called a bingo minder. Both devices work in essentially 

similar fashion). As described above, the agent enters data into the ReaderIDauber machine 

identifying each letter and number combination drawn by the bingo blower, and instructs the 

machine to scan or read each of the cards it holds and identify each card with the letter and 

number combination drawn. Upon further instruction by the agent the machine will daub or 

cover each corresponding number and letter combination on each card. 

A similar feature used to cover patterns on an electronic bingo card has been found by a 

federal court to be an acceptable class I1 method. In U.S. v. 103 Electronic Gamblin 

Devices, 1998 WL 827586 (N.D. Cal), affirmed, 2000 WL 1218766 (gh Cir. Aug. 29, 2000; 

the court determined that the MegaMania electronic bingo game was a Class I1 game. In so 

finding, the court analyzed a feature of the game which automatically identified electronically 

drawn numbers, requiring the player to merely push a "daub" button which covered the drawn 

number or numbers. This feature made it unnecessary for the player to push a button 

corresponding to each relevant position on the bingo card. The court held that: 

There is nothing in IGRA or its implementing regulations [tlhat require a player 

to independently locate each called number on each of the player's card and 

manually 'cover' each number independently and separately. The statute and 

the implementing regulations merely require that a player cover the numbers 

without specifying how they must be covered. 

- Id. at 6.2 While the MegaMania game automatically identifies the electronically drawn 

numbers, the ReaderIDauber operates in a manner that requires the agent to take an 

In another case which dealt with the classification under the IGRA of the MegaMania game, the court found 

unpersuasive the argument that the game was not a class I1 game because the player does not actually "covern the 

numbers, but merely presses a lighted "daub buttonn and the machine does the covering. United States v. 162 

Megamania Gambling Devices More or Less, et al., No. 97-C-1140-K (N.D. Okla. October 26, 1998),af'd, 

2000 WL 1634741 (10' Cir. Oct. 31,2000). 

6 
independent action to enter into the machine data identifying each letter and number 

combination drawn. Certainly, if the automatic features of the MegaMania do not contravene 

the requirement that players cover the numbers when drawn, neither does the use of the 

ReaderIDauber in NIB. Therefore, we find that neither the use of bingo minder machines by 

players nor the use of the ReaderIDauber machine by agents violates the requirement that the 

player cover numbers or designations when objects, similarly numbered or designated, are 

drawn or electronically determined. NIB satisfies the second part of the bingo definition. 

Finally, the third element of class I1 bingo requires that the game be won by the first person to 

cover a designated pattern. 25 U.S.C. §2703(7)(A)(i)(III). According to information 

provided by Parker, NIB will so operate. Of course, if there is more than one winner of a 

bingo game, the winners split the prize evenly. Such a feature violates neither the spirit nor 

the letter of the law. See U.S. v. 103 Electronic Gambling Devices, 1998 WL 827586, 

827587 (N.D. Cal), afirmed, 2000 WL 1218766 (9' Cir. Aug. 29,2000). Therefore, NIB 

meets the third and final element of class I1 bingo. 

ReaderIDauber Machine 

Having concluded that NIB meets the three fundamental elements of bingo, we must next 

decide whether the ReaderIDauber machine qualifies as a technological aid and is therefore 

authorized for use in connection with class I1 bingo. 25 U.S.C. 5 2703(7)(A)(i). To be so 

authorized, the ReaderIDauber must meet a three-part definition as follows: 

(a) [It] is not a game of chance but merely assists a player or the playing of a 

game; 

(b) [It] is readily distinguishable from the playing of a game of chance on an 

electronic or electromechanical facsimile; and 

(c) [It] is operated according to applicable Federal communications law. 

25 C.F.R. § 502.7. 

The Senate Report on IGRA is instructive when analyzing the technological aid versus 

electronic facsimile question: 

The [Senate Indian Affairs] Committee specifically rejects any inference that 

tribes should restrict class I1 games to existing game sizes, levels of 

participation, or current technology. The Committee intends that tribes be given 

the opportunity to take advantage of modem methods of conducting class I1 

games and the language regarding technology is designed to provide maximum 

flexibility. 

s. REP. NO. 446, 100m Cong., 2d Sess. 9 (1988). 
The first inquiry is whether the ReaderIDauber is itself a game of chance or whether it merely - assists a player or the playing of a game. As described above, the ReaderIDauber scans the 

pre-printed bingo cards. As each number and letter combination is drawn by the bingo blower, 

the agent in charge of the machine would enter into the machine the data identifying the 

number and letter combination and instruct the machine to scan or read each of the cards. 

Upon further instruction by the agent the machine would daub or cover each corresponding 

number and letter combination on each card and identify each card having the combination 

drawn. 

The ReaderIDauber is not itself a game of chance. Whether a player will win or lose a NIB 

game would be entirely determined by the contents of the card purchased, and whether the letter 

and number combinations on the bingo balls drawn by the bingo blower match the letter and 

number combinations on the bingo card. The ReaderIDauber would have no effect on whether 

the player wins or loses. Indeed, use of the ReaderlDauber would merely assist the player or 

agent; allowing for the play of a larger volume of cards than is possible with manual reading 

and daubing, thereby broadening participation levels with current technology as sanctioned by 

Congress. Based on this analysis, we find that the ReaderIDauber is not a game of chance but 

merely assists the player. Thus, it meets the first requirement of a technological aid. 

Having determined the ReaderIDauber is not a game of chance but merely assists the player in 

the play of the game of bingo, we must next decide whether the ReaderIDauber is an 

"electronic or electromechanical facsimile" of the game of bingo. See 25 U .S. C. 

lu, 5 2703(7)(B)(ii). NIGC regulations define electronic or electromechanical facsimile to be any 

gambling device as defined in the Johnson Act. 25 C.F.R. 5 502.8. However, two recent 

federal circuit courts of appeal have held that the Johnson Act definition does not apply to bingo 

aids. See U.S. v. 103 Gambling Devices, 2000 WL 1218766, (9" Cir. Aug. 29, 

2000) ("[Tlhe text of IGRA quite explicitly indicates that Congress did not intend to allow the 

Johnson Act to reach bingo aids."); United States v. 162 Menamania Gambling Devices More 

or Less, et.al., 2000 WL 1634741, 10 (10" Cir. Oct. 3 1, 2000) ("We [clonclude Congress did 

not intend the Johnson Act to apply if the game at issue fits within the definition of a Class I1 

game, and is played with the use of an electronic aid. "). 

Rather, 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." 162 Megamania Gambling Devices, at 10. See also Cabazon Band of Mission Indians 

v. National Indian Gaming Commission, 827 F. Supp 26, 32 (D.D.C. 1993) ("The definition of 

facsimile is an exact and detailed copy of something. "), ard, 14 F.3d 633, 636 (D.C. Cir. 

1994) ("[als commonly understood, facsimiles are exact copies, or duplicates"); Sycuan Band 

of Mission Indians v. Roache, 54 F.3d 535, 542 (9' Cir. 1994) ("[tlhe first dictionary definition 

of 'facsimile' is 'an exact and detailed copy of something. "). 

The ReaderIDauber is not an exact copy of the game of bingo. It is a device that reads and 

daubs bingo cards in large numbers thereby assisting players in the play of bingo. The complete 

game of bingo is not and cannot be played on the ReaderIDauber. FO; the of bingo to be wb@ 8 
played, cards must be purchased, balls must be drawn, and the results called out or otherwise 

wir communicated. The ReaderIDauber does none of this. As discussed above, the ReaderIDauber 

is merely an aid to the play of bingo, and does not replicate the game of bingo.4 

The final requirement for use of a technological aid in connection with class I1 bingo is that the 

aid must be operated according to applicable Federal communications law. It is Parker's 

responsibility to ensure that NIB is so operated. We make no determination whether the game 

as described violates any Federal communications law. 

Please be advised that this legal opinion is advisory in nature only and that it may be 

superseded, reversed, revised, or reconsidered by a subsequent General Counsel or Chairman 

of the Commission. Furthermore, if there are any changes made to the game as described, 

such changes might materially alter our conclusion. 

Sipcerew yours, 

ene 

A recent D.C. Circuit Court of Appeals decision applied a similar analysis with respect to the classification of a 

pull-tab machine. The issue before the court was whether the Lucky Tab I1 game, an electromechanical device 

that dispenses paper pull-tabs and then displays their contents on a video monitor, should be classified under 

IGRA as a class I1 aid or a class 111 facsimile. The court held the device was an aid to the play of pull-tabs 

because it cannot change the outcome of the game but merely reads the paper pull-tab and displays the contents on 

a screen. Diamond Game Enterprises, Inc. v. Reno, et. al, 2000 WL 1577954, 5 (D.C. Circuit, Nov. 3, 2000). 

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