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2332. Howland H i l l Road

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Crescent City, CA95551

Rancheria Phone 707.464.4680

CI (' rax:707.465.26) 8

a{1forn la www.elkvalley. com

July 17, 2013

VIA E-MAIL AND POSTAL SERVICE

reg.review@nigc.gov

Michael Hoenig

National Indian Gaming Commission

1441 L Street NW, Suite 9100

Washington, DC 20005

Re: Electronic One Touch Bingo System; Public Comment

Dear Mr. Hoenig:

The Elk Valley Rancheria, California, a federally recognized Indian tribe (the " Tribe"),

reviewed the Request for Public Comment regarding Electronic One Touch Bingo System

published on June 25, 2013 in the Federal Register.

The Tribe understands that the National Indian Gaming Commission(" NIGC") intends to

reinterpret previous NIGC interpretations regarding the classification of server based electronic

bingo system games, including the use of" one touch bingo."

The Tribe is aware that some states, e. g., California, have wrongly attempted to utilize

the NIGC' s former position to re-classify one touch bingo games as Class III gaming devices.

The Tribe reviewed the June 4, 2008 letter from the former Chairman ofthe NIGC

disapproving the Metlakatla Indian Community' s proposed gaming ordinance.

Nothing in IGRA requires a" two-touch" system or renders a" one-touch" system as not

constituting Class II gaming. The Metlakatla disapproval was simply the Chairman ofthe

NIGC' s opinion based upon his interpretation of IGRA and applies only to the Metlakatla Indian

Community.

While the Tribe understands that the NIGC under then-Chairman Hogen adopted such a

position, the subsequently adopted NIGC technical standards in October 2008 did not include

any such requirement. The Tribe is of the position that the more recent action by the full NIGC
not just the Chairman) both more accurately demonstrates the NIGC' s position and supports the

Tribe' s position that nothing in IGRA requires two-touch bingo games.

The Tribe' s position is also supported by the NIGC' s press release (PR-98- 2008)

regarding the Metlakatla Indian Community' s withdrawal ofits appeal ofthen-Chairman

Hogen' s decision. There, the NIGC' s former Chairman acknowledged that federal court

resolution was needed to address the former Chairman' s position because there is no definitive

statement in the IGRA consistent with then-Chairman Hogen' s position( s). Obviously, thenChairman Hogen' s position is not clearly supported by IGRA.

IGRA defines class II gaming as:

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 priz , including monetary prizes, with

cards bearing numbersd other designations,

II) in which the holder of the card covers such nu ers or

designations when objects, similarly numbered or de§Ignated, are

drawn or electronically determined, and

III) in which the game is won by the first person covering a

previously designated arrangement of numbers or designations on

such cards, including (ifplayed in the same location) pull-tabs,

lotto, punch boards, tip jars, instant bingo, and other games similar

to bingo,....".

25 U.S. C. § 2703( 7)( A).

Federal courts have already addressed the prior NIGC position in a Ninth Circuit case

that was decided in 2000. There, the Ninth Circuit said: M

i;

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 ofthe 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 ifthere 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 ifthey were not meant to be exclusive?
U.S. v. 103 Electronic Gambling Devices, 223 F. 3d 1091, 2000 ( 9th Cir. 2000). There, the

federal government sought forfeiture ofpurported Class III gaming devices and the manufacturer

claimed that the games constituted" bingo" under the IGRA and should be classified as Class II

gaming. In fact, the opinion opens with: "This case poses the question, what is bingo?" The

opinion ultimately concludes that the game at issue is " bingo" and dispenses with the very

arguments articulated by the former NIGC Chairman in his Metlakatla Indian Community

gaming ordinance disapproval.

The Tribe supports the NIGC' s proposed interpretation as the NIGC' s prior position as

described in the Metlakatla Decision was not consistent with the Indian Gaming Regulatory Act

or various federal court cases addressing the issue.

The NIGC' s proposed position is consistent with IGRA and federal court cases. Further,

it will address apparent confusion between some states and tribes regarding the appropriate

classification ofelectronic one touch bingo games, i.e., Class II v. Class III.

The Tribe is pleased that the NIGC is proactively addressing this issue. Thank you in

advance for your consideration of the--Ell. Valley Ranchcria. California' s comments.

Sincerely.

D VA7Miller

Chairman

cc: Elk Valley Tribal Co ncil

Elk Valley Tribal G. ing Commission

GM, Elk Valley Casino

COO-CFO

General Counsel