FEB 1 7 1999 

James A. Bransky 

Michigan Indian Legal Services 

160 E. State Street, Suite 102 

Traverse City, MI 49684-2572 

Re: The Little Traverse Bay Bands of Odawa Indians' Application for 

Grandfathered Card Games 

Dear Mr. Bransky: 

The Little Traverse Bay Bands of Odawa Indians ("Band"), located in the State of Michigan, 

have requested a determination by the Chairman of the National Indian Gaming Commission 

("NIGC"), that the Band be permitted to offer any banking card game as a class 11 game, pursuant 

to 25 U.S.C. 5 2703(7)(C). After carefbl review, I have determined that the Band is not entitled to 

operate banking card games as class 11 games pursuant to IGRA's grandfather clause, as the Band 

was not operating banking card games on or before May 1, 1988. 

Indian Gaming Regulatory Act 

1 I* IGRA creates three classes of gaming which differ in the degree of tribal, state, and federal 

oversight. Class I gaming consists of "social games [played] solely for prizes of minimal value or 

traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal 

ceremonies or celebrations." 25 U.S.C. $2703(6). Class 11 gaming includes bingo, related activities, 

and certain non-banking card games. 25 U.S.C. 5 2703(7)(A). IGRA specifically excludes all 

banking card games, including baccarat, chemin de fer, and blackjack, from classification as a class 

I1 game. 25 U.S.C. 5 2703(7)(B). Class III gaming is dehed as "all forms of gaming that are not 

class I gaming or class II gaming." 25 U.S.C. 9 2703(8). IGRA requires that the operation of class 

111 games be "conducted in conformance with a Tribal-State compact entered into by the Indian tribe 

and the State." 25 U.S.C. 5 2710(d)(l)(C). No such Tribal-State compact is required for the 

operation of class I1 games. 

Grandfather Clause 

IGRA provides that in some instances banking card games may be considered class I1 games, 

and therefore not subject to a Tribal-State compact. A grandfather clause in section 2703(7)(C) 

applies to card games operated by an Indian tribe in certain states, including the State of Michigan, 

if operated on or before May 1, 1988. The grandfather clause provides: 

Notwithstanding any other provision of this paragraph, the term "class 11 gaming" 

includes those card games played in the State of Michigan, the State of North Dakota, 

the State of South Dakota, or the State of Washington, that were actually operated 

klw' in such State by an Indian tribe on or before May 1, 1 988, but only to the extent of 

1441 L STREET, N.W. 9lH FLOOR WASHINGTON, D.C. 20005 EL: 202-632-70(X3 FAX: 202-632-7066 
the nature and scope of the card games that were actually operated by an Indian tribe 

us in such State on or before such date, as determined by the Chairman. 

25 U.S.C. 5 2703(c) (emphasis added). Thus, according to IGRA, in order for a banking card game 

to qualifL as a class 11 game, the card game must have been "actually operated" by an Indian Tribe 

prior to May 1, 1988. 

The Band does not contend that it operated banlung card games on or before May 1, 1988, 

as is required by IGRA. Instead, the Band claims that "historic circumstances" prevented it fiom 

exercising certain powers of self-government, including the power to operate a gaming 

establishment.' The Band further asserts that "[tlhere is nothing in the language of tj 2703(7)(C) that 

would deny a tribe that was omitted fiom the list of federally recognized tribes at the time of IGRA's 

passage fiom taking advantage of this provision." (Letter fiom Bransky to Kevin Meisner of 9/3/97, 

at 3). However, the decision in this matter does not turn on whether the Band was recognized at the 

time of IGRA's passage but instead turns on whether the Band actually operated banking card games 

on or before May 1, 1988. 

Statewide Application Of The Grandfather Clause 

The Band requests a determination by the Chairman that grandfathered card games be 

authorized on a "statewide" basis pursuant to 25 U.S.C. 5 2703(7)(C), as banking card games were 

played on or before May 1, 1988 by other Indian Tribes in the State of Michigan. In other words, 

the Band asserts that as long as "any" Indian Tribe operated banking card games in Michigan within 

1~'~~ the statutory period, all other Tribes in Michigan should be permitted to operate those games under 

the grandfather provision. However, such a construction runs contrary to the policy of the 

grandfather clause and clearly expressed legislative intent. 

The plain language of the grandfather provision states that it applies only to those banking 

card games actually operated by an Indian tribe on or before May 1, 1988. See Reiter v. Sonotone 

Corp., 442 U.S. 330,337 (1979) (the starting point in cases involving statutory interpretation is the 

language employed by Congress); see also Consumer Prdct Safety Comrn'n v. GTE Sylvania, Inc., 

447 U.S. 102, 108 (1 980) (in the absence of a clearly expressed legislative intent to the contrary, the 

plain language must ordinarily be regarded as conclusive). A grandfather clause is defined as a 

"[p]rovision in a new law or regulation exempting those already in or a part of the existing system 

which is being regulated. An exception to a restriction that allows all those already doing something 

to continue doing it even if they would be stopped by the new restriction." Black's Law Dictionary 

699 (6th ed. 1990). 

I believe the plain language is conclusive that for banlung card games to be grandfathered as 

'The Band argues that it should not be precluded from the benefit of the grandfather provision 

due to the fact that Congress passed an act reaffirming it as a federally recognized Indian Tribe in 

1994, after the passage of IGRA. See Pub. L. No. 103-324,108 Stat. 2156 (1994). The Band seems 

,* to argue that it should still be able to benefit from the provision because they never had the 

opportunity to offer banking card games prior to May 1, 1988. 
class I1 games, the games must have been operated by the Indian tribe seeking to benefit fiom the 

,I++ grandfather provision. In fact, if Congress had intended the provision to apply to any tribe, it could 

have simply said so. Additionally, the legislative history supports my construction of the statute. 

An ex*tion of the legislative history also sheds light on the intent of Congress in enacting 

the grandfather clause. The grandfather clause's requirement of "actual operation by an Indian tribe" 

was addressed in the legislative history numerous times. The Congressional Record provides that the 

grandfather clause is intended "merely to protect tribes with existing operations fiom hardship due 

to this change in the law." 134 Cong. Rec. S 12,643-0 1 (daily ed. Sept. 15, 1988) (emphasis added). 

IGRA requires that "both the gambling operation and the particular games played in that operation 

must have been in place on or before May 1, 1988, in order to have the benefit of this provision." 

134 Cong. Rec. S 12,643-0 1 (daily ed. Sept. 15, 1988). Also, the Senate Report specifically refers 

to the grandfathering of the Lummi Tribe's gaming operation: "the Committee specifically intends 

that the card room operated by the Lummi tribe in Washington State be included in this grandfather 

provision." S. Rep. No. 446, 100th Cong. 2d Sess. 10 (1988) reprinted in 1988 U.S.C.C.A.A.N. 

3 07 1. If Congress intended for the grandfather clause to have statewide application, there would 

have been no reason to single out the Lurnmi Tribe's card room for mention in the Senate Report, 

as Congress would have grandfathered "all" card rooms within the State of Washington 

simultaneously. 

In the Senate Report, the Committee stated that "card games actually operated by tribes in 

certain states on or before May 1, 1988, will continue to operate under tribaVCommission jurisdiction 

as class I1 games. . . . " See S. Rep. No. 446, p. 10 (emphasis added). Additionally, the Committee 

%%w stated: 

To come within the grandfather clause, the Committee intends to include all games 

in which an investment is made and the games were actually operated on or before 

May 1, 198 8. Games are often closed temporarily for a variety of reasons such as 

contract disputes, renovations, and collateral legal disputes, among others. Such 

closures are not meant to preclude a tribe's game fiom being included in this section. 

S. Rep. No. 446, p. 10. A colloquy between Senator Reid and Senator Inouye provides hrther 

evidence supporting the interpretation that the games must have been operated by the Indian tribe 

seeking to benefit from the grandfather provision: 

Mr. Reid. It has been this Senator's understanding that this provision was adopted 

to protect tribes with existing investments in such games from hardships associated 

with changes in the law brought about by this legislation. This Senator also 

understands that the committee intended that the grandfather clause should not serve 

as the basis for expansion of existing gaming operations to new locations not in 

operation as of May 1, 1988. Would the chairman confirm that this provision does 

not provide authority for the establishment of new banking card game operations or 

the institution of new games in existing operations? 

Mr. Inouye. The Senator is correct. The grandfather clause is intended merely to 

protect tribesfrom hardship due to this change in the law. While the bill may permit 
the expansion of particular operations which were in existence as of May 1, 1988, for 

example, by the addition of gaming tables or seats in an existing establishment, it does 

not authorize the expansion of such operations to new locations, the establishment 

of new operations, or the institution of new games at existing operations. In other 

worals, both the gambling operation and the particular games played in that 

operation must have been in place on or before May 1, 1988 in order to have benefit 

of this provision. 

134 Cong. Rec. S12,643-01 (daily ed. Sept. 15, 1988) (emphasis added). 

The grandfather clause was drafted to protect tribes already operating card games from the 

prohibition against the operation of those card games without a TribaVState compact. Congress 

sought to achieve fairness by allowing pre-existing Indian gaming establishments, in the selected 

states, to continue operating such card games as class II. The Band does not qualify for the benefit 

of the grandfather provision because the Band did not operate banking card games on or before May 

1, 1988, as is required by 25 U.S.C. 8 2703(7)(C). 

Determination 

I commend the Band for presenting compelling equitable reasons in support of its application 

for grandfathered card games. As mentioned, however, the decision in this matter turns on whether 

the Band actually operated the games on or before May 1, 1988. I believe the statute is clear that the 

card games must have been operated by the Tribe seeking to have its card games grandfathered. By 

grandfathering certain card games conducted by certain Indian Tribes, it is clear that Congress did 

not intend to allow other tribes, not quahfjmg in their own right, to take advantage of the grandfather 

clause. After carehl review and consideration, I have determined that the Band may not offer 

banking card games as class 11 games pursuant to the grandfather provision contained in 25 U.S.C. 

5 2703(7)(C). 

Sincerely, 

&& 

Montie R. Deer 

Chairman 

cc: Jeff Davis, Assistant United States Attorney, Western District of Michigan 

Kevin DiGregory, Deputy Assistant Attorney General, Criminal Division, United States 

Department of Justice 

Jim Simon, Deputy Assistant Attorney General, Environmental and Natural Resources 

Section, United States Department of Justice