_ National Indian Gaming Commission

Re: Comments ~ Reinterpretation of Electronic One Touch Bingo System Decision
August 05, 2013

“First, as the [Sycuan] Commission is aware, tribes may operate Class II games in states that do not
allow, or refuse to negotiate, casino-style gaming. Today, nearly every state permits bingo, opening
the door to Class II gaming in those states. Even in states that allow casino-style gaming, a tribe may
use Class IT gaming to increase, for example, the number of gaming machines allowed under a Class
Til compact. Second, because no tribal-state compact is required, Class II gaming allows tribes to

a make decisions free of state politics about effective regulation, appropriate use of revenue,

appropriate economic development and growth, and other exercises of sovereign authority,
including the preservation of cultural traditions or tribal norms.”

The economic development derived from Class II goes well beyond the revenue produced. Dean
Rand stated that,’

“Class II gaming has become increasingly important and increasingly controversial because it has
inspired technological enhancement and innovation that greatly enhances the profitability of Class II
gaming and, therefore, its impact on tribal economic development. Thus, Congress included IGRA’s
Class II ‘technological aid’ provision to ensure that tribes have that maximum flexibility to utilize
bingo for tribal economic development.”

Statutory Framework — IGRA

A review of IGRA was completed with knowledge that the NIGC until 2009 had actively pursued a
5

policy designed to limit the play of Class II bingo. Attorney Judy Shapiro noted at the Sycuan
Hearing:°

“Through a series of advisory opinions; the Office of General Counsel said, you can have this game,
Game A, Game B, Game C, as a Class II game, but if and only if, the following limitations are
observed: the number of touches, the size of the card, the configuration of the card, certain delays,
and certain specifications about how many releases... All of these distinctions are not part of the
statute. They are arbitrary and capricious conditions to what the statute provides.”

At the Sycuan Hearing a panel of experts in the history of bingo strongly agreed that efforts to
define bingo as a game with little flexibility or limited options for play is contrary to its history
(testimony of Gordon Sjodin at the Sycuan Hearing’). In general, the game of bingo in the 1970’s
was played with hard cards and a verbal ball call, though electronic aids to bingo date back to the

id
*id
* The Gaming Commission understands that the NIGC has since dropped its efforts to
redefine Class II bingo through Classification regulations or changes to the facsimile
regulation and it has been advised by tribal attorneys and consultants that is doubtful, under
the Obama administration, that such efforts will be renewed; however, there remains an
ever-present possibility that future NIGC leaders could renew these efforts
° The testimony for the History of Class II Litigation is attached in Appendix C
’ The entire testimony for the History of Bingo Panel is attached in Appendix D

Page 4 of 5


ie

Re: Comments — Reinterpretation of Electronic One ‘Touch Bingo System Decision
August 05, 2013

Gaming Devices, 231 F.3d 713 (2000)], which held that the three statutory requirements in 25 U.S.C.
§2703 are the sole legal requirements for bingo.

Economic Development and Sovereignty

The most important finding embodied in IGRA is that “a principal goal of Federal Indian policy is

into promote tribal economic development, tribal self-sufficiency, and strong tribal government.” To
“

date, Indian gaming has been the most successful economic development tool available to Tribes. It
continues to be the economic base that supports Tribal sovereignty and stability at all levels of
Indian communities. At the Sycuan Hearing, Chief Tom Gamble of the Miami Tribe of Oklahoma
noted that Class II gaming has proven to be the first and only economic development tool that has
ever worked for the Tribes. Tribes and the surrounding areas have experienced an economic boom
from the revenues generated by Class II gaming’. Chief Gamble’s view was strongly supported by a
Panel of local officials from northeast Oklahoma that testified at a hearing held by the House
Resources Committee in Miami Oklahoma in 2008.

The enactment of Tribal rules and regulations are a necessary step in the protection of sovereignty.
The Commission believes that the adoption of rules by a tribal gaming commission pursuant to an
approved gaming ordinance containing the process and requirements for the approval of Class II
bingo games played with electronic equipment is a fundamental exercise of tribal governmental
authority.

At the Sycuan Hearing, Dean Katherine Rand of the University of North Dakota” observed that:

“Tndian gaming, of course, is public gaming...it is conducted by tribal governments and it is driven
by the public interest, not by profits. Tribes are uniquely obligated to regulate gaming in a way that
best serves the public interest. The second goal of tribal regulation should be to facilitate tribal
institution building. One of the largely unrecognized successes of Indian gaming, at least outside of
Indian Country, is the role that it has played in tribal government institution building. Class II
gaming provides an avenue for tribes to raise revenue and to underwrite or extend tribal government
functionality and responsiveness, even when Class III gaming is unavailable or is constrained by
state law and state politics.”

The role of Class II gaming is becoming increasingly important, particularly for tribes who have
been unable to secure an effective Class III compact despite its best efforts. There are many
instances of Class III compacts expiring, being renegotiated or otherwise potentially being modified
where Class II games are the only option many tribes have.

Dean Rand at the Sycuan Hearing articulates the position Tribes find themselves in when a compact
is not an option and choose to use Class II:°

' The testimony for the Tribal Leader Panel is attached in Appendix A
* The testimony for the History of the Indian Gaming Regulatory Act is attached in Appendix B
Page 3 of 5


iat sate Ac cate AT igh pen for larger prizes helped
o played entirely in video form, like the Megamania games and bingo card minders. Class
played today stands on the shoulders of those technological innovations. Bingo is a
game that since its inception has been evolving. In order for bingo to remain viable, it must
demands, tastes, and preferences of consumers or risk becoming static and unprofitable
y of Eric Casey at the Sycuan Hearing’).

¢ in the Cabazon decision, the Committee intends, and this is in the definition section, ‘that
have maximum flexibility,’ as Frank indicated, to utilize games such as bingo for tribal
development. The Committee specifically rejects an inference that tribes should restrict

at tribes be given the opportunity to take advantage of modern methods of conducting
and the language regarding technology is designed to provide maximum flexibility.”

ssion recognizes the importance of Class II bingo games played with electronic

nent as an exercise of sovereign governmental power as the primary regulator of all classes of

within their jurisdiction. The Commission acknowledges that Class II gaming is rightly called

corner stone” of all Indian gaming and is vital to the continued self-determination and

self-sufficiency of all tribal governmental gaming. At the time IGRA became law, the

commonly known as bingo had been played on Indian lands for decades as a means of
development.

‘ _ The reinterpretation of the one touch bingo decision by the NIGC underscores the continuing
__ importance of Class II as an essential vehicle for tribal self-governance and self- determination. The
Commission endorses the proposed reinterpretation of the one touch bingo decision and urges the

= to adopt this reinterpretation.

Sycuan Band of the Kumeyaay Nation - Gaming Commission

Sid
° Appendix B
Page 5 of 5


August 7, 2013

Tracie L. Stevens, Chairwoman
National Indian Gaming Commission
1441 L Street NW, Suite 9100
Washington, DC 20005

Re: | Comments — One Touch Bingo Decision Reinterpretation

Dear Chairwoman Stevens:

As you are aware, Class II gaming is an important economic development
tool for many tribes throughout Indian Country. But in the past, tribes were
limited in the variety of Bingo games offered patrons due to the National Indian
Gaming Commission’s (“NIGC”) erroneous interpretation of what is a Class II
game. Recently, however, the NIGC proposed to reinterpret its decision, finding
that “one touch” Bingo games are indeed Class II. This proposal is in line with
the determination made by the Gaming Commission of the Sycuan Band of the
Kumeyaay Nation after an in depth hearing on the topic.

In response to the NIGC’s request for input on the proposed reinterpretation, the
Sycuan Gaming Commission reviewed all testimony received and information
learned from its hearing on one touch Bingo games and prepared comments for
submission. The resulting submission, which is attached to this letter, includes
testimony from the hearing and is supportive of the NIGC’s reinterpretation of its
earlier decision. The Tribal Council of the Sycuan Band of the Kumeyaay Nation
is fully supportive of the Sycuan Gaming Commission’s submission and, on
behalf of the Tribal Council, I urge the NIGC to adopt the proposed
reinterpretation.

Thank you very much for listening to Indian Country and taking an approach to
Class II gaming that is supported by both the law and common sense.

Sincerely,

Sycuan Tribal Chairman

Daniel J. Tucker

| Kwaaypaay Court + El Cajon, California 92019 * 619.445.2613 * Fax 619.445.1927 * sycuantribe.com


yt

August 05, 2013

Tracie L. Stevens, Chairwoman
National Indian Gaming Commission
1441 L Street NW, Suite 9100
Washington, DC 20005

Re: Comments — Reinterpretation of Electronic One Touch Bingo System
Decision

Dear Chairwoman Stevens & Commissioners:

_ The following comments are submitted to the National Indian Gaming
Commission (“NIGC”) by the Sycuan Band Kumeyaay Nation Gaming
Commission (the “Commission”). The Commission is the governmental
agency responsible for the regulation of all Class II gaming activities on
Sycuan Tribal Lands.

Introduction

Through this submission the Commission intends to give historical and
legal context supporting the reinterpretation of an National Indian Gaming
Commission (“NIGC”) decision regarding the classification of server based
electronic bingo system games that can be played utilizing only one touch of
a button (“one touch bingo decision”). The reinterpretation of the one
touch bingo decision recognizes the unique history and status Class IT
games have within the framework of the Indian Gaming Regulatory Act
(“IGRA”) and the importance these games hold for all of tribal government
gaming. At the time IGRA became law, the game commonly known as
Bingo had been played on Indian lands for many years as a means of

at, economic development. Class II gaming has rightly been called the “corner
stone” of all Indian gaming.

5485 Casino Way Suite 200, 3rd Floor + El Cajon, California 92019 + 619.445.9723 * Fax 619.445.5918


\ Reon Indian Gaming Commission.
Re: Comments — Reinterpretation of Electronic One Touch Bingo System Decision
August 05, 2013

In June 2009, the Commission held a fact finding hearing that received testimony on the history of
Tribal bingo, Tribal regulation of Class II gaming, the history of the IGRA, economic development
spurred by Class II gaming and a survey of the legal history of Class II gaming since IGRA (“Sycuan
Hearing”). The Commission acknowledges the significant insights gained from the Sycuan Hearing
and submits crucial parts of the hearing record made before the Commission. The Commission
ra) _ Specifically incorporates the referenced testimony taken at the Sycuan Hearing into this submission
“and it specifically wants the referenced testimony to be part of the NIGC record for the

reinterpretation of the one touch bingo decision. References to the testimony are made throughout
_ this submission.

% Background

On February 25, 1987, the U.S. Supreme Court issued its decision in California v. Cabazon Band of
Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987) (Cabazon). Cabazon is the
Supreme Court precedent that recognized the sovereign authority of Indian tribes to offer bingo and
other forms of gaming on Indian land free of state regulation.

The Cabazon case involved Tribal high stakes bingo games and card rooms open to the general
public. These games were conducted pursuant to tribal ordinances that had been approved by the
Secretary of the Interior. The U.S. Supreme Court determined that California's statutes regulating
bingo and card games were not criminal/prohibitory in nature, but rather, these statutes were
civil/regulatory and, therefore, did not apply to activities on Indian Reservations. Further, the U.S.
Supreme Court found that the application of state and county ordinances as to the gaming activities
on the Indian Reservations had been preempted as a matter of Federal law.

The U.S. Supreme Court's decision in Cabazon stands for the principle that Tribes had the authority
to conduct gaming activities on reservations unfettered by any state or county regulation, unless such
games were criminally prohibited under state law. The decision recognized the important Federal
Principles of tribal self-governance and self- determination and found that these Federal principles
preempted the application of California civil statutes.

At the same time that the Cabazon case was litigated, there was widespread growth of Indian bingo
halls in many parts of the country, as there had been a number of favorable lower court decisions
Prior to Cabazon. The growth of Indian gaming increasingly came under congressional scrutiny
during the 99th and 100th Congresses and was the subject of numerous congressional hearings.
Following the U.S. Supreme Court's decision in Cabazon, Congress enacted the IGRA in 1988 to
provide a comprehensive federal regulatory scheme for Indian gaming.

The IGRA specifically designates Tribal governments as the primary regulator of Class II games.
Class II gaming serves as an essential touchstone for the protection and implementation of tribal
sovereignty. Congress concluded that Tribes are to have maximum flexibility in determining what
constitutes a Class II game. The Federal Courts have consistently supported these propositions. Of
particular importance is the 9" Circuit decision in the Megamania case [U.S.A. ». 162 Megamania

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