George E Tier 

PtincipaC Chief 

Nuscogee (creek$ Nation 

mecutive OfJice 

August 23,2013 

VIA e-mail to reg.review(iE,,nip;c.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 "Electronic One Touch Bingo System," 78 Fed. Rep;. 37998 (June 

25.2013) 

Dear Chairperson Stevens and Commissioner Little: 

Below please find comments on behalf of the Muscogee (Creek) Nation on the National 

Indian Gaming Commission's ("NIGC" or "Commission") proposal to recognize as Class I1 

"server based electronic bingo system games that can be played utilizing only one touch of a 

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 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 I1 gaming includes an electronic, computer or other 

technologic aid to the game of bingo that, as part of an 

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. 

P 0 Box 580 Okmulgee, OK 74447-0580 1-800-482-1979 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,2013 

Page 2 

- 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 I1 

bingo game into a Class I11 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 I11 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 I1 

bingo game into a Class I11 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 109 1 (9th Cir. 2000). Nevertheless, the Ordinance Letter asserted 

that the use of one touch auto-daub prevents a game from qualifying as Class 11 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 that there can be competition in a bingo game o& 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 

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), afrd 223 F.3d 109 1 (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 "[tlhere 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 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,201 3 

Page 3 

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 drawnldetermined for that game. Nothing about the autodaub 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 win2 

Further, the Ordinance Letter was Eundamentally 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 hisher 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 the unique sequence of bingo numbers 

drawnldetermined 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, "[wlhether a 

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. 

1 The Ordinance Letter cited a 2003 opinion fiom 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-Cavuna 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. 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,201 3 

Page 4 

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., Nat71 Indian Gaming Cornm'n, National Indian Bingo Game 

Classification Op. (Nov. 14,2000), available at 

http://www.nigc.gov/P ortals/O/NIGC%2OUploads/readingroo/indi 

anbingol11400.~df).~ 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 I1 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 requirements for 

a game to count as class I1 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 "pulltabs, . . . punch boards, tip jars, [and] instant bingo . . . [if played in 

the same location as the game commonly known as bingo]," 25 

U.S.C. ij 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. 21 13 v. 

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

operate unless at least two players have purchased bingo cards for that game. 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,2013 

Page 5 

Commissioner, 98 F.3d 190 (5th 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, 5 2703(7)(A)(i)'s definition of class I1 bingo includes 

"other games similar to bingo," 25 U.S.C. $2703(7)(A)(i), 

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 MenaMania Gambling 

Devices, 23 1 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 I1 game, as previously di~cussed.").~ 

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 

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

[One] cornmenter suggested that class LI gaming be limited to games involving 

group participation where all players play at the same time against each other for 

a common prize. In the view of the Commission, Congress enumerated those 

games that are classified as class I1 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 def~tion 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" 

lrNf' "G" "0" across the top, with numbers 1-1 5 in the first column, etc. In 

defining class I1 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 I1 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 defrned in the regulations. The Commission 

believes that Congress did not intend other criteria to be used in classifying 

games in class 11. 

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

9, 1992). 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,2013 

Page 7 

The IGRA provides that Class I1 gaming does not include "electronic or 

electromechanical facsimiles of any game of chance," 25 U.S.C. 5 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, 

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. 5 502.8 (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 

ma~hine.~ 

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. 4 1,166,4 1,17 1 (June 17,2002) (emphasis added). 

The NIGCts 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 

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. 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,2013 

Page 8 

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 I1 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 modem 

methods of conducting class I1 aames and the language regarding 

technology is designed to provide maximum flexibilitv. In this 

regard, the Committee recognizes that tribes may wish to join with 

other tribes to coordinate their class I1 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 techno log^ 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 particioation levels and is readily distinguishable from the 

use of electronic facsimiles in which asingle 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. 5 2703(7)(A)(i)), only becomes a facsimile if the 

technolo y permits the player to play "with or against a machine rather than with or against other 8 players. " 

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 

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. 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,2013 

Page 9 

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 1 I OQ; 162 MegaMania Gambling Devices, 23 1 F.3d at 724.8 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 "& 

electronic or electromechanical format broadens participation by allowina multiple players to 

play with or against each other rather than with or against a machine." 25 C.F.R. 9 502.8 

(emphasis added). As long as there are players playing against each other, the game is not a 

facsimile. 

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 S~okane Indian Tribe v. United States, 972 

F.2d 1090, 1093 (%h 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 

v. National Indian Gaming Comm'n, 14 F.3d 633,636-37 (D.C. Cir.), &. 

denied, 5 12 U.S. 1221 (1994) (Cabazon 111). Courts have adopted a plainmeaning interpretation of the term "facsimile" and recognized a facsimile of a 

game is one that replicates the characteristics of the underlying game. 

Svcuan 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))), g.rJ. 

denied, 516 U.S. 912 (1995); Cabazon 11,827 F. Supp. at 32 (same); Cabazon 

- 111, 14 F.3d at 636 (stating "[als commonly understood, facsimiles are exact 

copies, or duplicates."). 

162 MegaMania Gambling Devices, 23 1 F.3d at 724 (emphasis added). 
Tracie Stevens, Chairperson 

Daniel Little, Commissioner 

August 23,20 1 3 

Page 10 

Conclusion 

The Tribe is pleased that the Commission has decided to clarify that a game that is 

otherwise Class I1 bingo is not converted into a Class I11 game through the addition of a one 

touch auto daub feature. Congress provided a bright line test to distinguish electronically-aided 

Class I1 games from Class I11 games. That line is not based on the number of player "touches" 

required to interact with the game. Rather, Class I1 bingo includes anv game that meets the three 

statutory requirements set forth by Congress. Such games may be played with any fomi of 

electronic, computer or other technologic aid, so long as the aid does not permit a siiigie player 

to play alone with or against the machine. 

Sincerely, 

George Tiger, Principal Chief