Ms. Tracie Stevens 4

letter to conclude that one-touch bingo does in fact meet the statutory definition of
the game of bingo. We commend the NIGC for correcting the flawed analysis on
which the 2008 letter was based and proposing a more reasoned and principled
approach to game classification that supports rather than contradicts federal case
law. We wholeheartedly agree with the NIGC’s statement that such approach is
“more in keeping with IGRA’s definition of bingo and will bring clarity to the
industry.”*

For the foregoing reasons, we strongly encourage the NIGC to move
forward in formalizing this proposal to clarify that one-touch bingo is a Class II
bingo game under IGRA and its implementing regulations. As you are well
aware, Class II gaming has been an essential source of governmental revenue for
many tribal governments, including the Nation. We believe this proposal will help
secure an economically viable form of gaming for all tribal governments as well as
the right to enjoy the full benefit of the law as intended by Congress when it
enacted IGRA. Thank you for your favorable consideration of our comments.

* Electronic One Touch Bingo System, 78 Fed. Reg. 37998, 37999 (June 25, 2013).


OFFICE OF THE GOVERNOR
The Chickasaw Nation
Post Office Box 1548 ¢ Ada, Oklahoma 74821
(580) 436-2603 ° Fax (580) 436-4287
BILL ANOATUBBY http://www.chickasaw.net
GOVERNOR

August 26, 2013

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

Dear Chairwoman Stevens:

The Chickasaw Nation is pleased to submit the enclosed comments on the
National Indian Gaming Commission’s (NIGC) proposal to reinterpret its position
regarding the classification status of one-touch bingo games. This proposal seeks
to bring an end to years of debate regarding the proper classification of bingo
games utilizing one-touch electronic aids. We commend the NIGC’s initiative to
adopt a more reasoned and principled approach to game classification, and believe
the proposal, if adopted, will bring much needed clarity and certainty to the tribal
gaming industry.

Thank you for your consideration of the our comments on this important
matter. We look forward to continuing to work closely with the NIGC in the spirit
of the government-to-government relationship and in accordance with federal law
and policy.

Sincerely,

Bill Anoatubby, Governor
The Chickasaw Nation

Enclosure


Ms. Tracie Stevens 2

COMMENTS OF THE CHICKASAW NATION ON THE
NATIONAL INDIAN GAMING COMMISSION’S
PROPOSED REINTERPRETATION OF ONE-TOUCH BINGO

The Chickasaw Nation (“Nation”) is pleased to submit the following
comments in response to the National Indian Gaming Commission’s (“NIGC”)
proposal to reinterpret a previous decision regarding the classification of electronic
“one-touch” bingo as a Class III electronic facsimile. This proposal is a welcomed
and appreciated effort by the NIGC to bring much needed and much desired
clarity and stability to the tribal gaming industry, particularly in relation to the use
of technological aids in the play of Class II bingo. By this letter, we wish to
express our strong support for the proposed reinterpretation, which we believe
represents a more viable and legally sound approach to classifying electronic
bingo games.

The distinction between Class II and Class III gaming under the Indian
Gaming Regulatory Act (“IGRA”) has historically been among the most contested
aspects of the statute. This debate over the proper classification of games under
IGRA arose in the early 1990s as gaming manufacturers began introducing
electronic enhancements to the play of bingo. Even though the essential character
of the game remained unchanged, some federal authorities viewed the visual
similarity between electronically aided bingo games and traditional slot machines
as blurring the line between electronic aids to the play of Class II games and Class
III electronic gambling devices.

We emphasize, however, that IGRA is unambiguously clear on the issue of
classifying electronically aided Class II games. In enacting IGRA, Congress
placed only three requirements on a game of bingo and made clear that bingo is
bingo so long as the game satisfies the three statutory elements. It is therefore
unreasonable and contrary to law to classify an electronically aided Class II game
as Class II gaming based on superficial features unrelated to the three statutory
elements of bingo.

In spite of this, the NIGC determined in a 2008 letter to the Metlakatla
Indian Community that Class II gaming did not include bingo games utilizing an
electronic “auto-daub” feature. According to the 2008 letter, such games did not
constitute Class II bingo because they lacked the requisite “competition” element
essential to meeting the statutory definition of Class II bingo. Since the game did
not require players to participate and compete with each other by taking an
additional step to cover the numbers on their virtual bingo cards, the game was a
Class III electronic facsimile of a game of chance. In addition, the letter
concluded that since the game system covered the numbers on behalf of the player,


Ms. Tracie Stevens 3

all of the fundamental characteristics of the bingo game were contained in the
system, thereby rendering the system a Class III electronic facsimile.

The 2008 letter was met with strong opposition from tribal governments,
regulators, and other stakeholders who objected to such a narrow interpretation of
Class II bingo under IGRA. Such interpretation not only imposed additional bingo
requirements not intended by Congress, but also contradicted Congress’ intent to
encourage the use of modern technology in the play of Class II games. In enacting
IGRA, Congress not only anticipated but intended for the Class II gaming industry
to evolve and grow through new technological developments. As noted in the
proposal and reflected in the legislative history of IGRA, Congress intended for
tribal governments to “take advantage of modern methods of conducting Class II
games” and sought to provide “maximum flexibility” in this regard. |

Equally troubling was the fact that the 2008 letter reflected legal
interpretations clearly inconsistent with applicable case law. Federal courts have
continuously held that the three statutory requirements of bingo “constitute the
sole legal requirements for a game to count as Class II bingo.” The case law
makes clear that the classification of bingo games turns not upon the electronic
features of the game, but upon its fundamental elements and the extent to which
such elements satisfy the statutory requirements.

Furthermore, federal courts have repeatedly affirmed that it is permissible
for an aid to a Class II bingo game to assist the player by automatically covering
drawn numbers. In United States v. 103 Electronic Gambling Devices, the court
dismissed the argument that a gaming device failed to satisfy the definition of
bingo because of its electronic daub feature, stating that “[t]here 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 independently and
separately.”” Moreover, federal courts have deemed the manner in which a player
“covers” numbers as irrelevant for classification purposes. As emphasized by the
103 Electronic Gambling Devices court, “IGRA merely require[s] that a player
cover the numbers without specifying how they must be covered.”

The NIGC’s current proposal acknowledges that the 2008 letter was based
on misguided assumptions not supported by federal law, policy, or legal precedent.
In the proposal, the NIGC successfully refutes the assertions made in the 2008

'S. Rep. No. 100-446, at 9 (1998).
2 United States v. 103 Electronic Gambling Devices, 1998 WL 827586, at *6 (N.D. Cal Nov. 23,
1998), aff'd 223 F.3d 1091 (9th Cir. 2000).
3
Id.