BEAR RIVER BAND LEGAL DEPAIRTlMIENT 

266 KEISNER RB LOLETA, CA 955514707 PHONE 707-733-1M FAX 707-733-7972 

I 

COMMENTS OF THE BEAR RIVER BAND ON THE NIGC'S PROPOSAL TO RE 

INTERPRET THE STATUS OF "ONETOUCH" ELECTRONIC, COMPUTER OR OTHER 

TECHNOLOGIC AIDS TO CLA5S I1 BINGO GAMES 

In a June 4 2008 letter bm 1 hen-NIGC Chairman Phil Hogen to the Metkkatla Indian Community 

disapproving an amendment to that Tribe's gaming orbance that would have pktted use of an "autodaub" or ttone-touch" fmture in an el~ctronically aided bingo game, former NIGC Chairman Phil Hogen 

took the position that in order to be c,-msidered a permissible electronic, computer or other technologic aid to 

Chss I1 bingo, the device must require a player to press a button ox a touch-screen at least twice dunng a 

g-ame, and that the NIGC would regatd an aid that utilized a "me-touch" or "auto-daub" feature would be 

considered to be a Class 111 gaming &.Pice for which a compact would be required. 

1 

The NICE has announced its intention to reinterpret Chairman Hogen's decision "regarding the 

dass~cauon of server based electroni: bingu system games that can be phyed utilizing only one touch of a 

button ("one touch bingoY"J] " and ha3 solicit4 comments on its proposed reinterpretation. For the reasons 

set foah below, the Bear kver Band l~ercby supp- the NIGC's proposed fcinterpretation of fower 

Chairman Hogen's erroneous interpretation of what IGRA dehes as "bityp" or "games sdar to bi." 

COMMENTS 

I. REINTE~PRETATION OF THE CONCLUSIONS EXPRESSED BY 

CHAIRMAN HOGEN IN HIS JUNE 4,2008 LETTER IS APPROPIUATE 

BECAUSE THOSII CONCLUSIONS WERE IN EXCESS OF CHAIRMAN 

HOGEN'S STATKTORY AUTHORITY, ARBITRARY, CAPRICIOUS AND 

CONTRARY TO IAW. 6 ! .I ' i ,. lk~~~L' 
Under IGRA, Inchan tribes are the primary rcgvlators of Chss TI gaming. 25 U.S.C. $2710(a)-@). 

Thus, oversight by the NIGC is limited, and decisions on the proper classification of aids to Class 11 bingo 

games are, in the first instance, left to tribal gaming agencies. In hs context, IGKA sigmficantly restricts the 

pun& on whch the Chairman may ~Gsappruve a tribal gaming ordinance or amendment. 

Specifically, 25 U.S.C. tj 27 lo( b) (2) provides that " [tlhe Chairman shall approve any tribal ordnance 

or resolution concerning the conduct, or regulation of Class I1 gaming on the Indian lands withn thc tribc's 

jurishcGon if such ordinance or resoh &on provides &at [certain speutic matters are addressedll." Further, 

25 U.S.C. 5 2710(e) provides that, "... 1)y not later than the date that is 90 days after the date on which any 

tribal gaming orhance or resolution : s submitted to the Chairman, the Chairman shall approve such 

ordinance or resolution if it meets the requirements of this section." Ihc NIGC's implementmg regulauons, 

25 C.F.R. Part 522. contain thc same Imitation. 

The listed requirements founrl in 25 U.S.C. 5 2710(b) and the NIGC1s implementing regulations at 25 

C.F.R. Part 522 do not include game classification issues or definitions of pcrmittcd dcctronic aids to Class IT 

games. Consequently, Chairman Hog m exceeded his statutory authority in disapproving an amendment to 

the Metlahtla Indian Community's G dg Ordmance on grounds othet than those permitted by ICXA or 

the NIC;C:'s own regulations. .See, Ha $man P. Kckcrpoo Tribe Cumdq Commis~ioa 0. Kan. 2001) 176 F. Supp. 

2d 11 68,1179-80 @d, 319 F.3d 1230 (10th Cir. 2003): 

the court rejects plairttiffs contention that every ordinance must be 

approved or disapprc wed by the NIGC. An amendment to an ordinance 

does not require NICK approval if it adkessed issues not raised in the 

IGRA or the NIGC':: regulations . . . 'I'hc only provisions required for such 

ordtnances are those listed in 25 U.S.E:. 5 2710@)(2), as incorporated 

through 25 U.S.C. $ :!710(d)(l)(A) and in 25 C.F.R. Part 522. 

Accordmgly, even if tlzere we:e no other reasons to reinterpret Chairman IIogen's decision, his 

consideration of factors unauthorized by - and contrary to -express statutory languagc warrants 

rcintcrpreration of his decision. 

11. IGR4 DOES NOT REQUIRE THAT TECHNOLOGIC AIDS TO CLASS 

11 BINGO REQUI RE ANY SPECIFIC MINIMUM NUMBER OF "TOUCHEStt 

These matters are limited to provisions ~ddrcssing the Tkbe's sole proprietary interest in the gaming operati- use of 

net gaming revenues, annual indcpmdent audits, protection of he envirrmmmt and pul~lic health and safety, and 

licensing and background inves%ations. ZS 1J.S.C. $ 2710(b){2). 
OR ANY MINIML M TIME FOR GAME PUY, AS LONG AS THE GAME 

BEING PLAYED MEETS THE STATUTORY DEFINITION OF "BINGO" OR 

A "GAME SIMILAR TO BINGO." 

IGRA establishes the paxarne ers within which gaming lawfully may take place on Indian lands. A 

tribe may engage in Class I1 gaming o:i its lands without a tribal-state compact if the State permits such 

&g for any purposc and the wibd governing body adopts an ordinance permitting such gaming, whch 

orhancc is approved by thc Chairman of the NIGC. 25 U.S.C. $2710@). 

As defined in IGRA, 25 U.S.C. Sec. 2703(7)7)(A), 

The term "Class 11 gam.mgl' means - 

(iJ the game of chanc: commonly Imm as bingo (whether or not 

eIectmnic, computer, or other technologic aids are used in connection 

therewith} - 

which is played for prizes, including monetary prizes, with 

cards bearing numbers or other designations, 

@I) in which the holdcr of the card covers such nurnbm or 

designations when objects, similarly numbered or designated, are 

drawn or de :tronicaily determined, and 

(I10 in which thc game is won by the first person covcring a 

previc>usIy dt:signated wmngtment of numbers or designations on 

such cards, kldudmg (if played in the same location) pd-tabs, 

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

to bingo, anrl . . . 

(H) 'l'kc tcrm "Class -- piningt' does not include - 
{i) any lrankmg card games, in- baccaraq chemin de fer, 

or blaclqack (21), or 

(ii) electronic or electromechanical facsiiniles of any game of 

chance or slot machines of any kind 

25 USC. 5 27030 (A) - (B}. 

If a game of chance (that is not a Class I game) is not a Class I1 pe, it is defined as Class Ill and 

may only be played if and as permitted by an approved tribal-state compact or a set of Seaetarial procedures 

that is in effect 25 U.S.C. $5 2703(8), 2710(d). 

In addition to the statutory definition, the NTK has promulgated regulations that gve further 

guidance in determining what cons tit^^ yes Class TI ping. These regulations, fomd at 25 C.F.R. $502.3, track 

1-5 statutory defmition and define Class 11 gaming as: 

(a) Bingo or lotto (whether or not elecdc, computer, or other 

technologic aids are used) when players: 

(1) Play for prizes with cards bearing numbers or other 

drsignatians; 

(2 Cover numbers or designations den object, shdady 

numbered or designated, are drawn or eleonidy determined; 

and 

(3) Win the game by being the kt person to cover a 

designated pittern nn such cards; 

(b) If played in the same location as bingo or Iotto, pull-tabs, punch 

boards, tip jars, instailt bingo, and other pes similar to bingo. 
25 C.F.R. 5 502.3. 

The NIGC revised its deftnitions of technologic aids, facsimiles and other games shh to bingo in a 

ha1 rule published on June 17,2002. 67 Fed Reg. 41,166 Uune 17,2002). The regulations include the 

following definitions: 

(a) Eb~tmna'~; comp#ter or other #echnoh@c ad means any machine or device 

that. 

(1) Assi;ts a player or the playing of a game; 

Is not an electronic or elearomechanical facsimile; and 

(3) Is operated in accordance with applicable Federal 

communim~ons law. 

@) EIectronic, computer or other technologic aids include, but are not 

limited to, machines ur ddwices that: 

Bro~iden the participation levels in a common game; 

(2) Facilitate communication between and among gaming 

sites; or 

(3) Mtlw a player to play a game with or against other players 

rather than with or -st a machine. 

(c) Examples of electronic, computer or other technologic aids include pull 

tab dispensers and/or readers, telephones, cables, televisions, screens, 

satellites, bingo blowers, electronic player stations, or electronic cards for 

partidpants in bingo games. 
Ekdmnic or ele~~mmeckmic~~i fa~rthik mmhs a game played in an ktt-onic or 

electromechanical format that replicate a game of chance by incorporating 

all of the characteristi~s of the game, except when, for bingo, lotto, and 

other games simh to bingo, the elemnic or electromechanical famt 

broadens participation by dowing multiple players to play with or against 

each other rather than with or against a machine. 

25 C.F.R. 5 502.8. 

Othm-J- imzk to bingo means my game played in the same location as 

bingo (as dehed in 25 USC 5 2703("7)(A)(9) constituting a variant on the 

game of bingo, provided that such game is not house banked and pd 

players to compete against each other for a common prize ~r prizes. 

These regulations were adopted to replace prior, more restrictive definitions, in large measure to 

bang the Commission's rules into line with federal. court decisions that interpreted IGRA adversely to the 

NIGC's stated position. As stated by the NICK, in the preamble to its revised dehition, "l'he 

uncomfortable result is that the Commission cannot faithfully apply its own Iprevious] regulations and reach 

decisions that conform with the decisions of the courts.'' 67 Fed Reg. 41,166,41,168 Oune 17,2002). 

IGRA expressly permits the game of bingo to be played with "electronic, computer, or other 

technologic aids." 25 U.S.C. $27030 (A) 0, and the NIGC has promulgated regufations that broadly define 

such aids to include electronic player stations, elec~oiic cards and linked bingo systems. 25 C.F.R $ 502.7. 

In addition, the NIGC's regulations expressly state that permitted aids indude "any machine or device that 

O assists a player or the playing of a game. . ." 25 C.F.R $ 502.?(a)(l). 

An demonic, computer or other technologic aid that assists the player and the playing of the game 

by tracking md covering bingo numbers for the player falls squarely within the ~mmissim's own debtion 

of deleconic, computer, or other technologic aids found at 25 C.F.R. $502.7. Secantly, ChaLman IJogen 

did not appear to dispute that the use of an autwdzub or " one-touch" feature falls within the NIGCrs awn 
broad dehtion of "aid." Rather, Chainnan Hop appeared to contend that (1) the autdaub feature is 

inconsistent with the statutory dehition of lnngo or game simh to bingo; and (2) the use of this feature as 

part of a linked electronic bjngo system makes it a Class I11 "facsimile." As detailed below, both of these 

contentions were - and are - wrong. 

A One-Touch Aid is Consis tent wi& IGRA Definition of Binm. 

According to Chairman Hogen's letter, the use of an auto-daub feature prwents a game from 

quahfymg as bingo, even if it satisfies IGRA's requirements for bingo in all other respects. Under the guise of 

purporting to interpret IGRA, Chairman I Iogen impermissibly elevated his own opinion that "sleeping" is 

essential to "traditional" bingo play to a level equal to what the federal courts have held are the only three 

statutory components in IGRAfs definition of bingo. 

According to Chairman Hop: 

'fie possibility of sleeping a bingoa then, is an embodiment of the 

competition in the game and of the language in IGRA's definition of bingo 

that the winner is the "first person to cover." A small mistake or oversight 

can cost one player the pme and mable another, more attentive player to 

win. Put somewhat less formally, competition is inherent in the game of 

bingo as d&ed in IGRA because "if you snooze, you lose." 

He went on to elaborate: 

Thou& I understand hat the game requites multiple players, I do not see 

how the players are competing against one another to be the first to cover a 

previously designated winning pattern. The game as described eliminates 

the element of competition that is a statutory requirement for bingo. The 

game starts - and ends -with the push of a button. It is not possible to 

Jeepabiorfadtodaimaprize. 

Stated otherwise, Chairman Hop thus took the position that the "first person to cover" 

requirement in IGRA dehtion of bi requires competition between players and that there can be 

competition in a bingo game only if the players are permitted to sleep a Inngo. However, nothing about the 
phrase "first person to cover" or any other aspect of IGRA definition of bingo even suggests - much less 

compels - the conclusion that the ability to sleep a bingo is a required element af the game. 

Tndeed, in determining whether a game satisfied the sr~tutory elements of bingo, the courts have 

evaluated what it means for a player to "cr~ver" thc numbcrs on a bingo card when electronic covering is 

used. IJ-S. v. 103 Ele~~mni~*GumbIingDern'ces (N.D. Cal. Nov. 23, 1998) No. 98-1984,1988 WL 827586, at "6, 

ufd 223 F.3d 109 J (9th Cir. 2000). In dismissing thc argument that MegaMania faded to satisfy the definition 

of bingo because of its electronic daub feature, the court stated that l1 [tlhere is nothing in ICGRA that requires 

a player to indcpmdently locate each called number on mch of the player's cards and manually 'cover' each 

number independently and separately." Id. 'l'o the contrary, the court emphasized that TGRA "merely 

requirc[s] that a player covcr the numbers without spedfpg how thty must be covered." Id ?%us, the 

manner in whch players cover numbers on their card(s) is irrelevan~z 

11s has been held by the courts, IGRA1s three statutory elements of bingo are the o&y game clcmmts 

legally required for a tribally-opcrated game to qualify as bingo. United States a 162 MqaMania C;arnbhg 

Def~i~~s (1 0th Cir. 2000) 2.1 1 F.3d 7 13; IJr~ited Stki'es v. 103 Ijh~mnic Gambhg I1evire.r (9th Cit. 2000) 223 F.3d 

109 1. Neither Chairman Hogen nor ~IC NIGC itself lawfully may add requirements to the tl~rcc criteria 

enacted by Congress and deemed sufficient by federal courts to constitute bingo as permittcd by IGRA. 

Whether or not an auto-daub aid is ufied, the game aided by electronic, computer or othw 

technologic equipment is won by he first person to cover the winning bingo pattern based on thc sequencc 

Other than his "view" and a W03 opinion from his own Office of Ckneral Counsel, Chairman Hogen neither offered 

nor had legal authoriq to support his contention rhat IGRA reqluIes the abiliry to sleep a Inngo. However, as the NIGC 

itself has assmcd, and the courts have found, Office of General (~omscl opinions arc not ha1 agency action, and thus 

lack any forcc of law. See, Se~e~il-Cqqa ]&be ofOkhhom~z v. Natiov~a/In&~ C;amq Com>S8'on (10th Cir. 2003) 327 F.3d 

1019. 1043: 

ILh agency's opinion letter is not binding, nor, unlike an NIGC regulation enactcd 

purswdnt to the rigors of the Administrative Procedmc Act, is it entitled tu any 

deference. Jnstead, the NIGC's opinion lcttcr is at most prsuasive authority; it is 

entitled only to that weight that its power to persuade compels.) 

In this case, the Office of C;meeraI Counsel opinion cited by Chaiman IIogcn cited to no autliority in making its 

argument that IGRh's language implies a specific kind of either physical or electronic participation. Gven the brevity of 

its analysis and the fact rhat it conflicts with relevant cow precedmt and pr~wious NIGC opinion letters (e,q., November 

14,200 Advisory Opinion that uskg agents to daub cards cmstitutes a permissible aid to Class TI lingo; July 26, 1995 

Advisory Opinion that agents may bc used to daub cards in LfepBingo games), the previous assertions by the Office of 

C;encral Counsel should not he given any weight. Further, the Chairman hpruperIy failed to apply the Indlan canon of 

construction in his intetprctation of IGRh and ihe Commission's own rcgulatitms. See, e..q., Moafe v. ?iupp, 224 TJ .S. 665 

(1 912). 
of bingo numbers for that gamc and the other cards Ll play. The "first player" is the one who covers the 

winning bingo pattern in the fewest bingo numbers drawn/determincd for that game. Nobg about the 

one-touch (auto-daub) feature changes the quantity of bingo numbers necessary to bc the first player to have 

or cover the winning bingo pattern. Even with one-touch, the "cover" function is performed during thc 

game's natural progression only after each release of balls, and thus IGRA's sequenung requirement 

coiltinues to be satisfied. One-touch cannot operate indeptmdent of the player, and it does not and cannot 

affect the outcornc of the game. The statutory requirements of bingo arc satisfied so long as numbers arc 

covered when similarly numbered objects arc drawn or electronically determined. The one-touch feature 

merely aids the player with tracking and covering numbers so the player will not miss a win. 

Chairman I~O~MI'S b&ef that the essential element of competiuc~n in a bingo game is the ability to 

sleep a bingo simply lacked any factual or legal basis. Rather, as defined by IGRA, the competition lies not in 

the ability to sleep a winning binp pattern, but in the fact that each player is competing against the other 

players in the gamc to bc the first 10 cover a game-winq pattern on hs/her bingo card based on the results 

of a random ball draw or selection of bingo numbers. Whetha or not a player wins depends on the cards in 

play by that player and other players and the unique sequence of bingo numbers drawn/dete&ed for that 

game. This competition bctwecn the players is present whether or not a player is permitted to "sleep" a 

bingo. 

When a bingo game played with one-touch electronic, computer or other technologic aid is 

compared with the three statutory elements of bingo set forth in IGRA, there simply is no basis for the 

ct>ndusion that tAc pe is not binp and that the equipment may not be used to aid in he play of the gme. 

First, the game is played for prizes, induhg monetary prizes, with cards bearing numbers or other 

desgnations. Ihe one-touch feature does not change the fact that the game itself is played for money with 

cards - albeit perfectly permissible electronic cards - bdg numbers or other designations. 

Sect>nd, the holder of the card covers such numbers or designations wl~en objects, similarly 

numbered or deswated, are clrawn or dectronicalIy determined. Covering takes place when the numbas or 

other designations are electronically determined and electronically displayed to the playcr. IGRA does not 

suggest, much less requie, &at a player must be able to sleep a bingo in order for a game to come with the 

statutory definition of bmp. 

ale player performs the "cover" function through the use of an electronic aid: the equipment 

through which the player participates in the game. Althoqh the player is assisted, the covering action is still 

that of d~e player, who initiates the one-touch feature by pushg a button on thc equipment at tl~c beginning 

of the bingo pmc. In other words, the equipment is acting on the player's bchalf, not indtprndcnt of the 

playcr. As the NITXts Office of General Counsel previously hits acknowledged, IGRA does not prevent 
players from using an agent to covcr their cards, he actions of the agent being deemed to be those of the 

player/principal. In short, the use of the autvdaub fcaturc does not mean, as asserted by Chairman I Iogen, 

that it is "the machine, and not the player, that is playmg the game."" 

Third, the game is won by the first person covering a previously designated arrangement of ilumbcrs 

or designations on such cards. ?he equipmmt at issue mercly assists the player with tracking and ctw&g 

the bingo numbers. It is in nt> way inconsistent with the requirement that the game be won by the fmt player 

to cover the winning pattern. ?he gamc is won by the first person to cover the pre-duspated winning 

pattern, without regard to use of the autrrdaub fawe. 

Chairman IIogents letter suaested that his understandrng of the limits on what constitutes bingo was 

bascd on how the game was "traditionallyv played. However, IGKh explicitly recognhcs chat the game of 

bingo authorized therein is not limited to the cudren's paper game, and it explicitly authorizes the use of 

technoloflc aids in connectioii therewith. rlccordingly, the statutoq dcfitution of bmgo - not <:hainnan 

IIogen's concept of "tradition" -is what determines whctficr a game meets TGRrZ's definition of (lass I1 

bingo. As explained by the Ninth Circuit: 

'Ihe C;twsnrnent's efforts to capture more completely the Platonic 

"essence" of traditional bingo are not helpful. Whatever a nostalgc inqq 

into the vital characteristics of the game as it was playcd in our childl~oods 

or home toms rmght Ascover, IGRh's three cxphcit criteria, we hold, 

constitute the sole legal requirements for a game to count as class I1 bingo. 

Tlcrc would havc bccn 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 arc in no way arcane if one knows anythtng 

about bingo, so wlzy wtmluld Congress havc includcd them if they were not 

meant to bc aclusive? 

12urther, IGIW includes within its definition of bingo "pull-tabs, ... punch 

boards, tip jars, [and] instant tingo . . . [if playcd in the same location as the 

game commonly known as bingo]," 25 1J.S.C. $27030 (A) (i), ilonc of 

whch are similar to the traditional numbcred ball, multi-player, card-based 

game we played as childTen. . . . Instant bingn, for example, is as the Fifth 

Vt ts noteworthy that "[rJadicdy incol~sistent interpretations of a statutc by an agency, relied upon in good faith by the 

pdd,ic, do not ct)mmand tl~c usual mcasurc of deference to agency action." Pjaf v. U.S. Dq't $1 low. and t1da11 llc~~. (9 th 

Cir. 1996) 88 F.3d 739,748 (citing L'p.do;u-F09isecu, 480 US, at 446, n.30 C' [a]n agency interpretation of a relevant 

pxovision which conflicts with the agency's earlier interpretation is 'entitled to considmbly less defcrcncc' than a 

consistently hcld agcncy view.'?; see uho, e.&, Nutwa/ Res. DeJ: Couriii v, 7J.S. EPA (9th (:it. 2008) 526 F.3d 591 {vacating 

EPA rule because it was inconsistent and conflicted with EPii's prior inrcrprctation of the statute). 
Circuit explained in JtlL~s M. I~rut1' L,&B qrf 3 kai B'&h No. 21 13 F. 

C.ommissioner, 98 F.3d 190 (5th Cir. 1996), a complctcIy different creature 

from the classic straight-he game. Instead, instant bingo is a selfcontained instant-win pc that does not depend at all on balls drawn or 

numbers callcd by an external source. See id at 192-93. 

Rforcovcr, $ 2703 (7)(A)(iI1s definition of class I1 bingo includes "other 

games sirnilax to bingo," 25 U.S.C. 5 2703(7) (rZ) (i), explicitly precluding any 

reliance on the exact attributes af the chddren's pastime. 

703 E:/edmni~+ Gdmbhipq Dewi>cs, 223 F.3d at 1096. See ako 162 MqaiLiunh Gmzbk'ag Deui~rs, 231 F.3d at 723 

("While the spced, appearance and stakcs associated with McpMania we dlffcrcnt from traditional, manual 

bingo, MgaMania meets all of the statutory critcria of a Class 11 gamc, as previously discusscd.").4 

4 In the preamble to its 1982 dehnition reguhtions, the NIGC: stated: 

[Onej commenter suggested that class I1 gaming be lirnited to gamcs involving 

goup participation where all players play at the smc time against each other for a 

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

that are classzed as class I1 @g (with the exception of "gamcs similar to 

bingo"). Adding r o the starutory criteria would serve to conhsc rather than clarify. 

Thcreforc, the Commission rejected this suggestion. 

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

classifying games in class I1 

57 Fed. Reg. at 12,382,12,387 (Apd 3,1992). 

4 For example, m auto-daub aid feature for bingo was patented in 1986. As described in U.S. Patent 4,624,462: 

The primary objective of the invention is to provide an el~~POnic card and board 

game which relieves the player from the tedious and error-pronc operation of 

manual madung matches on the game cwd. In pat~cular, it is the objective of the 

invention to provide a completely automated bingo game in which the player does 

not have even to touch or watch the game card or the game board at any time 

during successive rounds of the game, whereas the caller has only to push a Mngle 

button to control the game. It is the fhher objective of the invention to provide a 

design of the pe board which fdtates a broad and easy selection of the game 

cards and games being played alth the help of the same game board. An additional 

objective of the invention is to preclude unautho&ed or untimely change of the 

game card by the player. 
While Congress was dear that ttibal bingo is not to be hitcd by tradtinnal notions of the game, it 

was equally clear that it intendcd for ttibes to have "maximum flexibility " to use "modern" technology to 

conduct bingo pes. S. RLT. No. 1(H)-446 at 9 (1988), reprinted in 1988 U.S.C.C.A.N. 3071,3079. In tlGs 

regard, it is relevant that the type of bingo aid feature described in the Amendment predates passage of IGRA 

in 1988.5 hioreover, one-touch electronic bingo systems had bcen used for many years bcfore June, 2(H)8. 

In fact, fully elecrmmechanical liked aids to the game of bingo featwing full auto-daub were devdopcd as 

early as 1956. Such aids allowcd a player to "either participate in illuminahng the numl~ers or sit back and watch his 

board operate auromatically" an3 wsured that the "player does not havc to watch or exerr himself play a hard to be 

assurcd of winning if in fact the board bcfore him comes up with a winning combination." U.S. Patent No. 2,760,619, 

8/28/56. Such auto-daub featwes increased speed and enjoyment of play and had the added benefit of en.wri~~g honest 

and accuratc play. MOICOVCI, hktd electronic gaming systems were wdl-known before 1988. St, q., I'idtu C~onm/tamfs of 

Nehasku 21. Dobigh~ (Vild,. 1 985) 367 N.W.2d 687, 689 ("1 'a& location consists of one or more lottery pme terminals 

connected to an agent terminal.") 

 inot other] cornenter questioned whether the dcfinition of bingo in IGRA limits 

the presentation of bingo to its classic form. The Commission does not b&evc 

Congress intended to kt bingo to its &$sic form. If it had, it could havc spdcd 

out Mer rcquircmmts such as cards having the letters "R" "I" "N" "G" "C)" 

across the top, with numbers 1-15 in the &st coIurnn, ctc. In dew dass I1 to 

include games similar to hinp, Congress intended to include more than "bingo in 

irs classic form" in that class. 

. . . Congress enumerated the games that fall within class I1 cxcept for games 

similar to bingo. For games similar to bingo, the (hrnmission addd a definition 

that includes the three criferia for bingo and, in addition, requires that the game not 

be a house banking game as dcfined in the rcphtions. The (:ommission believes 

that Congress did not ktcnd other criteria to he used in dassifymg games in dass I1 

57 Fed. Keg. at 12,382, 12,387 (ApriI 9, 1992). 

j For example, an auto-daub aid feature for bingo was patented in 1986, As described in U.S. Patent 4,624,462: 

'fie primary objccdvc of the invention is to provide an electronic card and lmard 

game which rdievcs the player frum the tedious and crror-pronc operation of 

manual marking matches on the game card. In particular, it is the objective of the 

invention to provide a completely automated bingo game in which the player dues 

not have even to touch or watch the game card or the game board at any time 

during successive rounds of the game, whereas the caller has only to push a single 

button to control the game. It is the further objective of the invenrion to provide a 

design of the game hoard which facilitates a broad and easy selection of the game 

cards and pcs kng played with the help of the same game lmard. An additional 
'I'hc fact that the use of one-touch electronic/compute&ed bingo systms is expressly permitted by 

the federal government (in non-tribal contexts) and many statcs also refutes Chairman IIogen's contention 

that the use of an auto-daub feature converts an otherwise perfectly acceptablc tcchnologic aid to a Class 11 

bingo game into a Class I11 electronic facsimile or gaming device. Submitted herewith as Exhbit 1 is a copy 

of a June 24,2008 letter from Gaming laboratories In ternatitwal (t'GI,I") tu Hobbs Straus Dean & Walker, 

IJ.P, reporting on non-tribal jurisdctions in the United States that currently allow the use of auto-daub aids 

to the gamc of bingo. 

Chairman Hogen's interpretation of IGRA as precluhg tribes from using a technologc aid to 

bingo that commonly is authorized for use in nun-tribal bingo gamcs conduct~d on military bases and under 

state or local jurisrllction would be contrary to Congress' intcnt that tribes have "maximum flexibdity" to use 

"modern" technuloby to play bingo games, and in its statutory authorization for mbes to use such aids. As 

such, it plainly was incorrect, and the NIGC should correct that error. 

liindy, Chairmm I logen argued that the use of the autc~daub feature prevents the game from bckg 

a "game sdar to bingo." The Bear River Band of the RohneAlIe Rancberia clearly &sagtees with this 

assertion. I Iowever, that issue was not before Chairman Hogen, and thus H IS opinion on the qucstion should 

be rejected as neithcr persuasive nor dispositivt. 

111. THE ONE-TOUCH FEATURE DOES NOT TRANSFORM THE GAME OF BINGO 

INTO A CLASS I11 FACSIMILE. 

According to Chairman Hop, "[a] wholly electronic, fdly autclmatd implernentauon of the game 

described by the petlahtla] 'I'ribe's amended ordinance is a Class I11 'facsde of any game of chance."' 

objective of the invention is to preclude u~authorized or unrimely change of the 

gamc card by thc player. 

In fact, fully elcctromcchanical linked aids to the game of lingo featuring fill auto-daub were devclopcd as 

early as 1956. Such aids allowd a playcr to "either participate in illuminating the numbers or sit hack and watch his 

hoard operate autoinaticdlly" and cnsured that thc "phyer does not have to watch or exert himself play a boa~d to be 

assured of winning if in fact the board before him comes up with a winning combination." U.S. Patent No. 2,760,619, 

8/28/56. Such auto-daub features increased speed and enjoyment of play and had the added Ixncfit of ensuring honest 

and accurate play. Moreover, linked dectronic gaming systems were well-known before 1388. See, e-g., 'id80 C,~BS~~~~IIMIJ of 

Nebrash .v. UorasIas (Neb. 1985) 367 N.W.2d 697,699 ("Each location consists of one or more lottery gamc tcrmL~als 

collnected m an agent terminal.") 
Flowever, he ctdd havc rcached this conclusion only by rnisreaclmg the NIGC's own regulations and 

misunderstai~ding that Tribe's Amendment to its Gaming Ordmmce. 

IGILZ provides that Class I1 gaming does not include "electronic or e1ec~omechanical facsimiles of 

any game of chance," 25 U.S.C. 5 2703(7)(B)(ii), however, the term "facslrmle" is not defined by the statute. 

The NICX has dehed facsimile to mean: 

F:ledmnic or ele~~bro~t~~hslni~uI~f~~~irna'ke means a game played in an electronic or 

elcctrornechmicd format that rt~licatcs rt game of chance by incorporating 

all of the characteristics of the game, except when, for bingo, lotto, and 

other games similar to bingo, the clectronic or electromechanical format 

broadens participation by allowing multiplc playcrs to play with or against 

each other rather than with or against a machine. 

25 C1.F.R. 5 502.8. Thus, the NIGC's own rcplations allow a bingo game to be played in a fully "electronic or 

~.lcctromcchanical format" without becoming a facsimile, as long as the format requires tile playcrs ro play 

with or against each other rather than with or against a machinc. 

Chairman Hogen's June 4,2008 letter took issuc with the NIGC's own regulation and asserted that it 

could not permit a facsde to be used in the play of a Class I1 game unless it rcquires some "participation in 

the game by the players above and beyond the mere pressing of a button to begin the gamc.""hairman 

Hogen apparently believed that unless some undefined additional participation is required, the NTGC's own 

definition would permit "the usc of gaming equipment that wholly incorporates and replicates all of the 

elements and features of a game of chance." 

Setting aside, for the moment, the impropxiety of Chairman Hogen's disregard for the NIGE:'s own 

regulation, the flaw in his position is that a format that requires playcrs to play with or apnst each other 

necessarily is one that docs not incorporate or rqlicate all of the Emtures of the bingo game in a single, selfcontined unit. ?'he most fundamental aspect of the game - players competing against tach other with 

different bingo cards wrist a common tall draw - is nut electronic or automauc.7 'Ihe game is, in fact, a live 

bingo game that is taking place across a hkcd network of actual players. Ths remains the case whether or 

"'The Supreme Court has long recognized that a fedml agcncy is ohhged to abide by the regulations it promdgatcs." 

Samtt~zu IBC t~. Unibed States Air Force (9th Cir. 1 998) 1 47 1;.3d 1 1 48, 1 1 53; see aIso, e:q., I'oti'/ut~d C7'eaern/Eh~: Cyo. dr. Bonneviiie 

l'on~er Admin. (9th Cir. 2007) 50 1 I'.3d 1009, 1035-36 (holding that the Ronncdc Power ;i&niswition is bound by its 

own regulations until it adopts new ones, F'ERC or a court disapproves of its exisring regulations, or Congress changes 

the law). 

In contrast, this Eely would not bc the case if the other players in the game were computer generated vlaual playws. 

Similarly, a bingo game that pcrmitced only a single playu to play against the ball draw might be said to be a facsimile. 
not auto-daub is ustd, and thus the fundamental characteristic that makes the pe bingo is preserved, 

unaltered by hc use of an eIectronic format. As explained by the NICE 

IGRA permits thc play of bingo, lomo, and other games similar to bingo in 

an electronic or electromechanical format, even a wholly ehctrrmic format, 

provided that multiple players are playing with or wst each other. "l'hcsc 

players may be playing at the samc facility or via hh to players in other 

faulities. 11 manual component to the gmc is not necessary. What IGKA 

dots not &)w with regard to bingo, lotto, and other games sirmlar to 

bingo, is a wholly electronic version of the game that does not broaden 

participation, but ins tcad pdts a player to play alone wirh or aps t a 

machme rather than with or agamst other players. 

67 Fed. Keg. 41,166,41,171 ('June 17,202).8 

'Ihe NIGC's existing definition of facsimile is consistent with ICrRA's legislative history and the case 

law that since has interpreted the statute. The legslative hstory indicates that Congress d~d not intend the 

facsimile prolGbition to restrict the use of electronics to play games that meet ITrRhts definition of bingo. 

Instead, thc term "facsimile" was used as shorthmd for pcs where, unlike truc bingo games, thc player 

plays only with or against he mahe and not with or itgatnst other players. As expIained in the Senate 

Report: 

The Committee specifically rejccts any infcrcncc that mbes should restrict 

class IT games to existing gamcs [sic] shes, levels of participation, or current 

technology. The Committee intends that tribes bc given the opportunity to 

take advantage of modern methods of conducting class I1 pes and thc 

language regarding technt)logy is designed to provide maximum flexibdity. 

In ths rcgard, the Committee rLTogtllzes that tribes may wish to join with 

other tribes to coordmate their class I1 operations and thcrcby cd~ance 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 rakc. Simultaneous games participation between and among 

reservations can be made practical by use of computers and 

telecummunications technology as long as the use of such technology does 

not change the fundamental chmcteristics of the bingo or lotto games and 

Wontrary to the NIC;Cfs clear dixection in a forrnal rulemaking that a manual ctmponent to the pmt. of hp is not 

necessary, Chairman I4ogcn1s letter would have added an additional manual component to the game by grafting a "sleep" 

requirement onto IGRI's dehirion of bingo. ?'he letter cited to no action l>y Congress or rhe courts suggesting that 

such a radical changc ts eithcr nccessarp or authorized. Sipficantly, neithm the Justice Department nor the NIGC has 

brought M cnforcmcnt action to challenge the Class I1 status of a game in he years since the NIGC revised its 

dehiuon regulations in 2002. 
as long as such games arc otherwise operated in accordance with applicable 

l'ederal communications law. In other words, such technology would 

merely broaden the potential participation Icvels and is readily 

distingdshahle from the use of electronic facsimiles in which a singIe 

participant plays a game with or against a machine rather than with or 

apms totlm players. 

S. Rep, No. 100-446 at 9 (1988), reprinted in 1988 U.S.C.C.X.N. 3071, 3079. 

Contrary to Chairman Hogen's assertion, therefore, the use of technoIogy, even if it allows 

fundamental characteristics of bingo to be played in an elecmmic format, does not necessarily make a bingo 

pmc a "facsimile." Rather, a bingo game played uskg technologic aids (which are expressly permitted by 25 

U.S.C. 5 2703(7)(A)(i)), only becomes a facslrnilc if thc technology pdts the playm to play "with or against 

a machine rather than with or qyst other players."~ 

-1%~ courts have agreed with this intcrprcmrion. In the McgaMania cases, thc courts ruled that 

MegaMania is not an exact copy or duplicate of bingo and thus not a facsimile because the pe of bingo is 

not wholly incorporated into the playa station; rather, the game of bingo is independent Gom the player 

station, so that the playcrs arc competing against other playcrs in the samt bingo pc and are not simply 

playing against the machine. See 103 Ele~qtroni~. Gambkq Deui~i?.r, 223 Ii.3d at 1 1 (lo; 162 MtpMania Gamhg 

Dez~i~~.r, 231 Ii.3d at 724."' The auto-daub aid feature does not change chis. 

"1 good example of a facsLniic' of a game of chance is video poker, as commody played in self-contained game 

terminals. Such a gamc, although it uses poker graphics and tcrmifiology, is a wholly electronic game that dt~s not 

permit competition among playcs. UnWe a mc poker pe, in video poker the game takes place solely within the 

device, and the playex is playing awst the machine. Sknilaxly, a wholly electronic bingo game that permitted dy a 

single player to play -st the 1,ail draw would be a facsimile. 

1'' The applicaljle test for distinguishing between aids and facsimiles was explained hy the Tenth 

Circuit: 

Courts reviakg 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 opcratc to broaden thc partiupation levels of participants in a 

common gamc, see Spukune Ttzdun fibe s IJnifed States, 972 I:.2d 1090, 1093 (9th Cir. 

1992); and (2) the "aid" is distinguishable frm a "facsimile" where a single 

participant plays with or against a machine rather than with or against athcr pIayers. 

Cubuyon Band of Mi~sioa IH&RS u. Nutional Indam Gmkg Com'n, 1 4 Ij.3d 633,636- 

37 (l1.C. Cir.), M. hzied, 512 U.S. 1221 (1994) (Cabazon III). Courts have adopted 

a pIain- meaning interpretation of the term "facsimile" and reco)gnizd a fac,de 

of a game is onc that qlicates the chaxaacnstics of the undcrlp~g game. Stt 

SZYYUR Hand ofMission 1ndhn.r 1). Roadw, 54 F.3d 535,542 (9 th (4r. 1994) ("the hrst 
Thus, Chairman I-Jogen was wrung when he asserted that same adrtitionai participation is requited to 

prevent the gmc from becoming a facshde of bingo. Instead, the NIGC1s actual definition of facsimile 

correctly recc>gtlizcs that, regardless of thc number of electronic aids used in a bingo game, the pe does not 

become a facsimile if "the electronic or electrclrnechanical format broadens participation by allowing multiple 

playcrs to play with or agaLnst each other rathcr than with or against a machne." 25 C.F.R. $502.8. As long 

as there arc players playing against each other, the gamc is not a facsimile, it is bingo, a Class I1 game. 

Honvveer, even assuming that Chairman Hogen was correct that scme additional reven minimal") 

participa~on in the game is required, the auto-daub fcaturt does not lessen participation in the gme. Rather, 

it merely aids in the trachng and covering of bingo numbers for a player p~ticipating in an c1ectmnicaIly 

linked bingo game. It docs nothing to Iessen the competition among players to be the ht to obtain a 

winning pattern, nor does it do anythq to lcsscn other aspects of player participation such as the selection of 

a bingo card or cards by the player, deciding the number of cards to play, deciding how much to bet in a 

particular game and collecting any winnings. For these reasons, the use of the auto-daub feature is consistent 

cvm with Chairman I Itxgn's overly restrictive test. 

(:hairman I Iogenfs position, hat the plain language of the agency's own regulatory definition of 

facsimile is wrong, was and is unsuppr~rtable as a matter of law, Although it is true that an agency's 

interpretation of its own rrplations is entitled to somc deference, rhar is only true when that iilterpretation is 

not "plainly ermneous or inconsistent with the reguIation." ,4aerv. Robhim (1997) 519 U.S. 452,461 (citation 

omitted). Moreover, when the current interpretation runs counter to the intent at the dme of regulation's 

promulgation, her deference is unwarranted. Gon~uIq u. I>mpn (2006) 546 U.S. 243,258 (citing Thomas 

]eferson Unix u. Shubh (1 (190) 5 12 1J.S. 504,512). AMGT deference is only warranted when the regulation itself 

is mb~ous and open to interpretation. As the Supreme Court has made clear, when the language of a 

regulation is clear, an agency cannot effectively amend the regulation under the gase of "interpretation." See, 

Chrisdemrr v. 13a~ CotaPldy (2000) 529 U.S. 576,588 (holding that " !i]o defer to the agency's position would bc 

to permit the agency, under the guise of interpreting a regulation, to create de facto a new repla~on.'.).~~ As 

dictionaq~ dehititm of 'facsimile' is 'an exact md detailed copy of something.' " 

(quoting Webster's Third New Int.] Dictionary 81 3 (1 976))), RH. demkd, 5 16 US. 

912 (1995); Cubap 11, 827 1'. Supp. at 32 (same); Cubapn I27, 14 Ii.3d at 636 

(stating "[als commonly understood, facsimiles arc exact copies, or duplicates."). 

" We note as wdl that although it is true that agencies may choose to make new law through adjudication rather than 

rulemaking, reliance on adjudication may amount to an abuse of discretion in somc situations. Sm Pfz 88 F.3d a1 748 

(citiq hllXB I;. Bel/Aem@ct Co., 41 6 U.S. 267,294 (1 974)). As the Ninth Circuit made clear, [sjuch a situation may 

prcscnt itsclf whcxe the new standard, adopted by adjudication, departs radically tiom the agency's previous 

interpretation of thc law, where he public has relied substantially and in good faith on the previous interpretation, where 
such, Chairman I Iogen's rllsregwd of the plain language of the NIGC's current dehition undd the guise of 

interpretati~n should not be given any deference. 

CONCLUSION 

Idor the reasons set forth above, Bear River Band urges the NIGC to proceed with its 

reinterpretation of former Chairman Hogen's decision exactly as proposed 

Respectfully Submitted, 

AND OF THE ROHNERVILLE RANCHERLA 

'I'ribal Chairman 3pq-T~ Ma ew Matts n 

ExLcutive ~irector of ~Bbal Operations 1 

fines or damages are involved, and where the new standard is very broad and peral in scope and prospective in 

application" Id.