Port Gamble S’Klallam Tribal Gaming Agency

7989 Salish Lane NE, Kingston, WA 98346 

Phone (360) 297-3223, Ext. 118 

Fax (360) 297-1291 

August 26, 2013 

VIA e-mail to reg.review@nigc.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. Reg. 37998 (June 

25, 2013) 

Dear Chairperson Stevens and Commissioner Little: 

 Below please find comments on behalf of the Port Gamble S’Klallam Tribe 

("Tribe") on the National Indian Gaming Commission's ("NIGC" or "Commission") 

proposal to recognize as Class II "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 proposal, 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 Port Gamble S’Klallam Tribe opened The Point Casino in 2002 which 

includes a mix of Class II and Class III games. Class II gaming is an important revenue 

source for the Tribe and the One Touch Bingo System makes play easier for the 

customers. 

 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 II 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. 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

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 II bingo game into a Class III 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 III 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 II bingo game into a Class III 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 1091 (9th Cir. 2000). 

Nevertheless, the Ordinance Letter asserted that the use of one touch auto-daub prevents 

a game from qualifying as Class II 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 only 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. 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 3 

98-1984, 1998 WL 827586, at *6 (N.D. Cal. Nov. 23, 1998), aff'd 223 F.3d 1091 (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 "[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." 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 drawn/determined for that 

game. Nothing about the auto-daub 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 autodaub aid feature merely assists the player with tracking and covering numbers so the 

player will not miss a win. 

 Further, the Ordinance Letter was fundamentally 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 

his/her 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 and the unique sequence of bingo numbers drawn/determined 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, "[w]hether 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. 

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 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 4 

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., Nat’l Indian Gaming 

Comm’n, National Indian Bingo Game Classification Op. (Nov. 14, 2000), available at 

http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/gameopinions/bingo/nati

onalindianbingo111400.pdf). 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 II 

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 legal requirements for 

a game to count as class II 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 "pull-tabs, . . . punch boards, 

tip jars, [and] instant bingo . . . [if played in the same location as the game commonly 

known as bingo]," 25 U.S.C. § 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. 

2113 v. 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, § 2703(7)(A)(i)'s definition of class II 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. 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 5 

103 Electronic Gambling Devices, 223 F.3d at 1096. See also 162 MegaMania 

Gambling Devices, 231 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 II game, as previously discussed."). 

 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 1988 U.S.C.C.A.N. 3071, 3079. In this regard, it is relevant that this type of 

bingo aid feature predates passage of the IGRA in 1988. 

 It also is relevant that this very same bingo aid feature is widely permitted today 

by the federal government on U.S. military reservations and in many other non-Indian 

bingo facilities. The Commission's proposed interpretation is consistent with Congress' 

intent that tribes have "maximum flexibility" to use such "modern" technology to play 

bingo games, and in its statutory authorization for tribes to use such aids. As the 

Commission correctly noted, it "should give consideration to an interpretation of bingo 

that embraces rather than stifles technological advancements in gaming." 78 Fed. Reg. at 

38000. 

2. The One Touch Auto-Daub Feature Would Not Transform the Game of Bingo 

into a Class III Facsimile. 

The use of the one touch auto-daub feature does not transform a game from Class 

II bingo into a Class III facsimile. As explained by the Commission: "the previous 

interpretation concluded 'as it is applied to bingo, . . . the "except when" language of 

502.8 [] require[s] some – even minimal participation in the game by the players above 

and beyond the mere pressing of a button to begin the game.' We find this interpretation 

in error because whether a game constitutes bingo or not cannot be reduced to the number 

of times a button is pushed. Rather, as set out above, we must look to whether the 

statutory elements of the game are met." 78 Fed. Reg. at 38000. The Commission's 

position is fully consistent with the statute and regulations. 

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

electromechanical facsimiles of any game of chance," 25 U.S.C. § 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 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 6 

bingo, the 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. § 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 machine. 

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 autodaub 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. 41,166, 41,171 (June 17, 2002) (emphasis added). 

The NIGC's 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 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 II 

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 modern 

methods of conducting class II games and the language regarding technology is designed 

to provide maximum flexibility. In this regard, the Committee recognizes that tribes may 

wish to join with other tribes to coordinate their class II operations and thereby enhance 

the potential of increasing revenues. For example, linking participant players at various 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 7 

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 technology 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 participation levels and is readily distinguishable from the use of electronic 

facsimiles in which a single 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. § 2703(7)(A)(i)), only 

becomes a facsimile if the technology permits the player to play "with or against a 

machine rather than with or against other 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 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 1100; 162 

MegaMania Gambling Devices, 231 F.3d at 724. 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 "the 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. § 502.8 (emphasis added). As long as there are players playing 

against each other, the game is not a facsimile. 

 
Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

Page 8 

Conclusion

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

is otherwise Class II bingo is not converted into a Class III game through the addition of 

a one touch auto daub feature. Congress provided a bright line test to distinguish 

electronically-aided Class II games from Class III games. That line is not based on the 

number of player "touches" required to interact with the game. Rather, Class II bingo 

includes any game that meets the three statutory requirements set forth by Congress. 

Such games may be played with any form of electronic, computer or other technologic 

aid, so long as the aid does not permit a single player to play alone with or against the 

machine. 

 Sincerely, 

 Linda Helm, Executive Director 

 Port Gamble S’Klallam Tribal Gaming