Y 2 

.. . 

NATIONAL 

INDIAN 

GAMING 

COMMISSION 

February lo, 1994 

Mr. Scott Henneman 

Vice President & General Manager 

Infinational Technologies, Inc. 

9335 North 48th St. 

Omaha, Nebraska 68152 

Dear Mr. Henneman: 

We are in receipt of your letter of February 7, 1994, in which 

you request formal review by the National Indian Gaming . 

Commission (NIGC) of the Oasis Electronic Pull-Tab Network. 

Your request for a "formal reviewg1 of the oasis Electronic PullTab Network, including the opportunity to present expert 

testimony and witnesses, is unnecessary and is therefore denied. 

You have provided the NIGC with sufficient information for us to 

conclude that your electronic pull-tab devices are electronic 

facsimiles and consequently fall within class XI1 gaming. 

By letter dated May 25, 1993, to Mr. Mark Stevens of ~nfinational 

Technologies, Inc. (enclosed) we advised your company that oasis 

Electronic Pull-Tab Network devices are electronic facsimiles of 

the game of pull-tabs and therefore fall within class I11 gaming. 

That determination was based on materials you provided the NIGC. 

The modifications described in your letter of February 7 "to 

offer a 'blended game1 of both paper and video aided pull-tab in 

a single serial numbered gamegt do not convert the pull-tab 

machine from a facsimile to an aid. 

, 

I In asserting that oasis Electronic Pull-Tab machines are 

technologic aids, you have ignored and mischaracterized the 

holding of the district court and the court of appeals-in Cabazon 

Band of Mission Indian v. National Indian ~amina Commission, 827 

F. Supp. 26 (D.D.C. 1993), afftd, No. 93-5255 (D.C. Cir. January 

28, 1994). Your statement that Oasis Electronic Pull-Tab Network 

was not among the gaming devices at issue in the case is 

irrelevant. The Cabazon case involved a challenge to NIGC 

regulations that adopted the Johnson Act definition of a gambling 

device, 15 U.S.C. S 1171, to define electronic facsimile. See 25 

C.F.R. 5 502.8. The district court rejected the tribal challenge 

to section 502.8, stating: ll~his definition is the only 

definition possible in order to implement Congress1 explicit 

intent, as expressed in IGRA." 827 F. Supp. at 31. The tribal 

plaintiffs chose not to appeal the district court's rejection of 

their challenge to the NIGC1s regulations and the court of I appeals affirmed the judgment of the district court. 

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If Oasis Electronic Pull-Tab machines are llgambling devices1! 

within the meaning of the Johnson Act, then they are electronic 

facsimiles and fall within class I11 gaming. Under the Johnson 

Act, a llgambling devicev means: 

any other machine or mechanical device ... designed and 

manufactured primarily for use in connection with 

gambling, and (A) which when operated may deliver, as 

the result of the application of an element of chance, 

any money or property, or (B) by the operation of which 

a person may become entitled to receive, as the result 

of the application of an element of chance, any money 

or property ... 

15 U.S.C. 9; 1171(a)(2). without a doubt, oasis pull-tab devices 

meet this definition with or without the ltmodificationsll outlined 

in your letter. Therefore, such devices cannot be electronic 

aids, but rather, are electronic facsimiles and fall within class 

I11 gaming. 

Your attempt to narrow the definition of ltelectronic facsimilet1 

based on an incomplete quotation of a single sentence in the 

decision of the court of appeals is erroneous and disingenuous. 

As we have explained above, the court of appeals affirmed the 

judgment of the district court upholding regulations of the NIGC. 

Those regulations defined electronic facsimiles'to mean gambling 

devices. The definition of a gambling device does not require 

that a game be wholly incorporated into an electronic version. 

Moreover, the court of appeals stated that "at the least the 

Act's exclusion of electronic facsimiles removes games from the 

class I1 category when those games are wholly incorporated into 

an electronic or electromechanical version.ll Slip Op. at 8 

(emphasis added). Thus, the court of appeals was not limiting 

the types of gamee that constitute electronic facsimiles. 

In continuing to supply tribes with gambling devices in states in 

which there are no tribal-state compacts that authorize such 

devices, Infinational Technologies has ignored our letter of May 

25, 1993. The time has come for you to cease this illegal 

activity. 

Sincerely, 

Enclosure