JEFFREY R. KEOHANE JEFF@GFORMANLAW.COM

August 15, 2013

VIA E-MAIL (reg.review(~nigc.gov) ONLY

National Indian Gaming Commission

1441 L Street, NW, Suite 9100

Washington, DC 20005

Re: COMMENTS OF THE CAHUILLA BAND OF INDIANS ON THE NIGC’S

PROPOSAL TO REINTERPRET THE STATUS OF “ONE-TOUCW’ELECTRONIC, COMPUTER OR OTHER TECHNOLOGIC AIDS TO

CLASS II BINGO GAMES

Dear Sir or Madam:

Forman & Associates, Attorneys at Law, is legal counsel to the Cahuilla Band of Indians

(“Tribe”). Our client has requested that we submit the Tribe’s comments on the NIGC’s proposal

to reinterpret the status of “One-Touch” aids to Class II Bingo games on the Tribe’s behalf.

INTRODUCTION

In a June 4, 2008 letter from then-NIGC Chairman Phil Hogen to the Metlakatla Indian

Community disapproving an amendment to that Tribe’s gaming ordinance that would have

permitted use of an “auto-daub” or “one-touch” feature in an electronically aided bingo game,

former NIGC Chairman Phil Hogen took the position that in order to be considered a permissibleelectronic, computer or other technologic aid to Class IT bingo, the device must require a player

to press a button or a touch-screen at least twice during a game, and that the NIGC would regard

an aid that utilized a “one-touch” or “auto-daub” feature would be considered to be a Class IIIgaming device for which a compact would be required.

The NIGC has announced its intention to reinterpret Chairman Hogen’s decision

“regarding the classification of server based electronic bingo system games that can be played

utilizing only one touch of a button (“one touch bingo”)[,]” and has solicited comments on its

proposed reinterpretation. For the reasons set forth below, the Cahuilla Band of Indians hereby

supports the NIGC’s proposed reinterpretation of former Chairman Hogen’s erroneousinterpretation of what IGRA defines as “bingo” or “games similar to bingo.”
BECAUSE THOSE CONCLUSIONS WERE IN EXCESS. OF CHAIRMANHOGEN’S STATUTORY AUTHORITY, ARBITRARY, CAPRICIOUSAND CONTRARY TO LAW.

Under IGRA, Indian tribes are the primary regulators of Class II gaming 25 U S C §

2710(a)-(b). Thus, oversight by the NIGC is limited, and decisions on the proper classification

of aids to Class II bingo games are, in the first instance, left to tribal gaming agencies. In thiscontext, IGRA sigmficantly restricts the grounds on which the Chairman may disapprove a tribalgaming ordinance or amendment.

Specifically, 25 U.S.C. § 2710(b)(2) provides that “[t]he Chairman shall approve any

tribal ordinance or resolution concerning the conduct, or regulation of Class II gaming on the

Indian lands within the tribe’s jurisdiction if such ordinance or resolution provides that [certain

specific matters are addressed’j.” Further, 25 U.S.C. § 27 10(e) provides that, “... by not later

than the date that is 90 days after the date on which any tribal gaming ordinance or resolution is

submitted to the Chairman, the Chairman shall approve such ordinance or resolution if it meets

the requirements of this section.” The NIGC’simplementing regulations, 25 C.F.R. Part 522,

contain the same limitation.

The listed requirements found in 25 U S C § 2710(b) and the NIGC’s implementing

regulations at 25 C.F.R. Part 522 do not include game classification issues or definitions of

permitted electronic aids to Class II games. Consequently, Chairman Hogen exceeded his

statutory authority in disapproving an amendment to the Metlakatla Indian Community’s GamingOrdinance on grounds other than those permitted by IGRA or the NIGC’s own regulations See

Hartman v. Kickapoo Tribe Gaming Commission (D. Kan. 2001) 176 F. Supp. 2d 1168, 1179-80

affd, 319 F.3d 1230 (10th Cir. 2003):

the court rejects plaintiffs contention that every ordinance must be

approved or disapproved by the NIGC. An amendment to anordinance does not require NIGC approval if it addressed issues

not raised in the IGRA or the NIGC’s regulations. . . The only

provisions required for such ordinances are those listed in 25

U.S.C. § 2710(b)(2), as incorporated through 25 U.S.C. §

2710(d)(1)(A) and in 25 C.F.R. Part 522.

These matters are limited to provisions addressing the Tribe’s sole proprietary interest in the gaming

operation, use of net gaming revenues, annual independent audits, protection ofthe environment and public healthand safety, and licensing and background investigations. 25 U.S.C. § 27 lO(b)(2).
II IGRA DOES NOT REQUIRE THAT TECHNOLOGIC AIDS TO CLASS II

BINGO REQUIRE ANY SPECIFIC MINIMUM NUMBER OF

“TOUCHES” ORANY MINIMUM TIME FOR GAME PLAY, AS LONG

AS THE GAME BEING PLAYED MEETS THE STATUTORYDEFINITION OF “BINGO” OR A “GAME SIMILAR TO BINGO.”

IGRA establishes the parameters within which gaming lawfully may take place on Indian

lands. A tribe may engage in Class II gaming on its lands without a tribal-state compact ifthe

State permits such gaming for any purpose and the tribal governing body adopts an ordinance

permitting such gaming, which ordinance is approved by the Chairman of the NIGC. 25 U.S.C.

§ 2710(b).

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

The term ?IClass II gaming” means — (i) the game of chance commonly known as bingo (whether or notelectronic, computer, or other technologic aids are used inconnection therewith) — (I) which is played for prizes, including monetary

prizes, with cards bearing numbers or other designations,

(II) in which the holder of the card covers such numbers

or designations when objects, similarly numbered ordesignated, are drawn or electronically determined, and(III) in which the game is won by the first personcovering a previously designated arrangement of numbers

or designations on such cards, including (if played in the

same location) pull-tabs, lotto, punch boards, tip jars,

instant bingo, and othergames similar to bingo, and...

(B) The term “Class II gaming” does not include — (i) any banking card games, including baccarat, chemin

de fer, or blackjack (21), or
If a game of chance (that is not a class i game) is not a class ii game, it is defined as

class iii and may only be played if and as permitted by an approved tribal-state compact or a setof Secretarial procedures that is in effect. 25 U.S.C. §~ 2703(8), 2710(d).

In addition to the statutory definition, the NIGC has promulgated regulations that give

further guidance in determining what constitutes Class II gaming. These regulations, found at 25

C.F.R. §502.3, track IGRA!s statutory definition and define Class II gaming as:

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

technologic aids are used) when players:

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

designations;

(2) Cover numbers or designations when object,similarly numbered or designated, are drawn or

electronically determined; and(3) Win the game by being the first person to cover adesignated pattern on such cards;

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

punch boards, tip jars, instant bingo, and other games similar tobingo.

25 C.F.R. § 502.3.

The NIGC revised its definitions of technologic aids, facsimiles and other games similar

to bingo in a final rule published on June 17, 2002. 67 Fed. Reg. 41,166 (June 17, 2002). Theregulations include the following definitions:

(a) Electronic, computer or other technologic aid means any

machine or device that: ~

(1) Assists a player or the playing of a game;(2) Is not an electronic or electromechanical facsimile;and
not limited to, machines or devices that:

(1) Broaden the participation levels in a common game;(2) Facilitate communication between and amonggaming sites; or(3) Allow a player to play a game with or against other

players rather than with or against a machine.

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

include pull tab dispensers andlor readers, telephones, cables,

televisions, screens, satellites, bingo blowers, electronic player

stations, or electronic cards for participants in bingo games.

25 C.F.R. § 502.7.

Electronic or electromechanicalfacsimile means a game played in

an electronic or electromechanical format that replicates a game ofchance by incorporating all of the characteristics of the game,except when, for bingo, lotto, and other games similar to bingo, theelectronic or electromechanical format broadens participation byallowing multiple players to play with or against each other rather

than with or against a machine.

25 C.F.R. § 502.8.

Other games similar to bingo means any game played in the same

location as bingo (as defined in 25 USC § 2703(7)(A)(i))constituting a variant on the game of bingo, provided that suchgame is not house banked and permits players to compete againsteach other for a common prize or prizes.

25 C.F.R. § 502.9.

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

measure to bring the Conimission’s rules into line with federal court decisions that interpretedIGRA adversely to the NIGC’s stated position. As stated by the NIGCin the preamble to its
other technologic aids.

25 U.S.C. § 2703(7)(A)(i), and the NIGC has promulgated regulations

that broadly define such aids to include electronic player stations, electronic cards and linked

bingo systems. 25 C.F.R. § 502.7. In addition, the NIGC’s regulations expressly state that

permitted aids include “any machine or device that: (I) assists a player or the playing of a game.

• .“ 25 C.F.R. § 502.7(a)(1).

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

the game by tracking and covering bingo numbers for the player falls squarely within the

Commission’s own definition of electronic, computer, or other technologic aids found at 25C.F.R. § 502.7. Significantly, Chairman Hogen did not appear to dispute that the use of an autodaub or “one-touch” feature falls within the NIGC’s own broad definition of “aid.” Rather,

Chairman Hogen appeared to contend that (1) the auto-daub feature is inconsistent with thestatutory definition of bingo or game similar to bingo; and (2) the use of this feature as part of a

linked electronic bingo system makes it a Class III “facsimile.” As detailed below, both of thesecontentions were — and are — wrong.

(a) A One-Touch Aid is Consistent with IGRA Definition of Bingo.

According to Chairman Hogen’s letter, the use of an auto-daub feature prevents a game

from qualifying as bingo, even if it satisfies IGRA’s requirements for bingo in all other respects.Under the guise of purporting to interpret IGRA, Chairman Hogen 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 IGRA’s definition of bingo.

According to Chairman Hogen:

The possibility of sleeping a bingo, then, is an embodiment of thecompetition in the game and of the language in IGRA’s definitionof bingo that the winner is the “first person to cover.” A small

mistake or oversight can cost one player the game and enable

another, more attentive player to win. Put somewhat less formally,competition is inherent in the game. of bingo as defined in IGRA

because “if you snooze, you lose.”

He went on to elaborate:

Though I understand that the game requires multiple players, I do

not see how the players are competing against one another to be
Stated otherwise, Chairman Hogen thus took the position that the “first person to cover”

requirement in IGRA definition of bingo requires competition between players and that there can - be competition in a bingo game only ifthe players are permitted to sleep a bingo. 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 ofthe 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. US. v. 103 Electronic Gambling Devices (N.D. Cal. Nov. 23, 1998)

No. 98-1984, 1998 WL 827586, at *6, affd 223 F.3d 1091 (9th Cir. 2000). In dismissing the

argument that MegaMania failed to satisfy the definition of bingo because of its electronic daubfeature, 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 numberindependently 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.2

As has been held by the courts, IGRA’s three statutory elements of bingo are the only

game elements legally required for a tribally-operated game to qualify as bingo. United States v.

2 Other than his view” and a 2003 opmion from his own Office of General Counsel Chairman Hogen

neither offered nor had legal authority to support his contention that IGRA requires the ability to sleep a bingo.However, as the NIGC itself has asserted, and the courts have found, Office of General Counsel opinions are not

final agency action, and thus lack any force oflaw. See, Seneca-Cayuga Tribe ofOklahoma v. National IndianGaming Commission (10th Cir. 2003) 327 F.3d 1019, 1043:

[An agency’s opinion letter is not binding, nor, unlike an NIGC regulation

enacted pursuant to the rigors ofthe 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 this case, the Office of General Counsel opinion cited by Chairman Hogen cited to no authority in making itsargument that IGRA’s language implies a specific kind of either physical or electronic participation. Given the

brevity ofits analysis and the fact that it conflicts with relevant court precedent and previous NIGC opinion letters(e.g., November 14, 2000 Advisory Opinion that using agents to daub cards constitutes a permissible aid to Class II

bingo; July 26, 1995 Advisory Opinion that agents may be used to daub cards in MegaBingo games), the previous

assertions by the Office of General Counsel should not be given any weight. Further, the Chairman improperlyfailed to apply the Indian canon of construction in his interpretation ofIGRA and the Commission’s own regulations.

See, e.g., Choate v. Trapp, 224 U.S. 665 (1912).
Whether or not an auto

daub aid is utilized, the game aided by electronic, computer or

other technologic equipment is won by the first person to cover the winning bingo pattern basedon 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 bingo numbers drawnldetennined forthat game. Nothing about the one-touch (auto-daub) feature changes the quantity of bingonumbers necessary to be the first player to have or cover the winning bingo pattern. Even with

one-touch, the “cover” function is performed during the game’s natural progression only after

each release of balls, and thus IGRA’s sequencing requirement continues to be satisfied. Onetouch cannot operate independent of the player, and it does not and cannot affect the outcome of

the game. The statutory requirements of bingo are satisfied so long as numbers are coveredwhen similarly numbered objects are drawn or electronically determined. The one-touch featuremerely aids the player with tracking and covering numbers so the player will not miss a win.

Chairman Hogen’s belief that the essential element of competition 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 bingo pattern, but in the fact that each playeris competing against the other players in the game to be the first to cover a game-winning patternon 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 drawnldetermined for that game. This competitionbetween 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 conclusion that the game is not bingo and that the equipment may not be used to aid in the

play of the game.

First, the game is played for prizes, including monetary prizes, with cards bearing

numbers or other designations. The one-touch feature does not change the fact that the game

itself is played for money with cards — albeit perfectly permissible electromc cards — bearing

numbers or other designations.

Second, the holder of the card covers such numbers or designations when objects,

similarly numbered or designated, are drawn or electronically determined. Covering takes place

when the numbers or other designations are electronically determined and electronically

displayed to the player. IGRA does not suggest, much less require, that a player must be able tosleep a bingo in order for a game to come within the statutory definition of bingo.
Counsel previously has acknowledged, IGRA does not prevent players from using an agent to

cover their cards, the actions ofthe agent being deemed to be those of the player/principal. In

short, the use of the auto-daub feature does not mean, as asserted by Chairman Hogen, that it is

“the machine, and not the player, that is playing the game.”3

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

of numbers or designations on such cards. The equipment at issue merely assists the player with

tracking and covering the bingo numbers. It is in no way inconsistent with the requirement thatthe game be won by the first player to cover the winning pattern. The game is won by the first

person to cover the pre-designated winning pattern, without regard to use ofthe auto-daub

feature.

Chairman Hogen’s letter suggested that his understanding of the limits on what

constitutes bingo was based on how the game was “traditionally” played. However, IGRA

explicitly recognizes that the game of bingo authorized therein is not limited to the children’s

paper game, and it explicitly authorizes the use of technologic aids in connection therewithAccordingly, the statutory definition of bingo — not Chairman Hogen’s concept of “tradition” — iswhat determines whether a game meets IGRA’s definition of Class II bingo. As explained by the

Ninth Circuit:

The Government’s efforts to capture more completely the Platonic

“essence” oftraditional 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’sthree explicit criteria, we hold, constitute the sole legalrequirements 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 ifthere were also other, implicit

criteria. The three included in the statute are in no way arcane if

It is noteworthy that “[r]adically inconsistent interpretations of a statute by an agency, relied upon in

good faith by the public, do not command the usual measure of deference to agency action.” Pfaffv. US. Dep’t of

Hous. and Urban Dev. (9th Cir. 1996) 88 F.3d 739, 748 (citing Cardoza-Fonseca, 480 U.S. at 446, n.30 (“[am

agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled toconsiderably less deference’ than a consistently held agency view.”); see also, e.g., Natural Res. Def Council v. US.

EPA (9th Cir. 2008) 526 F.3d 591 (vacating EPA rule because it was inconsistent and conflicted with EPA’s prior

interpretation ofthe statute).
§ 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 Circuitexplained in Julius M Israel Lodge ofB’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 bingois 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.

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.”).4

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

[One] commenter suggested that class II 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 ofthe Commission, Congress enumerated those

games that are classified as class II 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 defmition of bingo in IGRA limits

the presentation of bingo to its classic form. The Commission does not believe

Congress intended to limit bingo to its classic form. Ifit had, it could havespelled out further requirements such as cards having the letters “B” “I” ‘N’ “G”

“0” across the top, with numbers 1-15 in the first column, etc. In defming class

II 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 II 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 gamenot be a house banking game as defmed in the regulations. The Commission
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The fact that the use of one-touch electronic/computerized bingo systems is expressly

permitted by the federal government (in non-tribal contexts) and many states also refutes

Chairman Hogen’s contention that the use of an auto-daub feature converts an otherwise

perfectly acceptable technologic aid to a Class II bingo game into a Class III electronic facsimile

or gaming device. Submitted herewith as Exhibit 1 is a copy of a June 24, 2008 letter fromGaming Laboratories International (“GLI”) to Hobbs Straus Dean & Walker, LLP, reporting on

non-tribal jurisdictions in the United States that currently allow the use of auto-daub aids to thegame of bingo.

Chairman Hogen’s interpretation of IGRA as precluding tribes from using a technologic

aid to bingo that commonly is authorized for use in non-tribal bingo games conducted on

military bases and under state or local jurisdiction would be contrary to Congress’ intent that

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

games in class.II

57 Fed. Reg. at 12,382, 12,387 (April 9, 1992).

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

4,624,462:

The primary objective ofthe invention is to provide an electronic card and boardgame which relieves the player from the tedious and error-prone operation of

manual marking matches on the game card. In particular, it is the objective ofthe 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 ofthe game, whereas the caller has only to push a

single button to control the game. It is the further objective ofthe invention to

provide a design ofthe game board which facilitates a broad and easy selection

ofthe game cards and games being played with the help ofthe same game

board. An additional objective ofthe invention is to preclude unauthorized oruntimely change ofthe game card by the player.

In fact, fully electromechanical linked aids to the game of bingo featuring full auto-daub were developed as

early as 1956. Such aids allowed a player to “either participate in illuminating the numbers or sit back and watch his

board operate automatically” and ensured that the “player does not have to watch or exert himself play a board to be

assured of winning ifin 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 benefit of

ensuring honest and accurate play. Moreover, linlced electronic gaming systems were well-known before 1988. See,e.g., Video Consultants ofNebraska v. Douglas (Neb. 1985) 367 N.W.2d 697, 699 (“Each location consists of one or

more lottery game terminals connected to an agent terminal.”)
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this assertion. However, that issue was not before Chairman Hogen, and thus his opinion on the

question should be rejected as neither persuasive nor dispositive.

III. THE ONE-TOUCH FEATURE DOES NOT TRANSFORM THE GAME OF

BINGO INTO A CLASS III FACSIMILE.

According to Chairman Hogen, “[a] wholly electronic, fully automated implementation

of the game described by the [Metlakatla] Tribe’s amended ordinance is a Class III ‘facsimile ofany game of chance.” However, he could have reached this conclusion only by misreading the

NIGC’s own regulations and misunderstanding that Tribe’s Amendment to its Gaming

Ordinance.

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 NIGC has defined facsimile to mean:

Electronic or electromechanicalfacsimile means a game played in

an electronic or electromechanical format that replicates a game ofchance by incorporating all of the characteristics of the game,except when, for bingo, lotto, and other games similar to bingo, theelectronic 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. Thus, the NIGC’s own regulations allow a bingo game to be played in a fully

“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.

Chairman Hogen’s June 4, 2008 letter took issue with the NIGC’s own regulation and

asserted that it could not permit a facsimile to be used in the play of a Class II game unless it

requires some “participation in the game by the players above and beyond the mere pressing of a

button to begin the game.”6 Chairman Hogen apparently believed that unless some undefined

6 . . . The Supreme Court has long recognized that a federal agency is obliged to abide by the regulations it

promulgates.” Sameena Inc. v. United StatesAir Force (9th Cir. 1998) 147 F.3d 1148, 1153; see also, e.g., Portland

General Elec. Co. v. Bonneville Power Admin. (9th Cir. 2007) 501 F.3d 1009, 1035-36 (holding that the Bonneville

Power Administration is bound by its own regulations until it adopts new ones, FERC or a court disapproves ofits

existing regulations, or Congress changes the law).
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or against each other necessarily is one that does not incorporate or replicate all of the features of

the bingo game in a single, self-contained unit. The most fundamental aspect of the game — players competing against each other with different bingo cards against a common ball draw — isnot electronic or automatic.7 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, and

thus the fundamental characteristic that makes the game bingo is preserved, unaltered by the use

of an electronic format. As explained by the NIGC:

IGRA permits the play of bingo, lotto, and other games similar tobingo in an electronic or electromechanical format, even a whollyelectronic~ format, provided that multiple players are playing withor against each other. These players may be playing at the samefacility or via links to players in other facilities. A manualcomponent to the game is not necessary. What IGRA does notallow 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).8

The NIGC’s existing definition of facsimile is consistent with IGRA’s legislative history

and the case law that since has interpreted the statute. The legislative history indicates thatCongress did not intend the facsimile prohibition to restrict the use of electronics to play games

that meet IGRA’s 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:

In contrast, this likely would not be the case ifthe other players in the game were computer generated

virtual players. Similarly, a bingo game that permitted only a single player to play against the ball draw might besaid to be a facsimile.

8 Contrary to theNIGC’s clear direction in a formal rulemaking that a manual component to the game of - bingo is not necessary, Chairman Hogen’s letter would have added an additional manual component to the game by

grafting a ‘sleep” requirement onto IGRA’s definition of bingo. The letter cited to no action by Congress or thecourts suggesting that such a radical change is either necessary or authorized. Significantly, neither the Justice

Department nor the NIGC has brought an enforcement action to challenge the Class II status of a game in the years

since the NIGC revised its defmition regulations in 2002.
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regard, the Committee recognizes that tribes may wish to join with

other tribes to coordinate their class II operations and therebyenhance 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 technology as long as the use of suchtechnology does not change the fundamental characteristics of thebingo or lotto games and as long as such games are otherwise

operated in accordance with applicable Federal communicationslaw. 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 agame 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.

Contrary to Chairman Hogen’s assertion, therefore, the use oftechnology, even ifit

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.”9

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

A good example of a facsimile of a game of chance is video poker, as commonly played in self-contained

game terminals. Such a game, although it uses poker graphics and terminology, is a wholly electronic game thatdoes not permit competition among players. Unlike a true poker game, in video poker the game takes place solely

within the device, and the player is playing against the machine. Similarly, a wholly electronic bingo game thatpermitted only a single player to play against the ball draw would be a facsimile.
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in a bingo game, the game does not become a facsimile if “the electronic or electromechanicalformat 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. As~ long as there are players playing

against each other, the game is not a facsimile, it is bingo, a Class II game

However, even assuming that Chairman Hogen was correct that some additional (“even

minimal”) participation in the game is required, the auto-daub feature does not lessen

participation in the game. Rather, it merely aids in the tracking and covering of bingo numbers

for a player participating in an electromcally linked bingo game It does nothing to lessen thecompetition among players to be the first to obtain a winning pattern, nor does it do anything tolessen 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 even

with Chairman Hogen’s overly restrictive test.

Chairman Hogen’s position, that the plain language of the agency’s own regulatory

definition of facsimile is wrong, was and is unsupportable as a matter of law. Although it is true

that an agency’s interpretation of its own regulations is entitled to some deference, that is only

10 The applicable test for distinguishing between aids and facsimiles was explained by the Tenth

Circuit:

Courts reviewing the legislative history ofthe Gaming Act have recognized anelectronic, computer or technological aid must possess at least twocharacteristics: (1) the “aid” must operate to broaden the participation levels of

participants in a common game, see Spokane Indian Tribe v. United States, 972F.2d 1090, 1093 (9th 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 ofMission Indians v.

National Indian Gaming Comm’n, 14 F.3d 633, 636-37 (D.C. Cir.), cert. denied,

512 U.S. 1221 (1994) (Cabazon III). Courts have adopted a plain- meaninginterpretation of the term “facsimile” and recognized a facsimile of a game is

one that replicates the characteristics ofthe underlying game. See Svcuan Band

ofMission 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 Tnt.] Dictionary 813 (1976))), cert. denied, 516

U.S. 912 (1995); Cabazon II, 827 F. Supp. at 32 (same); Cabazon III, 14 F.3d at

636 (stating “[a]s commonly understood, facsimiles are exact copies, orduplicates.”).

162 MegaMania Gambling Devices, 231 F.3d at 724.
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language of a regulation is clear, an agency cannot effectively amend the regulation under theguise of “interpretation.” See, Christensen v. Harris County (2000) 529 U.S. 576, 588 (holding

that “[t]o defer to the agency’s position would be to permit the agency, under the guise of

interpreting a regulation, to create de facto a, new regulation.”).” As such, Chairman Hogen’sdisregard of the plain language of the NIGC’s current definition under the guise of interpretationshould not be given any deference.

CONCLUSION

For the reasons set forth above, the Cahuilla Band of Indians urges the NIGC to proceed

with its reinterpretation of former Chairman Hogen’s decision exactly as proposed.

Respectfully Submitted,FORM & ASSOCIATES

George F an

We note as well 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 some situations. See Pfaff~

88 F.3d at 748 (citing NLRB v. BellAerospace Co., 416 U.S. 267, 294 (1974)). As the Ninth Circuit made clear,[s]uch a situation may present itself where the new standard, adopted by adjudication, departs radically from the

agency’s previbus interpretation ofthe law, where the public has relied substantially and in good faith on the

previous interpretation, where fines or damages are involved, and where the new standard is very broad and general

in scope and prospective in application.” Id.