Gaming 

Commission 

P.0. BOX 470 

$31 Nhm~ln ST. 

Saulf Stc. Mark 

Mlcnipn 

m7e.3 

Phone 

906.635.7062 

Fax 

006.635.5034 

Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

1441 L St., N.W., Suite 9100 

Washington, DC 20005 

S.T.GAMING COMM. PAGE 01/10 

Re: Comments on "Electronic One Touch Bingo System,"78 Fed. Reg. 37998 

Dear Chairperson Stevens and Commissioner Little: 

Belaw please find comments on behalf ofthe Sault Ste, Marie Tribe of Chippewa Indians 

Gaming Commission on ihc National Indian Gaming Commission's proposd Po recognize 

as Class IT "server based electronic bingo system games that can be played utilizing only 

one touch of a button ('ose touch bingo')." 78 Fed. Reg. at 37998. As detailed below, the 

Saulf Tribe Gaming Commission strongly supports the N.I.G.C.'s proposal, which is fully 

consistent with the text of the Indian Gaming Regulatory Act ("IGRG"), the legislative 

history, the N.I.G.C.'s regulations and applicable case law. 

The Sault Tribe Gaming Commission agrees with the N.T.G.C.'s proposal "to reinterpret 

the position regarding one touch bingo as set forth in the Metlakatla Ordinance 

disapprova~."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 I1 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 

covming, without further action by the player, numbers or 

other designations on the player's electronic bingo card(s) 

whcn the numbers or other designations are electronically 

determined and electronically displayed to the player. 

- 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 N.I.G.C. Chairman took the position in the Metlakatla ordinance disapproval 

("Ordinance Letter") that the use of the aid feature described above would converl a Class 

I1 bingo game into a Class Ill game. The Ordinance Letter included two arguments to 

support this position: (I) the IGRA requirement that a bingo game must he won by the 

first person to cover thc 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 gamc 
S. T. GAMING COMM . 

of bidgo into an electronic machin,$ and system, and therQby renders one touch bingo a 

Class 111 electronic facsimile of a game ofchance."78 Fe!. Reg. at 37999. 

As detailed below, the Saalt Tribe Gpming Commission kgrees with the N.I.G.C. that the 

two arguments expressed in the Ordinance rdetter were idcorrect as a matter of law. 

Contrary to the views set forth in that earlier letter, the ude of the one touch auto-daub 

feature in connection with a linked bingo game is consisient with the IGRA's definition 

of bingo and does not convert n Class I1 bingo game into! a Class III facsimile. 

I. The Use of One Touch Auto-Daub is ~odsistent with the IG'RA Definition 

of Bineo. 

As has been held by the federal wurls, the three statuto~ requirements of bingo set forth 

in the IGM are the sole legal requirements for a game tb qualify as bingo. United States 

v. 162 MegaMania Gmblinn Devices, 231 F.3d 713 (IOthCit. 2000); United States v. 

103,223 F.3d 1091 (9th Cir. 2d00). Nevertheless, the 

Ordinance Letter asserted that the use of one touch autoldaub prevents a gamc from 

qualifying as Class I1 bingo, even if it satisfies the IGRA requirements For bingo in all 

other resoects. According to the Ordinance Letter, the "krst person to cover" requirement 

in the IG~A definition ofbingo requires competition behe& players and that there can 

be competition in a bingo game & if the players are pkrmitted to "sleep" a bingo by not 

covering numbers or other designations th,at are drawn dr electronically determined and 

displayed to the players that would result in a winning $attern. The Sault Tribe Gaming 

Commission agrecs with fhe N.I.G.C. that the IGRA definition of bingo does not support 

such a requirement. 

In fact, nothing about the phrase "first person to cover"jot any other aspect of the lGRA 

definition of bingo suggests that the ability to sleep a b+go is a required element of thc 

game. Indeed, in determining whether a game satisfied! the statutory elements of bingo, 

the courts have evaluated what it means for a player to t'cover" the numbers on, a bingo 

card when. electronic covering is used. U.S. v: 103 ~lek. Gambling Devices, No. 98- 

1984,1.998 WL 827586, at *6 (N.D. Cal. Nov. 23,1,99#), @ 223 P.3d 1091 (9th Cir. 

2000). In rejecting the argument that MegaMania faileb to satisfy the definition of bingo 

because of its electronic daub feature, the court stated that "[tlhere is nothing in TGM . . . that requires a player to independently locate each calldd number on, each of the player's 

cards and manually 'cover' each number jndependently!and separafely."~. To the 

contrary, the court emphasized that IGFU "merely reqAire[s] that a player cover the 

numbers without specifying how they must be covercdiW1d. Thus, the manner in which 

1 .- players cover numbers on their card(~) is irrelevant. : 

I The Ordinance Latter eked a 2003 opinion from the NIGC Office of Gcnd Counsel u support. 

However, such opinions are not final agency actioa. Instead. thcd comstiturc only the lctal ooninions of the 

NIGC's lawyen. As explained by the Tenth Circuit Coun of~~peals in ~eneca-~avueh"iril;e of 

L)klahgrna v. Nstiqnal Indian Gaminn Commission. 327 F.3d 1019. 1043 (10th Cit. 2003): 

[Aln agency's opinion letter is not binding, nor,/unlike an, NlGC 

regulation enactcd pursuant to the rigors of the bdministrative 

Procedt~re Act7 is it entitled to any defcrcnce. Ihrtead, the NIGC's 

PAGE 02/10 
S. T, GAMING COMM. 

Whether or not one touch auto-daub aid is utilized, the game is still, won by the first 

person to cover the winning bingo pattem baed on the sequence of bingo numbers for 

that garac and the other cards in play. The fnst saver is tlm one who covers the winning 

bingo pattem in the fewest quantitv of bingo numbers drawdetermined for that Pame. 

Nothing about the auto-daub feature changes the quantity of bingo numbers necessary to 

be the first player with the winning bingo panetn. Even with auto-daub the "cover" 

function is performed during the game's namd progression, only & each release of 

balls, and thus XGRA's sequencing requirement that the cover take place after the release 

of b~ngo numbers continues to be satisfied. Auto-daub cannot operatc independent of the 

player, and it has no impact on the outcome ofthe game. Thc statutory requirements 04 

bingo are s3tished so long as numbers gg covered when similarly numbered objects arc 

drawn or electronically determined. The one touclr auto-daub aid feature merelyzassists 

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

Further, tbe Ordinance Letter was fundamentally wrong that the el.ment 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 hisher 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 cads in play by that player and other players &the unique 

sequence of bingo numbers drawn/detennined for that game. This competition between 

the players is present whether or not a plnyer is permitted, to "sleep" a bingo. As correctly 

noted by the N.I.G.C., "[wjhcther 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 fmture does nothing to disturb the 

competition between players. The aid feature can only he used in the context of an actual 

bingo game where multiple players with unique bingo cards co~npete and play against a 

common ball draw. The players play against each other in exactly the same 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 N.I.G.C. Office of General 

Counsel has consistently opined are permissible. See, e.g., Nat'l lndian Gaming 

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

- ath~p:llwww.nigc.gov/PortoJ.sIO/NIG~%2~ 

opinion letter is at most persuasive authority; it is entitled only ro that 

weight that its power to persuade compels. 

In the 2003 opinion the OFfice of Gcneral Counsel, opinion cites to no authority in making its argument that 

IGRA's language implies a specific kind of either physical or electronic participation and is or hem is^ 

unporsuasive. 

2 Tb,is is especially important when a player is playing multiplc bingo oaids, as is common in both 

lndian and non-Indian bingo lialls. 

PAGE 03/10 
S.T.GAMING COMM. 

tionalindianbingol. 11400.~df)?~or thi.9 reason, the Sault Tribe Gaming Commission 

agrees with the N.I.G.C. that "the previous interpretation's requirement that the cover of 

the bingo card be done manually by the player thiou~, anadditional pressing of a bunon 

is an additional requirement not mandated by the sta~t'~." 78 Fed. Reg, at 37999. 

The Ordinance Letter suggested that it was based on how the game of bingo was 

"eaditionally" played. However, the 1GRA explicitly recomized that the game of bingo 

~t 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 whcther a game meets the definition of Class fl 

bingo. As explaieed by the Ninth Circuit: 

The Government's e:Eorts to capture more completely the 

Platonic "essence" of traditional bingo are not helpful. 

Whatever a. n,osta,lgic inquiry into the vital characteristicu of 

the game as it was played in our childhoods or home towns 

might discover, IGRA's thee explicit criteria,, we hold, 

constitute the sole requirements for a game to count as 

class I1 bingo. 

There would have been no point to Congress's putting tbe 

three very specific factors in the statute if there werc also 

other, implicit criten'a. The three included in the statute are 

in no way arcane if one knows anytliing about bingogo: so 

why would Congress have included them if they were not 

meant to be exclusive? 

Further, IGRA includes within its definition of bingo "pulltabs, . . . punch boards, Lip jars, [and] instant bingo . . . [if 

played in the same 1.ocation. as the game commonly known 

as bingo]," 25 U.S.C. 5 2703(7)(A)(i), nonc of which, are 

similar to the traditional numbered ball, multi-player, cardbased game we played as children. . . . Instant bingo, for 

example, is as the Fifih Circuit explained io Julius M. Israel 

Lodge of B'nai B'rith No. 21 13 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 i.nstant-win game that does not depend nt all 

on balls drawn or numbers called by an external sotucc. See 

id. at 192-93. 

Moreover, 4 2703(7)(A)(i)'s definition of class 11 bingo 

includes "other games similar Lo bingo," 25 U.S.C. 

Funher, the one touch aid featurc requires the player to take an uffinnativs action to begin play 

and cannot operate unless at least LWO players have purchased bingo cards for that game. 

PAGE 04/10 
S.T.GAMING COMM. 

4 2703(7)(A)(i), explicitly precluding any reliance on the 

exact attributes of the children's pastime. 

103 Electronic Gambliw Devices, 223 F.3d at 1096. Seealso162 MerraMania Gambling 

Devices, 231 F.3d at 723. ("While the speed, appearance and stkes associated with 

MegaMania are different from traditional, manual bingo, MegaMonia meets all of the 

statutory criteria of a Class If game, as previo~~sly discusscd.").d 

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 "maximurn flexibility" to use 

"modem" technology to conduct bingo games. S. Rep. No. 100-446, at 9 (I 988), 

reprinted in1988 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.' 

1 In thc preamble to its 1992 dcfinition regulations. the NlGC stated: 

[One] commenter su$gestod that class I1 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 of tho Commission, 

Congress enumerated those games that are clnssified as class II gaming 

(with the cxceptian 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 whccher the definition of bingo in the 

IGRA limits the presentatioki of bingo to irs clamic form. The 

Commission does not believe Congrcss intended to limit bingo to it! 

classic fonn. Tf it had. it could have spellcd out f~~rther requirements 

such as cards having the leitcrv "E""r""N""G0 across the top, with 

nurnbns 1-1 5 in the first column, etc. In defining class I1 to include 

games similar to hingo, Congress intcnded to include more than "bingo 

in its classic fonn" in that class. 

. . . Congress enumerated the games that. fall within class 11 except for 

game* similar to bingo. Far games similar to bingo, the Commission 

addcd a definition thal includes the threc criteria for bingo and, in 

addition, rcquires that the game not be a housc banking game as 

defined jn tho regulations. The Commission belicves that Congrers did 

not intend other criteria to be used in classiFyine, gamcs in clms 11. 

Definitions under the Indian Gaming Regulatory Act, 37 Fed. Reg. 12,382, 12. 383, 

12,3 87 (April 9, 1992). 

PAGE 05/10 
S.T.GAMING COMM. 

It also is relevant that this very same lying0 aid featme is widely permitted today by the 

federal government on U.S. military reservations and in many other non-lndian bingo 

facilities. The N.I.G.C!s proposed interpretation is consistent with Congress' intent that 

tribes have "maximum flexibility" to use such "modern" lechnology to play bingo games, 

and in its statutory authorization for tribes to use such aids. As the N.I.G.C. 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 

-, 

The use of the one touch auto-daub feature does not rxansfonn a game from Class I1 

bingo into a Class III facsimile. As explained by the N.I.G.C.: "the previous 

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

502.8 [] require[s] some - even minimal pxticipation in the game by .the players above 

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

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

oftimes a button is pushed. Rather, as set out above, we must Look to whcther the 

statutory elements of the game ate met." 78 Fed. Rcg. at 38000. The N.LG.C.'s position 

is fully consistent wit11 the statute and regulations. 

5 For ex~mplc, an auto-daub aid feature for bingo was patentcd in 1986. As described in Elechonic 

Card and Board Gamo, US. Patent No. 4',624,462 (Nov. 25, 1986): 

The primary objective ofthe invention js to provide an electronic card 

and board game which relieves the player From the tcdious and errorpronc operation of manual marking matches on the gamc card. In 

particular, it is the objective of thc invention to provide a completely 

automated bingo game in which the player docs not havc even to touch 

or watch the game card or the game board at my time during 

successive rounds of the game, whcreas the caller has only to push a 

single bunon to conhol the game. It is thc funhcr objectivc of the 

invention t.o provide a dcsign of the same board which facilitates a 

broad and easy aeloction of the gamc cards and games being played 

with the help of the same game board. An additional objeotivc of the 

invention is to preclude unauthorized or untimely change of the game 

card by the playcr. 

In &ct. fully elecbomechanicnl linked aids to the game of bin@ featuring full auto-daub were developed as 

early as 1956 which allowed a player to "either paslicipatc in illurninncing the numbers or sit back and, 

watch his buard operate automaticdly" and ensured that tl~a "player docs not llave to watch or exert himself 

play a board to be a~surcd of winning if in fact the board before him colncs up with a winninb 

combination."U.S. Parent No. 2,760,619 (Aug. 28, 1956). See also. c,P,, Elechioally Operated Bingo Gune 

Apparatus, U.S. Patent No. 3,671,041 (Junle 20, 1072). Moreover, lin,ked clcctronic gaming systems were 

well-known before 1988. Les, u., me0 Consutrants ofNebraska. Inc. v. Daub, 367 N.W.2d 697. 699 

(Neb. 1985) ("Each location consisrs ofonc or more lotrery ganle terminals connected to an agent 

terminal.") 

PAGE 06/10 
S. T. GAMING COMM, 

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

electromechanical facsimiles of any game of chance," 25 U.S.C. C) 2703(7)(B)(ii), 

however, the term. "facsimile" is not defined by the statute. Tlx N.I.O.C. h~ defined 

facsimile to mean: 

Electronic or elecrromechanical,ficC~i~nilo means a game 

alaved in an electronic or electromechanical format that a, 

replicales a game of chance by incorporating all of the 

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

and other games similar to bingo, the electronic 01: 

y 

ely 

rather than with or against a machine. 

25 C.F.R. 4 502.8 (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 re uires the players to play with or against each other wther than with 1 or against a machine. 

The Ordinance Lettcr failed to recognize that a format chat requires players to play with 

or against each other n~cessarily 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 five bingo game that is taking place 

across a linked network of actual players. This mmains the case whether or not autadaub is used. Stated another way, the fundamental characteristics of the game are 

preserved, unaltered by the game's electronic format. As explained by the N.I.G.C.: 

TGRA pennib 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 ofthe game tllat does not broaden 

participation, but instead permils 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). 

' he onc touch auto-daub aid feature would. in the cantcxr of an clcctronically linked bingo gome, 

assist the player and the playing of the pne by tracking and covcring bingo numbers For the player. As 

such, it falls squarely within the N.I.G.C.'s definition of electronic, computer, or other tcchnologio aids 

found at 25 C.F.R. 4 502.7. 

PAGE 07/10 
S.T.GAMING COMM 

The N.I.G.C.'s existing definition of facsimile is consistent with legislative history and 

case law. The legislative history indicates that Congrcss did not intend the facsimile 

prohibition to restrict the use of electronics to play games that meet the IGKA dcfinitian 

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 tribea 

should restrict class 11 games to existing games [sic] sizes, 

levels of participation, or current technology. The 

Committee intends rhat tribes be piven the opo~flunit~ to 

take advililtaae of modem methods of conduct in^ class!! - - 

and the language regaiding techlogy is dcsigned 

to provide maximum flexibilitv. In this regard, the 

Committee recognizes that lribes may wish to join with 

other tribes to coordinate their class Jl operations and 

thereby enhance the potential of increasing revenues. &x 

exam le linki 

f 

whether in the same or different States. by means of 

approach for (ribes to take. Simultaneous games 

participation between and among reservations cam be made 

practical by use of comautcrs and telecommunications 

technolo~y as long as the use of such technology does not 

change the fundamental characteristics of the bimo or lotto 

and as long as such gamm are otherwise operated in 

accordance with aonlicable . . Federal communications law. 

: ~ 

In other words, such reclmologv would merely broaden the 

particioant days a Erne with or aaainst a machine rather 

than_with or against other plavets. 

S. Rep. NO. 100-446, at 9 (1988), repented in 1988 U.S.C.C.A.N. 3071,3079 (emphases 

added). 

Thus, as now recognized by the N.I.G.C., the use of technology, even if it allows 

fundamental characteristics of bingo to be played in an electronic format. does not 

necessaiily make a bingo game a "facsimile." Rather, a bingo game played using 

technologic aids (which are expressly pemincd by 25 U.S.C. 4 2703(7)(A)(i)), only 

PAGE 08/10 
S.T.GAMING COMM. 

becomes a facsimile if the technology perm* the layer to play "with or agaimt a t: machine rather than with or against other players." 

The corn have agreed with this interpretation. In the MegaMania cases, the courts ded 

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 samc bingo game and are not simply playing against the 

machine. See103 Electronic Gambling Devices, 223 F.3d at 1100; 162 Me~aMania 

-1in~ Devices, 23 1 F.3d at 724.' Thc addition of a one touch auto-daub aid feature 

does not change thc fact that players are competing against each other in a common 

game. 

Thus, no additional participation is required to prevent the game fiom becoming a 

facsimile. Instead, the N.LG.C. 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 "un 

bn 

a macl~ine " 25 C.F.R. 5 502.8 (emphasis addcd). As long as there are players playing 

against each other, the game is not a fwsimile. 

' A good example of a facsi,mile of a game of chance is video poker, when played 

in self-contained game terminals. Such a game, although it uses poker graphics and 

terminology, is a wholly electronic game that does not permit competition among players. R The appiicable cest for distinguishing betwcen aids and facsimilcs was explained by the Tenth 

Circuit: 

Courts reviewing the legislative history of the Gaming Au have 

recognized an electronic, computer or technological aid must possess nr 

least two characteristics: (I) the "aid" must operate to broaden the 

panicipation levels of participanw in a common game, seesookane 

-$, 972 F.2d 1090, 1093 (9th Cir. 1992); and 

(2) the "aid" ia distinguishable from a "facsimile" where a aimgle 

participant plays with or againat s machirie rather than wit11 nr 

against other players. Cabazdn Band of Mission Indians v. National 

Indian Oarnine Cornman. 14 F.3d 633,636-37 (D.C. Cir.), cert denied$ 

512 U.S. 1221 (1994)(-. Courts have adopted apleinmoaning interpreratinn ofthe tam "facsimile" and recognized a 

fawimile of a game is one that replicates the cl~aracteridcs of the 

underlying g~ine. -, 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 Int'l Dictionay 813 (1976))), cert. denied, 516 

U.S. 912 (1995); Cahazon TI, 827 F. Supp, at 32 (same); Cabamn 111, 

14 F.3d at 636 (stating "[a]s corninonly ui~dwstood, facsirnilcs are exact 

copics, or dupliccleea."). 

162 MegaMania Gambling Devices, 23 1 F.3d at 724 (emphasis added). 

PAGE 09/10 
S.T.GAMING COMM. 

The Sault Tribe Gaming Comm.ission is pleased that the N.I.G.C. has decided to clarify 

that a game that is otherwise Class II bingo is not converted into a Class 111 game througl~ 

the addition of a one touch auto daub feature, Congress provided a. bright line test to 

distinguish electronically-aided Class I1 games &om Class I11 games. That line is not 

based on the number of player "touches" required to interact with the game. Rpth~r, 

Class IT bingo includes game that meets the three statutory requirements set forth by 

Congress. Such games may be played with any form of elecfronic, computer or other 

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

againsr the machine. 

Sincerely, 

Kenneth J. Ermatinger 

Executive Director 

PAGE 10/10