National Indian Gaming Commission 

NOTICE OF DECISION AND ORDER 

In the Matter of the Cherokee Nation of Oklahoma 

NOVICO-5-99 

Docket Nos. NIGC 99-1 

Cherokee Nation - Appellant 

INTRODUCTION 

The primary question before the National Indian Gaming Commission (NIGC) is 

whether machine game Reels and Deals offered for play at the Cherokee Nation facilities 

located within the boundaries of the State of Oklahoma is an amusement game of skill or 

a gambling device. If, as Appellant contends, the game is merely an amusement device, 

it would not fall within the ambit of the Indian Gaming Regulatory Act. If, on the other 

hand, the game constitutes a gambling device, as the Chairman contends, its play is 

prohibited in the absence of a valid tribal-state compact. 

Two other issues were raised and addressed by the Hearing Officer. The first 

concerned a request by the manufacturer of the game Reels and Deals to be granted status 

as an Intervenor. The second issue concerns the standard of proof applicable to 

Commission proceedings, the Appellant urging a "clear and convincing" standard as 

opposed to the "preponderance of the evidence" standard customarily applicable in 

administrative proceedings. 

Having considered the record and all of the facts in evidence in light of applicable 

case law and precedent, the Commission, by majority decision, hereby accepts the 

recommendations of the Presiding Official on all three issues, afErming the Chairman's 
Notice of Violation and making permanent the Chairman's Closure Order, NOVICO-5- 

99, with the Chairman concurring in the result. 

BACKGROUND 

In 1998, the NIGC began an investigation of various games operated by a number 

of Oklahoma Indian tribes, including the Cherokee Nation of Oklahoma (Tribe), the 

Comanche Indian Tribe, the Choctaw Nation of Oklahoma, the Ponca Tribe of 

Oklahoma, and the Kiowa Tribe of Oklahoma. 

In January of 1999, the NIGC issued a cautionary letter to the tribes, informing ' 

them of its conclusion that certain games, including Version I of a game called Reels and 

Deals, were Class III gambling devices being offered for play without tribal-state 

compacts in violation of the Indian Gaming Regulatory Act, 25 U.S.C. $9 2701-2721 

OGRA). 

On February 8, 1999, the Cherokee Nation notified the NIGC in writing of its 

determination to offer a modified version of Reels and Deels to customers. The Tribe 

advised it had determined the modified version was not subject to the IGRA because it 

was an amusement device requiring significant skill before awarding credits or prizes. 

From mid-February through mid-May 1999, the parties negotiated terms of an 

agreed procedural stipulation. (Agency Record, Exhibit 8). Pursuant to the Stipulation, 

parties agreed on what was intended to be an orderly NIGC administrative process for 

resolving the dispute between the Chairman and the tribes regarding play of the devices. 

The stipulation was implemented as follows: (a) The Chairman issued an Order of 

Temporary Closure to Respondent on July 8, 1999, directing it to discontinue play of 

Reels and Deals in its facilities pursuant to 25 C.F.R. 9 573.6; (b) The Cherokee Nation 
appealed the Order to the NIGC pursuant to 25 C.F.R. $5 577.1 and 577.3; (c) The 

Chairman stayed the Order of Temporary Closure pending the outcome of the hearing on 

appeal and decision by the NIGC; (d) The Respondent continued to operate these games 

pursuant to the procedural stipulation; and (e) The hearing process went forward. 

During extensive pre-hearing proceedings, all respondent tribes except the 

Cherokee Nation withdrew its appeal. Earlier procedural decisions left attorneys James 

Trucks and Candace Stewart-McGee in the position of representing the Ponca Tribe 

while serving as amicus curia on behalf of Reels & Deals, Inc. These attorneys requested 

that Reel & Deals, Inc. be recognized as an Intervenor. Relying on a decision of a 

previous Presiding Official, this request was denied. 

A two-week hearing was conducted at Tulsa, Oklahoma, beginning January 14, 

2002. Post-hearing materials were received from the Commission Chairman, the 

Cherokee Nation, and game manufacturer, Reels & Deals, Inc., filing as amicus curiae. 

ISSUES BEFORE THE COMMISSION 

This matter comes to the full Commission on appeal from the recommended 

decision of the hearing officer upholding the Chairman's enforcement action on the 

grounds that the game in question, Reels and Deals, is not a game of skill as asserted by 

the Appellant, and thus outside the ambit of the IGRA, but is, in fact, a Class III game of 

chance prohibited by IGRA absent an approved tribal-state gaming compact. Two other 

collateral issues were raised during the proceeding and addressed by the hearing officer. 

The first concerned a request by the manufacturer of the game Reels and Deals to be 

granted status as an Intervenor. The second issue concerns the standard of proof 

applicable to Commission proceedings, the Appellant urging a "clear and convincing" 
standard as opposed to the "preponderance of the evidence" standard customarily 

applicable in administrative proceedings. 

FACTS 

The facts of this matter are largely undisputed and well summarized by the 

hearing officer in the text of the recommended decision. Briefly stated, the Appellant, 

Cherokee Nation, at some point prior to January 1, 1999, began offering the machine 

game Reels and Deals at its gaming facility on tribal lands located within the boundaries 

of the State of Oklahoma on the theory that the game was one of skill not chance, and 

thus not subject to the IGRA. By stipulation, the Parties agree that no tribal-state 

compact is in place authorizing the play of Class III gaming devices and that the elements 

of reward and consideration are not at issue.' 

The machine game Reels and Deals is described in substantial detail in the 

Hearing Officer's Recommended ~ecision.~ Neither party challenges the accuracy of the 

Hearing Officer's description of the game, which we summarize in relevant part in the 

following section. 

DESCRIPTION OF THE GAME 

Reels and Deals is housed in an upright cabinet similar in appearance to that of a 

Las Vegas-type slot machine. The interior components are secured fi-om non-authorized 

persons with locks on the main service door and on the secondary access door. The 

game's playing field is displayed within a graphic window of the monitor. The window 

displays video images by graphically simulating three horizontal spinning reels that stop 

on one horizontal pay line to determine the results of play. 

' Agency Record, Exhiiit 8; Recommended Decision, Page 3. 

Recommended Decision, page 18. 
To play the game, a player inserts money into the bill acceptor located on the 

front of the machines. The bill acceptor receives $1, $5, $10, and $20 bills. The money 

is accounted for as credits available to participants to play one or more games. To play, 

participants must first press either the "PLAY ONE" or "MAX PLAY' button to play one 

to ten credits. After credit(s) are applied, the player may depress the "SPIN" (kick ofl) 

button to begin play. 

Once engaged, the three reels begin simulating a vertical rotation or "spin." Each 

reel continues to spin until the participant pushes the STOP button associated with that 

particular reel at which time the spin stops immediately on an icon. Each reel strip 

contains the same number of icons and each rotates at a constant speed although the 

sequence of the icons on each is different3 The player may depress any of the three 

STOP buttons in any order. 

To win, the device must display a winning combination or stop on a specially 

designated icon? Credits may be accumulated throughout the duration of play. When a 

player elects to discontinue play, any accumulated credits may be converted into tickets 

or the device records remaining credits on a receipt that can be redeemed for cash at the 

gaming facility. Anytime a player elects to "cash-out" some or all available credits, the 

credits recorded in the device are reduced correspondingly. When winnings are 

3 On June 1 1 and 12,2001, the parties entered into two separate protective stipulations and orders 

agreeing not to disclose specific information that was deemed to contain sensitive, valuable, proprietary 

data of the manufacturer and other detailed analysis. Arguably, the speed and number of icons might be 

included within the information to be protected. Without making an independent determination regarding 

whether that mformation should be withheld, we chose to refrain from disclosing the specifics in our 

decision. 

4 The object of the game is to-align three like icons, or a combination of like icons anlor "wild" icons, on 

the pay-line. Other pay-line combinations, such as selection of even one wild icon, also yield winning 

results. 
redeemed in excess of 12,000 credits, the game will "lock up," requiring an attendant to 

reset the game and manually pay the prize to the player. 

Reels and Deals contains no random number generator or time-out feature 

programmed into the hardware or software of the device. Each reel spins independently 

of the other two, thus the player controls the stopping point as well as the amount of time 

each reel will spin and the length of time between stops. The game has no knock-off 

meter. Multiple games are not found in the game's software. Reel and Deals has no 

retention control feature. 

ANALYSIS 

1. Whether the Reels and Deals Game is one of Chance or Amusement 

Appellant contends that the machine game Reels and Deals is not a gambling 

device, but rather constitutes an amusement device not subject to the provisions of the 

Indian Gaming Regulatory Act. Were this contention to be deemed correct, the result 

would be twofold. First, the game would fall outside the scope of IGRA. Second, 

Appellant would be fiee to offer the game for play at its gaming facility without first 

executing a tribal-state compact, in this case with the State of Oklahoma. 

The law governing gaming activities on Indian lands is set forth in the Indian 

Gaming Regulatory Act of 1988' and the Commission's regulations adopted pursuant to 

the AC~.~ The Act divides Indian gaming into three categories with significant legal 

distinctions adhering to each class. Class I games, for example, are within the exclusive 

regulatory jurisdiction of tribal governments and include social games conducted solely 

5 25 U.S.C. $9 2701 et. seq. See also, California v. Cabazon Band ofMission Indians, 480 U.S. 202 (1987) 

and Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

25 C.F.R. Part 502 

6 
for prizes of minimal value or traditional forms of Indian gaming engaged in by 

individuals as a part of, or in connection with, tribal ceremonies or celebration^.^ 

Class I1 games include bingo and games similar to bingo as well as card games 

that are explicitly authorized by laws of the State or those not explicitly prohibited by the 

laws of a State are played at any location in the state.* House banked card games, 

electronic or electromechanical facsimiles of any game of chance, and slot machines of 

any kind are specifically excluded from Class I1 and, thus, fall into the third category? 

Class Ill gaming includes all forms of gaming that do not fall under either Class I 

or II." This, obviously, includes those games specifically excluded fiom Class II 

designation in the Act, as well as games typically associated with fill-scale casino-style 

' 

In exercising enforcement authority in this matter, the Chairman determined that 

the game Reels and Deals constitutes a Class 111 gambling device. If Reels and Deals 

indeed is a gambling device, the Chairman's enforcement action is well within the 

Commission's enforcement jurisdiction since no tribal-state compact authorizing the play 

of the game is in place. 

In order to classify a machine game as a gambling device, three elements must be 

present: chance, consideration, and reward.." These elements are historically well- 

- - 

' 25 U.S.C. 2703(6) 

* 25 U.S.C. §2703(7) 

Id, 

'O 25 U.S.C. 5 2703(8) 

" 25 C.F.R. 5 502.4@) 

l2 We note that the Commission has proposed a new definition of the electronic or electronic mechanical 

facsimile that eliminates the Johnson Ad as part of the definitions [67 Fed. Reg. 56,13296 (March 22, 

2002)) (to be codified at 25 CFR Part 502). Our analysis would not differ however, under the new 

definition since there is no question that these machine games are not Class I or 11. Rather the distinction 

between Class IIl gaming machines and skill machines remains whether the games constitute gambling, ie: 

whether the elements of the game include consideration, chance, and reward. 
established in case law and statutorily embodied in the Johnson Act, a criminal statute 

enacted in 195 1 .I3 In order to determine whether play of the Reels and Deals constitutes 

gambling in the first instance, it is instructive to review the elements set forth in the 

Johnson ~ct.'~ The Johnson Act basically contains a two-prong test. First, was the 

device designed and manufactured primarily for use in connection with gambling, and 

. second, does the device fall within one of two possible categories with regard to its 

operation. Since Reels and Deals does not dispense money or property, but rather tickets 

or a paper receipt redeemable for a prize, the second part of the analysis would fall under 

sub-section (B) of the Act: is it a device (designed primarily for gambling) that 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.'5 

For purposes of this analysis, we dispense with any firrther discussion of the 

reward and consideration elements. Both parties have agreed that the relevant element in 

this matter is that of chance. Appellant urges that the Reels and Deals game is one of 

skill or amusement and not a gambling device. 

The Commission has deliberated on a number of cases involving games offered 

on the same grounds as those offered here. In the Reels of Skill decision, the 

Commission adopted an approach used by the Federal District Court for the Western 

District of Pennsylvania, which held that in determining if a game has a substantial 

l3 The Johnson Act defines a gambling device as: [Aby other machine [other than a slot machine] or 

mechanical device (including, but not limited to, roulette wheels and similar devices) designed and 

manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as 

the result of an 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. 1 171(a)(2) 

Is See, In re Gaming Devices Seized at American Legion Post No. 109, 176 A.2d 1 15, 122 (1961). See also 

38 Corpus Juris 286, et seq. 
element of chance, it must first be determined whether the device in question is designed 

and manufactured primarily for use in conhection with The court noted that 

the first step is the examination of the objective physical and functional characteristics of 

the device." 

In applying this analytical approach in a previous decision involving a game 

called Reels of Skill, the Commission found the game to be one of chance.I8 The 

outward appearance of this game was similar to that of a slot machine. The game was 

contained in a closed cabinet box with a video monitor which, when operated, simulated 

spinning reels similar to those on a slot machine. As with a slot machine, the reels 

contained various icons. There were buttons on the machine that when depressed stopped 

the rotation of the reels. If, upon stopping, the icons aligned in a winning combination, 

the player would be entitled to a prize. Since courts have held that appearance is 

indicative of the intent prong of the analysis, the next question was whether the game 

involved a substantial element of chance. Among the important factors in the Reels of 

Skill device was the presence of an "anoma~y"'~ that introduced a substantial element of 

16 US. v. 294 Various Gambling Devices, 718 F. Supp. 1236,1243-46 (W.D. Pa. 1989). See also U.S. v. 

Conley, 859 F.Supp. 864,875tW.D. Pa. 1994). 

"Federal courts have considered a multiple bill feature as strong evidence that a machine was designed 

and intended for gambling, and this seemed the controlling question. "Multi-coin insertion and wagering 

allow a machine to make considerably more money in the same period of time . . . .Such a feature is 

unusual in amusement devices and many courts have considered the presence of a multi-coin feature to be 

strong evidence that a machine was designed and intended for gambling." United States v. 294 Gambling 

Devices 71 8 F. Supp. at 1244 (citing United States v. 137 Draw Poker-Type Machines, 606 F. Supp. 747 

(N.D. Ohio, 1984) affd' 765 F.2d 147 (6th Cir. 1985);-United States v. Sixteen Electronic Gambling 

Devices, 603 F .Supp. 32 (D.C. Hawaii 1984); United States v. Various Gambling Devices, 368 F. Supp. 

661 (N.D. Miss. 1973). '' See Notice of Decision and Order in the Matter of: Choctaw Nation of Oklahoma, et al., NOV-98-09; 

CO-98-09; NOV-98-08; CO-98-08; NOV-98-07; CO-98-07; NOV-98-06; CO-98-06; NOV-98-01; CO-98- 

01 (July 24,1998). 

The feature described as "anomaly" in the Reels of Skill game is refmed to as "morphing" in the 

Seminole Commission Decision. This describes a feature in which the icon changes into a different icon 

after the play has stopped. 
chance into its play sufficient to foreclose any meaningful possibility that skill was a 

determinative factor in the outcome of the game.20 

Most recently, the Commission reviewed % matter involving numerous machine 

devices offered for play at a tribal gaming facility on the theory that each constituted 

mere were amusement device^.^' The Commission found that none of the games subject 

to review in the Seminole matter could be characterized as amuse'ment devices: all 

constituted Class III games of chance.22 

Again, the Commission first considered the outward appearance of the games to 

determine whether the intent element was suficiently present to trigger the second prong 

of the analysis. Each game both looked and operated with enough similarity to a classic 

slot machine to proceed to the second prong of the analysis. As with the Reels of Skill 

game, each of the games in question exhibited at least one or more features that 

introduced a substantial element of chance in the play of the games sufficient to foreclose 

any meaningful possibility that skill was a determinative factor in the outcome of the 

game. These included features such as the presence of random number generators, reels 

that morph, reels with exceedingly rapid spin, reels that continue to spin after the stop 

button is depressed, predetermined retention or award ratios, all stop buttons, inconsistent 

spin rates, distorting icons, and non-repeating icon patterns, among others.23 

The Reels and Deals device, however, differs substantially &om the machine 

games at issue in the two previous Commission decisions discussed above and presents a 

*' The Tribe appealed this decision to the United States District Court for the District of Columbia but 

voluntarily dismissed their appeal after the Court denied their Motion for a Temporary Restraining Order. 

Choctaw Nation of Oklahoma, et.al. v. Janet Reno, et.al., Civ No. 98-1862 (D.D.C. 1998). 

2' See Notice of Decision and Order in the Matter of: Seminole Nation of Oklahoma, NOV-00-06; CO-00- 

06; NOV-00-10; CO-00- 10; (May, 7 2002). 

Id.at 24 

Id. 
much closer question as to its proper characterization. As set out previously in the 

description of the game, the Reels and Deals game has the outward appearance of a slot 

machine analogous to the games in previous Commission decisions. Simply put the 

device looks and operates in a manner strikingly similar to that of a classic slot machine. 

As emphasized in the Seminole decision, however, outward appearance in itself is not 

determinative of whether the machine game constitutes a gambling device. To fall within 

the definition of gambling device, the chance element must be satisfied. 

The Fourth Circuit has held that where a substantial element of chance is involved 

in the play of a game, the device falls within the Johnson Act definition.24 In most cases 

involving machines games, the call is not close as the standard is not particularly high. 

The federal courts have ruled that the expression "by application of the element of 

chance" does not require that the element of chance predominate over the element of 

Another court held that where a substantial element of chance is involved, the 

fact that skill in operating the particular machine is helpfi.11 in attaining the end sought 

and does not take the machine out of the type defined by the Johnson Act. 26 

Unlike other so-called skill or amusement devices that have come to the attention 

of the Commission, Reels and Deals, while similar in appearance, does not exhibit many 

of the characteristics that we have previously held to be strong indicators of chance. 

Perhaps most significantly, Reels and Deals does not have a random number generator. 

This factor alone presents a significant difference between the game and most slot 

machines. Moreover, neither a retention or award ratio is programmed into either 

hardware or software of the device nor is there a time-out feature. It is also notable that 

" U.S. v. 20 Dealer's Choice Machines, 483 F.2d 474 (4m Cir. 1973) 

25 Tooley v. United States, 134 F. Supp. 162, 167 (D. Nev. 1955) 

26 US. V. 24 Digger Merchandising Machines, 202 F.2d 647,650 (1953) 

11 
each reel spins independently of the other two, and stop immediately when the button is 

depressed. The game has no knock-off meter. Multiple games are not found in the 

game's software. In Reel and Deals there is no retention control feature, the icons do not 

morph, the game is not predetermined, and there is no all stop button. 

The Presiding Official, in recommending that the Commission determine Reels 

and Deals to be a Class 111 device, ultimately based the recommendation on a 

determination that Reels and Deals is an electronic facsimile of a game of chance; to wit: 

a slot machine. While this may, in fact, be the correct conclusion, the Commission is 

concerned that Mer analysis of the chance element is warranted given the unique 

character of the game. It is not sufficient to conclude that a device is a game of chance 

simply because of superficial similarities to a slot machine or any other game of chance 

for that matter.27 Chance must be a substantial element in the outcome of the game 

before a game is properly characterized as one of chance. Conversely, chance need not 

be eliminated altogether in order to establish that a game is one of skill or amusement. 

Were the standard so high, midways and arcades would be emptied of games. On the 

other hand, the fact that skill may be a factor in the outcome of a game does not 

necessarily mean that it is not a gambling device. 

Whether a game is properly characterized as one of skill or chance may best be 

viewed along a skill-chance continuum, one end representing 100% skill; the other 100% 

chance. A slot machine occupies the extreme end of the continuum. It contains a random 

number generator that determines the outcome of each play. A winning outcome on a slot 

machine is the product of pure chance; skill is not a factor. At the opposite end of the 

*' See, United States v. 162 Megamania Gambling Devices, 231 F.3d 713 (10' Cir. Courts of Appeals; 

United States v. 103 Electronic Gambling Devices 223 F.3d 1091 (9& Cir. 2000); Diamond Game 

Enterprises v. Reno, 230 F.3d 367 (D.C. Cir 2000). 
continuum is a pure skill game, though it is doubtful that the element of chance could 

ever be eliminated in any human activity no matter how skillful the person. Somewhere 

along this continuum, as the element of chance becomes an increasing factor in the 

outcome of the game and the element of skill decreases as a factor in the outcome of the 

game exists the line. 

The Presiding Official clearly recognized that some degree of skill is a factor in 

Reels and Deals. Although the record reflects some inconsistencies in the testimony, the 

Commission will defer to the Presiding Official on this point as he is in a much better 

position to evaluate the evidence presented during the hearing and the weight the 

testimony. It is thus evident that Reels and Deals is a game containing elements of both 

chance and skill and the task of the Commission to articulate a proper standard for review 

when presented with a game of this nature. 

Degree of difficulty is certainly a key influence on the degree to which chance is a 

factor in the outcome of any game. The simplest game would be one where the level of 

skill needed to affect consistently the outcome of the game is within the physical or 

mental capacity most people. In this instance, chance may still be a factor, but a very 

minor one, easily outweighed by the element of skill. As difficulty increases, the 

importance of the skill element in the outcome also increases, and, relatively speaking, so 

increases the element of chance. At a certain level of difficulty only the most skilled 

individuals have the aptitude to affect consistently the outcome of the game. For all 

others, the outcome is a function of the element of chance. At some point the degree of 

difficulty may be increased to the point that even the most highly skilled individuals are 

without the ability to affect consistently the game's outcome. At such point the outcome 
of our hypothetical skill game becomes as much a factor of chance as a slot machine with 

its random number generator and pre-programmed retention and award ratios. 

The record reflects inconsistent testimony on the issue of the level of difficulty 

associated with Reels and Deals. Mr. Phillips indicates that the size of the reels and 

speed at which they spin is too great for the average person to become proficient at 

stopping the reel on a chosen icon. Accordingly, he concludes that that Reels & Deals 

falls overwhelmingly on the chance end of the spectrum. TR 406. Dr. Bertram, by 

contrast, is of the view that Reels and Deals is a hand-eye-coordination skill game, and 

testified that the rate of spin, even given the number of icons and patterns was within 

human reaction time. 

The record indicates that in blind play of Reels and Deals, the game would return 

81 to 85% of every dollar spent playing the game. TR 154,596. There is also testimony 

indicating that mathematically speaking, a theoretical highly motivated player equipped 

with a stopwatch and a penchant for memorizing the reel pattern could obtain a payback 

of approximately 1 1 1%. TR 664,676-678. 

Jerry Giles, Jr., and Gregory Giles testified that they have acquired skill in the 

play of Reels and Deals as a result of their specialized knowledge of the game and long 

experience playing the game. The two participated in a demonstration at the hearing 

during which each player enjoyed a certain amount of success with the game. 

Assuming, for purposes of discussion, that each man has achieved a level of proficiency 

sufficient to influence the outcome of the game at least some of the time, the Commission 

is not persuaded that the average player could ever achieve a similar level of proficiency. 

Jerry and Wade Giles are employees of the manufacturer of Reels and Deals and have 
unlimited access to the games. They are intimately familiar with the game by virtue of 

their job experience assembling and maintaining it. While the degree to which chance 

affects the outcome of a game is measured by the interplay between skill and degree of 

difficulty, we cannot conclude that the measurement should be fiom the perspective of 

the most highly or uniquely skilled expert. The correct perspective is more properly akin 

to that of the average player. See Tooley, 134 F.Supp at 166, 167. 

The Presiding Official parenthetically notes on Page 8 of the recommended 

decision in his discussion of Mr. Phillip's testimony, that the testimony of other witnesses 

is consistent with Phillip's view that the number of icons on the reels, combined with the 

the speed at which they pass through the pay line, the varying distribution of the icons on 

each wheel and the number of possible combinations is such that even if a player could 

play skillfully, he or she would still be playing a game of chance, only with better odds. 

TR. 416-417. He noted that the testimony of other witnesses indicates that at the game's 

current wheel spin, no human can react quickly enough to see an individual icon and 

react quickly enough to push a stop button and catch it. 

The Commission having examined the record, including testimony and exhibits, 

concurs with the Presiding Official's recommended decision to find that the game Reels 

and Deals is a game of chance notwithstanding the fact that a highly skilled and 

motivated player may be able to develop a sufficient degree of skill or proficiency to 

influence the outcome of the game at least some of the time. The key factor in this 

determination is the degree of difficulty presented by the game due to the speed at which 

the reels spin, the number of icons on the reels, the speed at which they pass through the 

pay line, the varying distribution of the icons on each wheel and the large number of 
possible combinations. When taken together these factors introduce a substantial element 

of chance into the play of the game. 

As noted at the beginning of our discussion, Reels and Deals presents a closer call 

than previously presented because it does not contain many of the features most 

commonly found in gambling devices. If the record had supported the proposition that an 

average player could develop sufficient skill to affect consistently the outcome of the 

game so as to win at an appreciable level above blind play, we would be more favorably 

inclined to Appellant's proposition. In the final analysis, however, we are left to 

conclude that the outward appearance, as well as the operation of the machine game 

presents sufficient indicia that it is designed or manufactured primarily for use in 

gambling and by the operation of which a person may become entitled to receive, as a 

result of the application of an element of chance, any money or property. 

2. Motion to Intervene. 

On October 6, 2001, Presiding Official Parrett denied the Reels & Deals Games 

Inc. request for intervention. In the alternative, Reels & Deals Games, Inc. asked to 

participate as amicus curiae pursuant to 25 C.F.R. 5 577.12(f). Presiding Official Parrett 

authorized attorneys James Trucks and Candace Stewart-Magee to participate in the 

capacity of amicus curiae on behalf of the company. Trucks and Stewart-Magee also 

represented the Ponca Tribe prior to the settlement of that Tribe's appeal. After the 

settlement, and immediately prior to the hearing, the attorneys renewed Reels & Deals 

Games, Inc.'s request for Intervenor status. 

Presiding Official Reeh determined that their motion was not timely. 

Additionally, Presiding Official Reeh determined that because Reels & Deals Games, Inc. 
was able to meaninghlly participate in this process as amicus curiae, it was not 

necessary to permit its participation as an Intervenor. Assuming, but not deciding the 

question as to whether the company has standing as an Intervenor, we find that the 

Presiding Official's decision to deny the company's request was proper. The motion was 

not timely; the company had the opportunity to participate as amicus curiae; and its 

attorneys were present at counsel table during the hearing. 

3. Preponderance of the Evidence. 

Prior to the hearing, the Cherokee Nation filed a motion urging the Presiding 

Official to apply the "clear and convincing" evidentiary standard rather than the lower 

"preponderance of the evidence" standard traditionally used in administrative 

proceedings on the grounds that due to the unique trust relationship between the United 

States and Indian tribes, the canons of construction require that that statutes affecting 

Indians should be construed liberally in favor of the Indians.'* Appellants asserted that 

this principle should be interpreted to elevate the government's standard of proof to 

"clear and convincing." In denying Appellant's motion, the Presiding Official noted that 

he found no legal precedent under the IGRA, Administrative Procedures Act, or other 

comparable statute that supports Appellant's position. 

The Commission concurs with the recommended decision of the Presiding 

Official on this issue and takes this opportunity to emphasize through reiteration that for 

all present and future administrative appeals of enforcement actions taken pursuant to 25 

C.F.R Part 573, the Chairman bears the burden of proof and the standard of review is 

preponderance of the evidence. Preponderance of the evidence is the degree that a 

28 Montana Y. BlacRfeet Tribe oflndians, 471 U.S. 766, 105 S.Ct. 2399,2403 (1985); Unitedstates v. 162 

MegaMania Gambling Devices, 231 F.3d 713,718 (loth Cir. 2000). 
reasonable person, considering the record as a whole, would accept as sufficient to find 

that a contested fact is more likely to be true than untrue.29 

CONCLUSION 

For all the reasons set forth herein, the Commission, by majority vote, accepts the 

recommendation of the Presiding Official to the extent that the underlying reasoning and 

basis for said recommendations are consistent with that set forth herein. Accordingly, it is 

the decision of the majority that the evidence shows, by a preponderance, that the game 

Reels and Deals constitutes a Class Ill gaming device, the play of which is prohibited by 

the Indian Gaming Regulatory Act in gaming operations on Indian lands in the absence of 

an approved tribal-state compact. Since no such tribal-state compact exists with regard to 

this matter, the underlying Notice of Violation and Closure Order must be sustained. 

29 In the Matter of JPW Consultants, Inc., Docket Nos. NIGC 97-498-8, Notice of Decision and Order in 

the Matter of JPW Consultants, Inc. 

18 
NOTICE AND ORDER 

Please take notice that it is the decision of the National Indian Gaming 

Commission, by majority vote, that the game described herein is a Class III gambling 

machine and that operation of the game constitutes Class III gaming activity. Class III 

gaming activity on Indian lands is not lawful under 25 U.S.C. 2710(d) unless conducted 

in conformance with a tribal-state compact. Inasmuch that Appellant tribe does not have 

a compact with the State of Oklahoma that would permit operation of such game, such 

operation constitutes a violation of the Indian Gaming Regulatory Act. 

Now, therefore, the National Indian Gaming Commission orders: 

That Appellant shall cease and desist from operation of the games described herein, and 

the following orders of temporary closure issued by the Chairman of the National Indian 

Gaming Commission shall become permanent as of the date hereof: 

NOVICO-5-99 

FOR THE NATIONAL INDIAN GAMING COMMISSION 

Date: May 24,2002 

7-a b, OK,) 

Teresa Poust 

Vice ~h&an Commissioner