EXECUTIVE OFFICES OF TRIBAL COUNCIL 

August 19,2013 

VL4 e-mail to rea.review@niec.eov 

Tracie Stevens, Chairperson 

Daniel Little, Associate Commissioner 

National Indian Gaming Commission 

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

Washington, DC 2005 

RE: COMMENTS OF THE SOBOBA BAND OF LUISENO INDIANS ON THE NIGCS 

PROPOSAL TO REINTERPRET THE STATUS OF "ONE-TOUCH" ELECTRONIC, 

COMPUTER OR OTHER TECHNOLOGIC AIDS TO CLASS I1 BINGO GAMES 

Dear Chairperson Stevens and Commissioner Little: 

Below please find comments on behalf of the Soboba Band of Luiseno Indians ("Tribe") 

on the National Indian Gaming Commission's ("NIGC" or "Commission") proposal to recognize 

as Class I1 "server based electronic bingo system games that can be played utilizing only one 

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

strongly supports the NIGC's proposal, which is fully consistent with the text of the Indian 

Gaming Regulatory Act ("IGRA"), the legislative history, the NIGC's regulations and applicable 

case law. 

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 permissible 

electronic, computer or other technologic aid to Class I1 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 I11 

gaming 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 Soboba Band of Luiseiio Indians 
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August 2,2013 

Page 2 

hereby supports the NIGC's proposed reinterpretation of former Chairman Hogen's erroneous 

interpretation of what IGRA defines as "bingo" or "games similar to bingo." 

COMMENTS 

REINTERPRETATION OF THE CONCLUSIONS EXPRESSED BY 

CHAIRMAN HOGEN IN HIS JUNE 4,2008 LE'ITER IS APPROPRIATE 

BECAUSE THOSE CONCLUSIONS WERE IN EXCESS OF CHAIRMAN 

HOGENtS STATUTORY AUTHORITY, ARBITRARY, CAPRICIOUS 

AND CONTRARY TO LAW. 

Under IGRA, Indian tribes are the primary regulators of Class I1 gaming. 25 U.S.C. 5 

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

of aids to Class I1 bingo games are, in the first instance, left to tribal gaming agencies. In this 

context, IGRA significantly restricts the grounds on which the Chairman may disapprove a tribal 

gaming ordinance or amendment. 

Specifically, 25 U.S.C. 5 2710(b)(2) provides that "[tlhe Chairman shall approve any 

tribal ordinance or resolution concerning the conduct, or regulation of Class I1 gaming on the 

Indian lands within the tribe's urisdiction if such ordinance or resolution provides that [certain i specific matters are addressed I." Further, 25 U.S.C. 5 2710(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 NIGCts implementing regulations, 25 C.F.R. Part 522, 

contain the same limitation. 

The listed requirements found in 25 U.S.C. 5 2710@) and the NIGCts implementing 

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

permitted electronic aids to Class I1 games. Consequently, Chairman Hogen exceeded his 

statutory authority in disapproving an amendment to the Metlakatla Indian Community's Gaming 

Ordinance on grounds other than those permitted by IGRA or the NIGCts 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): 

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 of the environment and public health 

and safety, and licensing and background investigations. 25 U.S.C. 5 2710(b)(2). 
National Indian Gaming Commission 

August 2,2013 

Page 3 

the court rejects plaintiff's contention that every ordinance must be 

approved or disapproved by the NIGC. An amendment to an 

ordinance 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. 5 2710@)(2), as incorporated through 25 U.S.C. 5 

27lO(d)(l)(A) and in 25 C.F.R. Part 522. 

Accordingly, even if there were no other reasons to reinterpret Chairman Hogen's 

decision, his consideration of factors unauthorized by - and contrary to - express statutory 

language warrants reinterpretation of his decision. 

11. IGRA DOES NOT REQUIRE THAT TECHNOLOGIC AIDS TO CLASS I1 

BINGO REQUIRE ANY SPECIFIC MINIMUM NUMBER OF 

"TOUCHES" OR ANY MINIMUM TIME FOR GAME PLAY, AS LONG 

AS THE GAME BEING PLAYED MEETS THE STATUTORY 

DEFINITION 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 I1 gaming on its lands without a tribal-state compact if the 

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. 

5 2710@). 

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

The term "Class I1 gaming" means - 

(i) the game of chance commonly known as bingo (whether or not 

electronic, computer, or other technologic aids are used in 

connection therewith) - 

(I) which is played for prizes, including monetary 

prizes, with cards bearing numbers or other designations, 

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

or designations when objects, similarly numbered or 

designated, are drawn or electronically determined, and 

(111) in which the game is won by the first person 

covering a previously designated arrangement of numbers 
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or designations on such cards, including (if played in the 

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

instant bingo, and other games similar to bingo, and . . . 

(B) The term "Class I1 gaming" does not include - 

(i) any banking card games, including baccarat, chemin 

de fer, or blackjack (21), or 

(ii) electronic or electromechanical facsimiles of any 

game of chance or slot machines of any kind. 

25 U.S.C. $ 2703(7)(A) - (B). 

If a game of chance (that is not a Class I game) is not a Class I1 game, it is defined as 

Class I11 and may only be played if and as permitted by an approved tribal-state compact or a set 

of Secretarial procedures that is in effect. 25 U.S.C. 55 2703(8), 2710(d). 

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

further guidance in determining what constitutes Class I1 gaming. These regulations, found at 25 

C.F.R. $502.3, track IGRA's statutory definition and define Class I1 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 a 

designated pattern on such cards; 

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

punch boards, tip jars, instant bingo, and other games similar to 

bingo. 
National Indian Gaming Commission 

August 2,2013 

Page 5 

C.F.R. 

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). The 

regulations 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 

(3) Is operated in accordance with applicable Federal 

communications law. 

(b) Electronic, computer or other technologic aids include, but are 

not limited to, machines or devices that: 

(1) Broaden the participation levels in a common game; 

(2) Facilitate communication between and among 

gaming 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 and/or readers, telephones, cables, 

televisions, screens, satellites, bingo blowers, electronic player 

stations, or electronic cards for participants in bingo games. 

25 C.F.R. 5 502.7. 

Electronic or electromechanical facsimile means a game played in 

an electronic or electromechanical format that replicates a game of 

chance by incorporating all of the characteristics of the game, 

except when, for bingo, lotto, and other games similar to bingo, the 

electronic or electromechanical format broadens participation by 
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August 2,2013 

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allowing multiple players to play with or against each other rather 

than with or against a machine. 

C.F.R. 5 502.8. 

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

location as bingo (as defined in 25 USC 5 2703(7)(A)(i)) 

constituting a variant on the game of bingo, provided that such 

game is not house banked and permits players to compete against 

each other for a common prize or prizes. 

25 C.F.R. 5 502.9. 

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

measure to bring the Commission's rules into line with federal court decisions that interpreted 

IGRA adversely to the NIGC1s stated position. As stated by the NIGC in the preamble to its 

revised definition, "The uncomfortable result is that the Commission cannot faithfully apply its 

own [previous] regulations and reach decisions that conform with the decisions of the courts." 67 

Fed. Reg. 41,166,41,168 (June 17,2002). 

IGRA expressly permits the game of bingo to be played with "electronic, computer, or 

other technologic aids." 25 U.S.C. 5 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. 9 502.7. 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. 5 502.7(a)(l). 

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 25 

C.F.R. 5 502.7. Significantly, Chairman Hogen did not appear to dispute that the use of an autodaub or "one-touch" feature falls within the NIGC1s own broad definition of "aid." Rather, 

Chairman Hogen appeared to contend that (1) the auto-daub feature is inconsistent with the 

statutory 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 I11 "facsimile." As detailed below, both of these 

contentions were - and are - wrong. 

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

August 2,2013 

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

from qualifying as bingo, even if it satisfies IGRA1s 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 the 

competition in the game and of the language in IGRA's definition 

of 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 

the first to cover a previously designated winning pattern. The 

game as described eliminates the element of competition that is a 

statutory requirement for bingo. The game starts - and ends - with 

the push of a button. It is not possible to sleep a bingo or fail to 

claim a prize. 

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 if the 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 of the game. 

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

courts have evaluated what it means for a player to "cover" the numbers on a bingo card when 

electronic covering is used. U.S. v. 103 Electronic Gambling Devices (N.D. Cal. Nov. 23, 1998) 

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

argument that MegaMania failed to satisfy the definition of bingo because of its electronic daub 

feature, the court stated that "[tlhere is nothing in IGRA that requires a player to independently 

locate each called number on each of the player's cards and manually %over1 each number 

independently and separately." Id. To the contrary, the court emphasized that IGRA "merely 
National Indian Gaming Commission 

August 2,2013 

Page 8 

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@) is irrele~ant.~ 

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. 

162 MegaMania Gambling Devices (10th Cir. 2000) 23 1 F.3d 713; United States v. 103 

Electronic Gambling Devices (9th Cir. 2000) 223 F.3d 1091. Neither Chairman Hogen nor the 

NIGC itself lawfully may add requirements to the three criteria enacted by Congress and deemed 

sufficient by federal courts to constitute bingo as permitted by IGRA. 

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 based 

on the sequence of bingo numbers for that game and the other cards in play. The "first player" is 

the one who covers the winning bingo pattern in the fewest bingo numbers drawn/determined for 

that game. Nothing about the one-touch (auto-daub) feature changes the quantity of bingo 

numbers 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 covered 

when similarly numbered objects are drawn or electronically determined. The one-touch feature 

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

* Other than his "view" and a 2003 opinion 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 of law. See, Seneca-Cayuga Tribe of Oklahoma v. National Indim 

Gaming 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 of the 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 its 

argument that IGRA's language implies a specific kind of either physical or electronic participation. Given the 

brevity of its 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 I1 

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 improperly 

failed to apply the Indian canon of construction in his interpretation of IGRA and the Commission's own regulations. 

See, e.g., Choate v. Trapp, 224 U.S. 665 (1912). 
National Indian Gaming Commission 

August 2,2013 

Page 9 

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 player 

is competing against the other players in the game to be the first to cover a game-winning pattern 

on hislher 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 competition 

between 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 electronic 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 to 

sleep a bingo in order for a game to come within the statutory definition of bingo. 

The player performs the "cover" function through the use of an electronic aid: the 

equipment through which the player participates in the game. Although the player is assisted, 

the covering action is still that of the player, who initiates the one-touch feature by pushing a 

button on the equipment at the beginning of the bingo game. In other words, the equipment is 

acting on the player's behalf, not independent of the player. As the NIGC1s Office of General 

Counsel previously has acknowledged, IGRA does not prevent players from using an agent to 

cover their cards, the actions of the 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 

3 It is noteworthy that "[rladically 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." Pfaff v. U.S. 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 ("[aln 

agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to 

considerably less deference' than a consistently held agency view."); see also, e-g,, Natural Res. Def: Council v. U.S. 

EPA (9th Cir. 2008) 526 F.3d 591 (vacating EPA rule because it was inconsistent and conflicted with EPA1s prior 

interpretation of the statute). 
National Indian Gaming Commission 

August 2,2013 

Page 10 

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 that 

the 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 of the 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 therewith. 

Accordingly, the statutory definition of bingo - not Chairman Hogen's concept of "tradition" - is 

what determines whether a game meets IGRA's definition of Class I1 bingo. As explained by the 

Ninth Circuit: 

The Government's efforts to capture more completely the Platonic 

"essence" of traditional bingo are not helpful. Whatever a 

nostalgic inquiry into the vital characteristics of the game as it was 

played in our childhoods or home towns might discover, IGRA's 

three explicit criteria, we hold, constitute the sole legal 

requirements for a game to count as class I1 bingo. 

There would have been no point to Congress's putting the three 

very specific factors in the statute if there were also other, implicit 

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

one knows anything about bingo, so why would Congress have 

included them if they were not meant to be exclusive? 

Further, IGRA includes within its definition of bingo "pull-tabs, ... punch boards, tip jars, [and] instant bingo . . . [if played in the 

same location as the game commonly known as bingo]," 25 U.S.C. 

5 2703(7)(A)(i), none of which are similar to the traditional . 

numbered ball, multi-player, card-based game we played as 

children. . . . Instant bingo, for example, is as the Fifth Circuit 

explained in Julius M. Israel Lodge of B'nai B'rith No. 2113 v. 

Commissioner, 98 F.3d 190 (5th Cir. 1996), a completely different 

creature from the classic straight-line game. Instead, instant bingo 

is a self-contained instant-win game that does not depend at all on 

balls drawn or numbers called by an external source. See id. at 

192-93. 
National Indian Gaming Commission 

August 2,2013 

Page 11 

Moreover, 5 2703 (7)(A)(i)'s definition of class I1 bingo includes 

"other games similar to bingo," 25 U.S.C. 5 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 I1 game, as previously di~cussed.").~ 

While Congress was clear that tribal bingo is not to be limited by traditional notions of 

the game, it was equally clear that it intended for tribes to have "maximum flexibility" to use 

"modem" technology to conduct bingo games. S. Rep. No. 100-446 at 9 (1988), reprinted in 

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

described in the Amendment predates passage of IGRA in 1988. Moreover, one-touch 

electronic bingo systems had been used for many years before June, 2008. 

- - - - - - - - - - - -- - - - - - - -- - - 

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

[One] commenter suggested 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 the Commission, Congress enumerated those 

games that are classified as class I1 gaming (with the exception of "games 

similar to bingot1). Adding to the statutory criteria would serve to confuse rather 

than clarify. Therefore, the Commission rejected this suggestion. 

[Another] commenter questioned whether the definition 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. If it had, it could have 

spelled 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 defining class 

I1 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 I1 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 game 

not be a house banking game as defined in the regulations. The Commission 

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

games in class I1 

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 of the invention is to provide an electronic card and board 

game which relieves the player from the tedious and error-prone operation of 
National Indian Gaming Commission 

August 2,2013 

Page 12 

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 I1 bingo game into a Class I11 electronic facsimile 

or gaming device. Submitted herewith as Exhibit 1 is a copy of a June 24,2008 letter from 

Gaming 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 the 

game 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 

tribes have "maximum flexibility" to use "modern" technology to play bingo games, and in its 

statutory authorization for tribes to use such aids. As such, it plainly was incorrect, and the 

NIGC should correct that error. 

Finally, Chairman Hogen argued that the use of the auto-daub feature prevents the game 

from being a "game similar to bingo." The Soboba Band of Luiseiio Indians obviously disagrees 

with 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. 

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

BINGO INTO A CLASS I11 FACSIMILE. 

manual marking matches on the game card. In particular, it is the objective of 

the 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 of the game, whereas the caller has only to push a 

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

provide a design of the game board which facilitates a broad and easy selection 

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

board. An additional objective of the invention is to preclude unauthorized or 

untimely change of the 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 if in fact the board before him comes up with a winning combination." U.S. Patent No. 

2,760,619,8128156. Such auto-daub features increased speed and enjoyment of play and had the added benefit of 

ensuring honest and accurate play. Moreover, linked electronic gaming systems were well-known before 1988. See, 

e.g., Video Consultants of Nebraska 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.") 
National Indian Gaming Commission 

August 2,2013 

Page 13 

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

of the game described by the [Metlakatla] Tribe's amended ordinance is a Class I11 'facsimile of 

any 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 I1 gaming does not include "electronic or electromechanical 

facsimiles of any game of chance," 25 U.S.C. 5 2703(7)(B)(ii), however, the term "facsimile" is 

not defined by the statute. The NIGC has defined facsimile to mean: 

Electronic or electromechanical facsimile means a game played in 

an electronic or electromechanical format that replicates a game of 

chance by incorporating all of the characteristics of the game, 

except when, for bingo, lotto, and other games similar to bingo, the 

electronic or electromechanical format broadens participation by 

allowing multiple players to play with or against each other rather 

than with or against a machine. 

25 C.F.R. 5 502.8. 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 I1 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 

additional participation is required, the NIGC's own definition would permit "the use of gaming 

equipment that wholly incorporates and replicates all of the elements and features of a game of 

chance. " 

Setting aside, for the moment, the impropriety of Chairman Hogen's disregard for the 

NIGC's own regulation, the flaw in his position is that a format that requires players to play with 

or against each other necessarily is one that does not incorporate or replicate all of the features of 

the bingo game 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 - is 

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

promulgates." Sameena Inc. v. United States Air Force (9th Cir. 1998) 147 F.3d 1148, 1153; see also, e-g., Portlnnd 

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 of its 

existing regulations, or Congress changes the law). 
National Indian Gaming Commission 

August 2,2013 

Page 14 

not electronic or auto ma ti^.^ 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 to 

bingo in an electronic or electromechanical format, even a wholly 

electronic format, provided that multiple players are playing with 

or against each other. These players may be playing at the same 

facility or via links to players in other facilities. A manual 

component to the game is not necessary. What IGRA does not 

allow with regard to bingo, lotto, and other games similar to bingo, 

is a wholly electronic version of the game that does not broaden 

participation, but instead permits a player to play alone with or 

against a machine rather than with or against other players. 

67 Fed. Reg. 41,166,41,171 (June 17,2002)? 

The NIGCfs 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 that 

Congress did not intend the facsimile prohibition to restrict the use of electronics to play games 

that meet IGRAts definition of bingo. Instead, the term "facsimile" was used as shorthand for 

games where, unlike true bingo games, the player plays only with or against the machine and not 

with or against other players. As explained in the Senate Report: 

The Committee specifically rejects any inference that tribes should 

restrict class I1 games to existing games [sic] sizes, levels of 

participation, or current technology. The Committee intends that 

tribes be given the opportunity to take advantage of modern 

methods of conducting class I1 games and the language regarding 

technology is designed to provide maximum flexibility. In this 

regard, the Committee recognizes that tribes may wish to join with 

other tribes to coordinate their class I1 operations and thereby 

enhance the potential of increasing revenues. For example, linking 

In contrast, this likely would not be the case if the 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 be 

said to be a facsimile. 

Contrary to the NIGCts 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 the 

courts 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 I1 status of a game in the years 

since the NIGC revised its definition regulations in 2002. 
National Indian Gaming Commission 

August 2,2013 

Page 15 

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 such 

technology does not change the fundamental characteristics of the 

bingo or lotto games and as long as such games are otherwise 

operated in accordance with applicable Federal communications 

law. In other words, such technology would merely broaden the 

potential participation levels and is readily distinguishable from the 

use of electronic facsimiles in which a single participant plays a 

game with or against a machine rather than with or against other 

players. 

S. Rep. No. 100-446 at 9 (1988), reprinted in 1988 U.S.C.C.A.N. 3071,3079. 

Contrary to Chairman Hogents assertion, therefore, the use of technology, even if it 

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

necessarily make a bingo game a "facsimile." Rather, a bingo game played using technologic 

aids (which are expressly permitted by 25 U.S.C. 5 2703(7)(A)(i)), only becomes a facsimile if 

the technology permits the player to play "with or against a machine rather than with or against 

other players. "' 

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

that MegaMania is not an exact copy or duplicate of bingo and thus not a facsimile because the 

game of bingo is not wholly incorporated into the player station; rather, the game of bingo is 

independent from the player station, so that the players are competing against other players in the 

same bingo game and are not simply playing against the machine. See 103 Electronic Gambling 

Devices, 223 F.3d at 1100; I62 MegaMania Gambling Devices, 23 1 F.3d at 724. lo The autodaub aid feature does not change this. 

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 that 

does 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 that 

permitted only a single player to play against the ball draw would be a facsimile. rn 

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

Circuit: 

Courts reviewing the legislative history of the Gaming Act have recognized an 

electronic, computer or technological aid must possess at least two 

characteristics: (1) the "aid" must operate to broaden the participation levels of 
National Indian Gaming Commission 

August 2,2013 

Page 16 

Thus, Chairman Hogen was wrong when he asserted that some additional participation is 

required to prevent the game from becoming a facsimile of bingo. Instead, the NIGC's actual 

definition of facsimile correctly recognizes that, regardless of the number of electronic aids used 

in a bingo game, the game does not become a facsimile if "the electronic or electromechanical 

format broadens participation by allowing multiple players to play with or against each other 

rather than with or against a machine." 25 C.F.R. 5 502.8. As long as there are players playing 

against each other, the game is not a facsimile, it is bingo, a Class I1 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 electronically linked bingo game. It does nothing to lessen the 

competition among players to be the first to obtain a winning pattern, nor does it do anything to 

lessen 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 

true when that interpretation is not "plainly erroneous or inconsistent with the regulation." Auer 

v. Robbins (1997) 519 U.S. 452,461 (citation omitted). Moreover, when the current 

interpretation runs counter to the intent at the time of regulation's promulgation, Auer deference 

is unwarranted. Gonzalez v. Oregon (2006) 546 U.S. 243,258 (citing Thomas Jefferson Univ. v. 

Shalala (1999) 512 U.S. 504,512). Auer deference is only warranted when the regulation itself 

participants in a common game, see Spokane Indian Tribe v. United States, 972 

F.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 of Mission Indians v. 

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

512 U.S. 1221 (1994) (Cabazon 111). Courts have adopted a plain- meaning 

interpretation of the term "facsimile" and recognized a facsimile of a game is 

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

of Mission 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 Int.] Dictionary 813 (1976))), cert. denied, 516 

U.S. 912 (1995); Cabazon 11,827 F. Supp. at 32 (same); Cabazon 111, 14 F.3d at 

636 (stating "[als commonly understood, facsimiles are exact copies, or 

duplicates."). 

162 MegaMania Gambling Devices, 231 F.3d at 724. 
National Indian Gaming Commission 

August 2,2013 

Page 17 

is ambiguous and open to interpretation. As the Supreme Court has made clear, when the 

language of a regulation is clear, an agency cannot effectively amend the regulation under the 

guise of "interpretation." See, Christensen v. Harris County (2000) 529 U.S. 576,588 (holding 

that "[tlo defer to the agency's position would be to permit the a ency, under the guise of 

interpreting a regulation, to create de facto a new regulation.")." As such, Chairman Hogen's 

disregard of the plain language of the NIGC's current definition under the guise of interpretation 

should not be given any deference. 

CONCLUSION 

For the reasons set forth above, Soboba Band of Luiseno Indians urges the NIGC to 

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

Respectfully Submitted, 

Soboba Band of Luiseno Indians 

cc: 

Tribal Council - Soboba Band of Luiseno Indians 

Forman & Associates - Soboba Band of Luiseno Indians Legal Counsel 

Marcia Green - Soboba Band of Luiseno Indians Managing Attorney 

Soboba Tribal Gaming Commission 

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 Pfaf, 

88 F.3d at 748 (citing NLRB v. Bell Aerospace Co., 416 U.S. 267,294 (1974)). As the Ninth Circuit made clear, 

[sluch a situation may present itself where the new standard, adopted by adjudication, departs radically from the 

agency's previous interpretation of the 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.