Mr. Gary Watkins 

WorldLink Gaming Corporation 

1789 E. 71st Street 

Tulsa, Oklahoma 74136 

Dear Mr. Watkins: 

This letter is in response to your inquiry as to whether the National Indian Gaming Co,mmission 

regards the game "Rocket Bingo - Classics Bingo Game" as a Class I1 or Class I11 @me under 

the Indian Gaming Regulatory Act (IGRA). We have reviewed the materials you submitted and 

conclude that you may play your game, as discussed below, as a Class I1 game. 

The Rocket Bingo - Classics Bingo Game (Classics Bingo Game) is described in the literature 

you provided as a live bingo game conducted at the Muskogee (Creek) Nation. This live bingo 

game is electronically transmitted, as it is played, to other Indian operator halls to allow 

greater player participation in the game. The Classics Bingo Game uses multi-hall linking 

technology similar to the MegaBingo system which was deemed Class I1 by the Commission on 

July 26, 1995. The balls are drawn one at a time by a live bingo caller who keys the number 

of the drawn ball into a computer processor. The Classics Bingo game is broadcast to and 

played on pentium processors connected to computer monitors. A card reader, also connected 

to the pentium processor, allows the pentium processor to recognize the player and the amount 

of credit that has been purchased by the player when the player inserts an identification card 

into the card reader. 

To play the game, players purchase credit from a clerk in the participating Indian gaming 

facility. Once the credit has been purchased, the player proceeds to a pentium processor 

terminal and inserts his or her player identification card into the card reader. This action allows 

the pentium processor to identify the player and recognize how much credit has been purchased 

by the player. Once the identification is established the player may purchase bingo cards for a 

pre-determined period of time on the computer monitor. Customers may purchase up to thirtysix (36) cards on the computer monitor. Card purchases are deducted from a player's credit 

balance. The customer pays only once for each card and plays that card throughout the game. 

The Classics Bingo game is played for traditional patterns such as the Letter X, Small Picture 

Frame, Straight Line Bingo, Four Corners Patterns, and Blackout. Which games will be played 

is determined by the system operator at the Muskogee (Creek) Nation and broadcast to each 

computer monitor prior to play. After all the cards have been purchased, the game begins with 

a live ball draw at the Muskogee (Creek) Nation. Players must manually daub their cards after 

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each ball is drawn by touching the computer monitor. The live ball draw continues until a 18111-~ player touches the computer monitor to declare bingo, thereby stopping the game and claiming 

the prize. If a player does not declare bingo, the game will proceed until a bingo is declared. 

After bingo is declared, the game is over and a new game begins. 

ANALYSIS 

THE IGRA REGULATIONS AND THE JOHNSON ACT 

"IGRA established the Commission to regulate Indian gaming, and specifically authorized the 

Commission to promulgate regulations and guidelines necessary to implement the provisions of 

the Act. See 25 U.S.C. $6 2704,2706(b)(lO)." Shakopee Mdewakanton Sioux Community v. 

Ho~e, 16 F.3d 261, 263 (8th Cir. 1994): In April 1992, the Commission issued definition 

regulations. 

Those definition regulations establish: * 

Class I1 gaming means: 

(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 an .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; 

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

jars, instant bingo, and other games similar t~ bingo . . . . 

25 C.F.R. 5 502.3. 

Class III gaming means all forms of gaming that are not class I gaming or class 

I1 gaming, including but not limited to: 

(b) Any slot machines as defined in 15 U.S.C. 1171(a)(l) and electronic or 

electromechanical facsimiles of any game of chance . . . . 

25 C.F.R. 3 502.4. 

Electronic, computer or other technologic aid means a device such as a computer, 

telephone, cable, television, satellite or bingo blower and that when used-- 
(a) Is not a game of chance but merely assists a player of the playing of a 

game: 

(b) Is readily distinguishable from the playing of a game of cbmm on an 

electronic or electromechanical facsimile; and 

(c) Is operated according to applicable Federal communications law. 

25 C.F.R. 5 502.7. 

Electronic or electromechanical facsimile means any gambling device as defined 

in 15 U.S.C. 1171(a)(2) or (3). 

25 C.F.R. 5 502.8. 

Games similar to bingo means any game that meets the requimmntr for bingo 

under Sec. 502.3(a) of this part and that is not a house banking game under Sec. 

502.1 1 of this part. * - 

25 C.F.R. 5 502.9. 

The term "gambling device" is defined in the Johnson Act, 15 U,S.C. Sec. 

1171(a), as: 

(1) any so-called "slot machine" or any other machine or mechanical device an 

essential part of which is a drum or reel with insignia thereon, d (A) which 

when operated may deliver, as the result of the application of an element of 

chance, any money or property or (B) by the operation of which a person may 

become entitled to receive, as the result of the application of an element of 

chance, any money or property; or 

(2) any other 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 the application 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; or 

(3) any subassembly or essential part intended to be used in connection with any 

such machine or mechanical device, but which is not attached to any such 

machine or mechanical device as a constituent part. 

BINGO 

Classics Bingo tracks the Class I1 definition of bingo in IGRA. Classics Bingo is the game 

of chance commonly known as bingo, broadcast from a point of origin using computers and 
other electronic equipment. The game is played for monetary prizes, with cards bearing 

numbers or other designations. The holder of the cards is required to daub their cards to cover 

such numbers or designations when a bingo ball, similarly numbered or designated, is drawn. 

The game is won by the first person covering a previously designated arrangement of numbers 

or designations on such cards.' Therefore, the games meets the basic regulatory criteria to come 

within the definition of bingo, a class I1 game if used with a technological aid rather than a 

gambling device. 

GAMBLING DEVICES UNDER 15 U.S.C. 5 1 171 

Specifically included within the regulatory definition of Class 111 is "any slot machines as defined 

in 15 U.S.C. 1171(a)(l) and electronic or electromechanical facsimiles of any game of chance." 

Facsimiles is defined as any gambling device under 15 U.S.C. $$ 1171(a)(2) and (3). 

Therefore, if the bingo game is using a gambling device, it would be transformed under NIGC 

regulations into a Class 111 game. 

We are not prepared, at this time, to decide whether the game uses gambiing**devices. 

Furthermore, we believe that the manufacturer has made every effort to develop this game with 

the aid of technology rather than by using gambling devices. Therefore, we have determined 

that the Tribes may play the Classics Bingo game without risk of an enforcement action by the 

NIGC. 

Please be advised that this legal opinion is advisory in nature only and that it may be superseded, 

' w reversed, revised or reconsidered by a subsequent General Counsel or Chairman of the 

Commission. Furthermore, if there are any changes made to the game as described, such 

changes might materially alter our conclusion. 

Finally, by issuing this opinion, we do not speak on behalf of the Department of Justice or the 

United States Attorneys who share enforcement responsibilities with the NIGC over gambling 

devices. 

Sincerely, 

Penny I. Coleman 

Acting General Counsel 

I While the question has arisen as to whether other interim games may be considered 

bingo, that question is not presently before us. Therefore, we decline to opine on that question 

at this time. 

TABLE OF CONTENTS . ~. . . . . . Page .. , . 

.. . Statement ...................................................................... i.. 

1 ~. . , 

': Discussion ...................................................................... 8 

Conclusion ................. : ................................................... 21 

TABLE OF AUTHORITIES 

Cases: 

Calijornia v. Cabazon Bank of Mission Indians, 

480 U.S. 202 (1987) ........................ 4, 5, 7, 12, 13, 14, 17 

Cheyenne River Sioux Tribe v. South Dakota, 

3 F.3d 273 (8th Cir. 1993) ........................................ 6, 19 

Citizen Band Potawatomi Indian Tribe v. Green, 

995 F.2d 179 (10th Cir. 1993) ................................... 19 

Mashantucket Pequot Tribe v. Connecticut, 913 

F.2d 1024 (2d Cir. 1990), cert. denied, 499 U.S. 975 

(1991) ............ : ................................................ 7, 9, 16, 17 

Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 

1422 (10th Cir. 1994), cert. dismissed, 116 S. Ct. 435 

(1995)) cert. granted, 116 S. Ct. 1410 (1996) ............ 18 

Pueblo of Santa Am v. Kelly, 104 F.3d 1546 (10th 

Cir. 1996)) petition for cert. pending, No. 96-1617 ... 9 

Seminole Tribe of Florida v. Florida, 116 S. Ct. 

1114 (1996) .............................................................. 3, 18 

United States v. Sisseton-Wahpeton Sioux Tribe, 

897 F.2d 358 (8th Cir. 1990) .................................... 19 

Virginia Military Institute v. United States, 508 

U.S. 946 (1993) ........................................................ 20 

Western Telcon v. Calqornia State Lottery, 13 Cal. 

4th 475,917 P.2d 651, 53 Cal. Rptr. 2d 812 (1996) .... 7 

Constitution, statutes and regulation: 

U.S. Const. 

Amend. X ............................................................... 18 

Amend. XI .............................................................. 3 

Act of Aug. 15, 1953, ch. 505, 57 Stat. 588 (hb. L. No. r 

280) .................................................................... 4, 13, 14 

3 

negotiate in good faith, the Tribe may initiate an action 

against the State in federal district court. 25 U.S.C. 2710 

(d)(7)(A)(i). If the court finds that the State has failed to 

negotiate in good faith, it must order the State and the 

Tribe to conclude a compact within 60 days. 25 U.S.C. 2710 

(d)(7)(B)(iii). If the State and Tribe fail to conclude a 

compact within that period, each party must submit its 

last best offer to a court-appointed mediator, who is to 

select one of those two proposals. 25 U.S.C. 2710(d)(7)(B) 

(iv). If the State consents to the mediator-selected proposal, it is treated as a Tribal-State compact. 25 U.S.C. 

2710(d)(7)(B)(vi). If the State does not consent, the Secret- of the Interior may prescribe procedures for Class 111 

gaming. 25 U.S.C. 2710(d)(7)(B)(vii). Under this Court's 

decision in Seminole Tribe of Florida v. Florida, 116 S. 

Ct. 1114 (1996), a State has a right to avoid a Tribe's suit 

in federal court by asserting its Eleventh Amendment 

immunity. 

2. Seven Indian Tribes requested the State of California to negotiate a compact permitting the operation of (1) 

stand-alone electronic games, such as electronic pull tabs, 

video poker, video bingo, video lotto and video keno; and (2) 

banked and percentage card games. Pet. App. 10-11 & n.9. 

California criminal law prohibits the operation of slot 

machines, Cal. Penal Code 9 330a (West 1988), as well as 

' banked and percentage card games, id. 9 330. The State 

refused to enter into negotiations on the ground that the 

Tribes' proposed games fall within those state statutory 

prohibitions. Pet. App. 11. 

The seven Tribes and the State agreed to seek a judicial determination of whether California "permits" the 

Tribes' proposed gaming activities within the meaning of 

25 U.S.C. 2710(d)(l)(B), such that the activities could be 

lawful under IGRA if they were conducted in conformance 

with a Tribal-State compact. See Pet. 5. The seven Tribes 
inquiry into the State's public policy regarding the 

proposed game. Pet. App. 43-45. 

negotiation under the first part of the test. Pet. App. 46- 

49. The court was of the view that "the State has 

authorized the State Lottery to operate electronic games 

virtually identical to the electronic games requested by 

the Tribes," and on that basis it concluded that IGRA expressly "requires that the use of electronic equipment on 

Turning to the second group of games the Tribes proposed, the district court noted that the State does not 

those games are not subject to negotiation under the first 

part of the test it had fashioned. Pet. App. 50-51. Turning 

to the second part of the test, the court did not find a clear 

public policy against all banked or percentage card games, 

since California permits many banked and percentage non- 

'card games (such as the state lottery and parimutuel wagering on horse racing) and allows card rooms to operate 

card games on a non-banked and non-percentage basis. Id. 

at 52-54. The court held, however, that banked and percentage card games using traditional casino game themes 

violate California's public policy against casino gaming. 

rooms from operating casino card games. Id. at 54-55. I 
form of Class In gaming activity simply because it has legalized another, albeit similar form of gaming." Pet. App. 

18. Under the statutory text, the court explained, "a state 

need only allow Indian tribes to operate games that others 

can operate, but need not give tribes what others cannot 

have." Id. at 19. 

The court of appeals rejected the Tribes' reliance on 

Mashantucket Pequot Tribe v. Connecticut, 913 FA 1024 

(2d Cir. 1990), cert. denied, 499 U.S. 975 (1991), in which 

the Second Circuit held that Connecticut was required to 

negotiate over games of chance because Connecticut 

permitted charities to operate such games (albeit subject 

to stringent limitations) during "Las Vegas nights."_ Pet. 

App. 22 n.13. The court concluded that the Second Circuit 

reached the "correct result" in Mashantucket, because 

"IGRA's text plainly requires a state to negotiate with a 

Tribe over a gaming activity in which the state allows 

others to engage." Ibid. Although the Second Circuit relied on a reference to Cabaxon's criminalfprohibitory test 

in the legislative history of IGRA discussing Class II 

gaming (see 913 F.2d at 1029-1030), the court below viewed 

that aspect of the Second Circuit's opinion as unnecessary 

to support the result in that case. Pet. App. 22 n.13. 

Based on its analysis of IGRA's text, the court of 

appeals "affirm[ed] the district court's judgment that the 

State need not negotiate over banked or percentage card 

games with traditional casino themes." Pet. App. 23. The 

court remanded to the district court "to consider the 

limited question of whether California permits the operation of slot machines in the form of the state lottery or 

13 Cal.4th 475,917 P2d 651, 53 Cal. Rptr. 2d 812 (1996). In that case, 

the California Supreme Court held that a computerized keno game 
activities are * * * located in a State that permits such 

gaming for any purpose by any person, organization or 

entity." As the court of appeals concluded, that statutory 

text makes it unlawful for Tribes to operate forms of Class 

I11 gaming that state law completely prohibits. A State 

therefore has no duty to negotiate with respect to those 

a. The term "permit" can have more than one meaning: 1 

vent." Pet. App. 17 (quoting Black's Law Dictionary at 

1140); see also note 7, infra. The term "permit," however, 

completely prohibits a form of gaming, it does not permit 

it. 

See 96-2162 Gov't C.A. Br. at 11-32, Pueblo of Santa Ana v. Kellu. 

Pequot 'ribe v. Connecticut, 913 F.2d 1024 (2d Cir. 1990), cert. denied, 

499 U.S. 975 (1991); see also 90-871 U.S. Amicus Br. at Pet. Stage at 11- 

15, Connecticut v. Mashantucket Pequot Tribe, cert. denied, 499 U.S. 

975 (1991). The Solicitor of the Interior took a similar position in a 

leeal memorandum for the Assistant Secretarv for Indian Affairs. 

Mashantucket Pequot Tribe after the state &d the ~ri& failed to- reach 

a negotiated com~act. The Solicitor stated that in the event that the 

Ass't Secretary for Indian Affairs 6 (Apr. 19, 1991). The Solicitor's 

memorandum was made available to the public in connection with the 

Secretary's adoption of procedures for gaming by the Mashantucket 

Pequot Tribe (see 56 Fed. Reg. 15,746 (1991)), and we have lodged a 

copy of that memorandum with the Clerk of this Court. 

permits the conduct at issue, subject to regulation, it 

must be classified as civiVregulatory and Pub. L. 280 

does not authorize its enforcement on an Indian 

reservation. 

Applying that terminology of Cabaxon to this case, the 

clear intent of California law concerning the operation of 

banked 'and percentage card games and non-lottery slot 

machines "is generally to prohibit [that] conduct." Those 

state laws therefore would unquestionably have been 

regarded as criminal/prohibitory under Cabaxon prior to 

IGRA's replacement of Public Law 280 as the federal law 

governing what Indian gaming is lawful in California. And 

continuing with the Cabaxon terminology quoted above, 

just as California law does not "generally permit[] the 

conduct [of banked and percentage card games and nonlottery slot machines], subject to regulation," those card 

games and slot machines, if conducted by California 

Tribes, would not be located in a State that "permits such 

gaming for any purpose by any person" within the 

meaning of IGRA. 

In short, nothing in either Cabaxon or IGRA suggests 

that if a court concludes that a form of gaming is completely prohibited by state law, the court should nevertheless engage in a further and independent inquiry into 

whether that form of gaming is consistent with the State's 

"public policy" in a more general sense, in order to determine whether such gaming is a mandatory subject of 

negotiation for the State. Again, Cabaxon's reference to 

"public policy" was simply a "shorthand" description of 

the determination of whether the state law is criminal1 

prohibitory; if it is, that is the end of the inquiry. Where 

the State has a complete criminal prohibition against a 

17 

entire state corpus of laws and regulations governing such 

gaming," id. at 1030-1031, including "the status of the 

sponsoring organization, size of wagers, character of 

prizes, and frequency of operations," id. at 1029. The 

Second Circuit reasoned that, because Connecticut allows 

charitable organizations to operate the specified casino 

games on Las Vegas nights, it "permits" such gaming 

within the meaning of Section 2710(d)(l)(B) and must 

negotiate with the Tribe on how those games may be 

conducted on Indians lands. Id. at 1029-1032. There is no 

inconsistency between the Second Circuit's holding that a 

State must negotiate concerning forms of gaming its laws 

permit, albeit subject to extensive regulation, and the 

Ninth Circuit's holding in this case that a State need not 

negotiate with respect to forms of gaming that its laws 

completely prohibit. To the contrary, the Ninth Circuit in 

this case expressly approved the result reached by the 

Second Circuit in Mashantucket. Pet. App. 22 n.13. 

Petitioners contend (Pet. 13-14) that there is nonetheless a conflict, because the Second Circuit relied on the 

reference in IGRA's legislative history to Cabaxon's 

criminaVprohibitory test. See 913 F2d at 1029-1030. The 

Second Circuit, however, ultimately rested its conclusion 

on the text of 2170(d)(l)(~).~ Moreover, while the Second 

Circuit looked to Cabaxon's criminaVprohibitory test as 

illuminating IGRA9s statutory test of whether a State 

"permits" (for any purpose by any person) the forms of 

gaming that a Tribe proposes, it did not suggest that 

where, as here, that gaming is prohibited under that 

criminaVprohibitory test, a court nevertheless should 

engage in a further, independent inquiry into the State's 

- "public ' policy" concerning that gaming. Accordingly, 

See 913 F2d at 1031-1032 (rejecting Connecticut's reliance on 

cases discussing the Cabazm test on the ground that they did not 

involve IGRA's specific statutory text). 
19 

opposite. Moreover, the Tenth Circuit had previously held 

in Citizen Band Potawatomi Indian Tribe v. Green, 995 

F2d 179, 181 (1993), that a compact may not authorize 

gaming devices that are forbidden by state law. 

Petitioners' assertion (Pet. 17) that there is a conflict 

between the decision below and the Eighth Circuit's 

decision in United States v. Sisseton- Wahpeton Sioux 

Tribe, 897 F.2d 358 (1990), is also incorrect. In that case, 

the Eighth Circuit held that a Tribe could operate a form 

of Class I1 gaming permitted by the State, without complying with all the State's regulatory requirements for 

that game. Id. at 365368. Interpreting language relating 

to Class I1 gaming that is similar to that at issue here, the 

court concluded that Congress "intended to permit a particular gaming activity, even if conducted in a manner 

inconsistent with state law, if the state law merely regulated, as opposed to completely barred, that particular 

gaming activity." Id. at 365. That reasoning is fully 

consistent with the form-specific analysis adopted by the 

court of appeals in this case. 

The Eighth Circuit subsequently adopted a form-specific analysis for Class I11 games in Cheyenne River 

Sioux Tribe v. South Dakota, 3 F.3d 273 (1993). There, 

the court held that the State did not have an obligation 

to negotiate over traditional keno simply because the 

State permitted video keno. Id. at 278-279. The court 

reasoned that "[tlhe 'such gaming' language of 25 U.S.C. 

§ 2710(d)(l)(B) does not require the state to negotiate with 

respect to forms of gaming it does not presently permit." 

Id. at 279. There is therefore no conflict between the 

Eighth and Ninth Circuits concerning the meaning of 

Section 2710(d)(l)(B). 

3. Finally, because the court of appeals remanded to 

the district court to consider "whether California permits 

the operation of slot machines in the form of the state