National Indian Gaming Commission 

CONCURRING OPINION 

In the Matter of the Cherokee Nation of Oklahoma 

NOVICO-5-99 

Docket Nos. NIGC 99-1 

Cherokee Nation - Appellant 

Chairman Deer, concurring: 

I agree with the majority that the presiding official correctly concluded that the 

game "Reels and Deals" is a "gambling device" as that term is defined in 15 U.S.C. § 

1171(a) and that the game Reels and Deals is an electronic game of chance. 

I adopt the Recommendations of the Presiding Official while noting the following 

exceptions to the Recommendations: 

First, the evidence of record does not support a finding that the Giles witnesses 

were able to "consistently win more than they lost." During play in the courtroom 

demonstrations, the Giles cousins never obtained a winning combination of three 

identical icons, despite having practiced for several hours in preparation specifically for 

the demonstration. They secured an individual targeted icon on about five occasions in 

some twenty attempts. Near misses do not constitute wins; there is no reward for 

coming close. The only evidence that the Giles "won more than they lost" is their own 

testimony, unsupported by any objective study. In addition, other testimony indicates 

that when the Giles cousins played the '%eels and Deals" game outside the hearing, they 

did so in a workshop where they build gaming devices. They do not pay to play. In 

monetary terms, because the amount it would have cost the Giles cousins to play is 
undetermined, it is not possible to conclude that they "won more money than they lost." 

Money they would have paid to play the game would be considered money lost. 

In addition, whatever "improvement" the Giles cousins may have demonstrated is 

the result of familiarity with the game, familiarity that is not reasonably available to the 

average player. This familiarity came fiom "almost unlimited opportunity to play the 

games for fkee over a period of several years." Recommended Decision, at 20. The Giles 

cousins install, service, and repair "Reels and Deals" devices (TR 681 and 863-875) and 

could have specialized knowledge about the game. In addition, they recommend 

technical changes for the "Reels and Deals" game (TR 922). While the evidence of 

record does not support the finding described above, it does support a finding that the 

Giles cousins, with their special experience, can achieve a rate of success better than 

blind or random play, where chance completely controls. 

Second, the Presiding Official makes the following comment in the 

Recommended Decision: ''Very advanced players, however, can consistently win more 

than they bet." Recommended Decision, at 21 (emphasis added). The Presiding Official 

makes the following further comment: "Evidence shows that even skillful play does not 

eliminate the chance factor, but it can result in consistent winnings by participants. . . . 

The evidence shows that the "Reels and Deals" design enables some participants . . . to 

consistently influence outcomes and win money by their play." 

However the record does not support the conclusion that "skillfid play" can result 

in consistent winnings by participants, even advanced players. Indeed, evidence of 

record supports a contrary conclusion: players cannot consistently obtain winning 

combinations by utilizing strategies that involve eye-hand coordination. 
The Recommended Decision includes discussion about game demonstrations and 

testing, both actual and theoretical, offered by Respondent to show that "skillfbl play" is 

attainable, These include the following: (A) courtroom demonstrations and testimony by 

the Giles cousins; (B) Dr. Conti's study; (C) the Snyder-Manzano performance test; and 

@) the computer model created by Dr. Bertram. However, these examples do not 

support a conclusion that a player can consistently obtain winning combinations by using 

skill strategies. 

(A) The courtroom demonstrations and testimony of the Giles cousins are 

discussed in # 1 (above). 

(B) Dr. Conti's study lacked several important controls. (TR 1160-1172; 

1183-1198). The Presiding Official regarded the test results as "inconclusive." 

Recommended Decision, at 20. Even were the validity of these uncontrolled test results 

accepted, the results do not show consistent winning but the opposite. The majority of 

players did not show improvement in their attempts to catch a particular icon. Those 

players who arguably did show improvement contributed to a mean or average rate of 

success of 0.051 in capturing the targeted icon, compared to the blind or random play rate 

of 0.045. (TR 1120; Exhibit C-5A). The results of play were presented in Dr. Kennedy's , 

testimony and in charts he prepared to display Dr. Conti's test results. See Exhibit G-28. 

These charts show inconsistent results among players, including the inability of players to 

replicate instances of improved performance. For example, during several hours of play, 

several players initially achieved a certain number of hits but later performed at a reduced 

level of success. Exhibit G-28 (Subjects 1,3,4,5,8,9,10,13,14,15,16,17). These test 

results support, at best, a conclusion that players will occasionally be more successll at 

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the game than at other times, a conclusion that can be the result of chance just as well as 

the use of skill. Several players reported that they considered the outcome of the game is 

due to luck or chance. (TR 1 175-1 178). 

(C) Mr. Snyder submitted a report and testified about a one-person 

performance test of Mr. Manzano. Mr. Manzano did not testify at the hearing and was 

not subject to cross-examination about his method of play during the test. Mr. Snyder's 

testimony and report indicate that Mr. Manzano played over 900 games then announced 

that "he got it,'' meaning he could skillfully play the game. (TR 1030-1032; 1059-1060). 

However, Mr. Manzano's performance test completely lacks any degree of reliability or 

credibility. The test was uncontrolled and, for the most part, the testing was unobsewed 

by any witness or even by Mr. Snyder who designed and conducted the testing. Mr. 

Manzano was told to play 1000 games and record his results in a log. No one watched 

Mr. Manzano play the game except for Mr. Snyder who occasionally stopped in to see 

how he was doing. (TR 1044-1046). After not showing success and becoming 

frustrated, Mr. Snyder offered Mr. Manzano a new motive: he would win a financial 

bonus for achieving a specified level of successful play. Because of this financial 

motivation, and because the test was to be limited to 1000 game plays, Mr. Manzano may 

have thought that he would be expected to show bbimprovement" at about 900 game plays. 

Because the Manzano test completely lacks credibility, the testing results should 

not be considered a reliable basis to support a finding that skillful play can be achieved or 

that skillfbl play can result in consistent winnings by participants. Indeed, the tests 

cannot support any finding concening play of the game. 
@) Dr. Bertram testified concerning his mathematical analysis of games of 

skill that includes the concept of optimal play, the selection of the game option that 

returns the most amount of money to a player. Using a computer and not actual human 

test subjects, he theorized that by timing the interval between targeted icons, a player 

could obtain a payback of approximately 11 1%. Dr. Bertram's theory would require a 

player to use a stopwatch or other timing device to carefully time the intervals between 

targeted selected rapidly-spinning icons. (TR 595-603). However, this approach would 

not work in a tribal casino, as it is likely that a player bringing a stopwatch or a computer 

into the gaming facility would be asked to leave. (TR 1320-1321). If it were possible for 

a player to utilize a stopwatch in the manner postulated by Dr. Bertram, after observing a 

time mark, a player would have to manually push a button and obtain an instantaneous 

response by the gaming device. Dr. Bertram's theory assumes also that the player can 

successfully execute on the time mark within four rapidly-spinning icons. 

Dr. Bertram's theory also requires a player to have knowledge of the reel strip, or 

the sequence of the icons as they appear, which according to Dr. Bertram "can be 

obtained, in a tedious fashion through observation, by playing many games at fixed time 

intervals and piecing together the reels strips, or by using information from the 

manufacturer." Exhibit G-16 (Report fbm Dr. Bertram), page 2. Dr. Bertram's theory 

that a player can receive a payback of 11 1% does not include the cost of obtaining the 

information about icon sequence obtained through this "tedious" play. The manufacturer 

does not make the reel strip information available to players. (TR 922). 

Dr. Bertram's theoretical analysis is difficult to grasp and has no real-world 

application possibility. He does not know of any player who has utilized his theory or 

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who has actually achieved the theoretical success ratio of 11 1% return. (TR 664; 676- 

678). Dr. Bertram admitted that, although people attempt to play optimally, he does not 

know of anyone who has actually played "Reels and Deals" optimally. (TR 676). The 

theory does not support a conclusion that participants in Reels and Deals who skillfully 

play can obtain consistent winnings. Players do not have and cannot obtain through 

reasonable effort the reel strip information critical to Dr. Bertram's analysis. Players 

cannot play in the casino environment in the manner envisioned by Dr. Bertram. 

For the preceding reasons, while there is evidence that some select players with 

unique experiences, such as the Giles cousins, can attain results that exceed results 

expected in random play, the conclusions in the Recommended Decision that skillful play 

can result in consistent winnings should not be included in the Commission decision. 

The "Reels and Deals" game is still a game where chance is not merely substantial but is 

predominant. 

Third, the Presiding Official offered the following finding in the Recommended 

Decision: "There is a substantial element of chance available for every game of Reels & 

DeaIs." Recommended Decision, at 21 (emphasis added). The evidence of record 

supports a finding that a substantial element of chance is always present in the play of 

'Reels and Deals" and is not just available. The following observations found elsewhere 

in the Recommended Decision indicate that even "advanced" players are not able to 

eliminate chance through the use of game strategies: '%Evidence also showed that the 

application of strategies does not always result in catching or selecting a targeted icon." 

Recommended Decision, at 20. "As noted above, even for advanced play by motivated 

participants, the element of chance cannot be eliminated." Recommended Decision, at 21. 
'Xeels and Deals contains an element of chance." Recommended Decision, at 22. "The 

honesty characteristics described above do not eliminate chance as a significant factor in 

this game's operation." Recommended Decision, at 23 (emphasis added). 

Accordingly, I find that the evidence overwhelmingly proves that play of the 

game of 'Reels and Deals" reflects a substantial element of chance that is always present 

in the game. 

Finally, I take exception with the majority's speculative statement that "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". This 

statement is a standard not based in the law and unsupported by the record. "Deliberate 

dicta . . . should be deliberately avoided." United State v. United Gypsum Company, 333 

I U.S. 364 (1948). If these types of games are truly amusement devices, they do not 

belong in gambling halls but in arcades. 

Date: May 24,2002 

Montie R. Deer 

Chairman