fundamental characteristics of a bingo game are preserved. The game is a linked bingo game in
which participation is broadened by the ability of multiple players to compete for a prize through
a server-based communications network. The winner is determined, not by a pay table in the
machine, but by the first person on the network to achieve a winning bingo pattern from a set of
numbers available to all players. Players compete with each other, not with the machine, and
therefore, the game is not a facsimile.

CONCLUSION

The MTOK supports the Commission’s proposed classification of one touch bingo as
Class II gaming employing a technologic aid. The interpretation is consistent with the IGRA, the
legislative history of IGRA, the Commission’s regulations and decisional law. The proposed
reinterpretation is based on a process that is consistent with the Administration’s Tribal
Consultation Order, will generate an agency record that is necessary and appropriate for an
interpretation that will have general application to gaming tribes, and properly rejects the flawed
analysis of the Metlakatla Ordinance decision. We therefore, strongly support the Commission’s
reinterpretation and look forward to its formal adoption.

Respectfully Submitted,

Dhipfe sbpee

Douglas Lankford, Chief
Miami Tribe of Oklahoma



(N.D. Cal. Nov. 23, 1998), aff'd 223 F.3d 1091 (9" Cir. 2000) the court concluded “{t]here is
nothing in IGRA...that requires a player to independently locate each called number on each of
the player’s cards and manually ‘cover’ each number independently and separately.” Id. To the
contrary, the court found that IGRA “merely require[s] that a player cover the numbers without
specifying how they must be covered.” Id. In one touch bingo, the player covers the numbers or
other designations with the assistance of a technological aid—the gaming system. The
technological aid assists the player in competing to be the first person to cover the pre-designated
pattern. The one touch feature does not change the sequence of the numbers drawn nor the
requirements for winning the game. The player is still required to activate each game, thereby
engaging the player in the game and placing the player in competition with the other players on
the system to be the first person to achieve a winning bingo pattern. Thus, in its proposed
reinterpretation, the Commission properly concludes that the “requirement that the cover of the
bingo card by done manually by the player through an additional pressing of a button is an
additional requirement not mandated by the statute.” 78 Fed. Reg. 78 at 37999. In addition, the
Commission also properly concludes that “[p]layer participation in an electronically linked one
touch bingo game still exists and players are actively and actually participating in the game.
Whether a player presses a button one time or two, the player is engaging with the machine,
participating in the bingo game, and competing with fellow players...” Id.

Nor, as determined by the Chairman in the Metlakatla decision, does use of the one touch
feature transform a class II bingo system into a class III electronic facsimile of the game of
bingo. The Commission defines “electronic or electromechanical facsimile as 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 the machine.”

25 C.F.R §502.8. The Commission’s own regulations make clear that a bingo game can be
played in an electronic or electromechanical format without becoming a facsimile if the
electronic format broadens participation in the game and requires the players to play against each
other rather than against the machine. Courts have recognized the same distinction between a
technological aid to bingo and a facsimile, holding that an electronic computer or technological
aid must possess at least two characteristics: the aid must operate to broaden the participation
levels of players in a common game; and the aid must allow a participant to play with or against
other players rather than with or against a machine. United States v. 162 Megamania Gambling
Devices, 231 F.3d 713 (10" Cir. 2000). If the technological aid possesses these two
characteristics, it is not a facsimile. Id. at 724; 103 Electronic Gambling Devices, 223 F.3d at
1100.

The Commission’s proposed reinterpretation properly recognizes that use of the one
touch feature does not change these essential characteristics of a technological aid so as to
transform a class II bingo game into a facsimile. Moreover, use of the one touch feature is not an
electronic facsimile that replicates or incorporates all of the characteristics of a bingo game. The


Miami Tribe of Oklahoma

P.O. Box 26-Miami, Oklahoma 74355
Ph: 918-542-1445 Fax: 918-542-7260

The Honorable Tracie L. Stevens, Chairwoman

The Honorable Daniel J. Little, Associate Commissioner Via e-mail to
National Indian Gaming Commission reg.review@nigc.gov
1441 L. Street N.W., Suite 9100

Washington D.C. 20005

RE: Comments on “one touch bingo” system classification. 78 Fed Reg. 37998
(June 25, 2013)

Dear Chairwoman Stevens and Commissioner Little:

Thank you for the opportunity to provide comments on the Commission’s proposed
reinterpretation of the classification of certain server-based electronic bingo games commonly
referred to as “one touch bingo”. 78 Fed. Reg, 37998. We applaud the Commission’s
willingness to address this important issue and we strongly support the Commission’s proposed
reinterpretation.

We also applaud the Commission’s approach; its publication of the proposed
interpretation and its use of the consultation process to develop a full and complete
administrative record. The conclusions ultimately reached by the Commission as a result of this
process will, for the first time, have general application to all gaming operations in Indian

Country.

While the Commission characterizes this process as a “reinterpretation” of the one touch
bingo issue, we submit that this constitutes the first time the Commission has issued a formal
interpretation regarding the proper classification of one touch bingo that is applicable to all
gaming tribes. In 2008, the former NIGC Chairman issued a decision disapproving a Gaming
Ordinance submitted by the Metlakatla Indian Community in which he concluded that the use of
an auto-daub (one touch) feature on an electronic aid to bingo would convert a Class II bingo
game to a Class III facsimile of an electronic game of chance. The former Chairman’s decision
was issued in the context of an Ordinance review process, the effect of which is circumscribed
by 25 U.S.C. §2710 (B)(1) & (2), and upon an agency record that was limited both in scope and
to the particular ordinance under review.

Moreover, the Commission’s one touch interpretation constitutes the first time that this
policy determination will have been made in a manner that is consistent with the


Administration’s Tribal Consultation Order, Executive Order 13175 (Fed. Reg. Vol. 74, No.
215,), in which President Clinton ordered all federal agencies to adhere to certain criteria when
formulating and implementing policies that have tribal implications. Section 3(c) of the
Executive Order specifically provides:

When undertaking to formulate and implement policies that have tribal
implications, agencies shall:

L encourage Indian tribes to develop their own policies to
achieve program objectives;

2s where possible, defer to Indian tribes to establish standards;
and
3; in determining whether to establish Federal standards, consult

with tribal officials as to the need for Federal standards and
any alternatives that would limit the scope of Federal
standards or otherwise preserve the prerogatives and authority
of Indian tribes.

The classification of one touch bingo is exactly the type of policy question that should be
addressed through the Tribal Consultation Policy. It is unquestionably a “policy that has tribal
implications” in that it “refers to regulations, legislative comments or proposed legislation, and
other policy statements or actions that have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian tribes or on the
distribution of power and responsibilities between the Federal Government and Indian tribes.”
EO 13175, section 1 (Emphasis added). The collaboration inherent in the consultation process
will inform the Commission’s decision and will result in the development of a full and complete
agency record that will permit the Commission to make a fully-informed policy decision on the
classification of one touch bingo that can appropriately have general applicability to all gaming
tribes.

The one touch bingo issue has a substantial direct effect on the Miami Tribe of Oklahoma
(MTOK). Class II bingo systems are an integral part of the MTOK’s gaming operation,
comprising the overwhelming majority of the games offered at both of the Tribe’s gaming
facilities, and are vital to our tribal economy. Success in a highly competitive gaming market is
dependent on our ability to offer Class II games that embrace modern technology and meet
player demands. Class II gaming systems that employs the one touch feature are examples of
such modern technology. Electronic bingo devices are used in non-Indian (typically charitable)
bingo games across the country and most utilize an “auto daub” or one touch feature. The
feature has become, for the most part, commonplace in electronic bingo systems. This
technology has developed and expanded outside Indian country despite many state bingo statutes
containing language comparable to IGRA; language that requires a player to “cover” the
numbers on a bingo card as similarly numbered objects are drawn. State regulatory agencies
recognize that the use of a one touch feature does not change the fundamental characteristics of
the game of bingo, nor render an electronic bingo device a facsimile of a game of chance or a


slot machine. Tribal games, including ours, are stifled in the use of this broadly-accepted
technology and, as such, are placed at a distinct competitive disadvantage. The Commission’s
proposed reinterpretation presents an opportunity for Tribes to fairly compete in the market
place, to use widely accepted technology, and to generate revenue necessary and critical to our
tribal programs and services.

The Commission’s proposed reinterpretation also is consistent with the IGRA and its
legislative history. IGRA requires Class II bingo to meet three specific requirements and nothing
more. United States v. 103 Electronic Gambling Devices, 223 F.3d 1091, 1093 (9" Cir. 2000).
One touch bingo meets each of these requirements. See, 25 U.S.C. §2703 (7)(A(i)(I)-(IID).

The game is played for prizes on a card bearing numbers or other designations. The holder of
the card, with the assistance of the computer (or technological aid), covers the numbers or other
designations when objects similarly numbered or designated are sequentially drawn or
electronically determined. And finally, the game is won by the first person to cover the pre-
designated winning bingo pattern. The use of the one touch feature in no way alters the
fundamental statutory requirements of the game of bingo.

The legislative history of IGRA and the preamble to the Commission’s regulations
demonstrate that the statutory requirements for class II bingo are not to be interpreted or
augmented in a way that would stifle rather than expand participation in the games. Indeed, the
statute was passed with the express understanding and hope that technologic advancements
would be used to expand and enhance player participation. S. Rep. No. 100-448 at 9 (1988),
reprinted in 1988 U.S.C.C.A.N. 3071, 3079 (“The Committee intends that tribes be given the
opportunity to take advantage of modern methods of conducting class II games and the language
regarding technology is designed to provide maximum flexibility.”); Commentary to 25 C.F.R.
502.8 (Definition of Bingo), 57 Fed. Reg. 12387), see also Spokane Indian Tribe v. United
States, 972 F.2d 1090, 1093 (9" Cir. 1992). The Commission’s proposed reinterpretation
respects this legislative history and recognizes that one touch bingo constitutes a bingo game
employing the type of technological advancements that were clearly anticipated and expected
when Congress deliberated and passed IGRA.

In the Metlakatla ordinance decision, the Chairman, relying in part on an Office of
General Counsel legal opinion, concluded that for an electronic bingo game to be classified as a
class II game, a player must manually cover (through the push of a button or otherwise) the
numbers on the cards as they are electronically drawn or otherwise determined.' The Chairman
concluded that the single push of a button by the player (the “one touch”) to activate the game
was not sufficient to satisfy the requirement that the player “cover” the numbers and moreover, it
eliminated the “competitive” nature of the game. However, the plain language of IGRA provides
no support for such a conclusion. Rather, IGRA makes it clear that the purpose of a
technological aid is to “assist a player or the playing of a game.” 25 U.S.C. §2703(7)(A)(i).

The Ninth Circuit Court of Appeals also rejected the notion that IGRA required the
manual covering of bingo numbers. In U.S. v. 103 Electronic Gambling Devices, No.98-1984,

' Office of General Counsel legal opinions are not final agency action and are not binding or entitled to any
deference. Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Commission, 327 F.3d 1019, 1043 (10
Cir. 2003).