[Federal Register Volume 67, Number 116 (Monday, June 17, 2002)]
[Rules and Regulations]
[Pages 41166-41174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15035]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 502
RIN 3141-AA10
Definitions: Electronic, Computer or Other Technologic Aid;
Electronic or Electromechanical Facsimile; Game Similar to Bingo
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (Commission) amends
three key terms in the Indian Gaming Regulatory Act, ``electronic,
computer or other technologic aid,'' ``electronic or electromechanical
facsimile,'' and ``game similar to bingo.'' The Commission believes
these amendments bring stability and predictability to the important
task of game classification.
EFFECTIVE DATE: July 17, 2002.
FOR FURTHER INFORMATION CONTACT: Penny Coleman, Deputy General Counsel,
National Indian Gaming Commission, Suite 9100, 1441 L Street, NW,
Washington, DC 20005. Fax number: 202-632-7066 (not a toll-free
number). Telephone number: 202-632-7003 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On October 17, 1988, Congress enacted the Indian Gaming Regulatory
Act, 25 U.S.C. 2701-21 (IGRA or Act), creating the National Indian
Gaming Commission (NIGC or Commission) and developing a comprehensive
framework for the regulation of gaming on Indian lands. The Act
establishes three classes of Indian gaming.
``Class I gaming'' means social games played solely for prizes of
minimal value or traditional forms of Indian gaming played in
connection with tribal ceremonies or celebrations. 25 U.S.C. 2703(6).
Indian tribes regulate class I gaming exclusively.
``Class II gaming'' means the game of chance commonly known as
bingo, whether or not electronic, computer, or other technologic aids
are used in connection therewith, including, if played in the same
location, pull tabs, lotto, punch boards, tip jars, instant bingo, and
other games similar to bingo, and various card games. 25 U.S.C.
2703(7)(A). Class II gaming, however, does not include any banking card
games, electronic or electromechanical facsimiles of any game of chance
or slot machines of any kind. 25 U.S.C. 2703(7)(B). Class II gaming
thus includes high stakes bingo and pull tabs, as well as non-banking
card games such as poker. Tribal governments and the NIGC share
regulatory authority over class II gaming without the involvement of
state government.
Class III gaming, on the other hand, may be conducted lawfully only
if the state in which the tribe is located and the tribe reach an
agreement called a tribal-state compact. For a compact to be effective,
the Secretary of the Interior must approve the terms of the compact.
Class III gaming includes all forms of gaming that are not class I
gaming or class II gaming. 25 U.S.C. 2703(8). Class III gaming thus
includes all other games of chance, including most forms of casino-type
gaming, such as slot machines and roulette, pari-mutuel wagering, and
banking card games, such as blackjack. While such gaming usually
requires a tribal-state compact, a tribe may operate class III gaming
under gaming procedures issued by the Secretary of the Interior if a
state has refused to negotiate in good faith toward a compact. Because
of the compact requirement, both the states and tribes possess
regulatory authority over class III gaming, with the NIGC retaining an
oversight role. Jurisdiction over criminal violations is vested in the
United States Department of Justice, which also assists the Commission
by conducting civil litigation on its behalf in federal court.
Because of the varying levels of tribal, state, and federal
involvement in the three classes of gaming, the proper classification
of games is essential. As a legal matter, Congress defined the
parameters for game classification when it enacted IGRA. As a practical
matter, however, several key terms were not specifically defined, and
thus subject to more than one interpretation.
Issues Unresolved in Congressional Definitions
A recurring question as to the proper scope of class II gaming
involves the use of electronics and other technology in conjunction
with bingo and other class II games. In IGRA, Congress recognized the
right of tribes to use ``electronic, computer or other technologic
aids'' in connection with class II gaming. Congress provided, however,
that ``electronic or electromechanical facsimiles of any game of chance
or slot machines of any kind'' constitute class III gaming. Since class
III gaming requires an approved tribal-state compact to be lawful (an
unattainable plateau for some tribes), definitions articulating the
proper distinctions between the two classes are vital to sound
execution of the law.
[[Page 41167]]
Under a plain language definition of these terms, the distinction
between an electronic ``aid'' to a class II game and a class III
``electromechanical facsimile'' of a game of chance is relatively
ascertainable. However, the Commission did not apply a plain meaning
approach in its early construction of IGRA or in its regulatory
definitions, and even if it had, the terms can nonetheless be read to
overlap.
The distinction between class II ``electronic aids'' and class III
``electromechanical facsimiles'' is further complicated by the extent
to which class II gaming is affected by the federal Gambling Devices
Act, 15 U.S.C. 1171-78, more commonly known as ``the Johnson Act.'' The
Johnson Act predates IGRA by thirty years and generally prohibits the
manufacture or possession of ``gambling devices'' within specific areas
of federal jurisdiction, including Indian country. 15 U.S.C. 1175. The
term ``gambling device'' is defined very broadly in the Johnson Act. It
includes ``slot machines,'' or ``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,'' or ``any subassembly or essential part intended to be used
in connection with any such machine or mechanical device[.]'' 15 U.S.C.
1171(a)(1-3).
IGRA explicitly creates an exception to the Johnson Act for gaming
devices operated under an approved tribal-state compact for class III
gaming, 25 U.S.C. 2710(d)(6); however, it does not specify the effect
of the Johnson Act on class II gaming. Since the Johnson Act defines
gambling devices very broadly, the omission gives rise to more than one
interpretation on the question of the reach of the Johnson Act in
relation to devices used in conjunction with bingo and other class II
gaming. For example, the common bingo ball blower, which has been used
widely in bingo games across the country to determine the order in
which bingo numbers are called, falls within the definition of gambling
device. Although it is virtually inconceivable that Congress intended
the Johnson Act to preclude the use of bingo blowers in class II
gaming, IGRA does not specifically address the question.
1992 Commission Definitions
Faced with the task of sorting through these issues of
construction, the newly established Commission set out to provide
guidance to the Indian gaming industry by defining certain key terms in
IGRA. A ``notice and comment'' rulemaking initiative commenced soon
after the Commission became operational in 1992. The final definitional
rule was published on April 9, 1992. 57 FR 12382.
The term ``electronic, computer or other technologic aid'' to class
II gaming was defined as ``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 or the playing of a
game; (b) is readily distinguishable from the playing of a game of
chance on an electronic or electromechanical facsimile; and (c) is
operated according to applicable Federal communications law.'' 25 CFR
502.7. ``Electronic or electromechanical facsimile'' was defined by
reference to the Johnson Act to mean ``any gambling device as defined
in 15 U.S.C. 1171(a)(2) or (3).'' 25 CFR 502.8. Since the IGRA
specifies that class II games are to be broadly read to include bingo
and other games similar to bingo, the Commission defined the term
``game similar to bingo'' by reference to the definition of bingo
elsewhere in the regulations. 25 CFR 502.9.
Incorporation of the Johnson Act in the 1992 Definitions
In 1992, the Commission viewed the relationship between the Johnson
Act and IGRA as key to interpreting congressional intent concerning
which gaming-related technology is authorized for class II gaming and
which technology might cause what would otherwise be considered class
II gaming to become class III. In its analysis, the Commission noted
three key points. First, the Johnson Act prohibits the use of gambling
devices in Indian Country. 15 U.S.C. 1175. Second, the only explicit
exception to the Johnson Act in Indian Country is set forth in 25
U.S.C. 2710(d)(6), which indicates that the Johnson Act shall not apply
to compacted class III gaming. 57 FR 12382, 12385 (April 9, 1992).
Finally, class II gaming under IGRA is permitted for tribes in states
where it is permitted for any other person or entity and is not
specifically prohibited on Indian lands by Federal law. 25 U.S.C.
2710(b)(1)(A). Relying on language in a Senate Report on IGRA, the
Commission interpreted the reference to ``Federal law'' to mean the
Johnson Act. Under this interpretation, the Johnson Act applies even in
the context of class II gaming. See S. Rep. No. 100-446, at 9 (1988).
Under the Commission's interpretation, IGRA required independent
compliance with the Johnson Act except where the Indian gaming activity
is authorized by a tribal-state compact. This was a reasonable approach
in relation to crafting a regulatory definition of ``slot machine of
any kind'' because the term is well defined by the Johnson Act and
because congressional intent was clear.
In the context of defining electronic or electromechanical
facsimile, however, incorporation of the Johnson Act was less
satisfactory. The Commission's facsimile definition includes: ``any
gambling device'' as defined by sections 1171(a)(2) or (3) of the
Johnson Act. 25 CFR 502.8. Because the Johnson Act is so broadly
construed, a facsimile thus includes any device designed and
manufactured for use in connection with gambling, as well as any sub-
assembly or essential part intended to be used for such purposes. This
definition departs substantially from any plain meaning of the term.
With the benefit of experience and hindsight, it has become
increasingly clear that by incorporating the Johnson Act into its
``electronic or electromechanical facsimile'' definition, the
Commission defined a key term in an overly broad manner. Worse, use of
the definition produces patently nonsensical results in certain
circumstances. We again turn to the common bingo ball blower, a device
used to randomly generate numbers for bingo games.
Few would argue that Congress intended the Johnson Act to prohibit
the use of bingo blowers or other aids in class II gaming, particularly
since the plain language of the Act anticipates such use of electronics
and technology. Nevertheless, the broad interpretation of ``gambling
device'' contained in the Johnson Act clearly sweeps bingo blowers
within its ambit.
A chief reason for the Johnson Act's broad construction is that as
a criminal statute it is intended to restrict the possession, use, and
transportation of gambling devices. The principles of construction used
by the courts in interpreting the Johnson Act were designed to
``anticipate the ingeniousness of gambling machine designers.'' Lion
Manufacturing Corp. v. Kennedy, 330 F.2d 833, 836-837 (D.C. Cir. 1964).
Accordingly, courts have found the Johnson Act to cover a wide variety
of machines. See, e.g., United States v. H.M. Branson Distrib. Co., 398
F.2d 929, 933 (6th Cir. 1968) (pinball machines with knock-off meters
that can accumulate free games); United States v. Two (2) Quarter Fall
Machines, 767 F.Supp 153, 154 (E.D. Tenn. 1991) (machines where the
fall of coins could deliver hanging coins into a pay-off chute); United
States v. 11 Star-Pack Cigarette Merchandiser Machines, 248
[[Page 41168]]
F.Supp. 933, 934 (E.D. Pa. 1966) (an attachment on a vending machine
that could deliver a free pack of cigarettes); United States v. Wilson,
475 F.2d 108 (9th Cir. 1973) (a machine that sold store coupons and
prize tickets in a prearranged order from a preprinted bundle even
though the player could see the coupon or ticket he was buying).
The traditional broad construction of the Johnson Act encompasses
numerous devices manufactured to assist in the play of class II games
that the Commission now believes Congress presumed to constitute
acceptable technologic aids. In an oft-quoted passage from the
legislative history, a Senate Report accompanying the bill that became
IGRA indicated that ``tribes should 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.'' See S. Rep. No. 100-446, at 9 (1988). In other words,
the ingenuity of gaming designers, which was designed to be constrained
by the Johnson Act, is arguably intended to be given freer rein by IGRA
in the context of class II gaming.
Incorporating the Johnson Act definition of gambling device into
the Commission's definition of ``electromechanical facsimile'' is
illogical in certain other respects as well. A good example is the
roulette wheel. As the Department of Justice noted in its comments to
our proposal to strike the definition of facsimile, equating
``electromechanical facsimile'' to ``Johnson Act gambling device'' can
lead to absurdity. A roulette wheel, for example, clearly meets the
definition of a Johnson Act gambling device, but it is neither
``electronic'' nor a ``facsimile.'' In other words, although
incorporation of the Johnson Act into the IGRA regulatory definitions
seemed, in 1992, to be an expedient method of harmonizing two competing
federal statutes, it was imperfect at best and, in the final analysis,
created more problems than it solved.
In adopting the definitions, the Commission apparently recognized
the problem and sought to sidestep it by including ``bingo blower'' as
one of several permissible devices to be used as a technological aid to
class II gaming. This strategy resolved the specific problem of the
bingo blower, but failed to address the underlying conceptual problem.
Consequently, substantial uncertainty remains as to a myriad of other
devices that, like the bingo blower, provide electronic or
technological assistance to class II gaming, but that nevertheless also
meet the expansive definition of electromechanical facsimile by virtue
of its incorporation of the Johnson Act. Moreover, this uncertainty has
translated into a substantial amount of litigation, much of which has
produced results unfavorable to the Commission's interpretation of the
interplay between IGRA and the Johnson Act.
Consultation With the Department of Justice
On several occasions during the past ten years, the problems noted
above have caused the Commission to informally reconsider the
correctness of incorporating the Johnson Act into its definition of
electromechanical facsimile. Since enforcement of the Johnson Act is
committed to the discretion of the Department of Justice, the
Commission and the Department share an interest in the proper
resolution of this issue.
Like the Commission, the Justice Department has struggled with
these questions of interpretation regarding the applicability of the
Johnson Act in relation to Indian gaming. In 1996, the Department's
position was that Congress expressly contemplated the use of equipment
in class II Indian gaming that would otherwise fall within the Johnson
Act. In 2001, however, the Justice Department reevaluated its position,
indicating a view that the Johnson Act prohibits any technology that
meets its terms, including technological aids to class II gaming.
In the meantime, a series of federal circuit court decisions,
discussed more fully below, have informed this Commission's view that
its original construction of IGRA and resulting definitional
regulations did not properly capture the intent of Congress in relation
to the distinction between permissible aids to class II games and
impermissible class III facsimiles.
Lack of Judicial Endorsement for 1992 Definitions
In hindsight, and with the guidance of the courts, the
inconsistencies in purpose between IGRA and the Johnson Act are more
readily apparent. The federal courts, including no less than three
United States circuit courts of appeal, have been virtually unanimous
in concluding that the Commission's definitions are not useful in
distinguishing between technologic aids and facsimiles. Rather than
apply the Commission's rules, the courts instead conducted a plain
meaning analysis juxtaposed against the language of the statute and the
Senate Report. While most simply ignored the Commission's definitions,
one court openly criticized the Commission's rule as unhelpful. Cabazon
Band of Mission Indians v. National Indian Gaming Commission, 14 F.3d
633 (D.C. Cir. 1994) (holding that the scope of gaming determination at
issue in the case could be made by looking to the statute alone and
without examining the Commission's regulatory definitions); Sycuan Band
of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1994)
(resorting to the dictionary definition of facsimile as ``an exact and
detailed copy of something,'' rather than using the regulatory
definition); Diamond Game Enterprises v. Reno, 230 F.3d 365, 369 (D.C.
Cir. 2000) (``Boiled down to their essence, the regulations tell us
little more than that a class II aid is something that is not a class
III facsimile.''). In sum, these courts have implicitly rejected the
Commission's definition of ``electromechanical facsimile,'' which
incorporates the Johnson Act, and have instead used a plain meaning
approach to interpret this key term.
In addition to the lack of deference noted above, two United States
circuit courts have reached decisions that can be construed to be at
odds with the Commission's definition of facsimile, though at least one
of them gave deference to the Commission's findings as to the devices
in question. United States v. 103 Electronic Gambling Devices, 223 F.3d
1091, 1095, 1102 (9th Cir. 2000); United States v. 162 Megamania
Gambling Devices, 231 F.3d 713 (10th Cir. 2000).
The uncomfortable result is that the Commission cannot faithfully
apply its own regulations and reach decisions that conform with the
decisions of the courts. Such inconsistency frustrates the Commission's
ability to properly discharge its duties under IGRA.
Moreover, the courts' unwelcome reception to the Commission's
regulatory definitions of electronic aids and electromechanical
facsimile stands in vivid contrast to other definitional regulations
promulgated by the Commission. In most circumstances, the Commission's
work has garnered substantial judicial deference. See Shakopee
Mdewakanton Sioux Community v. Hope, 16 F.3d 261, 264 (8th Cir. 1994)
(recognizing ambiguity in the definition of class II and upholding the
NIGC's regulations that provide that keno is a class III game); 162
Megamania Gambling Devices, 231 F.3d at 719-20 (turning for guidance to
the Commission's definition of ``game similar to bingo'' and noting
that the regulations are entitled to deference); 103 Electronic
Gambling Devices, 223 F.3d at 1097 (``The NIGC's conception of what
counts as bingo under IGRA * * *
[[Page 41169]]
is entitled to substantial deference.'') Accordingly, the Commission
believes that the courts will be receptive to its efforts to bring
greater clarity to these key definitions.
Congressional Criticism of the 1992 Definitions
In addition to the developments in the federal case law, the
Commission's authorizing committee, the United States Senate Committee
on Indian Affairs, has urged the Commission to reconsider these
definitions. In a July 10, 2000, letter to the Commission Chairman,
Senators Ben Nighthorse Campbell and Daniel K. Inouye, then Chairman
and Vice-Chairman, respectively, of the Committee, urged the Commission
to revise its definitions pertaining to class II gaming, saying:
Since the NIGC first issued its regulations on class II gaming,
uncertainty has developed among the Indian tribes, states, and
regulatory bodies as to which games are properly classified as class
II under the act. This is particularly true where tribes offer class
II games that utilize ``technological aids'' as the IGRA expressly
permits. We also understand that some of these games fall under the
definition of ``gambling devices'' under the Johnson Act (15 U.S.C.
1171 et seq.). The conflict between IGRA and the Johnson Act has
resulted in repeated legal clashes between Indian tribes and state
and federal law enforcement agencies.
We think that it is clear that the NIGC has the authority to
resolve this issue.
In a similar letter dated July 11, 2000, nine congressmen also
encouraged the Commission ``to bring some clarity to this issue.''
Reconsideration of the 1992 Definitions
In the decade since 1992, the NIGC has had an opportunity to work
extensively with its regulatory definitions and also to develop
additional experience in Indian gaming. As the Commission's expertise
has evolved, the courts have also been active, providing increasingly
clearer guidance on the proper interpretation of the relevant statutes.
In light of the courts' apathy or antipathy toward certain NIGC
definitions discussed above, and in light of requests among the public,
the industry, and Congress, the NIGC has determined that several of its
key definitions must be revised.
The Commission recognizes that an agency should move with great
care in changing definitions that have been in place for a decade.
After much reflection, the Commission revises the definitions in a
manner that reaffirms, rather than disrupts, settled industry
expectations. Today's Final Rule more properly captures the intent of
Congress as to the distinction between permissible class II aids and
prohibited class III facsimiles, without compromising Congress' intent
to prohibit the play of facsimiles absent an approved tribal-state
compact.
Requests for Comments
The Commission first issued a proposed rule for comment on June 22,
2001, proposing to withdraw its definition of electronic or
electromechanical facsimile. The vast majority of comments favored the
Commission's proposal to revise its definition of electronic or
electromechanical facsimile by deleting reference to the Johnson Act. A
number of commenters, however, including the Department of Justice,
expressed the view that mere removal of this definition would not be
sufficient to provide adequate guidance. Furthermore, many also
expressed the view that additional revisions were needed for two other
related terms: ``electronic, computer or other technological aid'' and
``game similar to bingo.''
After careful consideration, the Commission recognized that the
commenters were correct in asserting that the simple removal of the
definition would not be sufficient to achieve the desired level of
clarity with regard to game classification. Accordingly, the Commission
revised its proposed facsimile definition and crafted two new
definitions addressing technological aids and games similar to bingo.
On March 22, 2002, the Commission published a proposed rule for final
comment (67 FR 13296). The comment period, extended to May 6, 2002,
resulted in the receipt of fifty-two comments.
Summary of Comments
The vast majority of commenters express strong support for the
Commission's proposal to revise its definitional regulation. While
differences exist as to recommended language, most support removing
reference to the Johnson Act from the facsimile definition and thus
from the game classification analysis.
The one common ground of nearly all commenters is a frustration
with achieving the right interplay between IGRA and the Johnson Act.
Some commenters suggest that any machine or device meeting the Johnson
Act definition of a gambling device would have to be characterized as
class III. This, they assert, would be true even if the machine or
device could be fairly characterized as a technologic aid to the play
of a class II game. The Commission rejects this comment determining
that such an approach renders meaningless the technologic aid language
in IGRA, and ignores the analysis of a nearly unanimous judiciary.
Taken to its logical extreme, an analysis consistent with this view
would produce even greater disharmony in distinguishing aids and
facsimiles than exists under the current definitions.
The Commission comes to this conclusion with the benefit of ten
years' experience since adoption of the original definition regulations
and with the advantage of the views of the federal judiciary on the
meaning of the language in IGRA. Reaching this conclusion has not been
easy. In part, the confusion can be traced to the Commission's original
definition regulations. The Commission now believes that in the infancy
of IGRA, its original definition regulations simply had not fully
reconciled the language of IGRA with the Johnson Act. The Commission
now determines that IGRA does not in fact require an across-the-board
treatment of all Johnson Act gambling devices as class III games.
Stated differently, ``Congress did not intend the Johnson Act to apply
if the game at issue fits within the definition of a class II game, and
is played with the use of an electronic aid.'' U.S. v. 162 MegaMania
Gambling Devices, 231 F.3d 713, 725 (10th Cir. 2000).
This is best illustrated by considering the bingo blower. The
Commission's original regulation listed bingo blowers as class II
technologic aids, a categorization that has not been seriously
challenged and that was accepted without significant scrutiny. Cabazon
Band of Mission Indians v. NIGC. (DDC 1993) 827 F. Supp. 26 at 31,
aff'd 14 F.3d 633 (D.C. Cir. 1994), cert. Den. 512 U.S. 1221 (1994)
(``* * *the Johnson Act applies only to slot machines and similar
devices (including the pull-tab games here in issue), not to aids to
gambling (such as bingo blowers and the like)).'' The identification of
bingo blowers as class II technologic aids is also consistent with
IGRA's legislative history. (``That section [15 U.S.C. 1175] prohibits
gambling devices on Indian lands but does not apply to devices used in
connection with bingo and lotto.'' S.Rep. No.100-446, at 12 (1988).)
When employed in gaming, though, bingo blowers are nothing more or less
than random number generators.
Random number generation is the creation of numbers for use in
games of chance and may occur in a wide variety of ways. Video gambling
devices, for example, use computer software to generate numbers at
random. Dice, cards, or wheels may also be used.
[[Page 41170]]
Significant to the Commission's analysis is the fact that both a
bingo blower and a roulette wheel function as random number generators.
That is, both produce, on a random basis, the numbers that will
determine winners in games of chance. The Johnson Act specifically
identifies roulette wheels as an example of a gambling device. 15
U.S.C. 1171(a)(2). Bingo blowers also meet the broad, Johnson Act
definition of a gambling device, yet are rightfully classified as
technologic aids under IGRA. The physical and operational
characteristics of these devices, however, cannot be legally
distinguished. The only real distinction between roulette wheels and
bingo blowers is the games that they support. Bingo blowers generate
numbers for class II games of chance, while roulette wheels generate
numbers for class III games of chance. Because of their inconsistent
purposes, inclusion of the Johnson Act in a game classification
analysis undermines the fundamental principles of IGRA.
There are other such illustrative anomalies among gambling devices
that are used as random number generators. Both keno and lotteries are
class III games, but the ``rabbit ears'' used in keno and the ping-pong
ball blowers often used to select lottery winners bear a striking
resemblance, in appearance and function, to bingo blowers. Conversely,
it would be fully consistent with IGRA to employ the kind of
computerized random number generation used in video gaming machines,
rather than a blower, to draw numbers for the play of bingo,
particularly in light of the fact that IGRA specifically allows for
electronic draws in the play of bingo. 25 U.S.C. 2703(7)(A)(i)(II).
From the Commission's perspective, the Johnson Act has proven
remarkably troublesome as a starting point in a game classification
analysis under IGRA. As illustrated above, this is due in large part to
its fundamentally different purpose. The Johnson Act is intended to
determine whether something is a ``gambling device.'' IGRA, on the
other hand, is intended to distinguish between classes of games. Within
the context of IGRA, there is no question as to ``gambling'' per se--
all Indian gaming is ``gambling.'' Accordingly, determining whether the
Johnson Act covers a particular device simply does not answer the
question relevant to Indian gaming: whether the game is class II or
class III.
The appropriate threshold for a game classification analysis under
IGRA has to be whether or not the game played utilizing a gambling
device is class II. If the device is an aid to the play of a class II
game, the game remains class II; if the device meets the definition of
a facsimile, the game becomes class III. This analytical framework is
fully consistent with that adopted by the three federal circuits that
have squarely addressed the issue and determined that the Johnson Act
does not prohibit technological aids to class II gaming. See United
States v. 103 Electronic Gambling Devices, 223 F.3d 1091, 1102 (9th
Cir. 2000) (rejecting the notion that the Johnson Act extends to
technological aids to the play of bingo); Diamond Game Enterprises v.
Reno, 230 F.3d 365 (D.C. Cir. 2000) (noting that class II aids
permitted by IGRA do not run afoul of the Johnson Act); U.S. v. 162
MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000)(concluding
that Congress did not intend the Johnson Act to apply if the game at
issue fits within the definition of a class II game, and is played with
the use of an electronic aid). See also United States v. Burns, 725 F.
Supp. 116, 124 (N.D.N.Y. 1989) (indicating that IGRA makes the Johnson
Act inapplicable to class II gaming and therefore tribes may use
``gambling devices'' in the context of bingo).
Because Congress intended to permit the use of electronic
technology in class II gaming (even if the device might otherwise fall
within the ambit of the Johnson Act), the important factor in a game
classification analysis is whether the technology is assisting a player
or the play of a class II game. Accordingly, the Commission's amended
definition of electronic, computer or other technologic aid retains its
elemental definition in subsection (a). To assist in the analysis under
subsection (a), a set of analytical factors (subsection (b)), and
specific examples of technologic aids (subsection (c)) have also been
included. The Commission believes this modification is responsive to
those commenters who were unclear as to how proposed subsections (a)
and (b) were intended to interact.
The list of examples contained in the proposed rule received mixed
comments. Those opposing the list felt that the approach creates a
presumption that other machines or devices unlike those specifically
listed could not be allowable aids. Others requested clarification as
to whether the list is non-exclusive. The list is intended to assist
the public and the industry in interpreting the scope of permissible
aids by enumerating examples that have already been deemed lawful. This
list is not comprehensive. The Commission is fully aware that other
machines or devices not included in the list of examples can satisfy
the definition of technologic aid and thus be a permissible form of
class II gaming.
One commenter suggests that if it is determined that gambling
devices can be used in connection with the play of class II games, IGRA
still requires a tribal-state compact for operation of the device. The
Commission does not believe that there is textual support for such a
proposition in IGRA or that Congress intended the compacting process to
be applicable in any way to class II gaming. ``S.555 [IGRA] provides
for a system for joint regulation by tribes and the Federal Government
of class II gaming on Indian lands and a system for compacts between
tribes and States for regulation of class III gaming.'' S.Rep. No. 100-
446, at 1 (1988).
Several commenters believe the proposed definition of technologic
aid should be expanded to reflect that broadening participation is an
important characteristic of an aid. The Commission agrees that this is
an important indicator as to whether a machine or device is a
technologic aid, but also recognizes that it is not a required element.
This factor was therefore added to subsection (b) of the definition and
should be viewed as strong indication that the machine or device is a
technologic aid.
Several commenters suggest that the requirement that an aid be
``readily distinguishable'' from a facsimile is vague. Some argue that
this language could possibly create a third category of devices falling
somewhere outside both the definition of aid and facsimile. The
Commission agrees that the reference has not proven useful in
distinguishing between aids and facsimiles, and has therefore removed
the reference.
Others suggest that the language ``[i]s readily distinguishable
from the playing of an electronic or electromechanical facsimile of a
game of chance'' within the aid definition should be qualified by
adding the phrase ``in which a single participant can play the game
only with or against the device rather than with or against other
players.'' Others suggest that the same language should be utilized to
limit the facsimile definition. In crafting these two new definitions,
the Commission focused upon several key factors.
First, the Commission finds it particularly significant that IGRA
specifically provides for an electronic draw in bingo games. 25 U.S.C.
2703(7)(A)(i)(II). Second, greater freedom with regard to class II
gaming was clearly intended by the Congress. (``[T]ribes should be
given the opportunity to take advantage of modern methods of conducting
class II
[[Page 41171]]
games and the language regarding technology is designed to provide
maximum flexibility.'' S. Rep. No. 100-446, at 9 (1988).) Reading this
information along with the judicial analysis in several key cases, the
Commission concludes that in the case of bingo, lotto, and other games
similar to bingo, the definition ``electronic or electromechanical
facsimile'' should be more narrowly construed. See S.Rep. No.100-446
(1988); United States v. 103 Electronic Gambling Devices, 223 F.3d
1091, 1102 (9th Cir. 2000); U.S. v. 162 MegaMania Gambling Devices, 231
F.3d 713 (10th Cir. 2000).
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. To ensure maximum clarity, the revised
definitions include appropriate language establishing these parameters.
Several commenters suggest that the proposed definitions of aid and
facsimile are circular because of their cross referencing. The
Commission agrees, but also notes that it is important to state clearly
when terms are intended to be mutually exclusive. The Commission
revised the definitions to accommodate the concern, yet still address
the Commission's view that, as a general rule, an aid and a facsimile
are mutually exclusive.
One commenter suggests that the focus of the facsimile definition
should be on the device rather than the format of the game. The
Commission disagrees. The Commission reviews aids and facsimiles as
part of its analysis to classify games. Therefore, the focus of the
facsimile definition is properly on the game.
One commenter suggests that the Commission use the term
``resembles'' or ``simulates'' rather than ``replicates.'' The
Commission concludes that these terms are not necessarily more precise
than the term ``replicates.'' It is also noteworthy that the courts
have largely utilized the term ``replicates.'' See e.g. Cabazon Band of
Mission Indians v. National Indian Gaming Commission, 14 F.3d 633, 636
(D.C. Cir. 1994); United States v. 162 Megamania Gambling Devices, 231
F.3d 713, 724 (10th Cir. 2000).
``Game Similar to Bingo''
Several commenters suggest that the proposed definition is not
useful because it provides a single definition for unrelated types of
games. Including pull tabs, lotto, punch boards, tip jars, and instant
bingo in the definition was viewed as creating confusion. Still others
object to the proposed definition on the grounds that the restrictions
are contrary to Congress' definition of ``bingo.'' Upon reflection, the
Commission agrees and has made appropriate revisions.
Several commenters suggest that the Commission should not adopt a
definition of pull tabs, but allow the definition to evolve on a case-
by-case basis. Another commenter noted that the game lotto does not
contain a finite deal. Some commenters suggest inserting IGRA's
requirement that these games must be played in the same location as
bingo. Suitable changes were made in response to these comments.
An overwhelming number of commenters object to the proposed
definition requiring the use of paper or other tangible medium. Others
assert that the term ``preprinted'' is ambiguous. The majority of
commenters feel that these requirements are not consistent with federal
case law, in part because they would eliminate the lawfully recognized
use of electronic cards. United States v. 103 Electronic Gambling
Devices, 223 F.3d 1091 (9th Cir. 2000); U.S. v. 162 MegaMania Gambling
Devices, 231 F.3d 713 (10th Cir. 2000). The requirements were also seen
to disregard the legislative history of IGRA, which allows tribes
maximum flexibility in using modern technology. S. Rep. No. 100-446, at
9 (1988). The Commission agrees that the proposed language was overly
broad and inconsistent with both case law and legislative history.
These requirements have therefore been removed.
It is particularly noteworthy that the statutory listing of
specific games followed by the phrase, ``and other games similar to
bingo,'' can be read in two ways. 25 U.S.C. 2703(7)(A)(i)(III). First,
it can be interpreted to mean merely that the specified games are
similar to bingo. The Commission finds this interpretation unlikely.
Alternatively, this language can be interpreted to leave class II open
to other games that are bingo-like, but that do not fit the precise
statutory definition of bingo. This second reading, that the class was
left open to a group of non-specific, bingo-like games, or ``variants''
on the game of bingo, is consistent with legislative history and the
holdings of the Courts of Appeal for the Ninth and Tenth Circuits in
their analysis of the game Megamania cited above.
The Commission now believes that its 1992 definition of ``game
similar to bingo'' is flawed. 25 CFR 502.9. It defies logic to conclude
that the Congress intended to require that these other ``similar''
games satisfy the same statutory requirements of bingo. If this were
Congress' intent, there would have been no need for the phrase ``and
other games similar to bingo.'' These games would not in effect be
``similar'' to bingo; they would be bingo.
The definition announced today corrects this flaw by accurately
stating that ``other games similar to bingo'' constitute a ``variant''
on the game and do not necessarily meet each of the elements specified
in the statutory definition of bingo. The Commission believes that this
modification more accurately reflects Congress' intent with regard to
games similar to bingo.
Miscellaneous Comments
One commenter suggests that the proposed rule is unconstitutional
either because tribes have vested constitutional property rights in
gaming or because the rule is vague and ambiguous. The Commission
respects tribal rights to conduct gaming. It has assumed responsibility
for modifying the regulations to assist tribal governments in the
regulation of gaming and to clarify standards to be applied in the
classification decisions required of tribes and the Commission.
One commenter suggests that the Commission unduly burdened the
tribes by requiring changes to its classification of games and by
failing to consult with tribes. Throughout this regulatory process, the
Commission made every effort to reflect existing court decisions.
Tribes that adhere to the law as interpreted by the courts will not be
changing their approach to game classification as a result of these
regulations. Furthermore, two extensive comment periods and issuance of
a second change to the proposed definitions reflect the efforts of the
Commission to consult and coordinate with tribal governments.
Many commenters offered specific language urging adoption by the
Commission. The Commission found this language extremely helpful in the
revision process and encourages similar comments in the future. The
analysis and rationale underlying these proposals were of high
analytical quality, particularly in light of the complexities presented
by these issues.
[[Page 41172]]
Today's revisions reflect in principle the themes common to many of the
comments.
Regulatory Matters
Regulatory Flexibility Act
This regulation merely codifies existing Federal court decisions
and assures that the Commission will follow such decisions. Therefore,
we do not expect the regulation to have a significant impact on the
approximately 315 tribal gaming operations nationwide. Furthermore,
Indian Tribes are not considered to be small entities for the purposes
of the Regulatory Flexibility Act. To the extent that tribal gaming
operations may be considered small businesses and therefore small
entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
this rule will not have a significant economic effect on a substantial
number of small entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule does not have
an annual effect on the economy of $100 million or more. This rule will
not cause a major increase in costs or prices for consumers, individual
industries, Federal, state, or local government agencies or geographic
regions and does not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
The Commission is an independent regulatory agency and, as such, is
not subject to the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, the Commission has
determined that this rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of General
Counsel has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. Instead, the rule is likely to decrease litigation with
Indian tribes and reduce unnecessary friction between the Department of
Justice and the Commission.
Paperwork Reduction Act
This regulation does not require an information collection under
the Paperwork Reduction Act 44 U.S.C. 3501 et seq.
National Environmental Policy Act
The Commission has analyzed this rule in accordance with the
criteria of the National Environmental Policy Act. This rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. An environmental assessment is not required.
List of Subjects in 25 CFR Part 502
Gaming, Indian lands.
For the reasons set forth in the preamble, the National Indian
Gaming Commission amends 25 CFR Part 502 as follows:
PART 502-DEFINITIONS OF THIS CHAPTER
1. The authority citation for part 502 continues to read as
follows:
Authority: 25 U.S.C. 2701 et seq.
2. Revise Sec. 502.7 to read as follows:
Sec. 502.7 Electronic, computer or other technologic aid.
(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.
3. Revise Sec. 502.8 to read as follows:
Sec. 502.8 Electronic or electromechanical facsimile.
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.
4. Revise Sec. 502.9 to read as follows:
Sec. 502.9 Other games similar to bingo.
Other games similar to bingo means any game played in the same
location as bingo (as defined in 25 USC 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.
Dated: June 10, 2002.
Elizabeth L. Homer,
Vice Chair.
Teresa E. Poust,
Commissioner.
Note: The following attachment will not appear in the Code of
Federal Regulations.
I respectfully dissent from the views of the majority. My
reasons are set forth below:
In summary, my vote against changing the definition of facsimile
and technological aid reflects my belief, and my agreement with
Judge Lamberth of the United States District Court for the District
of Columbia, that the definition of facsimile which the Commission
chose in its initial rulemaking in 1992 was the only definition
possible in order to implement Congress' explicit intent, as
expressed in IGRA.
1. Background
The Indian Gaming Regulatory Act (IGRA, or the Act), enacted on
October 17, 1988, and now codified at 25 U.S.C. 2701, et seq,
created a comprehensive scheme for regulating all gaming on Indian
lands. The Act establishes three classes of games--
``Class I gaming'' means social games played solely for prizes
of minimal value or traditional forms of Indian gaming played in
connection with tribal ceremonies or celebrations. 25 U.S.C.
2703(6). Indian tribes regulate Class I exclusively.
``Class II gaming'' means the game of chance commonly known as
bingo, whether or not electronic, computer, or other technologic
aids are used in connection therewith, including, if played in the
same location, pull-tabs, lotto, punch boards, tip jars, instant
bingo, and other games similar to bingo, and various card games. 25
U.S.C. 2703(7)(A). Under the Act, the term ``class II gaming'' does
not include any banking card games or electronic or
electromechanical facsimiles of any game of chance or slot machines
of any kind. 25 U.S.C. 2703(7)(B). Class II gaming thus includes
high stakes bingo and pull-tabs as well as non-banking card games
such as poker. Indian tribes and the NIGC share regulatory authority
over Class II gaming.
``Class III gaming'' means all forms of gaming that are not
class I gaming or class II gaming. 25 U.S.C. 2703(8). Class III
gaming thus includes all other games of chance,
[[Page 41173]]
including most forms of casino-type gaming, such as slot machines
and roulette, and banking card games, such as blackjack. A tribe may
engage in Class III gaming if it obtains a compact with the state in
which the tribe's lands are located.\1\ Under a compact, both the
states and Indian tribes possess regulatory authority over Class III
gaming. The NIGC retains an oversight role. In addition, the United
States Department of Justice and United States Attorneys possess
exclusive criminal jurisdiction over Class III gaming on Indian
lands and also possess certain civil jurisdiction over such gaming.
---------------------------------------------------------------------------
\1\ For a compact to be effective, the approval of the Secretary
of the Interior of the compact terms must be obtained. In the
absence of a compact, a tribe may operate class III gaming under
gaming procedures issued by the Secretary of the Interior.
---------------------------------------------------------------------------
As a legal matter, Congress defined the parameters for the
gaming classifications when it enacted the IGRA. As a practical
matter, however, the Congressional definitions were general in
nature and specific terms within the broad gaming classifications
were not explicitly defined. Soon after becoming operational in
1992, the Commission issued a final rule defining certain terms not
defined by Congress and clarifying or restating existing definitions
consistent with congressional intent. 57 FR 12382. Included among
the definitions promulgated by the Commission were definitions for
two terms pivotal to an understanding of the distinction in gaming
classifications. The first was a definition for the term
``electronic, computer or other technologic aid'' which was defined
as ``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 or the playing of a game; (b) is
readily distinguishable from the playing of a game of chance on an
electronic or electromechanical facsimile; and (c) is operated
according to applicable Federal communications law.'' 25 CFR 502.7.
The second was a definition for the term ``electronic or
electromechanical facsimile'' which the Commission defined to mean
``any gambling device as defined in 15 U.S.C. 1171(a)(2) or (3)''
(the Johnson Act). 25 CFR 502.8.
The Commission thus defined the term ``electronic or
electromechanical facsimile'' by incorporating, in part, the
definition for ``gambling device'' from the Gambling Devices Act, 15
U.S.C. 1171, et seq, also referred to as the Johnson Act.\2\
---------------------------------------------------------------------------
\2\ The Johnson Act, codified at 15 U.S.C. 1171-1178, contains a
definition for ``gambling device'' that includes in pertinent part
``(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 a 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
(3) any subassembly or essential part intended to be in connection
with such machine or mechanical device, but which is not attached to
any such machine or mechanical device as a constituent part.''
---------------------------------------------------------------------------
2. Change to the Definition Established by the Commission in 1992 Is
Not Appropriate.
Linking the definitions for the term ``electronic or
electromechanical facsimile'' with the definition for a Johnson Act
gambling device, and also indirectly with the definition of what
could constitute a ``technological aid'' permitted for class II
gaming, was the product of careful analysis by the Commission of
Congressional intent behind the enactment of IGRA and the
application by the Commission of a bedrock requirement in rulemaking
by a Federal agency not to depart from Congressional intent where
the intent has been clearly expressed. Consider the comment of Judge
Lamberth of the United States District Court for the District of
Columbia in his opinion regarding the NIGC's rulemaking:
Under the [Administrative Procedures Act] APA, a court reviewing
an agency's legislative rule-making must first examine the statute
and determine whether Congress has unambiguously expressed its
intent. Chevron, U.S.A. v National Resources Defense Council, 467
U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If
Congress has been unambiguous, neither the agency nor the court may
diverge from that intent. Such is the case here. (Italics supplied.)
Cabazon Band v. NIGC, 827 F.Supp 26 (DC 1993).
The concepts supporting the Commission's initial rulemaking are
as valid today as they were in 1992 when the first Commission
members adopted the definition. As such, I do not consider it to be
the prerogative of the Commission simply to set aside the rule. Rule
change would be appropriate under either of the following
circumstances: (1) The Congress indicates through legislation that
the definition should be deleted or revised, thus manifesting a
different Congressional intent, or (2) the Federal courts invalidate
the current rule. Neither of these circumstances presently exists.
As to the first point, bills to amend the IGRA have been
introduced in several sessions of the Congress since IGRA was
enacted in 1988. Although the Congress has made minor adjustment to
the Act in the intervening years, it has not chosen to amend the
Act's basic content or the game classification structure which is a
prominent feature of the Act. As to the second point, at least one
Federal court has upheld the rule and no court has repudiated the
rule.
3. The Current Definition Manifests Congressional Intent
In adopting the definitional regulations, including 25 U.S.C.
507.8, the Commission ``determined that regardless of features,
gaming machines that fell within the scope of the Johnson Act were
class III games.'' 57 FR 12385. In the view of the Commission, the
relationship between the Johnson Act and the IGRA was key to
interpreting Congress' intent concerning which gaming-related
technology is class II and which is class III. In the preamble to
the final rule, the foundation for the Commission's view was said to
rest on two points: (1) The Johnson Act prohibits the use of
gambling devices in Indian Country (15 U.S.C. 1175); and (2) the
IGRA does not supersede or repeal the Johnson Act except with
respect to class III gaming conducted under a compact negotiated
between a state and a tribe. 57 FR 12385.
IGRA mentions the Johnson Act in two places. First, at 25 U.S.C.
2710(d)(6), the IGRA indicates that the Johnson Act will not apply
to compacted gaming. Second, at 25 U.S.C. 2710(b)(1)(A), the IGRA
indirectly mentions the Johnson Act by indicating that a tribe may
conduct class II gaming if the State permits such gaming by any
person, organization or entity, and ``such gaming is not otherwise
specifically prohibited on Indian lands by Federal law.''
In the Senate Report that accompanied the passage of the IGRA,
the Select Committee on Indian Affairs explained the meaning of the
phrase ``such gaming is not otherwise prohibited on Indian lands by
Federal law'' as referring to ``gaming that utilizes mechanical
devices as defined in 15 U.S.C. 1175. That section prohibits
gambling devices on Indian lands but does not apply to devices used
in connection with bingo or lotto.'' S. Rep. No. 446, 100th Cong.,
2d Sess. 12 (1988).\3\
---------------------------------------------------------------------------
\3\ According to the Commission's analysis of the Senate Report,
the language in the report concerning devices used in connection
with bingo or lotto does not create an exception to the Johnson Act
but characterizes the scope of the Johnson Act, which is to say that
the language in the Senate Report merely states the Committee's view
that the Johnson Act does not prohibit bingo blowers--they are not
within its scope.
---------------------------------------------------------------------------
The relevance of the Johnson Act to determining the
classification of Indian gaming permitted under the IGRA, and
consequently the validity of the Commission's choice in 1992 to
incorporate the current definition of electronic or
electromechanical facsimile, is bolstered by the legislative history
of IGRA. In a colloquy that appears in the Congressional Record,
Senator Inouye confirmed Senator Reid's understanding that the
waiver from the Johnson Act created by IGRA was limited to gaming
conducted under tribal-state compacts. In response to a statement of
Senator Reid's understanding that the waiver from the Johnson Act is
limited to gaming conducted under tribal-state compacts, Senator
Inouye states:
Yes the Senator is correct. The bill as reported by the
committee would not alter the effect of the Johnson Act except to
provide for a wavier of its application in the case of gambling
devices operated pursuant to a compact with the State in which the
tribe is located. The bill is not intended to amend or otherwise
alter the Johnson Act in any way.
134 Cong. Rec. 12650, September 15, 1988.
Thus, the Johnson Act is significant to understanding the
distinction Congress intended between class II and class III gaming.
The Johnson Act applies except in compacted class III gaming and
therefore would apply to class II gaming. The Commission ensures
this application in its regulations by use of the definition for
``electronic or electromechanical facsimile'' which incorporates the
Johnson Act definition of gambling device. Removing the
[[Page 41174]]
definition can signal a departure from Congressional intent.
4. Federal Courts Support the Commission's Determination Regarding the
Definition
The crucial challenge to the Commission's early rulemaking came
shortly after the Commission adopted its final rules. In Cabazon
Band v. NIGC, 827 F.Supp 26 (DC 1993), eight tribes joined in a
challenge to several of the Commission's rules including the
definition for ``electronic or electromechanical facsimile'' at 25
CFR 502.8. Judge Lamberth observed:
[I]f the definition of facsimiles were less broad than that of
gambling device, IGRA would be internally contradictory: technology
that--ostensibly--now would be allowed for class II gaming under 25
U.S.C. 2703(7)(A) would be prohibited by the Johnson Act (since the
repeal of the Johnson Act is only for class III gaming). Thus, only
a definition of facsimile that is equivalent to that of gaming
device renders the statute internally consistent and allows both
statutes peaceably to coexist.
Plaintiff's main objection to the Commission's definition stems
from their perception that the definition of gambling device sweeps
within its ambit any device that might be used in gambling. This
interpretation of the Johnson Act is incorrect. As several cases
have held, Congress has acknowledged, and the Commission has noted
in the preamble to its rules, the Johnson Act applies only to slot
machines and similar devices (including the pull-tab games here in
issue), not to aids to gambling (such as bingo blowers and the
like). When the scope of the Johnson Act is properly determined, it
is clear that the definition of gambling devices is significantly
less broad than plaintiff's fear. Moreover, it is clear that
Congress' intent in IGRA is fulfilled only when the IGRA's
definition of facsimile adopts the Johnson Act's definition of
gambling device.
Cabazon Band v. NIGC, 827 F.Supp. at 31. This case represents the
only serious court challenge that has been brought against the
Commission's rulemaking and its determination of appropriate
definitions. On appeal, the plaintiff tribes dropped their challenge
to the Commission rules and instead focused only on their request,
denied in the District Court, for a declaratory judgment that
certain video pull-tab games were class II. In reciting the history
of the case in its appellate decision, the United States Court of
Appeals for the District of Columbia noted ``Judge Lamberth's cogent
opinion rejected each of the Tribe's arguments against these
regulations as `either moot or meritless.''' Cabazon Band v. NIGC,
14 F.3d 633, 634 (1994). (The Court of Appeals also upheld the
ruling of Judge Lamberth that the video pull-tab games were class
III.)
5. Conclusion
The Commission's action raises concerns about the separation of
powers between an executive branch agency and Congress, and I am not
therefore convinced that the rule change is an appropriate action
for the Commission. True, as the proponents indicate, courts have
found it convenient to use the common dictionary meaning of the term
``facsimile'' in deciding whether a particular video pull-tab game
falls within the statutory definition for class II gaming. Also
true, but not particularly understandable, the Court of Appeals for
the District of Columbia, the same Court that six years earlier
found Judge Lamberth's Cabazon opinion on the rule ``cogent,'' did
indicate that the Commission's rule provided no assistance in
interpreting the statute. (See Diamond Games v. Reno, 230 F.3d 365,
369 (D.C. Cir 2000)). However, that Court did not indicate in any
way that the definitional rule varied from the IGRA or from
Congressional intent.
It is the role of Congress to write the law and it is this
Commission's responsibility faithfully to execute the law that
Congress has passed. If the Congress through legislative enactment
signals its desire to change the gaming classification structure
under the IGRA, with the laudable result of permitting a wider range
of class II games, or somehow moves the line between what is a
technological aid permitted for the play of class II games and what
is an electronic facsimile of a game of chance precluded from being
considered class II, then I would be first-in-line to modify the
original definition of facsimile. I am concerned though that the
Commission's action today represents a revision of the law that
Congress has created and improperly encroaches upon the legislative
function. For now, therefore, I feel bound to dissent in the
Commission's amendment because, according to the only relevant court
decision on the matter, the original definition clearly manifests
explicit Congressional intent and is the only definition that can do
so.
Dated: June 8, 2002.
Montie R. Deer.
[FR Doc. 02-15035 Filed 6-14-02; 8:45 am]
BILLING CODE 7565-01-P