by Tom Foley, President
Foley Law Group
Class II gaming is receiving a lot of attention lately - specifically regarding the awkwardly named “Electronic, Computer, or Other Technologic Aids Used in the Play of Class II Games.”
On March 1st, 2004 the U.S. Supreme Court refused to hear appeals from two federal circuit court rulings in U.S. v. Santee Sioux Tribe of Nebraska and Ashcroft v. Seneca-Cayuga Tribe of Oklahoma which affirmed the legal operation of technologic aids to the play of bingo. This was a victory for the tribal position that electronic aids to the play of bingo are legal regardless of how entertaining they might be so long as they meet IGRA's definition of bingo. Seven days later, on March 8, 2004, the National Indian Gaming Commission (NIGC) announced the formation of a Joint Federal-Tribal Class II Game Classification Standards Advisory Committee to assist in the formulation of more definitive technical standards and regulations for distinguishing whether electronic games are Class II or Class III under the Indian Gaming Regulatory Act (IGRA).
Some would see this as ironic inasmuch as several federal district and circuit court judges were able to distinguish quite clearly between Class II technologic aids and Class III games. Irony aside, both NIGC and the Department of Justice (DOJ) moved to create Class II regulation and legislation.
The rules promulgation process begun by NIGC in March, 2004 has continued to the present. Proposed regulations for the “Definition for Electronic Electromechanical Facsimile” and for “Classification Standards for Bingo, Lotto, Other Games Similar to Bingo, Pull Tabs and Instant Bingo as Class II Gaming When Played Through an Electronic Medium Using 'Electronic, Computer, or Other Technologic Aids” were published in the Federal Register on May 25th. A proposed rule for “Technical Standards for 'Electronic, Computer, or Other Technologic Aids' Used in the Play of Class II Games” was published on August 11th.
NIGC produced a number of draft regulations over the course of the promulgation process. There were elements of those drafts which survived to the final document which are of concern to tribes and to those who provide equipment to tribes. They imposed requirements on Class II games that will hurt tribes’ ability to compete with commercial bingo operators. However, as troublesome as those regulations were, they pale in comparison to new requirements that appeared in the proposed regulations that were published in May.
The new requirements came about as follows. While NIGC was crafting its regulations, the DOJ drafted legislation to mandate a clear distinction between the operation and appearance of Class II and Class II games as well as change certain definitions relative to the Johnson Act. But, by the time DOJ's bill was complete, they had pretty much run out of time to pass such legislation. So the proposed NIGC regulations were amended to address the concerns of DOJ that the regulations clearly distinguish between Class II and Class III games.
One of those DOJ amendments, § 546.6 (c) of the proposed classification regulation, would create new time minimums for the duration of ball draws that would double minimum game time from the four seconds per game dictated throughout the drafting process to a full eight seconds per game. The damage to the earning potential of tribal games from such a requirement could be catastrophic.
A friend of mine likes to say, “Where you stand depends on where you sit.” In this case I think the saying is apt when you look at the motivations and actions of the several players:
• Tribes hold the position that IGRA defines bingo quite well, thank you. Every federal judge to rule on the issue has agreed. The tribal position is that electronic, computer or other technologic aids to the play of Class II games need only meet the three requirements for bingo found in IGRA. They contend no further definition is required.
• NIGC, as the agency charged with certain elements of oversight of Indian gaming nationwide, would like to see a standard set of rules with more detailed definitions of terms than those found in IGRA. They want a uniform and detailed template in answer to the question, “What is a legal Class II technologic aid?”
• The Department of Justice wants a line. They want a broad, bright line drawn between Class II and Class III. They asked the courts to enforce such a line, but the courts found no basis for it in law. So, they are attempting to draw their line using the regulatory process.
NIGC has not completed its work and so final analysis of this process is not possible. For the good of tribes the hope is that NIGC is able to craft final regulations that allow tribes to capitalize on technological advances within the boundaries of IGRA's definitions without adding to and thereby changing the meaning of IGRA.
How this will play out remains to be seen. The NIGC has scheduled a public hearing on its proposed regulations for Class II definitions and classification standards for September 19th. The comment period for all three proposed regulations referenced above ends on September 30. Final rules will be published sometime after that.
Tom Foley is President of Foley Law Group and former Vice Chairman of the National Indian Gaming Commission. He can be reached by calling (651) 214-9978 or email firstname.lastname@example.org