[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