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KAMALA D. HARRis

Attorne_y General of California


Sara J. Drake, State Bar No. 102565
WILLIAM P. TORNGREN, STATE BAR No. 58493
Deputy: Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-3033
Fax: (916) 323-2319
E-mail: William. Torn_gren@doj .ca.gov
Attorneys for PlaintiffState oJ California

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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STATE OF CALIFORNIA,
Plaintiff,

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Case No. 3:14-cv-02724-AJB/NLS

v.
IIPAY NATION OF SANTA
YSABEL, also known as SANTA
YSABEL BAND OF DIEGUENO
MISSION INDIANS, a federallYrecognized Indian Trib~~ANTA
YSABEL INTERACT! v J!i, a tribal
economic deveiQP!Ilent entity, SANTA
YSABEL GAMING GOMMISSION,
DAVID CHELETTE, DAVID
VIALPANDO ANTHONY
BUCARO, MICHELLE MAXCY,
VIRGIL PEREZ, and BRANDlE
TAYLOR,

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MEMORANDUM OF POINTS AND


AUTHORITIES IN SUPPORT OF
THE STATE OF CALIFORNIA'S
APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER
Date: December 4, 2014
Time: 2:00p.m.
Courtroom: 3B
Ju~ge: Honorable Anthony J. Battaglia
TnalDate:
Action Filed: November 18,2014

Defendants.

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---1-5-- ---------------------26
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Memorandum of Points and Authorities in Support
of Application for a Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 2 of 27

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TABLE OF CONTENTS

Page
INTRODUCTION ...................................................................................................... 1
FACTS ~2
ARGUMENT '!'4
The Court Has Original Jurisdiction Over the State's Action .............. 5
I.
The Tribe Does Not Have Sovereign Immunity From This
II.

Action ..................................................................................................... 6
IGRA Allows Gaming Only On Indian Lands; the Tribe's
III.
Internet Gambling Ofiindian Lands is Contrary To IGRA .................. 7
IV. The Tribe's Internet Gambling Occurs Both Where The Bettor is
Located and Where the Wager is Received ........................................ 11
v. The Tribe's Internet Gambling is a Facsimile of Bingo and Thus
is Class III Gaming .............................................................................. 14
VI. A Temporary Restraining Order is Appropriate in This Case ............ 15
A.
Because the evidence shows that the Tribe's Internet
gambling_ br~aches the compact and vio!ates the UIGEA,
tbe State Is hkely to succeea on the ments .............................. .16
B.
Because the Tribe's Internet gambling offends the State's
2ublic policies and potentially has far-reaching impact,
the State is likely to suffer irreparable harm in the absence
of relief ...................................................................................... 17
C.
The balance of the equities tips in the State's favor ................ .19
D.
An injunction is in the public interest ....................................... 19
CONCLUSION ........................................................................................................ 20

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The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 3 of 27

TABLE OF AUTHORITIES

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CASES

Amador County v. Salazar


640 F.3d 373 (D.C. Cir. 2011) .............................................................................. 7

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AT&T Corp. v. Coeur d'Alene Tribe


295 F.3d .............................................................................................................. 10
AT&T Corporation v. Coeur d'Alene Tribe
45 F.Supp.2d 995 (D. Idaho 1998) .............................................................. 10, 13

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Cabazon Band of Mission Indians v. National Indian Gaming Comm 'n


. 14 F.3d 633 (D.C. Cir. 1994) .............................................................................. 15

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Cabazon Band of Mission Indians v. Wilson


124 F.3d 1050 (9th Cir. 1997) .......................................................................... 5, 6

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Cachil Dehe Band of Wintun Indians of the Colusa Indian Comm. v.


California Gambling Control Comm 'n
618 F.3d 1066 (9th Cir. 2010) ............................................................................ 16
California v. Cabazon Band ofMission Indians
480 u.s. 202 (1987) .......................................................................................... 8, 9
Coeur d'Alene Tribe v. AT&T Corp.
1999 WL 33622333, Case No. 99-35088 (9th Cir. 1999) .................................... 9
County of Madera v. Picayune Rancheria of Chukchansi Indians
467 F.Supp.2d 993 (B.D. Cal. 2006) .............................................................. 7, 10

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Hotel Employees and Restaurant Employees Int 'l v. Davis


21 Cal. 4th 585 (1999) ......................................................................................... 18

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In re Mastercard Int 'l Inc., Internet Gambling Litig.


132 F.Supp.2d 468(E.D. La. 2001) ..................................................................... 14
Interactive Media Entertainment & Gaming Assn. Inc. v. Attorney General
580 F.3d 113 (3d Cir. 2009); ........................................................................ 12, 13
Lac Vieux Desert Band ofLake Superior Chippewa Indians v. Ashcroft
360 F.Supp.2d 64 (D.D.C. 2004) .......................................................................... 9
11

The State of California's Memorandum in Support


of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 4 of 27

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TABLE OF AUTHORITIES
(continued)

Martin v. United States


389 F.2d 895 (5th. Cir. 1968) .............................................................................. 14
Michigan v. Bay Mills Indian Community
134 S.Ct. 2014 (2014) ..................................................................................... 7, 10
Neighbors of Casino San Pablo v. Salazar
773 F.Supp.2d 141 (D.D.C. 2011) ........................................................................ 7

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People v. Shira
62 Cal.App.3d442 (1976) .................................................................................. 17
Reichert v. General Ins. Co. ofAmerica
68 Cal.2d 822 (1968) .......................................................................................... 16
State ex rei. Nixon v. Coeur d'Alene Tribe
164 F.3d 1102 (8th Cir. 1999) .. ,..; ......................................................... 10, 11, 13
Sycuan Band of Mission Indians v. Roache
54 F.3d 535 (9th Cir. 1994) ................................................................................ 15
United States v. Lombardo
639 F.Supp.2d 1271 (D. Utah 2007) ................................................................... 14
United States v. Lyons
740 F.3d 702 (1st Cir. 2014) ............................................................................... 13

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Winter v. Natural Resources Defense Council, Inc.


555 u.s. 7 (2008) ................................................................................................ 16

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The State of California's Memorandum in Support


of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 5 of 27

TABLE OF AUTHORITIES
(continued)

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STATUTES

California Business and Professions Code


19801(d) ...................... ;................................................................................ 2, 18

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California Penal Code


319 .................................................................................................................... 17
320 ....................................................................................................................... 17
321 .................................................................................................................... 17
322 .................................................................................................................... 17
326.5(m) ........................................................................................................... 17
33 7a .................................................................................................................. 17
18 United States Code
1084 ......... "." ........... " ........... " ......... "" ........ " ............. " ................... " ................ 13
1084(b) ............................................................................................................. 14
1166-1168 .... "" ........ ""." ...... " ....... " .... "." ............ " .... " .... " .... "" ... " ............. " .1

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25 United States Code


2701-2721 ........... " ............. " ............ " ......... :.... """"" "" .... " ......... """" ... " ...... 1
2701 (1) """ .. " .......... "" .. ".""""" ... "" ...... ".""" .... """ .............. " ..... " ... " ........ " .. 8
2702(3) ........................................................................ " ......... """" .................. "8
2703(4) ................ "" .. " ................. """" .. " .... ".""" .. """ .. " ..... "."." ...... " .......... ". 7
2703(4 )(A) ........................................................................................................... 3
2703 (6) ......... "" ...... " .. " ..... " .. " .... " ......... ;, .... " ........ """ ............... " ........ " "" ..... 14
2703(7) ............................................................................................................. 14
2703(7)(B) ........................................................................................................ 14
2703(8) '!14
2710(a)( 1) ........................................................................................................... 8
271 O(d)(7)(A)(ii) ............................................................................................. 5, 7
2719 .................................................................................................................... 8
28 United States Code
1331 .................................................................................................................... 5

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The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 6 of 27

TABLEOF AUTHORITIES

(continued)

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STATUTES (CONT'D)

31 United States Code


5361-5367 ......................................................................................................... 1
5361(a)(4) ......................................................................................................... 11
5362(1) ............................................................................................................. 17
5362(1)(A) ........................................................................................................ 11
5362(1)(B) ................................................... ;.............................................. 11, 12
5362(2) ............. ;............................................................................................... 17
5362(7) ............................................................................................................... 6
5362(10)(A) ...................................................................................................... 12
5362(10)(B) ...................................................................................................... 12
5362(10)(C) ...................................................................................................... 12
5362(10)(C)(i)(1) ....................... ~ ..................................................................... 12
5362(1 O)(C)(ii) ................................................................................................. 13
5362(1 O)(C)(iii) ................................................................................................ 13
5362(10)(E) ...................................................................................................... 12
5363 ........................................................................................................... 13, 17
5365(a) .............................. ;.............................................. .-................................. 6
5365(b)(2) .......................................................................................................... 6
5365(b)(3)(A)(ii) ............................................................................................ 6, 7

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CONSTITUTIONAL PROVISIONS

California Constitution, article IV


19(a) .............................................................................................. ,.................. 18
19(e) ................................................................................................................. 18
19() .................................................................................................................. 18

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OTHER AUTHORITIES

25 Code ofFederal Regulations


502.8 ................................................................................................................. 14

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http://pokerfuse.com/news/law-and-regulation/260 19-california-tribelaunches-real-money-bingo-poker-coming/......................................................... .4

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http://www.iipaynation-nsn.com/gaming.html. ........................................................ .4
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The State of California's Memorandum in Support


of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 7 of 27

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TABLE OF AUTHORITIES
(continued)
http://www .online-casinos.com/news/13 007 -tribal-interests-californiaintroduce-online-gambling ............. ....................... ;............................................. 19
Senate Report No. 100-446 (Aug. 3, 1988) ............................................................... 8

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Letter from Kevin Washburn, General Counsel, NIGC,


to Robert Rossette, Monteau, Peebles & Crowell,
re: Lac Vieux Desert Internet Bingo Operation (Oct. 26, 2000) ............................... 9

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Letter from Montie Deer, Chairman, NIGC,


to Ernest L. Stensgar, Chairman, Coeur d' Alene Tribe,
re: National Indian Lottery (Jun. 22, 1999) ............................................................... 9

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Letter from Penny Coleman, Deputy General Counsel, NIGC,


to Terry Barnes, Bingo Networks, re: U-PIK-EM

Bingo (Jun. 9, 2000) ................................................................................................... 9


Letter from Kevin Washburn, General Counsel, NIGC,
to Joseph Speck, Nic-A-Bob Productions,
re: WIN Sports Betting Game (Mar. 13, 2001) ......................................................... 9

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Letter from Richard Schiff, Senior Attorney, NIGC,


to Don Abney, Principal Chief, Sac and Fox Nation,
re: Tele-Bingo (Jun. 21, 1999) ................................................................................... 9

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Memorandum from Penny Coleman, General Counsel, NIGC


to George Skibine, Chairman, NIGC, re: classification of card
games played with technological aids (Dec. 17, 2009) ........................................... 14

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vi
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 8 of 27

INTRODUCTION

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On November 3, 2014, without any state or federal legislative authority,

defendant Iipay Nation of Santa Ysabel, also known as Santa Ysabel Band of

Diegueno Mission Indians(Tribe), launched "the nation's first web browser-based

i-Gaming platform," which is targeted directly at computers, smart phones, and

other Internet-accessible devices operated by the State of California's (State)

residents. The Tribe's Internet gambling platform allows any Californian over the

age of eighteen to gamble with the Tribe from anywhere that he or she can browse

the Internet, including inthe workplace, at school, or at home. No trip to the

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Tribe's reservation or casino is required.

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The Tribe's self-proclaimed "groundbreaking" efforts to make Internet

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gambling available to Californians "anytime & anywhere" breach the tribal-state

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class III gaming compact (Compact) between the Tribe and the State, do not

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comply with the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721,

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18 U.S.C. 1166-1168, and violate the Unlawful Internet Gambling Enforcement

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Act of2006 (UIGEA), 31 U.S.C. 5361-5367. Because the Tribe's Internet

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gambling has far-reaching and immediate effects on million of Californians, 1 the

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State seeks a temporary restraining order enjoining the Tribe and the other

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defendants from offering Internet gambling to residents of, and visitors to,

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California and accepting payments that violate the UIGEA. 2 Such an order is

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The Tribe's Internet gambling also potentially has far-reaching policy


implications for both California and tlie United States. The legislative oodies of
both have considered- and rejected- wholesale Internet gamoling. Additionally,
legislative staff and tribal representatives have inquired regarding the State's
P,Osition concerning Internet gamblin_g and the Tribe's facsimile of bingo.
tDeclaration of Jogmder Dhillon, 2, ,I 5 (Dhillon Dec.).)
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The requested temporary restraining order is limited to residents, and


visitors, to California because that appears to be how the Tribe has limited its
InteJ!let gambFng .. The State believes that the Tribe offering Internet gambling
outside of California also breaches the Compact and VIolates the UIGEA.
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1
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 9 of 27

necessary to protect the public health, safety, welfare, and good order in the State.

See Cal. Bus. & Prof. Code 19801(d).


FACTS

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The facts are not in serious dispute. 3 The Tribe and the State entered into the
Compact under which the Tribe agreed to conduct gambling in accordance with
law. The Tribe now is offering Internet gambling to California residents ages
eighteen and older. Before the Tribe began to offer Internet gambling, the State
sought, but the Tribe refused, to meet and confer in accordance with the Compact.
(Dhillon Dec., 2-3, ~~ 6 & 7.)
On September 8, 2003, the Tribe and State entered into the Compact, which is.
Exhibit 1 to the complaint. (Dhillon Dec., 2, ~ 3.) The Compact requires that the
Tribe operate its gaming activities legally. Specifically, the Compact provides that
the Tribe may combine and operate in its gamirig facility "any kinds of gaming
permitted under law, except to the extent limited under IGRA .... " (Compact, 8,
4.2 (emphasis added).) The Compact further provides that a tribal gaming agencyhere, the Santa Ysabel Gaming Commission4 - will conduct on-site gaming
regulation and control "in order to enforce the terms of this ... Compact [and]
IGRA." (Compact, 22, 7.1.) That commission is to ensure enforcement of all
relevant laws and prevent illegal activity. (Compact, 25, 8.1.1, 8.1.4.)
The Tribe agreed not to engage in class III gaming that is not expressly
authorized in the Compact. (Compact, 7, 3.0.) Under Compact section 4.1, the
Tribe is authorized and permitted to operate (a) gaming devices- i.e., slot
machines, (b) banking and percentage card games, and (c) "any devices or games
that are authorized under state law to the California State Lottery,provided that the

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The facts are set forth in the Declaration of Joginder Dhillon and .the
Declaration of Micah Scott (Scott Dec.), both of whicli are filed concurrently with
the State's motion for a temporary restraining order.
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The Santa Y sahel Gaming Commission a~ well as its agents., is a


defendant. The ComQact specifically provides that the term "Tribe" mcludes the
Tribe, as well as its oificiafs and agencies. (Compact, 6, 2.13.1.)
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The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 10 of 27

[Tribe] will not offer such games through use of the Internet unless others in the

state are permitted to do so under state and federal law." (Compact, 8, 4.l(c)

(emphasis added).) The Tribe is not to permit persons under the age of twenty-one

years to be present in any room or area in which class III gaming activities are

conducted. (Compact, 11, 6.3.)

Despite the express limitations in the Compact, on November 3, 2014, the

Tribe began to offer Internet gambling in the form of a facsimile of bingo. (Scott

Dec., 2, ,-r 3.) According to the press release issued on the same day, the Tribe

purported to do so pursuant to IGRA and its tribal sovereign authority. (Dhillon

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Dec., Exh. A.) Also according to that press release, by using any web browser on

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any computer, mobile device, or tablet, a California resident can purchase bingo

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cards to be eligible to win cash prizes. (!d.) Play is available to California

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residents over the age of eighteen. (!d.)

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The Tribe's Internet gambling is not restricted to its Indian lands. 5 As

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described in the Declaration of Micah Scott and consistent with the press release,

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the Tribe's Internet gambling apparently is accessible to California residents

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irrespective of their location. Bettors need not travel to the Tribe's Indian lands to .

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gamble. (Scott Dec., 3, ,-r 7.) Bettors use the Internet and log into the Tribe's bingo

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website. (Id. at 2-3, ,-r 5.) They place bets by withdrawing money from accounts

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that they have opened with the Tribe. (!d.) Bettors may fund their accounts by

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credit card or other electronic funds transfer. (!d. at 2, ,-r 4.) After the bet is placed,

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the game system plays the game including covering a facsimile bingo card and

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determining the winner. (!d. at 3, ,-r 6.) The bettor's participation is limited to

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electing the amountto bet and how many cards to play in any game. (!d.; see also

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5 Under IGRA, "Indian lands" include lands within the limits of an Indian
reservation, 25 U.S.C. 2703(4)(A), and "any lands title to which is either held in
trust by .the 1Jnited ~ta~e~ for the 'J:>enefit of ~y .Indian tribe individual or. held by
any ln(han tnbe or mdtvtdual subJect to restnctwn by the Umted States al?amst
alienation and over which an Indian tribe exercises governmental power, id.
2703(4)(B).
.

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The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 11 of 27

Dhillon Dec., 2, ~ 4 & Exh. A ("At no time is live bingo game action performed by

the user.").)

Except under certain circumstances, the Compact provides for a meet and

confer process when disputes arise under it. The requirement is "without prejudice

to the right of either party to seek injunctive relief against the other when

circumstances are deemed to require immediate relief." (Compact, 27, 9.1.) In

July 2014, information appeared in the gaming press and gambling blogs that the

Tribe intended to "launch real money online poker" in California within a short

t!me. 6 On July 14, 2014, the State sent a letter requesting that the parties meet and

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confer concerning whether the Tribe's planned Internet gambling materially

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breached the Compact. (Dhillon Dec., 2-3, ~ 6, Exh. B.) That letter also referred to

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Internet bingo. (Id.) The Tribe rejected the State's request to meet and confer.

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(Dhillon Dec., 3, ~ 7, Exh. C.)

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ARGUMENT

The Tribe's Internet gambling breaches the Compact, violates IGRA, and can

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be enjoined under both the Compact and the UIGEA. The Tribe's gambling is legal

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only if conducted entirely on Indian lands. Its class III gaming is legal only if

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conducted on the Tribe's Indian lands in compliance with the Compact. Its Internet

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gambling is not being conducted only on the Tribe's Indian lands. Instead, bettors

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located off the Tribe's Indian lands can participate in its Internet gambling. Its

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Internet gambling is not being conducted in compliance with the Compact or

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IGRA. Importantly, the Tribe's Internet gambling is not expressly authorized by

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the Compact and, therefore, is prohibited.

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The Tribe's website reports that it has established defendant Santa Ysabel
Interactive and launched an !-gaming poker website. (http://www.iipaynationnsn.com/gaming.html.) Gaming blogs re_port that real money online poker under
PrivateTable.com remains part of the Trioe's plans. (See, e.g.,
http://pokerfuse.com/newsllaw-and-regulatiori/260 19-california-tribe-launches-realmoney-bingo-poker-coming/.)
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The State of California's Memorandum in Support


of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 12 of 27

I.

THE COURT HAS ORIGINAL JURISDICTION OVER THE STATE'S ACTION

The Court has jurisdiction over this action under 28 U.S.C. 1331, IGRA, and

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the UIGEA. The State's complaint invokes the Court's jurisdiction under 28

U.S.C. 1331 because the State's claim arises under federal statutes and the federal

common law. This Court has jurisdiction under section 1331 to enforce a compact.

Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1055-56 (9th Cir.

1997) (Cabazon II), cert. denied sub nom. Wilson v. Cabazon Band of Mission

Indians, 524 U.S. 926 (1998). In Cabazon II, the State asserted that the court

lacked jurisdiction because the dispute was purely contractual. Id. at 1055. In

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rejecting that argument, the Ninth Circuit concluded:

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The State's obligation to the Bands thus originates in the


Compacts. The Compacts quite clearly are a creation of
federal law; moreover, IGRA prescribes the permissible
scope of the Compacts. We conclude that the Bands'
claim to enforce the Compacts arises under federal law
and thus that we have junsdiction pursuant to 28 U.S.C.
1331 ....

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Id. at 1056. Here, the same analysis applies. The Tribe's obligation to the State

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arises from the Compact, which is a creation of federal law and entered into

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pursuant to IGRA. Importantly,the State seeks to enforce the Compact.

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The Court also has jurisdiction pursuant to 25 U.S.C. 271 0(d)(7)(A)(ii)

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because this action is initiated by the State to enjoin conduct related to the Tribe's

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class III gaming activity that violates the Compact. 7 In Cabazon II, the Ninth

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Circuit also addressed jurisdiction under IGRA. The court concluded that "IGRA

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necessarily confers jurisdiction onto federal courts to enforce Tribal-State compacts

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and the agreements contained therein." Cabazon II, 124 F.3d at 1056. This is

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Title 25 U.S.C. 2710(d)(7)(A)(ii) provides district court jurisdiction over


"any cause of action initiated by a 'State ... to enjoin a class III gaming activity
located on Indian lands and conducted in violation of any Tribal-.:.State compact ...
7

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"
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The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 13 of 27

exactly what the State seeks to do in this case- i.e., enforce the Tribe's public

safety duties under the Compact.


Finally, the Court has original and exclusive jurisdiction under the UIGEA to

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prevent and restrain restricted transactions. 8 31 U.S.C. 5365(a). The State

generally may institute proceedings for an injunction. 31 U.S.C. 5365(b)(2).

Here, the Tribe may assert that the restricted transactions are initiated, received, or

otherwise made on Indian lands. (See Dhillon Dec., Exh. A.) That assertion,

however, does not divest the Court of jurisdiction. Under the UIGEA, the State

then may pursue remedies provided in the Compact with respect to restricted

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transactions. 31 U.S.C. 5365(b)(3)(A)(ii). The State's second claim for relief

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arises under the UIGEA, and the Court has jurisdiction.

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II.

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THE TRIBE DOES NOT HAVE SOVEREIGN IMMUNITY FROM TillS ACTION

The Tribe does not enjoyo sovereign immunity with respect to the claims for

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relief made in the State's complaint because Compact section 9.4 provides for a

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limited waiver of sovereign immunity:

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(a) In the event that a dispute is to be resolved in federal


court ... as provided in tfiis Section 9.0, the State and the
Santa Y sabe1 Tribe expressly consent to be sued therein
and waive any immumty therefrom that they may have
provided that:
( 1) The dispute is limited solely to
issues arising under this Gaming Compact;
(2) Neither side makes any claim for
monetary damages (that is, only mjunctive,
specific performance, ... or declaratory
relief is sought); and
(3) No _person or entity other than the
Santa sahel Tribe and the State is party to
the actiOn ....

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8 Under the UIGEA, a "restricted transaction" means any transaction


involving any credit, funds, instrument, or proceeds that the recipient is prohibited
from accepting. 31 U.S:C. 5362(7).

6
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 14 of 27


~-

(Compact, 30-31, 9.4.) Clearly, this action meets those criteria.to waive

sovereign immunity. 9

Additionally, 25 U.S.C. 271 0( d)(7)(A)(ii) constitutes a congressional waiver

of tribal sovereign immunity. That issue was central in the Supreme Court's recent

Michigan v. Bay Mills Indian Community, 134 S.Ct. 2014 (2014), decision. There,

the Supreme Court determined that the section's sovereign immunity waiver did not

apply when class III gaming was not conducted on Indian lands. The Court

observed that IGRA partially abrogates tribal sovereign immunity in section

2710(d)(7)(A)(ii). !d. at 2032. Here, the Tribe publicly asserts that the gaming

10

activity 10 occurs on its Indian lands. Moreover, the complaint alleges that some

11

equipment integral to the Tribe's Internet gambling is located on the Tribe's Indian

12

lands. (Complaint, 9, ,-r 34.) Therefore, IGRA's sovereign immunity waiver also

13

applies.

14

Ill. IGRA ALLOWS GAMING ONLY ON INDIAN LANDS; THE TRIBE;S

15

INTERNET GAMBLING OFF INDIAN LANDS IS CONTRARY TO IGRA

16

IGRA establishes federal standards for gaming on tribal lands. It creates a

17

regulatory framework for tribal gaming intended to balance state, federal, and tribal

18

interests. Amador County v. Salazar, 640 F.3d 373, 376 (D.C. Cir. 2011). Under

19

IGRA, a tribe may conduct gaming only on Indian lands. Neighbors of Casino San

20

Pablo v. Salazar, 773 F.Supp.2d 141, 143 (D.D.C. 2011). "Indian lands" is a

21

defined term and means, among other things, lands within the limits of a

22

reservation and lands held in trust by the United States for a tribe. 25 U.S.C.

23

2703(4).

24
This waiver also applies to the State's claim under the UIGEA, which
looks to the enforcement authorities under an IGRA tribal-state compact. See 31
U.S.C. 5365(b)(3)(A)(ii).
9

25
26

Gaming activity is not limited to an actual class III_game. See County of


Madera v. Picayune Rancheria ofChukchansi Indians, 467 F.Supp.2d 993, 1002
(B.D. Cal. 2006).
10

27
28

7
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 15 of 27

Congress manifested its intention to limit IGRA to gaming on Indian lands

throughout the act. First, in IGRA's findings section, Congress found that

numerous tribes engaged in or licensed "gaming activities on Indian lands," 25

U.S.C. 2701(1), existing federal law did not provide clarity for the "conduct of

gaming on Indian lands," id. 2701(3), and tribes have the exclusive right to

"regulate gaming activity on Indian lands," id. 2701(5). Second, Congress

declared that one ofiGRA's purposes is to establish federal regulatory authority

and federal standards for "gaming on Indian lands." 25 U.S.C. 2702(3). Third,

Congress generally prohibited gaming on tribal trust lands acquired after October

10

17, 1988. See 25 U.S.C. 2719. Finally and importantly, all ofthe provisions

11

relating to the licensing and regulation under IGRA apply only to gaming on Indian

12

lands. See, e.g., 25 U.S.C. 2710(a)(1) (class I gaming), (b)(1) (class II gaming),

13

(d)(1) (class III gaming) .

.14

Senate Report No. 100-446 (Aug. 3, 1988) (Senate Report) supports the

15

conclusion that IGRA and the gaming that it allows are limited to Indian lands. The

16

report summarizes IGRA as providing "for a system of joint regulation by tribes

17

and the Federal Government of class II gaming on Indian lands and a system for

18

compacts between tribes and States for regulation of class III gaming." Id. at 1.

19

The act was the "outgrowth of several years of discussions and negotiations

20

between gaming tribes, States, the gaming industry, the administration, and the

21

Congress, in an attempt to formulate a system for regulating gaming on Indian

22

lands." !d. The report characterized California v. Cabazon Band of Mission

23

Indians, 480 U.S. 202 (1987)(Cabazon 1), as using a balancing test between

24

federal, state, and tribal interests to find "that tribes ... have a right to conduct

25

gaming activities on Indian lands unhindered by State regulation." Senate Report,

26

1. The report observed, "in the final analysis, it is the responsibility of Congress,

27

consistent with its plenary power over Indian affairs, to balance competing policy

28

8
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 16 of 27

interests and to adjust, where appropriate, the jurisdictional framework for

regulation ofgaming on Indian lands." I d. at 2 (emphasis added).

Because IGRA and the Senate Report are clear that IGRA gaming is limited to

Indian lands, the NIGC concluded that non-electronic bingo played through human

proxies offered to patrons over the Internet "is not authorized under IGRA." (Letter

from Kevin Washburn, General Counsel, NIGC, to Robert Rossette, Monteau,

Peebles & Crowell, re: Lac Vieux Desert Internet Bingo Operation (Oct. 26,

2000));I 1 see Lac Vieux Desert Band ofLake Superior Chippewa Indians v.

Ashcroft, 360 F. Supp. 2d 64, 65 (D.D.C. 2004) (describing the game).

10

Moreover, the NIGC consistently has concluded that tribes making Internet

11

gambling available to persons not located on Indian lands violate IGRA. (See, e.g.,

12

Letter from Montie Deer, Chairman, NIGC, to Ernest L. Stensgar, Chairman, Coeur

13

d' Alene Tribe, re: National Indian Lottery (Jun. 22, 1999); letter from Penny

14

Coleman, Deputy General Counsel, NIGC, to Terry Barnes, Bingo Networks, re: U-

15

PIK-EM Bingo (Jun. 9, 2000); letter from Kevin Washburn, General Counsel,

16

NIGC, to Joseph Speck, Nic-A-Bob Productions, re: WIN Sports Betting Game

17

(Mar. 13, 200_1); see also letter from Richard Schiff, Senior Attorney, NIGC, to

18

Don Abney, Principal Chief, Sac and Fox Nation, re: Tele-Bingo (Jun. 21, 1999)

19

(bingo played by telephone off-Indian lands violates IGRA).) In its only known

20

entry into tribal Internet gaming, the United States Department of Justice shared the

21

NIGC's opinion. See Brief of the United States as Amicus Curiae, Coeur d'Alene

22

Tribe v. AT&T Corp., 1999 WL 33622333, Case No. 99-35088 (9th Cir. 1999).

23

The State is not aware of any published court decision that expressly

24

authorizes tribal gaming under IGRA off of Indian lands. Rather, the decisions lead

25

to the conclusion- consistent with IGRA's provisions and the Senate Report- that

26

IGRA gaming is limited to Indian lands. In AT&T Corporation v. Coeur d'Alene

27

II Each NIGC g~ming opinion lettt?r cited herein is contained in Appendix


A, filed concurrently w1th tlie State's motwn for a temporary order.

28

9
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of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 17 of 27

Tribe, 45 F. Supp. 2d 995 (D. Idaho 1998), rev'd on other grounds, 295 F.3d 899

(9th Cir. 2001 ), the district court found that, to the extent the tribe's planned

National Indian Lottery (NIL) occurred outside the limits of the reservation, IGRA

did not preempt state gambling laws. 12 Based upon that finding, the court

concluded that notices given by states under the federal Wire Act precluded

AT&T's providing toll-free telephone services for the NIL to those states. !d. at

999-1000. The court observed that under the plain language of IGRA, the gaming

activities constituting the NIL had to occur on lands within the limits of the tribe's

reservation to be unregulated. !d. at 1001. The court found that placing a wager

10

was a gaming activity within the meaning of IGRA. !d. ("But for the act of placing

11

the 'lottery wager,' the player could not participate in, and the Tribe could not

12

operate, the [NIL]."). 13

'13

In State ex rel. Nixon v. Coeur d'Alene Tribe, 164 F .3d 1102 (8th Cir. 1999),

14

the Eighth Circuit addressed Missouri's challenge to the NIL. The state filed

15

actions in state court against the tribe and its contractor to enjoin conducting the

16

NIL with Missouri residents. Defendants removed both cases, which the federal

17

district courts subsequently dismissed. The Eighth Circuit reversed and remanded.

18

The court pointed out that "IGRA established a comprehensive regulatory regime

19

for tribal gaming activities on Indian lands . ... Once a tribe leaves its own lands

20

and conducts gambling activities on state lands, nothing in the IGRA suggests that

21

12 In reversing, the Ninth Circuit focused on the NIGC's approval ofthe


management agreement for the NIL ~nd the failure of the states, which issued
letters to AT&T under the federal W1re Act, to challenge the NIGC's approval as
final agency action. The Ninth Circuit expressly did not address the issue of the
NIL's legality: "This Court draws no conclusion as to how the Lottery might fare
when pro,perly challenged in federal court and balanced against state laws and
interests. AT&T Corp. v. Coeur d'Alene Tribe, 295 F.3d~ at 910 n. 12.

22
23
24
25
26
27
28

13 In County ofMadera v. Picayune Rancheria of Chukchansi Indians, 467


F.Supp.2d at 1002, tiie court found that "gaming activity" would be the actual
playmg or provision of the games and the necessary conduct associated with
J2laying or providing the identified games. See also Michigan v. Bay Mills Indian
Community, 134 S.Ct at 2032-33.

10
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 18 of 27

Congress intended to preempt the State's historic right to regulate this controversial

class of economic activities." !d. at 1108 (emphasis in original). The court

concluded that if the NIL was being conducted on Missouri lands, IGRA did not

preempt the state law claims or even provide a defense thereto. !d. at 1109. 14

In sum, the Tribe's Internet gambling does not fall within the purview of

IGRA because some of the gaming activity necessarily takes place outside of the

Tribe's Indian lands. Thus, IGRA does not give the Tribe the power to engage in,

or license and regulate, the Internet gambling. Instead, the State has the power to

regulate the Tribe's Internet gambling.

10
11
12

IV. THE TRIBE'S INTERNET GAMBLING OCCURS BOTH WHERE THE


BETTOR IS LOCATED AND WHERE THEWAGER IS RECEIVED

Although the Tribe may argue that its Internet gambling offerings are lawful

13

because servers or some other equipment is located on its Indian lands, the UIGEA

14

confirms Congress's recognition that Internet gambling may cross state and

15

national borders:

16
17
18
19
20

New mechanisms for enforcing gambling laws on the


Internet are necessary because traditional law
enforcement mechamsms are often inadequate for
enforcing gambling prohibitions or regulations on the
Interne~, especially where such gamblmg crosses State
and natiOnal borders.
31 U.S.C. 5361(a)(4).

21

This finding apparently leads to the UIGEA's definition of"bet or wager" as

22

including the movement of funds. Under the UIGEA, bet or wager means -staking

23

or risking something of value upon the outcome of a game, subject to chance, upon

24

an agreement or understanding of receipt of something of value in the event of a

25

certain outcome. 31 U.S.C. 5362( 1)(A). Bet or wager includes the purchase of a

26

chance or opportunity to win a lottery, 31 U.S.C. 5362(1)(B), and any instructions

27

14 Even though the cases were remanded for a determination of whether the
NIL was being conducted on Missouri lands, no subsequent history is reported.

28

11

The State of California's Memorandum in Support


of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 19 of 27

or information pertaining to the establishment or movement of funds by the bettor

or customer in, to; or from an account with a business of betting or wagering, id.

5362(1 )(D).

The UIGEA looks to the laws of the places both where the bet or wager are

placed and received. Unlawful Internet gambling is defined as "to place, receive, or

otherwise knowingly transmit a bet or wager by any means which involves the use,

at least in part, of the Internet where such bet or wager is unlawful under any

applicable Federal or State law in the State or Tribal lands in which the bet or

wager is initiated, received, or otherwise made." 31 U.S.C. 5362(10)(A)

10

(emphasis added); see Interactive Media Entertainment & Gaming Assn. Inc. v.

11

Attorney General, 580 F.3d 113, 117 (3d Cir. 2009) (Interactive) (npthing in the

12

UIGEA suggests that Congress meant anything other than the physical location of a

13

bettor or gambling business). Congress recognized that routing is an integral part

14 , of the Internet and may be used to avoid the UIGEA; therefore, it included the
15

provision that "intermediate routing of electronic data shall not determine the

16

location or locations in which a bet or wager is initiated, received, or otherwise

17

made." 31 U.S.C. 5362(1 O)(E).

18

Further showing Congress' view that gambling occurs both where the bet or

19

wager is placed and received, the UIGEA excludes from unlawful Internet

20

gambling purely intrastate betting or wagering - i.e., "initiated and received or

21

otherwise made exclusively within a single State"- subject to certain conditions.

22

31 U.S.C. 5362(10)(B). Similarly, the UIGEA excludes from unlawful Internet

23

gambling certain transactions on-Indian lands. See 31 U.S.C. 5362(1 O)(C). For a

24

single tribe to avoid unlawful Internet gambling, it must meet certain requirements,

25

including all the following:

26

'

a.

The bet or wager must be initiated and received exclusively "within the

27

Indian lands" of the tribe as defined under IGRA, 31 U.S.C.

28

5362(1 O)(C)(i)( 1);

12
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of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 20 of 27

b.

The method by which the bet or wager is initiated and received must be

expressly authorized by and comply with a tribal ordinance approved by

the NIGC and, if class III gaming, the applicable tribal-state gaming

compact, 31 U.S.C 5362(10)(C)(ii); and

c.

The applicable tribal ordinance or compact must include age and location

verification requirements "reasonably designed to block access to minors

and persons located out of the applicable Tribal lands," 31 U.S.C

5362(10)(C)(iii).

The UIGEA prohibits gambling businesses from knowingly accepting various

10

forms of financial instruments in connection with another person's participation in

11

unlawful Internet gambling, including proceeds from credit cards, electronic fund

12

transfers, and checks. See 31 U.S.C. 5363; United States v. Lyons, 740 F.3d 702,

13

729 (1st Cir. 2014). For determining whether the gambling is unlawful, the test is

14

whether it is illegal at the location in which the gambling business is located or the

15

location from which the individual initiated the bet or wager. Interactive, 580 F.3d

16

at 116. The Third Circuit succinctly summarized the locational aspects of UIGEA:

17

"Simply put, a gambling business cannot knowingly accept the enumerated

18

financial instruments in connection with a bet that is illegal under any Federal or

19

State law applicable in the jurisdiction in which the bet is initiated or received." !d.

20

at 117.

21

The UIGEA's locational focus is consistent with other authorities that examine

22

betting as occurring in two places- i.e., where the bettor is located and where the

23

wager is received. For example, both the district court in AT&T Corporation v.

24

Coeur d'Alene and the Eighth Circuit in State ex rel. Nixon v. Coeur d'Alene Tribe

25

looked to players' locations in examining state law applicability or IGRA

26

preemption. Additionally, the federal Wire Act, 18 U.S.C. 1084, which

27

proscribes transmitting bets or wagers in interstate commerce, contains a safe

28

harbor for the transmission of information assisting in the placing of bets or wagers

13
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 21 of 27

from a state or foreign country where betting on that sporting event or contest is

legal into a state or foreign country in which such betting is legal. 18 U.S.C.

1084(b). Thus, the Wire Act looks to the parties' locations. See, e.g., Martin v.

United States, 389 F.2d 895, 897~98 (5th Cir. 1968). 15

In sum, the Tribe's Internet gambling occurs off the Tribe's Indian lands when

bettors- i.e., Internet users- are not physically on the Tribe's Indian lands.

v.

THE TRIBE;S INTERNET GAMBLING IS A FACSIMILE OF BINGO AND


THUS Is CLASS III GAMING

IGRA divides tribal gaming into three classifications: class I, which involves

10

traditional forms of tribal gaming and social games solely for minimal prizes; class

11

II, which is bingo meeting certain criteria and some card games; and class III,

12

which is all fomis of gaming that are not class I or class II. 25 U.S.C. 2703(6),

13

(7), (8). Class III gaming includes banking card games, electronic facsimiles of any

14

game of chance, and slot machines of any kind. 25 U.S.C. 2703(7)(B).

15

The NIGC defines an electronic facsimile to be "a game played in an

16

electronic ... format that replicates a game of chance by incorporating all of the

17

characteristics of the game, except when, for bingo ... , the electronic ... format

18

broadens participation by allowing multiple players to play with or against each

19

other rather than with or against a machine." 25 C.P.R. 502.8. In discussing what

20

an electronic facsimile is, the NIGC writes: "If, however, a particular aid ...

21

becomes a necessity, or encompasses all the aspects of a particular game, it ceases

22

to be a technological aid and becomes an electronic facsimile." (Mem. from Penny

23
Federal courts are divided as to whether the Wire Act reaches Internet
wagers and bets that do not involve sporting contests. Compare In re Mastercard
Int'l Inc., Internet Gambling Litig., 132 F. Supp. 2d 468, 480~81(E.D. La. 2001),
aff'db313 F.3d 257 (5th Cir. 2002) (sportin~vents only), with Onited States v.
om ardo, 639 F. Su_p_p: 2d 1271, 1279~82 tU. Utah 2907) (all forms ofbetting). In
December 2011, the Uiuted States Department of Justice released a memorandum
that concluded that the Wire Act's prollibitions relate solely to sports-related
gambling activities. (Memorandum Opinion for the Assistant Attorney General,
Criminaf Division (Sept. 20, 2011 ). )
15

24
25
26
27
28

14
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 22 of 27

Coleman, General Counsel, NIGC, to George Skibine, Chairman, NIGC, re:

classification of card games played with technological aids, 8 (Dec. 17, 2009)

(available in Appendix A).)

An electronic facsimile of bingo is a class III game. Here, the evidence shows

that players, who are located off the Tribe's Indian lands, do nothing other than

place a bet. (Scott Dec., 3, ~~ 6, 7.) The Tribe's electronic system does everything

else. If the electronic system is removed, the game disappears. Therefore, the

electronic system is a necessity of the game.

The Tribe's electronic system selects the numbers, purportedly marks the

10

cards, and determines the winner. (Scott Dec., 3, ~ 6.) In this way, the Tribe's

11

Internet gambling is no different from the electronic pull-tab dispenser that the

12

Ninth Circuit held to be an electronic facsimile in Sycuan Band ofMission Indians

13

v. Roache, 54 F.3d 535 (9th Cir. 1994) (Sycuan). The pull-tab dispenser there, like

14

the Tribe's Internet game here, produced only an electronic reproduction of a paper

15

ticket on a computer screen. Unlike the Tribe's Internet game here in which every

16

part of the game is played on its electronic system, the player in Sycuan actually did

17

something to reveal numbers. !d. at 541. The court found, as the Court should

18

here, that the pull-tab machine was a class III facsimile because- it was a self-

19

contained computer game played electronically. ld. at 542. Here, like the pull-tab

20

game in Sycuan, the game is an exact and detailed copy of a bingo game played

21

electronically. See id; see also Cabazon Band ofMission Indians v. National

22

Indian Gaming Comm 'n, 14 F.3d 633, 636-37 (D.C. Cir. 1994)(pull-tab game in

23

which multiple players played against each other was class III electronic facsimile);

24

(Scott Dec., 3, ~ 7).

25

VI. A TEMPORARY RESTRAINING ORDER Is APPROPRIATE IN TIDS CASE

26

The requirements for a temporary restraining order are the same as those for a

27

preliminary injunction. A party applying for a preliminary injunction "must

28

establish that he is likely to succeed on the merits, that he is likely to suffer

15
'
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 23 of 27

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest." Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Here, the evidence

establishes all of these factors.

A.

Because the Evidence Shows that the Tribe's Internet Gambling


Breaches the Compact and Violates the UIGEA, the State Is
Likely To Succeed on the Merits

The State's first claim for reliefis breach of the Compact. A compact is a

contract, and is governed by general federal contract law principles. Cachil Dehe

Band of Wintun Indians of the Colusa Indian Comm. v. California Gambling

10

Control Comm'n, 618 F.3d 1066, 1073 (9th Cir. 2010). In determining federal

11

contract law, courts rely upon both "California contract law and Ninth Circuit

12

decisions interpreting California" contract law. Id. The elements for a breach of

13

contract claim are the contract, plaintiffs performance or excuse for

14

nonperformance, defendant's breach, and resulting damages to plaintiff. Reichert v.

15

General Ins. Co. ofAmerica, 68 Cal.2d 822, 830 (1968).

16

In this case, the Tribe's breach of the Compact is clear. The Tribe agreed not

17

to engage in class III gaming that is not expressly authorized in the Compact.

18

(Compact, 7, 3.0.) The only Internet gambling expressly allowed by the Compact

19

is "devices and games that are authorized ... to the California State Lottery" that

20

others in the State are permitted to offer through the Internet under state and federal

21

law. (Compact, 8, 4.1(c).) No one is permitted to offer any California State

22

Lottery game through the Internet. (Dhillon Dec., 3, ,-r 8.) Consequently, the

23

Tribe's offering its class III facsimile of bingo over the Internet breaches its duties

24

under the Compact. The State is likely to succeed on its first claim for relief on the

25

merits.

26

The State's second claim for relief is under the UIGEA. Under the facts here,

27

the Tribe is engaging in unlawful Internet gambling. The betting, which is initiated

28

in California off of Indian lands, is illegal under State law. California statutes make

16
The State of California's MemoraiJ.dum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 24 of 27

setting up and drawing a lottery, selling or furnishing a chance in a lottery, and

aiding or assisting those acts, crimes. Cal. Penal Code 320, 321, 322. The

Tribe's electronic facsimile ofbingo is a form of lottery as it is a game played for a

prize determined by chance for consideration. See Cal. Penal Code 319; see also

People v. Shira, 62 Cal.App.3d 442, 462-63 (1976).

Additionally, California Penal Code section 337a broadly prohibits keeping a

place with devices for the purpose of recording any bets or wagers, receiving

anything of value bet or wagered, recording bets or wagers, or offering or accepting

any bets or wagers. The Tribe's Internet gambling system violates California Penal

10

Code section 337a, which is a predicate for UIGEA relief.

11

Finally, California law requires that bingo participants be physically present at

12

the time and place where the game is being conducted, Cal. Penal Code 326.5(m),

13

and prohibits using electronic or video displays in connection with bingo, id.

14

326.5(o). The Tribe's Internet gambling violates these California Penal Code

15

provisions. That too provides a predicate for UIGEA relief.

16

Through its unlawful Internet gambling, the Tribe is engaged in the business

17

of betting or wagering. It provides the electronic system ( 1) by which customers

18

bet or wager or purchase an opportunity to win a lottery and (2) which includes

19

instructions or information pertaining to moving funds in, to, or from an account

20

with the Tribe. See 31 U.S.C. 5362(1), (2). The Tribe knowingly accepts credit

21

and other transfers in connection with the unlawful Internet gambling. 31 U.S.C.

22

5363. The State is likely to succeed on its second claim for relief on the merits.

23

B.

24
25
26

Because the Tribe's Internet Gambling Offends the State's


Public Policies and Potentially Has Far-Reaching Impact, the
State Is Likely To Suffer Irreparable Harm in tlie Atisence of
Relief

The State has no adequate remedy at law. Under the Compact, IGRA, and the

27

UIGEA, it can seek only injunctive relief. Moreover, even if damages were

28

recoverable, they could not adequately compensate the State for the harm done to
.

17
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 25 of 27

its interests by illegal gambling and the possibility of unregulated Internet gambling

by many tribes, both within and outside the State's borders.

The State has an interest in ensuring compliance with the Compact. (Dhillon

Dec., 3, ,-r 9.) Additionally, the State's public policy against unlawful lotteries is at

stake. (!d.) That public policy is enunciated in the California Constitution's broad

prohibition of lotteries, Cal. Const. art. IV, 19(a), as well as the California Penal

Code. The State's public policy regarding tribal gaming alsois set forth in the

California Constitution, which allows the negotiation and legislative ratification of

tribal-state gaming compacts for the operation of slot machines and for the conduct

10

of lottery games and banking and percentage card games. Cal. Const. art. IV,

11

19(f). The Compact establishes the perimeters of the Tribe's class III gaming.

12

Otherwise, class III gaming is unlawful in California. See Cal. Const. art. IV,

13

19(e); Hotel Employees and Restaurant Employees Int'l v. Davis, 21 Cal. 4th 585

14

(1999). The State's interest in protecting its public policy will be harmed

15

irreparably without the requested order. (See Dhillon Dec., 3, ,-r 9.)

16

Additionally, the Tribe's Internet gambling targets California residents age

17

eighteen and older. It allows unlawful gambling anywhere these residents are-

18

albeit at school, work, or home. Even though it targets Californians who are not on

19

its Indian lands, the Tribe seeks to preclude the State from an opportunity to

20

-regulate the Internet gambling either through the Compact or otherwise.

21

Unregulated gambling enterprises are inimical to the public health, safety, welfare,

22

and good order. Cal. Bus. & Prof. Code 19801 (d). The State thus will suffer

23

irreparable harm if the Tribe is allowed to continue its Internet gambling.

24

Moreover, the Tribe's Internet gambling presents issues that potentially affect

25

millions of Californians and, possibly, the United States' gambling policies. The

26

gambling press reports the following with attribution to defendant Santa Y sahel

27

Interactive:

28

18
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 26 of 27

DesertRoseBingo.com, is an experiment of sorts and if the


site m~nages ~o successfully keep online and doesn't run
up agamst maJor legal challenges, the move may be a
precursor for an online poker offering shortly. Santa
Ysabel Interactive Director ofMarketing Cnris Wrieden
explained to the Pokerfuse news source, "Some believe
our _Eromise to bring regulated cash poker games to
California qas all been a great big bfu~f, for any numl?er
of self-servmg reasons. r can teH you It hasn't been, It
just takes time to put all of the pieces together. When we
1aunch it will put our critics' bluff theory to rest and when
we accept ourjirst online bet, we will be on our way to
creating change for our industry."

2
3
4

7
8

(http://www .online-casinos.com/news/13 007 -tribal-interests-california-introduce-

online-gambling (emphasis added).) The absence of injunctive relief not oply will

10

encourage the Tribe to offer additional Internet gambling, but also may encourage

11

other tribes to begin online gambling in California and elsewhere. (See Dhillon

12

Dec., 3, ~ 9.)

13

C.

14

The equities clearly favor the State and its interests in ensuring compliance

The Balance of the Equities Tips in the State's Favor

15

with Compact and protecting the public health, safety, welfare, and good order.

16

The Tribe is reaching out to Californians irrespective of whether they are on its

17

Indian lands. IGRA does not allow this. The UIGEA does not allow this. The

18

Compact does not allow this.

19

The Tribe should not be allowed to benefit by breaching the Compact and

20

violating State and federal law at the expense of Californians and the State's public

21

policy. Additionally, the State has acted expediently once the Tribe launched its

22

Internet gambling. 16 Insum, the balance of the equities tips in the State's favor.

23

D.

24

The State's interest is the public interest. Here, the public interest is to enforce

25

An Injunction Is in the Public Interest

the Compact, to prevent the Tribe from engaging in unlawful class III gaming that

26
The State attempted to meet and confer when the Tribe first announced its
intentions in July 2014. The Tribe, however, refused to participate in a meet and
confer. (See Dhillon Dec., 2-3, ~~ 6 & 7.)
16

27

28

19
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-1 Filed 11/18/14 Page 27 of 27

targets the State's residents, to prevent violations of state and federal law, and to

protect the State's constitutionally stated public policy with respect to lotteries,

gambling, and tribal gaming. For these reasons, an injunction here is in the public

interest.

5
6

CONCLUSION
In view of the foregoing, the State respectfully requests that the Court enter a

temporary restraining order enjoining the Tribe and the other defendants from

offering Internet gambling to residents of, and visitors to, California and from

accepting payments or funds in violation of the UIGEA.

10
11

Dated: November 18, 2014

Respectfully Submitted,

12

KAMALA D. HARRIS

13

Attorney General of California


SARA J. DRAKE
Senior Assistant Attorney General

'14
15

/s/WILLIAMP. TORNGREN

16

17
18

WILLIAM P. TORNGREN
Deputy Attorney General
Attorneys for Plaintiff State of California
SA2014119021
11594254.doc

19

20
21
22
23
24

25

26
27
28

20
The State of California's Memorandum in Support
of Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 1 of 31

2
3

4
5

6
7

KAMALA D. HARRIS

Attorney General of California

SARA J. DRAKE, State Bar No. 102565


Senior Assistant Attorney General
WILLIAM P. TORNGREN, ~tate Bar No. 58493
Depu!x Attorney General
1300 I Street1 Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-3033
Fax: (916) 323-2319
E-mail: William. Torn__gren@doj .ca.gov
Attorneys for PlaintiffState ol California

. 8

IN THE UNITED STATES DISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11

12
13

STATE OF CALIFORNIA,

14
15
16

Case No. 3:14-cv-02724-AJB/NLS


Plaintiff, APPENDIX A

v.

22

IIPAY NATION OF SANTA


YSABEL, also known as SANTA
YSABEL BAND OF DIEGUENO
MISSION INDIANS, a federallYrecognized Indian Tribe, SANTA
YSABEL INTERACTIVE, a tribal
economic devei{!P!Jlent entity, SANTA
YSABEL GAMING COMMISSION,
DAVID CHELETTE, DAVID
VIALPANDO ANTHONY
BUCARO, MICHELLE MAXCY,
VIRGIL PEREZ, and BRANDlE
TAYLOR,

23

Defendants.

17
18
19
20
21

TO MEMORANDUM IN SUPPORT
OF MOTION FOR TEMPORARY
RESTRAINING ORDER
Date: December 4, 2014
Time: 2:00p.m.
Courtroom: 3B
Ju9ge: Honorable Anthony J. Battaglia
Tnal Date:
Action Filed: November 18, 2014

24
25
26
27
28
1

Appendix A to Memorandum in Support of


Motion for Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 2 of 31

2
3
4

TABLE OF CONTENTS
Letter from Kevin Washburn, General Counsel, NIGC,
to Robert Rossette, Monteau, Peebles & Crowell,
re: Lac Vieux Desert Internet Bingo
Operation (Oct. 26, 2000) ............................... AOl

6
7
8
9
10
11
12

Letter from Montie Deer, Chairman, NIGC,


. to Ernest L. Stensgar, Chairman, Coeur d'Alene Tribe,
.re: National Indian Lottery (Jun. 22, 1999)....................... A04
Letter from Penny Coleman, Deputy General Counsel, NIGC,
to Terry Barnes, Bingo Networks,
re: U-PIK.;EM Bingo {Jun. 9, 2000) ............................ A07
Letter from Kevin Washburn, General Counsel, NIGC,
to Joseph Speck, Nic-A-Bob Productions,
re: WIN Sports Betting Gail1e(Mar! 13, 2001) ................... A10

13
14
15
16
17
18
19

Letter from Richard Schiff,- Senior Attorney, NIGC;


to Don-Abney, Principal Chief~ Sac and': Fox Nation,
re: Tele-Bingo (Jun: 21;1999)~ . ... ; ........................... A14
Memorandum from Penny Coleman, General Counsel, NIGC,
to George Skibine, Chairman~ NIGC,
re: classification ofcard games played with- technological aids
(Dec. 17, 2009) ... -........ ; ............................... A18

20
21

22
23
24
25

26
27
28
2

Appendix A to Memorandum in Support of


Motion for Temporary Restraining Order

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 3 of 31

Letter from Kevin Washburn, General Counsel, NIGC,


to Robert Rossette, Monteau, Peebles & Crowell,
re: Lac Vieux Desert Internet Bingo Operation
(Oct. 26, 2000)

Appendix A-- A01

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 4 of 31

II

NATIONAL
. INDIAN
GAMING
.__..,,
COMMISSION

OCT 2 6 2000

Robert A. Rosette, Esq.


Monteau, Peebles & Crowell
555 Capitol Mall
Suite 1440
Sacramento, CA 95814

Re: L;ic .Yiel,lX D~ert ~temet Bingo OpeJ:at~on

Dear Mr. Rosette:


Thank you for visiting our office on June il, 2000, and explaining the posHion of the Lac
Vieux Desert Band of Superior Chippewa (LVD) on its proposetl Internet Bingo
operation. The LVD' s position, as articulated during that meeting, is that the internet is
an aid. to the play of class IT b_ingo and, consequently, that LVD may legally offer Internet
Bingo to patrons nationwide pursuant to the Indian Gaming Regulatory Act (IGRA);
During our meeting, we indicated that we were skeptical, but that we would consider
your theory. Having carefully considered the .LVD proposal, we have detennmed that
Internet Bingo is not authorized by IGRA. We reach this conclusion because the play of
Internet Bingo does not necessarily occur on Indian lands.
Pursuant to IGRA, a tribe may engage in, or license. md regulate, class II and .class Ill
gaming on Indian lands within the tribe's jurisdiction if ( l) the Indiflll gaming is located
within a state that pennits such gaming for any purpose by any person, organization, or
entity, (2) such gaming is not otherwise specifically prohibited on Indian lands by fed~l
law, and (3) the tribe adopts an ordinance or resolution which permits gaming that is then
approved by the Chairman of the NIGC. For class m gaming, a tribe must, in addition,
.obtain a tribal~state compact that authorizes the games. See 25 U.S.C. 271 O(a)(2) and
(d)( I).

as

Indian lands, defined by lGRA, are lands within the limits of any lndian reservation.
and any lands title to which is either held in trust by the United States for the benefit of
any Indian tribe o:t individual or held by an Indian tribe or individual subject to restriction
by the United States against alienation and over which an Indian tribe exercises
governmental power. See 25 U.S.C. 2703(4).

Obviou!llly, the concept in u~ing the internet is to draw players from a wide area. Internet
Bingo apparently ~eeks to draw any player who can log on to the internet site from any
location and who is willing to pay the fee. The game itself does not depend on the player

1441 l. STREET, N.W. tTHR.OOR

WASHINGTON. D.C. 20006

TEL: 202-6327003

FAX: 20H327066

Appendix A -- A02

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 5 of 31

Robert Rosette, Esq.


October 26, ::woo

1------beingJo~tedin a tribal bingo facility or even on Indian lands. As explained in a recent


case in the U.S. District Court for the District ofldaho, IGRA preempts state laws that
purport to regulate Indian gaming. The !,icope of this preemption, however, is limited to
the reach ofiGRA. Thus, IGRA allows only gaming that occurs on Indian lands. AT&T
v. Coeurd'AleneTribe, 45 F.Supp.2d. 995 (D. ID. December 17, 1998) (Memorandum
Decision and Order), appeal docketed, No. 99-:35088 (91h Cir, January 14, 1999).
Because not all of its gaming activity occurs on Indian lands, Internet Bingo iies outside
JGR.A's safe harbor for class II gaming or compacted class UI gaming. Accordingly, the
game operators .may be subject to crinrlnal prosecution for violation of state or federal
law ir'l) any ofthe sta~es in which players are located prohibits conduct of an internet
gambling business or 2) the underlying gaming activity is itself a violation of state law.
As the court notes at page 6 in the Coeur D'Alene decision, "{b]ecause the Tribes.'
Lottery consists of gaming activities that .occur outwofRstate and outside the limits ofany
reservation, state Jaw applies to regulate that conduct." Several states are active in the
prohibiti~n Dflntemet gaming activity.

~~

.....""'

Based on our conclusion that theiGRA does not authorize Internet Bingo, we need not
address whether Internet Bingo is a class n teclmological aid.under the JGRA, as put .
foith in your proposal. We understand LVD's argument that the internet is being used in
this instance only to extend the play of bingo, Assuming arguendo, that the internet
could appropriately be characterized in this case as a technologic~ aid to the play 9f
bingo, the principle of extending play has limits. In essence, we are confident that
Congress did not intend to allow the play of.bingo to be extended outside Indian lands.
In summary, a tn'bal gaming operatiortis not authorized to operate under IGRA if all or
part of the gaming occurs at locations that do not fall within the definition of"Indian
lands.'' Further, such action may violate other federal and state laws.
If you have any question regarding thi~ matter, please do not hesitate to contact Staff
Attorney Maria Getoffat (202) 6327003.

cc: Cbaries Gross, Assistant United States Attorney, Western District of Michigan
Kevin DiGregory, Deputy Assistant Attorney General, United States Department of
Justice, Criminal Division

Appendix A -- A03

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 6 of 31

Letter from Montie Deer, Chairman, NIGC,


to Ernest L. Stensgar, Chairman, Coeur d'Alene Tribe,
re: National Indian Lottery
(Jun. 22, 1.999)

Appendix A -- A04

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 7 of 31

. ...

,..

.'

l!f
,I

\..'

/,i,'.t:-IG

_.,~~COMMISSION

JUN 2 2 1999

Ernest L. Stensgar, Chainnan


Coeur d'Alene Tribe
Route 1

Plununer, Idaho 83851


Re: National Indian Lottery

Dear Chairman Stensgar.


The Coeur d'Alene Tribe (Tribe) is presently involved in litigation in the 9th Circuit Court
of Appeals with ~pect to whether the National Indian Lottery (NIL). an internet gambting
enterprise of the Tn'be's, is legal. It has come to our attention that, in the course of this litigation,
the Tribe has argued that the National Indian Gaming Commission (NIGC), by approval of the

....

Tribe's management contract and a subsequent amendment, impHcitly authorized the offreservation features of the NU.. lt is the view of the NIGC that the Indian Gaming Regulatory
Act (IGRA) does not authorize off-reservation gaming and, moreover, that the NIGC did not
authorize such gaming when it approved the Tn'be's management contfaCt and amendment.
In a press release issued in March of 1995, less than two months after our approval of the
management contract, we stated:

The National Indian Gaming Commission did not approve a~tionwide


Indian lottery. The Commission did approve a management contract
between the Coeur d'Alene Indian Tribe and Unistar. The Tribe is weU
aware that there may be legal obstacles to its proposed lottery and that it
must deal with other tn'bes and states on an individual basis."
Accordingly, we did not intend by our approval of the contract to expressly or implicitly state that
the off-reservation gambling contemplated by the NIL was authorized by IGRA or legal under
other applicable federal or state laws. The NIGC's review of the management contract simply
found that the contract complied with the management contract requirements of the IGRA and
NlGC regulations.

It is the position of the NIGC that the tribal gaming actions of the NU. to the extent they
involve off reservation gaming are not authorized by IGRA. Further, such actions may be subject
to other federal or state laws.

Appendix A -- A05

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 8 of 31

Finally, we concur in the opinion of the United States as more fu11y articulated in its
.........,.,........_ aroicus curi11e brieffiled today in~the 9th Circuit.
Sincerely,

mte!dk
Montie R. Deer
Cba.imum

Appendix A -- A06

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 9 of 31

Letter from Penny Coleman, Deputy General Counsel, NIGC,


to Terry Barnes, Bingo Networks,
re: U-PIK-EM Bingo
(Jun. 9, 2000)

Appendix A-- A07

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 10 of 31

!I

NATIONAl
INDIAN
GAMING
COMMISSION

Terry Barnes, Director of Gaming


Bingo Networks
Tete--Mark, LLC
P.O. Bo;rc 5066
Shawnee, OK 74801 .
Dear Mr. Barnes:
This letter responds to your inquiry of October 31, 1999, and to subsequent
cornmunicatiQDs concerning the classification of your organization's new version ofU-PIK-EM
bingo that utilizes the Internet to enable players to p'IJI'Cbase cards and play them at home. You
state that Tete-Mark, LLC, has a contract wi~ the Sac & Fox Nation of Oklahoma and wishes to
introduce Internet U-PIK-EM bingo to "reach people out oftbeir territory," according to your
telefaxed transmission of April4, 2000. The view of the National Indian Gaming Commission
(NIGC) is that the Indian Gaming Regulatory Act (JGRA) does not authorize off-reservation
gaming.
~'-"

In response to questions posed by Mr. Richard Schiff in his letter of March 17, 2000,
your telefax of April4 provided a description of Internet U~PIK.-EM, and you provided
additional clarification to Ms. Sandra Ashton in a telephone conversation of April 17, 2000.
According to your description of the game, players would open an online account with the
gaming center by credit card or electronic check through the Internet. You stated that the gaming
center is located on ttiballand.
From home computers, players would purchase the desired number of cards and choose
eight numbers (between 1 and 75) in the "small picture .frame" designated pattern in the center of
each card. Each player would agree to elect a proxy player at the gaming center. When asked
during the April 17 telephone conversation about how many proxy players would be required,
you indicated that only one proxy might be necessary, as the cotpputer identifies the winner. The
proxy player would merely verizy the winner. At the 8:00P.M. game time, a mecha:nicai ball
blower would ~domly select numbers, lind players would daub their duplicate cards online at
home. Numbers would be drawn until there is a winner, with the winnings being larger if fewer
numbers are drawn before there is a winner. The computer would identify the first player whose
card matched the selected numbers. Wmnings could be used to support additional play or the
winner could request a draw that would be mailed the following day.

1441 L STREET, N.W. 91H FLOOR

WASHINGTON, D.C. 20006

lB..: ~7003

FAX: 202-632-7066

Appendix A-- A08

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 11 of 31

The lORA does not authorize off-reservation gaming as contemplated in the game
described. The Chairman of the NIGC stated this position in the enclosed letter dated June 22,
1999, to the Cbainnan ofthesCoeur.d'Alene Tribe ofldaho. The United States asserted this
position in related HtigatioJCin the Court of Appeals for .the Ninth Circuit.' Please see the
enclosed brief of the United States as amicus curiae. In addition, U-PIK-BM bingo accessed via
the Internet may also run afoul of other laws that are outside the area ofNlGC' s expertise.
If you have any questions or concerns on this matter,please contact Sandra Ashton at
202-632-7003.

Sincerely,

-<?~
Penny J. Coleman
Deputy General Counsel

Enclosure

ccw/enc:

Don W. Abney, PJ:incipat Chief, Sac & Fox Nation


Route 2, Box 246, Stroud, OK 74079
Indian Gaming Management Staff, Department ofthe Interior

Appendix A -- A09

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 12 of 31

Letter from Kevin Wasbburn, General Counsel, NIGC,


to Joseph Speck, Nic-A-Bob Productions,
re: WIN Sports Betting Game
(Mar. 13, 2001)

Appendix A -- A 10

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 13 of 31

.,

March 13, 2001


Joseph M. Speck
Nic-A-Bob Productions
5025 Southern Eastern Avenue, #439
LasVegas, NV 891l9
Re: WlN Sports Betting Game
Dear Mr. Speck:
This letter r~onds to your inquiry as to whether the National Indian Gaming
Commission regards the game "WIN" as a Class II or Class III game under the Indian
Gaming Regulatory Act (IGRA) for play in Arizona and California. We reviewed the
information you provided and conclude that the game, as discussed below, does not meet
any of the Class n gaming definitions, and consequently is a Class III game.
Furthennore, because sports betting is unlawful in Arizona and CaJifornia, (as well as
most other states), and because the use of the Internet is not authorized by lORA, tribes in
Arizona and California may not lawfully operate WIN pursuant to the lORA.
As described in the materials you submitted, WIN is a sports betting game. The game
may be played via the Internet in the future, but is currently available for play only in a
casino sports oook facility. In playing the game, players compete against other players in
different slots. A slot consists of a certain set number of players and has a wager limit.
For instance, Slot-A contains 10 players, Slot"B contains 20 players, etc. The pJaxitnum
wager for Slot "A is $10.00, for Slot-B $20.00, and so on. When a slot reaches capacity,
players who choose that slot are offered the next available slot. Players may wager on all
manner of sporting events, including NFL Football, Baseball, Golf and the Olympics.

The Indian Gaming Regulatory Ac.t (lORA) governs gambling on Indian lands. The
IGRA identifies certain specific fonns of gambling as Class II, and therefore subject to
regulation by tribes and the NIGC. Those forms of gambling are as follows:
(i) The game of chance commonly known as bingo (whether or not electronic,
computer, or other technologic aids are used in connection therewith)(I)

Which is played for prizes, including monetary prizes, with cards


bearing numbers or other designations,

(II)

In which the holder of the card governs such numbers or

NATIONAL HEAOQUI\RT~RS 1441l St. NW, Suite 9100, Washington, DC 20005 Tel: 1!02.632.700~ Fa~: 202.6n.7066 WWW.NIGC.GOV
REGIONAL OFFICE$

Penland, OR: Sacramento, CA: Phoeni~. AZ: S1. Paul, MN; Tulsa, OK

Appendix A -- A 11

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 14 of 31

Joseph M. Speck
March 13,2001
Page2
designations when objects, similarly numbered or designated, are
drawn or electronically determined, and

(III)

(ii)

In which the game is won by the first person covering a previously


designated arrangement of numbers or designations on such cards,
including (if played in the same location) pull-tabs, lotto, punch
boards, tip jars, instant bingo, and other games similarto bingo,
and

Card games that (I)

Are explicitly authorized by the laws ofthe State, or

(II) . Are not explicitly prohibited by the laws of the State and are
played in conformity with :tflose laws and .regulations (if any) of
the State regarding hours or .periods of operation of s1lch card
games or limitations on wagers or p<>t sizes in such card games.
25 U.S.C. 2703 {7)(A).
All other forms of gambling (except Class I gaming which consists of social games for
prizes of minimal value and gaming by individuals in connection wjth tribal ceremonies,
See 25 U.S.C. 2703(6) are considered Class lli games and may be lawfully played only
pursuant to a Tribal-State compact. 25 U.S.C. 2703(8) and 2710(d).

Because sports betting d<>es not fit into any of the specifically defined categories of Class

n gaming set forth above, it is a Class DI fonn of gaming.

Therefore, it may be played

only pursuant to a Tribal-State compact.

Moreover. specific fonnsof gaming, including sports bettingJ are .subject to compact only
if located in a state that pennits such gaming for any ,purpose by any personJ organization
or entity. 2S U.S.C. 2710(d)(I)(B). If sports betting is unlawful in a state, it is
unlawful for tribes in that state to engage in it. Sports betting is unlawful in most states,
including Ari~na and California. Statutes in both Arjzona and Califomia specifically
prohibit this form of gambling. See ARIZ. ~V. STAT. 13-3305(1989); CA. PENAL
CODE 337a(1978).
In addition to state statutes prohibiting sports betting, federal law makes it a crime to

engage in the interstate transmission of information assisting in the placing of bets on a


sporting event unless the transmission is between states or foreign countries where

Appendix A -- A12

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 15 of 31

Joseph M. Speck
March J3, 2001
Page 3
betting on that -sporting event is lawful. 18 U.S.C. 1084(2000). Those states that we
are aware sports betting is lawful are Delaware, Montana, Nevada and Oregon. See DEL.
CODE ANN. tit. 28 1101(1953); OR. REV. STAT. 1462.020(1999); MONT. CODE
ANN. 23~5-405{1999); NEV. REV. STAT. 463.010(1999).
Furthermore, the lORA does not authorize off-reservation gaming as contemplated in
your submission. The use of the Internet, even though the computer server may be
located on Indian lands, would constitute off-reservation gaming to the. extent any of the
players were located off of Indian lands. The Chairmllll of the NIOC stated this position
in the enclosed letter dated June 22~ 1999, to the Chairman of the Coeur d' Alene.Tribe of
Idaho. Moreover, the United States asserted this position as amicus curiae in related
litigation in the United States Court of Appeals for the Ninth Circuit, A decision in that
case is pending. Finally, WIN accessed via the Internet may run afoul of other Jaws
outside the area ofNIGC's expertise.

Both because sports betting is unlawful in Arizona and Califorrria, and because the use of
the Internet for gambling purposes is not authorized by lORA, we conclude that tribes in
Arizona and California may not lawfully operate WIN. Furthermore, tribes in any state
where sports betting is illegal may not operate W1N.
If you have any questions please contact Staff Attorney Maria Getoff at (202) 632-7003.
incerely yours,

){L--

evin . 'Yfsh~um
. ene Counsel
Enclosure

Appendix A -- A 13

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 16 of 31

Letter from Richard Schiff, Senior Attorney, NIGC,


to Don Abney, Principal Chief, Sac and Fo:x Nation,
re: Tele-Bingo
(Jun. 21, 1999)

Appendix A-- A14

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 17 of 31

...

..
-~.~NATIONAL
~~ ~: INDIAN
.._,. j8GAMING
,,
I

.~

....

;.;

l3'i COMMISSION

JJN 2 I 1900

Don W. Abney, Principal Chief


Sac and Fox Nation
Route 2, Bo~t 246
Stroud, Oklahoma 74079

Dear Chief Abney:


The purpose of this letter is to respond to your fax transmission ofMarch 29, 1999, in
which you request the National Indian Gaming Commission (NIGC) to review the proposed
Lease Agreement, dated November 22, 1994 (Lease), and Indemnity, dated November 22, 1994,
between the Sac and Fox Nation (Nation) and Telemark, LLC. The purpose of our review is
nonnally to determine whether the agreement is a contract for management of art Indian tribal
gaming operation or a collateral agreement to such a management contract, and therefore subject
to our review and approval under the Indian Gaming Regulatory Act (IGRA).

.......,.

Because we were unfamiliar with the game being offered under the Lease, we also
reviewed Ute game to determine whether its play is lawful under IGRA. We have determined:
that Tele-Bingo is not being run as a tribal gaming operation under IGRA; that, in any event, it is
a class m game which cannot be played lawfully on Indian land in Oklahoma; and that, therefore,
tht~ Nation should immediately close down the same.
.
Ambority to review the Lease and Indemnity

The authority of the NIGC to review and approve gaming related contracts is limited by
the IGRA to management contracts and collateral agreements to management contracts. 25
U.S. C. 2711. The authority of the Secretary of the Interior to approve such agreements under

25 U.S.C. 81 was transferred to the NIGC pursuant to t~e IGRA. 25 U.S.C. 27ll(h).

Management Contracts
The NIGC has defined the term "management contract" to mean "any contract,
subcontract, or collateral agreement between an Indian tribe and a contractor or between a
contractor and a subcontractor if such contract or agreement provides for the management of all
or part of a gaming operation." 25 C.F.R. 502.15. The NIGC has defined 1'collateral
agreement" to mean 1'any contract, whether or not in writing; that is related either directly or
indirectly, to a management contract, or to any rights, duties or obligations created between a
tribe (or any of its members, entities, organizations) and a management contractor or
subcontractor (or any person or entity related to a management contractor or subcontractor)." 25
C.P.R. 502.5.

1441 L STREET, N.W. 9TH FLOOR

WASHINGTON, D.C. 20005

TEL: 2026327003

FAX: 202-632o-7066

Appendix A -- A15

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 18 of 31

.;

~fo!]Pination as to rnanu.~ent o(the game. :

Although it is not clear from the face of the lease, NIGC field investigators visiting the
site report that the Nation is not involved in the operati?n ofTelemark's game, "Tele-Bingo," It
appears that the game is wholly operated by Telemark on the Nation's land, and the Nation does
not participate materially in any aspect of the operation. Under this arrartgement, Tele-Bingo is
not tribal gaming, and therefore does not meet the fundamental requirement of the Indian Gaming
Regulatory Act (IGRA) that the Nation have the sole proprietary interest and responsibility for
the conduct of the game. Based upon this determination, it is not necessary to decide whether or
not the Lease and Indemnity constitute a management agreement. The question of whether
Teteroark is managing a tribal gaming operation would only arise ifTele-Bingo was in fact a tribal
gaming operation, but that is not the case. Stated otherwise, this operation does not meet even the
.basic requirement of being gaming by an Indian tribe under IGRA, and we carui~t therefore get to
the management issue. There is no legal basis for the conduct ofTele~Bingo on the Nation's land .

...,.

In addition I am infooned that the description of the game in the Lease, which involved
play using a 900 t~lepbone number to get payment, is incomplete and inaccurate. As currently
played the game apparently uses the Internet to provide the player with the bingo card (all players
use the same card), to solicit payment and to provide a PIN to the player. Utilizing the PIN, the
player then engages in "play" by phone. The play consists of telephoning a location on the
Nation's land and receiving, from the person on the other end, 20 randomly generated numbers.
Payouts are based upon achieving. a bingo with the fewest numbers, although a bonus is paid for
covering the top row with the first five numbers.
IGRA (25 U.S. C. 2703) defines class n gaming to mean:
1. The game of chance commonly known as bingo:
a. Which is played for prizes with cards bearing numbers or other designations
b. In which the holder of the card covers Stich numbers or designations when
objects, sirtiilarly numbered or designated, are drawn
c. In which the game is won by the first person covering a previously designated
arrangement on such card (s)
Tele~Bingo is far removed from the "game of chance commonly known as bingo." The
Tele~Bingo player is not .engaged in play of a game with other players, covering numbers as they

are caJied, and does not win by being "the first person covering a previously designated
arrangement." Rather, the Tele~Bingo player receives randomly generated numbers by telephone,
and wins by matching those numbers to a card which remains the same for all players in all games.
2

Appendix A -- A 16

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 19 of 31

.. '"'

..._,

..

.. Te~e~Bingo is simply alottery, and

as such it is a .dus ITI game.

Please be advised that the Nation should take all necessary steps to close- down this game,
without deJay. Operation of this non~trlbal game on the Nation's land is a violation ofiGRA.
Additionally, operation of a class ITI game on Indian land, without a compact, is a violation of
IGRA and constitutes a crime under 18 U.S. C. 1166.
If you have any questions or concerns, please call me at (202) 632-7003.

Sincerely,

' .{

1/
~
.

/i, ,./vM-~~t-~tJ/
11

'.

Richard B. Schiff
Senior Attorney

'

. Appendix A -- A17

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 20 of 31

Memor~ndum

from Penny Coleman, General Counsel, NIGC,


to George Skibine, Chairman, NIGC,
re: classification of.card games played
with technological .aids
(Dec. 17, 2009)

Appendix A A18

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 21 of 31

Memorandum

To: George T. S.kibine, Chairman (Acting)

To: Norman H. DesRosiers~ Vice Cbninnan

/'

From: Penny .r. Colenum, General Couns.~l (Acting) ?(ll~- li.Y ... .:~--~
Subj~c:;t: Classification of card ~mes played with tec:;lprQ"logic aids.

bate: December 17, 2009


On December 2 I, 2004, the Office of Oen:eral Counsel issued a game
clas.siflcation opinion 1br the DigiDea.l Dlgital Card. System (DigiDcal). The 2004 opiniorl
concluded that DigiDeal is a Class !II game "becnul!e the use oftechnolqgic aids does not
come within the Iudia:n Oumu1gRegulutory Act's def1nition of Class lJ gaming." Upon
re-consideration, have detern1ined that the 2004 opi.r.tion's Ultlmate co.nclusi.On \Vt!S not
the best interpretation ofiGRA. 1 havetherefore.revlsited the iss,uc i'ind reached a
diffe~:eut,

better conClusion.

lGR-4.' s -definition of Class 11 g(mr.irig includes :n~m~banked. card games unless


cer~ain. exceptions.~pply. in which case the game i:s Class Ill. 11re use of a ~echnologic aid
is not one of the listed e'Kceptions. 111 spite ofdiis. though., doe.'i-an otherwise Class 11 card
game become Class I.ll when played with a t'ech:nolo.gic aid? As \Viii. b.e discussed below.
it does nol. Th~ definition of Cfnss II gamtM does 110L exclude card gan1esptayed with n
technologi-c ~id and., theref-ore. such gamoa are Class 11.

There a:l'e three classes of gar.hing under lGRA. Class l. which is not at issue here,
means "sa.ciaLgames .solely for prizes ofmini:mal va-lue or tr~ditional :forms ofiodi:an.
gaming engaged in by individ~1als as part of, or in connection with, tribal ceremonie11 of
celebrations." 25 U.S.C. 2703{6). ClttSs U is defined. in :rei evant part, as;
(i) Ulc game ofehance ao1nmonly lwown as bingo (whether or not
electronic, computet, or other technologic a:lds are used in connection
!herewith)

Appendix A -- A19

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 22 of 31

Page 2 of 1I
(I) which i/i'played for prizes. irtc'ludi'Qgtnon~taryplizes, with

oards bearingnumbet:ll or othel'desig:ttntions.


(II) in w'bieh the holder oftbe card covers Sl.lch numbers o1
designfftions when <)bjcots, si.milarly t1umbarod o.r designated, arc
drawn or electronically d~tcrnrhwd 1 a11d
(Ill) in which the game is won by the :first person covering a

previously desigm~te<t anangement of numbers ot designations on


S\Jch cards., Including (if played in the $eme location) pulltabs,
lot1o, punch boards. tip jars, instant bingo, and other games similar
to bingo,-and.
(H) card games that -

(1) are explicitlyan.tborizod by the laws oftbe State, or


{ll) are not e.xplicitly prohibited by the laws of the State and are

played at 1111y location in the State, but only Jf sucb card games nre
played in confoimitywith those lawund J'eS.,Tltlations (if any) of
the $tate i'eg~rding hours or periods of o;i:>eraticm of s.\lCh card
grunes91' Hmitarions an wagers or. pot siz6!l in such card giunes.
(B) The t:erm "Class II gami;ng,. does not luclude
{i) any baukingcarcl games, h!.Chtding baccarat, chemin de fer1 . or

b.l aekjack (21 ), or


(ii) electTonic or olectromeclwn.ical facsimiles of any game of chance or
slot 1nachines o.fany kind.

u.s.c. 2703(7).
Class mis a ca-tch~all categpry that includes ~all forms of gaming tha;t are not
Class l gaming or Class II gairdng.\' 25 u;s.c. 2703(8).

25

Thongh IGRA does not define recJrnologic (tld or electr<inicftuJ.tfmtle, NIGC


regulaiions clarify that a technologic aid is any deyjce that:
l. aasists a player or the playing of a game;
2. is not an electr01dc or electromechani'Cal :facsimile; and
3. is operated in accordance with applicable federal
communications law.

Appendix A -- A20

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 23 of 31

PageJ of II
25 C,F.R. 502~7(n). Theregulatlons also define el~ct.roiriafacshnile., in relevmrt part, as
"a game played in an e.lectrcmic (YI' electtomethanic:aJ.fornlilt that tep.licates lt game Of
chance by incorporating all of the characteristks ofthe.game ... .''25 CJ?.R. . 5:02.R.
Game and EquipUlJWl
As described in tllc20.04 opinion, DigiDenl i~ nn eleqtronic oard table the size a:nd
nrc shaJ'e of any commo:11. fe1t-cov~red table used .in ca.sinos fol games like Pili Gow
Poker or Let it Ride Pok.er. The dealer st~1ds in bisot' her c\lstomary p.lace, ~md there are
six player positionsi .eiroh witli a. vjdec~ scteet1 built in. In lieu of an ordil1ary dock of

cards, lho~e;sQreetls displayvid.eo:tepresentationa o:i'cards. The dealer shnfi:les, deals, and


controls play by -presmng buttoi1s on a:device made to look like ~dealer'$ shoe, T1)ete nrc
spots -in each player position .fur placing antes attd bets, and the spots are etln'ipped with
sensors so that the table ca11 ~ote11nine the mrrriber of players that begin each hand, the
munber.that continue to play or fold, and the amounts wage1ed.
techttQ'logic Ai4 to a C1ru!ll U Card Grun~

Although this memo disagreos witb the 2004 opinion's ultimate resolution, l
ooncur:wjtb Hs analysis ~onchtdiitg that the DigiDeal table constitutes l\ technologic aid
rather than au eloottonic. qr electromechallicntfacsimlle.

rhG. Dl.giDeal table. salis'fies the first element of a technological ttid-tl1at it nssisls
the player o:r the playh1g of a gam~. Tho table assists play by displaying eacl1 player's
lumd, thus making il easier lo decide whether to conti1~ue or to fold. Tho table also
klcnti fies qualifYing hands, hands tl1at w~re. folded, and the amo1.u,1t of the pat won. thus
makhlg tile play o fihe .g~une simpler artd more accurate.
'11i~ ta:bJo also si.{tisfie~i the third element, that i1 ''is qperated in accordance with
applicable .Federal comnmnications Law." 25 C.F.R. S<l2.7(a)(3.). The table is 11ot linked
with other tables and, in communicating With the dealer's ~hoe, apparently meets FCC

regulations mt radio emissions.


Tl~ Jeaves the second el!ment ofthe deftrritio.n, that tbe table ..not be an
electrorrJc. Ol' electromechanical facsin1ile oh game of cl1auce." lt is<not. NIGC
regu.lations defme electronic or electromechanical tacsintilet in relevt~nt part, as Ha game
played in an elecn'Onic or electromechanical format that replicate$ a game of ch~1ce by
incorporating aU of the chnracte.ristics of the game .... " 25 C.P.R. 502.8. Though courts
have adopted this definition as it reads, :uru11, e.g., United States v. Samee Si.oux Tl'ihe of
Nrdmu;ka, 32.4 .F.3d 607, 6.1.5 {Sih Cir. 2003), until the 2004 DigiDeal opinion, no one bad
tried to make the distinction between a technologi-c aid and ~ f.tcaimile for an olectronjc
game of cards. Regardless ofthe analysis's 11ovelty at the tin1e, tllongh, it correctly found
lhe table is not 11 facs.im:Ue because it does not incorporate all of the cbantctcristics of
poker. That faet lias not C.banged in the emn.tihg yea:rs.

Appendix A-- A21

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 24 of 31

PtJgo 4of 11

Jn Syc.utm Eand ofMissian Indian$ v. Rcmche, 54 F. 3d 535 (9'11 Cir. 1994), for
example, the Ninth Circuilrevlewed a v,iholly electronic pul1~1ab game ip which the
player bought and played. pull~tabs generated -by computer and displayed ort a video
ser~ wlthout prol;lucing a traditiona1 paperp\lll tab. The .cottrt conoltu:ied tbat 1his was
an exact, sclf..contalned copy o:fpap~rpnll-tab!!.lffid thus an electronic .r.acshnile. Wllile
we sti 11 follow the holding in S)'ctum, puU-tab macb.ines that mcm~ly dispense and <li!;play
the ra.'lults of paper pull-tabs are not fnc.'limHea. /d. at 542-543.
In /)iaim:md GainrJ 1'. Reno, 230 F.3d 365, (D.C. Cir. 2000), the machine in
ques~ion, Lucky Tab II, sold and dispensed paper pull-tabs from .a roll. The machine also
l'ead and displayed the :results of euch tab, presenting those results in such a way as to
rese.mb1e: a tbree-J'I!l:1 slot :machine, Nonetl1eless., ihe :p.aper tabs could be played and
redeemed manually. The D.C. Circuit held, therefore, that the Lucky Tl:lb ll di.spenser was
not.an electronic facsimile containing all charncteri.sti.cs of pull tabs and thus was not a
Class m device. The "game is in tho paper rolls," the court held . and ll1c Lucky TabU is
.. li1tle more than a high-tech deal-er.'' Jd. ut 370. Like r.uc:ky Tab ll, .Dig.!Deal is a 1'high
tech dealer."

Video Poker machines eom.monJy found in Class m and non-Indian casinqs are
examples; gf electronic fasirnilos. ~nw typical rrrac.bil1'e accepts bets, deals a p-Oker hand.,
evah.tates mt hand agilins.t .the .st~<Iard poker ,rtmkiug$1 and pay$ winning.bands
according to paytableJJ. ThT.1s:.. the tl,utchb1e incQrporates :all of the aspects of the game
offered and i~ an eleetronio f:acsi1nile ota..game.of. chance.
.DigiDeai. on the other hand, inc:o.rporntes some of the aspects ofpokers.hufiling. de~.Hng, and rtmking winning .and losing bands-but not others. Tbe pJacing of
antes and wagers and the player's decisiQn to play OJ' Ji1ld are made by the players. Put
slightly dH'ferently, the.DigiDeal table is :not essential to playing poker. One can play
poker w'ith or without the h\ble. Tho table, therefol'e, lnr;lets all oftbe criteria for a
teclum.logic aid and is not a Chlils lJl electronic facsimile.

],)sing Teqhnol.Qgic,Aigs witb Car4 Ownes


Upon concluding thanbe D.igi.Oeat.table is .n technologic aid, tl~!i.l 2004 opinion

next considered whether an otherwise Class 1l card garne is Cl11ss m when played with a

technoJogic aid. The opinion's analy.sl"s bogin~ by asking "whcltler IGRA allows the use
of technologlc aids wi"th card games .. or, mol'e ,specificaUy, whether lORA places lhe use
(lftechno1ogic. aids with card games witl1in Class II." nw opini:on co.nc.ludes that tt doos
not a.nd,.accordiugly, is Class UJ. :But lORA's lan.g\Htge arid legislative hh;tt)ry indicate
that the pr01)er qu~stion is whether JGRAproltibit.<t the use of tcclmoJo.gic aids wi!.h card
games or. me>re spectfica.Jly. whether IGRA e.:tchules th~ :use oftechnolo.gic aids with
card games from Class H. Although a subtle distinctio.n, it lends to a fundamentally
diffe~nt

answ-er.

Tbe ~004 opi1l:iom defines the c.atego.ry of Class ll card games through reading the
definition ofCiat.-s Ubingo. Congress expHcitlypertn'its t.echnologic aids to Class TJ bingo

Appendix A -- A22

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 25 of 31

but is silent regarding technologic aids to Glass TI card games. The Ot>inion deduces from
tbia that Congress intended that card games played With a technologic aid do not .meet the
definition qf.Class n gaming.. Such reasoning,. however, does not .a:ckilowledge a:
dimncti.on JGRA makes between Cla8s Ubingo and card games.

lORA's defmition of Clas.~ 11 gaming.necessarily frames ils d~scriptions ofhingo


nnd card games in funditmentally different ways. Congress dtt~filled bingo by deacrtbing
what it includes and card ganleS by what theyexclude. C/(lss 11 gaming includes any caJd
game unless it is banked; 'all eleetronicfacsimi1e; en.pliciUyprohibit~ by the .state; or, .if
neither explicitly prohibited nor pe11nitted by state Jaw, is not played at .any location in
the state or does not CQ.nfonn state Jaw re&rarding hours or limitation on. wager nnd pot
sizes. ff a card rune does not nu'l afoul ofmty:of these provisions, it is Class IL
The definiTIOn of bingo. by contrast, is essenti:aUy n descriptiou of the traditional
game ofb:i:ngo, oven when played with electronic aids. Because bingo is n game with a11
established set of rules, it is far simple!' to describe preciaely wlutt bingo .is, .rather than
what it is not. The same cannot be said for a category as nebulous as "card games."
C~:tnsequently, Congress defined Class II card games by what Lhat definition excludes. A
card game is Class II unless it possesses one of the characteristics listed above. a.g.
banked or played outside the holn-s permitted by state regulations. Congress did not
include technologic aid in th1 d~fmition for the san1e reason it d.id not llst every poss-ible
card game that could meet the definition; an exhaustive list is impo~ible. Rather than try
to poptllate such a list, It is- fur limpler to detail what is not u Class n card game. This is
what Congress did. BecaustHhe description ofpen11itted Class li card games does not
exclude games played with a technologic aid, such gru:nes may qualify as a Class 11 game.

Althougn IGRA' s Class Udefinition is clear,. the earlier opinion s cm1clusion was
a reasonable, irllltimately .incotrect, interpretation oflGRA.These oppo.sing opinions
and interpretations of IGRA indicate that lORAs Cla.s.s II gaming definition ts open to
interpretation..lmy ambigu.ity, though. is .:re!!Qivl;ld by ~degislat1ve history m1dother
niles.ofStatutory oonstnwtion. The Senate ti';\pOlt and CO..t:lJti'UCtH:m tlfthe Statute ind.ic~tle
!lmt Cht$8 lJ card games may lqc.Iude card games played with a t~hni;ilogic a:id.
Middlese.r Couui)'SrJwe17Jg.e Auth. v. National Sea Clammtrs A.~s 'iz, 453 U.S. 1,13
( 198 t )('"We look fil'St, ofewrse, to the '6taiutory lang~tage; .. Then we review t1'e
legislative history und other LT~ditionul aids of st~ttutory interpretatiot'l to determine
co1:~,grea~iomd .intel!l.").
The Senate Report acconfpanying IGRA ind:icates Congress's intent to include
toohJIOlogic aids to card grunes i.n the Class IT gamirtg definition. The Senate Sel.oct
Commi.ttce on Indian Affairs aftlnned .i:n its .report that it ''intend$ tlH~l tribes be given lhe
opparl\lnity to lake advantage of modem methQds.ofcond\ttting C.lass U.gamesaud the
language regarding technology Is designed to provide maximum. flexibility.'' S, Rep, No.
100-446at p. A-9.
While it is t.n.Je that rtlis language is found in a pnragraph concerned primarily
with bingo, puH tabs. etc . there is no. evidence to suggest that Congress intended its

Appendix A -- A23

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 26 of 31

Page 6 ofll
policy toward t~lmo.logy t.o be. so.litnited. When IGRA was draftO<I, bingo p.layed with
elect!Vilicequipment
the '~modern 1nethod" ofccmducting Class Il.games. It was a.n
e~tabljshed game, played widely enough to enter Congress's scope of vision. wheil
drafting JGRA.Jd. The same cannot be said of card games played with an electronic aid.
DigiDeal, for exmnp'le di.d not exist until t 998, and a similar company, Poke1Tek, did not
install an electronic poker table in a casino until May 2005. At the time ofiGRA's
passage, curd games were played as they always had been. with physicul cards and a
dealer. The fact that Congress did not specifically address a game not in use at the time of
lORA's passage does not lead to the.conclusi011 that Congress intended to exc.lud~ it from
Class n gaming.

was

,.

In explaining its policy toward technology, a key distinction for the Committee
was that techuologi.cal aids are "readily distinguishable ti:o.tn the use of electtonic
tiwsimiles in which a. single participant plays a game with or against a mach in~ rather
than with or against other players." Jd. Congress was uot concerned that technologic aid8
should b used only witll bingo; rather, it was con.cemed that there is a distinction
between an aid and a facsirn.ile. Such a d:istinction can be made for Class 11 card games as
well as bingo, as is demor.1strated by both this and the 2004 opinion's finding that the
electronic table is n.ot u facsimile,
This policy's application to. all Clas!l U game~, inelu.~jng car(l gam!.'IS. is also -made
evident in the adopted vc.rsi.on o.fiGRA, which specifically e.".cludes "electroni or
electromeohantcni :facshniles of any gan'le of chance or slot machines of any kind" from
Class l1 gamii1g. 25 U.S.C. 2703(7)(8), This prohibition. wa:s not applied to bingo o.nly,
but to "all games of chance,'' iudiea.tiug that Congress intended to differentiate between
technologic aids. wbich ar~ acceptable for all Class II games of chance, and electTonic
facsimiles, \Vhich are acceptable for none.
Congress's policy toward technology notwithsta.llding, -it was emphatic about
l'estrictions ou Clasa 11 card games. The Senate Report clarifi.es that. Class ll cardgames is
meant to be an :inclusive cat.egory with specific, narrow exceptions. Class U card gntne.'l.,
according to the Cotmnittee, are uon-banked and should be "operated in conformity with
laws of statewide .application wlth respect to l1o.urs or periods ot operation or limitations
011 wagers or pot sims for such game$." S. Rep. 100446 at p; A-9. The report also details
that ti1e defini lion of card games is to be read in. conj Uliction with what was to 'become
sections27lO(a)(2) and 2710(b)(l){A) oflGRA, which specify that 'Class Il gam.ing can
0.11ly occur on lndi.an lands located in a state that otherwise permits S\ICh gaming. ld. The
Committee specified th.at "[11] o. addfti()nal restria&ms cmt intended by [2703(7){A)(ii)(I)
& (II)]." S. Rep. No. :100~446 atP. A~9 (eJ.nphturis added). Decil:ling that a te4mological
aid to m1 otherwhiQ Ch1ss U o.ard.game.makes the game. Class Tll would create a new
restriction .on Class II garnirig in con.tlict with Co,ngres8.' s clear!y stated intent.
The .2004 opinkm cited to Seneca-Cayuga Tribe of Oklahoma v. National Indian
Gcuizil!g Commt'ssUm, 327 F.3d 1019 (l01h Cir. 2003) to support its.conclusio:n that

technologic aids to C"-"l'd gamea are not Class II. The scope ofthe case was overestimated
thmlgh. and .it does not negate any of the above analysis. In Seneca.Cayuga, the 10111

Appendix A -- A24

i.

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 27 of 31

Page 7 of II

Circuit Cou1t of Appeals discussed the definition of Class 11 gaming and, in doing so,
stated:
{lJ]nder IGRA, Class Il games include 1'the gat)l~ of chance commonly
known as bb1gb (whether or not electronic, compmor or otl1cr technologic
aids a.l'e in used in connection therewith) .. .including (ifplayed In the same
location) pull-tabs, 1ot1o, p\lrtch hoards, tip jnrs, inst~mtbi.11go, a11d other
gam ~imilcwto .blngQ ... 1' 25 U.S.C. .2703(7)(A) (emphasis.'supplied).
IGRA :ftlrther provides that ~electl'Onic,.comput:er, or other technologic
aids to s\1cb games are :Class II .gami.l1~ and tbcref:ore pemutted in. Indian
country. Jd.

Scmeca~Cayugt~. '327 P.3'd at

1032 (em.phMis,inoriginal),

From this, the 2004 op.inion roasoned tbu.rnthe Coul't described lORA as plucing
withln Class 11 only techllOiogic aids to bingo and like games. not aids to non-banking
card games." The opinion put .~pedal emphasis on the court's ~tse of t.he words, "such
games" and surmised that becal.LSe the .court concluded that tec1mo logic aidst~ p'Ulltabs,
etc, are Class TL thQS:e are 'the only technologic aids allowed under Class H gaming. But
such a broad cl.eduction froJt1 'Ule Seneca-Cayuga 9pi'nlon is .not wart:ante~. At no. point i.n
the.Se.neca-CayiLga opinion 'does the court dis.cuss Class Uc.ard games. In fact, when
reciting the definiti-on of Class .ll games. the court leaves card games out entirely. The
10t11 Circuit never claims that fGRA exolucle$tec-b.~\elogic ai<1!! to non-banldt'l'g card gam.e.s
from Cla.~s IT gaming. The court held that technologic akls to "such ga.m.est are Class U
gaming beeause thos.e moe. the'. games tlle opinion wa$ concerned with. f:icne~.(l~Cayuga
.says nothing of technologic aids to Class n card games.
The language of IGRA. its legislative histo~y. and the ntles.ofstau1.tory
construction all champion the inclusion of technologic aidsto car-d games in the Class II
gamil1g definition. Case ~aw citedbytbe 2004 opi:nion to su.pport n oo11trary c611clusion
does not detent that ima:lysis.
~noiQgic Aid~ Eleotronicr~csimllc

A~ discussed above, I agree with the 2.004 DlgiDenl opinion's co.nclu$ion that
D1giDea1 is a t~hnoiogic aid rat11er.tltart an clecb:onic facsimile. It is important to .note,
tl1ough, thai the discussion ofthe OigiDeal system and its ctassHication is limited to the
broade!' category of techno logtc a.idl! to Class U games. Each p\wported aid to a card game
must be looked at individually to ascertaln whether .it is actually an aid or a Class ll I
electrotii~

facsimile.

An. electronic facsimile is distin:guishnhle from a technologic aid in tllat it


replicates a gru.n~ of chanQe by itlcoqlor~Xting all of the cb'l\t.acieristics. o'fthe game, 25
C.F'.R. 502:7(a). The .OigiDeal table, for eXample, uu:orp.otates onlysome ofthe
characteristics of poker, namely shuffling. dealing, and ranking winning aud losing

Appendix A -- A25

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 28 of 31

Page8ofll
hands. The player still controls the k~;iy nspects oftm).{;er; such as. whether to ante or place
a wager. play a l1and or fold, and when and wl1ether to bluff opponents.
Jf; however, a particular aid to ct1rd games be-comes a necest;ily. or encomp~sses.
alJ the aspects of 11 particular game, it ceases to be a technologic aid and becomes an
electronic fncsimile. For example., in S.vc11an 1Jm1d ofMission Indians v. Roache, 54 F. 3d
535 (9111 Cir. 1994)the United Slate Court of Appeals .held that tl1e "Autotab Modell 01
electroni-c pulltab dispenser" is a class 111 facslmHe of a pull-tab device. The Autotab
Model 101 produced only an electronic reprodu(!tion of a papel' pulMab ticket on a
computer screen. The play~r etootronically picked nun1bers and, if tbe player won, the
rnachine would p,.rtnt o.irt a whmlng. ticket or add the w~nnmg a,tno~uit to a credit balance
for furthorpiay. The game was playod entirely on the machlne withm11 producing a pnper
pull~u\b. The court found that the machine wa:~ n Class ltl facsimile bec~mse "the mMhine
presents self-contained computer gameS copying the pull~ tab pri nclp.lc, and they are
played electronically." Jd. at 542. Autotab wus an. "exact and detailed copy'' of a pulltab
game. /d.

ln ;)'yc:uan, the At\lot~b game was plqyed elecfronically and -encompassed all Lhe
aspects of a pull-tab game. It wastlnls niled a ,Class ill electro.nic facsimile, Similarly,
$hotdd. an olectron:lc pok~rtable or oth~r game cne.or.npassall ofth.c a$pect-s of poker, it
wi.ll be ruled .a Chilli's lH facsi:mile. :P\lt simply, a technologic aidme.rely assists the
p.layct-s; lt is a w.ay to play the game, not the game itself.

Johnson A;gl
Although technologic aids to c-ard gamos are permissible Class U giimes under
IGRA, there ls a question as tu whether the games nre impennissiblc undet the Johnson
Act, whlch prohibits the u.so ofgarnbling devices in lndiau Country. lS U.S.C. 1175.
They are not. The Johnson Act does not apply to Class ll and Class lll g.arnes played
pursuant to lORA.

The Johnson Act (leflnes garnbling device as any slot 1'11achine ~u1d:
Any other maohine or mechanical device (including but not limited to,
roulette wheels and $ilni.lar devices) de.~i8iwd u:ud manufactured primarily
for use h1 connection with gan1bling and (.A) which when operated may
deliver, as the resttlt of the application of an ~lem~nt ofchance, any
money or properly, or {B} by tho operation of-which a person may 'become
entitled to receive, as the result oflhe appll-cation of an element of chance,
any money or pNperty.
15

u.s.c. t 171(1\).

lORA, enacted lo.ng after the Johnson Act, exempts Class m gaming from the
application of the Johnson Act but is silent as to Class li gaming. While courts have not
directly addressed the Johnson Act and technologic aids to Class Il card games., three of

Appendix A -- A26

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 29 of 31

Page 9ofll

the four circuits that have considered whether IORA implicitly provides a JohllSon Act
exemption (or class ll devices have decided that the Jolmson A~ h; n<:1t applicable to
technologic aids to bingo or Class n pLill tabs, lotto, etc. Although tbe cases tltom~elves
are gmue-~pemflc,the amilysis supporting the de~isions centcrson reco:i:ieili.ng lORA ~md
the Johnsen Act and is equally llPPlicable to technologic aids to card game.s.
Jn 2000, theNi.ntll Circuit Courl of Appeals held that the Johnson Act does not'
United States v. I OJ Elecmmtc
Gambling Devices, 223 F.3d 1091 (9'h Cir. 2000). In reaching its decision. tho court first
found that Megamania is a teclmologic aid t.o biltgo ndhQI: than an electronic facsimile
~Jnd, therefore. Cwss 11. Rl. at 11.0'1. Th.e co11rl thell looked to the text ofJGRA. noting
that it explicitly repealed application ofthe Johnoou Act to Class t1J gruning devices used
p1:1tauartt to a triba:lstate cottlpilCt, but did not address fu:e.re1ation6hfp betw~p the two
nets as a:ppli.ed to ctass 'n g:ilming, )d. 'fhe court 1'~cogni:ied the apparent con:flfct in the
two Ntatutes and reconciled h by reading lhe stat1.ttcs together tQ discover '1how two
enactments by CongreSs over thirty five years apart most comfortably coexist. giving.
each enacting Cong.ress'.s legislation thegrestcst continiting effect," !d.
~ppJy to an e.lectronic bingo game .called Megaman.ia.

With coexistence as its.goal. th.e court tound thnt ''lORA q\lit~ explicitly indicates
that Con.grQSS did not intend to .allow the Johnson Act tq reach bingo aids." ld. Pursuant
to IGRA, bingo u:~ing ~electronic, compllte.r. or other technologic. a:ids" i~ Class IT
gaming. and therefore permitted iulntlian co:unt.ry.Jd. If the Johnson Act prohibited such
aids, lORA's C)a$S 1.1 gamingdefmit~~m wotitd homet~niugless. Jd. H.madeno sense to
the court that Congtess \VOtdd "caretillly protect si.1ch technologic aids,.~yetleave them to
.the wolves pf a Johnso11 Act :forl'eiture action.~ Jd. a.t 1102. The court refl1sed to presume
"'that in enacting lORA, Coll!:.)J'CSS perfortned such a useteas act." !d.

The M:egrunanla game once again came under scrutiny a .few mo.ntbs la:tet i'n
United States v. 16.2 Megam11iia Gambling Devi:es, .Z3'1 F.3d 713. (1011' Cir. 2'000). 11lls
th-m: the Tenth GirclJH C9urt e>f Appeals '(,m&mi.ned the Megm.IIania,ele;<ltronlc l~i.ngp s.runc
artd, like the Ninth Cirol.iit, conehi~d that lt is not.prohibi'ted by lhe'Johnson Act. The
court f-ollowed am~iylioal path..simHar tQ ihat:-ofl~ J'il1nfh Oircurt. lt first esta\,lished
that Meganut~tn is. a Cla.s~ IT t~ht~ologic rod ntJher thalt M eloctro:ni'c f:acsi.itile; From
there, the eourt eortsidered the Jobnsart Acts application an<i held that ~~congress did not
bttendtheJohnson Act tQ app1y:itthe game a.t isl!tte fit~ wit11in :the de:firuti.Oll of a Cl;'ISs n
game and is played with the use of:an i:i:Iectt'<;Jui'l.'tld." Id. at 7.25; For this proposition, the
court l.ooked to the earlier Ninth Cilcuit holding in 1O.J Eiecnonic! Gaming .Devices. lt
also retied on 103 Oamtng .Devices to find thai"the Johnson and Gaming Acts are not
inconsistent and may be construed together in favor ofthe Tribes." !d. The court
expUcitly joined the Ninth Circuit il1 concluding that "MgaMania is not a gambling
devi-ce contemplated by c:Hller [the Johnson Act or IGR.A]." /d.

an

Both Megi\Mmtitt cases .are admitt:edly specific to .electronic bjngo rutd rely at
Joost tn part o.n the technologic .aid language in JGRA 'a Class II gaming defulilion. Other
cas~s. however, h<We ~aken the ;malysls in the M~gaMania cases to the next step and
found that technologic aids to ptill tabs, lotto, etc; are also immtme: from !'be Johnson Act.

Appendix A -- A27

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 30 of 31

Page /0 of 1I

InSeneca:.Cayuga Tribe-ofOklrJ.homav. N!GC, 327 P.3d 101:9 (2003.). the Tenth


CircUit Court of Appeals reviewed thoMagicalld.~h In$tant Bingo Dispenser System. u
pull tub dispen.serwi1h e(ectronie elements such as a ''verifier" feature that allows players
to see the re!)Uits fora particular ptlllt:Rb on a video display. The court detenninecl the
Magical Irish system is a technologic aid rather than an electronic facsimlle. The
appellees argued that t:eclmologie aids to all enumerated Cla.<IS II games nre insulated
from the Johnson Act and cited to I 03 Electrontc Games in support. !d. ilt 103 1
(emphasi.s added), The Couri,. how.ever,.pointed out that the 103 .Electronic Games ruling
WM clear that it applied only to MegaMnnia and 'that tnerr:t wa!$ no :precl;ldent clarifying
the relatkmship between the Joln1son Act and technologic aids to Class 11 games beyond
j~ist binS9. lrL at l 0:31. Accordingly. 1he.courtbad "to addre:Rs for the first time whether
aids to those .ntlhbingo games such as pull"tabs that are enmnerntcd 'in 25 \J .S.C.
~ 2703(7)(A) are protected :f:tom Johnson Ac.::t sc!'utiny .. , ." ld.
lu spite of the court's limited holding in JO.B Eleetronic Games, the Semien
Cayuga .court applied the s,upp01ting .nnalysis ofJ03 .ElectroniQ Games and fo\tfld lhat
lORA '-s au:thori~ation o:fteehuofcigi'C aids cxtend.ll:'to pulltabs. ~rhe oou.rtheld that
although the text of lORA is anibig:uouss the ''tecbni\'ltogic aids parenthetical'' is not
limited to bingo, but ,also refers ~ '\1ther ~amos o:foh~1ce l'fhofized ~Class Tl
gruning." !d. at 1038. As a tcehno1ogic aid to a pull tab machine is a permitted Class n
game, Congress did not h1tend th~t it be subject to tne. testr:io:tic:ms 9ftbe Johnson A<::t,
The court held:

Absent cl~r cvidenc(.l to the contrary; we will no-t ascribe to Congress the
tntent both to carefttUy craft: through IGRA this ,protection aftbrded to
users of Class II tecllUologkaids and to simultaneously eviscerate those
protections by ~xpo..'fin.g users of (..'lass Il techriologic aids to Johuson Act
liability for the. very conduct authori?..od by lORA.
/d. at 1032.

M Serrcc:a-Cayuga applled tbe underlying analysis-in 103 Elrtcm:mi~! Gexm~no


bingo, we can apply it to technologic aids to card games. !03 Eler;trtJnic:
Gaming held that the Jolu1soi1 Act does not apply to technologic aids to bingo because
Congress would not permit something in ono act only to forbid it throu:gh a.uotber. This
same rC;~~asoning w~ used by theQOurt i.n St::ll(.l(lC(lyuga to conclude li1at technologic
aids to puil tabs are not probib:ited ~)"the Jolrn$011 Act. So too can it be ap'pl ied to t\ Class
11 tecl-roc:>logic aid lo a card game. As est.abltshed above, an otherwise Class tl card game
played with a teclmol(igic ilid is still aClass n gatil:e. Conb'Tess would not'pertnit such a
game through :!GRAo11iy to prohibit It thtou8b !'he Johnson Am~ Accordinsly. the
JohJl!J<.Vn Ac~ does not apply tQ Cl~ss II card games played wft:h a tech11ologic aid,
e~Glrotlic

Similarly, in Diamond Game En.terp~ises v, Reno, 230 F.3d 365 (P.C. Cir. 2000),
tl1e .D.C. Ct!'cuit found that the Johnson Act does not apply to the Lucky Tab U, an
e:lectromecbnnical pull tab dispenser. The cuurt cited to its decisio1\ in C<1bazon .Band q{

Appendix A -- A28

I
I

Case 3:14-cv-02724-AJB-NLS Document 3-2 Filed 11/18/14 Page 31 of 31

Pa~e

I 1 oj'./.1

Mit~sionlndians v. Natlon!J,/ Jmlkm Gaming Comm'n, 14 F.3d 633 (D.C. Cir. 1994), and
he.ld that nthis COU!t (has] interpreted JGRA limiting the JohmiOn Act prohibitiolllO
devices that arc neHherClass ll games upproved by f.l1e Commission nor Class II1 games
covered by tribal state co.tnpacts." lei. a.t 367. Although the case focuses more on the
classificalion of tho gnme than the appllcatlon of the Johnson Act, it is Clear that the D.C.
Circuit ha$ decided that the Jolmac>rl Act does. not apply to .any Class Jl gmne. As
discussed at length in the preceding section, a technologic aid to an. otherwise Class n
ctml game remains a elass ll game, and according to the D.C. Ci.rcuit, the Johnson Act
does not apply.

as

The .Eighth Circuit, however, has taken an opposing position, Jn.Ufliletl Stares v.
San.teeSiott-;'(~ 324 F.3d 607 (8 111 Cit-. 2003), cert. denied, SiS U.S. 813 (U.S. Oct 5, 1998)
(No.97~t839), the Circuitrejootcd lh~.argument tbal IGRA repeuledihe-Jo\mson Act hy
implic:ation. The CO(Irt pointed to 271 O{b)(l )(A), Which permits Class n gaming on
Indian lands. so lpng as 'it is not specU1ca.llyprohihited on lndian lands by federal law.
The court concludetl that the Johnson Act mtl.~ be the federal law implied iu this section
of lGR.A. !d. at 61 1. This, according to Ule court. clearly indicated that the two statutes
are not irreconcilable and must j)<.nead together. Therefore, a tribe must adhere to both
lORA and the Johnson Act for its Class 11 gari1es to bo 1esal. kl. at 612.
The Eighth Circuit's niling hi Sa.ntee Sioux, howevf.irrcasonab1e jtmny be,
repref'ents a minority am.ong UTe drcuits. Most, including tho District ofCQ1umbiil, which
hasjuri.Hdiction ovC~rNIGC actions, hn:ve decid(!d that theJohn$0b Act is nqt ~pplicable to
Ctass ll games. The N!GC should therefore adopt a similar interpretation. Because a
Cl~$$ il card game played with a techrioJogto aid remtliJ1$_ Class n, the J9hm;on Act docs
not app:ty.

Fo.t the above s.tatcd reasons, tecbilologie aid$ W: otherwise Class U e1trd games
.meet .lORA's definition of Class Jl garning ru1<:i donot vlnlatethe Jolmso.n Act. Ph~ase
contact me or Staff Attorney Michaef Hoenig with. any other questions .or eotn'llients you

may have .

Appendix A -- A29

Case 3:14-cv-02724-AJB-NLS Document 3-3 Filed 11/18/14 Page 1 of 4

2
3
4
5
6
7

KAMALA D. HARRIS

Attorney_ General of California


SARA J. DRAKE, State Bar No. 102565
Senior Assistant Attorney General
WILLIAMP. TORNGREN, State BarNo. 58493
Depu~ Attorney General
1300 I Street1 Suite 125
P.O. Box 944255
Sacramento,CA 94244-2550
Telephone: (916) 323-3033
Fax: (916) 323-1319
E-mail: William. Torn_gren@doj .ca.gov
Attorneys for Plaintiff State Of California

8
9

IN THE UNITED STATESDISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11

12
13

STATE OF CALIFORNIA,

14

Plaintiff, DECLARATION OF JOGINDER


DHILLON IN SUPPORT OF THE
v.
STATE OF CALIFORNIA'S
MOTION FOR TEMPORARY
IIPAY NATION OF SANTA
RESTRAINING ORDER
YSABEL, also known as SANTA
YSABEL BAND OF DIEGUENO
Date: December 4, 2014
MISSION INDIANS, a federa!!YTime: 2:00p.m.
Courtroom: 3B
reco~ized Indiall Trib~~. ANTA
YSABEL INTERACT! v E, a tribal
Judge: Honorable Anthony J. Battaglia
economic devehm!Dent entity, SANTA Trial Date:
YSABEL GAMING COMMISSION, Action Filed: November 18, 2014
DAVID CHELETT~t- DAVID
VIALPANDO, ANTflONY
BUCARO, MICHELLE MAXCY,
VIRGIL PEREZ, and BRANDlE
TAYLOR,

15
16
17
18
19
20
21

22
23

CaseNo. 3:14-cv-02724-AJB/NLS

Defendants.

24
25

I, Joginder Dhillon, declare:

26

1.

I am the Senior Advisor for Tribal Negotiations to the Governor ofthe

27

State of California (State). If called and sworn, I could testify competently to the

28

following from my personal knowledge.


1

Declaration of Joginder Dhillon

Case 3:14-cv-02724-AJB-NLS Document 3-3 Filed 11/18/14 Page 2 of 4

2.

In my capacity as a senior advisor to the Governor, I advise, and consult

with, the Governor and other members of his staff with respect to matters

involving, among other things, tribal gaming, tribal~state gaming compacts, and

gambling in the State. I also am involved with, and contacted by, legislators and

their staff, Indian tribes, and others who are interested in gambling in the State.

Before assuming my present duties, I was the Chief Counsel for the California

Gambling Control Commission.

8
9

3.

The State and the lipay Nation of Santa Ysabel, also known as Santa

Y sahel Band of Diegueno Mission Indians (Tribe), entered into a tribal~state class

10

III gaming compact, dated September 8, 2003 (Compact); A true copy of the

11"

Compact is Exhibit 1 to the State's complaint.

12

4.

On November 3, 2014, I became aware of a press release purportedly

13

issued by GreatLuck LLC (Great Luck) that announced that the Tribe and Great

14

Luck had launched Internet gambling in the State. That press release stated that the

15

Internet gambling would be accessible to users in California "from any web

16

browser on any computer, mobile device or tablet" and that California residents

17

"can purchase bingo cards in U.S. currency to be ellgible to win cash prizes." The

18

press release further stated that "[a]t no time is live bingo game action performed

19

by the user." Exhibit A to this declaration is a true copy of that press release.

20

5. . Since November 3, 2014, numerous articles have appeared in the

21

gambling press and blogs regarding the Tribe's Internet gambling. Additionally,

22

since the Tribe launched its Internet gambling, I have received inquiries from the

23

staffs of both state and federal legislators regarding what action the State was going

24

to take and whether the State was going to allow that gambling to continue. I.also

25

have received inquiries from other Indian tribes' representatives regarding what

26

action the State was going to take with respect to the Tribe's Internet gambling, and

27

whether the State was going to allow the gambling to continue.

28
2

Declaration of Joginder Dhillon

Case 3:14-cv-02724-AJB-NLS Document 3-3 Filed 11/18/14 Page 3 of 4

6.

Earlier, in July 2014, I became aware of information containedin a

gambling blogand elsewhere in the gambling press that the Tribe intended to offer

Internet gambling in the form of real money online poker. I concluded that the

proposed Internet gambling would constitute a material breach of the Compact and

violate the Indian Gaming Regulatory Act (IGRA), California's gamblinglaws, and

the federal Unlawful Internet Gambling Enforcement Act (UIGEA). Pursuant to

the Compact's dispute resolution provisions, I requested by letter, dated July 14,

2014, that the Tribe meet and confer to discuss the issues (meet and confer letter).

The meet and confer letter referred to Internet bingo in addition to online poker.

10 Exhibit B to this declaration is a true copy of the meet and confer letter.
11
12

7.

On July 17, 2014, the Tribe responded to the meet and confer letter. The

Tribe advised that it h~d no intention of discussing any federal statutes, including

13 . IGRAand the UIGEA. The Tribe refused to meet and confer under the Compact's
14

terms. _Exhibit C to this declaration is a true copy of the Tribe's letter refusing to

15

meet and confer.

16

8.

Compact section 4.1(c) allows the Tribe to operate "any devices or games

17

that are authorized under state law to the California State Lottery, provided that the

18

[Tribe] will not offer such games through use ofthe Internet unless others_~n the

19

state are permitted to do so under state and federal_law." The California State

20

Lottery has offered games that have bingo as a theme. No one, and the Tribe in

21

particular, presently is permitted to offer any California State Lottery game through

22

the Internet.

23

9., Compact section 9.4(a)(2) does not allow for a claim of monetary

24

damages by either the State or the Tribe in disputes arising under the Compact. The

25

State desires to enforce the Compact to ensure that the Tribe complies with its

26

provisions. Accordingly, the State seeks an injunction, which is a remedy allowed

27

under the Compact: Additionally, the Tribe's Internet gambling targets California

28

residents age eighteen and older irrespective of whether they are located on the
3

Declaration ofJoginder Dhillon

Case 3:14-cv-02724-AJB-NLS Document 3-3 Filed 11/18/14 Page 4 of 4

Tribe's lands. This impacts the State's interest with respect to gatnbling as setforth

in its Constitution and the Califorhia Penal .Code; Moreover~J know that the Tribe

was not ~he first Indian ttibe within CaJifotQia tbatGreat. LlJ'ck LLC approached to

offer thelnten)et ga:tnbling. Based on my conve1;sations with many interested ru1d

knowledgeable persons, including representatives o:f oiher Indian tribes, I believe

that in the absence of an 0rderenjoining the Tribe's Interoetgamblin:g, other tribes

may begin to offer online gambling that similarly will be available to California

residents, who are not located on Indian lands, without regard to whether federal or

state lawautborizes that grunbling.

10
11

I declare under penalty ofpeijmythat til# :foregoing is true and correct This
declaration is e:xeeuted on Nov.embe:r17, 2014.;

12
13

14

15
16
17

18
19
20

21
22
23

24
25

26
27

28

Declaration ofJoginder Dhillon

l
l
j

Case 3:14-cv-02724-AJB-NLS Document 3-4 Filed 11/18/14 Page 1 of 4

2
3
4

6
7

KAMALA D. HARRIS
Attorney General of California
SARA J. DRAKE, State Bar No. 102565
Senior Assistant Attorney General
WILLIAMP. TORNGREN, State BarNo. 58493
Deputx Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-3033
Fax: (916}3'23-2319
E-mail: Willi~. T.ofi!gren@doj '?a.goy
Attorneys for Plamtiff State Of Califorma

IN THE UNITED STATES DISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11
12
13

STATE OF CALIFORNIA,

14

Plaintiff,

v.

15
16

Case No. 3:14-cv-02724-AJB/NLS

22

IIPAY NATION OF SANTA


YSABEL, also known as SANTA
YSABEL BAND OF DIEGUENO
MISSION INDIANS, a federa!!Yrecog_nized Indian Tribe, SANTA
YSABEL INTERACTIVE, a tribal
economic deveiQP!Dent entity, SANTA
YSABEL GAMING COMMISSION,
DAVID CHELETTE, DAVID
VIALPANDO, ANTHONY
BUCARO, MICHELLE MAXCY,
VIRGIL PEREZ, and BRANDlE
TAYLOR,

23

Defendants.

17
18
19
20
21

DECLARATION OF MICAH
SCOTT IN SUPPORT OF THE
STATE OF CALIFORNIA'S
MOTION FOR TEMPORARY
RESTRAINING ORJ)ER
Date: December 4, 2014
Time: 2:00 p.m.
Courtroom: 3B
"Ju~ge: Honorable Anthony J. Battaglia
Tna] Date:
Action Filed: November 18, 2014

24
25

I, Micah Scott, declare:

26

1.

I am a Special Agent with the California Department of Justice, Bureau

27

of Gambling Control (Bureau). If called and sworn, I could testify competently to

28

the following from my personal knowledge.


1

Declaration of Micah Scott

Case 3:14-cv-02724-AJB-NLS Document 3-4 Filed 11/18/14 Page 2 of 4

2.

I have been employed by the Bureau, and worked in its Sacramento regional office,

since August 2006. My investigative duties with the Bureau include, among other things, fraud,

cheating, embezzlement, book making, loan sharking, illegal lotteries, organized crime, and other

criminal offenses, as well as violations of California's Gambling Control Act, that are related to

or arise out of tribal and non-tribal gambling and illegal underground gambling in California. I

have participated in investigations concerning individuals' and entities' suitability for licensing or

registration in connection with both tribal and non-tribal gambling. From November 2002 until

joining the Bureau, I was assigned to the California Department of Justice's Northern California

Computer Crimes Task Force. My employment with the California Department of Justice began

10

11

in January 2002. I have been a sworn California peace officer since September 1988.
3.

As part of my Special Agent duties, I have been directed to investigate certain

12

Internet gambling offered by the Iipay Nation of Santa Y sahel, also known as the Santa Y sahel

13

Band ofDiegueno Mission Indians (Tribe). On November 3, 2014, I learned that the Tribe had

14

begun to offer a play-for-money bingo game over the Internet. I was provided with a copy of a

15

press release issued by Great Luck LLC. I confirmed the availability of play for money by

16

accessing the website (Desertrosebingo.com) that the press release identified. The press release

17

reported that the Tribe operates Desert Rose Bingo. The website reports that the Tribe owns and

18

operates Desert Rose Bingo. I accessed the website through the Internet from computers located

19

in Sacramento, California.

20

4.

After November 3, 2014, and as part of my investigation of the Tribe's Internet

21

gambling, I caused an account to be opened. The account was funded by a credit card. The

22

account was opened and funded by accessing the Desert Rose Bingo website through the Internet

23

from computers located in Sacramento and near Jackson, California. I also accessed the Desert

24

Rose Bingo website through an iPad. While funding the account by credit card, I observed that

25

an account could be funded by other electronic funds transfers. I further observed that accounts

26

are available to persons aged eighteen and older.

27
28

5.

After an account was funded and as part of my investigation ofthe Tribe's Internet

gambling, I used the Internet to log into the Tribe's bingo website from computers located in
2

Declaration of Micah Scott

Case 3:14-cv-02724-AJB-NLS Document 3-4 Filed 11/18/14 Page 3 of 4

Sacramento and near Jackson, California. I did so more than once and also used an iPad. After

logging into the Tribe's bingo website, I placed bets by selecting a "denomination"- amount- to

play. The denominations offered were $1.00 or less. After selecting a denomination, the system

offered me the opportunity to select the number of cards to be played. Once the selections were

made, the system advised that the bet had been submitted and accepted. The amount bet was

withdrawn from the account that I had opened.

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After a bet was made as part of my investigation, I had no further active participation

in the play. I only placed a bet and selected the number of cards to be played. The system then

played the game. I could select a "theme," which provided background graphics and

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entertainment while the Tribe's Internet gambling system played the game. On my computer

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screen, the system showed a "call count," which apparently was the numbers generated in the

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game, to the left side ofthe display. The numbers were from 1 to 75 and were circled as they

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were generated. Displayed to the right ofthe "call count" was what appeared to be a bingo card

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with twenty-five blocks below the word "BINGO." Twenty-four blocks contained numbers; the

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center block was denominated "free space." As numbers were generated in the "call count,"

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corresponding numbers on the facsimile bingo card were highlighted. If my bet won, the game

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ended by displaying "bingo." If my bet lost, the game ended by displaying: "Proxy of [screen

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name of the winner] won $ [an amount]!"

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7.

As part of my investigation, I did not go to the Tribe's Indian lands to register for or

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open an account. I did that through the Internet from computers located in Sacramento and near

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Jackson. As part of my investigation, I did not go to the Tribe's Indian lands to place a bet. I did

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that through the Internet from computers located in Sacramento and Jackson. I also accessed the

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Tribe's Internet gambling system using an iPad. As part of my investigation, I did not go to the

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Tribe's Indian lands to participate in a bingo game. Rather, the Tribe's Internet gambling system

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did everything after my bet was made. My observation is that the Tribe's Internet gambling

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system encompasses, and appears to be a replica of, all the aspects of a bingo game.

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Declaration of Micah Scott

Case 3:14-cv-02724-AJB-NLS Document 3-4 Filed 11/18/14 Page 4 of 4

I declare under penalty of perjury that the foregoing is true and correct. This declaration is
executed on November 17, 2014.

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MICAH SCOTT

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Declaration ofMicah Scott