The Iipay Nation of Santa Ysabel (Tribe) responded this week to a United States District Court motion filed by California Attorney General Kamala D. Harris (State) seeking to enjoin the Tribe’s provision of bingo to California residents beyond the borders of its tribal lands via the Internet.
The State claims the Tribe is violating several laws and agreements by offering such a game, including the Unlawful Internet Gambling Enforcement Act (UIGEA). The Tribe denied these charges in its brief to the court, characterizing the charges against it as “speculative” and “factually-flawed.”
The Tribe is responding with two main arguments.
The first, is that the State is mischaracterizing the legal classification of its Internet bingo game under a 2003 regulatory compact (Compact). The second, is that the State is using this mischaracterization to overreach its authority and attempt to prevent the Tribe from engaging in activity legally reserved to it under both the Indian Gaming Regulatory Act (IGRA) and the doctrine of Tribal Sovereign Immunity.
Legal Classification of Online Bingo at Issue
The State argued in its original motion that an injunction is warranted because the bingo game being provided by the Tribe over the Internet falls under the definition of “an electronic facsimile of any game of chance.” Under the terms of the Compact, electronic facsimiles are considered “Class III Gaming,” which the Tribe is precluded from offering over the Internet unless “others in the state are permitted to do so under state and federal law.”
The Tribe, however, is challenging this classification, arguing that there is no legal distinction between its land-based bingo games – which are “Class II Gaming” under the Compact and carry no Internet restriction – and its electronic bingo game.
This is because – in its estimation – the system that allows a player access to the game is merely a “technologic aid” that does not legally transform a Class II bingo game into a Class III “Internet gambling” game.
To support this interpretation, the Tribe cites an opinion by the Acting General Counsel of the National Indian Gaming Commission (NIGC) that the use of an electronic devise to track the progress made on a bingo card during a game does not – as a matter of law – cause an individual to be playing bingo over the internet:
When the proxy plays the bingo card for the player in Bingo Nation, the act of playing the card is deemed to be the act of the player. The legal effect is that the proxy is the player,” the brief quotes the NIGC as saying.
Legal Precedent for Accessing Tribal Gaming From Outside of Tribal Lands
The Tribe also relies on a Ninth Circuit court decision (which did not involve the Tribe) in which an individual purchased tickets for a lottery on Indian Lands over the phone. In that case the court found that the IGRA does in-fact permit “’off-reservation means of access’ to game play conducted on a tribe’s Indian lands.”
By rejecting the notion that an individual playing a lottery held on Tribal Lands – while not physically present there – would be outside the reach of the IGRA, the Tribe argues that a legal precedent was set to consider gaming held by the Tribe to be by definition occurring within its Tribal Lands, even if accessed from outside of them.
The Tribe Re-Asserts Sovereign Immunity; Argues Illegal Government Overreach
These two arguments in tandem lead the Tribe to conclude that under the Compact its electronic bingo game is non-restricted Class II Gaming, occurring entirely within its own Tribal Lands.
Therefore, it asserts that the waiver of Tribal Sovereign Immunity under the Compact is not applicable to its electronic bingo offering, and that the UIGEA cannot be legally enforced:
UIGEA speaks loud and clear that it is not designed to abrogate lawful tribal gaming activity. Because Congress has not clearly and unequivocally expressed its abrogation of tribal immunity for this purpose, UIGEA cannot be relied upon by the State.”
It is unlikely that the ability to access bingo games via the Internet will be viewed as anything other than “Internet gambling” by the courts.
While it may be true that state governments previously had little interest in getting involved every time someone called a bingo parlor to place a bet, the same cannot be true of the interest California now has in making sure it stays firmly in control of its estimated multi-billion dollar iGaming market.
Although it would be limited to bingo for the moment, a victory for the Tribe in this case could very easily be construed as a first step toward the establishment of complete autonomy for Native American Tribes vis-a-vis state Internet gambling regulatory schemes – and the licensing fees required to be in compliance with them.
Exempting tribal gaming from Internet gambling laws would cost California more than just the value of the fees tribes would have purchased. It will also set non-tribal businesses looking to enter the market at a serious competitive disadvantage due to higher overhead costs than tribal competition – which would in turn decrease the value of licenses generally and bring even less money into state coffers.
That is a scenario California – and other states as well – will undoubtedly use their influence in the federal court system to avoid at all costs.
The case is scheduled to be heard on December 4th of this year.