United States v. 103 Electronic Gambling DevicesUnited States v. 103 Electronic Gambling Devices
This case poses the question, what is bingo? Cf. Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp.,
Appellant the United States thinks not. The Government claims that the terminals on which MegaMania is played are “gambling devices” within the meaning of the Johnson Act,
Under IGRA, however, bingo and electronic aids thereto are generally permissible in Indian country. See
I. The Game
In MegaMania, players compete against each other in a single, interlinked electronic game via a network of individual computer terminals located at tribal gaming facilities throughout the country. At their respective terminals, players may make an initial purchase at 25 cents per card of up to four electronic game “cards,” displayed on the video screens of each terminal.
MegaMania does not commence until at least twelve people begin playing a minimum of 48 cards collectively. Once the game begins the players start receiving a series of three-number draws displayed on-screen and announced through audio channels.
When a player covers a straight line either horizontally, vertically or diagonally and declares “bingo” (by pressing the daub button) on one or more cards, every player in every facility nationwide is notified of the bingo. Once a player (or players) get(s) bingo, this straight-line game ends. Each player with bingo wins a monetary prize, the amount of which is based on the total number of cards being played in the game, the number of balls drawn since the game began, and the number of players reaching bingo simultaneously. The top jackpot on the straight-line game is $5000, awarded for a bingo achieved after the first four numbers are drawn, the earliest point at which a player can get bingo.
In addition to the traditional straight-line game, there is a “corners game” (dubbed “CornerMania”). In the corners game, each player who covers two, three, or four corners of a card gets a prize. The corners game is played continuously until the straight-line game ends, so there can be one or more CornerMania winners on each draw after the first. If no corners game prize has been awarded before the straight-line game ends, additional numbers are drawn three at a time until at least one corner prize is given out.
II. IGRA and its Implementing Regulations
In 1988, Congress adopted IGRA to provide “a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”
IGRA defines class II gaming in relevant part 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 covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and
(III) 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 similar to bingo,....
As part of its initiative to deal with tribal gaming, Congress created the National Indian Gaming Commission (“NIGC”) to regulate tribal gaming. The NIGC’s broad powers include inspecting tribes’ books and records, approving tribal-state pacts, levying and collecting civil fines, monitoring and even shutting down games, and promulgating regulations and guidelines it deems appropriate to implement IGRA. See
The NIGC has developed regulations to refine the scope of class II gaming. One such regulation,
III. Procedural History
The Government filed two in rem civil forfeiture actions: one in the Northern District of Oklahoma, and five months later, this one.
The Government filed this in rem action in May of 1998, proceeding against 103 electronic game machines located at the Red Fox Casino, Laytonville Ranchería, Mendocino County, California, including 20 MegaMania machines. The Government’s complaint alleged that the games were subject to forfeiture as illegal gambling devices under the Johnson Act. Multimedia, inter alia, filed a claim and answer for the MegaMania machines. Shortly thereafter, the Government and Multimedia each filed motions for summary judgment. The district court granted Multimedia’s motion, concluding that the MegaMania terminal is not a gambling device under the Johnson Act, but, instead, is a class II technologic aid to the game of bingo under IGRA. See United States v. 103 Elec. Gambling Devices, No. C 98-1984 CRB,
We now consider the Government’s appeal. Reviewing the district court’s interpretation of IGRA and its grant of summary judgment de novo, see Alexander v. Glickman,
IV. The Game of Chance Commonly Known as Bingo
A. Bingo in the Abstract
Before considering whether Mega-Mania satisfies the three criteria for a
The Government’s efforts to capture more completely the Platonic “essence” of traditional bingo are not helpful. Whatever a nostalgic inquiry into the vital characteristics of the game as it was played in our childhoods or home towns might discover, IGRA’s three explicit criteria, we hold, constitute the sole legal requirements for a game to count as class II bingo.
There would have been no point to Congress’s putting the three very specific factors in the statute if there were also other, implicit criteria. The three included in the statute are in no way arcane if one knows anything about bingo, so why would Congress have included them if they were not meant to be exclusive?
Further, IGRA includes within its definition of bingo “pull-tabs, ... punch boards, tip jars, [and] instant bingo ... [if played in the same location as the game commonly known as bingo],”
Moreover,
Finally, and critically, the NIGC’s interpretation of both IGRA and the NIGC’s primary IGRA implementing regulation,
We briefly address one of the Government’s specific extra-textual arguments as to why MegaMania is not class II bingo. The Government contends that the “ante-up” feature of MegaMania “distinguishes [it] from the game commonly known as bingo, as historically played throughout this country and indeed even today in tribal bingo facilities,” AOB at 18-19, observing that in a traditional (presumably church-hall style) bingo game, players pay a fixed price for a “session pack” of cards, which lets them play for an evening. But the Government invokes nothing other than tradition to explain precisely why the ante-up pricing method is proscribed by IGRA. As the district court noted, “there is nothing in the statute or the regulations that requires a player to pay one price up front to play the entire game.” 103 Elec. Gambling Devices I,
All told,
B. “The Game is Won by the First Person”
As stated, IGRA defines bingo as, inter alia, a game “(III) in which the game is won by the first person covering a previously designated arrangement of numbers on such cards.”
Turning to the question of whether Me-gaMania satisfies
As for the ultimate question of whether MegaMania is “won” by the first person covering a previously designated arrangement, assuming that in a given game of MegaMania players win several rounds of CornerMania before the straight-line game ends, it would appear that each such player has “won” by “covering a previously designated arrangement.” The first focus of this issue is nothing less than the meaning of the word “win”: Can someone “win” a game even though the other players may also “win”? That is, does “win” necessarily mean “beat”?
The answer, according to Webster’s II Neiv College Dictionary, is that “win” can mean “beat” but need not: That dictionary’s first definition of “win” is “ ‘[t]o achieve victory over others in a competition or contest,’ ” Webster’s II New College Dictionary 1264 (1995), while the second is “ ‘[t]o receive [money] as a prize or a reward for performance.’” Id.; see also 20 Oxford English Dictionary 361 (2d ed.1989) (giving as one definition, “[t]o gain by effort or competition, as a prize or reward, or in gaming or betting, as a wager, etc.”). So, for example, in an instant lottery game, everyone whose scratch card entitles them to ten dollars “wins” a prize, with no effect on how many others may win or in what amount.
Because “winning” does not necessarily entail vanquishing one’s opponents, the meaning of “win” in the statute is at worst ambiguous. In light of that ambiguity, we look for indications that Congress intended to preclude the award of multiple prizes in a single game of bingo.
The record in this case establishes that, in addition to the usual straight-line prize, some traditional live bingo games also make interim payouts to players who cover the corners of their cards; we presume those players believe that they have “won” prizes, even though the game has not ended and others may “win” as much or more. Additionally, as already stated, IGRA explicitly designates instant bingo as a class II game if it is played “in the same location” as a bingo game.
In light of the foregoing considerations, it is telling that IGRA does not state the game has to end when the first person wins anything. Had Congress intended to proscribe interim prizes, the statute could have been drafted to say that “the game ends” instead of “the game is won,” or could have included an express restriction that only one prize be given during the game.
The sum of the matter is that the IGRA requirement that a “bingo” game be “won” by the “first player” covering a pre-desig-
C. House Banking Game
[6] IGRA’s implementing regulations designate any house banking game as class III gaming.
In MegaMania, however, the house is not a participant in the game the way it is in blackjack, for example, where the house plays a hand, and the success of the players depends on the success of the house. And the mere fact that the house nets a percentage of the players’ fees for playing certainly cannot define a “house banking” game. In any church-hall bingo game, the “house” regularly nets some portion of the money it takes in, or there would be no point in sponsoring the game. Thus, while the house does indeed earn a fixed percentage of players’ antes over time, that fact cannot shoehorn MegaMania into the definition of a house banking game set forth in
V. “Technologic Aid” or “Electronic Facsimile”
Under IGRA, class II gaming includes “the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)”,
The distinction under IGRA between an electronic “aid” and an electronic “facsimile” is one that has been litigated and decided before. When the issue arose in Spokane Indian Tribe v. United States, the court looked to the Senate Report on IGRA to distinguish between the two. See
[T]ribes should be given the opportunity to take advantage of modern methods of conducting class II games and the language regarding technology is designed to provide maximum flexibility. In this regard, the Committee recognizes that tribes may wish to join with other tribes to coordinate their class II operations and thereby enhance the potential of increasing revenues. For example, linking participant players at various reservations whether in the same or different States, by means of telephone, cable, television or satellite may be a reasonable approach for the tribes to take. Simultaneous games participation between and among reservations can be made practical by use of computers and telecommunications technology as long as the use of such technology does not change the fundamental characteristics of the bingo or lotto games.... In other words, such technology would merely broaden the potential participation levels and is readily distinguishable from the use of electronic facsimiles in which a single participant plays a game with or against a machine rather than with or against other players.
Senate Report at 9 (emphases added). Relying on the Senate Report, Spokane Indian Tribe noted that an “electronic aid” “enhance[s] the participation of more than one person in ... Class II gaming activities.”
The MegaMania terminal, in contrast, does “link[ ] participant players at various reservations whether in the same or different States [thereby] broadening] the potential participation levels.” Senate Report at 9; see also Spokane Indian Tribe,
The Government urges that in Corner-Mania players effectively do play against the machine because their winnings do not depend on those of other players. First, in CornerMania players are competing against each other either to be the first to get a corners prize (if the straight-line game has ended), or (if a corners prize has
In short, the MegaMania terminal is just an electronic aid to bingo, because it “merely broaden[s] the potential participation levels.” Senate Report at 9. As such, the MegaMania terminal is class II gaming under IGRA. See
VI. The Johnson Act
The Government maintains that the Me-gaMania terminal, although specifically authorized under IGRA, is nonetheless an illegal “gambling device” under the Johnson Act. The Johnson Act’s definition of “gambling device” includes slot machines (statutorily defined in painstaking detail, see
We are not aware of any authority predating IGRA that addresses how the Johnson Act applied to bingo aids. In any event, there is little point at this juncture in engaging in time travel to determine how the Johnson Act would have applied to bingo in Indian country in the absence of IGRA.
The text of IGRA quite explicitly indicates that Congress did not intend to allow the Johnson Act to reach bingo aids. The statute provides that bingo using “elec
In short, while complete, self-contained electronic or mechanical facsimiles of a game of chance, including bingo, may indeed be forbidden by the Johnson Act after the enactment of IGRA cf.
By so holding, we maintain fidelity to two entrenched canons of statutory construction: (i) courts should give effect to both of two statutes covering related or overlapping subjects, see Boys Markets v. Retail Clerks Union, Local 770,
... [T]he Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible....”
Morton v. C.R. Mancari,
Finally, our decision carries out Congress’s goal — expressed in the text of IGRA — of providing “a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”
MegaMania is class II bingo. Because the MegaMania terminal is a class II aid to bingo, we conclude that it is not an illicit gambling device under the Johnson Act.
CONCLUSION
For the foregoing reasons, Multimedia scores bingo; the judgment is AFFIRMED.
Notes
. Cards are randomly generated by computer. (The parties have not explained whether the individual terminals or a central computer outside the terminals generates the cards.) Before the game begins, players may keep their initial card(s), request different cards, or not play them at all. Once the game commences, however, a player cannot change cards but may drop them.
. The numbers in each draw are generated by a machine which, until the Government seized it, was located at the Choctaw gaming facility in Arrowhead, Oklahoma. The machine "blows” approximately forty numbered ping pong balls (out of a pool of seventy-five balls) into a tube. A human operator keys into a computer the number of each ball in the forty-number sequence. The computer then feeds those numbers into the “game host”, which in turn transmits the numbers three at a time to remote host computers at participating gaming facilities. Finally, the remote hosts transmit each three-number sequence to the terminals in their respective facilities.
. To begin playing, a player opens an account with a cashier at a point-of-sale station. The player is then given a specific account number that permits him to track his funds and to log on to a MegaMania terminal. The current balance in the account is displayed at all times on the terminal while the player is in the game. The 25 cent payments are deducted, and any prize money won is added, automatically to the player’s account.
.
(a) Bingo or lotto (whether or not electronic, computer, or other technologic aids are used) when players:
(1) Play for prizes with cards bearing numbers or other designations;
(2) Cover numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined; and
(3)Win the game by being the first person to cover a designated pattern on such cards;
(b) If played in the same location as bingo or lotto, pull-tabs, punch boards, tip jars, instant bingo, and other games similar to bingo....
. Neither party contends there is a dispute of fact, material or otherwise.
. [One] commenter suggested that class II gaming be limited to games involving group participation where all players play at the same time against each other for a common prize. In the view of the Commission, Congress enumerated those games that are classified as class II gaming (with the exception of "games similar to bingo”). Adding to the statutory criteria would serve to confuse rather than clarify. Therefore, the Commission rejected this suggestion.
[Another] commenter questioned whether the definition of bingo in the IGRA limitsthe presentation of bingo to its classic form. The Commission does not believe Congress intended to limit bingo to its classic form. If it had, it could have spelled out further requirements such as cards having the letters “B” “I" "N” "G” "O" across the top, with numbers 1-15 in the first column, etc. In defining class II to include games similar to bingo, Congress intended to include more than "bingo in its classic form” in that class.
... Congress enumerated the games that fall within class II except for games similar to bingo. For games similar to bingo, the Commission added a definition that in-eludes the three criteria for bingo and, in addition, requires that the game not be a house banking game as defined in the regulations. The Commission believes that Congress did not intend other criteria to be used in classifying games in class II.
. The Government concedes that MegaMania satisfies the first two criteria of
. The Government does not contend that the fact that more than one player can win the straight-line game runs afoul of
. We note that there is no indication that the straight-line game is a mere sham supporting CornerMania. The record reveals that Cor-nerMania payouts are generally less than those awarded for achieving a straight-line bingo.
.
. Because we find that MegaMania is class II gaming under IGRA, we do not reach Me-gaMania's argument that the Government should be judicially estopped from arguing that MegaMania is an impermissible class III game. Attempting to distinguish the allegedly class III pull-tab game at issue in Diamond Game Enterprises, Inc. v. Reno,
Likewise, we find it unnecessary to address Multimedia's claim that a series of letters and advisory opinions issued by the NIGC dealing with the class II status of MegaMania provide independent grounds for affirming the district court’s grant of summary judgment. For that reason, we deny MegaMania's motion to strike certain portions of the Government's reply brief making what MegaMania asserts are selective, misleading references to one of the NIGC letters.
. We note that at least some members of the Congress that passed IGRA thought the Johnson Act did not apply to bingo aids, for the Senate Report so states. Senate Report at 12; see also
. The Government conceded as much at oral argument, asserting that the court should "read the two acts harmoniously; if it’s a bingo aid, it’s not a Johnson Act gambling device.”