USA v 103 ELECTRONIC GAMING, 9915675
U.S. 9th Circuit Court of Appeals
USA v 103 ELECTRONIC GAMING
9915675
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
103 ELECTRONIC GAMBLING
DEVICES, Located at the Red Fox
Casino, Laytonville Rancheria,
No. 99-15675
Mendocino County, California,
D.C. No.
Defendant,
CV-98-1984-CW
CAHTO TRIBE, SHODAKI COYOTE
OPINION
VALLEY CASINO; GENEVIEVE
CAMPBELL; SHARP IMAGE GAMING,
INC.,
Claimants,
MULTIMEDIA GAMES, INC.,
Claimant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
June 14, 2000--San Francisco, California
Filed August 29, 2000
Before: Andrew J. Kleinfeld, A. Wallace Tashima and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
_________________________________________________________________
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Government Law/Native Americans
The court of appeals affirmed a judgment of the district
court. The court held that mere technologic aids to bingo are
not gambling devices under the Johnson Act.
The government filed a civil forfeiture action against 103
MegaMania electronic gaming devices located at the Red Fox
Casino, an Indian gaming facility in Northern California,
claiming that the devices were gambling devices within the
meaning of the Johnson Act.
The Johnson Act prohibits the possession and operation of
any gambling device on Indian land unless authorized by a
tribal-state compact.
The Indian Gaming Regulatory Act (IGRA) places games
played on Indian land into three classes: Class I is traditional
Indian games or social games played for prizes of minimal
value; Class II is bingo and games similar to bingo; Class III
is all games not in classes I or II. IGRA explicitly excludes
from Class II gaming electronic or electromechanical facsimi-
les of any game of chance or slot machines of any kind. Only
if a tribe has negotiated a tribal-state compact may it run class
III games on its land. At the time the Government brought the
forfeiture action, no such compact was in place between the
Tribe and California.
IGRA defines class II gaming as the game of chance com-
monly 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 elec-
tronically 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.
MegaMania players compete against each other in a single,
interlinked electronic game via a network of individual com-
puter terminals located at tribal gaming facilities throughout
the country. At their respective terminals, players may pur-
chase up to four electronic game cards, displayed on the video
screens of each terminal. Once the game begins the players
start receiving a series of three-number draws displayed on-
screen. For each three-number draw a player must pay 25
cents per card that he or she is playing. This pay-per-draw
style of play is called ante up bingo. After a set of numbers
is drawn players press a daub button to cover the called num-
bers on the cards. When a player presses the daub button, the
computer automatically covers corresponding numbers on the
player's cards. When a player covers a straight line either hor-
izontally, vertically or diagonally and declares bingo, every
player in every facility nationwide is notified of the bingo.
Once a player gets 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. In addi-
tion to the traditional straight-line game, there is a Corner-
Mania, in which 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.
Appellee Multimedia Games, the manufacturer of the
MegaMania machines, filed a claim and answer for the
devices. The government and Multimedia each filed motions
for summary judgment. The district court granted Multime-
dia's motion, concluding that the MegaMania terminal was a
class II technological aid to the game of bingo under IGRA.
The government appealed.
[1] IGRA's three explicit criteria, constitute the sole legal
requirements for a game to count as class II bingo. [2] The
National Indian Gaming Commission's (NIGC) interpretation
of both IGRA and the NIGC's primary IGRA implementing
regulation rests on the proposition that neither Congress nor
the Commission intended to limit bingo to its classic form.
[3] The question was whether MegaMania, not one of its
constituent components, satisfied IGRA's statutory criteria for
class II gaming. Thus, MegaMania as a whole was the game
to which the IGRA statute pertained. [4] There was no reason
that the previously designated arrangement to which the stat-
ute refers had to be a straight line. The statutory description
quite clearly permitted any pattern to yield a prize, as long as
the pattern is previously designated.
[5] As to the question of whether MegaMania was "won"
by the first person covering a previously designated arrange-
ment, 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.
[6] The IGRA requirement that a bingo game be won by
the first player covering a pre-designated pattern does not
mean the game must end when one player does so, so that
everyone else wins nothing. MegaMania is won by the first
person covering a previously designated arrangement of num-
bers on his or her cards within the meaning of IGRA.
[7] IGRA's implementing regulations designate any house
banking game as class III gaming. A house banking game is
any game of chance that is played with the house as a partici-
pant in the game, where the house takes on all players, col-
lects from all losers, and pays all winners, and the house can
win.
[8] The fact that the house nets a percentage of the players'
fees for playing cannot define a house banking game. While
the house does earn a fixed percentage of players' antes over
time, that fact could not shoehorn MegaMania into the defini-
tion of a house banking game. Just because the house turns a
profit on players' deposits didn't make the house participant
in the game that took on all players and that could win.
[9] Under IGRA, class II gaming specifically excludes
electronic or electromechanical facsimiles of any game of
chance or slot machines of any kind. [10] The MegaMania
terminal linked participant players at various reservations
whether in the same or different States thereby broadening the
potential participation levels. The MegaMania terminal was
not a facsimile of any game of chance; it was an electronic aid
to human players of bingo.
[11] The text of IGRA explicitly indicates that Congress
did not intend to allow the Johnson Act to reach bingo aids.
The statute provides that bingo using electronic, computer, or
other technologic aids is class II gaming, and therefore per-
mitted in Indian country.
[12] Mere technologic aids to bingo, such as the Mega-
Mania terminal, are not forbidden by the Johnson Act.
_________________________________________________________________
COUNSEL
Stephen C. Lewis, Catherine J. Depew, Special Assistant
United States Attorneys, Tulsa, Oklahoma; Sean Connelly,
Attorney, United States Department of Justice, Denver, Colo-
rado, for the plaintiff-appellant.
Layn R. Phillips, Gregory R. Smith, Theodore H. Frank, Irell
& Manella, Los Angeles, California, for the claimant-
appellee.
_________________________________________________________________
OPINION
BERZON, Circuit Judge:
This case poses the question, what is bingo? Cf. Frigali-
ment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp.
116, 117 (S.D.N.Y. 1960) (Friendly, J., sitting by designation)
("The issue is, what is chicken?"). In particular, we determine
whether an electronic game called MegaMania, manufactured
and sold by Appellee Multimedia Games, Inc.
("Multimedia"), is "bingo" as that term is defined in the
Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. SS 2701-
2721.
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,
15 U.S.C. SS 1171-1178. The Johnson Act prohibits the pos-
session and operation of any "gambling device", as defined in
the Act, id. S 1171(a), on Indian land, see id. S 1175(a), unless
authorized by a tribal-state compact, see 25 U.S.C.
S 2710(d)(6). Invoking the Johnson Act, the Government
brought this forfeiture action against, inter alia, some twenty-
odd MegaMania game terminals located at the Red Fox
Casino, an Indian gaming facility in Northern California.
Under IGRA, however, bingo and electronic aids thereto
are generally permissible in Indian country. See id.
SS 2703(7)(A), 2710. Multimedia asserts that MegaMania is
a bingo game, and that the use of the games at the casino was
therefore legal.
I. The Game
In MegaMania, players compete against each other in a sin-
gle, interlinked electronic game via a network of individual
computer terminals located at tribal gaming facilities through-
out 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.1 A participant may play up to four cards at a
time.
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.2 For each three-number draw a player must
pay 25 cents per card that he or she is playing (e.g., if a player
has three cards on her screen, she must pay 75 cents per draw).3
This pay-per-draw style of play is called "ante up" bingo.
After a set of numbers is drawn players must press a "Daub
Cards" button ("daub button") to "cover " the called numbers
on the cards. When a player presses the daub button, the com-
puter automatically covers corresponding numbers on the
player's cards. After each three-number draw is displayed a
player has eight seconds to decide whether to continue play-
ing the card(s) for another draw.
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 ear-
liest 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 cor-
ners 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." 25 U.S.C. S 2702(1). IGRA
places games played on Indian land into three classes: class
I consists of traditional Indian games or social games played
for prizes of minimal value; class II includes bingo and games
similar to bingo, plus certain card games; class III is com-
prised of all games not in classes I or II. See id. SS 2703(6)--
(8). Only if a tribe has negotiated a tribal-state compact may
it run class III games on its land. See id. at S 2710(d)(1)(C).
At the time the Government brought this forfeiture action, no
such compact was in place between the Cahto Tribe and the
State of California. Thus, for our purposes the critical ques-
tion is whether MegaMania and the MegaMania terminals are
class II gaming under IGRA.
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 tech-
nologic aids are used in connection therewith)--
(I) which is played for prizes, including
monetary prizes, with cards bearing num-
bers 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, . . . .
Id. S 2703(7)(A). IGRA, however, explicitly excludes from
Class II gaming "electronic or electromechanical facsimiles of
any game of chance or slot machines of any kind. " Id.
S 2703(7)(B)(ii).
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 25
U.S.C. SS 2705-06, 2713.
The NIGC has developed regulations to refine the scope of
class II gaming. One such regulation, 25 C.F.R.S 502.3, set
out in the margin, for the most part adopts the language of
S 2703(7)(A).4 Another defines "a game similar to bingo" as
"any game that meets the requirements for bingo under [25
C.F.R. S 502.3(a)] and that is not a house banking game under
[25 C.F.R. S 502.11]." 25 C.F.R.S 502.9. A "house banking
game" is "any game of chance that is played with the house
as a participant in the game, where the house takes on all
players, collects from all losers, and pays all winners, and the
house can win." 25 C.F.R. S 502.11.
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 Rancheria, 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, 1998 WL 827586,
at *8, *10 (N.D. Cal. Nov. 23, 1998) ["103 Elec. Gambling
Devices I"].
We now consider the Government's appeal. Reviewing the
district court's interpretation of IGRA and its grant of sum-
mary judgment de novo, see Alexander v. Glickman, 139 F.3d
733, 735 (9th Cir. 1998); Balint v. Carson City , 180 F.3d
1047, 1050 (1999), and viewing the evidence in the light most
favorable to the Government, see Balint, 180 F.3d at 1050,5
we conclude, in agreement with the district court, that under
IGRA, MegaMania is a legal class II bingo game, and that the
MegaMania terminal is a legal class II electronic aid to bingo.
IV. The Game of Chance Commonly Known as Bingo
A. Bingo in the Abstract
Before considering whether MegaMania satisfies the three
criteria for a class II bingo game set forth in 25 U.S.C.
S 2703(7)(A)(i)(I)-(III), we turn to the Government's argu-
ment that these three factors are not the only criteria a game
must meet to be an IGRA class II bingo game: The Govern-
ment maintains that because IGRA uses the phrase`the game
of chance commonly known as bingo' before spelling out the
three criteria, other features that have traditionally character-
ized bingo games are also pertinent in determining whether or
not a game is a class II bingo game. The Government con-
tends, specifically, that (i) traditional bingo games lack the
ante-up feature MegaMania possesses, (ii) in a traditional
bingo game, unlike CornerMania, earnings depend on those of
other players, and (iii) MegaMania's "manic pace " and poten-
tially high stakes are markedly different than the placid tran-
quility and token rewards and losses associated with a
traditional bingo game, see Appellant's Opening Brief
("AOB") at 23 (citing Alice Andrews, Hooked on Bingo 11
(1988) ("There is a calm and peacefulness in playing Bingo.
There is a get-away-from-it-all feeling, kind of like bamboo
fishing.")).
[1] 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, con-
stitute 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]," 25 U.S.C. S 2703(7)(A)(i), none of which are similar
to the traditional numbered ball, multi-player, card-based
game we played as children. Cf. Merriam-Webster's Colle-
giate Dictionary 114 (10th ed. 1999) (defining bingo as "a
game of chance played with cards having numbered squares
corresponding with numbered balls drawn at random and won
by covering five such squares in a row"). Instant bingo, for
example, is as the Fifth Circuit explained in Julius M. Israel
Lodge of B'nai Brith No. 2113 v. Commissioner, 98 F.3d 190
(5th Cir. 1996), a completely different creature from the clas-
sic straight-line game. Instead, instant bingo is a self-
contained instant-win game that does not depend at all on
balls drawn or numbers called by an external source. See id.
at 192-93.
Moreover, S 2703(7)(A)(i)'s definition of class II bingo
includes "other games similar to bingo," 25 U.S.C.
S 2703(7)(A)(i), explicitly precluding any reliance on the
exact attributes of the children's pastime.
[2] Finally, and critically, the NIGC's interpretation of both
IGRA and the NIGC's primary IGRA implementing regula-
tion, 25 C.F.R. S 502, rests on the proposition that neither
Congress nor the Commission intended to "limit bingo to its
classic form." Action for Final Rule 25 C.F.R.S 502 ("S 502
Action"), 57 Fed. Reg. 12382, 12382. A fuller version of the
Commission's interpretation is set out in the margin.6 The
NIGC's conception of what counts as bingo under IGRA, as
articulated in the agency's Final Action on S 502 a few years
after IGRA was enacted, is entitled to substantial deference,
for "[administrative] practice has peculiar weight when it
involves a contemporaneous construction of a statute by the
men charged with the responsibility of setting its machinery
in motion, of making the parts work as efficiently and
smoothly while they are yet untried and new." Norwegian
Nitrogen Co. v. United States, 288 U.S. 294, 315 (1933) (Car-
dozo, J.).
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 Mega-
Mania "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 Govern-
ment 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, 1998
WL 827586, at *7. Given Congress's and the NIGC's appar-
ent intentions not to supplement IGRA's bingo specifications,
we reject the Government's challenge to the ante-up feature.
All told, S 2703(7)(A)(i)'s definition of "the game of
chance commonly known as bingo" is broader than the Gov-
ernment would have us read it. We decline the invitation to
impose restrictions on its meaning besides those Congress
explicitly set forth in the statute. Class II bingo under IGRA
is not limited to the game we played as children.
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 previ-
ously designated arrangement of numbers . . . on such cards."
25 U.S.C. S 2703(7)(A)(i); see also 25 C.F.R. S 502.3. The
Government contends the "continuous-win" feature (or "in-
terim win", as Multimedia puts it) of CornerMania does not
comply with IGRA's third requirement,7 because (i) Corner-
Mania can result in multiple payouts before the straight-line
game ends; and (ii) each CornerMania payout does not
depend on the number of other players receiving CornerMania
prize money but rather on the number of corners covered on
each draw and on the number of balls drawn since the game
began. For these two reasons, maintains the Government,
MegaMania is not "won by the first person covering a previ-
ously designated arrangement of numbers or designations on
such cards," 25 U.S.C. S 2703(7)(A)(i)(III).8
[3] The question before us, though, is whether MegaMania,
not one of its constituent components, satisfies IGRA's statu-
tory criteria for class II gaming. Thus, MegaMania as a whole
is "the game" to which S 2703(7)(A)(i)(III) pertains.
[4] Turning to the question of whether MegaMania satisfies
S 2703(7)(A)(i)(III), as an initial matter, there is no reason
that the "previously designated arrangement" to which the
statute refers must be a straight line. Indeed, the statutory
description just quoted quite clearly permits any pattern to
yield a prize, as long as the pattern is "previously designated".
Moreover, even if we were to resort for this purpose to the
inquiry into "essential" bingo we have already rejected, we
would not rule otherwise. As an affidavit submitted to the dis-
trict court by an FBI racketeering investigator attests, "[i]n the
game commonly known as bingo . . . . [e]xamples of pre-
designated winning patterns include the traditional straight
line, four corners, letters X or L, or covering the full card."
[5] 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 arrange-
ment." 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 New College Dictio-
nary, is that "win" can mean "beat" but need not: That dictio-
nary's first definition of "win" is " `[t]o achieve victory over
others in a competition or contest,' " Webster's II New Col-
lege 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) (giv-
ing 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 indi-
cations that Congress intended to preclude the award of multi-
ple 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.
25 U.S.C. S 2703(7)(A)(i). That Congress would permit this
variant of bingo, yielding interim prizes while the main game
is ongoing, indicates it did not intend to forbid interim prizes
like those CornerMania awards during a game of MegaMania.
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.9
[6] The sum of the matter is that the IGRA requirement that
a "bingo" game be "won" by the "first player" covering a pre-
designated pattern does not mean the game must end when
one player does so, so that everyone else wins nothing. We
conclude, therefore, that MegaMania is "won by the first per-
son covering a previously designated arrangement of numbers
. . . on [his or her] cards," 25 U.S.C.S 2703(7)(A)(i)(III),
within the meaning of IGRA.
C. House Banking Game
[7] IGRA's implementing regulations designate any house
banking game as class III gaming. 25 C.F.R. S 502.4(a); see
also id. S 502.9 ("Game similar to bingo means any game that
meets the requirements for bingo under S 502.3(a) of this part
and that is not a house banking game under S 502.11 of this
part."). Recall that a house banking game is "any game of
chance that is played with the house as a participant in the
game, where the house takes on all players , collects from all
losers, and pays all winners, and the house can win." 25
C.F.R. S 502.11 (emphases added). The Government reasons
that MegaMania fits within this definition because Corner-
Mania's payouts do not hinge on the success of other players
but are instead based on a mathematical formula that ensures
that over time the house will net fifteen percent of players'
antes.
[8] 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 Mega-
Mania into the definition of a house banking game set forth
in S 502.11. Just because the house turns a profit on players'
deposits doesn't make the house "a participant in the game"
that "takes on all players" and that "can win".10
V. "Technologic Aid" or "Electronic Facsimile"
[9] 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)", 25 U.S.C. S 2703(7)(A)(i), but specifically
excludes "electronic or electromechanical facsimiles of any
game of chance or slot machines of any kind." Id.
S 2703(7)(A)(ii). The Government claims the MegaMania ter-
minal is an "electronic facsimile", Multimedia, an "electronic,
computer, or other technologic aid[ ]".
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 972 F.2d 1090,
1093 (9th Cir. 1992). The Senate Report states:
[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 partici-
pant 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 telecom-
munications technology as long as the use of such
technology does not change the fundamental charac-
teristics of the bingo or lotto games . . . . In other
words, such technology would merely broaden the
potential participation levels and is readily distin-
guishable 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." 972 F.2d at 1093; see also Sycuan
Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir.
1995) ("[A]n `electronic aid' to a class II game can be viewed
as a device that offers some sort of communications technol-
ogy to permit broader participation in the basic game being
played, as when a bingo game is televised to several rooms or
locations.") (citing Cabazon Band of Mission Indians v.
National Indian Gaming Comm'n, 14 F.3d 633, 637 (D.C.
Cir. 1994)). Because the Pick 6 game at issue in the case
involved only "a single participant play[ing ] against the
machine," the court held that it was an electronic facsimile
rather than an electronic aid. 972 F.2d at 1093; see also Syc-
uan Band, 54 F.3d at 542-43 (concluding that electronic pull-
tab game in which one player played against machine was
exact, self-contained, copy of paper version of game and was
thus a class III electronic facsimile thereof); Cabazon Band,
14 F.3d at 636.
[10] The MegaMania terminal, in contrast, does "link[ ]
participant players at various reservations whether in the same
or different States [thereby] broaden[ing ] the potential partici-
pation levels." Senate Report at 9; see also Spokane Indian
Tribe, 972 F.2d at 1093; Sycuan Band, 54 F.3d at 543. As
such, the MegaMania terminal is not a "facsimile of any game
of chance," 25 U.S.C. S 2703(7)(A)(ii), or, indeed, a facsimile
of anything. Rather, the terminal is merely an electronic aid
to human players of bingo, something like electronic mail
with a graphic user interface. And, while the government has
argued that MegaMania resembles a slot machine in certain
limited respects, there has been no argument that the terminal
is a "slot machine", id., which it plainly is not. Unlike a slot
machine, MegaMania is in truth being played outside the ter-
minal; the terminal merely permits a person to connect to a
network of players comprising each MegaMania game, and
without a network of at least 12 other players playing at other
terminals, an individual terminal is useless. Contrast with
Spokane Indian Tribe, 972 F.2d at 1093 ("The player can par-
ticipate in the game whether or not anyone else is playing at
the same time."); Sycuan Band, 54 F.3d at 543; Diamond
Game Enterprises, Inc. v. Reno, 9 F. Supp. 2d 13, 20 (D.D.C.
1998) (holding that a certain electronic pull-tab game was a
facsimile because it did not permit multiple players to partici-
pate at once).
The Government urges that in CornerMania players effec-
tively 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 already been awarded) to get a corners
prize before another player gets straight-line bingo. Second,
while the Government's argument could have relevance were
CornerMania a free-standing game, one cannot play Corner-
Mania without playing the whole game--MegaMania--and
MegaMania requires twelve players to play.
In short, the MegaMania terminal is just an electronic aid
to bingo, because it "merely broaden[s] the potential partici-
pation levels." Senate Report at 9. As such, the MegaMania
terminal is class II gaming under IGRA. See 25 U.S.C.
S 2703(7)(A)-(B).11
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.
VI. The Johnson Act
The Government maintains that the MegaMania 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 15
U.S.C. S 1171(a)(1)), and also any other "machine or mechan-
ical device" designed "primarily" for gambling that, when
operated, either delivers money or property or entitles a player
to receive the same "as the result of the application of an ele-
ment of chance," id. S 1171(a)(1) & (2). The definition also
includes "essential part[s] intended to be used in connection
with any such machine . . . , but which is not attached." Id.
S 1171(a)(3). In most circumstances, the Johnson Act prohib-
its the possession or operation of any gambling device on fed-
eral land and in Indian country. See 15 U.S.C. S 1175. As
mentioned, IGRA explicitly repealed the application of the
Johnson Act to class III gaming devices used pursuant to
tribal-state compacts, see 25 U.S.C. S 2710(d)(6), but did not
explicitly address the relationship between IGRA and the
Johnson Act as applied to class II gaming.
We are not aware of any authority pre-dating 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. 12 What
matters now is how the two are to be read together--that is,
how two enactments by Congress over thirty-five years apart
most comfortably coexist, giving each enacting Congress's
legislation the greatest continuing effect.
[11] The text of IGRA quite explicitly indicates that Con-
gress did not intend to allow the Johnson Act to reach bingo
aids. The statute provides that bingo using "electronic, com-
puter, or other technologic aids" is class II gaming, and there-
fore permitted in Indian country. 25 U.S.C. S 2703(7)(A)(i).
Reading the Johnson Act to forbid such aids would render the
quoted language a nullity. Why would Congress carefully
protect such technologic aids through the text of
S 2703(7)(A)(i), yet leave them to the wolves of a Johnson
Act forfeiture action? We cannot presume that in enacting
IGRA, Congress performed such "a useless act". 2B Norman
J. Singer, Sutherland Statutory ConstructionS 49.11, at 83
(5th ed. 1992). By deeming aids to bingo class II gaming in
the text of IGRA, see 25 U.S.C. S 2703(7)(A)(i), Congress
specifically authorized the use of such aids as long as the
class II provisions of IGRA are complied with. See 25 U.S.C.
S 2710(a)-(c).
[12] 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 enact-
ment of IGRA, cf. 25 C.F.R. S 502.8 (defining "electronic fac-
simile" under IGRA as "any gambling device as defined in 15
U.S.C. S 1171(a)(2) or (3) [i.e., the Johnson Act]"); Cabazon
Band, 827 F. Supp. at 31 ("[I]t is plainly evident that IGRA's
`facsimiles' are the Johnson Act's `gambling devices.' "), we
hold that mere technologic aids to bingo, such as the Mega-
Mania terminal, are not.13
By so holding, we maintain fidelity to two entrenched can-
ons 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, 398 U.S.
235, 249-50 (1970) ("accommodating" the blanket prohibition
on federal court strike injunctions in labor disputes contained
in S 4 of the Norris-LaGuardia Act, 29 U.S.C.S 104, to the
collective bargaining enforcement provision of the later-
enacted S 301(a) of the Labor Management Relations Act
("LMRA"), 29 U.S.C. S 185(a)), and (ii) a specific statute
governs a general one. As the Supreme Court explained in
reconciling the long-standing statutory employment prefer-
ence for Indians in the Bureau of Indian Affairs, see 25
U.S.C. S 461 et seq., with the anti-discrimination provisions
of the Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, 86 Stat. 103:
. . . [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 applica-
tion. 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 enact-
ment.
The courts are not at liberty to pick and choose
among congressional enactments, and when two stat-
utes 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, 417 U.S. 535, 550 -51 (1974) (quot-
ing United States v. Borden Co., 308 U.S. 188, 198 (1939));
see also Morales v. Trans World Airlines, 504 U.S. 374, 384
(1992) ("[I]t is a commonplace of statutory construction that
the specific governs the general."); Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987), superseded on
other grounds by the Civil Rights Act of 1991, Pub. L. No.
102-166, 105 Stat. 1071. Congress's most recent relevant
word on gaming is that aids to bingo are legal in Indian coun-
try. Section 2703 of IGRA is a "specific provision applying
to a very specific situation," Morton, 417 U.S. at 550, and we
must accordingly give it effect here.
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." 25 U.S.C. S 2702(1); see also
Senate Report at 9 (describing Senate's aim of fostering
tribes' use of modern technology in branching their class II
gaming operations, thereby "enhanc[ing] the[ir] potential of
increasing revenues").
MegaMania is class II bingo. Because the MegaMania ter-
minal 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./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
_______________________________________________________________
FOOTNOTES
1 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.
2 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 num-
bered 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.
3 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.
4 Section 502.3 defines class II gaming in relevant part as:
(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 deter-
mined; and
(3) Win the game by being the first person to cover a des-
ignated 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 . . . .
25 C.F.R. S 502.3.
5 Neither party contends there is a dispute of fact, material or otherwise.
6 [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 clas- sified 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 sug-
gestion.
[Another] commenter questioned whether the definition of
bingo in the IGRA limits the 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, Con-
gress 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 includes 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.
S 502 Action, 57 Fed. Reg. at 12382, 12387.
7 The Government concedes that MegaMania satisfies the first two
criteria of S 2703(7)(A)(i).
8 The Government does not contend that the fact that more than one
player can win the straight-line game runs afoul ofS 2703(7)(A)(i)(III).
9 We note that there is no indication that the straight-line game is a mere
sham supporting CornerMania. The record reveals that CornerMania pay-
outs are generally less than those awarded for achieving a straight-line
bingo.
10 25 C.F.R. S 502.4, which defines class III gaming under IGRA, refers
to keno, a game in which the house does not play a hand, as a house bank-
ing game. Shakopee Mdewakanton Sioux Community v. Hope, 16 F.3d 261
(8th Cir. 1994), holds that the NIGC's decision to classify keno as class
III gaming is entitled to Chevron deference. See id. at 264 & n.4 (citing
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984)). We do not have in the record a description of keno sufficient
to compare it to MegaMania for the purpose of applying to it the criteria
of S 502.11. We do know, however, that keno may not have a winner at
all, see S 502 Action, 57 Fed. Reg. at 12385; thus the house can win over
all players. In contrast, in MegaMania, someone other than the house must
win. No NIGC regulation, however, refers to MegaMania as a house bank-
ing game. The general criteria of S 502.11 control therefore the question
of whether MegaMania is a house banking game, and under those criteria
MegaMania clearly is not.
11 Because we find that MegaMania is class II gaming under IGRA, we
do not reach MegaMania's argument that the Government should be judi-
cially 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 , 9 F. Supp. 2d 13
(D.D.C. 1998), the Government's briefs in that case unambiguously char-
acterized MegaMania as class II gaming. Multimedia claims that the Gov-
ernment's Janus-faced briefing merits judicial estoppel. Because we find
on the merits that MegaMania is class II, we need not decide whether the
Government could be estopped in this case from arguing otherwise.
12 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 alsoS 502 Action, 57 Fed. Reg. at
12386 (stating NIGC's conclusion that the Johnson Act does not apply to
bingo). Relying on the Senate Report, two courts have determined that the
Johnson Act does not apply to bingo aids. See Cabazon Band of Mission
Indians v. National Indian Gaming Comm'n, 827 F. Supp. 26, 31 (D.D.C.
1993), aff'd, 14 F.3d 633 (D.C. Cir. 1994); United States v. Burns, 725 F.
Supp. 116, 124 (N.D.N.Y. 1989), aff'd sub nom. United States v. Cook,
922 F.2d 1026 (2d Cir. 1991).
13 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."