March 13, 2001
Joseph M. Speck
Nic-A-Bob Productions
5025 South Eastern Avenue, # 439
Las Vegas, NV 89119
Re: WIN Sports Betting Game
Dear Mr. Speck:
This letter responds 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 California and Arizona. We reviewed the information you provided and conclude that the game, as discussed below, does not meet any of the Class II gaming definitions, and consequently is a Class III game. Furthermore, because sports betting is unlawful in California and Arizona (as well as most other states), and because the use of the internet is not authorized by IGRA, tribes in California and Arizona may not lawfully operate WIN pursuant to the IGRA.
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 book 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 maximum 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 Act (IGRA) governs gambling on Indian lands. The IGRA identifies certain specific forms 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 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, and
(ii) card games that—
(I) are explicitly authorized by the laws of the State, or
(II) are not explicitly prohibited by the laws of the State and are played at any location in the State, but only is such card games are played in conformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot 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 with tribal ceremonies, See 25 U.S.C. § 2703(6)) are considered Class III 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 does not fit into any of the specifically defined categories of Class II gaming set forth above, it is a Class III form of gaming. Therefore, it may be played only pursuant to a Tribal-State compact.
Moreover, specific forms of gaming, including sports betting, are subject to compact only if located in a state that permits such gaming for any purpose by any person, organization or entity. 25 U.S.C. § 2710 (d)(1)(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 Arizona and California. Statutes in both Arizona and California specifically prohibit this form of gambling. See Ariz. Rev. 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 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 IGRA 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 Chairman of the NIGC 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 laws outside the area of NIGC’s expertise.
Both because sports betting is unlawful in Arizona and California, and because the use of the internet for gambling purposes is not authorized by IGRA, we conclude that tribes in California and Arizona may not lawfully operate WIN. Furthermore, tribes in any state where sports betting is illegal may not operate WIN.
If you have any questions please contact Staff Attorney Maria Getoff at (202) 632-7003.
Sincerely yours,
/s/ Kevin K. Washburn
Kevin K. Washburn
General Counsel
Enclosure