By Kristen Padilla
Newspapers and other media outlets reported March 21 that the electronic “bingo” machines at the Poarch Band of Creek Indians’ three facilities — Atmore, Montgomery and Wetumpka — are legal. They said they know this because of a letter National Indian Gaming Commission (NIGC) chairwoman Tracie Stevens sent to Gov. Robert Bentley and Attorney General Luther Strange.
But upon close reading of Stevens’ letter, she actually never said the slot-style machines used at the Poarch Creek casinos are legal, and in fact, they are not legal according to the Indian Gaming Regulation Act (IGRA) definition of Class II type-gambling that Stevens gives in the letter.
What Stevens said was, “[So] long as a state permits the game of bingo, regardless of the state’s definition of the game, an Indian tribe within that state may also play bingo as defined in IGRA.”
So how does IGRA define bingo, which is Class II gambling?
It is a game of chance “commonly known as bingo … which is played for prizes, including monetary prizes, with cards bearing numbers or other designations, in which the holder of the card covers such numbers or designations when objects … are drawn or electronically determined, and in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards.”
IGRA adds that Class II gambling does not include “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.”
Stevens argues in her letter that tribes are not subject to state law definitions but IGRA’s federal law, which regulates their Class II gambling operations.
But according to federal law, are the Poarch Creek machines legal?
Robert Sertell, slot machine expert and chairman of Casino Horizons Corporation, says no.
In 2004 Sertell was hired by the NIGC to make a site visit to the Poarch Creek facilities and to report back on the findings of the machines being dubbed as electronic “bingo.” In both the site visit report and the senior level supplement to the report, Sertell said the machines being used were illegal under Class II definitions.
“Every single machine that I played and/or observed in these three facilities meets the Johnson Act (U.S. Code 15U.S.C.1171 (a)(1)(2)(3)) definitions of a gambling device and a slot machine,” Sertell said in his report. “Advocates of these machines assert that they are electronic bingo machines, and therefore are legal, permitted Class II devices; No, they are not. They are very obviously slot machines, gambling devices and proscribed to Alabama tribes because they are otherwise illegal to nontribal citizens of Alabama, and because no Tribal-State compact exists.”
The machines that Sertell found illegal in 2004 as outlined by federal definitions of slot machines are still illegal today, he said.
“When the National Indian Gaming Commission tries to say Poarch Creek is operating Class II machines by their own federal laws, they are not,” said Sertell, who revisited the sites in 2010. “They are slot machines under federal definition and under Alabama definition. They tried to hide (behind Stevens’ letter) and say they operate Class II gaming that is not under their definition.”
In Sertell’s 2004 report he also said the machines he found at the Poarch Creek casinos did not allow for the player to cover the numbers.
“The great majority of these machines that I played or observed in the field are set to conduct the ball draw function so that it is displayed almost instantly at the beginning of play, and at computer speed, rather than in serial fashion at human speed,” he said. “This means that no human player could observe each bingo number as it is called, and then search their own card (or cards) for a matching number before daubing or marking each match.”
And the reasons Sertell said the Poarch Creek machines were illegal under Class II definitions are the same reasons former NIGC chairman Philip Hogen refused Alaska’s Metlakatla Indian Community’s request to use electronic “bingo” machines as Class II gambling in 2008.
Hogen rejected the request, which intended to authorize “one-touch … fully electronic, fully automated, multiplayer bingo games,” because it violated the Class II gambling federal definitions.
“[IGRA] also requires that the game be won by the first person covering a previously designated arrangement of numbers of designations on such cards,” Hogen wrote to the Metlakatla Indian Community. “Inherent in the language of ‘first person covering’ is an element of competition. … Players must compete to be that ‘first person.’
“Thus the statutory language requires the game to have multiple players, and it requires them to compete with one another to be the first to cover or ‘daub’ a particular pattern,” he continued. “In my view, the fully electronic, fully automated game described in the Tribe’s amended ordinance does not meet this part of IGRA’s statutory definition.”
In addition to the machines not allowing for a “first person covering,” Hogen also told the Alaskan tribe that the machines do not allow for human error in the game commonly known as bingo.
“The players’ only responsibility in this type of game is touching a button once to start the game,” he said. “The gaming equipment thereafter automatically performs all other functions, including drawing numbers, covering the numbers on each player’s card and awarding any prizes earned based upon patterns achieved.
“I conclude that a game so designed does not meet IGRA’s statutory definition of Class II bingo, does not meet the NIGC’s definition of Class II ‘game similar to bingo,’ and is, in fact, a Class III facsimile of a game of chance.”
Hogen’s arguments are very similar to Sertell’s conclusion of the Poarch Creek machines.
“As a practical matter, since most of the machines that I observed in the field played in auto-daub, the player was offered a machine that looked and sounded exactly like a slot machine, required only one touch of a button to play, whose betting and payoff tables were exact replicas of those found on slot machines, and that completed all game functions automatically without any player participation whatsoever, in approximately six seconds, just like an acknowledged slot machine,” he said in his 2004 report.
Even with all this evidence that would prove Poarch Creek is operating Class III gambling, also known as casino and slot machine-type gambling, the NIGC is the only entity with the power to regulate Indian gambling — it has the power to issue a notice of violation and of closure.
But since the NIGC profits from Indian gambling, the state of Alabama may continue to have a tough fight.
The NIGC website states, “Each gaming operation under the jurisdiction of the Commission shall pay to the Commission annual fees as established by the Commission.” The rates of these fees are no more than 2.5 percent of the first $1.5 million and no more than 5 percent of amounts in excess to the first $1.5 million
Sonny Reagan, deputy attorney general of Alabama, confirmed that Indian gambling is a matter of federal law but said the attorney general’s office has concerns that at least some of the Poarch Creek machines violate federal law.
“The NIGC letter reaffirmed the attorney general’s position that Class III slot machines are illegal on tribal lands in Alabama and further state that electronic bingo machines may be used as long as their use does not change ‘the fundamental characteristics’ of the traditional game of bingo,” Reagan said.
“We will continue to pursue our concerns with the National Indian Gaming Commission.”
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