Let me give you some background information so that you can see the unique place Class II gaming plays in protecting tribal sovereignty. Class II gaming only exists on Indian lands as defined in the Indian Gaming Regulatory Act (IGRA). All other gaming played outside of Indian lands is either legal or illegal. If games are played outside of Indian land, they must be defined by a state as legal or they’re illegal.
The framework set up by IGRA and the regulations of the National Indian Gaming Commission (NIGC) recognize the importance of Class II. Class II is defined by IGRA in §2703(7)(A) as follows:
• The game of chance commonly known as bingo (whether or not electronic, computer or other technologic aids are used in connection therewith),
o which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,
o in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined; and
o 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.
NIGC Regulations §501.2 states:
c. Class II gaming on Indian lands shall continue to be within the jurisdiction of an Indian tribe, but shall be subject to the provisions of the Indian Gaming Regulatory Act and this chapter.
Lastly, and arguably most importantly, the federal courts (See California v. Cabazon Band of Indians [480 U.S. 202 (1987)] and Sycuan Band of Mission Indians v. Roache [54 F.3d 535, 538 (9th Cir.1995)]) have consistently recognized that the authorization and regulation of all Class II gaming activities on Indian lands remain within the tribe’s sole jurisdiction, to the exclusion of the state.
Given all of this legal support, it continues to be a fact that tribes are not supporting Class II gaming. Some say that Class III is better than Class II. To me this is like saying that apples are better than oranges or that Bach is better than Beethoven. If tribes only serve apples and play Bach, they are not giving the public a true choice and service cannot be the best it can be.
There are tribal operations that choose only Class III for their gaming floor. Making this choice is like practicing discrimination. What we really have is a situation that looks like racism being imposed on Indian country. Those that only want Class III games and look down on Class II remind me of those people back in the day that had colored people “sit at the back of the bus.” If Indian country does not take active steps to protect Class II—a sovereign right—it will be lost.
The premise is simple: If a game—no matter the class of game—makes more money on a dollar-for-dollar basis, but an operation will not make it a part of their gaming floor, they are following a practice that will ultimately destroy a sovereign right of the tribes.
I must remind you that Class III games have had their biggest technological advancements based upon Class II research and development. It was Class II that developed TITO, gaming systems, downloadable games and so much more. Each class of gaming is dependent upon the other.
It continues to be my strong point of view that tribes must support Class II or it will be lost. When it is lost, tribes lose not only a precious sovereign right, but also the last economic bargaining tool in compact negotiations completely under tribal control.
I urge all tribes to adopt the following approach:
1. Tribal Gaming Commissions should:
a. Adopt the IGRA definition of Class II gaming verbatim [IGRA §2703(7)(A)] both in the definition section of their rules and in the sections dealing with game classification.
b. Adopt the NIGC regulations dealing with electronic, computer or other technologic aid [NIGC Regulations §502.7] and electronic or electromechanical facsimile [NIGC Regulations §502.8] in the sections dealing with game classification.
c. [Note: Taking these steps also firmly puts the evaluative rules in the hands of the tribe and the federal laws and regulations that created Class II gaming as unique to tribal gaming. ]
2. We must educate the operators that Class II and Class III should coexist on all gaming floors.
It is my suggestion that every tribal operation look at games that comprise the bottom 10 percent (coin-in or net win) of their floor and put the newest best Class II games in their place. You may be surprised by the results. Not only will your operation make more money, but you will also be protecting tribal sovereignty.
J R Mathews is Vice Chairman of the Quapaw Tribe Business Committee and Treasurer of NIGA. He can be reached at (918) 919-6000 or jr[at]ogahpah.com.
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