Sisseton-Wahpeton Sioux Tribe v. US

804 F. Supp. 1199

SISSETON-WAHPETON SIOUX TRIBE, Plaintiff, v. UNITED STATES of America and Richard Thornburgh in his capacity as Attorney General of the United States, Defendants.

No. Civ. 91-1013.

United States District Court, D. South Dakota, N.D.

September 28, 1992.

COPYRIGHT MATERIAL OMITTED

Bertram E. Hirsch, Floral Park, N.Y., Terry L. Pechota, Rapid City, S.D., for plaintiff.

Robert A. Mandel, Asst. U.S. Atty., Rapid City, S.D., for defendants.

MEMORANDUM OPINION

BATTEY, District Judge.

PROCEDURAL HISTORY

On July 11, 1991, plaintiff Sisseton-Wahpeton Sioux Tribe (tribe) filed a complaint seeking a declaration that keno and pick bingo are class II games and not class III games under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721. Jurisdiction is premised on the existence of a question arising under federal law, 28 U.S.C. § 1331, and the availability of declaratory relief, 28 U.S.C. §§ 2201-2202.

The parties agreed to submit the case to the Court on stipulated facts. Pursuant to this agreement, simultaneous cross motions for summary judgment and for dismissal were submitted on January 6, 1992. On January 21, 1992, simultaneous responses to the cross motions were filed by both parties. Among the motions made by defendants United States of America and Richard Thornburgh (government) in their initial brief was a motion that the tribe's request for relief be stayed pending promulgation of final regulations by the National Indian Gaming Commission (NIGC) clarifying the definitions of class II and class III gaming under the IGRA.

The Court granted the government's motion to stay proceedings pending the promulgation of final regulations by the NIGC. The NIGC regulations became final on April 9, 1992, and classified keno as a class III game. Pick bingo is not specifically addressed by the NIGC regulations.

After the NIGC regulations became final, the parties amended their motions. The issues presented by these amended cross motions are as follows:

1. whether the tribe's complaint presents a ripe controversy;

2. whether the NIGC regulations classifying keno as a class III game are valid; and

3. whether pick bingo is a class II or class III game under the IGRA and the NIGC regulations.

The Court holds the tribe's complaint regarding keno to be ripe and the NIGC regulation regarding keno to be valid. Because the Court finds the tribe's complaint regarding pick bingo to lack ripeness, the third issue will not be addressed.

FACTS

Plaintiff is a federally-recognized Indian tribe which currently runs two gaming casinos. The tribe and the state of South Dakota negotiated a gaming compact, but the terms of that compact do not authorize the tribe to operate keno and pick bingo gaming. The tribe has not yet begun to operate these two games at either of its casinos, but states it would like to begin operating both games at its Dakota Sioux Casino in Watertown, South Dakota.

The tribe contacted Philip N. Hogen, then United States Attorney for the District of South Dakota, and asked for his opinion as to whether keno and pick bingo constituted class II or class III games under the IGRA. On June 19, 1991, Hogen wrote that, in his opinion, both games were class III games under the IGRA and would require a compact with South Dakota in order to be operated legally.¹ Following receipt of Hogen's letter, the tribe filed this lawsuit.

The tribe and the government have agreed upon stipulated facts describing the operation of keno and pick bingo.

A. Keno

Keno is a "house percentage banking game" in which the house pays all winners and collects from all losers. The house essentially acts as a player in the game which "takes on" all other players. Thus, the house has a stake in the outcome of the game. The game is played with cards provided by the house. The cards are numbers from 1 to 80 printed in numerical order on eight adjacent horizontal rows of 10 numbers each. The keno player designates a quantity of numbers or combination of connected numbers up to 15 numbers total to win. After designating these numbers, the keno player presents his card together with his bet to the keno operator, who validates and places the card in play. Variations in the game are permitted by the house rules.

Prior to opening the game for play, the keno operator determines the minimum bet amount and, based on that amount, also determines the amount of money to be paid out to any winners of the game. This calculation is made so that the odds favor the house.

After all players have had their cards validated, the keno operator randomly draws twenty numbers from a pool containing the numbers 1 through 80. The game always ends after the twenty numbers are drawn, whether there has been a winner before that time or whether there has been no winner. At the conclusion of the game, the keno operator pays all winners. The house keeps all bets not paid out.

B. Pick Bingo

Pick bingo is essentially identical to keno. Pick bingo is also a house percentage banking game, played on cards provided by the house, in which it is possible to have multiple winners or no winner in any given game. The only significant difference is in the total numbers involved. In pick bingo, the cards contain the numbers 1 to 75, instead of 1 to 80 as in keno; the players select up to 10 numbers to win, instead of the maximum of 15 allowed in keno; and the pick bingo operator draws 15 numbers in a game, instead of the 20 drawn in a keno game.² The game is won by the person or persons whose previously designated number or numbers on the pick bingo card are called. Variations in the game are permitted by the house rules.

DISCUSSION

The IGRA provides in part that an Indian tribe may operate class II gaming on its reservation if "such Indian gaming is located within a State that permits such gaming." 25 U.S.C. § 2710(b)(1)(A). Indian tribes can operate class III gaming only if such gaming is "located in a State that permits such gaming" and if such gaming is "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State." 25 U.S.C. § 2710(d)(1)(B), (C). South Dakota statutes on bingo and keno are inapplicable to the tribe's proposed operation of those games as class II games.³ Therefore, the issue presented must be decided exclusively by reference to federal statutes and regulations.

The Indian Gaming Regulatory Act (IGRA) defines class II gaming in part as:

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 designation,

(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.

25 U.S.C. § 2703(7)(A)(i). The IGRA defines class III gaming as "all forms of gaming that are not class I gaming or class II gaming." Id. § 2703(8).

The National Indian Gaming Commission (NIGC) promulgated regulations to further clarify what constitutes class II and class III gaming. These regulations became final on April 9, 1992.

The NIGC defined class II gaming in pertinent part as follows:

(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;

25 C.F.R. § 502.3.

Expanding on the reference to "other games similar to bingo" found in the IGRA definition of class I gaming, the NIGC defined this phrase as "any game that meets the requirements for bingo under § 502.3(a) of this part see above and that is not a house banking game under § 502.11 of this part." 25 C.F.R. § 502.9. The NIGC defined class III gaming as "all forms of gaming that are not class I gaming or class II gaming, including but not limited to: any house banking game ... such as keno." 25 C.F.R. § 502.4(a)(2). The NIGC defined the term "house banking game" as 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. § 502.11.

The NIGC regulations do not mention the game of pick bingo. It was suggested during the hearings on these regulations that the NIGC evaluate a number of specific games to determine if such games are "games similar to bingo" within the meaning of the IGRA and the NIGC regulations. The NIGC declined to do so, instead promulgating the more general definition found at 25 C.F.R. § 502.9. However, the NIGC pointed out that if a tribe wanted to engage in new games not mentioned by the regulations and which the tribe believed to fall within the definition of section 502.9, the tribe can ask the NIGC for an advisory opinion as to whether the game in fact falls within the class II or class III category. See Preamble to Final Regulations, Games Similar to Bingo.

A. Ripeness

Before this Court can reach the merits of plaintiff's claim, it must first determine that the claim is justiciable. The government requests dismissal of the tribe's complaint because it is not ripe and thus does not present a case or controversy. The government argues that ripeness is lacking both because the tribe is not yet...