Opposition Brief — Ashcroft v. Seneca-Cayuga Tribe

s + : 7 e : &

FILED

f) JAN 2 1 2004

No. 03-740 OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL.,

Petitioners,

v.

SENECA-CAYUGA TRIBE OF OKLAHOMA, ET AL.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

,

4

OPPOSITION TO PETITION FORA

WRIT OF CERTIORARI

¢

AKIN GUMP STRAUSS HAUER

& FELD LLP

WILLIAM A. NORRIS

Counsel Of Record

EDWARD P. LAZARUS

MICHAEL C. SMALL

AKIN GUMP STRAUSS HAUER

& FELD, LLP

2029 Century Park East,

Suite 2400

Los Angeles, CA 90067

Telephone: (310) 229-1000

Facsimile: (310) 229-1001

Attorneys for Respondent

Diamond Game Enterprises, Inc.

[Tribal Attorneys Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

JESS GREEN

301 East Main

Ada, Oklahoma 74820

Telephone: (580) 436-1946

Facsimile: (580) 332-5180

Attorney For Respondent

Northern Arapaho Tribe of

Wyoming and Seneca-

Cayuga Tribe of Oklahoma

BALDWIN & CROCKER, P.C.

ANDREW W. BALDWIN

337 Garfield — P.O. Box 1229

Lander, Wyoming 82520-1229

Telephone: (307) 332-3385

Facsimile: (307) 332-2507

Attorneys For Respondent

Northern Arapaho Tribe

of Wyoming

ROBERT E. PRINCE

632 S.W. “D” Avenue

Lawton, Oklahoma 73501

Telephone: (580) 248-8015

Facsimile: (580) 353-6888

Attorney for Respondent

Fort Sill Apache Tribe

of Oklahoma

QUESTIONS PRESENTED

Whether this case is moot because Respondent Indian

tribes no longer use the Magical Irish pull-tab dis-

penser/display system and Respondent Diamond Game

Enterprises, Inc. no longer distributes the system?

Whether the court of appeals, having concluded that

the Magical Irish pull-tab dispenser/display is a class II

“technological aid” under the Indian Gaming Regulatory

Act, 25 U.S.C. §§ 2701-2721, was therefore correct in

holding that it may be used at an Indian gaming facility in

Indian country subject only to the regulatory regime for

class II Indian gaming?

ii

STATEMENT PURSUANT TO RULE 29.6

Diamond Game Enterprises, Inc. has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

ili

TABLE OF CONTENTS

Page

QUESTIONS PREG Le cesvecsevesecesvesescoseeveneevenctwevers i

STATEMENT PURSUANT TO RULE 29.6..........0....... ii

Rs SI Ce EE ciesdinvevincessvitthusmanhionnienme iii

Tee Ce Bar EN iis ticrtiascceiesrienccaninmiiie Vv

Pe EE hisiticicskccitsomenkantinenenaneialetn 1

COUNTERSTATEMENT OF THE CASE...................... ‘1

Ke. TR iiskcctsittinicconienucinninaaedianes 1

B. The Statutory Framework ..................ccccsseseseeees 4

5. FE sicher 4

3. ‘FeO CORO AI voisiicdcccccseneanenees 6

C. The Magical Irish Dispenser/Display ................ 7

1. Procedural History and Decisions Below.... 10

a. The District Court’s Decision................. 10

b. The NIGC Amended Regulations and

Accompanying Commente.................c0008 11

c. The Court of Appeals’ Decision.............. 13

REASONS FOR DENYING THE WRIT ....................... 15

I. THIS CASE HAS A SERIOUS MOOTNESS

PROBLEM AND, THEREFORE, PRESENTS

A POOR VEHICLE FOR SUPREME COURT

FEE EOF wisn ossiessnusiitescnaeneccinsmnnmicataantmamadaa 15

iv

TABLE OF CONTENTS - Continued

Page

II. CLASS II TECHNOLOGICAL AIDS UNDER

IGRA ARE NOT SUBJECT TO SEPARATE

LIABILITY AS JOHNSON ACT GAMBLING

DEVICES AND THE PURPORTED CIRCUIT

SPLIT ON THIS ISSUE IS_ INSUFFI-

CIENTLY IMPORTANT TO WARRANT THIS

COARIEEE 0 ETE etsistisvteiae tee 18

A. The Tenth Circuit Decision Properly Rec-

onciled IGRA and the Johnson Act.............. 19

B. The Purported Circuit Split over the Rec-

onciliation of IGRA and the Johnson Act

Does Not Implicate Any Significant State

OU POROPAL ERMOUIOE ioc cisseicssversssccsnceisinnsrcaniaes 23

III. THE QUESTION OF WHETHER, INDE-

PENDENT OF IGRA, MAGICAL IRISH IS A

GAMBLING DEVICE UNDER THE JOHN-

SON ACT IS NOT PRESENTED IN THIS

CASE AND, IN ANY EVENT, DOES NOT

MERIT THIS COURT'S REVIEW ..................... 25

CLF I esr cnrivisinrn crnisainnaaianantieneae eam aaa 30

TABLE OF AUTHORITIES

Page

CASES:

Adarand Constructors, Inc. v. Slater, 528 U.S. 216

Le Ue iccis nice enscohenesicisnaitiniiiactinseiaiuiaiolautashiadinaidasaadiienealaudiaale 16

Arizonans for Official English v. Arizona, 520 U.S.

Ae Se ei avinennsaiiviniicdichedihicewucdacsebeeniabddidiaaaaiaabamanliinton 17

Cabazon Band of Mission Indians v. NIGC, 14 F.3d

633 (D.C. Cir.), cert. denied, 512 U.S. 1221 (1994)..18, 19

City News and Novelty, Inc. v. City of Waukesha,

Se Be Bee Ra i rcecineitcnsinocennsactintieasabinelinsivet 16

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ........... 15, 17

Crawford Fitting Co. v. J.T: Gibbons, Inc., 482 U.S.

GPE SET inisisinasvervinsitenentoticatinidasnicsalatiabmiie beaut 20

Diamond Game Enters., Inc. v. Reno, 9 F. Supp. 2d

13 (D.D.C. 1998), rev’d, 230 F.3d 365 (D.C. Cir.

TT eR NE RMT ee Res OT RE passim

FCC v. NextWave Personal Communications, Inc.,

Pe GPs SI tics cartdisnaclsacehacdbiecvaianiadbibeinaisdemaonie 20

Friends of the Earth, Inc. v. Laidlaw Environ-

mental Servs. (TOC), Inc., 528 U.S. 167 (2000)............. 16

Lion Manufacturing Corp. v. Kennedy, 330 F.2d 833

CEG A. SA Bee iedsicihicsisassssrccnsneokeietnicaaedicmae edad 12

Morales v. Trans World Airlines, 504 U.S. 374

(Fae oessesicecleisscaciitaiintackiinileuilbiatiasaditaa teldeuiiidaataditiagetsbadaamaaamoaaee 20

Morton v. Mancari, 417 U.S. 535 (1974)... eee 19, 20

Sycuan Band of Mission Indians v. Roache, 54 F.3d

Pe EI BUI sitcidsnisherssasntcntmieninaianeustiesuesnniaes 29

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-

SE, BO aes Be CD tctinicn acketosicidlindimiodamenne 17

TABLE OF AUTHORITIES — Continued

Page

United Dominion Ind., Inc. v. United States, 532

es ee CE heckstenavheniindhiniinnicibiisiestuauiiaintibens eaceusuiemeicoeaaa 23

United States v. 103 Electronic Gambling Devices,

223 F.3d 1091 (9th Cir 2000) ................cccccsseenees 19, 21, 24

United States v. Barnes, 222 U.S. 513 (1912)... 23

United States v. Borden Co., 308 U.S. 188 (1939)............. 19

United States v. Santee Sioux Tribe of Nebraska,

324 F.3d 607 (8th Cir. 20038)...........ccccccsscscssssssssees 9, 24, 26

United States v. Wilson, 475 F.2d 108 (9th Cir.

BP Uae satires ctnikavambuecdeabidaenmiaapanendmadmunieaaaiamanets 26, 27

STATUTES AND REGULATIONS:

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

SEINE: SEO © .\icinsiesinnndehconnslehactansinettalaiasnanatieisacddaeadeaadsiaaniae 20

Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et

SE. scehanctcinseeudieuenasechccdissianbanenianiahtied samenaanicasanemeunaeei passim

ee i Lidiisevenissltaenahsiitcesniiiaasonananewenans 6

ee Sse iiss cine naseeicinaninaeonialdielsiiaaananial 4

ee Sr ase eG Ft nicsiiinchcensccecenccncantinbnpiienatnansasasiamcnde 5 |

ST i sesiveitchcsciasserdedensctcdetetaceencentvtene 6 Lae

Sa ees ae edie nesnnciciesiedssachicouisGhienubienaadanicdlaeetiiemelaasean 6

ee Rs LD Kathtibsinishibscisccistnuananiitaniibiancnneets 11

ee Sey Oe UIE cccacnhcsndaiicdacedincdsicisistiabiinteneaeaabaelanaiees 5

a a aaa: Oe ee I ociivicsndespunicancandiaceadeadancnnieceeabinichbeaieniosiagtiins 4

ie Cee Fg: ht 5 PNT 21

Ree ee OF Oe RUINED tinse va ccecstesncaceteoneesesenvomsacinnennaeiidiebes 6

ae

TABLE OF AUTHORITIES — Continued

Page

Johnson Act, 15 U.S.C. § 1171 et seq. ...........ccccccceeeees passim

Re ee a Oe Bk GUE hanciennstincsersnsccauvenccaneneezctonsenenitenten 6-7

a eG te I Tr cetiGidhnanknndncadieasatatpnceubsdeuceauhakebinaesucehaskniaain 11

MISCELLANEOUS:

67 Fed. Reg. (2002)

ih ETT sialedsiicinibuadhenteuesaaniladwaieaeiamebubievineidébaiiibonsenciel 12

Sir INTE uisile suis bessbies Vnvsihesinen sespsitbanieisachssekaaalededsalesantaniendsalacetaies 13

it SUE is bdaeceniacbennsanateemaniembeiedbaaeicanelbeaneneasieamuied 12

ee sintered lininliccelceamainannamemecn 12

Indian Affairs Committee Report, S. Rep. No. 100-

446 (1988), reprinted in 1988 U.S.C.C.A.N.

a sist slelhtstiran duiebaciiaan/Aapiaiachssaveapeeeiauiccsbiaiaidiicais 5, 12, 21, 22

OPINIONS BELOW

The opinion of the court of appeals is reported at 327

F.3d 1019. The opinion of the district court is unreported.

COUNTERSTATEMENT OF THE CASE

A. Introduction.

Three federal courts of appeals have now considered

whether Indian tribes, in exercising their sovereign rights

federally recognized in the Indian Gaming Regulatory Act,

25 U.S.C. § 2701 et seg. (“IGRA”), to conduct the class II

game known as “pull-tabs,” may lawfully employ a me-

chanical pull-tab reader/dispenser like the one at issue in

this case. The judgment of these three courts has been

unanimous. Without a single dissenting voice, they have

concluded that tribes may lawfully employ such pull-tab

reader/dispensers in their gaming operations.

In the face of these uniform results, Petitioners seek

review in this Court because one of the three federal

courts (the 8th Circuit), in the course of reaching the same

conclusion as the other two (the D.C. and 10th Circuits),

adopted a modestly different methodology. This non-

determinative difference in approach does not warrant

this Court’s intervention.

As a threshold matter, this case presents a poor

(indeed probably impossible) vehicle for considering the

Petitioners’ appeal, even if the case were otherwise

worthy of review (which it is not). The declaratory judg-

ment action originally filed by Respondents is moot. As

reflected in uncontested sworn declarations that accom-

panied Respondents’ motion to dismiss the case as moot

and vacate the district court judgment in their favor,

Respondent tribes no longer use the Magical Irish In-

stant Bingo Dispenser System (“Magical Irish”) at issue

here and have no intention of using Magical Irish in the

2

future. Respondent Diamond Game Enterprises no longer

manufactures or distributes Magical Irish and it, too, has

no intention of doing so in the future. In concluding on

these facts that a live case or controversy still exists, the

10th Circuit clearly misapplied this Court’s mootness

jurisprudence. Accordingly, for this Court even to reach the

questions presented in the petition, it will necessarily first

have to traverse a thorny jurisprudential thicket just to

satisfy itself (as is highly doubtful) that it has jurisdiction

to hear the case.

In any event, Petitioners’ case for certiorari rests on

two separate alleged circuit splits, one of which is illusory

and both of which are of doubtful significance. Petitioners

cannot prevail in this case unless it can show: first, that

the 10th Circuit erred in ruling that the scope of the

Johnson Act, 15 U.S.C. § 1171 et seg., as it operates in

Indian country, should be read in consonance with (rather

than independently from) IGRA’s authorization of techno-

logical aids for use in class II gaming; and, second, that,

even if the Johnson Act applies independently, Magical

Irish is a prohibited “gambling device” under that Act.

The Department of Justice’s position on both points

has met with near complete disfavor and, remarkably, is at

odds with the position of the National Indian Gaming

Commission (“NIGC”), the agency responsible for oversee-

ing IGRA, and with the position advanced by the Depart-

ment of Justice’s own Office of Legal Counsel. There is

good reason for the loneliness of Petitioners’ position. As

the 9th, 10th, and D.C. Circuits have all concluded, the

Petitioners’ approach to the relationship between the

Johnson Act and IGRA’s provisions governing class II

gaming defies the relevant legislative history and the well-

established canon of statutory construction that seeks to

maximize the continuing effect of potentially conflicting

federal laws.

3

With respect to the definition of “gambling devices”

under the Johnson Act, moreover, Petitioners’ argument

that Magical Irish and the “Lucky Tab” reader/dispenser

at issue in the 8th Circuit case are prohibited gambling

devices depends on an inaccurate and unsupported de-

scription of the reader/dispensers, has no grounding in

case law, defies the statutory text, and flies in the face of

the 8th Circuit’s analysis as well as that of the district

court in this case. In addition, Petitioners’ claim of a

Johnson Act circuit split rests on its interpretation of an

isolated 28 year-old per curiam Ninth Circuit decision

involving both scant analysis of the Johnson Act and a

device that is readily distinguishable in this intrinsically

factbound area of law.

But even supposing, despite the uniform contrary

authority, that the Johnson Act is best read as proscribing

the transportation of pull-tab reader/dispensers into

Indian country, this case still does not merit this Court’s

attention. As the 10th Circuit was careful to emphasize, its

ruling leaves the scope of the Johnson Act completely

unchanged outside Indian country. It is also uncontested

that IGRA authorizes tribes to play the gambling game

known as pull-tabs, regardless of the Johnson Act. Thus,

this instant dispute boils down to nothing more than

whether, in lawfully playing the game of paper pull tabs,

the tribes are limited to selling the tabs “over-the-counter”

through gambling hall clerks as opposed to out of a par-

ticular type of dispenser unit. This argument poses no

threat to Petitioners’ ability to stop unlawful gaming

activity and is simply not the stuff from which Supreme

Court review is made.

4

B. The Statutory Framework

1. IGRA

In the 1980s, as Indian tribes began to administer

more and more governmental programs, they began to

exercise their inherent sovereign right to develop their

economies by conducting gaming activities on their lands.

Tribal gaming activity triggered a variety of conflicts

between the interests of three sets of sovereigns — the

tribes, the states, and the federal government. Enacted in

1988, IGRA was Congress’s response to these conflicts and

the statute both promotes and regulates Indian gaming as

a means to advance tribal development, self-sufficiency

and strong tribal governments. 25 U.S.C. §§ 2701-2719.

Under IGRA, Congress recognized the right of tribes

exclusively to regulate gaming activity on Indian lands if

the gaming activity is not specifically prohibited on Indian

lands by federal law and is conducted within a State that

does not, as a matter of criminal law and public policy,

prohibit such gaming activity. Id. § 2701. To this end,

IGRA divides Indian gaming into three classes, each

subject to a different level of regulation.

Class I games consist of traditional forms of Indian

gaming and social games played solely for prizes of mini-

mal value. 25 U.S.C. § 2703(6). Tribes maintain exclusive

jurisdiction over class I gaming. Jd. § 2710(a)(1).

IGRA defines class II gaming, in pertinent part, as

follows:

the game of chance commonly known as bingo

(whether or not electronic, computer, or other

technologic aids are used in connection therewith)

.. including (if played in the same location)

pull-tabs, lotto, punch boards, and tip jars, in-

stant bingo, and other games similar to bingo.

Id. § 2703(7)(A) (emphasis added). IGRA authorizes such

class II gaming on Indian land if: 1) the state in which the

gaming is located permits such gaming for any purpose by

any person; 2) “such gaming is not otherwise specifically

prohibited on Indian lands by Federal law;” and 3) the

tribe adopts an ordinance approved by the Chairman of

the Commission. Jd. Thus, IGRA explicitly reserves this

category of named games for tribal play with tribes as the

primary regulatory authority and, further, explicitly

authorizes tribes to use “electronic, computer, or other

technological aids” in conjunction with playing these

games. By contrast, in the absence of a criminal prohibi-

tion, states play no role in regulating class II gaming.

Although IGRA itself does not explicitly discuss the

relationship between technological aids used to play class

II games and the Johnson Act, the Senate Report accom-

panying the passage of IGRA reveals Congress’s view that

the Johnson Act should not be read to preclude the use of

technological aids in the play of class II games. “It is the

Committee’s intent,” the Senate Report states, “that with

the passage of this act, no other Federal statute, such as

[the Johnson Act] will preclude the use of otherwise legal

devices used solely in aid of or in conjunction with bingo or

lotto or other such gaming on or off Indian lands.” Indian

Affairs Committee Report, S. Rep. No. 100-446 (1988),

reprinted in 1988 U.S.C.C.A.N. 3071, 3082 (“Senate

Report”) (emphasis added).

In discussing what technological aids tribes might

employ in conducting class II gaming, the Senate Report

further emphasized that Congress intended:

that Tribes have maximum flexibility to utilizes

games such as bingo and lotto for tribal economic

development.... The Committee intends that

tribes be given the opportunity to take advantage

of modern methods of conducting class II games

6

and the language regarding technology is de-

signed to provide maximum flexibility.

Id. at 3079. This flexible approach was meant to advance

IGRA’s central goal of encouraging “tribal economic devel-

opment, self-sufficiency, and strong tribal governments.”

25 U.S.C. § 2702(1).

Importantly, IGRA does draw a line between techno-

logical aids to class II games and electronic games that in

fact constitute class III games, which can only be played

pursuant to a negotiated tribal-state compact. 25 U.S.C.

§ 2710(d)(1). In particular, IGRA excludes from use as a

class II game “electronic or electromechanical facsimiles of

any game of chance or slot machines of any kind.” 25

U.S.C. § 2703(7)(B). In this way, IGRA distinguishes

between authorized games and those prohibited by the

Johnson Act with language specifically defining slot

machine-like devices as class III games. IGRA further

defines class III games as consisting of all forms of gaming

that are not class I or class II. 25 U.S.C. § 2703(8).

Through the compacting requirement for class III gaming,

IGRA also recognizes a significant role for states in regu-

lating this type of gaming.

2. The Johnson Act

Pre-dating IGRA by more than 30 years, the Johnson

Act prohibits the manufacture, sale, transportation,

possession, and use of any “gambling device” on federal

lands or in Indian country. 15 U.S.C. § 1175. The Johnson

Act, which was designed to curb the proliferation of slot

machines and similar devices, originally defined a “gam-

bling device” to include slot machines and other coin

operated devices. In 1962, Congress amended the statute

to slightly expand this definition. A Johnson Act “gambling

device” is now defined as:

a

7

any ... machine or mechanical device ... de-

signed and manufactured primarily for use in

connection with gambling, and (A) which when

operated may deliver, as the result of the applica-

tion of an element of chance, any money or prop-

erty, or (B) by the operation of which a person

may become entitled to receive, as the result of

the application of an element of chance, any

money or property. ...

15 U.S.C. § 1171(a)(2) (emphasis added).

C. The Magical Irish Dispenser/Display

Contrary to the Petitioners’ claim, Magical Irish is not

a slot machine and bears no meaningful resemblance to a

slot machine. Rather, Magical Irish is a dispensing

mechanism for the game of paper pull-tabs (an enumer-

ated class II game) that, when activated, will visually

display the paper pull-tab result. (App. 38a.)

In the game of pull-tabs, players compete against one

another to obtain winning paper cards from a set of cards

containing a pre-determined number of winners arranged

in a random but pre-determined order. Each complete set

of cards is known as a “deal,” and may contain more than

100,000 individual cards. An individual card (or pull-tab)

is a small paper wafer. When the top layer of the card is

removed, the bottom layer reveals a pattern of symbols

indicating whether the player has won a prize. In order to

redeem the prize, a player must present a paper tab

showing a winning set of symbols to a gaming hall clerk.

When the game of pull-tabs is played, the very large pre-

arranged deal is divided ints smaller rolls (or boxes), each

of which can be played separately. (App. 8a.)

8

To participate in the game of pull-tabs, a player must

purchase an individual tab from a clerk or a dispenser.

The clerk or dispenser takes the next tab in the pre-

printed roll and delivers it to the player. The player must

then open the tab to see if it contains a winning combina-

tion and redeem any winning tabs with a gaming hall

clerk.

Each Magical Irish system delivers paper pull-tabs

from a single roll of 7,500 tabs. Other rolls from the same

pull-tab deal may be dispensed either through other

Magical Irish units or “over-the-counter” from bingo hall

clerks. (App. 8a.) In this way, players who purchase pull-

tabs from one Magical Irish device compete for winning

tickets against other players who purchase pull-tabs from

other devices or, face-to-face, from bingo hall clerks.

When a player inserts money into a Magical Irish

device and presses the button marked “DISPENSE,” the

unit cuts a paper pull-tab from the preprinted roll and

drops it into a tray. (App. 8a, 38a.) If the “verify” feature is

enabled, a scanner inside the device reads a bar code

printed on the back of the paper tab as the tab is dis-

pensed. The device then displays the contents of the pull-

tab on a video screen approximately seven seconds after

the paper tab has been dispensed. The player can enable

or disable the “verify” feature by pressing a button. On

either side of the button marked “VERIFY,” the following

message appears: “Video images may vary from actual

images on pull-tabs. Each tab must be opened to verify.” In

other words, regardless of whether a player is using the

“verify” feature, that player can redeem winning pull-tabs

only by presenting the paper tab to a gaming hall clerk,

who in turn must confirm that the paper tab contains a

9

winning combination of symbols. (App. 8a, 38a.)' Magical

Irish does not pay the player for a winning ticket, nor does

it convert a winning ticket into credit for additional play.

Furthermore, Magical Irish does not select the win-

ners of the pull-tab game. Rather, the winning pull-tabs

are prearranged in the randomly located preprinted rolls

that make up the pull-tab deal: Magical Irish simply

dispenses the next tab in the roll being played. (App. 8a.)

Thus, in contrast to a slot machine or variations on a slot

machine, Magical Irish does not contain a random number

generator, does not affect the outcome of the paper pull-tab

game, and is not itself a game of chance. (App. 38a, 42a.)

The game, including the entitlement to money, is always.

in the paper pull-tabs, and (as three courts of appeals have

separately concluded) Magical Irish is nothing more than

an entertaining way to dispense those paper tabs into the

hands of consumers who would like to play the paper game

coupled with a visual aid for identifying winning paper

tabs.”

* The Petitioners are simply wrong when it asserts that a barcode

on each tab determines the winners and losers. On the contrary, the

symbols on the paper tab always govern and the play of the game,

regardless of whether the display function is activated, remains at all

times in the paper.

* The “Lucky Tab” dispenser/display at issue in United States v.

Santee Sioux, Tribe of Nebraska, 324 F.3d 607 (8th Cir. 2003), and

Diamond Game Enterprises, Inc. v. Reno, 230 F.3d 365 (D.C. Cir. 2000)

differs from Magical Irish in two respects. First, the optional “verify”

feature of Magical Irish works automatically on Lucky Tab. Second,

Magical Irish consists of three separate component parts, the dispenser,

the verifier, and a base. Lucky Tab integrates these components into a

single unit.

10

1. Procedural History and Decisions Be-

low.

a. The District Court’s Decision

On July 25, 2000, Respondents’ filed a complaint in

district court against the NIGC and the other federal

government defendants, seeking a judicial declaration that

Magical Irish is a class II aid under IGRA and is not

prohibited by the Johnson Act. Respondents’ complaint

was prompted by an NIGC opinion that Magical Irish was

a class IIJ game under IGRA and, therefore could not be

played without a tribal-state compact. This NIGC opinion,

which raised the threat of criminal prosecution against

Respondents, was based on a district court opinion regard-

ing the Lucky Tab dispenser/display that was later re-

versed by the D.C. Circuit. See Diamond Game Enters.,

Inc. v. Reno, 9 F. Supp. 2d 13 (D.D.C. 1998), rev’d, 230 F.3d

365 (D.C. Cir. 2000).

On August 30, 2000, the district court held an eviden-

tiary hearing on Respondents’ motion for a preliminary

injunction. Ruling from the bench, the district court held

that Magical Irish is a class II technological aid under

IGRA, not a class III gaming device, and that Magical

Irish is also not a Johnson Act gambling device. The court

reasoned that Magical Irish simply acts as a dispenser of

paper pull-tabs, because it takes a preprinted roll of paper

pull-tabs and dispenses them in a pre-determined order,

just as a clerk does at a pull-tab ticket window. The court

* Respondents include three federally recognized Indian Tribes, the

Seneca-Cayuga Tribe of Oklahoma, the Fort Sill Apache Tribe of

Oklahoma, and the Northern Arapaho Tribe of Wyoming, each of which

operates a class II gaming facility, as well as Diamond Game Enter-

prises, Inc., the manufacturer of Magical Irish.

11

emphasized that Magical Irish does not determine what is

printed on the tickets, does not select the order of dispens-

ing the tickets, and does not contain a random number

generator or any other mechanism for choosing a winner.

In the court’s words, “It wouldn’t change the outcdme of

the game, whether [the pull-tabs tickets] were sold over-

the-counter or put out by the dispenser.” The court further

noted that Magical Irish does not accumulate winnings or

make change of any kind. (App. 11la-12a.)

On February 20, 2001, reaffirmed its conclusions from

the preliminary injunction hearing both that Magical Irish

is a class II aid under IGRA and that it is not a Johnson

Act gambling device. With respect to the Johnson Act issue

specifically, the court reasoned that Magical Irish did not

qualify as a Johnson Act gambling device because it does

not meet the statutory requirement that the machine in

question involve an “application of the element of chance.”

As the court concluded, “[wJhile the game of pull-tabs

itself, by its nature, contains an element of chance, no

additional element of chance is applied by the [Magical

Irish device].” (App. 12a.)

b. The NIGC Amended Regulations

and Accompanying Comments

IGRA gives the NIGC authority to “promulgate such

regulations and guidelines as it deems appropriate to

implement [IGRA’s] provisions.” 25 U.S.C. § 2706(b)(10).

On June 17, 2002, the NIGC (a party to this case) issued

new regulations defining permissible class II aids under

IGRA. These new regulations explicitly recognized “pull

tab dispensers and/or readers” — such as Magical Irish — to

be permissible class II aids. 25 C.F.R. § 502.7. In so doing,

the NIGC flatly rejected the most recent Department of

Justice view, repeated by Petitioners, that Magical Irish

(and such dispenser/readers) should not be designated

12

class II aids because they resemble slot machines (which

are a class III game).

Moreover, in its comments accompanying the new

regulations, the NIGC set forth its unequivocal view that |

class II aids under IGRA are not subject to the prohibi-

tions of the Johnson Act. As the NIGC reasoned, the plain

language of IGRA expressly permits the use of electronics

and technology in aid of class II gaming on Indian lands,

yet application of the Johnson Act, if broadly construed,

would prohibit the use of the same aids on Indian lands.

67 Fed. Reg. at 41167. The NIGC also noted that the

legislative history behind IGRA indicates that Congress

did not intend the Johnson Act to apply to at least one

category of class II aids: bingo blowers and other devices

used in connection with bingo or lotto. 67 Fed. Reg. at

41169 (citing S. Rep. No.100-446, at 12 (1988). The NIGC

further reasoned that there is no textual support for the

proposition that IGRA still requires a tribal-state compact

for operation of a class II aid if the aid meets the definition

of a Johnson Act gambling device, and that there is no

indication Congress intended for the compacting process to

apply in any way to class II gaming. 67 Fed. Reg. at 41170

(citing S. Rep. No. 100-446, at 1 (1988)).

In addition, the NIGC considered the competing

purposes behind the Johnson Act and IGRA in concluding

that the Johnson Act does not apply to class II aids under

IGRA. The NIGC noted that the Johnson Act is a criminal

statute intended to restrict the possession, use, and

transportation of gambling devices, so the courts have }

interpreted the Johnson Act broadly to “anticipate the

ingeniousness of gambling machine designers.” 67 Fed.

Reg. at 41167 (quoting Lion Manufacturing Corp. uv.

Kennedy, 330 F.2d 833, 836-837 (D.C. Cir. 1964)). In

contrast, IGRA was intended to give tribes “the opportu-

nity to take advantage of modern methods of conducting

class II games and the language regarding technology is

OT

NN

13

designed to provide maximum flexibility.” 67 Fed. Reg. at

41168 (quoting S. Rep. No. 100-446, at 9 (1988)). Thus, the

NIGC concluded, “the ingenuity of gaming designers,

which was designed to be constrained by the Johnson Act,

is arguably intended to be given freer rein by IGRA in the

context of class II gaming.” 67 Fed. Reg. at 41168.

c. The Court of Appeals’ Decision

On April 17, 2003, the 10th Circuit affirmed the

district court. The Court denied Respondents’ motion to

dismiss on mootness grounds, even though the tribes had

long since stopped using Magical Irish, Diamond Game no

longer distributed Magical Irish to any tribes, and neither

party has any intention of using or distributing Magical

Irish in the future. (App. 14a-17a.)

On the merits, the 10th Circuit ruled that users of

class II technological aids under IGRA may not be sub-

jected to separate liability under the Johnson Act. Con-

trary to the Petitioners’ contention, in reaching this

conclusion, the Court did not rule that IGRA impliedly

repealed or created an implied exception to the Johnson

Act. Instead, the Court applied the sound and familiar

canon of construction that two co-existing statutes should

be reconciled so as to “‘give each enacting Congress’s

legislation the maximum continuing effect.’” (App. 21a-

22a.) Applying this canon, the Court recognized that, in

IGRA, Congress had expressly authorized technological

aids for use in conjunction with class II games. In light of

that carefully crafted scheme, the Court declined to

eviscerate this provision of IGRA (as Petitioners would) by

subjecting those aids to Johnson Act liability. At the same

time, the Court gave the Johnson Act maximum continu-

ing effect by limiting its holding to IGRA authorized

gaming within Indian Country. (App. 22a-28a.)

14

As the 10th Circuit emphasized, its approach to the

interplay of IGRA and the Johnson Act also reflected

Congress’s clearly expressed intent when enacting IGRA.

The key committee report specifically indicates Congress’s

intent that the Johnson Act not “preclude the use of

otherwise legal devices used solely in aid of or in conjunc-

tion with bingo or lotto or other such gaming on or off

Indian lands.” Furthermore, the Court noted that its

approach accorded with that of other courts of appeal, with

the most recent views expressed by the NIGC, and even

the previous authoritative view emanating from the Office

of Legal Counsel within the Department of Justice.‘ (App.

23a-26a.)

Having reached the modest conclusion that the

Johnson Act should not be read to prohibit IGRA class II

technological aids in Indian country, the Court then

concluded that Magical Irish fits IGRA’s definition of a

class II technological aid. In so holding, the Court rejected

Petitioners’ comparison of Magical Irish to a slot machine,

finding the resemblance only “superficial.” It also rejected

Petitioners’ argument that Magical Irish was an electronic

version of the game of pull-tabs. Instead, the 10th Circuit,

following the lead of the D.C. Circuit in Diamond Game,

found that Magical Irish merely “facilitates” the play of

paper pull-tabs, a specifically authorized class II game.

(App. 37a-44a.)

* As the Office of Legal Counsel concluded, the Senate Report

indicates Congress’s intention both that class II technological aids not

be subject to Johnson Act liability and that this category of “technologi-

cal aids” be broadly construed. (App. 26a n.22.)

eileen rnc

tT reo

15

REASONS FOR DENYING THE WRIT

I. THIS CASE HAS A SERIOUS MOOTNESS

PROBLEM AND, THEREFORE, PRESENTS A

POOR VEHICLE FOR SUPREME COURT RE-

VIEW.

Even if the questions presented here were worthy of

review, this case would be an inappropriate vehicle for

resolving them because changed factual circumstances

have rendered the parties’ dispute moot. At the time they

initiated their declaratory judgment action, the Respon-

dent Tribes were using (or had contracts to use) Magical

Irish in their gaming activities and Respondent Diamond

Game was providing Magical Irish to Native-American

tribes. However, in sworn affidavits (which were uncontro-

verted) submitted to the Tenth Circuit in support of a

motion to dismiss the case as moot and to vacate the

district court judgment in their favor, Respondents at-

tested to the following changed factual circumstances: (a)

none of the Tribes presently uses Magical Irish in their

gaming activities; (b) Diamond Game no longer provides

Magical Irish to any tribe; (c) Respondents have no inten-

tion of resuming Magical Irish activities; and (d) Respon-

dents are focusing their present and future gaming

activities on other IGRA class II pull-tab games. Respon-

dents argued (App. 14a) that, in light of these changed

factual circumstances, they no longer have a legally

cognizable interest in whether Magical Irish is an IGRA

class II game or a lawful device under the Johnson Act,

and therefore the case is now moot. See City of Erie v.

Pap’s A.M., 529 U.S. 277, 287 (2000) (case is moot when

plaintiff no longer has “a legally cognizable interest in the

outcome”) (internal quotations omitted).

The Tenth Circuit denied the motion. On its face,

however, the Tenth Circuit’s analysis departed from this

Court’s established mootness principles.

16

For one, the Tenth Circuit applied the incorrect

mootness standard. It ruled that dismissal for mootness

was unjustified because it remains “technically possible”

for Respondents to resume Magical Irish activities, and

thus “it is not ‘absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.’” (App.

15a) (quoting Adarand Constructors, Inc. v. Slater, 528

U.S. 216, 222 (2000)). But whether allegedly wrongful

behavior could reasonably be expected to recur is the

stringent mootness standard that is applied when the

defendant says that it has voluntarily ceased the conduct

gave rise to the litigation. See, e.g., Friends of the Earth,

Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S.

167, 189 (2000) (“the standard ... for determining

[whether] a case has been mooted by the defendant’s

voluntary conduct ... is whether subsequent events made

it absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.”). This “heavy

burden,” Adarand, 528 U.S. at 222, is imposed by moot-

ness doctrine to “protect[] plaintiffs from defendants who

seek to evade sanction by predictable protestations of

repentance and reform.” City News and Novelty, Inc. v.

City of Waukesha, 531 U.S. 278, 284 n.1 (2001) (internal

quotations omitted).

The standard the Tenth Circuit applied has no bearing

on the mootness equation, however, when, as is the case

here, it is the plaintiffs who have halted the conduct that

gave rise to litigation. See id. Therefore, Respondents were |

not required to satisfy the ‘“heavy burden of persuading |

the court that the challenged conduct cannot reasonably

be expected to start up again,’” (App. 15a, quoting Ada-

rand, 528 U.S. at 222), and the “technical possibility”

(App. 15a) that Respondents could resume Magical Irish

activities is of no consequence in light of the unrefuted

affidavits that Respondents are not engaged in Magical

Irish activities and have no future intention of doing so.

17

Second, relying on City of Erie, the Tenth Circuit said

that it denied the mootness motion because of its perception

that Respondents were engaged in “strategic manipulation

... to seal a favorable decision from review.” (App. 16a.)

The Tenth Circuit’s reliance on City of Erie was mistaken.

In City of Erie, this Court declined to dismiss the defen-

dant’s petition for certiorari to the Pennsylvania Supreme

Court as moot, citing concerns that the plaintiff was using

its asserted voluntary cessation of the disputed conduct to

manipulate jurisdiction and insulate from review the state

court judgment in its favor. Those concerns were real in

City of Erie because the Court’s practice in disposing of

state cases that become moot pending review is to dismiss

the petition for certiorari, but to leave the state court

judgment in tact. 529 U.S. at 288-89; id. at 305 (Scalia, J.,

concurring). Thus, in City of Erie, dismissal on mootness

grounds would not have led to the vacatur of the state

court victory for the plaintiff.

The concerns that drove the Court’s decision to decline

to dismiss for mootness in City of Erie are absent here.

When a federal case becomes moot on appeal as a result of

voluntary action taken by the prevailing party below, the

general practice is to dismiss the case as moot and vacate

the lower court judgment that was favorable to the pre-

vailing party. See Arizonans for Official English v. Ari-

zona, 520 U.S. 43, 72 (1997); U.S. Bancorp Mortgage Co. v.

Bonner Mall Partnership, 513 U.S. 18, 23 (1994). Under

that practice, dismissal of this case on mootness grounds

would not have insulated from judicial review the favor-

able ruling that the Respondents obtained in the district

court — it would have stripped them of that win.

Finally, the Tenth Circuit said that the cessation of

Magical Irish activities did not render the case moot

because Respondents still could be prosecuted under the

Johnson Act for their prior Magical Irish activities, and

therefore they retain a legally cognizable interest in the

18

outcome of the litigation. (App. 14-15a.) But until its

threat to prosecute for past use of Magical Irish (which

was uttered for the first time in response to the mootness

motion), the Department of Justice had only threatened to

prosecute if Respondents did not stop their Magical Irish

activities. (App. 1-2a, 10a.) In short, what prompted

Respondents to bring their declaratory judgment action

was a threat of Johnson Act prosecution if they continued

to use Magical Irish going forward, not a threat of prosecu-

tion for their past use of Magical Irish.

II. CLASS II TECHNOLOGICAL AIDS UNDER

IGRA ARE NOT SUBJECT TO SEPARATE LI-

ABILITY AS JOHNSON ACT GAMBLING DE-

VICES AND THE PURPORTED CIRCUIT

SPLIT ON THIS ISSUE IS INSUFFICIENTLY

IMPORTANT TO WARRANT THIS COURT’S

REVIEW

Four Courts of Appeals have now addressed the

interrelationship of the Johnson Act and the use of class II

technological aids under IGRA. Three of those courts (the

9th, 10th, and D.C. Circuits) agree that Congress did not

intend for class II technological aids to be subject to

Johnson Act liability. Although the 8th Circuit disagrees

on this point (holding that the Johnson Act theoretically

may apply to class IJ gaming under IGRA), the divergence

is completely academic because that Court concluded that

pull-tab dispenser/displays, like Magical Irish, are not

Johnson Act gambling devices. ° Given the uniform result

* In a particularly strained passage, Petitioners suggest that the

D.C. Circuit actually agrees with the 8th Circuit’s approach to the

Johnson Act, citing to a line in Cabazon Band of Mission Indians v.

NIGC, 14 F.3d 633, 635 n.3 (D.C. Cir.), cert. denied, 512 U.S. 1221

(1994), regarding the extent to which IGRA repealed the Johnson Act.

(Continued on following page)

— —

19

reached by all four courts of appeal, and the inconsequen-

tial nature of the 8th Circuit’s minor doctrinal variation,

this Court should deny the petition for certiorari.

A. The Tenth Circuit Decision Properly

Reconciled IGRA and the Johnson Act

Reserving for the moment, the “how many angels

dance on the head of a pin” quality of the purported split

among the circuits, as is apparent from the thorough

analysis in both the 10th Circuit opinion here and the 9th

Circuit opinion in United States v. 103 Electronic Gam-

bling Devices, 223 F.3d 1091 (9th Cir. 2000), there is no

reason to revisit the majority view. These opinions are

deeply grounded in both statutory language and legislative

history and apply two well-established canons of statutory

construction. First, “When there are two acts upon the

same subject, the rule is to give effect to both if possible.”

Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (quoting

United States v. Borden Co., 308 U.S. 188, 198 (1939)); see

Cert. Pet. at 18. Petitioners have the D.C. Circuit’s approach quite

wrong. In Diamond Game, the D.C. Circuit explicitly stated, citing to

the very passage from Cabazon that the Petitioners quote selectively,

that the Circuit already had “interpreted IGRA as limiting the Johnson

Act prohibition to devices that are neither Class II games approved by

the Commission nor Class III games covered by tribal-state compacts.”

Diamond Game, 230 F.3d 365, 367, (2000). Indeed, in its parenthetical

describing the passage in question from Cabazon, the panel in Diamond

Game described it as “implying that Class II aids, permitted under

IGRA, do not run afoul of the Johnson Act.” Jd. It is true, as the

Petitioners claim, that the D.C. Circuit rejected the concept of an

implied repeal of the Johnson Act with respect to class II technological

aids. But the 9th and 10th Circuits do not speak in terms of implied

repeal either. They talk about maximizing the effect of two co-existing

statutes by recognizing that class II technological aids should not be

deemed prohibited by the Johnson Act. On this key point, the D.C., 9th,

and 10th Circuits are clearly in accord.

20

also FCC v. NextWave Personal Communications, Inc., 537

U.S. 293, 304 (2003). And, second, a specific statute

governs over a more a general one. Morton, 417 U.S. at

551; see also Morales v. Trans World Airlines, Inc., 504

U.S. 374, 384 (1992) (specific preemption provision gov-

erns over general saving clause); Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (specific

provision on expert witness fees controls over general costs

provision), superseded on other grounds by the Civil Rights

Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.

In this case, interpreting the Johnson Act to generally

prohibit the use of gambling devices in federal territories,

while construing IGRA to authorize class II gaming using

technological aids in Indian country, gives maxi .um effect

to both statutes. Allowing class II gaming on Inaian lands

would not unduly interfere with the operation of the

Johnson Act. To the contrary, giving full effect to the class

II gaming provisions of IGRA would have only a minimal

effect on the Johnson Act, which would still prohibit class

III gaming on Indian lands in the absence of a tribal-state

compact, and the use of all gambling devices in other

federal territories. See Radzanower v. Touche Ross & Co.,

426 U.S. 148, 156 (1972) (specific venue provision of the

National Bank Act controls over general venue provision of

the Securities Exchange Act, in part because giving effect

to the National Bank Act provision would not unduly

interfere with the operation of the Securities Exchange

Act, and would have no impact on the vast majority of

lawsuits brought under the Securities Exchange Act).

Moreover, to the extent there is any conflict in the applica-

tion of the Johnson Act and IGRA to class II gaming, IGRA

must control as the specific, later-enacted statute. As with

the Indian preference statute in Morton, IGRA is “a

specific provision applied to a very specific situation,” and

“[w]here there is no clear intention otherwise, a specific

statute will not be controlled or nullified by a general !

one. ...” Morton, 417 U.S. at 550-51.

a

21

Respondents will not repeat here all the substantial

evidence that Congressional intent is best served by

defining “gambling devices” under the Johnson Act as not

including class II technological aids used in Indian coun-

try. Suffice it to say, as explained by both the 9th and 10th

Circuits, that the Senate Report and the explicit statutory

provision in IGRA providing for the use of class II techno-

logical aids both provide powerful support for this ap-

proach. Indeed, the Department of Justice itself, when

litigating this issue in the 9th Circuit, conceded the point,

telling the court that it should “read the two acts harmo-

niously; if it’s a bingo aid, it’s not a Johnson Act gambling

device.” United States v. 103 Electronic Gambling Devices,

223 F.3d at 1102 n.13.

Petitioners’ approach, by contrast, cannot be recon-

ciled with either the text or the manifest intent of IGRA.

Petitioners claim that class II gaming devices are subject

to the proscriptions of the Johnson Act because IGRA

states that a tribe may engage in class II gaming only if

“such gaming is not otherwise specifically prohibited on

Indian lands by Federal law.” (Pet. at 10-11 (citing 25

U.S.C. § 2710(b)(1)(A)) (emphasis added).) According to the

Petitioners, the Senate report reveals that the “specific

prohibition” referred to in the savings clause is the John-

son Act. (Pet. 10-13.)

But the text and the legislative history actually

provide scant support for this view. As a textual matter,

IGRA’s “savings clause” — the one strand of text on which

Petitioners rely — references statutes that “specifically”

prohibit gaming “on Indian land.” Congress included these

limiting principles deliberately. Earlier versions of the law

that became IGRA had a much broader savings clause,

permitting class II gaming only if “such gaming is not

prohibited by federal law.” S. Rep. No. 446, at 12 (1988),

reprinted in 1988 U.S.C.C.A.N. 3071, 3082. By limiting

-IGRA’s savings clause to statutes that specifically prohibit

22

gaming on Indian land, Congress excluded the Johnson

Act, which is a statute of general application passed

decades before the advent of modern Indian gaming (albeit

on that applies in Indian country), while still reserving to

Congress leeway to impose specific bans if necessary.

The Senate Report confirms the point. In explaining

the meaning of the very phrase on which Petitioners rely,

the Senate Report explicitly states that Congress did

intend for class II technological AIDS to be relieved of

potential Johnson Act liability. Hence, the Senate Report

declares that, under IGRA, the Johnson Act does not apply

to “devices used solely in aid of or in conjunction with

bingo or lotto ... .” Petitioners ask this Court either to

ignore this declaration of congressional intent or limit it to

“bingo blowers,” even though, ironically, these devices

(unlike Magical Irish) clearly do meet the definition of

“sambling devices” under the Johnson Act.° Such a

cramped approach to the use of class II technological aids,

moreover, would conflict with Congress’s manifest intent

“that tribes 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.” S. Rep. No. 100-446, at 9, 1988

U.S.C.C.A.N. at 3079."

* Bingo blowers, which randomly select the numbers to be called,

would seem surely to qualify as Johnson Act gambling devices because

they are designed primarily for use in gambling, involve the application

of an element of chance, and render a person entitled to receive money

or property.

" In their discussion of the legislative history, Petitioners focus on

the sentence of the Senate Report which states that the language of the

savings clause “not otherwise prohibited by federal law” refers to the

Johnson Act. But, as noted above, Congress amended the savings clause

to read “not otherwise specifically prohibited on Indian land by federal

(Continued on following page)

=

23

Rather than adhere to the flexible approach mandated

by Congress, Petitioners also argue that IGRA’s express

exemption from the Johnson Act for gambling devices used

in class III gaming indicates that Congress did not intend

to exempt class II aids from the Johnson Act. (Pet. 13-14.)

The principle of negative implication, however, is only an

aid in discovering legislative intent when it is not other-

wise manifest. United States v. Barnes, 222 U.S. 513, 519

(1912). Here, as discussed above, the Senate Report clearly

indicates that Congress did not intend the Johnson Act to

apply to class II aids. In addition, when there is no reason

for the legislature to have included a provision in a stat-

ute, the omission of that provision means nothing at all.

United Dominion Ind., Inc. v. United States, 532 U.S. 822,

836 (2001). The Senate Report indicates that Congress did

not believe the Johnson Act applied to class II aids. S. Rep.

No. 446, 100th Cong., 2d Sess. 12 (1988) (“[The Johnson

Act] prohibits gambling devices on Indian lands but does

not apply to devices used in connection with bingo and

lotto.”) Congress’ failure to include an express exemption

from the Johnson Act for class II gaming devices that

Congress did not believe were covered by the Johnson Act

in the first place simply has no significance.

B. The Purported Circuit Split over the Rec-

onciliation of IGRA and the Johnson Act

Does Not Implicate Any Significant State

or Federal Interest

Petitioners insist that this Court should resolve the

purported circuit split over whether class II technological

law.” Thus, the snippet of legislative history on which Petitioners stake

their claim is directed at language that was meaningfully superceded.

24

aids may be subject to Johnson Act liability, but its reasons

for seeking this resolution are insubstantial.

As a threshold matter, Petitioners will achieve noth-

ing by having this Court resolve the alleged circuit split

unless it also prevails on its view, rejected by the two

courts to consider the issue, that pull-tab dis-

penser/displays are Johnson Act gambling devices. As

discussed below, Petitioners’ position is weak on both

issues. Indeed, if there were any substantial merit to

Petitioners’ view, it would be expected that at least one

court of appeal would take the Petitioners’ side. Surely, in

the absence of a single ruling for Petitioners, and in the

face of the opposing view of the NIGC (the government

agency charged with administering IGRA and a party to

this case), as well as the Department of Justice’s Office of

Legal Counsel, there is no compelling reason for this Court

to invest its scarce resources in such a one-sided dispute.

Even assuming, however, that Petitioners are right on

every point, the issue is too insubstantial to warrant this

Court’s attention. According to Petitioners, the 10th

Circuit’s approach to the Johnson Act opens the door to

class III casino style gaming in Indian country, which, in

turn, undermines IGRA’s regime for guarding against

organized crime, and denigrates the role of states in

regulating Indian gaming within their borders. (Pet. 15-

21.)

These concerns are baseless. The 10th Circuit ap-

proach to the scope of the Johnson Act in no way opens the

door for class III gaming in the absence of a compact

precisely because, as the D.C., 8th, and 10th Circuit’s have

unanimously held (consistent with NIGC regulations), the

devices at issue here are aids to class II gaming and not

class III games. Absolutely nothing about the 10th Circuit

opinion (or Santee Sioux, or Diamond Game, or 103

Gambling Devices) changes the uncontested fact that class

III gaming — including the slot machine devices at which

2 eee aad

25

the Johnson Act takes aim — may be conducted only

pursuant to a tribal-state compact. And because this limit

on class III gaming remains wholly unaffected, IGRA’s

protections against organized crime’ and its preservation

of a regulatory role for the states remain vibrant.

Reading between the lines, Petitioners’ real complaint

seems to be that, in light of the proliferation of different

types of class II gaming, courts are classifying too many

devices as class II technological aids, thereby restricting

state control over gaming. Whatever the merits of this

view, Petitioners have not sought certiorari on the issue of

whether Magical Irish is properly classified as a class II

technological aid. If, as Petitioners seem to suggest, the

category of class II aids has become too broad, the problem

is certainly not raised by Magical Irish (which is a low-

tech dispenser and visual aid that clearly received the

proper classification). Moreover, this alleged problem, if it

is really a problem at all, is one that Congress has the

power to address at any time.

Ill. THE QUESTION OF WHETHER, INDEPEND-

ENT OF IGRA, MAGICAL IRISH IS A GAM-

BLING DEVICE UNDER THE JOHNSON ACT

IS NOT PRESENTED IN THIS CASE AND,

IN ANY EVENT, DOES NOT MERIT THIS

COURT’S REVIEW

The 10th Circuit never addressed the issue of

whether, assuming the class II technological aids may be

subject to Johnson Act liability, Magical Irish or other

similar pull-tab dispensers in fact qualify as Johnson Act

* It must also be observed that the record contains not a scintilla of

evidence that the use of Magical Irish, Lucky Tab, or any other class II

technological aid invites any law enforcement problems whatsoever.

26

“gambling devices.” Accordingly, this issue is not properly

presented in this case.

In any event, the particularities of how to define a

Johnson Act gambling device is not an issue worthy of

review. Whether a mechanism for playing a game of

chance qualifies as a Johnson Act gambling device is an

intrinsically factbound, case-by-case inquiry — in short, the

kind of inquiry that this Court does not generally under-

take, even if a lower court is in error. See S. Ct. Rule 10.

The merits of the Petition, moreover, are not enhanced by

its exaggerated claim of a circuit split between the 8th

Circuit’s decision in Santee Sioux and a 28-year old Ninth

Circuit per curiam in United States v. Wilson, 475 F.2d 108

(9th Cir. 1973), involving a unrelated machine.

The “Bonanza” machine at issue in Wilson worked as

follows: When an individual placed 25 cents into the

machine, he would receive a coupon, the value of which

was already visible in the viewing window of the machine.

As a result of buying the first coupon, the player would

also get a chance to see the next coupon in line, as it would

replace the first coupon in the viewing window. The player |

could then decide whether or not to purchase the second |

coupon as well as a chance to view the third coupon in

exchange for another 25 cents. Wilson, 475 F.2d at 108.

The entire focus of both the majority opinion and the

dissent in Wilson was “on whether playing a device that

allowed the player to see what he was going to get before

he deposited his money involved an ‘element of chance.’”

Wilson, 475 F.2d at 109. The majority concluded that it

did, because in its view the user of the machine was really

paying for the opportunity to view and purchase a subse-

quent, potentially more valuable, coupon.

The differences between the Bonanza machine and

pull-tab dispensers like Magical Irish and Lucky Tab are

legion. First, in contrast to pull-tab dispensers, the design

ee

ee

27

of the Bonanza device itself was an essential aspect of the

game of chance being played. The lure of the game de-

pended entirely on the viewing window — and the chance

that a valuable coupon would pop into view after a rela-

tively worthless coupon was purchased and gotten out of

the way. Magical Irish and Lucky Tab, by contrast, simply

dispense a ticket after money has been paid. The appara-

tus itself adds nothing substantive to the game. Second,

while the underlying game of pull-tabs being played by

Magical Irish and Lucky Tab is c »mpletely legal, the analysis

in Wilson, sketchy as it is, proceeds from the assumption

that the sale of chances to win a prize constituted illegal

gambling. Thus, Wilson never addresses one key issue here,

namely whether a device that dispenses the ticket of a lawful

game can ever be deemed a Johnson Act device. Third, a

person using the Bonanza machine plays against the ma-

chine itself, which contains all the winning and losing tabs. A

person using Magical Irish or Lucky Tab, by contrast, is

playing only a portion of a paper pull-tab deal and is, in fact,

competing not against the machine but against other players

of the same deal to find the winning paper tickets. In this

regard, the play of the Bonanza machine much more closely

resembles a slot machine (the target of the Johnson Act)

than does Magical Irish or Lucky Tab.’

In any event, on the merits of whether Magical Irish

and similar pull-tab dispenser/displays are Johnson Act

gambling devices even without regard to IGRA, there can

be little doubt that the 8th Circuit and the district court

correctly concluded that they are not. The Johnson Act

* In assessing the similarity between the Bonanza machine and a

slot machine, moreover, the Wilson opinion is unclear on a key question

for assessing Johnson Act status: whether the Bonanza machine itself

randomly selects the next coupon or whether the coupons, as in Magical

Irish and Lucky Tab, are pre-arranged.

28

definition of a gambling device is limited to machines or

mechanical devices which involve “the application of an

element of chance.” 15 U.S.C. § 1171(a) (emphasis added).

As both courts to have considered the matter agree, Magical

Irish and similar pull-tab dispenser/readers do not apply

any element of chance — they merely dispense pull-tabs

from rolls in which the element of chance is pre-packaged —

and, thus, they do not meet the Johnson Act definition of

gambling devices. Indeed, another factor counseling against

review in this Court is the detailed and substantial dispute

between Petitioners and Respondents regarding the actual

play of Magical Irish. To decide the Johnson Act issue posed

by Petitioners, this Court would find it embroiled in a host

of factual disputes about bar codes, software, and casino

operations — disputes that, notably, the district court here

resolved against Petitioners.

Petitioners deride the 8th Circuit’s focus on the

“application of an element of chance,” as arbitrary, but it is

both textually compelled and sound. “[T]he application of

an element of chance” is an active construct. Something

must apply the element of chance and, in the context of

the Johnson Act, that “something” is most naturally read

to be the machine or device that is to be proscribed.

Petitioners construction has at least two glaring weak-

nesses. First, it would read the word “application” out of

the statute (violating the canon of giving every word

meaning). Second, it would lead to absurd results. If the

device is not required to “apply” the element of chance,

then every class II technological aid would be a prohibited

Johnson Act device because they all are used in gaming

that includes an “element of chance.” Such a construction,

of course, would rende. this aspect of IGRA a nullity.

Courts interpreting IGRA have neatly avoided this

error by using the criteria of whether a device actually

applies the element of chance as a basis for distinguishing

between class II technological aids, which do not generate

. eee

29

the element of chance, and class III electronic facsimiles,

which do. On this basis, for example, the 9th Circuit ruled

that computerized pull-tab dispensers which also contain

a random number generator to create the pull-tab deal, are,

in contrast to Magical Irish, class III facsimiles that could

only be played pursuant to a tribal-state compact. See

Sycuan Band of Mission Indians v. Raoche, 54 F.3d 535

(9th Cir. 1995).

By recognizing that Johnson Act gambling devices

must apply an element of chance to the game being

played, the 8th Circuit (like the district court here) effec-

tively harmonized the Johnson Act with IGRA’s allowance

of class II technological aids. Under this approach, a

device that applies an element of chance cannot qualify as

an class II technological aid, but may constitute a Johnson

Act gambling device assuming that it meets the statute’s

other definitional elements. In the last analysis, the 8th

Circuit has simply taken a different route for reaching the

same result as the 10th Circuit here, namely to give both

IGRA and the Johnson Act their greatest possible effect by

ruling that the Johnson Act does not reach class II techno-

logical aids.

Finally, Petitioners claim that the question of whether

the Lucky Tab II dispenser is a “gambling device” under

the Johnson Act may have important “ramifications

outside as well as inside Indian Country.” (Pet. at 18.) But

Petitioners’ boilerplate arguments about the potential

effects of the 8th Circuit decision are purely speculative.

Petitioners have presented no evidence that anyone has

attempted to introduce pull-tab dispensers or similar

machines in another federal territory or that interstate

shipment of such machines is a matter of serious national

concern. As the Petitioners recognize, states can impose

their own restrictions on the use of pull-tab dispensers

within their own borders. At the end of the day, the 8th

and 10th Circuit decisions below, and the D.C. Circuit’s

/

30

decision in Diamond Game Enterprises, simply let tribes

that can already sell pull-tabs legally use electronic

dispensers as a method of sale, much like selling aspirin in

a vending machine instead of over-the-counter. Refereeing

the dynamics of a vending machine is hardly an enterprise

worthy of this Court’s time.

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

WILLIAM A. NORRIS

Counsel of Record

EDWARD P. LAZARUS

MICHAEL C. SMALL

AKIN GUMP STRAUSS HAUER

& FELD, LLP

Attorneys For Respondent

Diamond Game Enterprises, Inc.

JESS GREEN

Attorney For Respondent

Northern Arapaho Tribe

of Wyoming and Seneca-

Cayuga Tribe of Oklahoma

BALDWIN & CROCKER, P.C.

ANDREW W. BALDWIN

Attorneys For Respondent

Northern Arapaho Tribe of

Wyoming

ROBERT E. PRINCE

Attorney for Respondent

Fort Sill Apache Tribe of

Oklahoma

January 2004