Keeping States Out of Bingo: How the Federal Interest in Indian American Sovereignty Protects Tribes’ Rights to Gamble Online

by Matan Skolnik^*

It is “a principal goal of Federal Indian policy . . . to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”¹ Accordingly, states’ authority to intervene in the activities of Indian American tribes on tribal land is limited. An often-disputed area of this discussion pertains to tribal gaming. Federal law provides that only state laws that prohibit a game—not those that merely regulate one—are enforceable in tribal territories. But does a state law that prohibits online gaming constitute a prohibition such that the law can be enforced on tribal land, or does it merely regulate the manner in which the game can be played? This contribution argues that such a law would be a regulation, unenforceable on tribal land, and that public policy benefits support that result.

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The gaming industry has been a significant source of revenue for Indian American tribes since several tribes began offering bingo in the 1970s.² But tribes and the states in which they are located have not always seen eye to eye on the extent to which states may regulate tribal gaming—or, put differently, the extent to which tribal territories may offer gaming in disregard of whatever laws govern the state itself.³ Common law and federal legislation have resolved the controversies surrounding many forms of gaming: a state can enforce on Indian American reservations those activities that it prohibits, but not those that it merely regulates.⁴

Although the advent of internet-based games introduced additional complexities and disagreements, their treatment should not evoke fundamentally different standards. A review of the relevant law, legislative history, and public policy demonstrates that online games and physical games should be considered legally equivalent, with the same limitations on state regulation of tribal activity. Therefore, a state law categorically banning online gaming while allowing in-person gaming merely regulates the manner in which a game can be played. Such a law is a regulation, not a prohibition, and it may not be enforced on tribal land. This proposition is reinforced by the fact that permitting online gaming comports with public policy, meeting the requirement of the Supreme Court’s “shorthand test” for determining whether a state law is enforceable in tribal territories.⁵

The legal frameworks governing trial gaming date back principally to 1953, when Congress passed Public Law 280 (“Pub. L. 280”).⁶ Pub. L. 280 provided certain states with the authority to enforce their criminal laws in tribal territories.⁷ The law left many uncertainties unresolved, however, and two decades later, the Supreme Court addressed Pub. L. 280 head-on in California v. Cabazon Band of Mission Indians.⁸

The Cabazon Court interpreted Pub. L. 280 to distinguish between laws that are “criminal/prohibitory” and those that are “civil/regulatory,” finding that states can enforce the former but not the latter on reservations.⁹ Applying this dichotomy, Pub. L. 280 grants states the authority to enforce a law in tribal territories if (and only if) the law prohibits conduct, but not if the law “generally permits the conduct at issue, subject to regulation.”¹⁰ The Court added that “[t]he shorthand test [for determining whether a state law is enforceable in tribal territories] is whether the conduct at issue violates the State’s public policy,”¹¹ and that “[t]he inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government.”¹²

Uncomfortable with the notion that the Cabazon ruling might generate a proliferation of unregulated gaming within tribal borders, Congress passed the Indian Gaming Regulatory Act (“IGRA”) in 1988.¹³ IGRA divided games into three classes. Class I games, a category consisting generally of “social games solely for prizes of minimal value,”¹⁴ are within the “exclusive jurisdiction” of tribes.¹⁵ Class II games, such as bingo and certain card games, are within the jurisdiction of tribes, and may be offered on tribal lands located in states that allow “such gaming for any purpose by any person, organization or entity.”¹⁶ Class III games, generally considered the most risky (and defined simply as any “forms of gaming that are not class I gaming or class II gaming”),¹⁷ are subject to additional requirements—the most significant of which is the establishment of “a Tribal-State compact” between the tribe and the state.¹⁸ Critically, IGRA proclaimed that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.”¹⁹

What happens if a state bans all online gaming while permitting those same banned games when played in-person? Does the complete prohibition of online gaming constitute a prohibition of “gaming activity” for Pub. L. 280 purposes, such that the state can enforce the law on tribal land? The stakes of these questions are high, as they represent the difference between tribal sovereignty and exposure to criminal prosecution. To answer, one must first establish whether in-person games and their online counterparts are legally equivalent under IGRA. If so, as IGRA provides, tribes retain exclusive jurisdiction over the gaming activity unless the state prohibits the activity, “as a matter of criminal law and public policy.”²⁰

The game of bingo—the very first game ever offered on tribal lands—provides a useful case study.²¹ First, we must determine whether online bingo is, like its physical counterpart, Class II bingo under IGRA. We then need to assess whether a complete prohibition of online bingo qualifies as the sort of criminal/prohibitory law envisioned by Cabazon, effectively barring online bingo on tribal land.

To determine whether virtual bingo constitutes Class II bingo under IGRA, and thus whether it should be treated as a Class II game for Pub. L. 280 purposes, it is first critical to define the elements of the game.²² IGRA defines bingo, in part, as a “game of chance . . . (whether or not electronic, computer, or other technologic aids are used in connection therewith).”²³ The Act then lays out the specific elements of bingo:

(I) [P]layed for prizes, including monetary prizes, with cards bearing numbers or other designations,

(II) [T]he holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and

(III) [T]he game is won by the first person covering a previously designated arrangement of numbers or designations on such cards[.]²⁴

Consequently, in order to treat virtual bingo as something other than Class II bingo (for the purpose of asserting greater state control over the activity), a state must allege that virtual bingo does not meet the Act’s criteria. In Julius M. Isr. Lodge of B’nai B’rith No. 2113 v. Commissioner, for example, the 5th Circuit determined that a game called “Instant Bingo [was], for all practical purposes, a lottery” and thus was not bingo within IGRA’s definition.²⁵

Indeed, several courts have determined that as long as IGRA’s definition is satisfied, virtual bingo is—like the physical game—Class II bingo.²⁶ The Act’s criteria are authoritative, regardless of the use of technology or of technological advancements. As the 9th Circuit articulated in United States v. 103 Elec. Gambling Devices, “[w]hatever a nostalgic inquiry into the vital characteristics of the game as it was played in our childhoods . . . might discover, IGRA’s three explicit criteria . . . constitute the sole legal requirements for a game to count as class II bingo.”²⁷

And the Supreme Court recently acted upon such an assumption. In Ysleta del Sur Pueblo v. Texas, Texas sought to ban bingo on reservations while continuing to allow charitable bingo within the state.²⁸ The Ysleta del Sur Pueblo tribe had decided to offer electronic bingo because “[o]n its view, . . . IGRA treats bingo as a class II game for which no state permission is required so long as the State permits the game to be played on some terms by some persons.”²⁹ Even though the Court conceded that the tribe’s gaming “machines resemble[d] slot machines in every relevant respect,”³⁰ the majority was unmoved by Texas’s concerns regarding whether electronic bingo constitutes bingo. The Court simply stated that “[w]e appreciate these concerns, but they do not persuade us. Most fundamentally, they are irrelevant.”³¹ In ruling as it did, the Court rejected Texas’ impulse to have federal courts “enforc[e] the minutiae of state gaming regulations governing the conduct of permissible games.”³² It held that permitting the game’s continuation conformed to Congress’s intentions, and that “[i]t is not [the Court’s] place to question whether Congress adopted the wisest or most workable policy.”³³

Indeed, legislative history indicates that Congress intended virtual Class II games to be permissible under IGRA.³⁴ In the Senate Report accompanying IGRA, the Select Committee on Indian Affairs called for “maximum flexibility to utilize games such as bingo” for tribes.³⁵ In that vein, it “specifically reject[ed] any inference that tribes should restrict class II games to existing game[] sizes, levels of participation, or current technology.”³⁶ The Select Committee further stated that it “intend[ed] that tribes be given the opportunity to take advantage of modern methods of conducting class II games and [that] the language regarding technology is designed to provide maximum flexibility.”³⁷ Finally, the Select Committee provided that gaming remotely by “linking participant players at various reservations” via “computers and telecommunications technology” is acceptable “as long as the use of such technology does not change the fundamental characteristics of the bingo . . . game[].”³⁸ Such an advance in gaming methods, it reasoned, “would merely broaden the potential participation.”³⁹

Insofar as online bingo is merely bingo, a state can only ban online bingo on tribal lands under the criminal/prohibitory-civil/regulatory dichotomy by prohibiting all forms of the game.⁴⁰ That is, states seeking to ban Class II bingo on tribal land must “forbid, prevent, effectively stop, or make bingo impossible” in their statute.⁴¹ With only a partial prohibition, on the other hand, a state’s law “would seem to . . . fall on the regulatory rather than prohibitory side of the line.”⁴² In Cabazon, for example, California sought to impose on a local tribe its mandate that bingo games be “operated and staffed by members of designated charitable organizations.”⁴³ However, the Court noted that California’s statute did “not entirely prohibit . . . bingo but permit[ted] it” when certain conditions were met.⁴⁴ Accordingly, the Court concluded that California’s law merely regulated bingo and denied California’s attempt to enforce the law against the tribe.⁴⁵

Indeed, with respect to Class II gaming more broadly, numerous federal circuits have found that the prohibition of a game must be categorical; if a state permits any amount of a particular Class II game within its borders, then that game cannot be prohibited on tribal lands. The 8th Circuit, for one, clearly declared that “[s]hort of a complete ban, states have virtually no regulatory role in class II gaming.”⁴⁶ Likewise, in Sycuan Band of Mission Indians v. Roache, the 9th Circuit rejected California’s argument that the state entirely prohibits “electronic machine gambling” and should thus be permitted to ban such gambling on tribal lands, holding that “the state cannot regulate and prohibit, alternately, game by game and device by device.”⁴⁷

The Ysleta Court endorsed this proposition when it denied Texas’s efforts even to shut down the Ysleta del Sur Pueblo tribe’s electronic bingo machines on the grounds that Texas allowed bingo within its borders for charitable purposes.⁴⁸ The Court thereby ascribed a literal meaning to IGRA’s provision that Class II gaming remains within tribal jurisdiction if “such Indian gaming is located within a state that permits such gaming for any purpose by any person, organization or entity.”⁴⁹

Ironically, Chief Justice Roberts’s dissent in Ysleta pronounced the Court’s view most clearly and directly.⁵⁰ Articulating the issue of the case as “whether all of Texas’s gaming laws apply on tribal land, or only those laws that categorically ban a particular game,” Roberts summarized the majority’s holding as “conclud[ing] that the latter reading of the statute is the better one.”⁵¹ The majority, he further claimed, “accept[ed] the Tribe’s position” that the State’s “gaming laws simply do not apply to it, unless Texas categorically bans the playing of a particular type of game altogether.”⁵²

Per the Ysleta majority, regulations that limit the “time, place, and manner” in which games can be played are not prohibitions for Pub. L. 280 purposes, and thus cannot be enforced by states on tribal lands.⁵³ Texas attempted to rebut the Court’s concerns by arguing that, “in some sense, its laws . . . ‘prohibit’ bingo—when the game fails to comply with the State’s time, place, and manner regulations.”⁵⁴ In other words, it argued that its regulations were, functionally, prohibitions on noncompliant gaming activities. However, the Court rejected this backdoor workaround by reasoning that treating such regulations as prohibitions would risk causing “the law’s dichotomy between prohibition and regulation [to] collapse[].”⁵⁵ It added that Texas’ view makes “[l]aws regulating gaming activities become laws prohibiting gaming activities” and thus “violates [the Court’s] usual rule against ‘ascribing to one word a meaning so broad’ that it assumes the same meaning as another statutory term.”⁵⁶

Certainly, Ysleta should not be taken to imply that tribes may do whatever they please without regard for the law. They are still subject to tribal regulations, federal law, and state prohibitions.⁵⁷ As the Cabazon Court put it, “[n]othing in this opinion suggests that cockfighting, tattoo parlors, nude dancing, and prostitution are permissible on Indian reservations within California.”⁵⁸ Additionally, where gambling originating on tribal land extends beyond tribal borders, state intervention in a tribe’s gaming activities may be permissible.⁵⁹

The Cabazon Court instructed that the “shorthand test” for determining whether a state law is prohibitory or regulatory “is whether the conduct at issue violates the State’s public policy.”⁶⁰ Cabazon also made clear, however, that the state’s concerns are to be weighed against a federal commitment to “Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development”—which it deemed “important federal interests.”⁶¹

But judicial public policy analysis is not always necessary, as Congress incorporated its own balancing of interests into IGRA.⁶² As stated in the statute, gaming on reservations furthers federal interests in “promot[ing] tribal economic development, tribal self-sufficiency, and strong tribal government.”⁶³ Likewise, in a recent announcement of revised gaming regulations, the Department of the Interior provided that “[n]ot only does Indian Gaming support Tribal economies, the funding it generates helps to support the vital services that Tribal Nations provide to their citizens—from language preservation to healthcare.”⁶⁴ Moreover, allowing for the proliferation of internet gaming on reservations would carry promising possibilities for tribes and states alike. Online gaming is a multi-billion dollar industry, and its profits could meaningfully improve the lives of those on reservations.⁶⁵ In states that have revenue-sharing agreements with local tribes, greater profits for the tribes mean greater prosperity for the state, too; for instance, California earned $467 million from such an arrangement in a single year.⁶⁶ The compelling interests in favor of online tribal gaming greatly outweigh the state interests in regulating it.⁶⁷

Provided that an online game offered by a tribe adheres to IGRA’s definition of Class II gaming, and a state does not prohibit physical versions of the game altogether, that state may not prohibit the tribe from offering the game in a virtual, online format. Further, doing so would be misguided policy. States should instead embrace the novel opportunities to enhance the livelihoods of the Indian Americans living on reservations within their borders, as well as to benefit the state through revenue-sharing arrangements.

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* Matan Skolnik is a 3L (2024) at New York University School of Law. This piece is a commentary on the 2023 problem at the Schreck Gaming Law Moot Court Competition, hosted by the William S. Boyd School of Law at the University of Nevada, Las Vegas. This article is a distillation of one side of the arguments made by the team.

1. 25 U.S.C. § 2701(4).

2. See History, National Indian Gaming Commission, https://www.nigc.gov/commission/history (last visited Feb. 29, 2024); Press Release, U.S. Dep’t of the Interior, Interior Department Announces New Regulations to Increase Clarity and Transparency for Indian Gaming Compact Approval Processes (Feb. 16, 2024), https://www.doi.gov/pressreleases/interior-department-announces-new-regulations-increase-clarity-and-transparency (noting that “[t]he Indian gaming industry remains one of the most significant drivers of Tribal economic development in Indian Country”).

3. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 206 (1987) (explaining that when California sought to apply its penal laws on tribal land in response to tribal gaming offerings, the Tribes responded that the State “had no authority to apply its ordinances inside the reservations”).

4. See id. at 216 (holding that California could not enforce gambling laws against tribal bingo establishments as those laws were regulatory, not prohibitive); Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (1988) (finding in § 2701 that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity”); Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1029 (1990) (noting that Congress’s finding in § 2701 of the Indian Gaming Regulatory Act is “consistent with the Supreme Court’s pre-IGRA ruling in [Cabazon]” and that Congress “specifically adopted the Cabazon rationale” in fashioning the law).

5. See Cabazon, 480 U.S. at 216 (providing that “[t]he shorthand test [for determining whether a state law is enforceable in tribal territories] is whether the conduct at issue violates the State’s public policy”).

6. Public Law 280, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 28 U.S.C. § 1360).

7. Id.

8. 480 U.S.

9. Id. at 209.

10. Id.

11. Id.

12. Id. at 216.

13. See Ysleta del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1936 (2022) (explaining that “some feared the Court’s decision [in Cabazon] opened the door to a significant amount of new and unregulated gaming on tribal lands,” and that IGRA was an effort “to fill that perceived void . . . [via] comprehensive national legislation”); ​​Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (1988).

14. 25 U.S.C. § 2703(6).

15. 25 U.S.C. § 2710(a)(1).

16. 25 U.S.C. § 2710(b)(1)(A).

17. 25 U.S.C. § 2703(8).

18. 25 U.S.C. § 2710(d)(1)(C).

19. 25 U.S.C. § 2701(5).

20. Id.

21. Tribal bingo is also, bizarrely, extensively litigated. See, e.g., Ysleta del Sur Pueblo, 142 S. Ct. at 1936; United States v. 103 Elec. Gambling Devices, 223 F.3d 1091 (9th Cir. 2000).

22. 103 Elec. Gambling Devices, 223 F.3d at 1093 (beginning with the question “[W]hat is bingo?” to address whether an electronic form of bingo played on interlinked devices across reservations could be classified as bingo under IGRA).

23. 25 U.S.C. § 2703(7)(A)(i).

24. 25 U.S.C. § 2703(7)(A)(i)(I)–(III).

25. 98 F.3d 190, 193 (5th Cir. 1996) (holding that Instant Bingo lacked features of bingo, such as callers selecting random numbers and players covering matching squares).

26. Cf. California v. Iipay Nation of Santa Ysabel, 898 F.3d 960, 964 (9th Cir. 2018) (treating an online version of bingo as “a Class II game”); Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076, 1082 (7th Cir. 2015) (holding that electronic poker is Class II poker).

27. 223 F.3d at 1096.

28. 142 S. Ct. at 1936.

29. Id. at 1931.

30. Id. at 1947.

31. Id. at 1943; see also id. at 1944 (reasoning that while electronic bingo may “generate borderline cases,” the fact that “applying the Act’s [prohibitory/regulatory distinction] poses challenges . . . hardly makes it unique among federal statutes”); id. at 1947 n.5 (Roberts, C.J., dissenting) (observing that, even though “the electronic bingo played [at the casino] is about as close to real bingo as Bingo the famous dog,” the Court was treating it like Class II bingo).

32. Id. at 1944.

33. Id. at 1943–44 (further asserting that the Court’s role is “only to discern and apply the policy [Congress] did adopt”).

34. As Class III games require the implementation of Tribal-State compacts, they are governed by different rules. For more regarding emerging issues with online Class III games, see West Flagler Assocs., Ltd. v. Haaland, 71 F.4th 1059 (D.C. Cir. 2023).

35. S. Rep. No. 100-446, at 9 (1988).

36. Id.

37. Id.

38. Id.

39. Id.

40. See 25 U.S.C. § 2710(b)(1) (providing that a tribe can operate and play Class II games on its lands if the gaming is located “within a State that permits such gaming for any purpose by any person, organization or entity”).

41. See Ysleta del Sur Pueblo, 142 S. Ct. at 1938.

42. See id. (saying as much about Texas’s laws, which allowed some bingo subject to restrictions).

43. Cabazon, 480 U.S. at 205.

44. Id.

45. Id. at 211; see also Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 148–49 (9th Cir. 1991) (finding that “Cabazon focuses on whether the prohibited activity is a small subset or facet of a larger, permitted activity—high-stakes unregulated bingo compared to all bingo games—or whether all but a small subset of a basic activity is prohibited”).

46. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 544 (8th Cir. 1996) (additionally providing that “[s]tates can influence class II gaming on Indian lands within their borders only if they prohibit those games for everyone under all circumstances”).

47. 54 F.3d 535, 538–39 (9th Cir. 1994) (rejecting California’s argument as directed at Class II gaming).

48. See Ysleta del Sur Pueblo, 142 S. Ct. at 1937.

49. 25 U.S.C. § 2710(b)(1)(A) (emphasis added); see Ysleta del Sur Pueblo, 142 S. Ct. at 1944 (explaining that the state may “ban[] as a matter of federal law on tribal lands only those gaming activities also banned in Texas”).

50. Ysleta del Sur Pueblo, 142 S. Ct. at 1944–45 (Roberts, C.J., dissenting).

51. Id.

52. Id. at 1948.

53. Id. at 1939.

54. Id.

55. Id.

56. Id. (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)).

57. Ysleta del Sur Pueblo, 142 S. Ct. at 1941.

58. Cabazon, 480 U.S. at 211 n.10. (responding to the dissent’s view that “a]ccepting the majority’s reasoning would require exemptions for cockfighting, tattoo parlors, nude dancing, houses of prostitution, and other illegal but profitable enterprises”).

59. See Nevada v. Hicks, 533 U.S. 353, 361–62 (2001) (providing that states may sometimes regulate on tribal lands when “state interests outside the reservation are implicated”) (emphasis added); Seminole Tribe of Florida v. Butterworth, 658 F.2d 310, 317 (5th Cir. 1981) (Roney, J., dissenting) (expressing that he would not have the same hesitations in allowing the bingo game at issue “if the effects of the bingo casino were shown to be confined to the reservation”).

60. Cabazon, 480 U.S. at 209.

61. See id. at 216 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334–35 (1983)).

62. See Dorsey, 88 F.3d at 546 (finding that “IGRA incorporated Cabazon’s distinction between prohibition and regulation, but rather than directing the federal courts to perform the balancing of interests . . . Congress conducted the balancing”).

63. 25 U.S.C. § 2701(4).

64. Press Release, U.S. Dep’t of the Interior, Interior Department Announces New Regulations to Increase Clarity and Transparency for Indian Gaming Compact Approval Processes (Feb. 16, 2024), https://www.doi.gov/pressreleases/interior-department-announces-new-regulations-increase-clarity-and-transparency (announcing updates to the Tribal-state compact approval process for Class III gaming).

65. Emergen Research, Online Gambling Market Size Worth USD 184.28 Billion in 2032, Yahoo! Finance (Dec. 4, 2023), https://finance.yahoo.com/news/online-gambling-market-size-worth-135300880.html (providing that “[t]he global online gambling market size was USD 63.53 Billion in 2022 ”); National Indian Gaming Comm’n, FY 2022 Gross Gaming Revenue Report (2022), https://www.nigc.gov/images/uploads/GGRFY22_071923_Final.pdf (finding 2022 revenues from tribal gaming of $40.9 billion); Racheal M. White Hawk, Comment, A New Formula for Tribal Internet Gaming, 56 Jurimetrics J. 47, 48, 69–70 (2015).

66. White Hawk, supra note 65, at 68–69.

67. See Cabazon, 480 U.S. at 209.