Kansas Attorney General Opinion 1992-046

ROBERT T. STEPHAN
ATTORNEY GENERAL
April 6, 1992
ATTORNEY GENERAL OPINION NO. 92- 46
The Honorable Kathleen Sebelius
State Representative, Fifty-Sixth District
State Capitol, Room 280-W
Topeka, Kansas 66612
The Honorable Edward F. Reilly, Jr.
State Senator, Third District
State Capitol, Room 225-E
Topeka, Kansas 66612
Re: Constitution of the State of Kansas--
Miscellaneous--Lotteries; Indian Gaming Regulatory
Act; Video Gaming
Synopsis: Video lottery games fall within the definition of
class III gaming under the Indian gaming regulatory
act and the national Indian gaming commission's
proposed rules. Cited herein: 25 U.S.C.S. § 2703;
56 Fed. Reg. 56,278 (1991) (to be codified at 25
C.F.R. § 502.1.
Dear Representative Sebelius and Senator Reilly:
You request our opinion regarding the Indian gaming regulatory
act (IGRA). Specifically, you inquire whether video lottery
games would fit within the act's definition of class II
gaming, therefore permitting Indian tribes to operate such
games without having to enter into a tribal-state gaming
compact.
In defining class II gaming the IGRA provides in part:

"(7)(A) The term 'class II gaming' means--
"(i) the game of chance commonly
known as bingo (whether or not
electronic, computer, or
other technological aids are used
in connection therewith)--
"(B) The term 'class II gaming' does not
include--
"(ii) electronic or
electromechanical facsimiles of
any game of chance or slot
machines of any kind." 25 U.S.C.S
§ 2703.
The national Indian gaming commission has proposed rules which
define "electronic, computer or other technological aid" as:
"a device such as a computer, telephone,
cable, television, satellite or bingo
blower and which when used:
"(1) Is not a game of chance but merely
assists a player or the playing of a game;
and
"(2) Is readily distinguishable from the
playing of a game of chance on an
electronic facsimile; and
"(3) Is operated according to applicable
Federal communications law." 56 Fed.
Reg. 56281 (1991) [to be codified at 25
C.F.R. § 502.1(h)].
"Electronic or electromechanical facsimile" is defined as:
"any gambling device as defined in 15
U.S.C. 1171(a) (2) or (3) (except any
gambling devices described in paragraph
(h) of this section) and any games or

devices such as video bingo." Id., at §
502.1(i).
The commission explains its rationale for defining these terms
in this way:
"An elementary principle of statutory
construction is that an agency must give
effect to all the terms used by Congress.
Colautti v. Franklin, 439 U.S. 379
(1979). Therefore, in interpreting
statutes, one cannot ignore distinctions
intended by the use of distinctly
different terms. In using the two terms
("electronic or electromechanical
facsimiles of any game of chance" and
"electronic, computer, or other
technologic aids") in question, Congress
intended the Commission to give effect to
both. This the Commission did in
proposing definitions for those terms.
. . .
"In proposing definitions for "electronic,
computer or technologic aid" and
"electronic or electromechanical
facsimile," the Commission relied heavily
of the Senate Report accompanying S. 555.
. . .
"Electronic or Electromechanical
Facsimile.
"The significance of this definition is
that it defines technology prohibited
under the definition of class II gaming.
Where technology goes beyond merely
assisting in the playing of a game and
becomes the game itself, the Commission
proposes that such technology be
classified as class III gaming and
therefore under the jurisdiction of a
tribal-state compact. To that end, the
Commission proposes including any gambling
device as defined in 15 U.S.C. 1171(a) (2)

or (3) ("The Johnson Act") except devices
which are not games themselves and meet
the criteria for technologic aid (e.g.,
bingo blowers).
"In the Highlights portion of the Senate
Report, under the heading Grace period,
the Report states, '[aJll video machines
and other electronic or electromechanical
facsimiles of games of change (sic) may
continue to operate for 1 year after the
date of enactment of the bill to give
tribes the opportunity to negotiate
tribal-state compacts to cover the
operation of such games.' In the view of
the General Counsel, such language, along
with the grace period language in 25
U.S.C. 2703(7)(D), provide clear and
unambiguous guidance concerning
Congressional intent with respect to this
term. Congress clearly intended to
classify as class III,video machines
and other facsimile games. The grace
period language is further explained and
examples given in the Senate Report under
the section titled Explanation of Major
Provisions. There, the Report lists video
bingo. Therefore, in the view of the
General Counsel video bingo is a class III
game." Id., at 56279. (Emphasis added).
These definitions and the commission's explanation therefore
clearly establish video lottery games as class III, subject to
tribal-state gaming compacts. We note that the commission's
rules have not yet been formally adopted and are therefore
subject to change, but had not been amended from the
above-quoted version as of March 30, 1992.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Julene L. Miller
Deputy Attorney General
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