Historical Horse Racing Terminals vs Tribal Gaming Machines in respects to The Constitution of The State Of Idaho.
On Wednesday, February 11, 2015 the Idaho Senate State Affairs Committee voted in favor of sending S-1011, The Bill to Repeal the 2013 Historical Horse Racing Bill, to the floor to be voted on for repeal. Initially those of us opposing S-1011 was told we had to prove it was pari-mutuel. Expert testimony was provided on behalf of the pari-mutuel nature of the Historical Horse Racing Terminals. Following the presentation of testimony there should have been no doubt as to the validity of Historical Horse Racing Terminals (HHRT’s) being pari-mutuel by nature. The decision of the State Affairs Committee to send the bill to the Senate Floor was based off the feeling that (HHRT’s) were in violation of the Constitution Of The State Of Idaho Article III Section 20 Paragraph (2). Senator Werk made comment to the affect that he could not get over the feeling that they were an electronic simulation of a slot machine.
That then leads to the point of what is or is not an electronic simulation of a slot machine?
Why would Tribal Gaming Machines be explicitly stated in Title 67 Chapter 429B Paragraph(2) Notwithstanding any other provision of Idaho law, a tribal video gaming machine as described in subsection (1) above is not a slot machine or an electronic or electromechanical imitation or simulation of any form of casino gambling.
To answer we need to look into the Indian Gaming Regulatory Act of 1988. 25 US Code 2703 – Definitions Paragraph (7) Section (B) The term “class II gaming” does not include—(i) any banking card games, including baccarat, chemin de fer, or blackjack (21), or(ii) electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.
25 US Code 2710 – Tribal Gaming Ordinances Section (b) Regulation of class II gaming activity; net revenue allocation; audits; contracts
(1) An Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if—
(A) such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law), and
(B) the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman.
A separate license issued by the Indian tribe shall be required for each place, facility, or location on Indian lands at which class II gaming is conducted.
Since Tribal Gaming Machines have been defined by Idaho Code 67-429B to not be electronic simulation of a slot machine or of casino gaming, that then leads us to the fact that maybe we need to define what a simulation of a slot machine or casino gaming is. Since we know that in the eyes of a non-gaming expert, it could easily be mistaken that it is in fact a simulation of a slot machine or of casino gaming, is it not also likely that to the non-gaming expert eyes that a Historical Horse Racing Terminal also could be mistaken for a simulation of a slot machine or casino gaming?
What then would be a simulation?
In a letter dated December 21, 2004 from Penny J. Coleman to Mr. Kent R. Hagg she was responding to a classification opinion on DigiDeal Digital Card System, Trips or Better Poker. She was evaluating an electronic poker game in which a human dealer pushed electronic buttons to simulate the shuffling of cards and dealt players an electronic hand of cards which appeared on an electronic screen in front of said player. In reviewing this letter it appears that in order for a game to be deemed an electronic simulation it must be a facsimile of a game, the following is taken from Ms. Coleman’s letter
“By way of analogy, Sycuan Band of Mission Indians a. Roache, 54 F.3d 535, 542-543 (91h Cir. 1994) reviewed a wholly-electronic pull tab game, one in which the player bought and played pull tabs generated by computer and displayed on a video screen. The Ninth Circuit concluded that hs was an exact, self-contained copy of paper pull tabs and thus an electronic facsimile. Accmd, Cabam Band ofMission Indians 9. National Indian Gamiw~ Cmmissiim, 304 F.3d. 633,636 (D.C. Cir. 1994). Pull tab machines, however, that merely dispense, and display the results of, paper pull tabs are of a different sort.”
Therefore that leads to one of the following conclusion:
1) Both Tribal Gaming Machines and Historical Horse Racing Terminals are NOT electronic or electromechanical imitation or simulation of any form of gambling, hence neither would be in violation of The Constitution Of The State Of Idaho and we should absolutely vote no to S-1011 to repeal the 2013 Historical Horse Racing Legislation and consider adding an amendment to the Idaho State Statutes declaring Historical Horse Racing Terminals are not an electronic or electromechanical imitation or simulation of any form of casino gambling OR
2) Both Tribal Gaming Machines and Historical Horse Racing Terminal ARE electronic or electromechanical imitation or simulation of a form of gambling and are both in violation of The Constitution Of The State Of Idaho and we need to present a bill to repeal Title 67 Chapter 429B, which would then put Tribal Gaming Machines in violation not only of the Constitution Of The State Of Idaho but also in violation of The Indian Gaming Regulatory Act of 1988 by operating gaming in a state in which that form of gaming is not legal.
If you would like to see the credentials of Penny J. Coleman it can be found at http://andersonindianlaw.com/attorney_penny.cfm