There are three classes of Indian gaming. Class 1 includes traditional games of chance used for ceremonies or celebrations.
Class 2 gaming includes bingo and pull-tabs. Class 2 gaming is not covered under gaming compacts between tribes and states, and the state has no regulatory authority over class 2 games.
Finally, there are class 3 games, the high-stakes slot machines and card games played in casinos, that are allowed by tribal/state compacts.
Tribes have been hosting bingo games for many years. About six months ago, the White Earth Nation began installing video bingo machines in its casino and in local businesses. There are now 97 of the class 2 machines in bars and resorts across the reservation.
The profits are split between the business, the tribe and the gaming company that provides the machines.
They look like a slot machine, with flashy graphics, but there's a small bingo card in one corner of the screen.
Barb Accobee, who oversees bingo operations for White Earth, says this may look and sound like a slot machine, but it's not.
"On the class 2 machine you're playing bingo. It's a bingo game, and you're actually playing with all the other machines that are online throughout the reservation. Somebody else has got to be playing in order for you to play this game," explains Accobee.
These machines comply with current National Indian Gaming Commission (NIGC) rules. But many states, Minnesota included, contend they are really slot machines in disguise.
NIGC Chairman Phil Hogen says that's one reason the rules need to be clarified.
"We want Indian gaming to continue to work, to be the economic miracle it has been for Indian Country in many places," says Hogen. "So, we don't want somebody to be asleep at the switch and have the whole system come crashing down if somebody thinks it's not being adequately policed."
We don't expect the feds are going to be more generous toward the tribes ... that's why we have to be so vigilant all the time.Tribal attorney Joe Plummer
The National Indian Gaming Regulatory Act says bingo can be played with "technological aids." But NIGC Chair Hogen says when the law was written in 1988, gaming technology was very different.
He says many of the class 2 bingo machines now in use are really electronic games of chance.
"If you just put your money in, push the button, and the game in effect plays itself, that goes too far," says Hogen.
The new rules would require the bingo machines to be played like traditional bingo. Instead of marking squares on a paper, players would touch squares on a video screen to mark their bingo card.
Under the new rule, it's likely the video bingo games at White Earth would be illegal, considered the same as the class 3 slot machines in casinos.
White Earth Tribal Attorney Joe Plummer says the new regulations will make an unclear law even more confusing.
"The danger I see is that these new regs are going to be interpreted, somehow, restrictively against the way that we now understand the differences in the machines," says Plummer.
White Earth will join tribes across the country in opposing the new regulations on how video bingo games are defined.
Plummer says there's also opposition to a second rule change that would increase regulation related to enforcement at the class 2 gaming sites, where pull-tabs and bingo are played.
Plummer says White Earth is not opposed to strong gaming regulation, but he says Indian gaming is more tightly regulated than charitable gaming regulated by the state Minnesota. He thinks the new regulations are designed to make bingo and pull-tab sites too expensive for tribes to operate.
"Because we don't expect the feds are going to be more generous toward the tribes. It's going to be cutting back. That's what it always is," says Plummer. "That's why we have to be so vigilant all the time."
White Earth has also been at odds with the state of Minnesota over the video bingo games. State officials have no control over regulation of the class 2 machines, but they argue the games are allowed only on Indian-owned land. The tribe and federal regulators say the games can be played anywhere within the reservation boundaries, even if the land is owned by non-tribal members.
John Willems, senior special agent with the Minnesota Department of Public Safety's Alcohol and Gambling Enforcement Division, says that's an expansion of gaming beyond what the state agreed to in the tribal gaming compact.
"I think the tribe is acting in good faith. The tribe is following the federal regulations. At this point it's our opinion that regulation is in error, given what we think is a fair reading of the enabling legislation," says Willems.
The issue for Minnesota officials comes down to a tiny word in a complex legal document. Enabling legislation passed by Congress uses the term "and" (see below), creating a more restrictive definition of Indian land. The National Indian Gaming Commission regulation uses the word "or" allowing for a broader legal definition.
In the Indian Gaming Regulatory Act passed by Congress in 1988, Indian lands is defined as:
(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual, subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.
The National Indian Gaming Commission regulations define Indian lands as:
(a) Land within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power and that is either --
(1) Held in trust by the United States for the benefit of any Indian tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction by the United States against alienation.
That conjunction makes a big difference on a reservation like White Earth, where much of the land is owned by non-tribal members.
John Willems says it allows class 2 gambling machines in businesses owned by non-tribal members. He says bar owners outside the reservation boundaries are not allowed to have the same level of gambling in their establishments.
White Earth officials say they will fight any effort by the state to regulate or limit gaming on the reservation.
"The state is not going to try to enhance the tribe's exercise of its sovereignty in this regard. It's going to try to limit it, because that's the way the state operates," says tribal attorney Joe Plummer.
NIGC officials say they have no plans to change the definition of Indian lands in their regulations. Minnesota is considering the possibility of a legal challenge of the Indian Gaming Commission's interpretation of the federal law.