Penobscot Nation bingo machines illegal, says AG

Posted Oct. 19, 2010, at 8:42 p.m.
Last modified Oct. 27, 2010, at 2:13 p.m.

AUGUSTA, Maine — A recent opinion by Maine Attorney General Janet Mills that a new type of electronic bingo machine is illegal has put the state at odds with the Penobscot Nation.

In a written opinion dated Sept. 23, Mills concluded that the machines violate state law because “the mode of operation takes the system out of the scope of permitted machines … because the system does not merely dispense tickets but also determines the outcome of the game. The existence of a ticket or pull-tab is nearly rendered irrelevant by the computer’s determination of the element of chance.”

Penobscot Chief Kirk Francis did not return calls for comment, but Tribal Rep. Wayne Mitchell said he believes Mills’ opinion relies on federal statutes that don’t apply in Maine.

Specifically, Mills’ opinion makes reference to the Indian Regulatory Gaming Act, a federal law passed in the late 1980s that allowed tribes to own and operate casinos. Maine, however, has been exempt from that law because of a provision built into the Maine Indian Claims Settlement Act of 1980.

“I’m concerned about the duplicity,” Mitchell said.

The Penobscots have been working for more than two years to add the machines to their entertainment offerings at the tribe’s high-stakes bingo parlor. Essentially, patrons put money into the machine and press a start button. The machine then goes to work much like a slot machine and eventually prints a ticket telling the patron whether they have won or lost the particular game.

Although the tribe bought a limited number of trial machines at this point, Mitchell estimated that more than $200,000 has been spent on research and development of machines that cannot be used.

Earlier this year, the tribal representative helped craft legislation that was supposed to pave the way for what are known as Class II pull-tab bingo machines. The law, LD 1731, An Act to Amend the Bingo Laws, was passed by the Legislature and signed by Gov. John Baldacci in March. It authorizes the use of a “lucky seven” dispenser by a licensed Indian tribe in connection with the sale of lucky seven tickets or raffle tickets.

Several months after that legislation passed, however, the machines remain dormant on Indian Island because the state has not issued licenses for them. Although the attorney general’s recent opinion is not binding, Lt. David Bowler of the Maine State Police gaming division said it reaffirmed his own views.

“They will not be licensed,” Bowler said this week. “The law is clear that the element of chance must be in the ticket.”

In August, the Penobscots provided Mills and several other state officials with a demonstration of the machines. Most expected that the machines proposed by the Penobscots would be similar to those that recently were installed by the Passamaquoddy Tribe at Indian Township. Bowler, however, said the difference between the machines that are in use by the Passamaquoddys is that those machines simply dispense an already printed ticket.

“The machine demonstrated to us on August 4 dispenses a ticket, or piece of paper, that is printed with a bar code and other information at the time the game is played,” Mills wrote. “The game — and hence the element of chance — is controlled by a computer which dictates the number that will be printed on the paper at the time the game is played.”

Mitchell disagreed and said he has even provided the state with a third-party analysis of the machines that concluded they do not violate laws.

“It’s the same exact system we have now. The odds are the same,” he said. “It seems when tribes try to modernize, we don’t get the same support.”

The machines being sought by the Penobscots could not be changed to comply with state law, according to Mitchell. The tribe would have to buy different machines.

For years, the Penobscots have been trying to retain customers that they have worked hard to attract, some of whom are abandoning Indian Island for Hollywood Slots in Bangor. This summer, Chief Francis alleged that the state has been pressured by lobbyists representing Hollywood Slots and its parent company, Penn National Gaming Inc., to deny the machines. The state and Hollywood Slots have dismissed those allegations.

State officials have countered that the Penobscots did not involve the licensing division until earlier this year.

“They are coming out with new devices and machines all the time, so it’s something we have to keep an eye on,” Bowler said.

From his perspective, Bowler said the Penobscots can either change the machines or try again to change the laws when the Legislature convenes. If the unlicensed machines were used, state police could come in and seize them, something that has happened before on Indian Island.

Mitchell said he plans to continue educating Mills and others but did not rule out the possibility of new legislation or even legal action.

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