Newsletter of the ABA Section of Business Law Committee on Gaming Law
  Gaming Law Gazette
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Editors Comments

Message from the Chair

Featured Articles
  Poker as a Game of Skill: Recent Cases
  Impact of the Carcieri Decision
  Third-Party Sexual Harassment in Casinos: How to Protect Against Liability
  Expanding Financing Opportunities in Indian Country: IRS Issues Guidance which Clarifies the "Essential Governmental Functions" Test for Issuing Tribal Bonds

Gaming Law Committee Homepage

Editorial Board:

Gabriel S. Galanda
    Committee Chair
    Williams, Kastner & Gibbs PLLC

William M. Gantz
    Co-Chair,
    Subcommittee on Publications
    Sonnenschein Nath & Rosenthal LLP

Robert W. Stocker II
    Co-Chair,
    Subcommittee on Publications
    Dickinson Wright PLLC

  Editors Comments
 
Editor, Robert W. Stocker By Robert W. Stocker II
Newsletter Editor

The spring issue of the Gaming Law Gazette has four highly relevant articles for review by all gaming lawyers. Chuck Humphrey has done an update on the issue of poker as a game of skill, with an analysis of several recent cases which have been issued by state courts declaring that poker is indeed a game of skill and not a game of chance. Heidi McNeil Staudenmaier and Celene Sheppard have written an update on the impact of the recent United States Supreme Court decision Carcieri v. Salazar on tribal gaming and tribal economic development. Shaun Darby has written an extensive article on the issue of third party sexual harassment in casinos and how to protect against such claims. Shaun's article also includes a discussion of the applicability of federal anti-discrimination laws in tribal casinos. Finally, as a result of recent developments at the Congressional and Internal Revenue Service level, there are now expanded financing opportunities in Indian country relating to tribal bonds. This issue centers on the definition of what constitutes an "essential tribal function." An article by Peter Kulick and me discusses this extremely relevant issue for today's tribal casino industry.


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  Message from the Chair
 
Committee Chair, Gabriel S. Galanda By Gabriel S. Galanda
Chair, Committee on Gaming Law

Happy Spring, everyone.

I'm pleased to report on the Gaming Law Committee's happenings. Most notably, we co-sponsored with the Cyberspace Committee, an excellent program at the Business Law Section's Spring Meeting in Vancouver, British Columbia on April 17th - "Emerging Legal Issues in Online Gaming."

Our speakers were dynamic and informative, and the program was well attended. For those of you who couldn't make it to Vancouver, here are the materials:

"Online Gaming: A Comparison of U.S. and Canadian Law Governing Online Gaming," by Danielle Bush of ChitizPathak in Toronto.

"Barriers to Financing Internet Gambling Under UIEGA," by Professor Edward A. Morse of Creighton University School of Law.

"The Long Arm of the Law: Can the UIEGA Be Applied to Canadian Gaming Operations," and "Ancillary Enforcement of Online Gambling Laws" as well a related Overview of Authorities, by Lawrence G. Walters of Weston, Garrou, Walters & Mooney in Florida.

Special thanks are in order to John D. Gregory, General Counsel to the Policy Division of the Ministry of the Attorney General in Ontario, who chaired and organized the excellent program.

Also, the Committee is considering streamlining our Subcommittees to achieve greater synergy within our ranks. Under a proposal developed at our business meeting at the Gaming Law Minefield on February 5th, we would overhaul our subcommittee structure as follows:
  • Commercial Gaming (including land-based, Internet, mobile and international gaming)
  • Indian Gaming
  • Publications
This proposal would go into effect as of the ABA Annual Meeting in Chicago this July/August. Please let me know what you think of this concept before July.

Finally, you may be interested to know that at the Spring Meeting, Section leadership approved a new Governmental Affairs Committee, which may have relevance to your gaming practice.

As always, I welcome your ideas about how we can make the Committee more relevant to your and others' gaming law practice.


Gabriel S. Galanda, a descendant of the Nomlaki and Concow Tribes and enrolled member of the Round Valley Indian Tribes, is a partner in Seattle with Williams Kastner's Tribal Practice Group. Gabe's practice focuses on complex, multi-party Indian law and gaming litigation, representing Indian tribes. He also assists tribal governments with economic development and diversification initiatives, and works with gaming vendors and other corporate entities doing business in Indian Country. Gabe is the current Chair of the Gaming Law Committee, and a member of the International Masters of Gaming Law.

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  Featured Articles
   
Poker as a Game of Skill: Recent Cases
Chuck Humphrey
Generally, each of the elements of prize, chance and consideration must be present for an activity to be gambling. Morrow v. State, 511 P.2d 127 (Alaska, 1973). In traditional poker games there is no dispute that prize and consideration are present. Poker players have long believed that poker does not have the element of chance. They contend that it is a game of skill.


More...



Impact of the Carcieri Decision
Heidi McNeil Staudenmaier and Celene Sheppard
On February 24, 2009, the United States Supreme Court issued a landmark ruling reversing the Department of Interior's prior interpretation of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465, and limiting the Secretary of Interior's ability to take land into trust on behalf of Tribes. Carcieri v. Salazar, 129 S.Ct. 1058 (2009). During the first wave of legal and tribal reaction to Carcieri, most analysis focused on how the limitation of the IRA land-into-trust mechanism would impact gaming and other economic development activities on newly-acquired Indian lands. However, during the recent hearing in front of the House Natural Resources Committee to consider the need for legislation to "fix" Carcieri, Indian law experts also discussed the broader impacts of the decision on tribal governance, criminal jurisdiction, and basic federal services. Although it is impossible to gauge how this decision will ultimately play out in Indian Country, these new discussions suggest that it will have wide-ranging impacts on both Tribes and non-Indian business partners.


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Third-Party Sexual Harassment in Casinos: How to Protect Against Liability
Shaun Darby
With the rapid expansion of the U.S. gaming industry in recent years, casinos have become major national employers. A large proportion of casino workers, such as dealers and cocktail waitresses, are employed "front-of-house" and have direct contact with the gaming public. In the casino atmosphere, where alcohol and adult-orientated entertainment pervades, such employees are vulnerable to abuse by customers, particularly female staff members who may become the target of sexual harassment. Under some circumstances, casinos themselves can be held liable for the harassing actions of their customers. This article will discuss the potential problem of third-party sexual harassment in the casino industry. It will focus on how employers can be held liable for sexual harassment of their staff by customers, and what actions they can take in order to limit their liability.


More...



Expanding Financing Opportunities in Indian Country: IRS Issues Guidance which Clarifies the "Essential Governmental Functions" Test for Issuing Tribal Bonds
Robert W. Stocker II and Peter J. Kulick
Over the past several years, tribal bonds issued on a tax-exempt basis have received considerable scrutiny from the IRS. The scrutiny culminated in the now-famous decision by the IRS to deny tax-status to $22.5 million in bonds issued by the California based Agua Caliente Band of Cahuilla Indians to finance an upscale golf course. The IRS attacked the tax-exempt status of tribal bonds on the basis that the bonds were not issued "essential governmental function", which in turn has lead to a great deal of uncertainty with respect to the types of activities that will meet the essential governmental functions test.


More...



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