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By Robert W. Stocker II
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
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
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
"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:
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
- Commercial Gaming (including land-based, Internet, mobile and
- Indian Gaming
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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Poker as a Game of Skill: Recent Cases
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.
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.
Third-Party Sexual Harassment in Casinos: How to Protect Against Liability
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.
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.
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