On Friday, U.S. District Judge Anthony J. Battaglia granted the state’s Temporary Restraining Order (TRO) against the Iipay Nation of Santa Ysabel tribe and their online bingo site, DesertRoseBingo.com. The TRO will put a halt to the tribe’s online gaming offerings until the matter is settled in court.
The original complaint was filed on November 18 (Desert Rose launched on November 3) by California Attorney General Kamala Harris on behalf of the state of California.
The complaint alleged the launch of DesertRoseBingo.com was a breach of compact, and violated the Unlawful Internet Gambling Enforcement Act (UIGEA) which prohibits the processing of illegal online gambling transactions.
The U.S. Department of Justice later piled on as they filed their own UIGEA complaint against Santa Ysabel, which seems to indicate that the tribe may have processed payments for Desert Rose.
In his ruling Judge Battaglia concluded:
Having fully and carefully reviewed the arguments of the parties and the materials presented, the Court GRANTS the State’s motion for a temporary restraining order and order to show cause (Doc. No. 3).
Pursuant to these findings, it is ordered that a TRO is issued without requiring the State to post security, and that Defendants, and all of their officers, agents, servants, employees, and attorneys, and all persons acting under any Defendant’ direction and control, are hereby enjoined and restrained from:
Offering or conducting any gambling, or game of chance, played for money, or anything of value, over the internet to any resident of, or visitor to, California, who is not physically located on the Tribe’s Indian lands.
Accepting any credit, or the proceeds of credit, extended to or on behalf of any resident of, or visitor to, California, who bets or wagers over the internet in connection with any gambling, or game of chance, offered, or conducted, by Defendants. This includes credit extended through the use of a credit card.
Accepting any electronic fund transfer, or funds transmitted by or through a money transmitting business, or the proceeds of an electronic fund transfer or money transmitting service, from or on behalf of any resident of, or visitor to, California, who bets or wagers over the internet in connection with any gambling, or game of chance, offered, or conducted, by defendants.
Accepting any check, draft, or similar instrument which is drawn by or on behalf of any resident of, or visitor to, California, who bets or wagers over the Internet in connection with any gambling, or game of chance, offered, or conducted, by Defendants, and which is drawn on or payable at or through any financial institution.
Despite the ruling, as of Sunday evening the Desert Rose Bingo site was still up and running, and appeared to still be accepting deposits and offering real-money online bingo games – I was unable to confirm this as I do not live in California, but the website appears unchanged.
Santa Ysabel has not responded to Friday’s ruling at this juncture either.
It’s An Issue of Class
The legality of Santa Ysabel’s online bingo site comes down to how online bingo is classified, and in particular if the online version is merely a technical aid or a facsimile of the game itself .
Bingo conducted on tribal lands is considered Class II gaming under the Indian Gaming Regulatory Act (IGRA) that dates back to 1988. While bingo’s designation as a Class II game is settled, online bingo’s is not. Santa Ysabel claims it falls under Class II gaming and launched Desert Rose Bingo. The state, and others, disagreed and filed the TRO against the tribe.
As gaming attorney Ian J. Imrich stated, the ruling contradicts the tribe’s claims that online bingo falls under Class II gaming in California because “at no time is live bingo game action performed by the user.” Therefore, online bingo falls under the “facsimile” designation in the 1988 IGRA gaming laws, which places it into the Class III and not Class II category.
— Ian J. Imrich, Esq. (@ijiLaw) December 13, 2014
What About Online Poker?
Interestingly, the judge’s ruling leaves the door open for online poker to be contested as Class II gaming, as Battaglia wrote [Bold Mine]:
“In light of all of the above, the Court is convinced that the internet gaming provided here is Class III. This was bolstered by the presentation of the game at the hearing, at which it became apparent that, as the State represented, the player’s participation is limited to electing the amount to bet and the number of cards to play.”
Unlike Desert Rose’s bingo offerings, an online poker site requires a tremendous amount of player involvement, although the rudimentary aspects of the game, such as cards and chips are done electronically.
It seems to me, as a layman, that the door was left open for someone (probably not Santa Ysabel) to contest online poker as Class II gaming – whether they would win that argument is anybody’s guess. Whether the judge did this intentionally to focus solely on the bingo site and not make this a broader argument at this time is unclear.
Although it hasn’t launched a real-money online poker site, Santa Ysabel is making the same claim regarding online poker. Friday’s ruling doesn’t address poker, but as Imrich later tweeted out, Santa Ysabel is unlikely to litigate that issue at this time.
Santa Ysabel originally announced they would be launching a real-money online poker room (PrivateTable.com) but it was DesertRoseBingo.com that the tribe went live with in November; although they still contend they will be launching PrivateTable.com.
Following Friday’s ruling, the idea that Santa Ysabel would flip the switch at PrivateTable.com (which is currently live for play-money games) and offer real-money games seems quite unlikely.