GPWA Times Magazine - Issue30 - October 2014

Martin Owens, a noted gaming attorney working on behalf of the Santa Ysabel, be- lieves the answer is yes. “Basically what you have is a bunch of issues that haven’t been adequately ad- dressed or haven’t been addressed at all,” Owens said. “First of course is the interplay between tribal authority and state authority and federal authority regarding gambling,” Owens said. “It’s well enough for land- based gambling. But when you’re talking about Internet gambling, it’s a whole new setup. And quite honestly, the lawmakers haven’t kept pace with this technology. “There are 16 states and D.C. that don’t even define what gambling is!” Owens added. “Only nine states even mention the Internet in connection with gambling at all. And most haven’t updated their gambling laws in decades. “So along comes the Internet, and it’s opened up the jurisdiction question,” Ow- ens said. “If there’s ever been an elephant in the room, it’s the jurisdiction question. Where does the bet take place and why? “This is an issue that authorities have been playing to their advantage. When England started to take Internet bets, of course it was at the server. But Costa Rica has a law that says it takes place any- where but Costa Rica, because that’s their legal advantage. “In terms of a neutral standard for this, I went to contract law,” Owens said. “Ac- cording to contract law — and according to common sense, too — where a contract is silent as to the place, the contract is deemed to take place where it is execu- tory. That is where it can actually be ac- complished, where it can be delivered, if you will. “Now there’s only one place where that happens regarding Internet gambling – where the odds, the offer to bet, the amount of money to be bet, checking the account to see if the money is there and taking input on the resolution of the event, red 20 on roulette, the horse cross- ing the line, etc., are brought together,” Owens said. “The only place all of those elements are brought together is on the server of the Internet gambling business.” Because the betting happens on the server — on Native American land — Owens says the Santa Ysabel are in full compli- ance with California law. “In 1998, the (federal) Indian Gaming Regulatory Act divided gambling into three categories for federally recognized tribes,” Owens explained. “Class 1 is the traditional tribal competi- tion that is part of the tribe’s history and culture,” Owens said. "Those are strictly under the tribe’s control. Class 2 is bingo and non-banked games like poker (but not keno). Class 3 is pretty much every- thing else — slots, table games, baccarat, blackjack, roulette, etc. Everything but sports betting. “If an Indian tribe, which is (federally rec- ognized) and has land of its own wants to offer Class 2 gaming, they don’t have to consult state authority at all,” Owens said. “They can go directly to the feds. “There are some administrative require- ments,” Owens added. “They have to do a proper job administering it. But once it’s arranged, they can offer Class 2 gaming. “The state has to have a compact with the tribe to offer Class 3 gaming,” Owens said. Santa Ysabel and the state of California signed a Class 3 gaming compact in 2005. So if it’s legal to offer online poker now, why are some Native American tribes in extensive negotiations with the state over creating a regulatory framework for on- line poker? “It comes down to a five-point legal analysis,” Owens said with a chuckle. “M-O-N-E-Y. In July, the Iipay Nation of Santa Ysabel announced it was launching PrivateTable.com, an online poker room that would take real- money play from California residents, and shockwaves rolled through the online gaming industry. 19 “Use it or lose it.”