Could a Maine federally recognized tribe license the Incentovation Electronic Pull-Tab System (an electronic terminal that prints win/loss tickets at game time) under the state's amended sealed-ticket statute?

Subject

Whether the Incentovation Electronic Pull-Tab System, an electronic terminal that prints win/loss tickets at the moment of play, qualifies under the revised definition of "Sealed tickets" in 17 M.R.S.A. § 314-A(1-A) (as amended by P.L. 2009, c. 505), so that the State Police could license the Penobscot Nation to operate it in conjunction with high-stakes beano games.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

In August 2010, Col. Patrick Fleming of the Maine State Police and AG Janet Mills attended a demonstration of the Incentovation Electronic Pull-Tab System on the Penobscot Nation's Indian Island reservation. The Penobscot Nation wanted to operate the machine in conjunction with high-stakes beano games. The question for the AG: did the system qualify under the 2009-amended sealed-ticket statute?

The AG concluded it did not, and the State Police could not license it under § 314-A.

The statute lets the State Police license a federally recognized tribe to sell "lucky seven or other similar sealed tickets." A licensed tribe may operate a "dispenser," defined to include "a mechanical or electrical device or machine that, upon the insertion of money..., dispenses printed lucky seven or other similar tickets." The key statutory clause: "The element of chance must be provided by the ticket itself, not by the dispenser."

The Incentovation machine, as demonstrated, dispenses a paper ticket printed with a bar code at the time of play. The ticket tells the player whether they won or lost. But the win/loss outcome is determined by an internal computer at the moment of play, not by drawing a preprinted card from a finite deal. So the element of chance came from the dispenser, not the ticket. The AG read § 314-A(1-A) as requiring that the ticket be effectively preprinted, supported by the legislative history (the original bill and committee amendment consistently used the word "printed") and the structural fact that the law authorizes the State Police to license the sale of tickets, not the operation of a gaming machine.

The AG drew on federal classification cases. Seneca-Cayuga and Diamond Game Enterprises (both classifying machines that dispense preprinted cards as Class II "technological aids" rather than Class III gaming machines) supported the distinction between a dispenser of preprinted tickets and a machine that itself decides the outcome. Santee Sioux similarly classified a Lucky Tab II machine as Class II because it did not generate random patterns. By contrast, the Cabazon Band Mission Indians case treated a machine that, like Incentovation, computed wins and losses internally, as a Class III "facsimile" prohibited absent a tribal-state compact. The AG concluded Incentovation was on the Cabazon Band side of the line, not the Seneca-Cayuga / Diamond Game side.

Common questions

Q: What's the difference between a "dispenser of sealed tickets" and a "slot machine"?

Statutorily, a dispenser sells preprinted, sealed tickets where the win/loss outcome is fixed at the time the deal is printed. The dispenser can read the ticket but cannot determine the outcome. A slot machine generates win/loss outcomes internally, often using a random number generator. Many state and federal classification cases turn on whether the machine merely dispenses or actually decides.

Q: Why did Maine require that the element of chance come from the ticket?

The AG read the legislative history of P.L. 2009, c. 505, as showing the Legislature's intent to expand the definition of sealed tickets to include electronic dispensers, but to keep the chance element in the preprinted ticket itself. The committee amendment that became law clarified, "the ticket... must be preprinted." Allowing a machine to determine outcomes would have effectively legalized slot-style gaming under a sealed-ticket label.

Q: Could the Penobscot Nation license a slot-machine-style game by some other route?

The opinion does not answer that. Under federal law, Class III gaming requires a tribal-state compact. Maine had taken a restrictive posture toward tribal Class III gaming. The opinion was limited to whether Incentovation fit within § 314-A; it did not opine on alternative routes.

Q: Is the Incentovation machine illegal everywhere, or just in Maine?

The opinion only addresses Maine law. Other states have their own definitions. The federal cases the AG cited reach different classification results for different machines, depending on whether the chance element is in a preprinted ticket or generated by the machine.

Background and statutory framework

Maine's high-stakes beano statute is 17 M.R.S.A. § 314-A. Subsection (1) authorizes the State Police to license federally recognized tribes; subsection (1-A) defines "Sealed tickets" to include "lucky seven" and similar games and authorizes a licensed tribe to operate a "dispenser." The 2009 amendment, P.L. 2009, c. 505, expanded the definition of dispenser to include electronic devices but maintained the requirement that the element of chance must come from the ticket itself.

Federal Indian gaming law uses three classes. Class II includes bingo and pull-tabs and may be operated by tribes without a tribal-state compact. Class III (slots, electronic facsimiles) requires a compact. Federal courts have developed an extensive line on whether particular electronic dispensers are Class II "technological aids" or Class III machines, and the AG's 2010 opinion folds in the same machine-classification logic for state-law purposes.

Citations

• 17 M.R.S.A. §§ 314-A, 314-A(1-A), 324-A
• P.L. 2009, c. 505 (sealed-tickets definition expansion)
• Seneca-Cayuga Tribe of Oklahoma v. NIGC, 327 F.3d 1019 (10th Cir. 2003)
• Diamond Game Enterprises, Inc. v. Reno, 230 F.3d 365 (D.C. Cir. 2000)
• United States v. Santee Sioux Tribe of Nebraska, 324 F.3d 607 (8th Cir. 2003)
• Cabazon Band Mission Indians v. NIGC, 14 F.3d 633 (D.C. Cir. 1994)
• Chesapeake Amusements, Inc. v. Riddle, 766 A.2d 1036 (Md. Ct. App. 2001)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2010/ag_20100923.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
 2010-01
V,•L~•~C'~LOFFICES:
HARLOW ST., 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
FAX: (207) 941-3075
]ANETT. MILLS
415 CONGRESS ST, STE. 301
ATTORNEY GENERAL
PORTLAND, MAINE04101
TEL: (207) 822-0260
FAX: (207) 822-0259

                                           STATE OF MAINE                            14 ACCESS HIGHWAY, STE. I

TEL: (207) 626-8800 OFFICE OF THE ATTORNEY GENERAL CARIBOU, MAINE,04736 .
TTY: 1 -800-577 -6690 TEL: (207) 496-3792
6 STATE HOUSE STATION
FAX: (207) 496-3291
AUGUSTA, MAINE 04333-0006

                                                       September 23, 2010
Via e-mail/regular mail


Col. Patrick Fleming
Maine State Police
42 State House Station
45 Commerce Drive
Augusta, Maine 04333-0042

Re:     Incentovation Electronic Pull-Tab System

Dear Col. Fleming:

       On Wednesday, August 4, 2010, you and I attended a demonstration of the Incentovation

Electronic Pull-Tab System at the High Stakes Beano Hall on the Penobscot Nation's Indian.
Island reservation. Mr. Nash of Incentovation and Mr. Farley of Eclipse Compliance Testing
provided helpful information on the operation of the machine which the tribe wishes to use in
conjunction with their high stakes beano games. We have also been provided with a written
analysis of the machine by Eclipse Compliance Testing dated May 21, 2010. In addition, on June
11, 2010, Mr. Ende and I met with Representative Mitchell and Chief Francis, who described the
machine and their reasons for wanting to operate this machine on weekends when high stakes
beano is played.

       We are told that this machine offers a higher degree of secmity and less of an opportunity

for manipulation than other similar games. Like traditional pull-tab games, there is a finite deal
and a set number of chances in playing this machine. The issue, however, is not whether this is a
"better" machine but rather whether it qualifies under the revised definition of "Sealed tickets" in
17 M.R.S. § 314-A (1-A), as amended by P.L. 2009, ch. 505, so that it would be legal to operate
in conjunction with high stakes beano games conducted by the tribes, 17 M.R.S. § 324-A

        The statute authorizes the Chief of the State Police to issue to a federally recognized tribe

"licenses to sell lucky seven or other similar sealed tickets in accordance with section 324-A." A
tribe licensed to sell these tickets may operate a "dispenser" to sell the tickets which may include
a "mechanical or electrical device or machine that, upon the insertion of money ... , dispenses
printed lucky seven or other similar tickets. The element of chance must be provided by the ticket
itse{f, not by the dispenser." (Emphasis added.)
• i

  Col. Patrick Fleming
  September 23, 2010
  Pa e 2

          The machine demonstrated to us on August 4th dispenses a ticket, or piece of paper, that
  is printed with a bar code and other information at the time the game is played. The piece of
  paper notifies the player that the player has won a sum of money or that the player is a "non
  winner." The ticket issues from an attached printer which contains a blank roll of paper. 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 i's played.

           A number of court decisions in other jurisdictions deal with electronic pull tab machines,
  specifically whether a particular machine is a Class II (bingo, pull-tab, etc.) or Class III (all other
  gaming activity) machine under federal law. See, e.g., Seneca-Cayuga Tribe of Oklahoma v.
  Nat'!. Indian Gaming Comm 'n., 327 F.3d 1019 (10 th Cir. 2003) ("Magical Irish Instant Bingo
  Dispenser System," which dispenses preprinted cards, is not prohibited as a Class III machine
  but, rather, is a technological aid to dispensing pull-tabs); Diamond Game Enterprises, Inc. v.
  Reno, 230 F.3d 365 (D.C. Cir. 2000) (Lucky Tab II is classified as a Class II "electronic aid"
  rather than a Class III "facsimile," "not a computerized version of pull-tabs," under IGRA and
  the Jolmson Act); United States v. Santee Sioux Tribe of Nebraska, 324 F.3d 607 (8 th Cir. 2003)
  ("Lucky Tab II," which does not generate random patterns with element of chance, is classified
  as Class II machine and not a computer-generated version of game of pull-tab prohibited by
  Jolmson Act, noting that pull-tabs can be played without the machine, player does not play
  against the machine and no winnings are paid or accumulated by the machine). See also,
  Chesapeake Amusements, Inc. v. Riddle, 766 A.2d 1036 (Md.Ct.App.2001) ("Play & Win" and
  "Lucky Tab II" machines which dispense paper tabs with preprinted numbers or bar codes did
  not fall within state's definition of "slot machine" because the machine simply read the ticket
  and did not calculate the odds).

          Games played on the Incentovation Electronic Pull-Tab System which we viewed on
  August 4 th are controlled by a computer which generates winning and non-winning numbers and
  bar codes on paper tabs which are then dispensed through an electronic terminal. This machine is
  different than those described in the cases cited above. This machine is more like the one found
  to be a Class III facsimile in Cabazon Band }.;fission Indians v. NIGC, 14 F.3d 633 (D.C. Cir.
  1994). That game too had a fixed number of winning cards but was determined to be a
  computerized version of pull-tabs and therefore prohibited.

         While the case law is not necessarily determinative of our interpretation of state statutes
  regarding "sealed tickets," the cases do provide some context and useful guidance. The cases
  draw a clear distinction between machines that dispense .or simply read tickets that have
  previously been assigned wi1ming or losing numbers and machines that actually assign the
  winning or losing numbers.

Col. Patrick Fleming
September 23, 2010
Pae 3

    Legislation enacted this past session expanded the scope of games included in the

definition of "lucky seven or other similar sealed tickets" in section 314-A (1-A) so as to include
electronic "dispensers." Although the legislation did not use the term "preprinted," the original
bill and the committee amendment consistently referred to the dispensing of "printed" tickets.
One could argue that the definition includes a ticket that is printed at the exact time the game is
played. However, the committee amendment also clarified that it is the ticket that provides the
element of chance, which I interpret to mean that the ticket, like a traditional pull-tab, must be
preprinted. This interpretation is supported by the fact that the law authorizes the State Police to
license the tribe to sell tickets and not to operate a machine.

    In my opinion, the machine's mode of operation takes the system out of the scope of

permitted machines in section 17 M.R.S. § 314-A 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 inelevant by the computer's determination of the element of chance.

   For these reasons, I do not believe that this system may be licensed by the State Police

under section 314-A of Title 17.

                                                  Yours Very Truly

                                                Oa-J?'u~
                                                /4net T. Mills

Cc: Rep. Wayne Mitchell
Rep. Donald Soctomah
Chief Kirk Francis
Chief Brenda Commander
Tribal Governor Reubin Cleaves, Pleasant Point
Tribal Governor William Nicholas, Indian Township
Lt. Tribal Governor Joseph Socobasin, Indian Township
Sen. Nancy Sullivan
Sen. Debra Plowman
Rep. Pamela Trinward
Pat Ende, Esq.,Ofc. of the Gov.
Deb Friedman, Ofc. of the Gov