Attorney General: Susan G. Townsley, Divsion of Special Revenue, 2002-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 30, 2002

Susan G. Townsley
Executive Director
Divsion of Special Revenue
555 Russell Road
Newington, CT 06111

Dear Ms. Townsley:

This is in response to your question as to whether the Compact between the Mohegan Tribe and the State of Connecticut allows off-track betting and viewing of races from hotel rooms at the Mohegan Sun Casino utilizing hotel telephones and television sets. For the following reasons, we believe that the Compact requires a Memorandum of Understanding before any such activity can be permitted.

The proposal in question is being presented by Autotote Enterprises, Inc. (AEI). AEI is the operator of Connecticut OTB, and it also provides off-track betting1 at the Mohegan Sun Casino. Off-track betting on animal races is expressly permitted by the Compact. See Compact, Sec. 3(a)(iv). Simulcasting2 of animal races is also permitted. Compact, Sec. 3(a)(v). You describe the proposal as follows:

Under AEI’s present agreement with the Tribe, they would like to install interactive voice response (IVR) capability as an additional service for guests in the new 1200 room hotel scheduled to open in April of this year. The IVR installation would allow holders of one-day accounts at the race book to enter wagers via the touch-tone keypad of specified telephones.

The IVR system at the Mohegan Sun would not accept external calls, but would service customers only within the confines of the Mohegan Reservation. A closed-circuit video system connected to the race book would allow the viewing of races in hotel rooms as well. The IVR would be accessed by any telephone connected with an internal Mohegan Sun telephone network, permitting restricted access to the IVR from "on premises" extensions only.

Currently, the race book has self-betting devices called Tiny Tims installed at each carrel. These self-service machines can be used by customers who have opened a "one-day" account at a teller window. This allows the customer to wager from the privacy of the carrel without returning to a teller window. These one-day accounts expire automatically at the end of the wagering day, and cannot be accessed for wagering again even if a balance still exists. ASI is fully responsible for the technical operation of the one-day accounts at the Mohegan Sun.

AEI could, in theory, place Tiny Tims in each hotel room. However, AEI maintains that it would be prohibitively expensive and functionally impractical. By placing a closed IVR system on the property, the same goal of servicing hotel guests is achieved by using a telephone instead of a Tiny Tim. The one-day accounts do not require an application process. The customer makes a deposit through the teller window after providing a personal identification number (PIN). In return, he receives an account number and an account voucher ticket that must be presented at a teller window to close out the account. Any one-day accounts with remaining balances when the system is closed at the end of the day are held as liabilities on the tote system, similar to cash vouchers. The customer must return to a teller window and present his account ticket to receive any remaining funds. If the customer wishes to wager via the Tiny Tims the next day, he must open a new one-day account.

Request for Opinion, pp. 1, 2.

The threshold question which must be decided is whether this proposal constitutes telephone betting. The Compact permits the Tribe to offer "off-track telephone betting on animal races". Compact, Sec. 3(a)(xi). However, that section further provides "but only to the extent authorized in accordance with Section 15 of this compact". Id. Section 15 puts a moratorium on telephone betting unless and until it is allowed by agreement between the Tribe and State, or until certain legal issues, respecting whether such activity constitutes Class III gaming on Indian lands, are resolved by a court of competent jurisdiction. See Compact, Sec. 15(d).3

Concerning the interpretation of tribal compacts, we have often noted:

In analyzing compact agreements, the ordinary rules of statutory and contract interpretation are employed. See Oklahoma v. New Mexico, 501 U.S. 221, 246, 111 S.Ct. 2281, 115 L.Ed.2d 207 (1991) (concurring opinion); United States v. Utah, Nevada & California Stage Co., 199 U.S. 414, 423, 26 S.Ct. 69, 50 L.Ed.2d 251 (1905). In interpreting written agreements, the goal is to discern the intent of the parties. See Lodge 7004 Intern. Ass’n. of Machinists v. United Aircraft Corp., 193 F.Supp. 69, 70 (D.Conn. 1961). The intention of the parties is to be ascertained from the language used, and the language must be given its common meaning and usage. Scribner v. O’Brien, 169 Conn. 389, 398, 363 A.2d 160 (1975). The agreement must be interpreted as a whole, with all relevant provisions considered together. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 134, 464 A.2d 6 (1983). Doubtful expressions should be interpreted in favor of the Tribe. 74 Am.Jur.2d Treaties, §33.
1998 Conn. Op. Atty. Gen. ___ (1998), Letter to George Wandrak (January 12, 1998).

In this regard, the Compact defines the term "telephone betting" as "the acceptance of bets in a ... pari-mutuel pool by telephone from persons who have deposited funds in a deposit account established for such purpose." Compact, Sec. 2(y). We must apply this term as the parties defined it and cannot engraft additional terms to limit its scope. See Pesino v. Atlantic Bank of New York, 244 Conn. 85, 94, 709 A.2d 540 (1998). AEI’s proposal falls within the broad scope of this definition. All elements are satisfied. In AEI’s proposal, hotel guests who have deposited funds in a deposit account for such purpose will be able to bet with the Mohegan Sun pari-mutuel off-track betting race book using their hotel telephone. This is telephone betting as defined in the Compact.

You bring to our attention numerous distinctions which demonstrate that the scope of the betting proposed for the Mohegan Sun is narrower than the telephone betting activities authorized at Connecticut OTB generally, and, presumably, contemplated in the Compact. You noted that the telephone betting activity at the casino hotel will be allowed only from telephones on the Reservation, while telephone calls to Connecticut OTB are not so limited. Also, accounts at the casino are one-day accounts, while Connecticut OTB telephone betting accounts do not so expire. Compare, Regulations of Conn. State Agencies, Reg. Sec. 12-574-F60 attached in Attachment A. Indeed, the parties to the Compact agreed to certain standards of operation if telephone betting was ever permitted and those standards are similar to the Connecticut OTB regulations respecting telephone betting. See, Standards of Operation, Compact, Appendix B, Sec. 9 attached in Attachment B. You also note that regulations of the National Indian Gaming Commission distinguish between games of chance and electronic, computer or other technological aids which are merely devices which assist a player or the playing of the game. See, 25 C.F.R. 502.7.4 This suggests that telephone betting is a technical aid to off-track betting which is allowed in the compact, not a different activity covered by the moratorium. However, we cannot engraft these distinctions onto the definition provided in the compact. Pesino v. Atlantic Bank of New York, supra. The definition clearly encompasses the proposed activity. Accordingly, the moratorium on telephone betting clearly applies to the present proposal.

Turning to the moratorium requirements, the Compact bars telephone betting unless and until either of two conditions are satisfied:

... unless and until it is determined by agreement between the Tribe and the State, or by a court of competent jurisdiction, that such gaming would not violate the Indian Gaming Regulatory Act on the ground that such gaming does not constitute Class III gaming activities on Indian lands within the meaning of 25 U.S.C. §2710(d)(1) ...

Compact, Sec. 15(d)

The second condition, concerning a ruling of a court of competent jurisdiction allowing the activity, has not been satisfied. No court in our jurisdiction has ruled that OTB telephone betting on animal races constitutes Class III gaming on Indian lands, to our knowledge.5

The other possibility, concerning an agreement with the State, has not been accomplished either. That is not to say that such an agreement is impossible, particularly where, as here, all parties will be on Indian lands. 25 U.S.C. §2710(d)(1).6 The State reached a satisfactory agreement with the Tribe concerning slot machines under a similar moratorium provision. See Memorandum of Understanding (May 17, 1994). An appropriate Memorandum of Understanding could to resolve the instant question.7

Therefore, for all of the foregoing reasons, we conclude that the Compact requires a Memorandum of Understanding between the State and the Mohegan Tribe before off-track betting and the viewing of races from hotel rooms may be permitted at the Mohegan Sun Casino hotel utilizing hotel telephones and television sets.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert F. Vacchelli
Assistant Attorney General

RB/RFV/bjo


1"Off-track betting" means pari-mutuel betting on racing results which is conducted on premises other than the site of the race. Compact, Sec. 2(q).

2"Simulcasting" means the closed-circuit television or radio transmission of a race at one racetrack to another racetrack or facility at the same time the race is being conducted. Compact, Sec. 2(u). For the purposes of this opinion we assume that the broadcasts on hotel television screens constitute simulcasting to a facility.

3Sec. 15(d) of the Compact provides as follows:

(d) Moratorium on off-track pari-mutuel telephone betting. Nothwithstanding the provisions of section 3(a)(xi), the Tribe shall have no authority under this Compact to conduct off-track pari-mutuel telephone betting unless and until it is determined by agreement between the Tribe and the State, or by a court of competent jurisdiction, that such gaming would not violate the Indian Gaming Regulatory Act on the ground that such gaming does not constitute Class III gaming activities on Indian lands within the meaning of 25 U.S.C. §2710(d)(1) (it being understood and agreed that there is a present controversy between the Tribe and the State in which the Tribe takes the position that such gaming is gaming on Indian lands within the meaning of the Act and the State takes the position that such gaming is not gaming on Indian lands within the meaning of the Act).

425 C.F.R. §502.7 provides:

Electronic, computer or other technologic aid.

Electronic, computer or other technologic aid means a device such as a computer, telephone, cable, television, satellite or bingo blower and that when used --

(a) Is not a game of chance but merely assists a player or the playing of a game;

(b) Is readily distinguishable from the playing of a game of chance on an electronic or electromechanical facsimile; and

(c) Is operated according to applicable Federal communications law.

This regulation pertains to bingo and sub games only. See, 25 U.S.C. §2703(7)(A); 25 C.F.R. §502.3(a); U.S. v. 103 Elec. Gaming Devices, 223 F.3d 1091, 1102 (9th Cir. 2000); Cabazon Band of Mission Indians v. National Indian Gaming Commission, 827 F.Supp. 26 (D. D.C. 1993).

5However, one court in a different jurisdiction recently dismissed a challenge to telephone betting on a National Indian Lottery on procedural grounds. See AT&T v. Coeur d’Alene Tribe, 2002 U.S. App. LEXIS 4351 (9th Cir. 2002) (other challenges continuing).

625 U.S.C. §2710(d)(1) provides, in pertinent part:

Class III gaming activities shall be lawful on Indian lands only ... (emphasis added).

Where the betting parties are on a reservation, the existing case law suggests that the activity would be held to be on Indian lands. See, e.g. U.S. v.103 Electronic Gambling Devices, supra (MegaMania bingo games); Missouri ex. Rel. Nixon v. Coeur d’Alene Tribe, 164 F. 3d 1102 (8th Cir.1999), cert. denied 527 U.S. 1039 (1999) (Remanded for finding).

7Lawful operation would also require an appropriate Tribal ordinance approved by the National Indian Gaming Commission, 25 U.S.C. §2710(d)(1) and (2). Standards of Operation are also required under the Compact. See Compact, Sec. 7(a).


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