A new question has been raised in the ongoing battle between the United States government on online gaming: are federally recognized tribes allowed to operate online casinos under the provisions of the Indian Gaming Regulatory Act?

Tribes are allowed to operate gaming activities on tribal land provided said activities are not prohibited by federal or state law. To help clarify, the Gaming Regulator Act of 1988 created three classes of gaming with specific instructions about which government entity oversees the activities.

The question that comes down is whether online gaming should be classified as Class II or Class III gaming. Class II machines are regulated by the National Indian Gaming Commission; tribes must enter into an agreement with the state to operate Class III machines.

The core issue comes down to how online gaming is defined and whether online gaming is considered a technological aid as spelled out by the Class II regulations or whether the internet casino game represents an electronic or electromechanical facsimile as defined in the regulations for Class III machines.

Many tribes are arguing that online gaming should be considered Class II, a self-serving argument that would allow tribes an opportunity to possibly cash in on the growing online gaming business. Federal law still stands in the way, as does the crippled Unlawful Internet Gambling Enforcement Act, but loopholes in that legislation could open the door for tribal operations online.

The definition, however, seems to suggest that all internet gaming would fall into the category of Class III. The games online are facsimiles of other games of chance, not a technological aid. Even if they are a based on a Class II electronic bingo machine, they remain facsimiles, not aids, and would therefore call under the regulations for Class III machines.

The debate will probably continue for a while. Considering the federal government can’t define “illegal internet gaming” as it pertains to the UIGEA, figuring out whether a computer-based representation of a casino game is a technological aid or an electronic facsimile could be a couple of years off.