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February 23, 1971
Honorable Bruce A. Wilson
State Senator, 2nd District
Olympia, Washington 98501
Cite as: AGLO 1971 No. 29 (not official)
This will acknowledge receipt of your letter dated February 20, 1971, requesting our opinion as to whether a certain "stick game" commonly played by members of a certain Indian tribe would violate the provisions of our state Constitution and statutes prohibiting lotteries.
We will not attempt to repeat in detail in this letter the most complete and enlightening description of this game with which you have provided us. Suffice it to say that although this largely ceremonial contest between competing teams may, from time to time, be played for a monetary or other valuable prize, this factor need not be regarded as necessitating a conclusion that the persons participating therein are guilty of criminal misconduct. In this regard we would refer you to our opinion of June 26, 1969, to the Grays Harbor prosecuting attorney, copy enclosed, in which, dealing with the applicability of our antilottery or antigambling statutes to certain fishing derbies, we said:
"On the basis of your factual description of these events, we are inclined to believe that your position is legally defensible. Although our court has not yet addressed itself to this point, we are of the opinion that its view of the matter, when and if expressed, would likely be in accordance with the observation recently made by the supreme court of Hawaii in State v. Prevo, 361 P.2d 1044 (1961), as follows:
"'The scope of the statute in prohibiting [[Orig. Op. Page 2]] gambling games in any and all forms clearly excludes athletic contests or those in which the contestants pit their physical or mental skills, or both, against each other as the primary object. The language and tenor of the statute show that no such contests were within the contemplation of the legislature. Nor have they been considered as gambling games by the courts. A contest involving mental or physical skills, even where each competitor is required to pay an entrance fee, is not necessarily a gambling game. . . ." (p. 1050)'
We trust that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General