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April 7, 2021

VIA FIRST CLASS MAIL AND EMAIL

Ms. Mary Prentice, Director

Red Lake Gaming Commission

15882 Main Ave. 

PO Box 561

Red Lake, MN 56671

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

Dear Ms. Prentice: 

On October 8, 2019, you requested an advisory legal opinion concerning whether 

Ultimate Texas Hold’Em poker (UTH) constitutes a Class II game under the Indian Gaming 

Regulatory Act when played on Indian lands in Minnesota.

1 Based upon the game description

submitted, UTH is a banked card game and, therefore, Class III. 

I. Game Description

Ultimate Texas Hold'em is a card game based on a version of poker that is played with a 

single, standard fifty-two card deck.

2 Each player and the dealer try to make the best possible

five card poker hand using their initial two card deal, plus five community cards. All players and 

the dealer may use three, four, or all five of the community cards to make their hand. 

Before any cards are dealt, each player must make two equal wagers called the ante and 

the blind bonus. Each player and the dealer are then dealt two cards face down. Next, each player

has the option to either bet four times the player’s ante as a raise bet, or check, meaning do 

nothing. The Dealer then turns over three community cards. At this point, all players that have 

already raised may not bet again. If a player checked, the player may bet two times the player’s

ante as a raise bet or check, meaning again do nothing. The Dealer then turns over the final two 

community cards. Any player who has already raised (4 times or 2 times) may not bet again. All 

 1 Please accept the Office of General Counsel’s apologies for the delay in issuing this advisory legal opinion. Such 

delay was caused by several factors, including the pandemic. 2 The game description set forth in this section is taken almost verbatim from the game opinion request. See Formal 

Request to add the Class II game of Ultimate Texas Hold’em to the Table Games Pit at Seven Clans Warroad (June 

27, 2019) (hereinafter Formal Game Request).
Letter to Ms. Mary Prentice, Director

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

April 7, 2021

Page 2 of 6

other players must now either bet one times the player’s ante as a raise bet or must fold, 

forfeiting their ante and blind bonus wagers. 

The dealer and all players remaining in the game then try to make the best possible five 

card poker hand using their initial two card deal, plus three, four, or five of community cards. If 

the dealer’s hand does not contain at least a pair, s/he does not qualify and the ante wager is a 

push.

3 If the dealer qualifies, the players lose their ante wagers. If the dealer’s hand and a

player’s hand tie, all wagers are a push. If the dealer’s hand outranks a player’s hand, the player 

loses her blind bonus and raise wagers. If the player’s hand outranks the dealer’s hand, the player 

will be paid as follows: 

Ante wager - If the dealer has at least a pair, the player is paid even money4 on this 

wager. If the dealer does not have a pair, this bet pushes. 

Raise wager -The player is paid even money. 

Blind Bonus wager - If the player wins with a Three of a Kind or less, this wager is a 

push. If the player wins with a Straight or better, the player is paid according to the below

pay-table, outlining each hand and its pay ratio (not including the return of the original 

bet).

Royal Flush 500 to 1

Straight Flush 50 to 1

Four of a Kind 10 to 1

Flush 3 to 1

Straight 1 to 1

There is also an optional side-bet that the player may wager on - the trip bonus wager -

allowing the player to win an additional payout if their hand is Three of a Kind or better.5 The 

player is paid according to the player’s final hand, regardless of the dealer’s hand and regardless 

of when the player raises or if the player folds.

6 The pay-tables for this side-bet are: 

Royal Flush 50 to 1

Straight Flush 40 to 1

Four of a Kind 30 to 1

Full House 8 to 1

Flush 6 to 1

 3 When a “push” occurs, the player’s bet is returned to the player as if no bet was made.

4 “In poker, the term ‘even money’ means that you are getting a 1-1 payout on your money.” https://www.pokerking.com/dictionary/even-money/ 5 Email from Mary Prentice, Director, Red Lake Gaming Commission, to Jo-Ann M. Shyloski, NIGC Of Counsel 

(Oct. 29, 2019). 

6 See Formal Game Request at 5.
Letter to Ms. Mary Prentice, Director

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

April 7, 2021

Page 3 of 6

Straight 5 to 1

Three of a Kind 3 to 1.

In the submission, UTH is described as “a player pool base[d] game,” where “the house 

collects an ante for each hand played” and the “player pool [is] based on the daily win/loss of the 

game itself,” meaning “all funds won/los[t] [ ] go towards the player pool balance.”7 The house 

edge of 1.9% on the blind bonus and trips bonus wagers and the “overall expected hold” of 27% 

are deposited into the player pool.8 Yet beyond paying winners, the player pool “can be used” for 

paying for game promotions.9 Though the ante of fifty cents per hand is put in an “ante drop.”10

II. Legal Background

IGRA divides the world of Indian gaming into three classes. Class I gaming, which is not 

at issue here, encompasses “social games” played “solely for prizes of minimal value or 

traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, 

tribal ceremonies or celebrations.”11 Class II gaming includes card games if they: 

(I) are explicitly authorized by the laws of the State, or

(II) are not explicitly prohibited by the laws of the State and are played

at any location in the State, but only if such card games are played in conformity 

with those laws and regulations (if any) of the State regarding hours or periods of 

operation of such card games or limitations on wagers or pot sizes in such card 

games.12

Class II gaming also expressly excludes any banking card game.13 Banking card games, 

are games in which the banker (usually the house) competes against all players, collecting from 

losers, paying winners, and potentially winning.

14 Conversely, non-banking card games are 

games where players play against each other, rather than the house or a single player acting as the 

bank.15 Class III gaming is a catchall category and includes “all forms of gaming that are not

Class I gaming or Class II gaming.”16

 7 Id. at 1. 8 Email from Mary Prentice, Director, Red Lake Gaming Commission, to Jo-Ann M. Shyloski, NIGC Of Counsel 

(Oct. 29, 2019).

9 See Formal Game Request at 1. 10 Id. 11 25 U.S.C. § 2703(6). 12 25 U.S.C. § 2703(7)(A)(ii); See also 25 C.F.R. § 502.3(c). 13 25 U.S.C. § 2703(7)(B)(i); 25 C.F.R. § 502.4(a)(1). 14 25 C.F.R. § 502.11. 15 Id.; 25 C.F.R. § 502.3(c). 16 25 U.S.C. § 2703(8); 25 C.F.R. § 502.4. 
Letter to Ms. Mary Prentice, Director

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

April 7, 2021

Page 4 of 6

The classification of a card game as either Class II or Class III depends upon the game itself –

primarily, how it is played – and the laws of the state in which it will be played.17

III. Analysis

The Red Lake Nation’s gaming operation seeks a Class II game classification for UTH, 

contending that the house/dealer “has no interest in the outcome of the hand” because the funds 

won and lost from the raise, blind bonus, and trips bonus wagers are put into the player pool.18

But such assertion is belied by the gaming operation’s actions, as explained at length below. In

short, the dealer competes against all players, collects from all losers, pays all winners, and 

potentially wins. The ability to win demonstrates an “interest in the outcome of the hand[s].” 

And despite the fact that the raise, blind bonus, and trips bonus wagers are put into a so-called

player pool, they “can be used to pay for the game promotions”19 and to pay winning players.20

The ante wager, as noted above, is put into an “ante drop” and used for “game expenses.”21

To begin the classification analysis, the initial question is: is UTH a card game? If so, is it

banked or non-banked? The former results in a Class III designation, the latter, a review of state 

law to discern whether the card game is explicitly authorized or not explicitly prohibited and 

played in the state. Also, the play of the game must conform with state law requirements of 

hours, periods of operation, and wager and pot sizes for such card games.

a. Is the game a “card game”?

Because IGRA includes certain card games in its definition of Class II, the initial 

question is whether UTH is a card game. As described above, the game is played with a deck of 

cards with the ultimate objective of making the best five card poker hand. UTH, therefore,

qualifies as a card game.

b. Is the game “banked”?

The next inquiry is whether UTH is a banked or non-banked card game. IGRA excludes 

“any banking card games” from its definition of Class II. As previously explained, banking

games are “played with the house as a participant in the game, where the house takes on all 

 17 See 25 U.S.C. § 2710(b)(1)(A) (“An Indian tribe may engage in, license and regulate, class II gaming on Indian 

lands within such tribe’s jurisdiction if – (A) such gaming is located in a State the permits gaming for any purpose 

by any person, organization or entity (and such gaming is not otherwise specifically prohibited by Federal law) ...”). 18 Email from Mary Prentice, Director, Red Lake Gaming Commission, to Jo-Ann M. Shyloski, NIGC Of Counsel 

(Oct. 29, 2019). 19 See Formal Game Request at 1. 20 Email from Mary Prentice, Director, Red Lake Gaming Commission, to Jo-Ann M. Shyloski, NIGC Of Counsel 

(Oct. 29, 2019) (“the players are trying to win the money from the players pool”).

21 Formal Game Request, supra at 2.
Letter to Ms. Mary Prentice, Director

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

April 7, 2021

Page 5 of 6

players, collects from all losers, and pays all winners, and the house can win.”22 In non-banking 

games, the players play against each other. Typically, poker is a non-banking card game. 

Here, the submitted game description explicitly states that UTH “features head-to-head 

play against the player-dealer ....” The players in UTH bet and play against only the dealer, not 

one another. The dealer plays every hand, taking on all players, collecting from all losers, paying

all winners, and potentially winning. UTH thus meets every aspect of a house banked game 

under NIGC regulations.23

Also the dealer acts as the banker —depositing all the bets (but the ante) into the “player 

pool” when forfeited or lost against the dealer or paying winners out of it.24 And the pool serves 

as the bank. The gaming operation controls the pool, maintains it, owns it, and appears to 

partially fund it in light of the fact that winning payouts are based on a fixed pay table. Players 

have no control over disbursements from the pool and may only assert claims for their wins.25 It 

also appears that the winning payments are guaranteed by the gaming operation, not varied by—

or dependent on—player contributions to the “pool.”26 Put another way, regardless of how much 

money is in the pool, the gaming operation pays wins according to a fixed pay table, unlike in 

truly player-pooled poker where the amount won depends on the amount wagered by all players.

Additionally, the gaming operation has a financial interest in the outcome of the game 

and the money in the pool. If a player loses, the pool—meaning the gaming operation—wins, 

 22 25 C.F.R. § 502.11; see also John Scarne, Scarne’s Encyclopedia of Card Games, 278 (2001) (“so-called banking 

games are games in which the gambling establishment or one player is continually opposed to all other players.”). 23 See 25 C.F.R. § 502.11; see also NIGC Bulletin No. 95-1, All Banking Card Games Fall Within Class III Gaming 

at 2 (Apr. 10, 1995); Letter to Chairman John C. Houle, Chippewa Cree Tribe, from Penny J. Coleman, NIGC 

Acting General Counsel, re: Player Pool Blackjack at 2 (Aug. 10, 2007) (banked card game despite player-pooled 

format because players played against dealer, who plays hands, takes on all players, collects from all losers, pays all 

winners, and can win). 24 See Letter to Chairman John C. Houle, Chippewa Cree Tribe, from Penny J. Coleman, NIGC Acting General 

Counsel, re: Player Pool Blackjack, supra at 2; Compare United States v. 103 Elec. Gambling Devices, 223 F.3d 

1091, 1099 (9th Cir. 2000) (holding game non-banked because house was not a participant in game and success of 

the players did not depend on success of house); Letter to Larry I. DeRycke, Research, Development, Acquisitions 

and Marketing Co., from Barry W. Brandon, NIGC General Counsel at 1 (Aug. 11, 1999) (non-banked - the house 

was not a participant in the game, though provided the facility and dealer and accepted a commission from the 

winning pot); Letter to Mr. Frank Banyai and Mr. Mike Macke, Cadillac Jack, Inc., from Kevin K. Washburn, NIGC 

General Counsel, re: Will Ball Bingo (electronic version) at 3 & 7 (Mar. 22, 2001) (non-banked - house does not 

participate in the game and simply collects a fee); Letter to Mr. Charles LaBoy, Pokagon Band Gaming Commission 

Executive Director, from Michael C. Hoenig, NIGC General Counsel, re: Gamblit Poker LIVE! V1.0 at 10 (Jan. 23, 

2018) (non-banked since players play one another rather than house and house takes a commission). 25 See Letter to Rachel Romo, Tribal Gaming Commission Chair, Kickapoo Traditional Tribe of Texas, from Penny 

J. Coleman, NIGC Acting General Counsel re: K-21 Blackjack at 4 (the fund “used as a daily depository for 

amounts won in the blackjack game by the house and the source of funds for prizes paid to players, does not serve to 

remove the game from being considered a banking card game . . .. In fact, this fund is the bank.”). 26 See, e.g., Letter to Larry I. DeRycke, Research, Development, Acquisitions and Marketing Co., from Barry W. 

Brandon, NIGC General Counsel, supra at 2.
Letter to Ms. Mary Prentice, Director

Re: Ultimate Texas Hold’Em Poker - Game Classification Opinion

April 7, 2021

Page 6 of 6

making money from its participation in the game27 and demonstrating its financial interest in the

game’s outcome.28 The house edge of 1.9% on the blind bonus and trips bonus bets is also 

deposited into the pool. That house edge, as a “percentage or odds advantage over all other 

players,” is “a fundamental characteristic of a banking game.”29 Plainly put, banking games are 

those that “have a mathematical advantage for the bank.”30 Lastly, the money in the pool may be 

used to pay winners or to pay game promotions. Thus, the gaming operation uses the pool for 

purposes other than paying winners, also showing its financial interest in it.

Given all the above, UTH is a banked card game and Class III. 

IV. Conclusion

UTH is a Class III game because it is a banked card game. If you have any further 

questions, please contact NIGC Of Counsel, Jo-Ann M. Shyloski at (202) 632-7003. 

Sincerely,

Michael C. Hoenig

General Counsel 

 27 Compare Letter to Tom Foley, Foley Law PLC, from Tracie L. Stevens, NIGC Chair, re: Net Poker 4 at (July 3, 

2013) (non-banked because, among other things,“[t]he house makes its money from the fee systems . . . and not 

from the pot.”); cf. Letter to Charles Enyart, Chief, Eastern Shawnee Tribe of Oklahoma, from Penny J. Coleman, 

NIGC Acting General Counsel, re: Blackjack in Oklahoma at 2 (Jan. 15, 2003) (opining that the play of the game 

did not qualify as a tournament because the gaming operation earned revenue not only from a commission on bets 

but also from its own participation in the game: “[m]erely because the house’s winnings are kept in an ‘escrow’ 

account separate from other revenues and used for specific purposes including the payment of player prizes does not 

change the fact that the house is a participant in the game and can and does ‘win.’”). 28 Compare Letter to Markham C. Erickson, McGuiness & Holch Law Offices, from Barry W. Brandon, NIGC 

General Counsel, re: Poker Club at 2 (June 17, 1999) (non-banked because the casino “and its dealers would not 

have an interest, financial or otherwise, in the outcome of any poker game.”). 29 See Letter to Steve M. Titla, Esq. from NIGC Chair Harold A. Monteau, re: Apache 21 at 4 (Feb. 2, 1995); see 

also NIGC Bulletin 95-1, supra at 2; Letter to Chairman John C. Houle, Chippewa Cree Tribe, from Penny J. 

Coleman, NIGC Acting General Counsel, re: Player Pool Blackjack, supra at 2. 30 See John Scarne, Scarne’s Encyclopedia of Card Games, supra at 278.