July 3, 2013 

Tom Foley 

Foley Law, PLC 

W1450 First National Bank Bldg. 

332 Minnesota St. 

Saint Paul, MN 55101 

Re: NetPoker Gaming System Game Classification Decision 

Dear Mr. Foley: 

You requested the National Indian Gaming Commission (''NIGC'') review the 

NetPoker gaming system and determine its classification under the Indian Gaming 

Regulatory Act ("IGRA"). NetPoker is played similarly to a traditional game of poker, 

but in a virtual enviromnent. 

Pursuant to the IGRA, Class II gaming includes non-banking card games if such 

card games: 

(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 wages or pot sizes in such card games. 

25 U.S.C. § 2703(7)(A)(ii). Your request did not identify a state in which the game would 

be played. Therefore, this decision is not state specific and contains no analysis of state 

gaming laws. This determination is confined to the question of whether NetPoker meets 

the non-banking and technologic aid requirements for Class II status. 

I have reviewed the game description you submitted and conclude that NetPoker 

is a Class II game, so long as it is played in a state in which the requirements in 25 U.S.C. 

§ 2703(7)(A)(ii) (I) or (II) are satisfied, it is Class II. 

Game and Equipment 

NetPoker is similar to the Texas hold'em variation of the standard poker card 

game, played on a machine or electronically, rather than on an actual card table. The 

NetPoker system has linked terminals, servers, and software that communicate across 

NATIONAL HEADQUARTERS 1441 L St. NW, Suite 9100, Washington, DC 20005 Tel: 202.632.7003 Fax: 202.632.7066 WWW.NIGC.GOV 

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK 
Letter to Tom Foley 

July 3, 2013 

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gaming facilities through a secured private network system. It is designed to connect 

players across different gaming facilities, possibly in different jurisdictions, analogous to 

a wide area network. The machine's video screen displays a traditional felt table, with a 

dealer in the standard spot shuffling and dealing the cards. The player can see his/her 

cards and the community cards. Buttons on screen allow a player fold, call, raise, or sit 

out. The player can add money into each machine. 

As with Texas hold' em, in NetPoker the wagers are made against other players 

rather than a banker or the house. NetPoker is played live, in real time, with players 

competing against each other. The house collects a fee from the players for facilitating 

game play. At least two players are required for a NetPoker game to begin, but each game 

can accommodate up to nine players. A player joins by depositing money into the credit 

account, then transferring from the credit account to the stack account, which is the 

amount of money the player is bringing to the table. 

NetPoker, like traditional Texas hold'em, utilizes a rotating blind system, 1 

designed to generate money to put into the pot and stimulate betting. To begin play, a 

player chooses a table with set blind amounts and then is placed in a game. A player 

does not get to choose his/her position at the table. A button signifies the dealer's position 

and rotates clockwise around the table, shifting the position of the blind bets. But after 

the required blind wagers, the bet can be for any amount up to the total amount the player 

has on the table. 

To begin, the two players to the left of the dealer make mandatory blind bets, 

made before the players have an opportunity to see any cards. The player on the dealer's 

immediate left puts out the small blind, and the player to the immediate left of the small 

blind puts out the big blind. The big blind is typically the minimum allowed bet at the 

table. The small blind bet is usually a half or a third of the big blind amount. So, if the 

minimum bet was $5, the big blind would place a forced bet of $5, and the small blind 

would be $3. NetPoker has no betting limit though, so the players post blinds according 

to a set schedule that varies by table. 

After the blind bets are made, the virtual dealer shuffles a standard deck of fiftytwo playing cards and deals each player two cards, face down, known as hole or pocket 

cards. After this initial deal, a round of betting begins with the player to the left of the 

blinds. At this point, the players can call, raise, or fold. Any raise must be at least double 

the previous bet, unless the player does not have enough money in which case that player 

can go all-in. 

After the initial round of betting ends, the game deals the next three cards, the 

flop, face-up on the table. These are communal cards that each player can use in 

combination with his/her two hole cards to form a poker hand. The flop is followed by 

1 A rotating blind is a required bet to begin the first round of betting and initiate play that rotates around the 

table for each new game. 
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July 3, 2013 

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another round of betting. A fourth card is then dealt face up, the turn card. as part of the 

community of shared cards, after which another round of betting takes place. A final 

fifth community card, known as the river. is dealt face-up, followed by a final round of 

betting. The remaining players show their cards and the person who can make the best 

fi ve-card hand by combining their hole cards with the community cards wins the pot. 

NetPoker offers five different fee structures from which a gaming operation may 

choose: (1) a fee as a percentage of the player's wager; (2) a flat fee for each time a 

player antes up in a round; (3) a set fee assessed to the player after each betting row1d; (4) 

an up-front fee to play the entire game or a portion of the game; and (5) a fee to play for a 

set amount of time. The fees are collected from the players and paid directly to each 

gaming operation. The fees are not shared between the gaming operations. 

Analysis 

IGRA di vides the world of Indian gaming into three classes. Class 1 gaming, 

which is not at issue here, encompasses "social games" played "solely for prizes of 

minimal value or traditional fom1s of Indian gaming engaged in by individuals as a part 

of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). IGRA 

defines Class II gaming to include: 

"(ii) card games that -

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

(II) are not explicitly prohibited by the Jaws 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." 

25 U.S.C. § 2703(7)(A)(ii); 25 C.F.R. § 502.3. IGRA further defines Class II gaming by 

pronouncing what it is not. Banking card games are not Class II gaming. 25 U.S.C. § 

2703(7)(B)(i). Nor are electronic or electromechanical facsimiles of any game of chance 

or slot machines of any kind considered Class IL 25 U.S.C. § 2703(7)(B)(ii). 

Class III gaming is a catchall category that includes all forms of gaming that are 

not Class I gaming or Class I1 gaming. 25 U.S.C. § 2703(8); 25 C.F.R. § 502.4. 

To determine NetPoker's classification requires analyzing whether the game is 

banked or non-banked and whether it is an electronic aid or an electromechanical 

facsimile. Banking games, as commonly understood and as defined in NIGC regulations, 

are games in which the banker (usually the house) is a participant in the game, taking on 

all players, collecting from the losers and paying all winners. See 25 C.F.R. § 502.11. 
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July 3, 2013 

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Conversely, non-banking card games are games where players play against each other. 

The traditional game of poker is a typical example of a non-banlOng card game. 

NetPoker is a non-banking card game of poker. The players play one another 

rather than a banker or the house, taking wins and losses from each other. The house 

makes its money from the fee systems, described above, and not from the pot. As a nonbanking card game, NetPoker constitutes a Class II game as long as it is not an electroni c 

facsimile. 

Thus, NetPoker must also be analyzed to determine whether it's an electronic 

facsimile or a technologic aid to a non-banking card game to determine if it is Class II. 

On December 17, 2009, the NfGC Office of General Counsel (OGC) issued a game 

opinion for Digideal Digital Card System, revisiting a 2004 game opinion on the same 

card system (Digideal JI). The Digideal fl opinion concluded that technologic aids to 

Class fl card games meet IGRA's definition of Class IT gaming. 

Although IGRA does not define "electronic, computer or other technologic aid," 

NlGC regulations define them as "any machine or device that: 

(1) assists a player or the playing of a game; 

(2) is not an electronic or electromechanical facsimile; and 

(3) is operated in accordance with applicable Federal communications law." 

25 C.F.R. § 502.7(a). Further, NIGC regulations define "electronic or electromechanical 

facsimi le," in relevant part, as "a game played in an electronic or electromechanical 

format that replicates a game of chance by incorporating all of the characteristics of the 

game." 25 C.F.R. § 502.8. 

NetPoker's system satisfies the first element of a technologic aid. It assists play 

by electronically displayi ng a traditional Texas hold'em table, with hole cards and 

community cards arrayed around the table, enabling the player to decide whether to 

continue or to fold. lt also shufnes and deals the cards. The system also assists in 

creating a game by allowing up to nine live players, who may not be in the same physical 

location, join a real-time game, allowing for broader participation. 

In order to be a technologic aid, NetPoker must also not be an electronic or 

electromechanical facsimi le of a game of chance. 25 C.F.R. § 502.7(a)(2). 

As noted above, NIGC regulations define electronic or electromechanical facsimi le, in 

relevant part, as " a game played in an electronic or electromechanical format that 

replicates a game of chance by incorporating all of the characteristics of the game ... " 25 

C.F.R. § 502.8. In the Digideal opinion, the NIGC Office of General Counsel made the 

distinction between a technologic aid and a facsimi le for an electronic game of cards. It 

found that the game machine proposed by Digideal was not a facsimile because it did not 

incorporate all of the characteristics of poker. 
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July3,2013 

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The Digideal opinion looked at court decisions to reach its conclusion. For 

instance, in Sycuan Band of Mission lndians v. Roache, the court reviewed a whollyelectronic pull tab game in which the player bought and played pull tabs generated by 

computer and displayed on a video screen and concluded its was an exact, self-contained 

copy of paper pull tabs and thus an electronic facsimile. 54 F.3d 535, 542-543 (9th Cir. 

1994). The court noted a wholly contained game was different from the same game in 

live form played with the aid of a computer or video. Id. at 543. In Diamond Game v. 

Reno, the machine at issue sold and dispensed paper pull tabs from a roll, then read and 

displayed the results of each tab in manner that resembled a three-reel slot machine. 230 

F.3d 365, 370 (D.C. Cir. 2000). Nonetheless, the paper tabs could be played and 

redeemed manually. Id. The D.C. Circuit held that the machine was not an electronic 

facsimile containing all characteristics of pull tabs, and thus not a Class TII game. 

Further, the Digideal opinion found that the Digideal game incorporated some 

characteristics of poker, namely shuffling, dealing, and ranking winning and losing 

hands. Other aspects, though, such as deciding to play or fold, placing wagers, or putting 

in an ante were still done by the player. In contrast, video poker machines, considered 

Class Ill electronic facsimi les, accept bets, deal, evaluate the hand against standard poker 

rankings, and pay winning hands according to pay tables. Video poker machines, unlike 

Digideal, are exact, self-contained copies of poker. 

As with Digideal, NetPoker's system shuffles, deals, collects the pot, displays the 

card, and enables broader participation in the game, by connecting players in different 

locations. But the player, not the NetPoker system, makes the decision on when to call, 

when and how much to raise, and when to fold. NetPoker incorporates some aspects of 

poker, but is not a wholly contained copy of Texas hold'em poker in a machine. It is a 

way to play the game - which assists a player in playing the game - and is not the game 

itself. As such, NetPoker is not an electronic facsimile. 

Finally, the NetPoker meets the third element of a technologic aid: a system that 

"is operated in accordance with applicable Federal communications law." 25 C.F.R. § 

502.7(a)(3). NetPoker is similar to wide-area progressive systems or multi-site bingo 

systems because it uses a closed, proprietary communications networks. The N1GC has 

determined that "closed, proprietary communications networks," like Virtual Private 

Networks (VPN), which NetPoker uses, do not violate federal communication law. See 

NIGC Bulletin 2009-03 at 3; Casino Gateway Network letter to Donald Bailey from 

Penny J. Coleman, Acting General Counsel, NIGC (Sept. 24, 2009) at 2. 

in sum, NetPoker meets all three criteria for a technologic aid. Thus, so 

long as it is played in a state in which the requirements in 25 U.S.C. § 2703(7)(A) 

(ii) (I) or (TT) are satisfied, it is Class II. 
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July 3, 2013 

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If you should have any further questions, please contact NIGC Staff Attorney 

Heather Corson at (202) 632-7003. 

Sincerely, 

Tracie L. Stevens 

Chairwoman