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April 7, 2020

Niels Holch

Holch & Erickson LLP

40 N. Capitol St. NW, Ste. 585

Washington, D.C. 20001

Re: Pari-Mutuel Draw Poker classification opinion

Dear Mr. Holch:

This letter responds to your request for a legal advisory opinion on whether the game 

Pari-Mutuel Draw Poker constitutes a Class II game under the Indian Gaming Regulatory Act 

(IGRA) and National Indian Gaming Commission (NIGC) regulations. Your request letter, dated 

August 20, 2018, specifically requests an opinion only as to whether the game satisfies the nonbanked and technologic aids requirements for Class II status. You note in that letter that a state 

law analysis is not requested, as you have not identified a particular state where Pari-Mutuel 

Draw Poker would be played. As more fully discussed below, it is my opinion that Pari-Mutuel 

Draw Poker is Class II. 

Pari-Mutuel Poker game description

Pari-Mutuel Draw Poker is an electronic game based on draw poker and played at linked 

individual player stations. It uses a cashless, account-based wagering system and is played using 

a pari-mutuel betting format.1 Players compete against each other for winnings from a wager 

pool that is created and disbursed through a central computer that interfaces with cashless 

electronic player stations.2 These player stations are linked together using a closed, proprietary 

communications network.3 These linked player stations can be limited to one gaming facility or 

can be linked to multiple gaming facilities.4

As players decide to enter the next game offered, the central computer creates a

collective, pari-mutuel pool of all wagers that have been recorded for that game.5 Once a game

commences, the central computer will deduct a pre-determined takeout amount from the wager

pool, which represents the house’s commission for hosting that game.6

 1 Letter To Michael Hoenig, General Counsel, National Indian Gaming Commission, from Niels Holch, re: Request 

for a Game Classification Opinion—Pari-Mutuel Draw Poker, p. 2 (August 20, 2018) 2 Id.

3 Id.

4 Id.

5 Id.
Niels Holch

Re: Pari-Mutuel Draw Poker classification opinion

April 7, 2020

Page 2 of 6

To accommodate a large number of players, the system generates a 52 card virtual deck 

for each player.7 From those individual decks, the system then randomly selects five playing cards 

per player and displays them on the individual video monitor.8 The player is provided with a fixed 

amount of time to hold or discard any or all of these five cards.9 After the player has made his or her 

hold/discard decisions, the electronic selection device randomly selects new cards from the 

individual decks to replace those that have been discarded.10

After the draw has occurred and any discarded cards have been replaced, the five cards in

the player's hand will be evaluated against the hands presented on other player stations entered

in the same game.11 The entire wager pool (after the set house commission has been taken out) will 

then be distributed to the player(s) with the best poker hand(s) for that game, using a pari-mutuel 

payout format.12

Banked v. non-banked games

Banking card games, as commonly understood and as defined in NIGC regulations, are 

games in which a banker competes against all players, collects from all losers and pays all 

winners.13 Sometimes the bank is an active participant (typically a dealer), playing its own hand 

of cards. Other times, the bank participates by virtue of game rules that specify a set hand that 

players must beat to win a payout (a pair of jacks in “Jacks or Better” poker, for example). 

Regardless of whether the bank receives its own cards, it competes against all players, collects 

from all losers, and pays all winners based on the winning/losing position of either the cards in 

its hand, or the hand described by game rules. 

A game can be house-banked or player-banked. In the classic example of a player-banked 

game, chemin de fer, a single player agrees to take on all comers and pay all winners from his 

own pocket (the reward, of course, being that if he wins, he collects from all losers). The players 

in chemin de fer are not playing against each other, but against the single player who has agreed 

to bank the game. Examples of banked poker games include Caribbean Stud, Let it Ride, PaiGow, and Three-Card poker, as played in their traditional format. Banked card games are, by 

definition, Class III.14

 6 Id.

7 Meeting with Niels Holch and Jennifer Lawson, attorney, NIGC, Wednesday, December 12, 2018.

8 Id.

9 Id.

10 Id. 11 Id. 12 Id. at p. 3 13 25 C.F.R. § 502.11, see also NIGC Bulletin 1995-1 14 25 C.F.R. § 502.4(a)
Niels Holch

Re: Pari-Mutuel Draw Poker classification opinion

April 7, 2020

Page 3 of 6

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 In a non-banked game, players 

cannot lose more than their individual bets. Commonly known poker games (e.g., Draw, Stud, 

Omaha, and Texas Hold ‘Em), as they are traditionally played, are non-banked games. So long 

as the other Class II requirements are met, non-banked card games are Class II.

Pari-Mutuel Draw Poker as a non-banked game

As described in the August 20, 2018 opinion request letter, Pari-Mutuel Draw Poker is a 

game in which the players play against each other and compete for winnings in a common wager 

pot. The house is not a player in the game, the electronic system does not generate a dealer hand, 

and the rules do not require a minimum hand for payout.16 The house takes a fixed percentage 

commission from the wager pot of each game and has no interest in the outcome of the game. 

After collecting the house commission, the remaining pot is fully paid out to the player(s) with 

the best hand(s) using a pari-mutuel format.17 The pot is not seeded, does not accrue from hand 

to hand, and cannot run a negative balance.

Without a dealer hand or house rules requiring a minimum hand to win, the only 

participants in the game are the individual players who may come and go from hand to hand. No 

house or player pool bank participate in the game. Nor is the game banked by any player. No 

single player in Pari-Mutuel Draw Poker is responsible for collecting from losing hands or 

paying all winners. Under the betting structure of Pari-Mutuel Draw Poker, a player’s loss is 

limited to their bet. And, as discussed above, the players in Pari-Mutuel Draw Poker compete 

against each other. Therefore, Pari-Mutuel Draw Poker is a non-banked game.

Technologic Aid v. Electronic Facsimile 

NIGC’s regulations define electronic, computer or other technologic aid, in 

relevant part, 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.18

Additionally, the regulation provides examples of the functions served by technological aids: 

 15 25 C.F.R. § 502.3(c) 16 Letter To Michael Hoenig, General Counsel, National Indian Gaming Commission, from Niels Holch, re: Request 

for a Game Classification Opinion—Pari-Mutuel Draw Poker, Game Specifications attachment, p. 3 (August 20, 

2018) 

17 Id. 18 25 C.F.R. § 502.7(a)
Niels Holch

Re: Pari-Mutuel Draw Poker classification opinion

April 7, 2020

Page 4 of 6

Electronic, computer or other technologic aids include, but are not limited to, 

machines or devices that: 

(1) Broaden the participation levels in a common game; 

(2) Facilitate communication between and among gaming sites; or 

(3) Allow a player to play a game with or against other players rather than 

with or against a machine.19

Although technologic aids are permissible in the play of Class II bingo and card games,20

similar “electronic or electromechanical facsimiles of any game of chance” are necessarily Class 

III gaming devices.21 The Commission’s regulations define electronic or electromechanical 

facsimile, 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....”22 Courts 

have adopted a plain meaning interpretation of the term facsimile and recognize a facsimile as a 

game that electronically replicates the characteristics of the underlying game.23

A 2009 NIGC Memorandum determined that an electronic card table called the DigiDeal 

Digital Card System (DigiDeal) was a technologic aid to the game of poker rather than a 

facsimile.24 Although each purported aid to a class II game must be reviewed individually to 

ascertain whether it is a mere technologic aid or a facsimile, the 2007 Digideal memo does offer 

guidance on the subject. The DigiDeal table, incorporates only some of the characteristics of 

poker, namely shuffling, dealing, and ranking winning and losing hands. The player still controls 

the key aspects of poker, such as whether to ante or place a wager, play a hand or fold, and when 

and whether to bluff opponents. 

If, however, a particular aid to card games becomes a necessity, or encompasses all the 

aspects of a particular game, it ceases to be a technologic aid and becomes an electronic 

facsimile. For example, in Sycuan Band of Mission Indians v. Roache,

25 the United States Court 

 19 25 C.F.R. § 502.7(b) 20 See NIGC Memorandum to George Skibine, Acting Chairman, and Norm DesRosiers, Vice Chairman, from 

Penny J. Coleman, Acting General Counsel, re: Classification of card games played with technologic aids, 

December 17, 2009. (“DigiDeal Opinion”). NIGC Opinion to Mr. Kent R. Hagg, Whiting Hagg & Hagg, from 

Penny J. Coleman, Acting General Counsel, re: Classification opinion, DigiDeal Digital Card System, Trips or 

Better Poker, December 21, 2004.

21 25 U.S.C. §2703(7)(B)(ii) 22 25 C.F.R. §502.8 23 Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1994) (“the first dictionary definition of 

‘facsimile’ is ‘an exact and detailed copy of something’”), cert. denied, 516 U.S. 912 (1995); Cabazon Band of 

Mission Indians v. National Indian Gaming Commission, 14 F.3d 633, 636 (D.C. Cir. 1994)(“[a]s commonly 

understood, facsimiles are exact copies, or duplicates”).

24 See NIGC Memorandum to George Skibine, Acting Chairman, and Norm DesRosiers, Vice Chairman, from 

Penny J. Coleman, Acting General Counsel, re: Classification of card games played with technologic aids, 

December 17, 2009. (“DigiDeal Opinion”) (“The definition of Class II gaming does not exclude card games played 

with a technologic aid and, therefore, such games are Class II.”)

25 54 F. 3d 535 (9th Cir. 1994)
Niels Holch

Re: Pari-Mutuel Draw Poker classification opinion

April 7, 2020

Page 5 of 6

of Appeals held that the “Autotab Model 101 electronic pull-tab dispenser” is a class III 

facsimile of a pull-tab device. The Autotab Model 101 produced only an electronic reproduction 

of a paper pull-tab ticket on a computer screen. The player electronically picked numbers and, if 

the player won, the machine would print out a winning ticket or add the winning amount to a 

credit balance for further play. The game was played entirely on the machine without producing 

a paper pull-tab. The court found that the machine was a Class III facsimile because “the 

machine presents self-contained computer games copying the pull-tab principle, and they are 

played electronically.”26 Autotab was an “exact and detailed copy” of a pull-tab game.27

In Sycuan, the Autotab game was played electronically and encompassed all the aspects 

of a pull-tab game. It was thus ruled a Class III electronic facsimile. Similarly, should an 

electronic poker table or other game encompass all of the aspects of poker, it is a Class III 

facsimile.28 Put simply, a technologic aid merely assists the players. It is a way to play the game, 

not the game itself.

Pari-Mutuel Draw Poker as a Technologic Aid

Pari-Mutuel Draw Poker incorporates many features similar to those of DigiDeal 

Tables into individual player stations that are connected by a closed proprietary 

communications network. The interconnected player stations allow players to compete in 

a common game against others who may not be physically located in the same room or 

gaming establishment. 

The system unquestionably satisfies two of the three regulatory elements of a technologic 

aid. It assists the playing of the game by connecting willing players with competition, accepting 

electronic wagers, shuffling, dealing, determining winning hands, and paying out winnings. It 

also operates on a closed proprietary communications network, which NIGC has previously 

opined complies with Federal communications law.29 The remaining question, therefore, is 

whether it is a facsimile of a game of chance, specifically, whether it replicates a game of chance 

by incorporating all of the characteristics of the game.30

Although it aids players in many of the same ways as the DigiDeal Tables, PariMutuel Draw Poker may also eliminate or replicate some of the key elements of the game 

of draw poker. The rules of a particular Pari-Mutuel Draw game may provide no 

 26 Id. at 542 27 Id. 28 DigiDeal Opinion. 29 See Letter from Tracie L. Stevens, Chairwoman, NIGC, to Tom Foley, Foley Law, PLC, at 5 (July 3, 2013), citing

NIGC Bulletin 2009-03, at 3 (Mar. 9, 2009); and Letter from Penny J. Coleman, Acting General Counsel, NIGC, to

Donald Bailey, President, Atlantis Internet Group Corp., at 2 (Sept. 24, 2009).

30 25 C.F.R. § 502.8
Niels Holch

Re: Pari-Mutuel Draw Poker classification opinion

April 7, 2020

Page 6 of 6

opportunity to place a second bet or fold.31 In such games, the only decision necessarily 

being made by the players would be whether to place the initial wager to enter the game. 

The system does not replace the player actions to bet, bluff, or fold, it merely eliminates 

them from some of its games. The players simultaneously choose whether and which 

cards to replace in the draw within a set amount of time. If a player fails to make a 

selection in the allotted time, all cards which have been affirmatively discarded cards will 

be replaced and all other cards will be deemed to be held by the player.32 Automatic 

selection is a necessary element to keep the game moving for all players. Despite 

eliminating or replicating some aspects of draw poker, the game does not perform these 

functions for the player, it merely eliminates them from the game as opposed to 

incorporating them into the electronic play. Accordingly, the game is not a facsimile of a 

Class II game. 

Conclusion

After careful review, I have determined that Pari-Mutuel Draw Poker is a nonbanked card game, played with an electronic device that aids play and broadens 

participation in compliance with federal communication laws. It does not replicate all 

elements of a game of chance, and is, therefore, not a Class III facsimile. So long as it is 

played in conformity with state laws and regulations concerning hours, periods of 

operation, and limitations on wagers and pot sizes, Pari-Mutuel Draw Poker is a Class II 

game. If you have any questions, please contact Jennifer Lawson, Senior Attorney, at 

202-632-7003.

Sincerely,

Michael Hoenig

General Counsel

 31 Letter To Michael Hoenig, General Counsel, National Indian Gaming Commission, from Niels Holch, re: Request 

for a Game Classification Opinion—Pari-Mutuel Draw Poker, Game Specifications attachment, p. 3 (August 20, 

2018)

32 Id. at 2.