Dennis Fitzpatrick, CEC 

Siyeh Corporation, 

P.O. Box 1989 

Browning, MT 59417 

Fax: (4066) 338-5393 

Via Facsimile and First CIIass Mail 

Re: Jack Attack at Gle cier Peaks Casino 

Dear Mr. Fitzpatrick: 

I am responding to your June 22,2007 notification that the Glacier Peaks 

Casino intends to offer "lack Attack." Thank you for the detailed information you 

have provided. I have re viewed the game description, the March 28,1996 NIGC 

decision on this game as it is played in Colorado, and reIevant Montana statutes 

and reguIations. In several respects I agree with your analysis: the game is not 

banked, and it is not blat ekjack. However, it is aIso my considered opinion that 

a. Jack Attack in Montana c Ioes not meet the elements of IGRA's definition of a Class 

I1 card game. While the game is not banked, it is explicitly prohibited by the laws 

of Montana. It is my opinion, therefore, that Jack Attack is not Class I1 in 

Montana. 

For Jack Attack to be played as a Class I1 game in Montana, it must meet the 

definition of a Class IT g me within the Indian Gaming Regulatory Act (TGRA). 

Under IGRA, a Class I1 card game must meet two criteria: first, it may not be 

banked, 25 U.S.C. 2703(7)(&)); and second, it must be "explicitIy authorized by the 

laws of the State, or . . . not explicitly prohibited by the Iaws of the State and [be] 

played at any Iocation in the State . . . ." 25 U.S.C. 5 2703(7)(A)(ii). 

On March 28,19911, the NIGC opined that an identical version of Jack 

Attack was a CIass I1 gar le as it was played in CoIorado. That opinion, however, 

addressed only the first part of the Class I1 game analysis by concluding that Jack 

Attack is not a banked game. In this case its classification depends upon the latter 

part of the definition, 27(O(7)(A)(ii), i.e. whether Jack Attack is permitted or 

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prohibited in Montana. Depending on the Iaws of the state, a game may be Class 

11 in one state and not ir another. Therefore, although this game has the same titIe 

and description as one we opined was CIass I1 in Colorado, the Iaws of Montana 

prohibit Jack Attack. 

En Montana, "[all[ forms of gambling, Iotteries, and gift enterprises are 

prohibited unless autho -ized by acts of legislature or by the peopIe through 

initiative or referendum " Mont. Const. art. 111,s 9. This prohibition is reiterated 

in state statute: "Except as specifically authorized by statute, all forms of public 

gambling, lotteries, and pft enterprises are prohibited." Mont. Code Anno. 5 23- 

5-151 (2005). 

The state IegisIahlre has authorized severaI card games, but Jack Attack is 

not among them: "the cz rd games authorized by this part are and are limited t;o 

the card games known as bridge, cribbage, hearts, panguingue, pitch, pokes, 

rummy, solo, and whist." Mont. Code Anno. 3 23-5-321 (2005). The legisIature 

then reiterated that if thr: game is not specifically allowed, it is prohibited, "A 

person may conduct or ~mticipate in a live card game . . . only if it is specifically 

authorized by this part. . . ." Id. 

Further, in Palmel. v. Sfnfe, the Supreme Court of Montana specificdly held 

that blackjack was not ir cluded among the card games authorized by statute and 

was, therefore, illegal. 131 Mont. 534 (1981). In other words, the court in Palmer 

did not decIare the gamt* illegal because it was bIackjack but because it was not 

"bridge, cribbage, hearts, panguingue, pitch, poker, rummy, solo, [or] whist." 191 

Mont. 534 (1981), citing IAont. Code Anno. 5 23-5-311 (2005). In short, because Jack 

Attack is specifically prc hibited in Montana, it is not a Class I1 game there. 

AIthough you halre not suggested the possibility that Jack AHack is a 

version of any of the specifically authorized games, I believe it bears enough 

simiIarity to poker to w; rrant discussion. It is my opinion, however, that jack 

Attack is not poker, and thus the discussion here does not alter my opinion. 

According to the game description you submitted, Jack Attack is played as 

folIows: 

a The players put up an ante that the dealer coIlects for the 

casir 10. 

The players then make bets of a posted size with all players 

wagering the same amount. 
Chairman Houle letter, pa::e 3 of 4 

The pIayer bets are pooIed into a common pot, which will bc 

paid to the winner of the hand. 

Tht re is no dealer hand. 

Each pIayer is deaIt two initial cards. 

Thr highest score is 21 (Ace and Jack is the highest hand 

pos sibIe) . 

There is no splitting pairs, doubling down or insurance, 

Pla~rers may hit or stand as they wish. 

An71 score over 21 is a "bust." The bet for that hand is 

colixted and goes into the pot. The player is out for that 

hand. 

Suii s do not count in scoring hands. 

Acc counts as I or 11. 

The player with the highest hand wiII win the pot. 

There are four possible outcomes: 

Q To have the highest score and be awarded the pot; 

o To tie scores with another pIayer (a tie wilI roII the pot 

over to the next hand); 

o To bust; 

o To stand on a hand and be beaten by another player 

with a higher hand score. 

In contrast, Montana At lministmtive Rule 23.16.1201(15) defines poker generally: 

"Poker" means a zard game played by at least two players who bet 

against each othe: and settle with each other and not against the 

house. Poker is dealt by one dealer on a card table. A player bets 

on the card (hand) the player holds. There may be an initial ante 

round and /or bli ~d bet by the pTayers. After the pIayers receive 

their stamg carc , there are one or more betting rounds. After all 

the dealing of car Is and betting has occurred for a pot and there 

are two or more r Iayers still in contention, there is a showdown 

based on a maxintum of five cards. The object of the game is for a 

player to win the pot either by making a bet no other pIayer is 

wilIing to match or by having the best hand as described in these 

ruIes. 

Certainly, Jack At tack shares some of the qualities of poker in that players 

are playing against each other rather than the house. In the objective and betting, 

however, Jack Attack is Irery different from poker. In poker, betting plays a key 
Chairman Haule letter, pa3e 4 of 4 

role in the game: p1aye:-s win either because they had the best hand overall and 

stayed in the game, or because they bet in such a way that caused those with 

better hands to drop ou:. In Jack Attack, the pIayer who is dealt the best hand 

always wins and the be has no role in determining the outcome of the game. 

Furthermore, there are two other important differences between Jack Attack and 

poker. Poker hands are customarily reduced to five cards, and they foElow a 

standard hierarchy of kmds (i.e. royal flush, straight flush, four of a kind, full 

house, Rush, straight, etc.). AIbert H. Morehead, Richard L. Frey, and Geoffrey 

Mot-t-Smith, 77ze Ne7u Complete Huyle, revised 5,6 (Doubleday 1991) (1947). In 

contrast, Jack Attack can be played with as few as two cards per hand and the 

winner is determined nr rt on a hierarchy of hands but on simple addition. For 

further ~Iarification on the ruIes of poker, Montana Administrative Rule 

23.16.1201 (2) refers to t.f e Montana Poker Rulebook (1990 edition) and Scarne's 

Encyclopedia of Card Games, copyright 1983, by John Scarne, pages 18-276. 

Lacking the betting, bblu :fing, and ranking of hands that are the hallmarks of 

poker, Jack Attack is no. poker. 

Because Jack At-txk does not fall within any of the permissible categories of 

card games, and becausd: Montana law expIicitEy prohibits all other card games 

played for money, Jack Ittack cannot be classified as a Class 11 game within the 

definition of IGRA, desr lite its non-banked nature. 

Therefore, it is m r opinion that under the description provided, Jack Attack 

is not a Class I1 game within the state of Montana, and without legalization by the 

State, its play is a violation of IGRA. The NIGC Chairman may levy fines of up to 

$25,000 per day or even close a casino for games played in violation of IGRA. If 

Glacier Peaks already offers this game for play, I urge you to stop. Please send a 

Iettcr to the NIGC Regic n IV Director, John Guerber, letting him know how you 

intend to proceed by thf close of business on March 25,2008. You may reach him 

at 651-2904004, by fax at 651-2904006, or 190 East 5th Street, Suite 170, St. Paul, 

MN 55102. 

Sincerely, 

Penny J. ?&eman 

General. Counsel (Acting;) 

cc: Attorney General. State of Montana 

John Guerber, Nlr3C Region IV Director of Enforcement