Philip Shea, Esq. 

Shea & Wilks 

200 Wells Fargo Plaza 

100 W. Washington Street 

Phoenix, AZ 85003-1 805 

Dear Mr. Shea: 

This letter responds to your inquiry as to whether the National Indian Gaming 

Commission regards non-banked poker games in Arizona as Class I1 card games under the Indian 

Gaming Regulatory Act (IGRA). For the reasons outlined below, I conclude that non-banked 

poker games are Class I1 card games and therefore subject to tribal and federal regulation only. 

I understand that disagreement has arisen in Arizona between gaming tribes and the 

Arizona Department of Gaming (Department). The Department asserts that poker games played 

at Arizona reservations are illegal as operated inasmuch as they constitute gambling operated as a 

"business for benefit" contrary to Arizona law. The Department argues that because Tribal poker 

games do not comply with this provision of Arizona's gambling laws, that such noncompliance 

transforms poker into a Class I11 game that is lahl only if operated pursuant to a tribal-state 

compact. The Department does not argue that the card games are banked card games, nor does 

the Department assert that the games are being played contrary to State laws regarding hours or 

periods of operation or limitations on wagers or pot sizes. 

The IGRA provides that Indian tribes have jurisdiction over Class I1 gaming, subject to 

oversight regulation by the NIGC. Pursuant to the IGRA, Class I1 gaming includes non-banking 

card games, such as poker, if such card games: 

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

(11) 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 

ofsuch card games or limitations on wagers or pot sizes in such card games. 

25 U.S.C. 5 2703(7)(A)(ii). 

The issue of whether the "business for benefit" provision of state law applies to Indian 

1441 L STREET, N.W. BTH ROOR WASHINOTON, D.C. 2OOOS TEL.: 202-632-7003 FAX: 202-632-7088 
tribes in Arizona raises the question of the extent to which the IGRA assimilates state law. It is 

our view that the IGk4 preempts the application of all State law operating requirements save for 

those specified in the statute---pot size, hours, and wagers. The principle which applies to the 

issue is that enunciated by the court in United States v. Sisseton-Wahpeton Sioux Tribc, 897 F.2d ,. 

358, (8th Cir. 1990): 

"we believe that the legislative history [of IGRA] reveals that Congress 

intended to permit a particular gaming activity, even if conducted in a 

manner inconsistent with state law, if the state merely regulated, as 

opposed to completely barred, that particular gaming activity." 

u. At 365. Thus the classification of poker depends on whether the game is explicitly authorized 

or not explicitly prohibited by the laws of Arizona. 

Gambling in Arizona is governed by the statutes at Chapter 33, Title 13, Arizona Revised 

Statutes, $9 13-3301 through 13-33 12. Arizona permits gambling under several circumstances, 

such as social, regulated, and charitable gambling. A.R. S. 9 13-3302. Section 13-3304 prohibits 

"benefitting fiom gambling," but excepts from its provisions "amusement or regulated gambling," 

and provides that "benefitting from social gambling as a player is not unlawful under this section." 

Section 13-3303 makes it a crime to promote gambling, but excepts from its provisions activities 

associated with "amusement, regulated, or social gambling." Neither poker nor any other card 

game is mentioned in the Arizona statutes. In fact, the statutes do not identie any particular forms 

of gambling; instead they are aimed at regulating the circumstances under which gambling may 

legally occur in Arizona. Poker is, therefore, permitted in Arizona. 

The next step in the analysis is to determine whether poker is "played at any location in the 

State," pursuant to 25 U.S.C. $ 2703(7) (A)@). Because poker is "not explicitly prohibited by 

the laws of the State, " poker is a class I1 game if it is played at any location in the state, subject 

to limits on hours or periods of operation and wagers or pot sizes. The Gla River Indian 

Community submitted ample evidence to show that poker is played in Arizona. Such evidence 

consists primarily of advertisements for charity functions at which poker games were offered, as 

well as an affidavit from a private investigator who witnessed poker tables at several events 

around the State. Importantly, The Department does not disagree that poker is played lawfully in 

the State of Arizona. 

The only remaining consideration is whether poker is being "played in conformity with 

the 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). As 

indicated above, card games are not specifically mentioned in Arizona's gambling statutes. There 

are, therefore, no laws or regulations governing the limitations referred to in the IGRA. 

As pointed out by the court in the Sisseton decision, the legislative history of IGRA 

supports this view, and reveals a Congressional intent to authorize only specific limited state law 

restrictions on Class I1 card games. The Senate Report accompanying the bill ultimately enacted 

as the IGRA, S. 555, discusses the section which requires non-banking card games to conform 
with state regulation3 on periods of operation and wagers or pot sizes: 

Subparagraphs (I) and (11) [of 25 U.S.C. $2703(7)(A)(ii)] are 

to be read in conjunction with [25 U.S.C. $27101 sections (a)(2) 

[which provides that class I1 gaming shall be within the 

jurisdiction of the Indian tribes] and (b)(l)(A) [which 

provides that an Indian tribe may engage in class I1 gaming 

if it is located within a State that permits such gaming for 

any purpose] to determine which particular card games 

are within the scope of class 11. No additional restrictions 

are intended by these subpararaphs. The Committee 

notes that, while existing law does not require that 

Indian card games conform with State law, it agreed 

to adoption of bill language to provide that these card 

games be operated in conformity with laws of statewide 

application with respect to hours or periods of operation, or 

limitations on wagers or pot sizes for such 

card games. 

S.Rep. No. 446, 100th Cong., 2nd Sess. at 9 (1988), reprinted in U.S.C.C.A.N. 3071, 3079. 

(Emphasis added). Furthermore, the Senate Report states that: 

Class I1 continues to be within tribal jurisdiction but will be 

subject to oversight regulation by the National Indian Gaming 

Commission; card games must be played under state-mandated 

hour and pot limits, if any. 

S.Rep., supra at 7. Thus, Congress intended that non-banking card games did not have to 

conform with state law requirements other than those expressly stated. As long as the card games 

are explicitly authorized or not explicitly prohibited by the laws of the state, tribes may operate 

them, subject to the limits on hours and periods of operation, and wagers and pot sizes. 

Therefore, because poker is a class I1 game in Arizona, I conclude that tribes may operate 

poker subject to Tribal and NIGC regulation and any State regulation concerning hours or periods 

of operation and pot and wager sizes. 

Sincerely, 

Penny Coleman 

Acting General Counsel 
cc: Chairman Wijliam Antone, Ak-Chin Indian Community 

Chairman Gilbert Jones, Sr., Fort McDowell Mohave-Apache Indian Community 

Chairman Benito Valencia, PascuaYaqui Tribe 

Chairman Edward Manuel, Tohono O'odham Nation 

Chairman David Kwail, Camp Verde Yavapai-Apache 

Chairwoman Vivian Burdette, Tonto Apache Tribe 

President Stan Rice, Jr., Yavapai-Prescott Indian Tribe 

Chairman Raymond Stanley, San Carlos Apache Tribe 

Chairman Ronnie Lupe, White Mountain Apache Tribe 

Governor Mary V. Thomas, Gla River Indian Community 

President Ivan Makil, Salt River Pima-Maricopa Indian Community 

Gary Husk, Director, Arizona Department of Gaming 

Arizona Governor Jane D. Hull 

Eric Dahlstrom, Esq., Rothstein, Donatelli, Hughes, Dahlstrom, Cron and Schoenberg 

Heidi McNeil, Esq., Snell & Wilmer 

Janet A. Napolitano, United States Attorney 

John Kelly, United States Attorney 

Kevin DiGregory, Department of Justice 

Jim Simon, Department of Justice