Rachel Romo, Chairperson 

Tribal Gaming Commission 

Kickapoo Traditional Tribe of Texas 

Rt. 1, Box 9748 

Eagle Pass, TX 78852 

Re: Kickapoo Lucky Eagle Casino K-21 (Blackjack) 

Dear Chairperson Romo: 

This responds to your letter dated January 28, 2004, requesting an advisory game 

classification opinion for Kickapoo Lucky Eagle Casino K-21 (Blackjack). You enclosed 

a copy of the applicable rules and procedures for the game with your letter. On October 

28,2004, we received a letter from Attorney Joseph Webster presenting a legal argument 

for play of K-21 Blackjack as a Class I1 game under the Indian Gaming Regulatory Act 

(IGRA). After careful consideration of these materials we conclude that K-21 Blackjack 

is not a Class I1 game under IGRA and National Indian Gaming Commission (NIGC) 

regulations but is a Class 111 gaming activity to be played, if at all, pursuant to a TribalState Compact, or Procedures issued by the Secretary of the Interior in lieu of such a 

compact. 

Game Description 

In K-21 Blackjack, players buy chips from a cashier or the dealer and place bets on 

individual hands using the chips. Each player also pays an "ante" to the house based on 

the amount wagered ($.50 per each 25.00 bet or part thereof). The house keeps the ante 

to cover its expenses. Players compete against the dealer's hand. Players beat the dealer 

by forming a hand that totals 21, or as close to 21 without going over. If a player beats 

the dealer he is awarded an amount of chips equal to the amount risked with a higher 

payout for obtaining a "Kickapoo 21" blackjack. If a player loses the bet or "busts" that 

amount is removed from his betting area and placed in the dealer rack. Every hand 

results in either a win for the player or a win for the dealer. The dealer pays each 

winning hand. According to Mr. Webster's letter, certain hands obtained by a player may 

result in additional prizes, such as obtaining a score of 21 with three 7s. A winning 

player may redeem chips for their designated cash value from the cashier. The rules of 

this blackjack game are fundamentally the same as traditional blackjack. See Walter B 

Gibson, Hoyle 's Modern Encyclopedia of Card Games (1974) 32-35, 371. also 

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

REGIONAL OFFICES Portland. OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN;Tulsa. OK 
Rachel Romo, Tribal .Gaming Commission Chairperson 

Re: Kickapoo Lucky Eagle Casino K-21 (Blackjack) 

Page 2 of 5 

Richard L. Frey, According to Hoyle, 205-206 (1 970)(setting forth rules for blackjack or 

"2 1 "). 

The casino attempts to separate itself from the game by including a statement in the rules 

for the game that "the Kickapoo Lucky Eagle Casino does not participate in the actual 

play of the game and has no interest in the outcome of the play. No player(s) ever play 

against or makes a wager against the Kickapoo Lucky Eagle Casino." All wins and 

losses for Kickapoo 21 are distributed through the Kickapoo 21 Player Promotional Fund. 

However, this is an account owned and maintained by the tribal casino. 

Statutes and Regulations 

The Indian Gaming Regulatory Act (IGRA) creates three classes of gaming, each of 

which is regulated with a different degree of tribal, state, and federal oversight. Class I 

gaming consists of "social games [played] solely for prizes of minimal value or 

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

with, tribal ceremonies or celebrations." 25 U.S.C. 9 2703(6). Class I1 gaming includes 

bingo, related activities, and certain card games. 25 U.S.C. 5 2703(7)(A). Class 111 

gaming is defined residually; it includes "all forms of gaming that are not class I gaming 

or class I1 gaming." 25 U.S.C. 2703(8). 

We are asked to determine whether the K-21 Blackjack game meets the definition of 

Class I1 gaming.' Accordingly, we focus on specific provisions in the definition. Under 

25 U.S.C. 9 2703(7)(A), class I1 gaming includes only those games that: 

(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. 

25 U.S.C. § 2703(7)(A)(ii). In addition, the term "class I1 gaming" explicitly does not 

include "any banking card games, including baccarat, chemin de fer, or blackjack (21)[.]" 

25 U.S.C. $2703(7)(B)(i). 

NIGC Regulations track the statutory definitions. The Commission defines Class I1 

gaming to include: 

1 This game does not meet the definition of Class I gaming because it is neither a social game played for 

prizes of minimal value, nor a traditional form of Indian gaming engaged in as part of a tribal ceremony. 
Rachel Romo, Tribal Gaming Commission Chairperson 

Re: Kickapoo Lucky Eagle Casino K-21 (Blackjack) 

Page 3 of 5 

(c) Nonbanking card games that 

(1) State law explicitly authorizes, or does not explicitly prohibit, and are played 

legally anywhere in the state; and 

(2) Players play in conformity with state laws and regulations concerning hours, 

periods of operation, and limitations on wagers and pot sizes. 

25 C.F.R. § 502.3. Commission regulations define Class 111 gaming to include: 

(a) Any house banking game, including but not limited to- 

(1) Card games such as baccarat, chemin de fer, blackjack (21), and pai gow (if 

played as house banking games); 

(2) Casino games such as roulette, craps, and keno; 

25 C.F.R. 5 502.4 

Finally, the NIGC regulations define a "house banking game" as, 

... any game of chance that is played with the house as a participant in the game, 

where the house takes on all players, collects from all losers, and pays all winners, 

and the house can win. 

25 C.F.R. § 502.1 1. 

Discussion 

We do not determine whether K-21 Blackjack is explicitly authorized by Texas State law 

or not explicitly prohibited and played legally in the ~tate.~ Rather we conclude that 

because K-21 Blackjack is a banking card game, it cannot meet the definition of Class I1 

gaming established by IGRA and NIGC regulatory provisions. 

2 Even if it were not a banked card game, the K-21 Blackjack game may fail to satisfy the criteria set out in 

IGRA for permissible class I1 gaming. As stated above, a card game may be classified as Class I1 only if it 

is either explicitly authorized by the state, or it is not explicitly prohibited and played legally somewhere in 

the state. Section 47.02 of the Texas Penal Code expressly provides that a person commits a criminal 

offense if he "plays and bets for money or other thing of value at any game played with cards, dice, balls, 

or any other gambling device." Exceptions for gaming conducted as a "carnival contest" under Section 

47.01(1)(C) or in a "private place" under Section 47.01(8) do not necessarily mean that the game is not 

expressly prohibited and played lawhlly in the State. K-21 Blackjack awards money as a prize not 

"merchandise, with a value less than $25" as contemplated by the "carnival contest" exception. 

Furthermore, the Lucky Eagle Casino cannot meet the definition of "private place," as that term is defined. 

The Secretary of the Interior, through her Office of the Solicitor, is considering similar questions related to 

the scope of gaming that might be allowed based on the Tribe's pending request for Class 111 Gaming 

Procedures in lieu of a tribal-state compact 
Rachel Romo, Tribal Gaming Commission Chairperson 

Re: Kickapoo Lucky Eagle Casino K-21 (Blackjack) 

Page 4 of 5 

As previously noted, the K-21 Blackjack game is fundamentally identical to traditional 

blackjack. Each player plays individually against the dealer only. Players do not play 

against each other. The object of the game is to beat the dealer's hand without exceeding 

twenty-one. A hand of K-21 Blackjack, which is an initial deal of an ace and a card 

valued at ten, is an automatic winner unless the dealer obtains a similar hand. Like 

traditional blackjack, "[elach player bets only with the dealer" or the house which is the 

banker. See Albert H. Morehead, Richard L. Frey, Geoffrey Mott-Smith, The New 

Complete Hoyle Revised, 492 (1991). The house, through its dealer takes on all players; 

players do not compete against one another. 

The Kickapoo 21 Player Promotional 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 or, using 

the NIGC regulatory definitions, a house-banking game. In fact, this fund is the bank. 

The Casino established and initially seeded the fund and maintains exclusive control of 

the fund at all times. It controls all disbursements to and from the fund. Players have no 

voice in distribution of funds other than to claim an individual win. If the fund is 

depleted, the Casino will "lend" money to the fund on the condition that the loan will be 

repaid. While Mr. Webster's letter asserts that the Casino is under no obligation to see 

that players in the game are paid, in practice the Casino would find if difficult if not 

impossible to tell a winning player that his win would not be paid because the fund was 

out of money. The fund is an accounting mechanism without legal significance in the 

determination of whether the game is considered Class 11. The fund is banking the game 

by participating in the game through its dealer, paying all winners, collecting from all 

losers, and having an interest in the outcome of the game. If the player loses, the "fund" 

wins. 

The common thread in Class I1 card games is that players participate against each other 

and not against the house. Poker is an example. The house provides the cards and may 

employ a dealer to distribute the cards, but the dealer does not play a hand. The only 

participants are the players. In blackjack, including K-21 Blackjack, the dealer is a 

participant: she wins or loses each game against each player. Players at the table do not 

play for a better hand than that held by another player. They play only to obtain a better 

hand than the dealer. K-21 Blackjack remains a house-banking game, even though the 

house may employ a creative accounting tool in an attempt to show otherwise. 

This analysis finds support in the legislative history for IGRA. The Senate Report on 

S.555 which became IGRA explained the difference between banking and non-banking 

card games: 

Section 4(8)(A)(ii) provides that certain card games are regulated as class I1 

games, with the rest set apart and defined as class I11 games under section 4(9) 

and regulated pursuant to section 1 l(d) [codified as 25 U.S.C § 2710(d)J. The 
Rachel Romo, Tribal Gaming Commission Chairperson 

Re: Kickapoo Lucky Eagle Casino K-21 (Blackjack) 

Page 5 of 5 

distinction is between those games where players play against each other rather 

than the house and those games where players play against the house and the 

house acts as banker. The former games, such as those conducted by the Cabazon 

Band of Mission Indians, are also referred to as non-banking games, and are 

subject to the regulatory provisions pursuant to section 1 1 (a)(2) [codified as 25 

U.S.C.5 2710(a)(2)]. 

S. Rep. No. 446, 100th Cong. 2d Sess. 9 (1988) (emphasis added). This passage of the 

Committee Report is instructive in understanding what the Committee meant by "nonbanking." In the view of the Committee, non-banking card games are games where 

players play against each other. As noted above, the game of poker would be the typical 

example. 

Conclusion 

We conclude that Kickapoo 21 Blackjack as described in the material presented to us 

does not qualify as Class I1 gaming under IGRA. Play should be suspended immediately. 

Please contact our Region V office for further discussions on a process to dissolve the 

player Kickapoo 2 1 Player Promotional Fund, if assistance is required. 

IGRA requires that tribes operate Class I11 games under a tribal-state compact or Class I11 

Procedures issued by the Secretary of the Interior in lieu of a compact. In the absence of 

a compact or Secretarial Procedures, tribes may operate only Class I or Class I1 games. 

At this time, we do not present an opinion on whether or not the game would fit within 

the permissible scope of gaming under a compact with the State of Texas or under 

Secretarial Procedures issued in lieu of a compact. 

Finally, Mr. Webster's letter indicated that the Tribe would like to meet with us if we 

concluded the game is Class 111. If you would still like to meet with us, please contact 

Senior Attorney Bill Grant to arrange a meeting. 

Sincerely, 

Penny J. Coleman 

Acting General Counsel 

Cc: 

Joseph Webster, Esq.