Markham C. Erickson 

McGuiness & Holch Law Offices 

400 N. Capitol Street, NW 

Hall of States Bldg., Suite 585 

Washington, D.C. 20001 

I Re: Game Classification Opinion - "Poker Club" 

Dear Mr. Erickson: 

The purpose of this letter is to respond to your request of March 30, 1998, on behalf of 

the Oneida Indian Nation ("Nation"), in which you ask the National Indian Gaming Commission 

("NIGC") to issue an advisory opinion on whether "Poker Club"' constitutes a class II or class I11 

game in the state of New York as defined by the Indian Gaming Regulatory Act ("IGRA), 25 

U.S.C. 5 2701, et seq. For the reasons outlined below, we conclude that non-banked poker games 

are class I1 card games in the state of New York and therefore are subject to tribal and federal 

regulation only. 

The Nation is considering establishing a poker club within its Turning Stone Casino. The 

Turning Stone Poker Club ("Club) would be established for social purposes and as a convenience 

to its Casino customers. As described in the submission documents, the Club would be a nonprofit membership organization, open to all patrons of the Turning Stone Casino. To join, patrons 

would be required to complete a membership application and pay annual dues. As a privilege of 

joining the Club, members would be permitted to play various forms of poker against other Club 

members for stakes in a room designated for this purpose within the Casino. In turn, the Club 

would supply a dealer at each poker table to facilitate the game, with players paying a fvted fee 

to the Club based on the amount of time spent playing at each table. As proposed, Turning Stone 

and its dealers would not have an interest, financial or otherwise, in the outcome of any poker 

game. Club members would play only against each other and all wagering would be entirely at the 

discretion of each player. 

The Indian Gaming Regulatory Act 

IGRA creates three classes of gaming which differ in the 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, 

'The NIGC is issuing this advisory opinion on whether the proposed forms of poker to be 

played at the "Poker Club" constitute class I1 games. 

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1441 L STREET, N.W. 9lH FLOOR WASHINGTON, D.C. 20005 EL.: 202-632-7003 FAX: 202-632-7066 
tribal ceremonies or celebrations." 25 U.S.C. 5 2703(6). Class I1 gaming includes bingo, related 

activities, and certain non-banking card games. 25 U.S.C. 5 2703(7)(A). IGRA specifically 

excludes any banking card games fiom classification as a class I1 game. 25 U.S.C. 5 2703(7)(B). 

Class III gaming is defined as "all forms of gaming that are not class I gaming or class I1 gaming." 

25 U.S.C. 5 2703(8). 

Indian tribes have jurisdiction over class I1 gaming. 25 U.S.C. 271 d(al(2). Class I1 

gaming is generally not subject to state regulation, but is subject to federal oversight by the NIGC. 

25 U S.C. 5 2710(b), (c). Class 11 gaming includes non-banking card games 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 of such card games or limitations on wagers or pot sizes in such card 

games. 

25 U.S.C. 5 2703(7)(A)(ii). Therefore, for poker to qualifjl as class I1 gaming, New York state 

law must explicitly authorize or not explicitly prohibit its plzy, and it milst be played legally 

somewhere in the state. See 25 C.F.R. 5 502.3(~)(1). 

As mentioned above, IGRA specifically excludes any banking card games fiom 

classification as a class I1 game. Therefore, the first inquiry centers around whether poker is a 

non-banking card game. See 25 C.F.R. 5 502.3(c). Banking games, as commonly understood 

and as defined in NIGC regulations, are games in which the banker (usually the house) takes 

on, that is, competes against, all players, collecting from losers and paying winners. See 25 

C.F. R. 5 502.11. conversely, non-banking card games are games where players play against 

each other. Poker is the typical example of a non-banking card game. 

As proposed, the players in the Nation's Club would play against each other in a nonbanking format, not against the house or other banker. Turning Stone and its dealers would not 

have an interest, financial or otherwise, in the outcome of any poker game. Thus, the poker games 

to be played at the Club qualifjl as non-banking card games. 

State Law 

States can influence class I1 gaming on Indian lands within their borders only if they 

prohibit those games for everyone under all circumstances. See Gaming Corp. of America v. 

Dorsey & Whifney, 88 F.3d 536, 544 (8th Cir. 1996) (citing 25 U.S.C. 5 2710(b)(l)(A)). It is 

important to note the congressional finding set forth in IGRA that "Indian tribes have the exclusive 

right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited 

by Federal law and is conducted within a State which does not, as a matter of criminal law and 
public policy, prohibit such gaming activity." 25 U. S.C. Q; 27 1 O(5). As a result, we must review 

New York's gambling statutes to determine whether New York explicitly authorizes or does not 

explicitly prohibit the play of poker. 

The New York State Constitution provides, in pertinent part, that "no . . . gambling. . . 

shall hereafter be authorized or allowed within this state; and the legislature shall pass appropriate 

laws to prevent offenses against any of the provisions of this section." N.Y. CONST., art. I, tj 9, 

cl. 1. Despite the ominous tone of this constitutional provision, in fact the state legislature has 

created a number of "exceptions" and has established a Racing and Wagering Board. The 

legislature has addressed the play of various games of chance but it has not enacted any specific 

statutory provision authorizing the play of poker.2 In the absence of express approval to the 

playing of poker, the crucial determination becomes whether New York explicitly prohibits its 

play. 

New York's constitutional provision relating to gambling is not self-executing. See People 

v. Wilkerson, 342 N.Y.S.2d 936,942 (N.Y.Co.Ct. 1973). The New York constitution directs the 

Legislature to "pass appropriate laws to prevent offenses against any of the prcl~isions of this 

section." N.Y. CONST., art. I, 4 9, cl. 1. The constitutional provision "requires enforcement by 

the Legislature." Wilkerson, 342 N.Y.S.2d at 942 (citations omitted). Therefore, gambling is not 

a crime unless made so by statute. People ex rel. Collins v. Mchughlin, 1 13 N.Y. S. 188, 197 

(N.Y. A.D. 1 Dept. 1908), appeal dismissed, 194 N.Y. 5 56 (N.Y. 1 909). 

As directed, the State Legislature "has legislated in the field of gambling and by the Penal 

Law, delineated the conduct to be prohibited throughout the state." Wilkerson, 342 N.Y.S.2d at 

942. Significantly, "[tlhe only gambling activities which are prohibited are promoting gambling 

(PL §§ 225.05 and 225.10), possession of gambling records (PL 9s 225.15 and 225.20) and 

possession of a gambling device (PL 8 225.30)." PeopIe v. Melton, 578 N.Y.S.2d 377, 378 

(N.Y.Sup. 1991). Therefore, playing or engaging in its play are not explicitly prohibited by New 

York penal laws. 

New York state penal law follows the policy of penalizing only the promoter and not the 

player. See Watts v. Malatesta, 262 N.Y. 80, 82 (N.Y. 1933) (casual betting or gaming by 

individuals as distinguished Erom betting or gambling as a business or profession, is not a crime). 

New York has not treated individual participants in gambling games as criminals. Melton, 578 

2 Since the passage of the Constitution in 1894, the Legislature has amended the 

Constitution numerous times and authorized the following forms of gambling: (1) pari-mutuel 

wagering on horse racing, N.Y. CONST., art. I, 5 9, cl. 1 (amended 1939); (2) bingo for certain 

religious, charitable or non-profit organizations, N.Y. CONST., art. I, fj 9, cl. 2[a] (amended 

1957); State operated lotteries, N.Y. CONST., art. I, 5 9, cl. 1 (amended 1966); and (4) games of 

chance run by certain religious, charitable or non-profit organizations. N.Y. CONST., art. I, 9 9, 

cl2[b] (amended 1966). However, none of these constitutional authorizations are relevant to this 

matter. 
N. Y.S.2d at 378. Participating in gambling games on the same terms as other players for 

amusement or recreation is lawhl. See Wilkersort, 342 N.Y.S.2d at 940. More specifically, the 

"Legislature . . . has excluded the 'player' from the reach of the Fenal Law." Id. 

New York gambling laws are "intended and designed to sanction and facilitate the 

prosecution of the professional book-maker and other professional operators and promoters of 

unlawful gambling activity. The individual player or bettor is excluded from its prohibitions. 

People v. DiCarlo, 309 N.Y.S.2d 791, 792 (N.Y.Co.Ct. 1970). Although "promoting" the play 

of poker may be unlawfbl, participating in gambling games on the same terms as.other players for 

amusement or recreation is lawful. See Wi'lkerson, 342 N.Y.S.2d at 940. 

The fact that New York's penal code prohibits the promotion of gambling is not the 

significant factor. The determining question is whether the state criminal laws prohibit the play 

of the game, in this case poker. As we have seen, the penal code does not make the play of poker 

a criminal violation. 

New York "regulates" rather than "prohibits" gambling in general. Therefore, the play of 

poker is not seen as totally repu,onant to the State's public policy. See Mashantucket Peqout Tribe 

v. State of Connecticut, 913 F.2d 1024, 1021 (2nd Cir. 1990) (Connecticut law applicable to class 

111 gaming is regulatory rather than prohibitive; thus, under IGRA, Connecticut was required to 

enter into good-faith negotiations with Indian tribe for purpose of formulating tribal-state 

compact). 

There is no serious dispute that poker is played within private homes and public locations 

throughout the State of New York. We conclude, therefore, that the requirement contained in 

section 2703(7)(A)(ii), for the game to be "played at any location in the state," is also ~atisfied.~ 

CONCLUSION 

The types of poker the Nation wishes to operate at its Club are not prohibited by the penal 

laws of the state of New York and are legally played within the State. Therefore, poker qualifies 

as a class I1 card game in New York, under IGRA. See 25 U.S.C. $ 2710(b)(l)(A). 

As a final matter, the Oneida Indian Nation may offer non-banking poker at its Club as 

'The Oneida Indian Nation submitted evidence to show that poker clubs are operated in 

the State of New York. According to the submission documents, in New York City, there are 

dozens of private clubs that offer poker games. See Francis X. Clines, Tell A Lie? No. But 

Gambling.? Count Him In?, N.Y. Times, February 20, 1994 at Sec. 1, pg. 39, Column 1. 

Another recent New York Times article stated, "New Yorkers can play poker . . . in joints around 

Manhattan that require a membership fee and charge for rent for occupying a chair." Walter 

Goodman, My New York; Where Your Destiny Is in Your Hands and the Pot S the Limit, N. Y. 

Times, Sept. 26, 1997 at Sec. E, Part 2, Page 45. 
class I1 gaming, so long as it is being "played in conformity with the laws and regulations (if any) 

of. . . mew York] State regarding hours or periods ofoperation of such card games or limitations 

on wagers or pot sizes in such card games." 25 U.S.C. 5 2703(7)(A)(ii). Since social poker 

games are presently not regulated in New York, there are no rules on hours, periods of operation, 

wagers or pot sizes. 

If you have any questions or concerns, please feel free to contact Todd J. Araujo, Staff 

Attorney, at (202)632-7003. 

Barry W. o rand in 

General Counsel 

cc: Alan Fedman, Director of Enforcement, NIGC 

State of New York Racing 

And Wagering Board 

1 Watervliet Ave. Extension, Suite 2 

Albany, New York 12206- 1668