Memorandum 

To: George T. Skibine, Chairn1an (Acting) 

To: Nonnan H. DesRosicrs, Vice Chairman 

From: Penny J. Coleman, General Counsel (Acting) <i/Gf-c 0 "'""' ... -

Subject: Classification of card games played with technologic aids. 

Date: December 17, 2009 

On December 21. 2004. the Office of General Counsel issued a game 

classification opinion for the DigiDeal Digital Card System (DigiDeal). The 2004 opinion 

concluded that DigiDeal is a Class IH game ''because the use of technologic aids does not 

come within the Indian Gaming Regulatory Act's definition of Class II gaming." Upon 

reconsideration, I have determined that the 2004 opinion's ultimate conclusion was not 

the best interpretation ofIGRA. r have therefore revisited the issue and reached a 

different, better conclusion. 

lGRA 's definition of Class II gaming includes non-banked card games w1lcss 

certain exceptions apply, in which case the game is Class UL The use of a technologic aid 

is not one of the listed exceptions. Jn spite of this, though, does an otherwise Class II card 

game become Class In when played with a tecbnologic aid? As will be discussed below, 

it does not. The definition of Class ll gaming does not exclude card games played with a 

technologic aid and, therefore, such games are Class II. 

There are three classes of gaming under IGRA. Class l, which is nol at issue berc, 

means "social games 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. § 2703(6). Class fl is defi ned, in reJevant part, as: 

(i) the game of chance commonly known as bingo (whether or not 

electronic, computer, or other technologic aids are used in connection 

therewith) -

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Page 2ofI1 

(I) which is played for prizes, including monetary prizes, with 

cards bearing numbers or other designations, 

(II) in which the bolder of the card covers such numbers or 

designations when objects, similarly numbered or designated, are 

drawn or electronically determined, and 

(Ill) in which U1e game is won by the first person covering a 

previously designated arrangement of numbers or designations on 

such cards, including (if played in the same location) pull-tabs, 

lotto, punch boards, tip jars, instant bingo, and other games similar 

to bingo, and 

(ii) card games that -

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

(II) arc 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 

gan1cs or limitations on wagers or pot sizes in such card games. 

(B) The term ··Class ll gaming'· does not include 

(i) any banking card games, including baccarat, chemin de fer, or 

blackjack (21 ), or 

(ii) electronic or electromechanical facsimiles of any game of chance or 

slot machines of any kind. 

25 u.s.c. § 2703(7). 

Class Ifl is a catch-all category that includes "all forms of gaming that are not 

Class I gaming or Class II gaming." 25 U .. C. § 2703(8). 

Though IGRA docs not define tec/1110/ogic aid or electro11ic facsimile. NIGC 

regulations clarify that a tecbnolog1c aid is any device that: 

I. 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. 
Page 3 of11 

25 C.F.R. § 502.7(a). The regulations also define electro11icfacsimile, in relevant part, as 

' a game played in an electronic or electromechanicaJ format that replicates a game of 

chance by incorporating all of the characteristics of the game .... " 25 C.F.R. § 502.8. 

Game and Equipment 

As described in the 2004 opinion, DigiDeal is an electronjc card table the size and 

arc shape of any common, felt-covered table used in casinos for games like Pai Gow 

Poker or Let it Ride Poker. The dealer stands in his or her customary place, and there arc 

six player positjons, each with a video screen built in. 111 lieu of an ordinary deck of 

cards, those screens display video representations of cards. The dealer shuffles, deals, and 

controls play by pressing buttons on a device made to look like a dealer's shoe. There arc 

spots in each player position for placing antes and bets, and the spots are equipped with 

sensors so that the table can determine the number of players that begin each hand, the 

nwnber that continue to play or fold, and the amounts wagered. 

Technologic Aid to a Class ll Card Grune 

Although this memo disagrees with the 2004 opinion's ultimate resolution, I 

concur with its analysis concluding that the DigiDeal table constitutes a technologic aid 

rather than an electTonic or electrornechanjcal facsimile. 

Tl1e DigiDeal table satisfies the first element of a technological aid-that it assists 

the player or the playing of a game. The table assists play by displaying each player's 

hand, thus making it easier to decide whether to continue or to fold. The table also 

identifies qualifying hands, hands that were folded, and the amount of the pot won, thus 

making the play of the game simpler and more accurate. 

The table also satisfies the third element, that it "is operated in accordance with 

applicable Federal communjcations law." 25 C.F.R. § 502.7(a)(3). The table is not linked 

with other tables and, in communicating with the dealer's shoe, apparently meets FCC 

regulations on radio emissions. 

That leaves the second element of the definition, that the table "not be an 

electronic or electromechanicaJ facsimile of a game of chance." It is not. NIGC 

regulations define electronic or electromechanical facsimile, in relevant part, as " a game 

played in an electronic or electromechanical fonnat that replicates a game of chance by 

incorporating all of the characteristics of the game ... :• 25 C.F.R. § 502.8. Though courts 

have adopted this definition as it reads, see, e.g., United States v. Santee Sioux Tribe of 

Nebraska, 324 F.3d 607, 615 (8th Cir. 2003), until the 2004 DigiDeal opinion, no one had 

tried to make the distinction between a techoologic aid and a facsimile for an electronic 

game of cards. Regardless of the analysis's novelty at the time. though, it correctly fow1d 

the table is not a facsin1ile because it does not incorporate all of the characteristics of 

poker. That fact has not changed in the ensuing years. 
Page 4of11 

In Sycua11 Band of Mission Indians v. Roache, 54 F. 3d 535 (91h Cir. 1994 ), for 

example, the Ninth Circuit reviewed a wholly electronic puU-tab game in which the 

player bought and played pull-tabs generated by computer and displayed on a video 

screen without producing a traditional paper-pull tab. The court concluded that this was 

an exact, self-contained copy of paper pull-tabs and thus an electronic facsimile. While 

we still follow the holding in Sycuan. pull-tab machines that merely dispense and display 

the results of paper pull-tabs are not facsimiles. Id. at 542-543. 

In Diamond Game \'. Reno, 230 F.3d 365, (D.C. Cir. 2000), the machine in 

question, Lucky Tab JI, sold and dispensed paper pull-tabs from a roll. The machine also 

read and displayed the results of each tab, presenting those results in such a way as to 

resemble a three-reel slot machine. Nonetheless, the paper tabs could be played and 

redeemed manually. The D.C. Circuit held, therefore, that the Lucky Tab 11 dispenser was 

not an electronic facsimile containing all characteristics of pull tabs and thus was not a 

Class UJ device. The "game is in the paper rolls," the court held, and the Lucky Tab II is 

"little more than a high-tech dealer." Id. at 370. Like Lucky Tab II. DigiDeal is a "high 

tech dealer." 

Video Poker machines commonly found in Class Ill and non-Indian casinos are 

examples of electronic facsimiles. The typical machine accepts bets, deals a poker hand, 

evaluates that hand against the standard poker rankings, and pays winning hands 

according to paytables. Thus, the machine incorporates all of the aspects of the game 

offered and is an electronic facsimile of a gan1e of chance. 

DigiDeal, on the other hand, incorporates some of the aspects of pokershuffling, dealing, and ranking winning and losing hands- but not others. The placing of 

antes and wagers and the player's decision to play or fold are made by the players. Put 

slightly differently, the DigiDeal table is not essential to playing poker. One can play 

poker with or without the table. The table, therefore, meets all of the criteria for a 

technologic aid and is not a Class ID electronic facsimi le. 

Using Technologic Aids with Card Games 

Upon concluding that the DigiDeal table is a technologic aid, the 2004 opinion 

next considered whether an otherwise Class U card game is Class III when played with a 

technologic aid. The opinion's analysis begins by asking ·'whether !ORA allows the use 

of technologic aids with card games ... or, more specifically. whether IGRA places the use 

of tcchnologic aids with card games within Class II." The opinion concludes that it does 

not and, accordingly, is Class Ill. But IGRA's language and legislative history indicate 

that the proper question is whether IGRA prohibits the use of technologic aids with card 

games or, more specifically, whether IGRA excludes the use oftechnologic aids with 

card games from Class II. Although a subtle distinction, it leads to a fundamentally 

different answer. 

The 2004 opinion defines the category of Class LI card games through reading the 

definition of Class 11 bingo. Congress explicitly permits technologic aids to Class II bingo 
Page 5of11 

but is silent regarding technologic aids to Class ll card games. The opinion deduces from 

this that Congress intended that card games played with a technologic aid do not meet the 

definition of Class l1 gaming. Such reasoning, however, docs not acknowledge a 

distinction TORA makes between Class II bingo and card games. 

JGRA 's definition of Class If gaming necessarily frames its descriptions of bingo 

and card games in fundamentally different ways. Congress defined bingo by describing 

what it includes and card games by what they exclude. Clttss II gaming includes any card 

game unless it is banked; an electronic facsimile; explicitly prohjbited by the state; or, if 

neither explicitly prohibited nor pem1itted by state law, is not played at any location in 

the state or docs not conform state law regarding hours or limitation on wager and pot 

sizes. If a card game does not run afoul of any of these provisions, it is Class II. 

The definition of bingo, by contrast, is essentially a description of the traditional 

game of bingo, even when played with electro1uc aids. Because bingo is a game with an 

established set of rules, it is far simpler to describe precisely what bingo is, rather than 

what it is not. The same cannot be said for a category as nebulous as .. card games." 

Consequently, Congress defined Class II card games by what that definition excludes. A 

card game is Class II unJess it possesses one of the characteristics listed above, e.g. 

banked or played outside the hours permitted by state regulations. Congress did not 

include technologic aid in the definition for the same reason it did not list every possible 

card game that could meet the definition; an exhaustive list is impossible. Rather than try 

to populate such a list, it is far simpler to detail what is not a Class II card game. This is 

what Congress did. Because the description of pem1ined Class II card games does not 

exclude games played with a technologic aid, such games may qualify as a Class II game. 

Although IGRA's Class II definition is clear, the earlier opinion's conclusion was 

a reasonable, if ultimately incorrect, interpretation oflGRA. These opposing opinions 

and interpretations ofIGRA indicate that f GRA 's Class II gaming definition is open to 

interpretation. Any ambiguity, though, is resolved by the legislative history and other 

rules of statutory construction. The Senate report and construction of the statute indicate 

that Class II card games may include card games played with a technologic aid. 

Middlesex Coumy Sewerage Awh. v. National Sea C/ammers Ass 'n, 453 U.S. I, 13 

(L981) ('"We look first, of course, to the statutory language ... Then we review the 

legislative history and other traditional aids of statutory interpretation to determine 

congressional intent.'"). 

The Senate Report accompanying IGRA indicates Congress's intent to include 

technologie aids to card games in the Class IT gaming definition. The Senate Select 

Committee on Indian Affairs affirmed in its report that it "intends that tribes be given the 

opporturuty to take advantage of modem methods of conducting Class II gan1es and the 

language regarding technology is designed to provide maximum flexibility." S. Rep. No. 

100-446 at p. A-9. 

While it is true that this language is found in a paragraph concerned primarily 

with bingo, pull tabs, etc., there is no evidence to suggest that Congress intended its 
Page 6of11 

policy toward technology to be so limited. When JGRA was drafted, bingo played with 

electronic equipment was the '·modem method" of conducting Class II games. It was an 

established game, played widely enough to enter Congress's scope of vision when 

drafting IGRA. Id. The same cannot be said of card games played with an electronic aid. 

DigiDeal, for example did not exist until 1998, and a similar company, PokcrTek, did not 

install an electronic poker table in a casino until May 2005. At the time of IGRA's 

passage, card games were played as they always had been, with physical cards and a 

dealer. The fact that Congress did not specifically address a game not in use at the time of 

IGRA's passage does not lead to the conclusion that Congress intended to exclude it from 

Class TI gaming. 

In explaining its policy toward technology, a key distinction for the Committee 

was that technological aids are "readily distinguishable from the use of electronic 

facsimiles in which a single participant plays a game with or against a machine rather 

than with or against other players." Id. Congress was not concerned that technologic aids 

should be used only with bingo; rather, it was concerned that there is a distinction 

between an aid and a facsimile. Such a distinction can be made for Class II card games as 

well as bingo, as is demonstrated by both this and the 2004 opinion's finding that the 

electronic table is not a facsimile. 

This policy's application to all Class ll games, including card games, is also made 

evident in the adopted version of IGRA, which specifically excludes "electronic or 

electromechanical facsimiles of any game of chance or slot machines of any kind" from 

Class U gaming. 25 U.S.C. § 2703(7)(8). This prohibition was not applied to bingo only, 

but to "all games of chance," indicating that Congress intended to differentiate between 

technologic aids, which are acceptable for all Class Il games of chance, and electronic 

facsimiles, which arc acceptable for none. 

Congress's policy toward technology notwithstanding, it was emphatic about 

restrictions on Class lJ card games. The Senate Report clarifies that Class 11 card games is 

meant to be an inclusive category with speci fie, narrow exceptions. CJass II card games, 

according to U1e Committee, are non-banked and should 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 games." S. Rep. 100-446 at p. A-9. The report also details 

that the definition of card games is to be read in conjunction with what was to become 

sections 2710(a)(2) and 2710(b)(l)(A) ofIGRA, which specify that Class II gaming can 

only occur on Indian lands located in a state that otherwise permits such gaming. Id. The 

Committee specified that '·[njo additional restrictions are intended by [2703(7)(A)(ii)(I) 

& (ll)]." S. Rep. No. 100-446 at P. A-9 (emphasis added). Deciding that a technological 

aid to an othe1wise Class 11 card game makes the game Class ill would create a new 

restriction on Class 11 gaming in conflict with Congress's clearly stated intent. 

The 2004 opinion cited to Seneca-Cayuga Tribe of Oklahoma v. National Indian 

Gaming Commission, 327 F.3d 1019 (10th Cir. 2003) to support its conclusion that 

technologic aids to card games are not Class II. The scope of the case was overestimated 

though, and it docs not negate any of the above analysis. In Seneca-Cayuga, the 10th 
Page 7of1 I 

Circuit Court of Appeals discussed the definition of Class fl gaming and, in doing so, 

stated: 

l U]nder IGRA, Class II games include ''the game of chance commonly 

known as bingo (whether or not electronic, computer or other technologic 

aids are in used in connection therewith) ... including (if played in the same 

location) pull-tabs, lotto, punch boards, tip jars, instant bingo. and other 

games similar to bingo ... " 25 U.S.C. § 2703(7)(A) (emphasis supplied). 

IGRA further provides that "electronic, computer, or other technologic 

aids to such games are Class ll gaming, and therefore pennitted in Indian 

country. Id. 

Seneca-Cayuga, 327 F.3d at 1032 (emphasis in original). 

From this, the 2004 opinion reasoned that "the Court described IGRA as placing 

within Class ll only technologic aids to bingo and like games, not aids to non-banking 

card games." The opinjon put special emphasis on the court's use of the words, "such 

games'' and surmised that because the court concluded that technologic aids to pull-tabs, 

etc. are Class II, those are the only technologic aids allowed under Class II gaming. But 

such a broad deduction from the Seneca-Cayuga opinion is not warranted. At no point in 

the Seneca-Cayuga opinion does the court discuss Class TI card games. ln fact, when 

reciting the definition of Class lJ games, the court leaves card games out entirely. The 

l Olh Circuit never claims that JGRA excludes technologic aids to non-banking card games 

from Class II gaming. The court held that technologic aids to "such games,. are Class TI 

gaming because those arc the games the opinion was concerned with. Seneca-Cayuga 

says nothing of technologic aids to Class Il card games. 

The language ofIGRA, its legislative history, and the rules of statutory 

construction all champion the inclusion of technologic aids to card games in the Class li 

gaming definition. Case law cited by the 2004 opinion to support a contrary conclusion 

does not defeat that analysis. 

Technologic Aid v. Electronic Facsimile 

As discussed above, I agree with the 2004 DigiDeal opinion's conclusion that 

DigiDeal is a technologic aid rather than an electronic facsimile. It is important to note, 

though, that the discussion of the DigiDeaJ system and its classification is limited to the 

broader category of technologic aids to Class II games. Each purported aid to a card game 

must be looked at individually to ascertain whether it is actually an aid or a Class Ill 

electronic facsimile. 

An electronic facsimile is distinguishable from a technologic aid in that it 

replicates a game of chance by incorporating all of the characteristics of the game. 25 

C.F.R. § 502.7(a). The DigiDeal table, for example, incorporates only some of the 

characteristics of poker, namely shuffling, dealing, and ranking winning and losing 
Page 8of11 

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. 

Jf, however, a particular aid to card games becomes a necessity, or encompasses 

all the aspects of a partkular game, it ceases to be a teclmologic aid and becomes an 

electronic facsimile. For example, in Sycuan Band of Mission Indians v. Roache, 54 F. 3d 

535 {91

h Cir. 1994)the United State Court of Appeals held that the "Autotab Model J 0 I 

electronic pull-tab dispenser" is a class Ill facsimile of a pull-tab device. The Autotab 

Model I 0 I 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 

pulJ-tab. The court found that the machine was a Class ill facsimile because "the machine 

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

played electronically." Id. at 542. Autotab was an "exact and detailed copy" of a pull-tab 

game. Id. 

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 

will be ruled a Class III facsimile. Put simply, a technologic aid merely assists the 

players. 1t is a way to play the game, not the game itself. 

Johnson Act 

Although technologic aids to card games are permissible Class II games under 

IGRA, there is a question as to whether the games are impermissible under the Johnson 

Act, which prohibits the use of gambling devices in Indian Country. 15 U.S.C. § 1175. 

They are not. The Johnson Act does not apply to Class TI and Class Ill games played 

pursuant to lGRA. 

The Johnson Act defines gambling device as any slot machine and: 

Any other machine or mechanical device (including but not Jllnjted to, 

roulette wheels and similar devices) designed and manufactured prin1arily 

for use in connection with gambling and (A) which when operated may 

deliver, as the resuJt of the application of an element of chance, any 

money or property, or (B) by the operation of which a person may become 

entitled to receive, as the result of the application of an element of chance, 

any money or property. 

15 U.S.C. § l l7l(a). 

IGRA, enacted long after the Johnson Act, exempts Class Ill gaming from the 

application of the Johnson Act but is silent as to Class li gaming. While courts have not 

directly addressed the Johnson Act and technologic aids to Class II card games, three of 
Page 9 of I I 

the four circuits that have considered whether IGRA implicitly provides a Johnson Act 

exemption for class U devices have decided that the Johnson Act is not applicable to 

technologic aids to bingo or Class U puU tabs, lotto, etc. Although the cases themselves 

are game-specific, the analysis supporting the decisions centers on reconciling lGRA and 

the Johnson Act and is equally applicable to tcc]mologic aids to card games. 

In 2000, the Ninth Circuit Court of Appeals held that the Johnson Act docs not 

apply to an electronic bingo game called Megamania. United States v. 103 Electronic 

Gambling Devices, 223 F.3d 1091 (91h Cir. 2000). Ln reaching its decision, the court first 

found that Megamania is a technologic aid to bingo rather than an electronic facsimile 

and, therefore, Class 11. Id. at 1101. The court then looked to the text of IGRA, noting 

that it explicitly repealed application of the Johnson Act to Class Ill gaming devices used 

pursuant to a tribal-state compact, but did not address the relationship between the two 

acts as applied to Class II gaming. Id. The court recognized the apparent conflict in the 

two statutes and reconciled it by reading the statutes together to discover ''how hvo 

enactments by Congress over thirty-five years apart most comfortably coexist, giving 

each enacting Congress's legislation the greatest continuing effect." Id. 

With coexistence as its goal, the court found that "IGRA quite explicitly indicates 

that Congress did not intend to allow the Johnson Act to reach bingo aids." id. Pursuant 

to IGRA, bi11go using "electronic, computer, or other technologic aids'· is Class II 

gaming, and therefore permitted in Indian country. Id. If the Johnson Acl prohibited such 

aids, 1GRA 's Class II gaming definition would be meaningless. Id. It made no sense to 

the court that Congress would "carefully protect such technologic aids ... yet leave them to 

the ·wolves of a Johnson Act forfeiture action." Id. at 1102. The court refused to presun1e 

"that in enacting IGRA, Congress performed such a useless act." Id. 

The Megamania game once again came under scrutiny a few months later in 

United Scates v. 162 Megamania Gambling Devices, 231 F.3d 713 (101h Cir. 2000). This 

time the Tenth Circuit Court of AppeaJs examined the Megamania electronic bingo game 

and, like the Ninth Circuit, concluded that it is not prohibited by the Johnson Act. The 

court followed an analytical path similar to that of the Ninth Circuit. It first established 

that Megamania is a Class Il technologic aid rather than an electronic facsimile. From 

there, the court considered the Johnson Act's application and held that "Congress did not 

intend the Johnson Act to apply if the game at issue fits within the definition of a Class II 

game and is played with the use of an electronic aid." Id. at 725. For this proposition, the 

court looked to the earlier Ninth Circuit holding in 103 Electronic Gami11g Devices. It 

also relied on 103 Gaming Devices to find that "the Johnson and Gaming Acts arc not 

inconsistent and may be construed together in favor of the Tribes." Id. The court 

explicitly joined the Ninth Circuit in concluding that "MegaMania is not a gambling 

device contemplated by either [U1e Johnson Act or IGRA)." Id. 

Both MegaMania cases are admittedly specific to electronic bingo and rely at 

least in part on the technologic aid language in IGRA's Class II gaming definition. Ocher 

cases, however, have taken the analysis in the McgaMania cases to the next step and 

found that technologic aids to pull tabs, lotto, etc. are also immune from the Jolmson Act. 
Page JO of 11 

In Seneca-Cayuga Tribe of Oklahoma v. NTGC, 327 F.3d 1019 (2003), the TenU1 

Circuit Court of Appeals reviewed the Magical Irish Instant Bingo Dispenser System, a 

pull tab dispenser with electronic elements sucb as a "verifier" feature that allows players 

to see the results for a particular pull tab on a video display. The court determined the 

Magical Irish system is a technologic aid rather than an electronic facsimile. The 

appellees argued that technologic aids to all enumerated Class I1 games are insulated 

from the Johnson Act and cited to 103 Electronic Games in support. Id. at 1031 

(emphasis added). The Court, however, pointed out that the 103 Electronic Games ruling 

was clear that it applied only to MegaMania and that there was no precedent clarifying 

the relationship between the Johnson Act and technologic aids to Class IT games beyond 

just bingo. fd. at I 031. Accordingly, the court had to address for the first time "whether 

aids to those non-bingo games such as pull-tabs that are enumerated in 25 U.S.C. 

§ 2703(7)(A) are protected from Johnson Act scrutiny .. .. " Id. 

In spite of the court's limited holding in 103 Electronic Games, the SenecaCayuga court applied the supporting analysis of I 03 Electronic Games and found that 

IGRA s authorization of technologic aids extends to pull-tabs. The court held that 

although the text of JGRA is ambiguous, the .. teclu1ologic aids parenthetical" is not 

limited to bingo. but also refers to "other games of chance authorized as Class II 

gaming." Id. at 1038. As a technologic aid to a pull tab machine is a permitted Class 11 

game, Congress did not intend that it be subject to the restrictions of the Johnson Act. 

The court held: 

Absent clear evidence to the contrary, we wiU not ascribe to Congress the 

intent both to carefully craft through IGRA this protection afforded to 

users of Class IT technologic aids and to simultaneously eviscerate those 

protections by exposing users of Class U technologic aids to Johnson Act 

ljability for the very conduct authorized by IGRA. 

Id. at 1032. 

As Seneca-Cayuga applied the underlying analysis in 103 Electronic Games to 

electronic bingo, we can apply it to technologic aids to card games. 103 Electronic 

Gaming held that the Jolmson Act does not apply to technologic aids to bingo because 

Congress would not permit something in one act only to forbid it through another. This 

same reasoning was used by the court in Seneca-Cayuga to conclude that technologic 

aids to pull tabs are not prohibited by the Johnson Act. So too can it be applied to a Class 

II tcchnologic aid to a card game. As established above, an otherwise Class fl card game 

played with a technologic aid is still a Class II game. Congress would not permit such a 

game through 1GRA only to prohibit it through the Johnson Act. Accordingly, the 

Jolmson Act does not apply to Class IT card games played with a technologic aid. 

Similarly, in Diamond Game Enterprises v. Reno, 230 F.3d 365 (D.C. Cir. 2000), 

the D.C. Circuit found that the Johnson Act does not apply to the Lucky Tab Il, an 

electro-mechanical pull tab dispenser. The court cited to its decision in Cabazon Band of 
Page 1Iof11 

Mission Indians v. National Indian Gaming Comm'n, 14 F.3d 633 (D.C. Cir. 1994), and 

heJd that ·'this court [has] interpreted IGRA as limiting the Johnson Act prohibitjon lo 

devices that are neither Class II games approved by the Commission nor Class ill games 

covered by tribal state compacts." Id. at 367. Although the case focuses more on tbe 

classification of the game than the application of the Johnson Act. it is clear that the D.C. 

Circuit has decided that the Johnson Act does not apply to any Class II game. As 

discussed at length in the preceding section, a technologic aid to an otherwise Class n 

card game remains a class II game, and according to the D.C. Circuit, the Johnson Act 

does not apply. 

The Eighth Circuit, however, has taken an opposing position. ln United States v. 

Santee Sioux, 324 F.3d 607 (81h Cir. 2003), cert. denied, 525 U.S. 813 (U.S. Oct. 5, 1998) 

(No.97-1839), the Circuit rejected the argument that IGRA repealed the Johnson Act by 

implication. The court pointed to§ 271 O(b)(l)(A) which pem1its Class Tl gaming on 

Indian lands so Jong as it is not specifically prohibited on h1dian lands by federal law. 

The court concluded that the Johnson Act must be the federal law implied in this section 

of IGRA. Id. at 611. This, according to the court, clearly indicated that the two statutes 

are not irreconcilable and must be read together. Therefore, a tribe must adhere to both 

lGRA and the Johnson Act for its Class TI games to be legal. Id. at 612. 

The Eighth Circujt's ruling in Santee Sioux, however reasonable it may be, 

represents a minority among the circuits. Most, including the District of Columbia, which 

has jurisdiction over NlGC actions, have decided that the Johnson Act is not appJicable to 

Class II games. The NTGC should therefore adopt a similar interpretation. Because a 

Class lJ card game played with a technologic aid remains Class TI, the Johnson Act does 

not apply. 

Conclusion 

For the above stated reasons, technologic aids to otherwise Class lI card games 

meet IGRA's definition of Class II gaming and do not violate the Johnson Act. Please 

contact me or Staff Attorney Michael Hoenig with any other questions or comments you 

may have. 
Mr. Kent R. Hagg 

\Vhiting Hagg & Hagg 

601 West Boulevard 

Rapid City SD 57701 

December 21, 2004 

Re: Classification opinion, DigiDeal Digital Card System, Trips or Better Poker 

Dear Mr. Hagg: 

This is in answer to your request on behalf of the DigiDeal Corporation for a determination 

that DigiDeal's Digital Card System is a Class II technologic aid under the Indian Gaming 

Regulatory Act, 25 U.S.C. § 2701 et seq. ("IGRA"). This is also in answer to your request 

that Trips or Better Poker, played without the Digital Card System, is a Class II poker g:ime 

when played in Florida, Idaho, ;md Washington State. My staff and I have attended live ,md 

videotaped demonstrations of Trips or Better and the Digital Card System kindly provided 

by your client, and we have extensively reviewed your written legal opinions. Unfortunately, 

I must conclude that the Digital Card System is Class III because the use of technologic aids 

with non-banking card games does not come within IGRA's definition of Class II g;iming. 

Trips or Better Poker, played by itself without the Digital Card System, is a Class II game in 

Florida and Washington. It is not a permitted Class II game in Idaho because of a blanket 

ban on poker there. 

Game and Equipment 

The Digital Card System (alternatively, the "DigiDeal table" or "table") is an electronic card 

table the size and arc shape of any common, felt-covered table used in casinos for Pai Gow 

Poker or Let it Ride Poker, for example. The dealer stands in his or her customary place, 

and there are six player positions, each with a video screen built in. In lieu of an ordinary 

deck of cards, those screens display video representations of cards. The dealer shuffies, deals, 

and controls play by pressing buttons on a device made to look like a dealer's shoe. There are 

spots in each player position for placing antes and bets, and the spots are equipped with sensors so that the table can determine the munber of players that begin each hand, the number 

that continue to play or fold, and the amounts wagered. 

Trips or Better is a version of Five Card Stud and is played on the DigiDeal table with an 

ordinary, if electronic, deck of cards, plus 2 jokers. Two to 6 players, having purchased chips 

from the dealer, begin each hand by placing an ante and a wager. The house does not play a 

hand. Rather, the ante belongs to the house as its fee for providing the game, dealer, and 

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

REGIONAL OFFICES Portland, OR; Sacramento, CA. Phoenix, AZ; St Paul. MN; Tulsa. OK 
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Digital Card System, p. 2 

December 21, 2004 

equipment. All wagers go into a common pot on the table, which the highest qualifying 

poker hand, three of a kind or better, will win. The house never receives any portion of the 

pot. The requirement of three of a kind or better to win, "trips or better," is a known poker 

variant. 

Following the ante and the first wager, the dealer presses the appropriate button on the 

"shoe," and the table deals two cards to each player. All cards, including these first two 

cards, are dealt face up; each player's screen displays his or her hand and all of the other 

hands dealt. 

In turn, each player may bet again to receive another card or may fold, simply by withholding the next bet, and the dealer distributes cards to the players who continue by pressing the 

appropriate button on the shoe. All bets are of a fixed, single size, and neither raising nor 

bluffing is an element of the game. Rather, each player must decide whether it is worth continuing the attempt to get a qualifying hand given all of the hands dealt. Players continue to 

bet or fold until all remaining players have five cards. The highest qualifymg poker hand 

wins, which both the dealer and the table will identify, and the dealer then gives the pot of 

chips to the winning player. As in any poker game, if all players but one fold, the last remaining player wins the pot, regardless of the hand he or she holds. If after five cards are 

dealt, multiple players remain but none has three of a kind or better, the pot remains or 

"rolls over," and the players ante and bet again until someone wins. No new players may 

join the game until someone takes the pot. 

DigiDeal represents that given a full table, a player will win the pot once every ::wo hands, 

on average. In an alternate version of the game, designed to maintain interest and t educe. 

frnstration, if no player has three of a kind, the high hand, whatever it may be, takes 20% of 

the pot, and the remaining 80% rolls over. Play is otherwise identical to that described 

above. In short, the Digital Card System allows people to play a known poker variant in a 

casino, just without a physical deck of cards. 

Analvsis 

IGRA divides the world oflndian gaming into three classes. Class I, which is not at issue 

here, encompasses "social games" played "solely for prizes of minimal value or traditional 

forms oflndian gaming engaged in by individuals as a part of, or in connection with, tribal 

ceremonies or celebrations." 25 U.S.C. § 2703(6). Class II encompasses: 

(i) the game of chance commonly known as bingo (whether or not electronic, 

computer, or other technologic aids are used in connection therewith) -- ... 

including (if played in the same location) pull-tabs, lotto, punch boards, tip 

jars, instant bingo, and other games similar to bingo, and 

(ii) card games that-

(!) are explicitly authorized by the laws of the State, or 
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Digital Card System, p. 3 

December 21, 2004 

(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 wages or pot sizes in such card games. 

25 U.S.C. § 2703(7)(A)(i) - (ii). 

Class III is a catchall category and includes "all forms of gaming that are not Class I gaming 

or Class II gaming." 25 U.S.C. § 2703(8). Class III also includes any electronic or electromechanical facsimiles of any game of chance and any banking card game. 25 U.S.C. 

§ 2703(7)(B)(i)-(ii); 25 C.F.R. § 502.4(b). 

Viewed against this statutory background, classification of Trips or Better played on the 

DigiDeal table presents three separate questions. First, is the table itself, considered apart 

from the card game played upon it, an electronic facsimile or a technologic aid? If the former, it is Class III by definition. Second, if the table is a technologic aid, does IGRA define 

as Class II the use of such aids with card games? If no, the table falls within the catchall and 

is Class III. Third and finally, is Trips or Better Poker, considered by itself, a Class II game? 

1. Technologic aid or electronic facsimile 

The National Indian Gaming Commission's regulations define a technologic aid as equipment 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. 

25 C.F.R. § 502.7(a). 

The table easily satisfies the first element. It assists play by displaying, right in front of each 

player, all players' hands, thus making it easier to decide whether to continue or to fold. The 

table also identifies qualifying hands, hands that were folded, and the amount of the jackpot 

won, thus making the play of the game simpler and more accurate. 

Likewise, the table satisfies the third element, meeting FCC requirements when operated. 

The table is not linked with other tables, and thus the only question is whether it, in its own 

operation and in communicating with the dealer's shoe (either by radio or infrared) meets 

FCC regulations on radio emissions, which it apparently does. 

In order to be a technologic aid, then, the table must meet the second element, 25 C.F.R. 

§ 502.7(a)(2), and not be an electronic or electromechanical facsimile of a game of chance. 

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 
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'i111M1 

Digital Card System, p. 4 

December 21, 2004 

chance by incorporating all of the characteristics of the game .... " 25 C.F.R. § 502.8. Though 

courts have adopted this definition as it reads, see, e.g., United States v. Santee Sioux Tribe of 

Nebraska, 324 F.3d 607, 615 (8th Cir. 2003), its application to the DigiDeal table is novel. 

No one has tried to make the distinction between a technologic aid and a facsimile for an 

electronic game of cards. That said, however, the answer is readily apparent. The table is not 

a facsimile because it does not incorporate all of the characteristics of Trips or Better Poker. 

By way of analogy, Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542-543 (9'h Cir. 

1994) reviewed a wholly-electronic pull tab game, one in which the player bought and 

played pull tabs generated by computer and displayed on a video screen. The Ninth Circuit 

concluded that this was an exact, self-contained copy of paper pull tabs and thus an electronic facsimile. Accord, Cabazon Band of Mission Indians v. National Indian Gaming Commission, 304 F.3d. 633, 636 (D.C. Cir. 1994). Pull tab machines, however, that merely dispense, and display the results of, paper pull tabs are of a different sort. 

In Diamond Game v. Reno, 230 F.3d 365, 370 (D.C. Cir. 2000), the machine in question, 

the Lucky Tab II, sold and dispensed paper pull tabs from a roll. The machine also read and 

displayed the results of each tab, presenting those results in such a way as to resemble a 

three-reel slot machine. Nonetheless, the paper tabs could be played and redeemed manually. 

The D.C. Circuit held, therefore, that the Lucky Tab II dispenser was not an electronic facsimile containing all characteristics of pull tabs and thus was not a Class III device, no matter 

how many bells and whistles it might have. The "game is in the paper rolls," the Court held, 

and the Lucky Tab II is "little more than a high-tech dealer." In this, then, Lucky Tab II resembles the DigiDeal table, which is precisely a high-tech dealer. 

By way of further contrast, the video poker games common in Class III and non-Indian casinos are electronic facsimiles under the definition in §502.8. The typical machine accepts 

bets, deals a poker hand, evaluates that hand against the standard poker rankings, and pays 

winning hands according to paytables. Thus, such a machine incorporates all of the aspects 

of the game offered. 

Unlike a video poker machine, the DigiDeal table incorporates some of the characteristics of 

poker - shuffling, dealing, and ranking winning and losing hands - but not others. The placing of antes and wagers, and thus the players' decisions to continue to play or fold, are done 

or made manually, by the players using chips and not by the table. Put slightly differently, 

then, DigiDeal table is not essential to playing Trips or Better Poker. One can play the game 

in a casino with or without it. The table, therefore, meets all of the criteria for a technologic 

aid and is not a Class III electronic facsimile. 

2. Using technologic aids with card games 

Concluding that the DigiDeal table is a technologic aid does not end the inquiry. Such 

analysis begs the question whether IGRA allows the use of technologic aids with card games 

in the first place or, more specifically, whether IGRA places the use of technologic aids with 

card games within Class II. It does not. 
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Digital Card System, p. 5 

December 21, 2004 

Though novel, the answer to this question begins and ends with IGRA's stamtory language. 

While IGRA defines bingo played with technologic aids as Class II, there is no such definition for card games played with technologic aids. Again, IGRA defines Class II, in relevant 

part, as encompassing 

(i) the game of chance commonly known as bingo (whether or not electronic, 

computer, or other technologic aids are used in connection therewith) -- ... 

including (if played in the same location) pull-tabs, lotto, punch boards, tip 

jars, instant bingo, and other games similar to bingo, and 

(ii) card 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 .... 

25 U.S.C. § 2703(7)(A)(i) - (ii). 

It is true that the report of the Senate Select Committee on Indian Affairs that accompanied 

IGRA, S. Rep. No. 100-446 (1988), can be read to allow technologic aids with card games. 

For example, it suggests that the widest possible use of technology be available to the 

Tribes: 

The Committee intends that tribes be given the oppormnity to take 

advantage of modern methods of conducting class II games and the 

language regarding technology is designed to provide maximum 

flexibility. 

S. Rep. 100-446 at p. A-9. 

It is equally true that a fundamental canon of stamtory interpretation in Indian law holds 

that Federal stamtes are to be construed liberally in favor of Indians, with ambiguous provisions interpreted to their benefit. See, eg.,Montana v. Blackfeet Tribe, 471 U.S. 759, 766 

(1985). 

Neither the legislative history nor this canon of interpretation are applicable here, however, 

because, on this point, IGRA is unambiguous. The Supreme Court holds that only when a 

statute is silent or ambiguous on a question, i.e. susceptible to two or more possible meanings, Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001), will its legislative history or 

the canons of interpretation bear upon its meaning. See, eg., Desert Palace Inc. v. Costa, 539 

U.S. 90, 93-94 (2003)("the starting point for our analysis is the statutory text ... and where 

... the words of the statute are unambiguous, the judicial inquiry is complete"); accord, 

Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000); Connecticut 

Nat. Bank v. Gennain, 503 U.S. 249, 253-254 (l 992);In Re Venture Mortgage Fund, 282 
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Digital Card System, p. 6 

December 21, 2004 

F.3d 185, 188 (2nd Cir. 2002)("legislative history and other tools of interpretation may be 

relied upon only if the terms of the statute are ambiguous"). 

Here, Congress explicitly made bingo played with technologic aids Class II by defining it as 

such: Class II includes "the game of chance commonly known as bingo, (whether or not 

electronic, computer, or other technologic aids are used in connection therewith) ... " 25 

U.S.C. § 2703(7)(A)(i). However, as illustrated in the quotation from IGRA, above, Congress just as explicitly omitted any such qualification from the definition of Class II card 

games, which are the subject of a different subsection of the statute, 25 U.S.C. 

§ 2703(7)(A)(ii). Therefore, by IGRA's plain terms, card games, even non-banking games 

such as poker, when played with technologic aids, are outside of the definition of Class IJ 

and are thus Class III. 1 

Over and above this, even if one were to give weight to the Committee Report, it confirms 

this result rather than suggest a different one, to the extent that it says anything at all. While 

isolated sections can be read to support the use of technologic aids with cards games, the 

Report, read in its entirety, reveals that the Committee did not consider the use of aids with 

card games. 

In the same paragraph in which the Committee states that the Tribes should be allowed 

maximum flexibility in their use of technology, it went on to illustrate: 

Simultaneous games participation between and among reservations 

can be made practical by use of computers and telecommunications 

technology so long as the use of such technology does not change the 

fundamental characteristics of the bingo or lotto games and as long as 

such games are otherwise operated in accordance with applicable 

Federal communications law. 

S. Rep. 100-446 at p. A-9. (Emphasis added.) 

By its very language, the paragraph speaks only to bingo, pull tabs, tip jars, etc. - to the 

games defined as Class II in§ 2703(7)(A)(i) and not to the card games defined as Class II 

1 It is trUe that the application of the technologic aids parenthetical within subsection 

2703(7)(A)(i) is ambiguous. Courts have read it to apply both to bingo alone and to bingo 

and pull tabs, lotto, tip jars, together. Compare, Diamond Game, 230 F. 3d at 367 (aids may 

be used with bingo and its cousins) with Santee Sioux, 324 F.3d at 613 (aids may be used 

only with bingo). That ambiguity, however, turns on how one reads the text within 25 

U.S.C. § 2703 § (7)(A)(i)(III)- ''whether [the] 'technologic aids' parenthetical refers only 

to bingo, or also refers to the other games of chance authorized as Class II gaming'' in that 

subsection, e.g., pull tabs, tip jars, and games similar to bingo. Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Commission, 327 F.3d 1019, 1038 (10th Cir. 2003). Neither 

possible reading, however, says anything about the separate subsection on Class II card 

games. 
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Digital Card System, p. 7 

December 21, 2004 

in§ 2703(7)(A)(ii). So too does a subsequent discussion about the section ofIGRA limiting the application of the Johnson Act, 15 U.S.C. § 1171 et seq.: 

That section [15 U.S.C. § 1175] prohibits gambling devices on Indian lands but does not apply to devices used in connection with 

bingo and lotto. It is the Committee's intent that with the passage of 

this act, no other Federal statute, such as those listed below [including the Johnson Act] will preclude the use of otherwise legal devices 

used solely in aid of or in conjunction with bingo or lotto or other such 

gaming on or off Indian lands. 

S. Rep. 100-446 at p. A-12. (Emphasis added.) 

The reference to "other such gaming" at the end of this quote is not to all Class II gaming, 

which would include non-banking card games, but again only to "other such" games like 

bingo or lotto, i.e. games enumerated in 2703(7)(A)(i)(III) - pull tabs, tip jars, punch 

board, and other games similar to bingo. 

As an interpretive aid, then, to the question here, the Committee Report is of limited use. 

The most that it says about the use of technologic aids with card games is nothing, and to 

the extent that it does address the use of aids with Class II games generally, that use is limited to bingo and games similar to bingo. 

Lastly, while reported court opinions do not address the question of technologic aids and 

card games, such dicta as does exist is consistent with the readings ofIGRA and the Committee Report here. In Seneca-Cayuga, above, the Tenth Circuit was faced with the task, 

among others, of reading and reconciling IGRA with the Johnson Act. In so doing, that 

Court reviewed the definition of Class II gaming and, in concluding that the Johnson Act 

does not reach technologic aids to Class II games, stated the following about the use of technologic aids within Class II: 

[W]e note that under IGRA, Class II games include "the game of 

chance commonly known as bingo (whether or not electronic, computer or other technologic aids are used in connection therewith) ... 

including (if played in the same location) pull-tabs, lotto, punch 

boards, tip jars, instant bingo, and other games similar to bingo .... " 

25 U.S.C. § 2703(7)(A) .... IGRA further provides that "electronic, 

computer, or other technologic aids" to such games are Class II gaming and therefore permitted in Indian country. Id. 

Seneca-Cayuga, 327 F.3d at 1032. (Emphasis added.) 

In short, the Court described IGRA as placing within Class II only technologic aids to bingo 

and like games, not aids to non-banking card games. 
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Digital Card System, p. 8 

December 21, 2004 

For all of the foregoing reasons, therefore, I conclude that technologic aids to card games 

are not Class II. As "all forms of gaming that are not Class I gaming or Class II gaming" are 

Class III, 25 U.S.C. § 2703(8), the DigiDeal table falls into that category. 

3. Trips or Better 

The last remaining question is the proper classification of Trips or Better Poker, separate and 

apart from the DigiDeal table, in the three States you requested, Florida, Idaho, and Washington. Given the laws of those States, Trips or Better is Class II in Florida and Washington 

and Class III in Idaho. 

A. Florida 

IGRA defines as Class II those card games that are: 

1. explicitly authorized by the laws of the state, 25 U.S.C. § 2703(7)(A)(ii)(l), or 

2. not explicitly prohibited by the laws of the state and played at any location in the 

state, 25 U.S.C. § 2703(7)(A)(ii)(II), and 

3. played in conformity with the laws or regulations regarding hours or periods of 

operation and wager and pot sizes, 25 U.S.C. § 2703(7)(A)(ii), and not 

4. banking card games. 25 U.S.C. § 2703(7)(B)(i). 

Florida law explicitly authorizes Trips or Better, and it is not a banking card game Assuming, then, that it is played in conformity with Florida's card room laws and regulations concerning hours, wagers, and pot sizes, it is Class II. 

Florida, like other states, has a general prohibition on gambling, Fla. Stat. Ann. 849.08, but 

that prohibition is subject to specific exceptions. Florida specifically authorizes card rooms 

located at existing, licensed pari-mutuel establishments, Fla. Stat. Ann. 849.068 (1), (3), 

(7)(a), and makes them subject to licensing and regulation by the Florida Department of 

Business and Professional Regulation, Division of Pari-Mutuel Wagering. Fla. Stat. Ann. 

849.068(4). 

Those card rooms are authorized by statute to offer non-banking poker games. Fla. Stat. 

Ann. 849.068(2)(a), (3). More specifically, those card rooms are authorized by regulation 

to play all variants of poker based upon the traditional ranking of poker hands. Though a 

card room operator must technically submit request for approval of a card game to the Division, the Division provides for the automatic approval of the following: 

All poker games in Gibson, Hoyle)s Modern Encyclopedia of Card 

Games) 1 sr Ed. (Doubleday 197 4) "are authorized when played in a 

non-banking manner and shall be approved by the Division. All other 
., 

Digital Card System, p. 9 

December 21, 2004 

card games playing in a non-banking manner in which the determination of the winner is based upon a traditional poker ranking system 

as referenced in Hoyle's shall be approved by the Division." 

Fla. Admin. Code 61D-ll.002(l)(b). 

Since Trips or Better is a non-banking poker game based upon the traditional poker ranking 

system, it is specifically authorized by the laws of Florida. 

As to traditional poker hands, Trips or Better is a variation of 5 Card Stud and uses the trad:itional ranking of hands from royal flush down to high card. Again, the highest qualifying 

poker hand, three-of-a-kind or better, will win the pot. In one variation of the game, if there 

is no qualifying hand, the highest non-qualifying hand, whatever it is, wins 20% of the pot, 

and the balance rolls over. 

As to banking games, IGRA defines "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. § 502.11 

Trips or Better is not a home banking game under this definition, nor is it a game banked by 

the players . 

The house does not play a hand but rather earns its money by collecting antes, and players 

compete against one another for the pot created by all of the wagers. The winning player, 

not the house, collects all losing bets; the house does not pay anything to the winning 

player; and, without a hand, the house cannot win the pot. Similarly, the players play against 

one another equally, and none acts as a bank, taking on all comers, paying all winners, or 

collecting from all losers. 

TI1e fact that pots may "roll over'' if no player has three of a kind or better does not change 

any of this. Following a roll over, the pot - albeit a larger one - still must be won by one of 

the players who began the round. New players cannot join the game until the pot is won, 

and the pot will be paid to the last remaining player if all others fold. After a roll over, then, 

players are still playing against one another and not against the house or against a player acting as the house. Further, the rules of entry and of play ensure that though a roll over will 

increase pot size, it cannot inadvertently create a banked pool against which the players play. 

This is a feature of some games that were invented recently in an attempt to create nonbanking card games by having players wager against a pool funded by losing wagers, and by 

the house if the pot runs low. This office, however, has found such arrangements are nonetheless banking card games under 25 C.F.R. § 502.11. See) eg. Memorandum re: Playerpooled Blackjack (April 4, 2003); NIGC Bulletin No. 95-1 (August 10, 1995). 
Digital Card System, p. 10 

December 21, 2004 

I conclude, therefore, that since Trips or Better is explicitly autl1orized by Florida law, and 

since it is not a banking game, it is Class II, provided that is played in conformity with Florida law concerning hours of operation and wager and pot limits. Those are as follows. 

Florida permits card rooms to be open from noon until midnight. Fla. Stat. Ann. 

849.086(7)(b ). For poker in Florida card rooms, the maximum bet is $2, and there may not 

be more than 3 raises in any round of betting. Fla. Stat. Ann. 849.086(8)(b). 

B. Washington 

Trips or Better is explicitly authorized by Washington law, and it is, again, not a banking 

game. Assuming then that it is played in conformity with Washington's card room laws and 

regulations concerning hours and wagers and pot limits, it is Class II. 

Washington embodies a general prohibition on gambling in its constitution, Wash. Const 

Art. II, § 24. That provision allows for exceptions adopted by super majorities ( 60%) of 

both houses of the Legislature or of voters in referendum initiatives. Washington has specific1lly authorized the play of both non-banking and banking card games, both of which it 

groups together as "social card games," in licensed card rooms. R.C.W. § 9.46.0282. Regulatory authority over the card rooms and the social card games is vested in the Washington 

State Gambling Commission. Ibid. 

The Commission's regulations explicitly authorize eight non-banking card games, including 

"poker." W.A.C. § 230-40-010(2)(a)-(h). The regulations require all non-banking games to 

"be played in the manner set forth in The New Complete Hoyle, Reiiised; Hoyle,s Modern Encyclopedia of Card Games, or a similar authoritative book on card games approved by the 

[Commission] director," W.A.C. § 230-40-010(2). Other non-banking card games may be 

authorized by approval of the Commission Director. W.A.C. § 230-40-010(2)(i). 

The Washington State Gambling Commission web site lists Trips or Better as an approved 

poker game, indicating the Director's approval, and as the game is not a house banking 

game, I conclude it is Class II if played in conformity with Washington's laws on hours, wagers, and pots. Those are as follows. 

Washington requires its card rooms to close between 2 am and 6 am. W.A.C. 230-40-

400(l)(a)-(f). For non-banking poker wagers, Washington sets a maximum of $25 on any 

single wager. It permits no more than 5 betting rounds in any one game, and it limits the 

wagers in any betting round to 4- the initial wager and 3 raises. W.A.C. 230-40-120(l)(a)-

(c). 

3. Idaho 

A'> poker is both expressly prohibited and not explicitly authorized by Idaho law, Trips or 

Better is not a permitted Class II game. 
Digital Card System, p. 11 

December 21, 2004 

Idaho Const. Art. III§ 20, subsection 1, provides a blanket prolubition on gambling: 

"gambling is contrary to public policy and is strictly prohibited." To this general prohibition, the Idaho Constitution creates three limited exceptions: the state lottery, pari-mutuel 

betting undertaken in conformity with enabling legislation (e.g. horseracing), and bingo and 

raffles operated by qualified charitable organizations for charitable purposes, again pursuant 

to enabling legislation. 

Idaho Const. Art. III § 20, subsection 2, limits the three exceptions created by subsection 1. 

That limitation unequivocally excludes poker: 

No activities permitted by subsection (1) shall employ any form of 

casino gambling including, but not limited to blackjack, craps, roulette, poker, baccarat, keno and slot machines, or employ any electronic or electromechanical imitation or simulation of any form of 

casino gambling. 

Further, Idaho Code§ 18-3802 makes gambling a misdemeanor offense, and its definition 

of gambling explicitly includes poker: 

"Gambling" means risking any money, credit, deposit or other thing 

of value for gain contingent in whole or in part upon lot, chance, the 

operation of a gambling device or the happening or outcome of an 

event, including a sporting event, the operation of casino gambling 

including, but not limited to, blackjack, craps, roulette, poker, baccarat or keno .... 

Idaho Code§ 18-3801. 

Given all of this, Idaho law does not explicitly authorize but explicitly prohibits poker 

throughout that State. I conclude, therefore, that Trips or Better Poker is not permitted as a 

Class II game in Idaho. 

Summary and administrative procedure 

In sum, though a technologic aid, the DigiDeal Digital Card System is Class III because 

IGRA has not placed technologic aids to card games within the definiuon of Class II. Considered separately and apart from the DigiDeal table, Trips or Better Poker is Class II if 

played in accordance with the card room laws and regulations in Florida and Washington 

and is not permitted as Class II in Idaho. 

This letter is an advisory opinion of the Office of General Counsel, National Indian Gaming 

Commission. As an advisory opinion, it is not a final agency action and therefore not subject 

to judicial review. IGRA permits judicial review only in limited circumstances, 25 U.S.C. 
Digital Card System, p. 12 

December 21, 2004 

s; 2714, and then only after the exhaustion of administrative remedies before the full Comrmss1on. 

The Commission Chairman is, for example, authorized to levy civil fines for IGRA violations, 25 U.S.C. 2713(a)(l), and a tribe so assessed may challenge the violation and the fine 

on appeal to the full Commission. 25 U.S.C. § 2713(1)(2); 25 C.F.R. §§ 573.3, 575 4, 

S77.l et seq. The decision of the full Commission on appeal is reviewable in the District 

Court. 25 U.S.C. § 2713(c). 

If you have any questions, please do not hesitate to contact Michael Gross, Staff Attorney, at 

202-632- 7003. 

Very truly yours, 

1?~3.C~ 

Penny J. Coleman, 

Acting General Counsel