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May 13, 2020

VIA INTERNATIONAL MAIL & EMAIL

Mr. Darren Keyes

Vice President, Product

CloudStreet Gaming

545 King Street West

Toronto, Ontario 

Canada M5V 1M1

dkeyes@cloudstgaming.com

Re: CloudStreet Hold’em Poker

Dear Mr. Keyes,

Mr. Bob Williams of CloudStreet Gaming requested the NIGC Office of General 

Counsel review CloudStreet’s Hold’em Poker game and determine its classification. The rules 

for the game are similar to traditional Texas Hold’em, albeit Cloudstreet’s game is in an 

electronic format. Mr. Williams indicated that tribes in Florida and Oklahoma expressed interest 

in the game, but did not request a state-specific legal analysis. This advisory legal opinion, 

therefore, is not state-specific and contains no analysis of state gaming laws. It is confined to the 

question of whether CloudStreet Hold’em Poker constitutes a Class II or Class III game under 

the Indian Gaming Regulatory Act and NIGC regulations. 

Based upon the game description submitted in the game rules, compliance deck, 

promotional materials, and written responses to follow-up questions, CloudStreet Hold’em Poker 

is a Class III game because of its automatic play feature that automatically posts blinds for 

players and acts for players when they fail to act. In so doing, the game constitutes an electronic 

facsimile of poker. 

Game Description 

CloudStreet Hold’em Poker is similar to the Texas Hold’em variant of the standard poker 

card game, though played on an electronic platform. Using touch-screen electronic consoles 
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 2 of 9

connected via a central server, the game is played in real-time by three live players.

1 A network 

of consoles may be located within one large casino or several. 

The game begins on demand when three players have joined by paying a buy-in. All 

players buy-in for the same amount, typically, twenty, fifty, or one hundred dollars2 and are 

given the same amount of chips (that have no real money value) to play the game.3 Prizes are 

random4

, ranging from double the players’ buy-in to substantial progressive jackpots. Each 

game’s prize is announced prior to its start. One winner generally wins the game unless the prize 

is the progressive jackpot. When that occurs, the progressive prize is split 70-20-10 between the 

first, second, and third place finishers, respectively.

5

As with traditional Texas Hold’em, wagers are made against other players rather than a 

banker or the house. The casino(s) and Cloudstreet take a fee from the wagers, which they 

allocate between themselves. The amount of the fee depends upon the buy-in amount and can be 

configured for specific jurisdictions – usually, seventeen percent for a twenty-dollar buy-in and 

fifteen percent for fifty-dollar and one hundred-dollar buy-ins.6 An additional one-percent fee is 

charged and reserved for the progressive jackpot.7 The remaining money from the wagers is paid 

out as traditional prizes.8

Players are seated at the virtual table randomly, “using a proprietary matchmaking system 

which is designed to eliminate the chance of player collusion.”9 They may leave the game before 

it begins by pushing the exit button, returning to the buy-in screen where their buy-in will 

automatically be refunded to their machine balance.10 Once three players are seated and have 

paid their buy-in, the randomly-determined game prize is revealed.11 “After the prize is 

 1 After first looking for regular players to participate the game but, after a “reasonable time,” finding none, prop 

players are invited by the game server to fill games. See CloudStreet Poker NIGC General Rules at 6 (Nov. 8, 2019). 

Prop players play using their own personal funds, receive a rake-back, and may win prizes – playing the game as a 

regular player would and receiving no advantage. Id. The only distinction is that prop players may play three games 

simultaneously. Id. Regular players may opt-out of allowing prop players to play the game against them. Id. 2 Email to Jo-Ann M. Shyloski, NIGC Of Counsel, from Darren Keyes, CloudStreet Gaming, Vice President –

Product at 1 (Nov. 8, 2019). 3 CloudStreet Poker NIGC General Rules at 1 (Nov. 8, 2019). 4 “The random determination is made by a cryptographically strong random number generator [ ], located on the 

game server.” CloudStreet Poker Gameplay at 3 (Feb. 2020). 5 Email to Jo-Ann M. Shyloski, NIGC Of Counsel, from Darren Keyes, CloudStreet Gaming, Vice President –

Product, supra at 2. 6 Id.

7 Id.; As an aside, the progressive jackpot is seeded by CloudStreet, and the seed amount varies by jurisdiction, 

approximately five to ten thousand dollars. See CloudStreet’s answers to follow-up questions at 1 (Mar. 13, 2020). 

Repayment of the seed money will come from fifty-percent of the progressive jackpot contributions. Id. 8 Email to Jo-Ann M. Shyloski, NIGC Of Counsel, from Darren Keyes, CloudStreet Gaming, Vice President –

Product, supra at 2. 9 CloudStreet Poker NIGC General Rules, supra at 2. 10 Id. 11 Id.; Although the game prize is randomly determined and funded by players’ wagers, CloudStreet guarantees it. 

See CloudStreet’s answers to follow-up questions, supra at 1.
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 3 of 9

determined, the [ ] game play begins.”12 A “virtual dealer” button is randomly assigned to one 

player “and moves clockwise to the next player after each hand is completed.”13 “The player 

immediately clockwise of the ‘dealer’ is designated the ‘small blind.’”14 And “[t]he player 

immediately clockwise of the ‘small blind’ is [] the ‘big blind.’”15 The forced blind betting 

amounts are set prior to the game commencing, listed on the gaming machine, and increase at 

fixed intervals throughout the game.16 The gaming machine automatically makes the blind bets 

on behalf of each blind player.17 If a player, however, does not have enough chips for the forced 

blind, they go all-in blind.18

After the blinds are posted, the game server’s random number generator shuffles a 

standard fifty-two card deck and deals each player two electronic cards face down, known as 

“hole cards.” To view the cards, each player may “‘peel’ the corners of the digital cards up” or 

“tap and hold a finger on the cards.”19 The first round of betting is initiated by the player with the

virtual dealer button (the virtual dealer).

20 “The amount of the big blind serves as the opening bet 

for the first round of betting and is considered the minimum bet for all betting rounds for that

hand. All subsequent players must call this amount, raise or fold,” unless they go all-in.

21 At this 

time, any raise must be “at least double the size of the big blind.”22 “Any raises [ ] re-open 

betting to the previous bet [ ] and can be raised again.”23 “The maximum bet or raise is only 

limited by the amount of chips the player currently has.”24 And “[t]here is no limit to the number 

of raises in a given betting round.”25 A betting round “is closed once all the players have called 

the last bet or raise, or have folded.”26

After the initial round of betting is complete and each player has acted,27 the random 

number generator shuffles and deals three cards face up in the center of the table, known as “the 

flop.” These three cards are communal cards that each player can use in combination with their 

two “hole cards.” The flop deal is followed by another round of betting. On this round, and all 

subsequent rounds, the active player clockwise from the virtual dealer begins the betting.28 At 

this juncture, “when a player bets all-in for less than the minimum bet, a [subsequent] player has 

 12 CloudStreet Poker Gameplay, supra at 4. 13 CloudStreet Poker NIGC General Rules, supra at 2. 14 Id. 15 Id. 16 Id.; CloudStreet’s answers to follow-up questions, supra at 3. 17 CloudStreet Poker NIGC General Rules, supra at 3. 18 Id. at 2. 19 CloudStreet Poker Gameplay, supra at 5. 20 CloudStreet Poker NIGC General Rules, supra at 3. 21 Id. at 3. 22 Id. (prior to the flop). 23 Id. 24 Id. 25 Id. 26 Id. 27 Or, as described subsequently, the gaming machine has acted for the player. 28 CloudStreet Poker NIGC General Rules, supra at 3. 
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 4 of 9

the option of just calling the all-in amount.”29 If the player raises though, it must be at least the 

amount of the minimum bet.30 All follow-on raises then “must be equal to or greater than the size 

of the previous bet on that betting round, except when the player is all-in.”31 Check-raises are 

allowed.32

The random number generator shuffles and deals a fourth communal card face up in the 

center of the table, known as “the turn.” Another round of betting then takes place. The cards are 

once again shuffled and a final, fifth face-up communal card - the “river” – is dealt, which is 

followed by a final round of betting. 

“At showdown, all players still holding cards will have their cards automatically 

displayed, simultaneously.”33 The players use their two holes cards and the five community 

cards to make the best five card hand. The player who makes the best five card poker hand wins, 

“and the chips are transferred to that player’s balance.”34 The displayed cards then disappear, and 

play continues until two of the players “are eliminated by running out of chips and eventually 

becoming, and losing, all-in.”35 The ultimate winner is the remaining player,36 winning the pot, 

unless, as described above, it’s a progressive prize, then it is split 70-20-10 between the first, 

second, and third place finishers (respectively).

During a hand or game in which all three players are still participating, if “it is not a 

player’s turn, they will sometimes be presented with pre-action checkboxes,” which allow the 

player to pre-select their action on the current bet, including checking, folding, or calling (as well 

as calling all-in).37 “If the bet changes prior to this player’s turn, the pre-action checkbox will 

become unselected and the player will then choose their action on their turn.”38 However, 

throughout a game - regardless of the number of players, if a player fails to act within the allotted 

time39, the machine automatically takes the following actions for the player: “[i]f there is no bet, 

the automatic action will be a check” or “[i]f there is a bet, the player’s cards will be folded.”40 If 

the automatic action is not a fold, this continues on each of the player’s turns until they reengage 

and take affirmative action themselves.41

 29 Id. (after the flop). 30 Id. 31 Id. 32 Id. 33 Id. at 4. If a showdown does not occur, the players’ hold cards will be mucked and not revealed. CloudStreet 

Poker Gameplay, supra at 6. 34 CloudStreet Poker Gameplay, supra at 7. Though ties are feasible, with each player taking half the chips, “down 

to the lowest denomination chip used in the game.” CloudStreet Poker NIGC General Rules, supra at 4. 35 CloudStreet Poker Gameplay, supra at 7. 36 Id. 37 CloudStreet Poker NIGC General Rules, supra at 3; CloudStreet’s answers to follow-up questions, supra at 4. 38 CloudStreet Poker NIGC General Rules, supra at 3. 39 Twelve seconds. 40 CloudStreet Poker NIGC General Rules, supra at 4; CloudStreet Poker Gameplay, supra at 6. 41 CloudStreet Poker NIGC General Rules, supra at 4.
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 5 of 9

Also, electronic consoles can play two separate games simultaneously with the player 

controlling “which game to take action on by tapping on the miniature view window for the 

game in which they wish to act.”42

Legal Background

IGRA43 divides the world of Indian gaming into three classes. Class I gaming, which is 

not at issue here, encompasses “social games” played “solely for prizes of minimal value or 

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

tribal ceremonies or celebrations.”44 Class II gaming includes card games if they: 

(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.45

Class II gaming also expressly excludes any banking card game.46 Banking card games, 

as defined by NIGC regulations, are games in which the banker (usually the house) competes 

against all players, collecting from losers and paying winners.47 Conversely, non-banking card 

games are games where players play against each other, rather than the house or a single player 

acting as the bank.48

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

Class I gaming or Class II gaming.”49 Class III also includes any electronic or electro-mechanical 

facsimiles of any game of chance.50 An electronic or electromechanical facsimile is defined by 

NIGC regulations to mean “a game played in an electronic or electromechanical format that 

replicates a game of chance by incorporating all of the characteristics of the game . . ..”51

Distinct from electronic or electromechanical facsimiles, and allowable for play with Class II 

games, are “electronic, computer, or other technologic aids.”52 NIGC regulations define electronic, 

 42 Id. at 5. 43 25 U.S.C. §§ 2701, et seq. 44 25 U.S.C. § 2703(6). 45 25 U.S.C. § 2703(7)(A)(ii); See also 25 C.F.R. § 502.3(c). 46 25 U.S.C. § 2703(7)(B)(i); 25 C.F.R. § 502.3(c); see also 25 C.F.R. § 502.4(a)(1). 47 25 C.F.R. § 502.11. 48 Id.; 25 C.F.R. § 502.3(c). 49 25 U.S.C. § 2703(8); 25 C.F.R. § 502.4. 50 25 U.S.C. § 2703(7)(B)(ii); 25 C.F.R. § 502.4(b). 51 25 C.F.R. § 502.8. 52 25 U.S.C. § 2703(7)(A)(i); 25 C.F.R. § 502.3(a).
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 6 of 9

computer or technologic aid as: “any machine or device 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.”53 “Electronic, computer or other technologic aids include, but 

are not limited to, machines or devices that: (1) Broaden the participation levels in a common game; (2) 

Facilitate communication between and among gaming sites; or (3) Allow a player to play a game with or 

against other players rather than with or against a machine.”54 “Examples of electronic, computer or 

other technologic aids include pull tab dispensers and/or readers, telephones, cables, televisions, screens, 

satellites, bingo blowers, electronic player stations, or electronic cards for participants in bingo 

games.”55

So, whether a card game is Class II or Class III under IGRA and NIGC regulations requires an 

analysis of the game itself – primarily, how it is played.56 If the card game satisfies IGRA and NIGC 

regulations’ definitions of Class II gaming, but is played using an electronic, computer, or technologic 

device, the determining factor in the game’s ultimate classification is whether the device is an aid to the 

play of the game, in which case the game is Class II, or whether the device is a facsimile of the game, in 

which case the game is Class III. 

Analysis

To determine CloudStreet Hold’em Poker’s classification requires analyzing whether the 

game is banked or non-banked and whether it is an electronic aid or an electromechanical 

facsimile. Banking games, as commonly understood and as defined in NIGC regulations, are 

games in which the banker (usually the house) is a participant in the game, takes on all players, 

collects from all losers, and pays all winners.57 Conversely, non-banking card games are games 

where players play against each other. The traditional game of poker is a typical example of a 

non-banking card game.

CloudStreet Hold’em Poker is a non-banking poker card game. The players play one 

another rather than a banker or the house, taking wins and losses from each other. Cloudstreet 

and casino(s) make their money from their fee, described above, not from the pot. As a nonbanking card game, CloudStreet Hold’em Poker constitutes a Class II game so long as it is not an 

electronic facsimile.58

 53 25 C.F.R. § 502.7(a). 54 Id. (b). 55 Id. (c). 56 See 25 U.S.C. § 2710(b)(1)(A) (“An Indian tribe may engage in, license and regulate, class II gaming on Indian 

lands within such tribe’s jurisdiction if – (A) such gaming is located in a State the permits gaming for any purpose 

by any person, organization or entity (and such gaming is not otherwise specifically prohibited by Federal law) ...”). 57 25 C.F.R. § 502.11. 58 25 U.S.C. § 2703(7)(B)(ii); 25 C.F.R. § 502.8. 
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 7 of 9

In other words, to qualify as Class II, CloudStreet Hold’em Poker must be a technologic 

aid to poker,59 not an electronic facsimile of it. An electronic facsimile is “a game played in an 

electronic ... format that replicates a game of chance by incorporating all of the characteristics of 

the game.”60 In contrast, a technologic aid is a “machine or device that: (1) [a]ssists a player or 

the playing of a game; (2) [i]s not an electronic . . . facsimile; and (3) [i]s operated in accordance 

with applicable Federal communications law.”61 A technologic aid allows “a player to play a 

game with or against other players rather than with or against a machine.”62

CloudStreet Hold’em Poker satisfies the first element of a technologic aid. It assists play

by electronically displaying each player’s hand. The hole cards and community cards are 

displayed on each player’s electronic console, enabling the players to potentially decide whether 

to call, check, raise, or fold. Also prior to a player’s turn, they may – when presented with the 

opportunity – use pre-action checkboxes to pre-select their action on the current bet. If the bet 

does not change prior to their turn, the gaming machine will utilize their pre-selection for their 

turn. The electronic game also uses a random number generator to shuffle and deal the cards, 

which enables play and avoids any human error. In these ways, the game assists both the players

and the play of the game.

The second element of a technologic aid requires that CloudStreet Hold’em Poker not 

constitute an electronic or electromechanical facsimile of a game of chance.63 As explained, 

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

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

incorporating all of the characteristics of the game . . ..”64 In the Digideal II opinion, OGC made 

the distinction between a technologic aid and a facsimile for an electronic game of cards. It 

found that the game machine proposed by Digideal was not a facsimile because it did not 

incorporate all of the characteristics of poker.

In doing so, OGC examined court decisions on point. One case relied upon was Sycuan 

Band of Mission Indians v. Roache, in which the court reviewed a wholly-electronic pull tab 

game, where the player bought and played pull tabs generated by computer and displayed on a 

 59 A prior OGC legal opinion and memorandum have explained this office’s legal view that IGRA allows the use of 

technologic aids with Class II card games. See, e.g., NIGC OGC Game Classification Opinion – “Net Poker Gaming 

System” at 4 (July 3, 2013), https://www.nigc.gov/images/uploads/gameopinions/2013.07.03_Ltr_to_Foley_fr_NIGC_re_NetPoker_Gaming.pdf ; Memorandum to Acting NIGC Chair & 

Vice Chair, from Acting General Counsel re: Classification of card games played with technologic aids (Dec. 17, 

2009) (Digideal II opinion), https://www.nigc.gov/images/uploads/gameopinions/20091217MemoreClassificationofcardgamesplayedwithtechnologicaidstoNIGCActingChairmanGeorgeSki

bine.pdf . Given that this is the long-standing view of this office, there is no need to set forth those explanations in 

detail again. They are incorporated herein by reference.

60 25 C.F.R. § 502.8. 61 25 C.F.R. § 502.7(a). 62 Id. (b)(3). 63 25 C.F.R. § 502.7(a)(2). 64 25 C.F.R. § 502.8.
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 8 of 9

video screen. The court concluded that the game was an exact, self-contained copy of paper pull 

tabs - an electronic facsimile – and that such a wholly contained game is different from the same 

game in live-form, played with the aid of a computer or video.65 In Diamond Game v. Reno, the 

machine at issue sold and dispensed paper pull tabs from a roll, then read and displayed the 

results of each tab in a manner that resembled a three-reel slot machine.66 The paper tabs, 

however, also could be played and redeemed manually.67 There, the D.C. Circuit held that the 

machine was not an electronic facsimile, containing all characteristics of pull tabs, as the game 

was in the paper tabs and the machine was “little more than a high-tech dealer.”68

Applying these principles, the Digideal II opinion found that the Digideal game 

incorporated some characteristics of poker; namely shuffling, dealing, and ranking winning and 

losing hands. Other aspects, though, such as deciding to play or folding, placing wagers, or 

putting in an ante were made by the player. And the opinion further contrasted the Digideal game 

with video poker machines, considered Class III electronic facsimiles, because they accept bets, 

deal, evaluate the hand against standard poker rankings, and pay winning hands according to pay 

tables. Video poker machines, at bottom, are exact, self-contained copies of poker, meaning 

electronic facsimiles.

As with Digideal, CloudStreet Hold’em Poker shuffles, deals, collects the pot, and 

displays the cards. The game also automatically makes the initial blind bets for those players. If 

players fail to act (within a twelve second timeframe), deciding when to call or check, when and 

how much to raise, and when to fold, the gaming machine takes action for the player – checking 

when there is no bet and folding when there is one. In essence, the game may potentially play 

itself without any player interaction, as it automatically makes the initial blind bets and if the 

third player fails to bet, will fold for that player. Subsequently, on the flop, if both remaining 

players fail to act, the machine will automatically check for both. On the remaining betting 

rounds (turn and river), if the players continue to fail to act, the machine will continue to check 

for both and then at showdown automatically display the players’ cards, deeming the best five 

card poker hand the winner. In this scenario, the players are not playing the game or competing 

against one another. The machine plays the game, incorporating all the characteristics of Texas 

hold’em to do so. As such, it is a wholly contained copy of Texas hold’em poker in a machine;

an electronic facsimile of it.

Alternatively, in the above scenario, if only one player acts on the flop and places a bet, 

but the other player does not, the machine will automatically fold for the second player. Then the 

game is over. When this occurs, the solo active player is playing the game with or against a 

machine, not other players. As such, the game is explicitly excluded from the regulatory 

definition of a technologic aid, permitting “a player to play a game with or against other players 

 65 54 F.3d 535, 542-543 (9th Cir. 1994). 66 230 F.3d 365, 370 (D.C. Cir. 2000). 67 Id. 68 Id.
Mr. Darren Keyes

Re: CloudStreet Hold’em Poker 

May 13, 2020

Page 9 of 9

rather than with or against a machine.”69 Like the Sycuan case, here, the game replicates the 

essential characteristics of Texas hold’em in an electronic form.70 And, the game, therefore, 

constitutes an electronic facsimile. Further, given that the machine allows play of two separate 

games simultaneously and requires the player to tap a view window to toggle between the games, 

along with the twelve-second window of time for each player to act on their turn, the above 

scenarios of automatic machine play are likely.

The fact that the players make the initial buy-in does not save CloudStreet Hold’em 

Poker from being an electronic facsimile. As in Sycuan, where the players bought what the court 

found to be electronic replicas of paper pull tabs, likewise, here, the players’ initial buy-in does 

not negate CloudStreet Hold’em Poker’s ability to electronically play a complete game by itself 

or with one player playing with or against the machine.

Because CloudStreet Hold’em Poker is an electronic facsimile of Texas hold’em poker, it 

is a Class III game. Under IGRA, Class III games may be played only pursuant to an approved

tribal-state compact. Please be advised that this legal opinion is only advisory and that it may be 

superseded, reversed, revised, or reconsidered by a subsequent General Counsel. Moreover, this 

advisory legal opinion is not binding upon the NIGC Chair or the NIGC Commission, who are 

free to disagree with it in any action that comes before them or via the Chair’s prosecutorial 

discretion. In sum, this advisory legal opinion does not constitute agency action or final agency 

action for purposes of review in federal district court. Further, by issuing this advisory legal 

opinion, the NIGC Office of General Counsel does not speak on behalf of the U.S. Department 

of Justice or the United States Attorneys in regard to their enforcement responsibilities.71

If you should have any further questions, please contact NIGC Of Counsel Jo-Ann M. 

Shyloski at (202) 632-7003.

Sincerely,

Michael C. Hoenig

General Counsel

 69 Id. (b)(3). 70 See, e.g., Letter to Mr. Robert Dowd, President, The Second Byte, from NIGC Acting General Counsel re: Fast 

Track Bingo at 5 (Sept. 3, 2009) (“Considering FTB as a whole, the system does not replicate bingo by 

incorporating all of the characteristics of the game into an electronic or electromechanical form. Essential features of 

bingo are not made electronic.”).

71 See, e.g., 18 U.S.C. §§ 1166-1168; 15 U.S.C. §§ 1171-1178; 31 U.S.C. §§ 5361-5367.