In his 24-page opinion, U.S. District Judge B. Lynn Winmill stated, “Idaho’s constitution plainly prohibits all forms of gambling other than the three listed exceptions.” These exceptions are slot machines, bingo and off-track betting.
The tribe’s contention was that since poker is not a house-banked game, and is a game of skill, the tribe should be allowed to offer it on their reservation as a form of Class II gaming under the Indian Gaming Regulatory Act.
However, the Idaho constitution states that games with “any element of chance” are considered gambling, making poker tournaments a violation of state law, and moving poker into the Class III gaming column.
The ruling is interesting on several levels and could have broader implications outside of Idaho, particularly in California where the Santa Ysabel tribe is considering launching an online poker site under the auspices of their ability to offer Class II gaming under the Indian Gaming Regulatory Act (IGRA).
Complications for Santa Ysabel tribe and Private Table
The issue becomes in California has nothing to do with poker’s designation though. In California poker is considered Class II gaming, while it falls under Class III gaming in Idaho based on the different laws each state has adopted. The potential problem for the Santa Ysabel tribe in California was first brought up by poker journalist Martin Shapiro on Twitter.
— Martin Shapiro (@PokerXanadu) September 5, 2014
Shapiro astutely points out that the ruling in Idaho sets a precedent for the state of California to file an injunction against the tribe without going to the National Indian Gaming Commission (NIGC) for a ruling.
This is just one of the many problems the Santa Ysabel tribe will face if they are serious about launching an online poker site in California.
Add it to the list
Not only are lawsuits likely to fall from the sky if they try to go live, but their argument that online poker is Class II gaming is problematic. The issue is many aspects of online gambling have never been fully addressed or held up in courts of law, leaving their interpretation under pre-Internet gaming laws tenuous and undetermined.
The first issue which has to be worked out is whether online gambling happens at the server or at the bettor’s location. If it occurs at the server than the Santa Ysabel tribe may have a case as they are allowed to offer Class II gaming on their land. If it is determined that online gambling happens on the customer’s end than the Class II argument is moot.
A second issue was brought to light by once again by Martin Shapiro who noticed that in addition to needing to be non-house banked, played legally by anyone else in the state (this is where Idaho’s Coeur d’Alene tribe failed the test), and conducted on Indian lands, it also could not be an “electronic facsimile” of the game.
At this time it’s unclear if Internet Poker falls under this caveat that Class II gaming cannot be an “electronic facsimile” of the game.
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