Lol, I'll take the courts over the US congress or Cali legislature.

The term I see several times in IGRA is "on Indian lands" not "from"; don't see that there is a question about scope to be addressed.

Back to my original question...what is the theory or precedent that they will point to when they are in court facing accusations of breaking state gambling law by dealing unlicensed poker in CA?

The question is, where does the action take place in an internet game. Does it take place at the player's location, or the host's? Or both? It might seem cut and dried to you, but it is anything but. The very fact that people can disagree should be enough for you to realize that there are different opinions on this matter, and it will likely be a federal judge who makes makes the call on which it is. It certainly won't be any of us.

In the NJ example, state lawmakers there are asserting that the action takes place at the server, or host's location. It's not at all unfathomable that the federal courts could view it this way as well.

Your assertion that they would be breaking state gambling law is erroneous. A challenge to the Class II claim would not be an issue of CA State law, it would be on whether internet poker is Class II gaming, and where the activity takes place.

Class II gaming is covered under the IGRA, Federal law that gives the Tribes the right to offer Class II gaming, absent prohibition, without state control. The tribes have sovereignty in this regard.

As of now, CA state law does not prohibit tribes from offering Class II poker.

^Also to consider, if poker is determined definitively as Class II gaming, can a state's anti-internet-gambling law prohibit tribes from operating it in states where live poker is authorized? If the anti-internet-gambling law makes it illegal to play (like in WA), then the players would commit a crime to play ipoker, but under IGRA a state law could not make the operation of tribal ipoker sites illegal.

Games prohibited by state law, even if Class II, are prohibited for the tribes in that state as well.

A fed judge would likely need more than opinion to convince him/her that first, a gambling business offering a highly marketed, very interactive website is conducting their activities only on the reservation's server, and second, the gamblers's activity is likewise all on the reservations's server...despite what everyone knows about him/her being in Chico clicking commands on the site provided computer poker table.

Let's say there indeed is a good, very persuasive opinion and the judge declare's all relevant gambling activity is on the tribal server; what is the reasoning of that opinion? Why has it not worked before? What other business activities could be declared to happen only on a tribal server?

Yes, but poker is poker, whether played live or on the Internet. If poker is allowed for live play, then it's an allowed Class II game. If playing it on the Internet is Class II gaming, then there is a strong argument that the tribes can run both live and on the Internet. Yes, if state law says licensed cardrooms can't offer Omaha poker, then tribes can't offer that. But If state law says licensed cardrooms can offer Omaha poker, then tribes can offer it too in any form, on Indian lands, as unregulated Class II gaming. I don't think a state law prohibiting igaming could stop them from also offering Omaha poker on the Internet.

Can you be any more obtuse? There is little point in repeating myself, so why don't you look through the NJ thread and see what reasoning worked there. I don't see anyone challenging NJ's law, which if we follow your logic, clearly violates the state constitution.

There are several reasons why it hasn't been tried before . . . .

It couldn't be tried before the DoJ memo of 2011, but since then, several tribes have talked about it, and several tribal lawyers have published opinions on the subject.

It also carries with it a fair degree of risk . . . the biggest fear seems to be running the risk of losing gains if the IGRA is reopened. States could also pass prohibitions, shutting the door on the issue completely.

Washington State has many limitations on poker, and the Tribes are subject to those limitations as well. There is no 'no limit' poker (actually, there are no-limit tournaments, but not cash games) in Washington. There is a limit on bet size. There are also limits on the number of tables. If the state can put these limitations on a Class II game, they can surely prohibit online play.

There are some cases describing the laws applicable to tribal lending businesses, including statements to the effect that

“immunity does not depend in any way on the type of business a tribal entity engages in, with whom, or for what ulterior purpose.”
...
"To date, state actions, class action cases, and federal agency actions have yielded mixed results. Most agree that federally recognized, sovereign tribes have the authority to engage in Internet lending to state residents without those tribes being subjected to state authority. However, the extent to which tribal sovereign immunity shields service providers that assist tribes engaging in this business remains to be seen, as does the proper role of federal agencies such as the FTC and CFPB. Ultimately, Congress may be asked to establish laws regulating various tribal lending practices and jurisdiction over them."

http://www.pepperlaw.com/publication...rticleKey=2605

ZZZZZZZZZZZZZZ... I'm ready to play already...

Noticed the website has a live chat feature and decided to say hi. Not exactly new info here, but thought it was interesting all the same.

Your Question: Am I able to deposit real money and play, today?

Please wait and one of our operators will be with you shortly.

Your request is important to us. Please wait and one of our operators will be with you shortly.

You are now chatting with Andrei PK (Customer Service Agent) - Private Table

01:08Andrei PK:
Hello John. Thanks for contacting customer support. My name is Andrei.

01:08jdavis86:
Hi

01:09jdavis86:
Thinking about setting up an account...and just wonder if I'll be able to play with real money.

01:09Andrei PK:
How may I assist you?

01:10jdavis86:
Just wondering if I can deposit and play with real money on private table?

01:10Andrei PK:
Our real money tables are not launched yet, but that will happen very soon. Once we launch them, all registered players will get an email notification about it.

01:10jdavis86:
Oh I see

01:10jdavis86:
is there a time frame I should look forward to?

01:11Andrei PK:
We are expecting to launch them probably in a matter of week.

01:11jdavis86:
Ah nice

01:11Andrei PK:
But still, there isn't an exact date announced yet.

01:11jdavis86:
And as long as I'm a California resident, it's okay for me to play?

01:12Andrei PK:
Yes, everyone within the state of California will be able to play on our real money tables.

01:12jdavis86:
Awesome

01:12jdavis86:
something to look forward to

01:12jdavis86:
thanks for your help

01:12Andrei PK:
I am glad to hear that.

Those are all limits to which games can be played. Limiting the venue in which the allowed games are offered is a completely different matter.

The limitations which apply to Class II card games under IGRA are specifically laid out in IGRA:
For instance, in Florida poker games are allowed by state law only at licensed pari-mutuel facilities which run a certain amount per year of live greyhound or horse races, or live jai-alai games. This limitation does not apply to the tribes under IGRA - they can run poker without also running such live pari-mutuels.

Prohibiting online poker is not a limitation on hours of operation, wagers or pot sizes of the game. I don't think such a state prohibition would apply to the tribes if online poker is categorized as Class II gaming under IGRA.

*Note: I also think that the limit to the number of tables per WA state law wouldn't apply to the tribes under IGRA. Has this ever been challenged? Is there a tribal-state compact in effect that includes that as a term (which means it is applicable only under the compact, and not under IGRA)?

^^^ Clearly launch = courts, I'm guessing, after some wrangling about the court that has authority, that a temporary restraining order would go in place on real money games. I hope they launch, I throw my $20 on there. The argument is better than the CA battle of the "bad actor".

It does appear the table limit does not apply to tribal casinos (Tulalip has 20 tables, Muckleshoot 32; the limit is 15). The 15 table limit is regulatory, not statutory, so it doesn't really answer the question of what limits the state could impose.

If you're right, and the state would have to allow online poker if they allow land based poker, assuming the Class II argument is successfully made, all the better for the players in Washington State.

Indeed. That is, as long as the tribes are honest self-regulators.

X-posted in NVG:

The tribe's lawyer weighs in:
Attorney: California real-money online poker site legal

Of course, out of necessity to make the legal argument for the tribe, he ignores the fact that online poker is not actually a poker game but rather an electronic facsimile of a poker game. IGRA addresses this specifically as an exclusion for Class II gaming (and specifically gives an exception for electronic aids for bingo gaming):

So, we have the usual conundrum of whether or not Congress intended non-banked card games like poker to be considered "games of chance", as this term is not defined as part of the statute.

This article reviews the issue in a bit more detail:
INTERNET LAW - Does the Indian Gaming Regulatory Act Cover Internet Gaming?

Back in 2004, the Acting General Counsel of the National Indian Gaming Commission, Penny Coleman, ruled in an Opinion Letter:
The issue was to allow Trips or Better Poker, a non-house banked card game, to be played on the fully electronic table by Digital Card System as Class 2 gaming.

This Opinion Letter, and other rulings I have read of the NIGC, lead me to the conclusion that the Santa Ysabel's legal argument will not hold up. Online poker ultimately will not be held to be Class II gaming imo.

Less talking, more launching...

Reasonable people can disagree. I'm not convinced the facsimile argument will rule, though I fully understand your reasoning.

On a side note, there is a case in Wisconsin that is interesting . . . .

A Judge there has ruled that the Ho-Chunk Nation's use of electronic poker tables is Class III gaming. In this case, however, the argument that won is not that the games are a facsimile and therefore Class III, but rather the judge ruled that poker is not explicitly authorized by the laws of the state, therefore it fails to qualify as Class II. All games not covered by Class I or Class II are considered Class III.

So in this case, even poker with a live dealer and paper cards would be considered Class III

The State of Wisconsin did not raise the facsimile issue in this case.

here is the actually ruling

^^^Interesting. I wonder why the Ho-Chunk Nation didn't use the legal reasoning in this 2009 NIGC ruling in favor of the Ho-Chunk Nation, wherein poker was ruled as Class II gaming in WI because the state authorized it to some of the WI tribes by Class III gaming compacts. There must be more to the legal history.

In any case, like you said the issue of whether or not the use of the electronic poker table is Class II or III gaming was not at issue, apparently because neither the tribe nor the state brought it as part of the suit.

This is a pretty interesting opinion on the subject, and it seems to sum things up pretty clearly. It also makes some distinctions that are being misstated in this discussion.

First is the issue of whether or not internet poker is a 'facsimile.' In this opinion, she asserts "The table is not a facsimile because it does not incorporate all of the characteristics of Trips or Better Poker"

But she goes on to say that technological aids are not allowed for card games, and it is for this reason that the electronic tables, and likely internet poker, would be deemed as Class III.

"Concluding that the DigiDeal table is a technologic aid does not end the nquiry. 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."

It's hard for me to argue with this reasoning, and may ultimately prove to be the case. I'm thinking you may in fact be right, and given a strict interpretation of the act, it is going to be seen as Class III. That said, a liberal interpretation could rule that since technological aids are permitted for Bingo, they should also apply to other Class II games as well.

Either way it goes, I think it's important that it is resolved. Perhaps the Tribes will push to amend IGRA. I think it lights a much needed fire though.

My thinking is that ipoker would be found to be an electronic facsimile rather than a technologic aid. Unlike the DigiDeal table, ipoker incorporates all of the characteristics of poker into electronic form.

But, in addition, in light of this 2004 ruling, even if somehow ipoker were found to be just a technologic aid, it would still be Class III. We agree.

The only difference between the electronic tables and internet poker is the physical proximity of the players. All player actions are still required to be made by the player. To be a facsimile, the game would have to take on at least part of the players' role.

You mean like an electronic representation of the player sitting in their seat around an electronic representation of the table? I'm pretty sure ipoker has that.

Those are not elements of the game, any more than the design on the back side of the cards are.