9th Circuit rules against CdA Tribe on poker

The 9th Circuit U. S. Court of Appeals has ruled against the Coeur d’Alene Tribe’s bid to offer Texas Hold ‘Em poker at its reservation casino in Worley, finding that poker is “explicitly prohibited by Idaho law.” The tribe contended that Texas Hold ‘Em is a game of skill, not just chance, so should be allowed under Idaho’s Constitution. It also argued that Texas Hold ‘Em is widely played already around Idaho, from charity events to big tournaments. U.S. District Judge B. Lynn Winmill issued a preliminary injunction against the poker games at the Coeur d’Alene Casino in September; the tribe appealed to the 9th Circuit. Today, the appeals court sided with Winmill. “The Tribe’s interpretations of Idaho law are not persuasive,” wrote 9th Circuit Judge Michael Daly Hawkins, writing for a unanimous three-judge panel. “Though skill undoubtedly plays a role in Hold’em, the game does not qualify for the statutory exemption for bona fide contests of skill, speed, strength or endurance. A contrary reading would impermissibly place the statute in conflict with the constitution’s prohibition on poker.” While the tribe contends games of skill aren’t actually gambling, the Idaho Constitution bans “any form of casino gambling, including … poker.” Hawkins wrote that the tribe’s argument would “force the specific prohibition on poker to yield to a general exception for ‘contests of skill,’” noting, “Weighting the general in favor of the specific is impermissible.” The tribe also argued that the state shouldn’t have sued, because a clause in the tribe’s gaming compact with the state calls for binding arbitration to settle disputes. Winmill initially put the state’s lawsuit on hold on that basis, but when neither side invoked binding arbitration, he concluded that the tribe preferred litigation, and allowed the state’s lawsuit to proceed. Hawkins wrote that poker can be considered either Class II or Class III gaming, “depending on the laws of the state in which the gaming takes place.” Class III gaming, which includes a state lottery and the tribe’s reservation casino, can occur only through a negotiated compact between the tribe and the state, under a federal law, the Indian Gaming Regulatory Act. The appeals court found that games like Texas Hold’Em are Class II if they “are explicitly authorized by the laws of the state, or are not explicitly prohibited by the laws of the state and are played at any location in the state.” It held that regardless of whether others in the state were playing Texas Hold’Em, it’s Class III gaming in Idaho because the state constitution specifically prohibits it. “Uneven enforcement of the poker prohibition does not convert Hold’em into Class II gaming,” Hawkins wrote. The tribe opened its poker room in May of 2014, prompting the state’s lawsuit. At the time, tribal officials said marketing studies indicated their casino south of Coeur d’Alene was losing business to Indian casinos in Washington that offer card games, and to commercial card rooms, which also are allowed in Washington but not in Idaho. Coeur d’Alene Tribal Chairman Chief Allan said Wednesday that he was “disappointed” in the decision. Tribal officials are discussing their options regarding appeal; that could include requesting a larger panel of judges to re-hear the appeal or appealing to the U.S. Supreme Court. If the tribe doesn’t file any further appeals, the case would go back to Winmill’s court in Idaho for final action – which could include making the temporary injunction against the poker games permanent. Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said Wednesday that his office had no comment because the case still is pending.