BOISE – Texas Hold ‘Em poker is no different than golf under Idaho law, the Coeur d’Alene Tribe argues in its response to a lawsuit from the state – it’s a game of skill, in which players can pay fees to enter tournaments and win prizes for how well they do.
“As the statute provides, even if the game of poker is prohibited, that prohibition does not apply if the game can be shown to be a ‘contest of skill,’” the tribe wrote in legal arguments submitted in court Friday.
The state of Idaho sued the Coeur d’Alene Tribe in federal court on May 2, after the tribe opened a poker room at its Coeur d’Alene Casino in Worley. The state argued that poker is flat illegal in Idaho, prohibited both by the state Constitution and law. But the tribe said the type of poker it’s offering – Texas Hold ‘Em tournament play – is legal, and is widely played in Idaho.
That makes it a type of Class II gaming, not Class III, under federal law, the tribe argues, so if anyone else can offer it in the state, tribes legally can, too.
“As long as the state permits a single person, organization or entity to operate a game at any location in the state, whether for charity purposes or otherwise, the tribe is entitled to operate such games in its gaming facility,” the tribe argued.
Among existing offerings of Texas Hold ‘Em style games in the state, the tribe pointed to charity events, merchant promotional contests, and even an Idaho State Lottery scratch ticket game called “Idahold’em” that the state launched in 2007 with a press release asking, “Are you ready for some high-stakes poker? Deal us in!”
The tribe also submitted a May 15 decision from an Idaho magistrate court judge in Ada County, dismissing the charges against two men who were charged with illegal gambling for playing Texas Hold ‘Em. “It is a very perplexing picture of sometimes you can play Texas Hold ‘Em, and sometimes you cannot,” Magistrate Judge James Cawthon wrote. “The state cannot explain with any clarity when you can and when you cannot, or how one would know when you could or when you could not.”
That lower-court ruling has “little or no” legal precedential value in the state’s case against the tribe, but it could have “persuasive authority,” said Michael Bartlett, one of two Boise attorneys who represented the two men.
Bartlett’s side brought in national experts who testified that Texas Hold ‘Em is a game of skill that’s widely played in Idaho and around the nation. He also pointed to pool tournaments, bass fishing tournaments, rodeos and golf tournaments as comparable situations in which people pay to enter tournaments testing their skills – with some element of chance also involved – and win prizes based on how they perform.
“I think the tribe has it right,” Bartlett said. “The word ‘poker’ in there, I think, is ambiguous as it comes to Texas Hold ‘Em, because poker is a broad term that involves a number of card games, some of which are primarily games of chance. Texas Hold ‘Em clearly is a game of skill.”
Attorneys for the tribe cited studies finding that skill determines the winners in Texas Hold ‘Em, with one saying 76 percent of games are determined by the player’s betting strategy, and only about 12 percent won by the player at the table who had the best hand. Techniques including position, psychology and bluffing were used by skilled players to improve outcomes.
The state and the tribe will face off in federal court in Coeur d’Alene on June 3 over the state’s bid for a restraining order to shut down the tribe’s poker room.
The tribe also argues that the state’s lawsuit should be dismissed because it violates the state-tribal gaming compact by sidestepping an arbitration process in favor of litigation. The tribe has agreed to binding arbitration with the state over the issue, but the state refused to participate unless the tribe first closed the poker room, which opened May 2.
The state had no comment on the latest court filings. Tribal spokesman Helo Hancock said, “Anybody who’s played Texas Hold ‘Em knows that it’s a game of skill. Those that are good at it consistently win at it.”