Although most people (outside of American history buffs) don’t realize it, Nebraska was once a major hub for gambling in the United States. In fact, Omaha was teeming with casino gambling throughout the 1800’s and a decent portion of the 1900’s as well, despite the fact that all forms of gambling were illegal in Nebraska (up until 1934, when pari-mutuel horse race betting was permitted). Today, there are multiple forms of regulated gambling in the Cornhusker State, but online poker is not one of them. That’s not to say that online poker laws in Nebraska prohibit the activity, just that it isn’t explicitly licensed by the states.
There are countless poker players residing in Nebraska, many of which who have become wary of enjoying their favorite pastime over the internet since the Black Friday of Online Poker in April, 2011. It is our goal to examine the current laws of Nebraska and determine, on a preliminary level (we are not licensed attorneys) whether or not online poker is legal in Nebraska.
Legality of Online Poker Nebraska
Nebraska has multiple forms of legal, regulated gambling available to its residents. There are 5 race tracks in the state, but the ponies are the only sporting event one can bet on. Casino gambling in Nebraska is available via 3 land-based tribal casinos and several small bars with few video gaming machines to speak of. Interestingly enough, none of them offer a poker room with live tables to play on, although bingo and raffles are fairly common. A state-run lottery is also provided.
The absence of physical poker tables in the Cornhusker State doesn’t exactly bode well for fans of online poker. However, the official website for the Government of Nebraska has published a document entitled ‘Frequently Asked Questions (FAQ’s) About Gambling In Nebraska’ that sheds a lot of light on what is legal and illegal in the state, and by the literature of that page, it sure seems that online poker could be exempt from illegal gambling.
Under the question ‘Just what is gambling?”, three elements are required, including “Consideration, Chance and Reward”. While these are generally all found in poker, the citation goes on to say that chance refers to an outcome determined by chance “rather than the experience or skill of the individual, or the outcome of an event that the individual has no control over the outcome”.
While the particular passage sounds hopeful, another stipulation under ‘What about Texas Hold’em tournaments?’ goes on to say that poker is only permitted when there is no fee or requirement to concede anything of value as a prerequisite to participate. Translating that rule to online poker, it would become illegal by default since there is always a fee to enter, or a points requirement, or a rake taken at cash tables. That also explains why no one bothers to offer poker tables at their brick and mortar casino establishments.
While the explanation is fairly clear, the term “internet” or “online” poker is never used, thus we must study the actual literature of the Nebraska Constitution to determine whether or not the state truly views online poker as being illegal.
Nebraska Revised Statutes – Gambling
Nebraska’s gambling laws are found under Chapter 28 of the Nebraska Revised Statutes. The following citations are taken directly from that text, although in some cases we have abridged these quotations to maintain fluency of the topic. However, the meaning has not been changed.
Gambling: A person engages in gambling if he or she bets something of value upon the outcome of a future event… determined by an element of chance [that is] not authorized or conducted in accordance with the Nebraska [law].
Gambling Device: [means] any device, machine, paraphernalia, writing, paper, instrument, article, or equipment that is used or usable for engaging in gambling, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. Gambling device shall also include any mechanical gaming device, computer gaming device, electronic gaming device, or video gaming device which has the capability of awarding something of value… Items used… in accordance with the Nebraska [law, i.e. lottery machines, lottery tickets, bingo cards, video game machines, etc.]… are not gambling devices within this definition;
The language of this section, strictly construed, simply and plainly asserts that an activity is gambling in Nebraska if its outcome is predominantly caused by chance. American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 492 (2011).
It shall be no defense to a prosecution under any provision of this article relating to gambling that the gambling is conducted outside this state and is not in violation of the laws of the jurisdiction in which it is conducted.
What does it all mean? Is online poker illegal in Nebraska?
The laws are difficult to interpret in regards to online poker in Nebraska as they tend to contradict one another. On the one hand, it states clearly that ‘gambling’ is illegal, and includes any activity that is not specifically authorized (or licensed) by the state, which would include poker games that require the player to pay something in order to win (tournament fee, rake, etc.) Under 28-1110, it also states that a player cannot use the defense that the game being played wasn’t conducted in Nebraska (such as an offshore online gambling site). Yet in the Annotations section of 28-1101, it also plainly states that “an activity is gambling if its outcome is predominantly caused by chance”. In August of 2012, a federal judge declared that the outcome of poker is determined more by skill than chance, so players might actually have a strong argument there.
In the end, we have to lean towards online poker being illegal in Nebraska. The fact that online poker is not authorized by the state government greatly supersedes the skill debate.
Is Nebraska working to regulate online poker?
There is no hint of online poker regulation on the horizon for Nebraska. The only thing players have going for them at the moment is that there are numerous tribal casinos in the area. Should online poker be regulated on a federal level, tribes may push for online poker regulation, but that certainly isn’t a guarantee. Unfortunately, there is little more to do than wait and see.