Diamond Game Enterprises, Inc. v. Reno

Diamond Game Enterprises and various Indian tribes (collectively, the tribes) (plaintiffs) filed a declaratory action seeking classification of a pull-tab-dispensing device as a permissible electronic aid to the traditional class II game of pull-tabs. The device, the Lucky Tab II, cut pre-existing paper pull-tabs, displayed their contents, and dispensed them to players. The tribes emphasized that the Lucky Tab II could not function without the pre-printed pull-tabs and did not generate or finalize the outcome of the game, and therefore did not replicate the underlying game. These characteristics, according to the tribes, distinguished the Lucky Tab II from the electronic pull-tabs machine in Cabazon Band of Mission Indians v. NIGC, which was determined to be a class III facsimile because it was an exact copy of the underlying game. The government (defendant) argued against this distinction and stressed that both machines recreated the functions of playing the game in its traditional form. The government also attempted to distinguish the Lucky Tab II from another machine that was classified as a class II electronic aid, noting that the Lucky Tab II did not dispense the pull-tabs but scanned the cards and displayed the results on a video screen. Lastly, the government argued that the Lucky Tab II was not a class II device because it did not broaden player participation between tribes, citing to examples of collaborative devices in a Senate committee report to suggest that this type of assistance aligned with congressional intent. Both parties moved for summary judgment. The district court concluded that the Lucky Tab II was a class III facsimile and granted summary judgment to the government. The tribes appealed.