1

The Honorable Joseph F. Bataillon, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1503

___________

United States of America, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the District

* of Nebraska.

Santee Sioux Tribe of *

Nebraska, a Federally * 

Recognized Indian Tribe, *

*

Appellee. *

___________

Submitted: October 9, 2002

Filed: March 20, 2003 (Corrected March 25, 2003)

___________

Before MURPHY, BEAM, and MELLOY, Circuit Judges.

___________

BEAM, Circuit Judge.

The government appeals from the district court's1

 order granting the Santee

Sioux Tribe (the Tribe) relief from a prior order of contempt. We affirm. 
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I. BACKGROUND

This is our third review of this case, which has an extensive factual and

procedural history. In early 1993, the Tribe attempted to negotiate a compact with

the State of Nebraska that would have permitted class III gaming on tribal lands,

pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA). No

agreement was reached, but the Tribe nevertheless opened a class III gambling casino

on the reservation in 1996. Thereafter, the Chairman of the National Indian Gaming

Commission (NIGC) issued a closure order against the Tribe because the Tribe was

illegally participating in class III gaming activities. The Chairman ordered the casino

to close by May 5, 1996, and the Tribe complied with that order. However, on June

28, 1996, the Tribe reopened its casino. 

The government then filed suit in federal court, alleging violations of federal

and state law and requesting closure of the casino. The district court dismissed both

the Tribe's and the government's request for injunctive relief. We reversed on appeal,

holding that the Tribe had violated the IGRA by conducting class III gaming in

contravention of Nebraska law and that injunctive relief was warranted. United

States v. Santee Sioux Tribe of Neb., 135 F.3d 558, 564-65 (8th Cir. 1998) (Santee

I).

On remand, the district court ordered removal of all class III gaming devices.

Soon after, the Tribe voted to continue operating the casino, including the class III

devices, and the government sought an order of contempt. The district court found

the Tribe in contempt, and by November 1999, the district court had reduced to

judgment accrued fines totaling in excess of $1 million. However, the district court

determined that members of the Tribal Council could not be individually liable for

contempt fines and that certain bank accounts could not be garnished. On appeal, we

reversed the district court's decision not to hold the individual members of the

Council in contempt and also reversed the district court's determination that certain
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monies could not be garnished. United States v. Santee Sioux Tribe of Neb., 254

F.3d 728, 735-37 (8th Cir. 2001) (Santee II). Other findings by the district court

relating to garnishment were affirmed, and the case was remanded. Id. at 735, 738.

In May 2001, the Tribe ceased operation of its class III gaming devices. It

eventually replaced them with what is commonly known as "Lucky Tab II" machines,

in part because the NIGC's Chief of Staff wrote a letter to the Tribe's legal counsel

suggesting that the Tribe install and operate the Lucky Tab II dispensers. The NIGC

thereafter dissolved its closure order because it took the position that the Lucky Tab

II is not a class III gaming device. Accordingly, the Tribe brought this action,

seeking relief from the prior order of contempt. The government, however, contends

that the Lucky Tab II is a class III device, or, in the alternative, that even if it is a

class II device, it is prohibited by the Johnson Act, 15 U.S.C. § 1171 et seq.

At trial, the following evidence was adduced regarding the Lucky Tab II

machines. First, the instruments look and sound very much like traditional slot

machines. Internally, the device is essentially a computer. It also has a manual feed

for money, a roll of paper pull-tabs, a bar code reader to read the back of each pulltab, a rubber roller to dispense the pull-tabs, a cutter which cuts the pull-tabs from the

roll, and a cash drawer. The bar code reader reads the pull-tab as it passes through

the machine to the player, and based on this reading, a video screen displays the

contents of the pull-tab–whether it is a winner or loser. The machine also emits

different sounds, depending on whether it has read a winning or losing ticket.

A player begins playing by feeding money into the machine, but the machine

cannot give change. The player presses a start button and after approximately two

and a half seconds an animated display appears, announcing winner or loser status.

The machine then dispenses the paper pull-tab to the player. At this point, the player

can either pull back the paper tab to verify the contents, or continue playing by

feeding more money into the machine and pressing the start button again. If the pull-
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tab is a winner, the machine cannot pay the player or give credits for accumulated

wins; instead, the machine tells the player to go to the cashier and present the pull-tab

to redeem winnings. 

The pull-tabs themselves are small, preprinted, two-ply paper cards. The player

peels off the top layer to reveal symbols and patterns which indicate a winning or

losing card. The pull-tabs also indicate the number manufactured, game type, and

unique sequence number. The back of the pull-tab shows an encrypted bar code with

fifteen characters. The bar code must be scanned with a laser light to determine if

the card is a winner or a loser. Because the information is encrypted, the data on the

bar code is unknowable without the proprietary software from the manufacturer,

World Gaming Technologies. Also, anti-tampering devices ensure that a pull-tab

that has already been scanned will be rejected and that the tabs will be dispensed in

the correct sequence. Without a roll of paper pull-tabs in place, the machine cannot

function–it will not accept money or display any symbols.

The evidence suggested that, as a practical matter, players often take the

winning tickets, unopened, to the cashier for redemption. Furthermore, players

frequently leave the losing tickets, unopened, in the dispenser drawer of the Lucky

Tab II machines.

The district court found that the machines at issue were class II devices

because: the machines do not determine the winner or loser, pull-tabs can be played

without these machines, the player does not play against the machine, and no

winnings are paid or accumulated by the machines. The district court followed the

reasoning in Diamond Game Enters., Inc. v. Reno, 230 F.3d 365 (D.C. Cir. 2000), in

coming to this conclusion. United States v. Santee Sioux Tribe of Neb., 174 F. Supp.

2d 1001, 1008-09 (D. Neb. 2001).
2

The Johnson Act defines "gambling device" to include all slot machines with

a drum or reel with insignia, 15 U.S.C. § 1171(a)(1), and also: 

any other machine or mechanical device . . . designed and manufactured

primarily for use in connection with gambling, and (A) which when

operated may deliver, as the result of the application of an element of

chance, any money or property, or (B) by the operation of which a

person may become entitled to receive, as the result of the application

of an element of chance, any money or property.

15 U.S.C. § 1171(a)(2).

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II. DISCUSSION

In reviewing a district court's final judgment following a bench trial, we review

factual findings for clear error and legal conclusions de novo. Fed. R. Civ. P. 52(a);

Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002). A district court's choice

between two permissible views of evidence will not be clearly erroneous, and we

must give weight to the district court's opportunity to judge the credibility of the

witnesses. Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir. 1997).

The first issue in this case necessitates our delving into the relationship

between the IGRA and the Johnson Act. The government argues that if Lucky Tab

II is construed to be a class II gaming device, it is still a "gambling device" within the

parameters of the Johnson Act2

 and therefore prohibited. If that is the case, the Tribe

cannot be granted relief from the contempt order. The Tribe argues that the Johnson

Act defines "gambling device" so expansively that it would include any device which

is "electric" or "mechanical," including those which are allowable class II gaming

devices. Because class II gaming is permitted under one federal law (the IGRA), but

the machines which facilitate class II gaming are arguably prohibited under another

(the Johnson Act), the Tribe argues that the IGRA has repealed the Johnson Act by

implication. 
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The IGRA, in section 2710(b)(1)(A), states that an Indian tribe may engage in

class II gaming where the state in which it is located permits similar games "and such

gaming is not otherwise specifically prohibited on Indian lands by Federal law." 25

U.S.C. § 2710(b)(1)(A). This section, the government argues, shows that the two acts

can be read together because the IGRA contemplated prohibition of certain class II

games if the devices used to carry out the gaming are prohibited Johnson Act

gambling devices.

We agree with the government that the two acts can be read together. First, it

is well-established that repeals by implication are not favored. Morton v. Mancari,

417 U.S. 535, 549 (1974). "In the absence of some affirmative showing of an

intention to repeal, the only permissible justification for a repeal by implication is

when the earlier and later statutes are irreconcilable." Id. at 550. The two statutes

here are not irreconcilable. Section 2710(b)(1)(A) clearly states that class II devices

may be regulated by another federal statute–obviously the Johnson Act. Thus, the

argument that the IGRA implicitly repeals the Johnson Act with respect to class II

devices is not well taken, even though some version of this view has been expressed

by several courts. See, e.g., United States v. 162 MegaMania Gambling Devices, 231

F.3d 713, 725 (10th Cir. 2000) (noting that the IGRA indicates Congress did not

intend to allow the Johnson Act to reach class II devices); Diamond Game, 230 F.3d

at 367 (finding that the IGRA limits "the Johnson Act prohibition to devices that are

neither Class II games approved by the commission nor Class III games covered by

tribal-state compacts"). But see Cabazon Band of Mission Indians v. Nat'l Indian

Gaming Comm'n, 14 F.3d 633, 635 n.3 (D.C. Cir. 1994) (noting that besides express

repeal of Johnson Act for class III gaming in IGRA section 2710(d)(6), "'[t]here is no

other repeal of the Johnson Act, either expressed or by implication,'" for class III

gaming) (quoting Cabazon Band Mission Indians v. Nat'l Indian Gaming Comm'n,

827 F. Supp. 26, 31 (D.D.C. 1993)). We find that the IGRA and the Johnson Act can

be read together, are not irreconcilable, and the Tribe must not violate either act if it

is to gain relief from the prior order of contempt.
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The government argues that if the Johnson Act applies, the Lucky Tab II

machines are prohibited "gambling devices" under that act, and the Tribe is still

operating gambling equipment in contravention of federal law. We disagree because

we do not believe the Lucky Tab II machines are "gambling devices" within the

meaning of the Johnson Act. Lucky Tab II machines are not slot machines as

apparently contemplated by 15 U.S.C. § 1171(a)(1), because they do not randomly

generate patterns displayed on a screen, pay out money or otherwise determine the

outcome of a game of chance. Nor do these machines fall within the strictures of

sections 1171(a)(2)(A) and (B), which state, as earlier indicated, that a gambling

device includes any machine: 

designed and manufactured primarily for use in connection with

gambling, and (A) which when operated may deliver, as the result of the

application of an element of chance, any money or property, or (B) by

the operation of which a person may become entitled to receive, as the

result of the application of an element of chance, any money or property.

15 U.S.C. § 1171(a)(2)(A), (B).

Lucky Tab II machines clearly do not fall within subsection A because the

machines do not deliver any money or property. Subsection B seems a more likely

candidate to ensnare these machines, but upon close examination, we find it does not.

This section states that the operation of a machine designed and manufactured

primarily for gambling use is a gambling device if, "as the result of the application

of an element of chance" a person can be entitled to receive money or property. 15

U.S.C. § 1171(a)(2)(B) (emphasis added). The key words are highlighted, and

demonstrate why the Lucky Tab II devices do not fit within this definition. As the

trial testimony indicates, these machines do not generate random patterns with an

element of chance. They simply distribute the pull-tab tickets and display the

contents of the tickets on a screen for the user. The user of the machine does not

become entitled to receive money or property as a result of the machine's application
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of an element of chance, which is what the statute clearly contemplates. See id. ("by

the operation of [the gambling device] a person may become entitled to receive, as

the result of the application of an element of chance [by the machine], any money or

property"). 

The Johnson Act does not bar this type of machine, because it is merely a hightech dispenser of pull-tabs. If, however, the Lucky Tab II machines were computergenerated versions of the game of pull-tabs itself, or perhaps, even if it randomly

chose which pull-tab from the roll it would dispense, it could fall within this

subsection. However, it is clear the machines do neither of these things. Instead, they

dispense, in identical order from the roll as physically placed in the machine, pull-tabs

from that roll. The machines, as noted, have a cutting device which separate the tabs

from the roll, and then feed the pull-tab to the player. This action does not describe

the "application of the element of chance." Therefore, although we find that the

IGRA does not repeal the Johnson Act, either explicitly or implicitly, we also find

that the Tribe does not violate the Johnson Act by operating the Lucky Tab II

machines.

However, this does not end the inquiry. Instead, the key question becomes

whether Lucky Tab II is an IGRA-prohibited class III gaming device. We begin with

the language of the law. The statute offers the following explanations of class II and

class III gaming:

(7)(A) The term "class II gaming" means–(i) the game of chance

commonly known as bingo (whether or not electronic, computer, or

other technologic aids are used in connection therewith)–

(I) which is played for prizes, including monetary prizes, with

cards bearing numbers or other designations, 
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(II) in which the holder of the card covers such numbers or

designations when objects, similarly numbered or designated, are

drawn or electronically determined, and

(III) in which the game is won by the first person covering a

previously designated arrangement of numbers or designations on

such cards, 

including (if played in the same location) pull-tabs, lotto, punch boards,

tip jars, instant bingo, and other games similar to bingo . . . . 

 (B) The term "class II gaming" does not include–(i) any banking card

games, including baccarat, chemin de fer, or blackjack (21), or (ii)

electronic or electromechanical facsimiles of any game of chance or slot

machines of any kind.

. . .

(8) The term "class III gaming" means all forms of gaming that are not

class I gaming or class II gaming. 

25 U.S.C. § 2703(7), (8).

According to the statute, then, pull-tabs is a class II game. However,

"electronic or electromechanical facsimiles of any game of chance" are not class II

games. Such facsimiles constitute class III gaming. Id. The government argues that

Lucky Tab II machines are electromechanical facsimiles of the game of pull-tabs,

making their use prohibited class III gaming. The Tribe argues that these machines

are technological "aids" within the meaning of section 2703(7)(A), and therefore fall

within the parameters of permitted class II gaming. We do not fully agree with either

of these positions, and in that regard, we pause to clarify a terminology issue.

Other courts have construed this statute and concluded that the phrase "whether

or not electronic, computer, or other technologic aids are used in connection

therewith" modifies both the game of bingo and also other games mentioned later in
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the section, specifically "pull-tabs, lotto, punch boards, tip jars, instant bingo, and

other games similar to bingo." These courts thus have found that games other than

bingo could be technologically aided. E.g., Diamond Game, 230 F.3d at 367 (noting

that pull-tabs is a class II game by statute, and that the IGRA specifically allows use

of technologic aids "in connection with class II games"). We disagree with this

reading of the statute. Instead, we believe that the phrase "whether or not electronic,

computer, or other technologic aids are used in connection therewith" applies only

to bingo. See 25 U.S.C. § 2703(7)(A). However, we also note that nothing in the

statute proscribes the use of technological aids for any games, so long as the resulting

exercise falls short of being a facsimile. Therefore, while we quarrel somewhat with

the posture in which the parties, and other cases, have placed the issues, we agree

with the ultimate conclusion that if the devices are not facsimiles within the meaning

of the statute, they are not prohibited, regardless of whether or not they are labeled

technological "aids." With that caveat, we apply the "aids" and "facsimiles"

terminology.

The District of Columbia Circuit recently considered whether the same Lucky

Tab II machines at issue here were permitted class II gaming devices under the IGRA.

The court distinguished the Lucky Tab II machines from the machines at issue in that

circuit's earlier decision, Cabazon Band, 14 F.3d 633. In Cabazon Band, the court

examined electronic pull-tab machines which randomly selected a card for the player,

electronically "pulled" the tab off the card at the player's direction, and displayed the

results onscreen. Because that game "exactly replicate[d]" the game of video pulltabs in computer form, it was a facsimile and not a class II device. Id. at 636. 

The Diamond Game court observed that the Lucky Tab II machines were "quite

different" from the machines in Cabazon. 230 F.3d at 369. The court found that the

presence of the video monitor did not render Lucky Tab II a computerized version of

pull-tabs because the computer did not select the patterns; instead, the machines

merely cut tabs from paper rolls, displayed and dispensed them. "In other words, the
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game is in the paper rolls, not, as in the case of the Cabazon machine, in a computer."

Id. at 370. Furthermore, citing Webster's Dictionary for a definition of aid, the court

found that the machines "'help[ed] or support[ed]' or 'assist[ed]' the paper game of

pull-tabs." Id. (citing Webster's Third New International Dictionary 44 (1993)).

Noting that a Lucky Tab II machine was "little more than a high-tech dealer," the

Diamond Game court held that "Lucky Tab II is not a facsimile of paper pull-tabs, it

is paper pull-tabs." 230 F.3d at 370 (emphasis in original).

The prior law of this case is also instructive on this question. In Santee I, the

Tribe argued that the State of Nebraska, through its SLOTS keno reading system, was

already conducting class III gaming. We rejected that argument and held that the

SLOTS keno reading system was a class II gaming device because "[t]he 'SLOTS'

device is only a means of allowing keno players to view keno results, and, unlike a

slot machine, is not a means of conducting the game itself. See Opinion of Nebraska

Attorney General at 11 (Sept. 18, 1995)." Santee I, 135 F.3d at 564 (emphasis

added). The Nebraska Attorney General's opinion referred to by Santee I describes

the SLOTS system as follows:

This device allows players to view game results by pressing one or more

buttons on a video display terminal. The game results are displayed in

slot-machine like fashion with the use of symbols (cherries, bars, etc.)

rather than the typical number display. In approving use of the system,

the Department . . . concluded that the device merely displays the results

of the game in a novel way and does not directly affect the outcome of

the game.

Neb. Op. Att'y Gen. No. 95074, 1995 WL 551980, at *7 (Sept. 18, 1995) (internal

quotations omitted).

The Lucky Tab II machines, much like the SLOTS system described in Santee

I, "display[] the results of the game in a novel way and do[] not directly affect the
3

We have considered, and rejected, the government's argument that the Lucky

Tab II machines are facsimiles of slot machines. These machines may look and sound

like slot machines, but they cannot make change, accumulate credits, or pay out

winnings. Thus, they are not exact copies (the commonly understood definition of

a facsimile, see Cabazon Band, 14 F.3d at 636) of a slot machine.

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outcome of the game." Id. While the Lucky Tab II machines read the pull-tab card

for the player and display the results on screen in a novel way, the paper pull-tab card

itself is the player's only path to winning. The machines have nothing to do with the

outcome of the game.

The Diamond Game court used a similar analysis to reach its conclusion about

the Lucky Tab II machines. The government had offered a device called a "Tab Force

Validation System" as an example of a class II aid. Under this system, a player buys

a pull-tab from a clerk, and instead of peeling off the top layer, inserts the pull-tab

into a scanner which reads a bar code and displays the results on a video screen. The

Diamond Game court could find no discernable difference between the two systems:

Both devices electronically "read" paper pull-tabs and display their

contents on a screen, and neither can "change the outcome of the game."

Unlike the machine involved in Cabazon, neither contains an internal

computer that generates the game. Rather, both machines facilitate the

playing of paper pull-tabs. They are thus Class II aids.

230 F.3d at 370.

While this case presents a close call, we think the better view is that operation

of the Lucky Tab II machines does not change the fundamental fact that the player

receives a traditional paper pull-tab from a machine, and whether he or she decides

to pull the tab or not, must present that card to the cashier to redeem winnings. We

agree with the reasoning of the Diamond Game court that the machines do not

replicate pull-tabs; rather, the player using the machines is playing pull-tabs.3

 
4

Citation to these newly-amended regulations begs the question of whether they

can be applied in this case, as application would arguably impose an impermissible

retroactive effect. See Criger v. Becton, 902 F.2d 1348, 1351 (8th Cir. 1990) (stating

general rule of non-retroactive application for administrative regulations without

indications to the contrary). However, the regulations were merely amended, not

newly promulgated, and do not operate retroactively because they do not attach "new

legal consequences to events completed before . . . enactment," Landgraf v. USI Film

Prods., 511 U.S. 244, 270 (1994). Instead, the current regulations merely clarify the

relevant terms. In fact, it appears the regulations were amended to conform with the

reasoning in the four cases that analyzed this issue prior to promulgation of the

amended regulations–162 MegaMania Gambling Devices, 231 F.3d 713, Diamond

Game, 230 F.3d 365; United States v. 103 Elec. Gambling Devices, 223 F.3d 1091

(9th Cir. 2000), and Cabazon Band, 14 F.3d 633.

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The most recent amendments to the NIGC-enacted regulations also support this

conclusion. Prior to July 2002, the regulations defined facsimile with direct reference

to the Johnson Act. The regulation in effect as of July 17, 2002, defines "facsimile"

as 

a game played in an electronic or electromechanical format that

replicates a game of chance by incorporating all of the characteristics of

the game, except when, for bingo, lotto, and other games similar to

bingo, the electronic or electromechanical format broadens participation

by allowing multiple players to play with or against each other rather

than with or against a machine.

25 C.F.R. § 502.8 (July 17, 2002).4

Furthermore, the regulations effective July 17, 2002, define an "aid" as an

electronic, computer, or other technologic device that assists the playing of a game.

Id. § 502.7(a)(1). Significantly, the regulation gives the following examples of

gaming aids, "pull tab dispensers and/or readers, telephones, cables, televisions,
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screens, satellites, bingo blowers, electronic player stations, or electronic cards for

participants in bingo games." Id. § 502.7(c) (emphasis added).

The current regulations seem to expressly contemplate the use of Lucky Tab

II pull-tab dispensers/readers, suggesting that the NIGC has now given its imprimatur

to these types of machines. Cf. Diamond Game, 230 F.3d at 369 (noting at that time

that the NIGC took no official position on the Lucky Tab II's class of gaming). Based

on our review of the record and of the case law, the NIGC's conclusion that Lucky

Tab II is a permissible class II gaming device seems to be a reasonable interpretation

of the IGRA. Cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 844 (1984) (holding that agency interpretation which is reasonable is entitled to

deference).

III. CONCLUSION

Because we conclude that the Lucky Tab II machines are not prohibited

Johnson Act gambling devices and are not prohibited "facsimiles" within the meaning

of 25 U.S.C. § 2703(7), the Tribe is not conducting class III gaming in contravention

of the federal court's prior order. We therefore affirm the judgment of the district

court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.