8/20/19
DEFINING A “FACSIMILE”
Courts chose to ignore the Commission’s definitions and adopt a plain- meaning interpretation to “facsimile”: “The first dictionary definition of ‘facsimile’ is ‘an exact and detailed copy of something.’” Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1994). “[A]s commonly understood, facsimiles are exact copies, or duplicates.” Cabazon Band of Mission Indians v. National Indian Gaming Comm’n, 14 F.3d 633, 636 (D.C. Cir. 1994). “Courts have adopted a plain-meaning interpretation of the term ‘facsimile’ and recognized a facsimile of a game is one that replicates the characteristics of the underlying game .” U.S. v. 162 MegaMania Gambling Devices, 231 F.3d 713, 724 (10th Cir. 2000).
EXAMPLE OF A FACSIMILE
In U.S. v. Santee Sioux Tribe of Nebraska , the court found that the following elements rendered the “Lucky Tab II” machine a technologic aid and not a Class III facsimile:
The video does not determine the winner or loser Theoretically, the game could be played without the machine No cash prizes are dispensed by the machine No credits are accumulated, or prizes awarded by the machine The machine only dispenses paper pull-tabs There is no random generation performed by the machine Aid adds to the entertainment value Use of the machines in theory facilitates greater participation, since more participants are able to play at the same time The machines do not determine chance, and the player is not playing against the machine The machines are not an exact replica of pull-tabs
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