Compacts | Litigation

Fort Sill Apache Tribe loses bid to force state into gaming deal

Tuesday, March 31, 2015

The Fort Sill Apache Reservation in southern New Mexico. Photo from Facebook

The New Mexico Supreme Court declined to act on a petition that would have forced Gov. Susana Martinez (R) to enter into Class III gaming compact negotiations with the Fort Sill Apache Tribe.

The tribe asked the court to compel Martinez into action after she refused requests to come to the table. But the petition was denied without comment, according to news reports.

"We’re at the mercy of the governor’s office," Chairman Jeff Haozous told The Santa Fe New Mexican.

The tribe has a reservation in the southern part of the state that was placed in trust in 2002. However, the National Indian Gaming Commission has said the land can't be used for gaming.

The tribe is suing in federal court to overturn that determination. Martinez, in the meantime, has said she won't negotiate because the reservation hasn't been deemed eligible for gaming.

The Indian Gaming Regulatory Act requires gaming to occur on "Indian lands" over which a tribe exercises jurisdiction. There is no requirement, however, that a tribe must have eligible "Indian lands" before negotiating a compact, as Martinez has suggested.

Governors in other states have negotiated compacts with tribes for sites that are not yet considered "Indian lands." A notable case from Oregon led the Bush administration to adopt a questionable policy that claimed IGRA contained a requirement of the type suggested by Martinez.

The policy was implemented without tribal consultation or public comment. It was implicitly repealed by the Obama administration in 2011, when the Bureau of Indian Affairs allowed a compact between the Confederated Tribes of the Warm Springs Reservation and the state of Oregon to go into effect for a site that has not been placed in trust.

Even for tribes with confirmed "Indian lands," some compacts do not contain site-specific requirements. But Martinez's Class III compact contains an unusually lengthy provision that requires tribe to state that they will not use certain categories of newly acquired lands for gaming without negotiating a separate agreement.

The provision is being sent to the BIA for review as part of compacts Martinez signed with five tribes. The Fort Sill Apaches claim the language prevents them from negotiating in a fair manner.

The provision refers to Section 20 of the Indian Gaming Regulatory Act. It follows:

The Tribe has informed the State that it does not intend to conduct Class III Gaming on Indian Lands that are eligible for gaming pursuant to 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii). If, in the future, the Tribe desires to conduct Class III Gaming on Indian Lands eligible for gaming pursuant to 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii), the Tribe intends to negotiate a separate compact with the State to address the unique circumstances and conditions associated with such lands. The Tribe acknowledges and agrees that it has not addressed those circumstances and conditions in the negotiations leading up to this Compact and that there are federal authorizations required to determine eligibility to game on those lands. For those reasons, the Tribe agrees that the execution of this Compact is not evidence of and cannot be used to support a determination that any land located in the State is eligible for gaming pursuant to the 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii).

Get the Story:
NM Supreme Court rejects Fort Sill petition (AP 3/30)
High court rejects Ft. Sill Apaches request (The Albuquerque Journal 3/31)
State high court denies Fort Sill Apache petition (The Santa Fe New Mexican 3/31)