The Pueblo of Pojoaque owns and operates the Buffalo Thunder Resort & Casino in New Mexico. Photo: I-5 Design & Manufacture

Compacts | Litigation

Pojoaque Pueblo agrees to sign gaming deal with higher revenue sharing rate

Monday, August 7, 2017

After losing two major court decisions, the Pueblo of Pojoaque plans to sign a Class III gaming compact with the state of New Mexico.

The tribe has been resisting the agreement since 2015 because it imposes a higher revenue sharing rate on its operations. But Gov. Joseph Talachy told The New Mexican that it was time to concede.

“It’s kind of a terrible game the state played and it was done intentionally to squeeze us exactly into where we are now,” Talachy told the paper.

The development came after two negative rulings from the 10th Circuit Court of Appeals. In April, a panel of three judges barred the Bureau of Indian Affairs from issuing Class III rules for the tribe because the state was never found to be in "bad faith."

Then in July, the court said the state could punish vendors that continued doing business with the tribe in the absence of a compact. The decision was split by a vote of 2-1.

In response to the April decision, the tribe's attorneys sought a rehearing before a larger panel of the judges. The request was denied on July 24.

The tribe then asked the 10th Circuit for a stay of the decision in order to pursue an appeal to the U.S. Supreme Court. That request was denied on August 2 and a day later, Talachy said the fight over the compact was over.

"The Pueblo also intends to try to resolve the dispute with the state of New Mexico and on July 27, 2017, submitted to the state of New Mexico the '2015 Form Compact,' which is identical to a compact previously approved by the New Mexico state legislature, except for the name of the compacting tribe and the names of the persons to execute the compact on behalf of the tribe," the tribe's attorneys wrote in the motion to stay.

Despite agreeing to sign a compact, the tribe could still pursue the appeal to the Supreme Court. At issue is a provision in the Indian Gaming Regulatory Act that allows the BIA to step in when a state refuses to budge in compact negotiations.

The 10th Circuit and, in a much earlier case, the 5th Circuit Court of Appeals, have both held that provision cannot be invoked when a state asserts sovereign immunity to a "bad faith" lawsuit. The Supreme Court declined to review the 5th Circuit decision after the George W. Bush administration said it wasn't of national significance.

But now that two different circuit courts, covering dozens of tribes in nine states, have ruled, the Pueblo of Pojoaque believes the issue might be taken up by the justices. The deadline to file a petition is October 23, giving the tribe plenty of time to sign a compact and send it to the BIA for review without giving up the legal fight.

The compact requires tribes to share between 9 percent and 10.75 percent of Class III revenues with the state. That's higher than the 8 percent rate in a prior version.

The increase drew questions from top BIA officials during the Obama administration because it appeared the state wasn't offering anything in return. The agency has allowed 16 tribes to enter into the agreement, but only to the extent the provisions are consistent with IGRA.

Turtle Talk has posted documents from the IGRA case, New Mexico v. Department of the Interior, as well as the related vendor case, Pueblo of Pojoaque v. State of New Mexico.

Read More on the Story:
Pojoaque leaders give up fight, agree to sign new gambling compact (The Santa Fe New Mexican 8/3)
Pojoaque Pueblo drops gaming compact fight (The Albuquerque Journal 8/4)
Pojoaque Pueblo agrees on new gambling contract with state (KRQE 8/4)

10th Circuit Court of Appeals Decisions:
Pueblo of Pojoaque v. State of New Mexico (July 18, 2017)
New Mexico v. Department of the Interior (April 21, 2017)

Relevant Documents:
Bureau of Indian Affairs 'Deemed Approved' Letter (June 9, 2015)