State sues tribes

JUNE 14, 2000

The copy of the lawsuit, State of New Mexico v. Jicarilla Apache Tribe, et al.

IN THE UNITED STATES DISTICT COURT FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO, PLAINTIFF,

JICARILLA APACHE TRIBE, MESCALERO APACHE TRIBE, PUEBLO OF ACOMA, PUEBLO OF ISLETA, PUEBLO OF LAGUNA, PUEBLO OF POJOAQUE, PUEBLO OF SANDIA, PUEBLO OF SAN FELIPE, PUEBLO OF SAN JUAN, PUEBLO OF SANTA ANA, PUEBLO OF TAOS AND PUEBLO OF TESUQUE,

DEFENDANTS.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

COMES NOW the State of new Mexico, through counsel of record, and for its complaint against the Defendants states:

I. JURISDICTION AND VENUE

1. This matter arises out of a dispute concerning the Indian Gaming Compact.Entered into by the parties pursuant to the Indian Gaming Regulatory Act, 25 U. S.C.2701 et seq. C'IGRA'). Jurisdiction in the district court over the subject matter and parties is proper pursuant to 25 U, S.C. Section 2710(d)(7)(A)(ii) and 28U.S.C. Section 1331.

Venue is proper in the District Of New Mexico pursuant to 28 U.S.C. Section 1391 because the parties are found in the State of New Mexico and a substantial part of the events occurred in New Mexico.

II. THE PARTIES

2. The Plaintiff is the State of New Mexico. The State of New Mexico has not waived its immunity to suit in federal court and does not waive such immunity to any counter-claim that may be brought against the State by filing this action.

3. The Defendants are all federally recognized Indian tribes or pueblos with in the State of New Mexico which conduct class III gaming on Indian land under IRGA pursuant to a Compact entered into with the State of New Mexico.

III. ALLEGATIONS RELEVANT TO ALL COUNTS

4. IGRA was enacted in 1988 to regulate all types of gambling that might occur or Indian lands.

5. One type of gambling allowed by IGRA is known as class III gaming, which is all types of gambling not defined as class I or class 11 gaming. See 25 U.S.C. Section 2703 (8). Class III gaming is generally categorized as casino style gambling, including; slot machines, electronic games of chance, blackjack, craps, roulette and other gaming activities.

6. Under IGRA, in order for class III gaming to be conducted on Indian land, an Indian tribe must enter into a Compact with the State in which the Indian land is located, See 25 U.S.C. 2710 (d)(1).

7. In the State of New Mexico, the New Mexico legislature has the authority to bind the State to a Compact under IGRA- Clark v. Johnson, 120 N.M. 562 (1995).

8.Many of the tribes and pueblos of New Mexico initiated class III gaming in New Mexico by opening gambling casinos prior to entering into a Compact with the State of New Mexico.

9. In 1995, the tribes and pueblos with gambling casinos in New Mexico attempted to enter into a Compact with the Governor of New Mexico, which included revenue sharing provisions. The Secretary of the Interior approved the Compact with the revenue sharing agreement. The New Mexico Supreme Court declared that Compact void because the Governor, acting alone, was without authority to bind the State to a Compact under IGRA- Clark v. Johnson, 120 N.M- 562 (1995).

10. After the New Mexico Supreme Court declared the Governor's Compact void, the tribes and pueblos pursued a class III gaming Compact through the New Mexico Legislature. The New Mexico Legislature rejected the Governors Compact by not enacting it.

11. Although New Mexico was not obligated to negotiate with the tribes and pueblos for class III gaming in New Mexico beyond horse racing and a lottery because IGRA does not allow Indian gaming beyond that which is legal for any person in the State, the New Mexico Legislature did entertain a request by the tribes and pueblo of New Mexico to negotiate a Compact during the 1997 legislative session.

12. In 1997, the New Mexico Legislature enacted a Compact, which provides for the terms and conditions by which New Mexico agrees to bind herself to a Compact with New Mexico tribes and pueblos under IGRA. Sections 11-13-1 and 2 (1997). The Compact is codified at NMSA 1978,

13. Although many types of class III gaming activities were not legal in New Mexico prior to 1997, the tribes and pueblos requested to be allowed to engage in all types of class III owning. The New Mexico Legislature agreed to change the State's public policy against casino style gambling by allowing the tribes and pueblos to engage in all types of class III gaming normally found in a Las Vegas style casino. See Section 11-13-1, subsection 3.

14. As a condition to the tribes' and pueblos' ability to engage in all types of class III gaming, the Legislature and the tribes and pueblos agreed to a revenue sharing arrangement(Section-11-13-1,subsection 9). By its own tems, the Compact is not effective unless and until the revenue sharing provisions are executed. Id. As stated in Section 11-13-2 of the Compact law, "[e]xecution of an Indian earning compact is conditioned upon execution of a revenue-sharing agreement." Both Sections 11-13-1 and 11-13-2 are codified in the New Mexico Statutes Annotated as Chapter I 1, Article 13, entitled as the "Indian Gaming Compact". The revenue sharing provisions are thus an integral part of the Compact under New Mexico law.

15. In exchange for the tribes and pueblos agreeing to the revenue sharing provisions of the Compact, the State agreed: (a) to provide the tribes and pueblos with the ability to engage in all types of class III gaming by changing the State's public policy prohibiting most types of class III gaming, and (b) to limit the non-Indian class III gaming that would compete with the gaming tribes and pueblos. See Section 11-13-2 (1997).

16. The State of New Mexico only agreed to a Compact with each tribe and pueblo under the condition that no amendments to the Compact, as enacted by the Legislature, could be made with out the approval of the State of New Mexico. See Section l1-13-1, subsection I I D. and E.

17. The Compact was enacted by the New Mexico Legislature during its 1997 session. House Bill 399, the legislation that codified the Compact passed the House of Representatives by one vote. The Governor of New Mexico signed the bill into law. See Laws 1997, ch, 190, Sections I and 2.

18. Several of the defendant tribes and pueblos passed resolutions both adopting the Compact, including the revenue sharing provisions, and repudiating some of the term of the Compact at the same time.

19. The Compact which included the revenue sharing provisions, was forwarded to the Secretary of the Interior for approval under IGRA.

20. The Secretary of the Interior found that the revenue sharing agreement was a part of the Compact and he took no action to approve or disapprove the Compact within the time frame set forth by IGRA. Thus, by operation of law, the Compact, including the revenue sharing provisions, went into effect to the extent it romplied with IGRA. See 27 U.S. C. 2710 (d)(8)(C).

21. None of the defendant tribes and pueblos has complied in full with the revenue sharing provisions of the Compact, Although differing in time as to when they stopped making the revenue sharing payments to the State, not one tribe or pueblo made the required revenue sharing payments on the last quarterly payment due date.

COUNT I

22. IGRA allows Indian tribes and pueblos to engage in class II gaming only if that gaming is in compliance with the terms of a tribal-state Compact that is in effect. 25 U.5,C. 2710 (d)(1)(C).

23. A tnbal-state Compact is in effect between the State of new Mexico and the defendant tribes and pueblos.

24. The defendant tribes and pueblos are not in compliance with the tribal-state Compact because they have not made all of the required revenue sharing payments under the Compact to the State of New Mexico.

25. Pursuant to IGRA, the federal district court may enjoin a class III gaming activity located on Indian lands and conducted in violation of any tribal-state Compact that is in effect. [,Ue 2S U.S.C. Section 2710 (dX7)(A)(ii)] Therefore-, the State of New Mexico is entitled to injunctive relief against the defendants to enjoin all class III gaming because the tribes and pueblos have failed to make payment in full, including back payments with interest, as required by the agreement between the parties.

COUNT II

26. In the alternative, a federal question arises as to whether or not a valid Compact exists between the State of New Mexico and the defendant tribes and pueblos based upon any finding that the mandatory revenue sharing provisions are unenforceable.

27. Federal courts have jurisdiction to determine if a valid Compact has been entered into by the State of New Mexico and a tribe or pueblo which is in compliance with State law.

28, The State of New Mexico, through its duty elected Legislature, enacted as state law which sets forth the only terms and conditions by which it will be bound to a Compact with a tribe or pueblo in New Mexico under IGRA. One of those terms is that each tribe and pueblo must enter into a revenue sharing arrangement with the State, under which the tribe or pueblo agrees to to make payments to the State in exchange for a certain amount of exclusivity being granted to the tribe and pueblo to conduct class III gaming

29, The State of New Mexico has complied with its agreement to grant the tribes and pueblos the right to engage in all types of class III gaming with limited competition from non-Indian gaming. The tribes and pueblos have not complied with their agreement to share revenues with the State.

30. The revenue sharing provisions are an essential element of the State's Compact with the defendant tribes and pueblos and cannot be severed from that agreement,

31. If the revenue sharing provisions are declared unenforceable for any reason, the Compact between the State and the defendant tribes and pueblos is invalid because the State entered into the Compact expressly conditioned upon the revenue sharing arrangement. See NMSA 1978, Section 11-13-2 (1997).

32. The State of New Mexico is therefore entitled to a declaration, in the alternative, that if the revenue sharing provisions are declared not to be enforceable for any reason, the State of New Mexico has not entered into a Cornpact pursuant to IGRA

WHEREFORE, Plaintiff prays:

1. That the Court declare that the revenue sharing provisions entered into by the defendant tribes and pueblos are a part of the Compact entered into by the parties that is in effect under IGRA;

2. That the Court declare that revenue sharing by Indian tribes and pueblos with a State in exchange for the right to limited competition from non-Indian gaming is legal under IGRA,

3. That the Court find that by not making all revenue sharing payments to the State the defendant tribes and pueblos are conducting class III gaming in violation of the terms and conditions of the Compact and its revenue sharing provisions;

4. That the Court enjoin all class III gaming being conducted by the defendant tribes and pueblos;

5, That, in the alternative, the Court declare that if the revenue sharing provisions are not enforceable for any reason, then the State of New Mexico has not entered into a Compact with the defendant tribes and pueblos under IGRA; and

6. That plaintiff be awarded such other and further relief as the Court and justice deem fit and proper.

Respectfully submitted,

PATRICIA A. MADRID
Attomey General
Stuart M. Bluestone
Deputy Attomey General