DOE V. SANTA CLARA PUEBLO,
2005-NMCA-110, 138 N.M. 198, 118 P.3d 203
JANE DOE, by and through her parents
and next friend, J.H.,
Plaintiff-Appellee,
v.
SANTA CLARA PUEBLO, SANTA
CLARA DEVELOPMENT CORPORATION,
d/b/a BIG ROCK CASINO BOWL,
Defendants-Appellants,
and
STEVEN BIRD, MIGUEL ORTIGOZA,
TIMOTHY ORTIGOZA, and EMILY
ORTIGOZA,
Defendants.
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-110, 138 N.M. 198, 118 P.3d 203
APPEAL FROM THE DISTRICT COURT OF
SANTA FE COUNTY, Carol J. Vigil, District Judge.
Certiorari Granted, 2005-NMCERT-008,
No. 29,350, August 12, 2005. Released for Publication August 23, 2005.
Merit Bennett, Merit Bennett, P.C., Santa
Fe, NM, for Appellee.
Richard W. Hughes, Sean J. Flynn,
Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Santa Fe, NM,
for Appellants.
MICHAEL E. VIGIL, Judge. I CONCUR: CYNTHIA
A. FRY, Judge. JONATHAN B. SUTIN, Judge (dissenting).
AUTHOR: MICHAEL E. VIGIL.
{1} This case requires
us to decide whether a New Mexico state court has subject matter jurisdiction
of a personal injury suit brought against Santa Clara Pueblo as a result of
events occurring at a casino owned and operated by Santa Clara Pueblo on its
land. The district court denied the Pueblo's motion to dismiss for lack of
subject matter jurisdiction. Upon consideration of the effect of the Indian
Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 to 2721 (1988, as amended
through 1997), we affirm.
{2} Jane Doe, a
fourteen-year-old girl, by and through her parents and next friend, J.H.
(jointly referred to as Plaintiff), sued the Santa Clara Pueblo, a federally
recognized Indian tribe, and Santa Clara Development Corporation, a corporation
wholly owned by the Pueblo that operates the Big Rock Casino Bowl (the Casino)
on tribal land within the Santa Clara grant. We refer to Santa Clara Pueblo and
the Santa Clara Development Corporation together as "Santa Clara."
{3} Plaintiff alleges
that she was visiting the Casino with her mother and grandmother; that she was
kidnapped in the Casino parking lot by three males; that she was taken to a car
parked in the Casino parking lot and driven away; that she was then repeatedly assaulted,
battered, and raped by her abductors; and that they then dumped her near her
home in Española, New Mexico. Plaintiff alleges Santa Clara is liable because
the Casino failed to provide adequate security and lighting in the parking lot,
and failed to aid in locating Jane Doe when it was apparent she was missing
from the premises, all of which proximately caused damages. The district court
denied Santa Clara's motion to dismiss for lack of subject matter jurisdiction,
but certified its decision for an interlocutory appeal, and we granted Santa
Clara's application for an interlocutory appeal. An order denying a motion to
dismiss for lack of subject matter jurisdiction involves a question of law
which we review de novo.
Gallegos v. Pueblo of
Tesuque,
2002-NMSC-012, ¶ 6,
132 N.M. 207,
46 P.3d 668.
{4} The district court
denied Santa Clara's motion to dismiss based on its determination that,
pursuant to a valid tribal-state compact, the IGRA permits state courts to
assume subject matter jurisdiction over personal injury suits arising on the
premises of a tribal gaming facility located on tribal land. On appeal, Santa
Clara argues that the district court improperly denied its motion to dismiss
because, absent a grant of jurisdiction from the United States Congress, state
courts are powerless to hear cases that arise on tribal land. Santa Clara
further contends that the IGRA does not constitute such a grant of
jurisdiction. Additionally, Santa Clara argues that the IGRA does not allow a
state and a tribe to enter into a compact that shifts jurisdiction over
personal injury claims to state courts. Plaintiff concedes that state court
jurisdiction over her claim must derive from the IGRA, but she contends that
the New Mexico state district court has subject matter jurisdiction of her
claim because a tribal-state compact validly shifts jurisdiction from tribal
court to state court.
Pertinent Provisions of Law
and Compact
{5} The IGRA is
"a comprehensive regulatory framework for gaming activities on Indian
lands which . . . established the framework under which Indian tribes and
states could negotiate compacts permitting [high-stakes] gaming on Indian
reservations located within state territory."
Gallegos,
2002-NMSC-012, ¶ 9 (internal quotation
marks, footnote, and citation omitted). The IGRA divides tribal gaming into
three categories. Social and traditional games comprise the first category,
known as Class I gaming. 25 U.S.C. § 2703(6). Class II gaming consists of
bingo, pull-tabs and certain card games. § 2703(7). The third category, Class
III gaming, includes all games which are not Class I or II gaming. § 2703(8).
Class III gaming includes blackjack and slot machines,
id., and is commonly known as
"high-stakes" gaming.
Gallegos,
2004-NMSC-012, ¶ 9 n.1. In order to offer Class III games in New Mexico, the
IGRA requires tribes, including Santa Clara, to enter into a compact with the
State of New Mexico governing gaming activities on the tribe's land.
See 25 U.S.C. § 2710(d)(1)(C). The State of New
Mexico and Santa Clara negotiated a compact (the Compact) under the Compact
Negotiation Act, NMSA 1978, §§
11-13A-1 to -5 (1999), which the state
legislature approved in 2001.
See S.J.
Res. 37, 45th Leg., 1st Sess. (N.M. 2001);
see
also NMSA 1978, §
11-13-1 (1997 and 2004 Supp. compiler's note).
Pursuant to the IGRA, the Secretary of the Interior approved the Compact
between the State and Santa Clara on December 14, 2001.
See Indian Gaming, 66 Fed. Reg. 64,856 (Dec. 14,
2001) (notice of Secretary of the Interior approval of compacts between New
Mexico and, among others, Santa Clara);
see also
25 U.S.C. § 2710(d)(3)(B).
{6} The Compact
acknowledges that the "safety and protection of visitors to a Gaming
Facility is a priority of" Santa Clara and that one of the purposes of the
Compact is "to assure that any such persons who suffer bodily injury or
property damage proximately caused by the conduct of the Gaming Enterprise have
an effective remedy for obtaining fair and just compensation." Therefore,
Santa Clara "waives its defense of sovereign immunity in connection with
any claims for compensatory damages for bodily injury or property damage up to
the amount of fifty million dollars ($50,000,000) per occurrence
asserted," and "agrees to proceed either in binding arbitration proceedings
or in a court of competent jurisdiction, at the visitor's election, with
respect to claims for bodily injury or property damage proximately caused by
the conduct of the Gaming Enterprise." The Compact further states that
"any such claim may be brought in state district court, including claims
arising on tribal land, unless it is finally determined by a state or federal
court that IGRA does not permit the shifting of jurisdiction over visitors'
personal injury suits to state court."
{7} As a general rule,
"[e]xclusive tribal jurisdiction exists . . . when an Indian is being sued
by a non-Indian over an occurrence or transaction arising in Indian
country."
Found. Reserve Ins. Co. v. Garcia,
105 N.M. 514, 516,
734 P.2d 754, 756 (1987) (citations omitted);
see Tempest
Recovery Servs., Inc. v. Belone,
2003-NMSC-019, ¶ 14,
134 N.M. 133,
74
P.3d 67. However, Congress may confer jurisdiction over such a suit on a state
court.
Williams v. Lee, 358 U.S. 217, 223
(1959);
see South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) (noting that
"Congress possesses plenary power over Indian affairs, including the power
to modify or eliminate tribal rights").
{8} We note that
Congress has granted jurisdiction over civil and criminal matters involving
reservation Indians to any state that is willing to accept it provided that the
assumption of jurisdiction is approved by the affected tribe. 25 U.S.C. §§
1322(a), 1324 (1968);
see also McClanahan v. State Tax Comm'n, 411 U.S. 164,
177-78 (1973). However, New Mexico has not elected to assume jurisdiction over
tribal lands.
Your Food Stores, Inc. v. Vill. of
Espanola,
68 N.M. 327, 332,
361 P.2d 950, 954 (1961);
see Chino v. Chino,
90 N.M. 203, 206,
561 P.2d 476, 479 (1977);
see
also New Mexico Enabling Act, ch. 310, § 2, 36 Stat. 557, 559 (1910)
(stating that New Mexico has disclaimed jurisdiction over Indians and Indian
land);
N.M. Const. art. XXI, § 2 (same). Therefore, if New Mexico courts have
subject matter jurisdiction in this case it must derive from the IGRA.
{9} The IGRA sets out
the provisions that may be included in a compact negotiated to facilitate Class
III gaming activities. 25 U.S.C. § 2710(d). In pertinent part, a tribal-state
compact may include provisions relating to:
(i) the application of the criminal
and civil laws and regulations of the Indian tribe or the State that are
directly related to, and necessary for, the licensing and regulation of such
activity; [and]
(ii) the allocation of criminal and
civil jurisdiction between the State and the Indian tribe necessary for the
enforcement of such laws and regulations[.]
25 U.S.C. § 2710(d)(3)(C). Based on these provisions, Santa
Clara argues that New Mexico's state courts lack jurisdiction to hear
Plaintiff's claims because her "personal injury claims have nothing to do
with the `licensing or regulation' of [C]lass III gaming activities." We
disagree.
{10} Pursuant to the
IGRA and the Compact Negotiation Act, New Mexico and Santa Clara entered
negotiations to form a compact to permit Santa Clara to offer Class III gaming
on its tribal land. The Compact that emerged from their "good faith
negotiations" devotes an entire section to defining the mechanism by which
visitors may be compensated for their injuries. In particular, the Compact
expressly allows visitors to bring their claims in state court. Because the
State and Santa Clara negotiated and agreed to address remedies for visitor
injuries in the Compact, it is apparent that both parties themselves determined
that apportioning jurisdiction over the claims of injured visitors was
"directly related to, and necessary for, the licensing and regulation of
[Class III gaming] activity."
See §§
2710(d)(3)(C)(i), (ii). The legislative history of the IGRA demonstrates that Congress
intended the scope of each tribal-state gaming compact to be determined by the
parties in the course of their negotiations as equal sovereigns. We therefore
conclude that it is not the province of this Court to second-guess that
determination.
Legislative History of the
IGRA
{11} The dispute over
Indian gaming began when the Seminole Tribe of Florida opened its first bingo
hall in 1979. S. Rep. No. 100-446, at 2 (1988), reprinted in 1988 U.S.C.C.A.N.
3071, 3072;
see Seminole Tribe v. Butterworth, 658 F.2d 310,
311-12 (5th Cir. 1981). Following
Seminole Tribe,
Indian gaming continued to be a contentious issue between tribes and states.
See, e.g.,
Iowa
Tribe v. Kansas, 787 F.2d 1434, 1435-36 (10th Cir. 1986) (involving
dispute between state and tribe over the sale of pull-tabs on the tribe's
reservation);
Lac du Flambeau Band v. Williquette,
629 F. Supp. 689, 691 (W.D. Wis. 1986) (same);
Penobscot
Nation v. Stilphen, 461 A.2d 478, 480 (Me. 1983) (involving dispute
between state and tribe over the enforcement of state bingo laws on the tribe's
reservation). Many states attempted to assert jurisdiction over gaming on
tribal land because of concerns over the potential for gaming to attract
criminal elements. S. Rep. No. 100-446, at 2, 5. However, tribes strongly
resisted these efforts based on their sovereign right to self-government and
the threat such efforts posed to the significant economic benefits that gaming
was conferring on their members.
Id. at
2-3;
see 134 Cong. Rec. 25,376 (1988)
(statement of Ariz. Rep. Morris Udall) (noting that the "basic problem . .
. has been the conflict between the right of tribal self-government and the
desire for [s]tate jurisdiction over gaming activity on Indian lands").
{12} Congress began to
consider a resolution to the tribal-state conflict over gaming as early as
1983.
See 129 Cong. Rec. 34,184 (1983)
(statement of Ariz. Rep. Morris Udall). However, it was not until the Supreme
Court's decision in
California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987) [hereinafter
Cabazon], that Congress was able to work out a
compromise between state and tribal interests. S. Rep. No. 100-446, at 4. In
Cabazon, the Cabazon Band of Mission Indians
argued that a California law regulating bingo could not be enforced on tribal
land. 480 U.S. at 206. The Supreme Court agreed with the tribe and held that
California could not enforce its bingo laws on the tribe's reservation.
Id. at 211-12. The
Cabazon decision was issued six days after the
bill that would become the IGRA was introduced; nevertheless, the
Cabazon case persuaded many tribes that
legislation on the subject was inevitable and that reaching a compromise with
the states might yield legislation that was more solicitous of tribal
interests.
See S. Rep. No. 100-446, at 4.
{13} The IGRA became
law on October 17, 1988.
See Indian Gaming
Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467, 2467 (1988) (codified, as
amended, at 25 U.S.C. §§ 2701 to 2721). The legislative history leading to its
passage clearly reveals that the IGRA was an effort by Congress to reach a
compromise between the states and the tribes.
See,
e.g., 134 Cong. Rec. 25,377 (1988) (statement of Ariz. Rep. Morris
Udall, chair of the Committee on Interior and Insular Affairs) (stating that
the IGRA "is a delicately balanced compromise"); 134 Cong. Rec.
S12643, S12650 (daily ed. Sept. 15, 1988) (statement of Haw. Sen. Daniel
Inouye, chair of the Select Committee on Indian Affairs) (noting that the IGRA
"is not the best of all possible worlds" but it is a workable
solution to a contentious issue). Many states argued that they should be given
complete jurisdiction over gaming on tribal land.
See 134 Cong. Rec. at 25,377 (statement of Nev.
Rep. Barbara Vucanovich). Supporters of state jurisdiction noted that the
"[s]tates . . . have the sovereign right—and the responsibility—to protect
their citizens from the threat of criminal activity" that may accompany
high-stakes gambling. 134 Cong. Rec. at 25,378 (statement of Cal. Rep. Anthony
Coelho);
see id. at 25,381 (statement of Nev. Rep. James
Bilbray) (noting that the "[s]tates have a constitutional responsibility
to protect their citizens from harm, here in the form of...victimization by
criminal elements that may infiltrate the legal games operated on Indian
lands"). Opponents of the IGRA were troubled by the bill's intrusion on
Indian sovereignty.
See S. Rep. No.
100-446, at 13;
see also 134 Cong. Rec. at
25,379 (statement of Minn. Rep. Gerald Sikorski); 134 Cong. Rec. at S12656-57
(statement of S.D. Sen. Tom Daschle).
{14} Ultimately,
Congress adopted a flexible solution that allowed competing state and tribal
interests to be balanced on a case-by-case basis.
See S. Rep. No. 100-446, at 6 (noting that in
crafting the IGRA "the [Indian Affairs] Committee has attempted to balance
the need for sound enforcement of gaming laws and regulations, with the strong
Federal interest in preserving the sovereign rights of tribal governments to
regulate activities and enforce laws on Indian land");
see also 134 Cong. Rec. at 25,378 (Cal. Rep.
Anthony Coehlo) (noting that the IGRA "establishes a framework in which
Indian tribes and [s]tates can meet as equals, government-to-government, to
negotiate an agreement—a compact—for a mutually acceptable method of regulating
high-stakes gambling on Indian reservations"). Under the IGRA, each tribe
that wishes to engage in Class III gaming must enter into a compact with the
affected state.
See 25 U.S.C. §
2710(d)(1)(C). However, no state may acquire any additional jurisdiction over
tribal lands under the IGRA "unless a tribe affirmatively elects to have
[s]tate laws and [s]tate jurisdiction extend to tribal lands." S. Rep. No.
100-446, at 6.
{15} A consistent
theme emerges from the legislative history: Congress recognized the gravity of
the tribal-state conflict but chose not to impose a universal, nationwide
solution. Instead, Congress created a mechanism by which each tribe and each
state could negotiate over how to apportion jurisdiction over tribal gaming.
See S. Rep. No. 100-446, at 13 (noting
"that the use of compacts between tribes and states is the best mechanism
to assure that the interests of both sovereign entities are met with respect to
the regulation of complex gaming enterprises"). The resulting tribal-state
"compact may allocate most or all of the jurisdictional responsibility to
the tribe, to the State or to any variation in between." S. Rep. No.
100-446, at 14;
see Gallegos,
2002-NMSC-012, ¶ 10 (noting that
"according to Congress, a state court may exercise jurisdiction over a
tribe pursuant to the IGRA when a tribe and a state have consented to such an
arrangement in a gaming compact"). The language of the IGRA is consistent
with this theme.
See id. (noting that "the language of the IGRA
allows the states and the tribes to negotiate with respect to
jurisdiction"). The Act provides very general guidance on what issues a
tribal-state compact may address and leaves the scope of each compact to be
determined by the states and the tribes.
See
25 U.S.C. § 2710(d); 134 Cong. Rec. at S12651 (statement of Haw. Sen. Daniel
Inouye) (noting that "the idea [behind the compact approach] is to create
a consensual agreement between the two sovereign governments and it is up to
those entities to determine what provisions will be in the compacts");
see id.
(statement of Wash. Sen. Daniel Evans) (noting that Congress "intend[s]
that the two sovereigns—the tribes and the [s]tates—will sit down together in
negotiations on equal terms and come up with a recommended methodology for
regulating [C]lass III gaming on Indian lands");
see also S. Rep. No. 100-446, at 14 (noting that
25 U.S.C. § 2710(d)(3)(C) lists the "broad areas" that may be
addressed in a tribal-state compact).
Permissibility of Shifting
Jurisdiction for Personal Injuries
{16} Our review of the
legislative history reveals that Congress intended that states and tribes
resolve the details of regulating tribal gaming. In the present case, the State
of New Mexico and Santa Clara negotiated a compact that allowed Santa Clara to
open the Casino. The State and Santa Clara negotiated the Compact as equal
sovereigns. We find no evidence, nor does Santa Clara point us to any evidence,
that suggests that the Compact was not fairly formed or that the State did not
negotiate in good faith.
See 25 U.S.C. §
2710(d)(3)(A) (requiring that states negotiate tribal-state compacts in good
faith). To the contrary, the Compact expressly notes that it is the product of
"good faith negotiations recognizing and respecting the interests of each
party." Further, we note that the Secretary of the Interior reviewed and
approved the Compact shortly after it was formed.
See Indian Gaming, 66 Fed. Reg. 64,856 (Dec. 14,
2001). Therefore, we consider the Compact to fairly represent a valid agreement
between the State and Santa Clara. As a result, we conclude that this dispute
must be resolved by resort to the terms of the Compact.
{17} The Compact
demonstrates the State and Santa Clara's concern for the safety of visitors to
the Casino and their belief that the redress of the Casino's visitors' injuries
was "directly related to, and necessary for, the licensing and regulation
of [Class III gaming] activity." 25 U.S.C. § 2710(d)(3)(C)(i). We are
aware of the concerns expressed during the debate over the IGRA regarding the
pretextual use of tribal-state compacts by states to impose broad state
jurisdiction over tribal lands.
See S.
Rep. No. 100-446, at 14 (noting that a tribal-state compact is not intended to
"be used as a subterfuge for imposing [s]tate jurisdiction on tribal
lands");
see also 134 Cong. Rec. at
25,378 (statement of Cal. Rep. Anthony Coelho) (noting that it is not "the
intent of Congress that [s]tates use negotiations on gaming compacts as a means
to pressure Indian tribes to cede rights in any other area"). Therefore,
we do not exclude the possibility that there may be circumstances in which a
state and a tribe include compact provisions that plainly exceed the authority
granted by Congress in the IGRA. But that is not the case here. Redressing
injuries sustained by the Casino's visitors is sufficiently related to the
regulation of tribal gaming enterprises that we have no difficultly concluding
that the State and Santa Clara acted within the scope of the IGRA when they
formed the Compact. Under these circumstances, it is not the province of this
Court to second-guess the conclusion of New Mexico and Santa Clara that
personal injuries sustained by Casino patrons due to the allegedly negligent
operation of the Casino are "directly related" to the regulation of
Class III gaming.
{18} We also note that
if we were to accept Santa Clara's narrow reading of the IGRA, much of the
Compact would be invalid. The Compact contains provisions concerning the
serving of alcoholic beverages, labor conditions, employment discrimination,
and liability insurance. Reading the IGRA so narrowly as to exclude these
provisions is not consistent with the legislative intent underlying the IGRA.
Congress gave the states and tribes broad discretion to resolve their competing
interests regarding tribal gaming. As a result, when two equal sovereigns
conclude, pursuant to the IGRA and with the Secretary of the Interior's
concurrence, that alcoholic beverages, labor conditions, and visitor safety are
directly related to the regulation of a Class III gaming enterprise, we afford
substantial weight to that conclusion. We decline to strike down an agreement
reached between the Pueblo and the State where the IGRA does not bar
jurisdiction-shifting by its own terms, the IGRA seems to allow a tribe and
state broad discretion in arriving at mutually acceptable terms in a compact
related to Class III gaming, and the IGRA's history confirms that such shifting
was contemplated.
{19} The State and
Santa Clara agreed in the course of negotiations as equal sovereigns that
issues regarding the safety of the Casino's visitors are directly related to
gaming. This conclusion is entirely consistent with the IGRA and its
legislative history. Therefore, we affirm the district court's denial of Santa
Clara's motion to dismiss for lack of subject matter jurisdiction.
JONATHAN B. SUTIN, Judge (dissenting).
SUTIN, Judge (dissenting).
{21} I respectfully
dissent. In regard to visitors' personal injury actions arising out of
negligent conduct on the premises of tribal casinos, the IGRA does not grant
states an option to exercise jurisdiction or grant states and tribes a license
to shift jurisdiction from tribe to state. The district court, therefore, did
not have subject matter jurisdiction of Plaintiff's personal injury action
against Santa Clara.
{22} The IGRA is
"a comprehensive regulatory framework for gaming activities on Indian
lands which . . . established the framework under which Indian tribes and
states could negotiate compacts permitting Class III gaming on Indian
reservations located within state territory."
Gallegos v. Pueblo of Tesuque,
2002-NMSC-012, ¶
9,
132 N.M. 207,
46 P.3d 668 (internal quotation marks and citation omitted).
In order to engage in Class III gaming operations, Santa Clara was required to
enter into a compact with the State of New Mexico (the Compact).
See 25 U.S.C. § 2710(d)(1) (1988). The compact
in question was negotiated in 2000 under the Compact Negotiation Act, NMSA
1978, §§
11-13A-1 to -5 (1999), and became effective in 2001.
See NMSA 1978, §
11-13-1 (1997, and 2004 Supp.
compiler's note);
see also 66 Fed. Reg.
64856-01 (Dec. 14, 2001) (notice of Secretary of the Interior approval of
compacts between New Mexico and, among others, Santa Clara).
{23} Under the
Compact, Santa Clara waived its sovereign immunity for personal injury claims
filed by visitors to the Casino. It also agreed that New Mexico law would apply
to such personal injury claims. However, the Compact left unsettled in which
court such claims could be pursued. Obviously intended to permit Santa Clara to
test jurisdiction shifting, Section 8(A) of the Compact states that "any
such claim [for bodily injury] may be brought in state district court,
including claims arising on tribal land, unless it is finally determined by a
state or federal court that IGRA does not permit the shifting of jurisdiction
over visitors' personal injury suits to state court."
{24} Unless changed by
"governing Acts of Congress," tribal courts retain exclusive
jurisdiction over claims arising on tribal lands against tribes, including
tribal entities and tribal members.
Williams v.
Lee, 358 U.S. 217, 220 (1959). Through Public Law 83-280, Act of August
15, 1953, ch. 505, §§ 6, 7, 67 Stat. 590, Congress granted jurisdiction over
civil and criminal matters involving reservation Indians to the states that
were willing to accept it.
See Williams, 358 U.S. at 222;
Your Food Stores, Inc. v. Vill. of Espanola,
68
N.M. 327, 332,
361 P.2d 950, 954 (1961). New Mexico did not elect to assume
jurisdiction over tribal lands.
Id. New
Mexico courts have recognized that "[e]xclusive tribal jurisdiction exists
. . . when an Indian is being sued by a non-Indian over an occurrence or
transaction arising in Indian country."
Found.
Reserve Ins. Co. v. Garcia,
105 N.M. 514, 516,
734 P.2d 754, 756 (1987)
(citations omitted);
see Tempest Recovery Servs., Inc. v. Belone,
2003-NMSC-019, ¶ 14,
134 N.M. 133,
74 P.3d 67. Plaintiff acknowledges
"that without . . . Congressional authority, state courts lack the power
to entertain lawsuits against tribal entities." If New Mexico courts have
subject matter jurisdiction in this case, the jurisdictional authority must
derive from the IGRA.
{25} Section
2710(d)(3)(C) sets out the provisions that may be included in a negotiated
compact that are pertinent to the issue before us. Section 2710(d)(3)(C)
permits compact provisions relating to:
(i) the application of the criminal
and civil laws and regulations of the Indian tribe or the [s]tate that are
directly related to, and necessary for, the licensing and regulation of such
activity;
(ii) the allocation of criminal and
civil jurisdiction between the [s]tate and the Indian tribe necessary for the
enforcement of such laws and regulations[.]
{26} Section
2710(d)(3)(C)(ii) plainly permits an allocation of jurisdiction only as
necessary for the enforcement of laws and regulations that are directly related
to and necessary
for licensing and regulation
of Class III gaming activities. In the IGRA, including § 2710(d)(3)(C)(ii),
there exists no express inclusion of, nor any indication of a discernable
legislative intent to include, jurisdiction allocation or shifting in relation
to a negligence claim such as Plaintiff's. The duty underlying Plaintiff's
claims does not come within the scope of jurisdiction necessary for the
enforcement of laws and regulations that are directly related to and necessary
for licensing and regulation of Class III gaming activities.
{27} Section 8 of the
Compact pertains specifically to the protection of visitors to the Casino. Part
(A) states a policy that the safety and protection of visitors is a priority,
with the assurance that visitors with personal injury claims will have an
effective remedy for obtaining fair and just compensation. The policy provision
in Part (A) also contains the language at issue in this case regarding
jurisdiction. Having an effective remedy does not necessarily require state court
jurisdiction. Nothing in the record indicates that a visitor claimant cannot
have an effective remedy through tribal court or arbitration as long as those
processes provide due process. Part (C) of Section 8 is a limitations provision
that appears to pertain to any claim that might be brought relating to the
subjects in Section 8. Part (E) permits the visitor claimant to elect between a
court of competent jurisdiction or arbitration, and Part (F) deals solely with
arbitration. Parts (B) and (G) facilitate the policy in (A) by requiring Santa
Clara to carry liability insurance. Part (D) facilitates effective relief
through a limited waiver by Santa Clara of sovereign immunity and through an
agreement that New Mexico law will apply. Part (H) is preventative in nature,
requiring Santa Clara to conform to certain health, safety, and construction
standards.
{28} As indicated
earlier, the pertinent language in Section 8(A) of the Compact is:a claim for
bodily injury "may be brought in state district court . . . unless it is
finally determined by a state or federal court that IGRA does not permit the
shifting of jurisdiction over visitors' personal injury suits to state
court." Thus, among the several aspects of the safety and protection
purposes of Section 8, Part (A) permits a visitor to bring a personal injury
claim in state court, but if the state court in that case or perhaps in another
case determines that the IGRA does not permit the tribe to shift jurisdiction
over such visitor personal injury suits to state court, then the visitor's
personal injury claim in state court fails for lack of jurisdiction. The
parties to the Compact expected the issue to be litigated.
{29} Section 8 uses
"state court jurisdiction" in only one place, and that is in the
clause quoted above. Elsewhere, the section uses, simply, "court" and
"a court of competent jurisdiction." These latter uses of
"court" can mean, and I suspect the uses were intended to mean, (1)
tribal court and (2) state court
if a
court determines that the IGRA permits jurisdiction shifting over visitors'
personal injury suits. The question then reverts, of course, to whether the
IGRA permits jurisdiction shifting from tribal court to state district court
over Plaintiff's personal injury claims.
{30} The sole provision
in the IGRA that is applicable, § 2710(d)(3)(C)(i, ii), is permissive and
limited. Read in conjunction with (d)(3)(A) it provides:any compact governing
the conduct of gaming activities may include provisions relating to the
allocation of civil jurisdiction necessary for the enforcement of civil laws
that are directly related to, and necessary for, the licensing and regulation
of the conduct of gaming activity.
See §
2710(d)(3)(A), (C)(i, ii). These IGRA provisions do not explicitly permit the
parties in compacts to agree to the shifting of jurisdiction over visitors'
personal injury suits from tribal court to state court. Congress could have
worded the section in a way that obviously or necessarily included personal
injury negligence claims by visitors. It did not do so.
{31} It is reasonable
to conclude that Congress intended in the IGRA to distinguish between a tribe's
governmental role and a tribe's commercial enterprise role. In its governmental
role, Santa Clara engages in licensing and regulation, the sole subjects of §
2710(d)(3)(C). In its role of conducting commercial operations, Santa Clara has
agreed that the safety and protection of its visitors is a priority and has
agreed to a limited waiver of its sovereign immunity for visitors' claims for
bodily injury. The subject of the tribe's limited immunity waiver is nowhere to
be found in § 2710(d)(3)(C).
{32} Gallegos,
2002-NMSC-012, does not change the
playing field. In
Gallegos, the issue in
the present case was not addressed. The question in
Gallegos was whether the court had subject
matter jurisdiction of a tort claim against the tribe, and that issue was
dependent on whether, under the doctrine of tribal sovereign immunity, the
tribe was immune from suit in state court.
Id.
¶¶ 6-7.
Gallegos states that "[a]
tribe can . . . waive its own immunity by unequivocally expressing such a
waiver."
Id. ¶ 7.
Gallegos also states that "[w]ithout an
unequivocal and express waiver of sovereign immunity or congressional
authorization, state courts lack the power to entertain lawsuits against tribal
entities."
Id. Our Supreme Court
raised congressional authorization in regard to jurisdiction, citing §
2710(d)(3)(C)(ii).
Gallegos,
2002-NMSC-012, &10. However, the Court stopped short, expressly stating
that, while the issue of jurisdiction shifting was argued, the Court was not
going to address it.
Id. ¶ 10 n.3.
{33} Rather, the Court
in
Gallegos addressed only the question
whether the tribe waived its tribal immunity from suit in state court.
Id. ¶ 11. In doing so, the Court addressed the
tort claimant's argument that the tribe had signed and was bound by a compact
containing Section 8, and then held that the claimant could not rely on the
compact because it was not in effect.
Id.
¶¶ 12-14.
Gallegos was aware of the
jurisdiction-shifting issue and refused to consider it because of its holding
that the compact on which the claimant relied was not effective. Thus,
Gallegos does not read § 2710(d)(3)(C)(i, ii) to
state that the IGRA expressly permits the question of state court jurisdiction
over visitors' personal injury suits to be a topic of negotiation in compacts.
Gallegos contains no discussion of what the
words in that section mean or cover, or were intended to mean or cover.
Gallegos contains no discussion of whether
language in a congressional authorization of state court jurisdiction must be
expressly or explicitly stated in the legislation, as opposed to implied from
wording in legislation.
{34} Barring
Gallegos, the majority opinion is left with
legislative history. What is significant about that discussion is the absence
of any comment in congressional hearings regarding whether the IGRA was to
permit an allocation of jurisdiction beyond that necessary for the enforcement
of laws and regulations directly related to and necessary for licensing and
regulation of Class III gaming activities. In the IGRA, including §
2710(d)(3)(C)(ii), there exists no express inclusion of, nor any indication of
a discernable legislative intent to include, jurisdiction allocation or
shifting in relation to a negligence claim such as Plaintiff's. The duty
underlying a visitor's personal injury claim does not come within the scope of
jurisdiction necessary for the enforcement of laws and regulations that are
directly related to and necessary for licensing and regulation of Class III
gaming activities.
{35} In sum, no
express authority granted by Congress through the IGRA exists for a state to
exercise jurisdiction over visitors' personal injury actions arising out of
negligent conduct on the premises of tribal casinos. The IGRA's compact
requirement for Class III gaming is not an express grant of authority to states
to exercise such subject matter jurisdiction. Section 8 of the 2001 New
Mexico/Santa Clara Compact cannot bootstrap Plaintiff's claims as coming within
the scope of § 2710(d)(3)(C)(i, ii). Nor can the Compact circumvent the
Williams rule of exclusive tribal jurisdiction
over general tort actions arising on Indian land except pursuant to an express
congressional grant of jurisdictional authority.