Last week saw a federal appeals court rule against the Pojoaque Pueblo by upholding an earlier decision that will require the casino-operating tribe to negotiate a new gaming compact with the administration of New Mexico governor Susana Martinez rather than the United States Department Of The Interior.
The federally-recognized tribe runs the Buffalo Thunder Resort And Casino just north of Santa Fe along with the nearby Cities Of Gold Casino and allowed its previous Class III gaming compact with the state to expire in June of 2015 because it felt the requested revenue-sharing portion of the proposed new deal was too high and represented an illegal tax.
The Pojoaque Pueblo later also accused the Martinez administration of negotiating in bad faith before asking the United States Department Of The Interior via its Bureau Of Indian Affairs agency to intervene and approve new procedures that would allow it to continue offering casino gaming.
The Martinez administration countered by taking the Pojoaque Pueblo and the United States Department Of The Interior to court and arguing that the tribe’s gambling operations were now illegal because the provision of a compact is mandated under the stipulations of the Indian Gaming Regulatory Act. It additionally asserted that any such deal cannot be imposed by the federal government over the objections of a state.
February saw a United States District Court judge in Albuquerque agree with the state’s arguments while the Pojoaque Pueblo immediately appealed the decision to the United States Court Of Appeals For The Tenth Circuit in Denver, Colorado, which unanimously ruled against the tribe and the United States Department Of The Interior on Friday.
In the 58-page decision, United States Circuit Judge Jerome Holmes wrote that the law only authorizes federal intervention when a state has failed to negotiate in “good faith”, which is stipulated by the Bureau Of Indian Affairs’ Part 291 regulations. However, he explained that such a determination had not been reached because New Mexico had invoked its sovereign immunity in response to a lawsuit filed by the tribe and, as a result, the United States Department Of The Interior could not interfere.
“Part 291 attempts an end-run around this clear statutory language by purporting to empower the [United States Department Of The Interior] to step in without a finding of bad faith if a state asserts sovereign immunity and that assertion results in dismissal of the suit,” wrote Holmes. “At bottom, the [United States Department Of The Interior] is attempting to rewrite [the Indian Gaming Regulatory Act]”.
The Denver ruling marks the second time the Part 291 regulations from the Bureau Of Indian Affairs have been struck down by a federal court after the United States Court Of Appeals For The Fifth Circuit prevented the agency from approving a Class III gaming compact for the Kickapoo Traditional Tribe Of Texas in 2007 over the objections of officials in Austin. Just as in New Mexico, Texas had asserted its sovereign immunity so was never found to be negotiating in bad faith.
“As we’ve said all along, we’re simply asking for [the Pojoaque Pueblo] to play by the same rules as other New Mexico tribes,” read a statement from Martinez spokesperson Michael Lonergan.