The opinion of the court was delivered by: Lamberth, District Judge.
This case presents an issue of civil procedure that may have
wide-ranging consequences for gaming activities operated on
Native American lands. Before the Court is a motion by the
Secretary of the Interior seeking dismissal of the plaintiffs'
action for failure to join the State of New Mexico, which the
Secretary argues is an indispensable party under Federal Rule
of Civil Procedure 19(b). Upon consideration of the motion, the
plaintiffs' opposition, and a thorough review of relevant
caselaw, the Court reluctantly agrees with the defendant that
the State of New Mexico is an indispensable party without which
this action may not proceed. Consequently, the defendant's
motion will be granted, and plaintiffs' action will be
Plaintiffs' lawsuit, and the current motion to dismiss by the
defendant, must be considered in light of the recent history of
Indian gaming law, and the experience of New Mexico in
particular. In 1987, the United States Supreme Court decided
that, as a matter of federal common law, the states generally
lacked the authority to regulate Indian gaming on reservations
absent a congressional grant of jurisdiction. See California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083,
94 L.Ed.2d 244 (1987). One year later, Congress enacted the
Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq.
The IGRA established a comprehensive scheme for state-tribal
relations on the issue of gaming. Under the Act, the so-called
Class III gaming at issue here (including casino gambling, dog
racing, and most forms of gaming other than bingo and social
gambling) may be conducted on Indian lands only pursuant to a
"Tribal-State compact entered into by the Indian tribe and the
State" and approved by the Secretary of the Interior.
25 U.S.C. § 2710(d)(1)(C); id. § 2710(d)(8) (regulating the Secretary's
approval or disapproval of a compact). In exchange for the
authority to participate in the regulation of Class III gaming
on Indian lands, the States are required by the IGRA to
"negotiate with the Indian tribe in good faith to enter into
such a compact." 25 U.S.C. § 2710(d)(3)(A).
Following the enactment of the IGRA, the plaintiffs and other
Native American tribes in New Mexico sought for many years to
negotiate a gaming compact with the State. In 1991, the Pueblo
of Sandia negotiated a compact with then-Governor King, but the
governor ultimately refused to sign the compact. After the
election of a more sympathetic governor, the Tribes were able
to execute compacts with then-Governor Johnson in 1995. These
compacts were promptly approved by the Secretary of the
Interior, but the state attorney general subsequently
challenged the governor's authority to enter into the compact.
The New Mexico Supreme Court held that the state legislature
was the appropriate body to enter into compacts with the Indian
tribes, and the 1995 compacts were invalidated. See State ex.
rel. Clark v. Johnson, 120 N.M. 562, 904 P.2d 11 (1995).
As enacted in 1988, the IGRA provided the Tribes with a
federal cause of action to compel a State that refused to
negotiate a compact in good faith as required by the Act.
See 25 U.S.C. § 2710(d)(7), held unconstitutional in Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134
L.Ed.2d 252 (1996). In fact, plaintiff Pueblo of Sandia brought
suit against the State of New Mexico, along with several other
tribes, and won a ruling from the United States Court of
Appeals for the Tenth Circuit that the State could not escape
litigation based on its sovereign immunity. See Ponca Tribe of
Oklahoma v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994), vacated,
517 U.S. 1129, 116 S.Ct. 1410, 134 L.Ed.2d 537 (1996). The
Tenth Circuit's decision, however, was vacated after the
Supreme Court held in Seminole Tribe of Florida v. Florida,
517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), that Congress
lacks the authority under the Indian Commerce Clause to
abrogate the states' Eleventh Amendment immunity. See also
Ponca Tribe of Oklahoma v. Oklahoma, 89 F.3d 690 (10th Cir.
1996) (on remand, holding that the tribes could not proceed).
Faced with the choice of shutting down their gaming
operations or signing the State-dictated compacts, the
plaintiff tribes chose to sign the compacts and did so in July
of 1997, with express reservations as to the legality of the
revenue sharing and regulatory fee provisions. The tribes asked
the State to negotiate the revenue sharing and regulatory fee
provisions; the State has never agreed to any such
As required by the IGRA, the tribal-state compacts signed by
plaintiffs and the State of New Mexico were sent to the
Secretary of the Interior for his approval immediately after
signing. On August 23, 1997, the Secretary gave notice of his
decision by letter to the Tribes and Governor Johnson. The
Secretary's decisions reads in part:
I have declined to approve or disapprove the
Pueblo['s] Compact within the 45 day period. As a
result, the Compact is considered to have been
approved, but only to the extent it is consistent
with the provisions of IGRA. The Pueblo and the
State should be aware that the Department is
particularly concerned about two provisions in the
Compact that appear inconsistent with IGRA,
i.e., the revenue sharing provisions and the
regulatory fee structure.
The Secretary's decision then set forth in some detail the
Department's concerns regarding the revenue sharing and
regulatory fee provisions of the compacts. In conclusion, the
The Department believes that the decision to let
the 45-day statutory deadline for approval or
disapproval of the Compact expire without taking
action is the most appropriate course of action
given the unique history of state and federal
court cases and legislative actions that have
shaped the course of Indian gaming in New Mexico.
The Department hopes that the foregoing
explanation will encourage the State and the
Pueblo to enter into genuine negotiations to
resolve these concerns.
Despite the requests of the plaintiffs and the "hope" of the
Secretary, the State has declined to negotiate the provisions
of the compacts that have been called into question. The Tribes
have made all payments required by the compacts, including with
each payment an objection to the revenue sharing and regulatory
fees aspects of the compacts.
Having received no relief from the State of New Mexico, and
unable to sue the State due to the Seminole Tribe decision, the
plaintiff Pueblos filed this action on April 21, 1998, seeking
either (1) a declaration that the Secretary's August 23, 1997
decision placed the compacts into effect without the allegedly
illegal provisions or (2) a remand to the Secretary ...