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PUEBLO OF SANDIA v. BABBITT

April 28, 1999

PUEBLO OF SANDIA, ET AL., PLAINTIFFS,
v.
BRUCE H. BABBITT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

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 dismissed.

I. BACKGROUND

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 negotiations.

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 Secretary stated:

  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 ...


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