Doe v. Pueblo6/28/2005
t 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).
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."
As a general rule, " 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").
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
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