F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 31 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
STATE OF NEW MEXICO,
Plaintiff - Appellee, No. 01-2019
v. (D. New Mexico)
PUEBLO OF POJOAQUE, (D.C. No. CIV-00-851-BB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , ANDERSON , and MURPHY , Circuit Judges.
This case involves the gaming compact and revenue sharing agreement
entered into in 1997 between the Pueblo of Pojoaque Tribe and the State of New
Mexico. 1 The compact is a necessary prerequisite, under the Indian Gaming
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
Originally, a number of other tribes were also parties to this case. All
tribes except for the Pueblo of Pojoaque have stipulated to the dismissal of their
appeals.
Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701- 2721, for the Tribe to conduct
class III gaming on its reservation in New Mexico. The revenue sharing
agreement (“RSA”), a creation of state statute, was by statute a prerequisite for
the State to enter into the compact with the Tribe. See N.M. Stat. Ann. § 11-13-2.
The RSA requires the Tribe to pay the State 16% of its total “net win” from
gaming machines, and, in exchange therefore, the State agreed to various
restrictions on the expansion of non-Indian gaming.
The Tribe and the State entered into the RSA and compact, which were then
submitted to the Secretary of the Interior for approval, as required by the IGRA.
Rather than electing to approve or disapprove the documents, the Secretary chose
to take no official action, which resulted in the compact and RSA going into
effect by operation of law, to the extent they comply with the IGRA. See 25
U.S.C. § 2710(d)(8)(C).
When the Tribe began refusing to comply with the RSA requirement that it
submit 16% of its net win to the State, the State brought this action seeking a
declaration that: (1) the RSA requirements are part of the compact; (2) the RSA
is legal under the IGRA; (3) the Tribe was violating the IGRA by failing to remit
the payment required under the RSA; and (4) all Tribal gaming in violation of the
IGRA be enjoined. The Tribe filed a motion to dismiss claiming it had sovereign
immunity from suit and that the district court lacked subject matter jurisdiction.
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The district court denied the motion to dismiss, holding “[t]he IGRA . . . provides
a solid foundation for both federal question jurisdiction and a waiver of tribal
immunity. Since the State has filed the case, the Court has jurisdiction over the
subject matter and the parties.” Memorandum Op. & Order at 14. This appeal,
which is an appeal from an immediately appealable interlocutory order, followed.
See Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949).
We have carefully reviewed the arguments of the parties and the record in
this case. We AFFIRM the district court’s decision that, at this juncture in the
case, it has jurisdiction over this case and its parties. See Mescalero Apache
Tribe v. New Mexico , 131 F.3d 1379 (10th Cir. 1997); Pueblo of Santa Ana v.
Kelly , 104 F.3d 1546 (10th Cir. 1997). We accordingly REMAND this case for
further proceedings. We deny other pending motions.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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