(dissenting).
{21} I respectfully dissent. In regard to visitors’ personal injury actions arising out of negligent conduct on the premises of tribal casinos, the IGRA does not grant states an option to exercise jurisdiction or grant states and tribes a license to shift jurisdiction from tribe to state. The district court, therefore, did not have subject matter jurisdiction of Plaintiffs personal injury action against Santa Clara.
{22} The IGRA is “a comprehensive regulatory framework for gaming activities on Indian lands which ... established the framework under which Indian tribes and states could negotiate compacts permitting Class III gaming on Indian reservations located within state territory.” Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 9, 132 N.M. 207, 46 P.3d 668 (internal quotation marks and citation omitted). In order to engage in Class III gaming operations, Santa Clara was required to enter into a compact with the State of New Mexico (the Compact). See 25 U.S.C. § 2710(d)(1) (1988). The compact in question was negotiated in 2000 under the Compact Negotiation Act, NMSA 1978, §§ 11-13A-1 to -5 (1999), and became effective in 2001. See NMSA 1978, § 11 — 13— 1 (1997, and 2004 Supp. compiler’s note); see also 66 Fed.Reg. 64856-01 (Dec. 14, 2001) (notice of Secretary of the Interior approval of compacts between New Mexico and, among others, Santa Clara).
{23} Under the Compact, Santa Clara waived its sovereign immunity for personal injury claims filed by visitors to the Casino. It also agreed that New Mexico law would apply to such personal injury claims. However, the Compact left unsettled in which court such claims could be pursued. Obviously intended to permit Santa Clara to test jurisdiction shifting, Section 8(A) of the Compact states that “any such claim [for bodily injury] 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.”
{24} Unless changed by “governing Acts of Congress,” tribal courts retain exclusive jurisdiction over claims arising on tribal lands against tribes, including tribal entities and tribal members. Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Through Public Law 83-280, Act of August 15,1953, ch. 505, §§ 6, 7, 67 Stat. 590, Congress granted jurisdiction over civil and criminal matters involving reservation Indians to the states that were willing to accept it. See Williams, 358 U.S. at 222, 79 S.Ct. 269; Your Food Stores, Inc. v. Vill. of Espanola, 68 N.M. 327, 332, 361 P.2d 950, 954 (1961). New Mexico did not elect to assume jurisdiction over tribal lands. Id. New Mexico courts have recognized that “[exclusive 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. Plaintiff acknowledges “that without ... Congressional authority, state courts lack the power to entertain lawsuits against tribal entities.” If New Mexico courts have subject matter jurisdiction in this case, the jurisdictional authority must derive from the IGRA.
{25} Section 2710(d)(3)(C) sets out the provisions that may be included in a negotiated compact that are pertinent to the issue before us. Section 2710(d)(3)(C) permits compact provisions relating to:
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the [s]tate that are directly related to, and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between the [s]tate and the Indian tribe necessary for the enforcement of such laws and regulations}.]
{26} Section 2710(d)(3)(C)(ii) plainly permits an allocation of jurisdiction only as necessary for the enforcement of laws and regulations that are.directly related to and necessary for licensing and regulation of Class III gaming activities. In the IGRA, including § 2710(d)(3)(C)(ii), there exists.no express inclusion of, nor any indication of a discernable legislative intent to include, jurisdiction allocation or shifting in relation to a negligence claim such as Plaintiffs. The duty underlying Plaintiffs claims does not come within the scope of jurisdiction necessary for the enforcement of laws and regulations that are directly related to and necessary for licensing and regulation of Class III gaming activities.
{27} Section 8 of the Compact pertains specifically to the protection of visitors to the Casino. Part (A) states a policy that the safety and protection of visitors is a priority, with the assurance that visitors with personal injury claims will have an effective remedy for .obtaining fair and just compensation. The policy provision in Part (A) also contains the language at issue in this case regarding jurisdiction. Having an effective remedy does not necessarily require state court jurisdiction. Nothing in the record indicates that a visitor claimant cannot have an effective remedy through tribal court or arbitration as long as those processes provide due process. Part (C) of Section 8 is a limitations provision that appears to pertain to any claim that might be brought relating to the subjects in Section 8. Part (E) permits the visitor claimant to elect between a court of competent jurisdiction or arbitration, and Part (F) deals solely with arbitration. Parts (B) and (G) facilitate the policy in (A) by requiring Santa Clara to carry liability insurance. Part (D) facilitates effective relief through a limited waiver by Santa Clara of sovereign immunity and through an agreement that New Mexico law will apply. Part (H) is preventative in nature, requiring Santa Clara to conform to certain health, safety, and construction standards.
{28} As indicated earlier, the pertinent language in Section 8(A) of the Compact is: a claim for bodily injury “may be brought in state district court ... 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.” Thus, among the several aspects of the safety and protection purposes of Section 8, Part (A) permits a visitor to bring a personal injury claim in state court, but if the state court in that case or perhaps in another case determines that the IGRA does not permit the tribe to shift jurisdiction over such visitor personal injury suits to state court, then the visitor’s personal injury claim in state court fails for lack of jurisdiction. The parties to the Compact expected the issue to be litigated.
{29} Section 8 uses “state court jurisdiction” in only one place, and that is in the clause quoted above. Elsewhere, the section uses, simply,, “court” and “a court of competent jurisdiction.” These latter uses of “court” can mean, and I suspect the uses were intended to mean, (1) tribal court and (2) state court if a court determines that the IGRA permits jurisdiction shifting over visitors’ personal injury suits. The question then reverts, of course, to whether the IGRA permits jurisdiction shifting from tribal court to state district court over Plaintiffs personal injury claims.
{30} The sole provision in the IGRA that is applicable, § 2710(d)(3)(C)(i, ii), is permissive and limited. Read in conjunction with (d)(3)(A) it provides: any compact governing the conduct of gaming activities may include provisions relating to the allocation of civil jurisdiction necessary for the enforcement of civil laws that are directly related to, and necessary for, the licensing and regulation of the conduct of gaming activity. See § 2710(d)(3)(A), (C)(i, ii). These IGRA provisions do not explicitly permit the parties in compacts to agree to the shifting of jurisdiction over visitors’ personal injury suits from tribal court to state court. Congress could have worded the section in a way that obviously or necessarily included personal injury negligence claims by visitors. It did not do so.
{31} It is reasonable to conclude that Congress intended in the IGRA to distinguish between a tribe’s governmental role and a tribe’s commercial enterprise role. In its governmental role, Santa Clara engages in licensing and regulation, the sole subjects of § 2710(d)(3)(C). In its role of conducting commercial operations, Santa Clara has agreed that the safety and protection of its visitors is a priority and has agreed to a limited waiver of its sovereign immunity for visitors’ claims for bodily injury. The subject of the tribe’s limited immunity waiver is nowhere to be found in § 2710(d)(3)(C).
{32} Gallegos, 2002-NMSC-012, 132 N.M. 207, 46 P.3d 668, does not change the playing field. In Gallegos, the issue in the present case was not addressed. The question in Gallegos was whether the court had subject matter jurisdiction of a tort claim against the tribe, and that issue was dependent on whether, under the doctrine of tribal sovereign immunity, the tribe was immune from suit in state court. Id. ¶¶ 6-7. Gallegos states that “[a] tribe can ... waive its own immunity by unequivocally expressing such a waiver.” Id. ¶ 7. Gallegos also states that “[wjithout an unequivocal and express waiver of sovereign immunity or congressional authorization, state courts lack the power to entertain lawsuits against tribal entities.” Id. Our Supreme Court raised congressional authorization in regard to jurisdiction, citing § 2710(d)(3)(C)(ii). Gallegos, 2002-NMSC-012, ¶ 10, 132 N.M. 207, 46 P.3d 668. However, the Court stopped short, expressly stating that, while the issue of jurisdiction shifting was argued, the Court was not going to address it. Id. ¶ 10 n. 3.
{33} Rather, the Court in Gallegos addressed only the question whether the tribe waived its tribal immunity from suit in state court. Id. ¶ 11. In doing so, the Court addressed the tort claimant’s argument that the tribe had signed and was bound by a compact containing Section 8, and then held that the claimant could not rely on the compact because it was not in effect. Id. ¶¶ 12-14. Gallegos was aware of the jurisdiction-shifting issue and refused to consider it because of its holding that the compact on which the claimant relied was not effective. Thus, Gallegos does not read § 2710(d)(3)(C)(i, ii) to state that the IGRA expressly permits the question of state court jurisdiction over visitors’ personal injury suits to be a topic of negotiation in compacts. Gallegos contains no discussion of what the words in that section mean or cover, or were intended to mean or cover. Gallegos contains no discussion of whether language in a congressional authorization of state court jurisdiction must be expressly or explicitly stated in the legislation, as opposed to implied from wording in legislation.
{34} Barring Gallegos, the majority opinion is left with legislative history. What is significant about that discussion is the absence of any comment in congressional hearings regarding whether the IGRA was to permit an allocation of jurisdiction beyond that necessary for the enforcement of laws and regulations directly related to and necessary for licensing and regulation of Class III gaming activities. In the IGRA, including § 2710(d)(3)(C)(ii), there exists no express inclusion of, nor any indication of a discernible legislative intent to include, jurisdiction allocation or shifting in relation to a negligence claim such as Plaintiffs. The duty underlying a visitor’s personal injury claim does not come within the scope of jurisdiction necessary for the enforcement of laws and regulations that are directly related to and necessary for licensing and regulation of Class III gaming activities.
{35} In sum, no express authority granted by Congress through the IGRA exists for a state to exercise jurisdiction over visitors’ personal injury actions arising out of negligent conduct on the premises of tribal casinos. The IGRA’s compact requirement for Class III gaming is not an express grant of authority to states to exercise such subject matter jurisdiction. Section 8 of the 2001 New Mexico/Santa Clara Compact cannot bootstrap Plaintiffs claims as coming within the scope of § 2710(d)(3)(C)(i, ii). Nor can the Compact circumvent the Williams rule of exclusive tribal jurisdiction over general tort actions arising on Indian land except pursuant to an express congressional grant of jurisdictional authority.