(dissenting).
{50} I respectfully dissent. I agree with Judge Sutin, who dissented from the Court of Appeals’ majority opinion, that the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 (2000), does not permit tribes and states to agree to shifting jurisdiction from tribal court to state court and thus does not allow the State to exercise jurisdiction over visitors’ personal injury claims arising on Indian land. Doe v. Santa Clara Pueblo, 2005-NMCA-110, ¶ 21, 138 N.M. 198, 118 P.3d 203 (Sutin, J., dissenting).
{51} My colleagues seem to rest their analysis at least in part on what IGRA does not say, as opposed to what it does say. Maj. Op. ¶¶ 13, 16. The majority opinion holds initially that “[t]he language the Pueblos agreed to in the Compact gave state courts jurisdiction over personal injury claims conditioned not upon IGRA allowing such jurisdiction shifting, but upon IGRA not prohibiting jurisdiction shifting.” Id. ¶ 13. Subsequently, within the opinion, my colleagues assume for purposes of this appeal that IGRA must be construed to determine whether it authorizes jurisdiction shifting. Id. ¶29. Still later in the opinion, then, consistent with this assumption, my colleagues identify indicia of legislative intent. Id. ¶¶ 36-41. The indicia identified seem at best ambiguous. After attempting to construe IGRA, I believe we should recognize that its text is ambiguous, and under these circumstances, the presumption of Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985), applies. Therefore I would reverse the Court of Appeals and the district court and remand with directions to dismiss both complaints.
{52} In his dissent, Judge Sutin argued that because tribal courts retain jurisdiction over claims arising on tribal lands against tribes, and because New Mexico elected not to assume jurisdiction over tribal lands, jurisdictional authority must come from IGRA. Doe v. Santa Clara Pueblo, 2005-NMCA-110, ¶ 24, 138 N.M. 198, 118 P.3d 203 (Sutin, J., dissenting). In analyzing Section 2710(d)(3)(C) of IGRA, he reasoned that visitors’ personal injury claims arising on tribal land do not fall within the scope of jurisdiction required for the enforcement of laws and regulations directly related to and necessary for licensing and regulation of Class III gaming. Id. ¶26. He then examined the language of IGRA and determined it does not expressly allow the parties to the Compact to agree to shifting jurisdiction over visitors’ personal injury claims, which indicates a legislative intent to preserve exclusive tribal jurisdiction over such claims. Id. ¶ 30. Finally, Judge Sutin asserted that because IGRA does not permit the tribes to consent to shifting jurisdiction, the Compact cannot evade the rule of exclusive tribal jurisdiction over general tort actions arising on Indian land established in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Doe v. Santa Clara Pueblo, 2005-NMCA-110, ¶ 35, 138 N.M. 198, 118 P.3d 203 (Sutin, J., dissenting). I agree.
{53} The pertinent language of IGRA reads,
Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to—
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State 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 State and the Indian tribe necessary for the enforcement of such laws and regulations ...
(vii) any other subjects that are directly related to the operation of gaming activities.
25 U.S.C. § 2710(d)(3)(C)(i), (ii), (vii). In his dissent, Judge Sutin noted the significant absence of any discussion “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.” Doe, 2005-NMCA-110, ¶ 34, 138 N.M. 198, 118 P.3d 203 (Sutin, J., dissenting). I agree with Judge Sutin’s observation that allocating jurisdiction over visitors’ personal injury claims would not seem to be “necessary for the enforcement of laws and regulations that are directly related to, and necessary for licensing and regulation of Class III gaming activities.” See id. ¶26. Had Congress intended for such claims to be included, I think IGRA would have been explicit, and we would not need to parse its legislative history for indicia of legislative intent. Even allowing for the fact that there were many issues to be resolved in negotiating compacts, IGRA seems to me to take a narrow view of what jurisdiction shifting, if any, was likely to occur. The phrase “directly related to and necessary for the licensing and regulation” of gaming activities seems restrictive rather than expansive.
{54} As Judge Sutin argued, because IGRA does not expressly grant jurisdictional authority over these claims, we cannot evade the Williams rule of exclusive tribal jurisdiction over general tort actions arising on Indian land. See Williams, 358 U.S. 217, 79 S.Ct. 269. At best, in light of IGRA’s silence on the matter and the Williams rule, we are obliged to adhere to the Blackfeet presumption and hold the apparent ambiguities in IGRA should be construed in favor of the tribes. If we do not accept the tribes’ argument that shifting jurisdiction is prohibited because IGRA does not plainly provide for it, we should hold that silence to be, at the very least, ambiguous, and then apply the Blackfeet presumption.
{55} Judge Sutin’s determination that the parties expected this issue to be litigated also seems accurate. Doe v. Santa Clara Pueblo, 2005-NMCA-110, ¶ 28, 138 N.M. 198, 118 P.3d 203 (Sutin, J., dissenting). Section 8(A) of the Compact says,
[A]ny 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.1
Therefore, I cannot reconcile the majority opinion’s conclusion that “we will not ignore the clear language of the Compact,” with the language of Section 8(A), which explicitly leaves the issue unresolved. Maj. Op. ¶ 15.2
{56} I would conclude the Compact’s shifting jurisdiction is not authorized by IGRA in unambiguous terms, and because shifting jurisdiction over visitors’ personal injury claims was not explicitly authorized by IGRA, presume the tribes’ exclusive jurisdiction over such claims must prevail. My colleagues being of a different view, I respectfully dissent.
. See http://www.nmgcb.org/tribal/2001compact. pdf.
. I would note the clarity of Section 8(A) of the Indian Gaming Compacts entered into in 1997, see NMSA 1978, § 11-13-1, in comparison with the text of Section 8(A) of the Compact entered into in 2001. See generally Doe v. Santa Clara Pueblo, 2005-NMCA-l 10, ¶ 5, 138 N.M. 198, 118 P.3d 203 (discussing the history of the 2001 Compact). Section 8(A) of the 1997 Compact provides explicitly for jurisdiction shifting. "[C]oncurrent civil jurisdiction in the State courts and the Tribal courts shall apply to a visitor’s claim for bodily injury or property damage proximately caused by the conduct of the Gaming Enterprise.” Section 11-13-1.