ANNOTATIONS Compiler’s notes. — Section 11-13-1 NMSA 1978 enacted into law the Indian Gaming Compact of 1997. In 2001, the State of New Mexico entered into a new gaming compact that superseded the 1997 compact. See R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, 139 N.M. 85, 128 P.3d 513, cert. denied, 2006-NMCERT- 002, 139 N.M. 339, 132 P.3d 596. The Indian Gaming Compact of 2001 expires on June 30, 2015. See 2001 Tribal-State Class III Gaming Compact Between the State of New Mexico and the Pueblos of Acoma, Isleta, Laguna, Sandia, San Felipe, San Juan, Santa Ana, Santa Clara, Taos and Tesuque and the Jicarilla Apache Nation, Section 12(A). In 2007, the State of New Mexico entered into a new Indian gaming compact with many of the tribes that were signatories of the 2001 compact. The 2001 compact became null and void for those tribes that entered into the 2007 Indian Gaming Compact. See 2007 Tribal-State Class III Gaming Compact Between the State of New Mexico and the Pueblos of Isleta, Laguna, Nambe, Ohkay Owingeh (Pueblo of San Juan), Picuris, San Felipe, Sandia, Santa Ana, Santa Clara, Taos, and Tesuque, Section 9(D). The 2007 compact expires on June 30, 2037. See 2007 Indian Gaming Compact, Section 12(A). In 2015, the State of New Mexico entered into a new Indian gaming compact. See 2015 Tribal-State Class III Gaming Compact (Approved by Laws 2015, S.J.R. No. 19). The 2015 Indian gaming compact fully supplants and replaces any predecessor agreements between the State of New Mexico and any Indian tribe that is a signatory of the 2015 Indian Gaming Compact. See 2015 Indian Gaming Compact, Section 9(A). The 2015 compact expires on June 30, 2037. See 2015 Indian Gaming Compact, Section 12(A). Workers' compensation claims. — Where worker was injured during the course of worker’s employment by an Indian tribe at a ski run that was operated by the Indian tribe, and in the Indian Gaming Compact, the tribe agreed to provide all of its employees workers' compensation benefits at least as favorable as those provided by comparable state programs, the Indian tribe did not waive its sovereign immunity with respect to workers' compensation disputes and the state workers' compensation judge lacked subject matter jurisdiction of worker’s claim. Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-NMCA-077, 148 N.M. 858, 242 P.3d 425, cert. denied, 2010-NMCERT- 007, 148 N.M. 610, 241 P.3d 611. Injured patron common law dramshop liability. — Where plaintiff alleged that defendant sold alcohol to decedents at a social function at an Indian casino despite the decedents’ intoxication and, as a result, the decedents were killed in a single vehicle accident, and a third person, who was a passenger in the back seat of the vehicle, was injured; the police and the passenger were unable to determine which of the decedents was driving the vehicle at the time of the accident; plaintiff was licensed by the Indian tribe to sell and serve alcoholic beverages at the casino; and the Indian tribe had enacted an ordinance which prohibited the sale of alcohol to intoxicated persons, plaintiff stated an injured, third-party common law negligence claim against defendant on behalf of whichever decedent was driving. Mendoza v. Tamaya Enters., Inc., 2010- NMCA-074, 148 N.M. 534, 238 P.3d 903, cert. granted, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611. Injured, third-party common law dramshop liability. — Where plaintiff alleged that defendant sold alcohol to decedents at a social function at an Indian casino despite the decedents’ intoxication and, as a result, the decedents were killed in a single vehicle accident, and a third person, who was a passenger in the back seat of the vehicle, was injured; the police and the passenger were unable to determine which of the decedents was driving the vehicle at the time of the accident; plaintiff was licensed by the Indian tribe to sell and serve alcoholic beverages at the casino; and the Indian tribe had enacted an ordinance which prohibited the sale of alcohol to intoxicated persons, plaintiff stated an injured, third-party common law negligence claim against defendant on behalf of whichever decedent was not driving. Mendoza v. Tamaya Enters., Inc., 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903, cert. granted, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611. District court jurisdiction over common law dramshop liability claims. — Where defendant sold alcohol to decedents at a social function at an Indian casino despite the decedents’ intoxication and, as a result, the decedents were killed in a single vehicle accident; plaintiff was licensed by the Indian tribe to sell and serve alcoholic beverages at the casino; and pursuant to the Indian Gaming Compact, the Indian tribe had enacted an ordinance which prohibited the sale of alcohol to intoxicated persons, waived sovereign immunity in connection with claims for compensatory damages for bodily injury or property damage, and agreed that any claim could be brought in district court, the district court had jurisdiction over the parties and the subject matter of the action. Mendoza v. Tamaya Enters., Inc., 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903, cert. granted, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611. Tribes indispensable parties to Indian gaming legislation challenge. — Dismissal of an action attacking the legality of legislation authorizing Indian gaming in New Mexico (11-13-1 and 11-13-2 NMSA 1978) was required because the plaintiffs cannot join certain indispensable parties, namely the various tribes and pueblos that have gaming compacts with the state. State ex rel. Coll v. Johnson, 1999-NMSC-036, 128 N.M. 154, 990 P.2d 1277. Standing to challenge the compact. — State, legislators, private citizens and nonprofit corporation did not have standing as beneficially interested parties or under the great public importance doctrine to challenge the legality of legislation authorizing Indian gaming. State ex rel. Coll v. Johnson, 1999-NMSC-036, 128 N.M. 154, 990 P.2d 1277. Sovereign immunity not waived. — Where plaintiff sued defendant for breach of contract, prima facie tort, and violation of the Unfair Practices Act because defendant refused to pay plaintiff a gambling prize; defendant was a casino that was a wholly- owned, operated, and unincorporated enterprise of defendant; and defendant was a party to the tribal-state Class III Gaming Compact, sovereign immunity barred plaintiff’s claims and the district court lacked subject matter jurisdiction. Hoffman v. Sandia Resort and Casino, 2010-NMCA-034, 148 N.M. 222, 232 P.3d 901, cert. denied, 2010- NMCERT-003, 148 N.M. 560, 240 P.3d 15, cert. denied, 131 S. Ct. 227, 178 L.Ed.2d 135 (2010). Waiver of sovereign immunity for bodily injury or property damage in a tribal-state Class III Gaming Compact cannot be construed to mean or include emotional injury resulting from the invasion of privacy rule. Holguin v. Tsay Corp., 2009-NMCA-056, 146 N.M. 346, 210 P.3d 243. Immunity from suit for emotional injury. — Where the plaintiff, who sued the defendant for emotional injuries resulting from the invasion of the plaintiff’s privacy, claimed that the plaintiff won a random drawing for $250,000 at the defendant’s casino; that the defendant refused to pay the plaintiff the full $250,000 and instead required the plaintiff to elect to receive half of the $250,000, less income taxes, or an annuity valued at $250,000 payable over twenty years; and that the defendant falsely advertised the plaintiff as winning the full $250,000 and used the plaintiff’s likeness and name for the defendant’s benefit and where the defendant was party to a tribal-state Class III Gaming Compact which contained a limited waiver of tribal sovereign immunity with respect to claims for damages for bodily injury or property damage, the waiver of immunity cannot be construed to mean or include emotional injury resulting from application of the invasion of privacy rule. Holguin v. Tsay Corp., 2009-NMCA-056, 146 N.M. 346, 210 P.3d 243. Jurisdiction over personal injury actions. — State courts have jurisdiction over personal injury actions filed against pueblos arising from negligent acts alleged against casinos owned and operated by the pueblos and occurring on pueblo land. Doe v. Santa Clara Pueblo, 2007-NMSC-008, 141 N.M. 269, 154 P.3d 644. Dram shop liability. — Where decedents attended a wedding reception at a Pueblo casino where decedents were served alcoholic beverages and became intoxicated; casino employees continued to serve alcohol to decedents despite their apparent intoxication; decedents left the casino and were killed when their vehicle left the road and rolled over; decedents’ estates filed wrongful death actions in state district court; the casino was licensed to sell alcohol by the Pueblo; the service of alcohol to decedents while they were intoxicated violated the Pueblo liquor ordinance; the ordinance reserved exclusive jurisdiction over violations of the ordinance in tribal courts; and in Section 8 of the Tribal-State Class III Gaming Compact (2001) the Pueblo agreed to state court jurisdiction of claims involving injuries proximately caused by the conduct of the casino, the state district court had jurisdiction over the case. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 258, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903. Prospective application. — The 1997 compact between a tribe and the state is to be applied prospectively only and not have retroactive application. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, 132 N.M. 207, 46 P.3d 668, cert. dismissed, 536 U.S. 990, 123 S. Ct. 32, 153 L. Ed. 2d 894 (2002). 2001 compact. — The 2001 gaming compact superceded the 1997 gaming compact. R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, 139 N.M. 85, 128 P.3d 513, cert. denied, 2006-NMCERT-002, 139 N.M. 339, 132 P.3d 596. The 2001 gaming compact's reference to "persons who suffer bodily injury" supports the conclusion that the waiver of sovereign immunity was intended to cover only claims for physical injuries to persons and property and not claims which involve contract law and business torts. R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, 139 N.M. 85, 128 P.3d 513, cert. denied, 2006-NMCERT-002, 139 N.M. 339, 132 P.3d 596. Compact meets requirements for joinder of insurer. – The Indian Gaming Compact satisfies all three factors of the test for joinder of an insurer, because the language of Paragraph B of Section 8 unequivocally requires insurance coverage, the title of section 8, "Protection of Visitors", reflects that one of the compact's purposes is to protect the general public, and the compact contains no express negation of joinder. Romero v. Pueblo of Sandia, 2003-NMCA-137, 134 N.M. 553, 80 P.3d 490. Purposes of compact. – Because the Indian Gaming Compact has wide-ranging goals, it does not follow that any purposes outside of the "Purpose and Objectives" section of the compact are rendered incidental. Romero v. Pueblo of Sandia, 2003- NMCA-137, 134 N.M. 553, 80 P.3d 490. Approval of compacts under Indian Gaming Regulatory Act. — In order for class III Indian gaming operations to be valid under The Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.): the state and the tribe must have "entered into" a compact and the compact must be "in effect" pursuant to secretarial approval and notice; state law determines the procedures by which a state may validly enter into a compact; and in determining whether the state and the tribes have entered into valid and binding compacts under New Mexico law the New Mexico Supreme Court decision of State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11 controls. Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir.), cert. denied, 522 U.S. 807, 118 S. Ct. 45, 139 L. Ed. 2d 11 (1997). Gaming commission immune from suit. — Under the Indian Gaming Compact, the governmental actions of a gaming commission in regulating gaming are distinguishable from the commercial activities of a gaming enterprise. Plaintiff, whose loss of his gaming license is alleged to have been caused by the improper governmental action of a gaming commission, lacks standing to assert the waiver of immunity in Section 8 of the Indian Gaming Compact, which is limited to victims whose injuries are caused by the conduct of the gaming enterprise. Kosiba v. Pueblo of San Juan, 2006-NMCA-057, 139 N.M. 533, 135 P.3d 234, cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038. Gaming application triggered the requirement that the state reopen good faith negotiations with Indian tribes to evaluate the application's impact. — Under Section 17 of the Indian Gaming Compact, the authorization of "internet gaming" in New Mexico triggers a requirement that the state reopen good faith negotiations with the signatory Indian tribes to consider the impact on Indian gaming operations, and therefore an online application, which allows individuals to play state lottery games online using mobile devices or computers and which satisfies the definition of "internet gaming" in the state of New Mexico, triggers the requirement that the state reopen good faith negotiations with the tribes to evaluate the application's impact. 2025 Op. Att'y Gen. No. 25-07. Expansion of Class II gaming for non-tribal horse racetrack. — Neither the federal Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 - 2721, nor the 2001 and 2007 Indian gaming compacts affect the legislature’s authority to authorize Class II gaming activities outside of Indian lands and if authorized by the legislature, a non-tribal horse racetrack can engage in Class II gaming activities without violating the terms of the compacts. 2013 Op. Att’y Gen. No. 13-02. The expansion of Class III gaming for non-tribal horse racetracks beyond the currently authorized activities of betting on live horse racing, horse race simulcasting, slot machines and similar gaming machines requires legislative authorization and, if granted, will terminate the gaming tribes’ revenue-sharing obligations under the 2001 and 2007 Indian gaming compacts. 2013 Op. Att’y Gen. No. 13-02. Limits on arbitration. — An arbitration panel selected under Section 7 of the compact could not change or invalidate the regulatory fees specified in Paragraph E(5) of Section 4. 1999 Op. Att'y Gen. No. 99-02. If the revenue sharing agreement, codified at former 11-3-2 NMSA 1978, is covered by Section 7 of the compact, the arbitration panel would not have authority to determine the legal validity of the revenue-sharing amount. 1999 Op. Att'y Gen. No. 99-02.
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