Mescalero Apache Tribe v. State of N.M.

• Decision Date: 10 December 1997
• Docket Number: No. 96-2156,96-2156
• Citation: 131 F.3d 1379
• Parties: , 97 CJ C.A.R. 3245 MESCALERO APACHE TRIBE, Plaintiff-Counter-Defendant-Appellant, v. STATE OF NEW MEXICO, Defendant-Counter-Claimant-Appellee, and Bruce King, Governor of the State of New Mexico, Defendant-Appellee. Pueblo of Santa Ana; Pueblo of Tesuque; Pueblo of Taos; Pueblo of Pojoaque; Pueblo of Acoma, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1379

131 F.3d 1379

39 Fed.R.Serv.3d 1300, 97 CJ C.A.R. 3245

MESCALERO APACHE TRIBE, Plaintiff-Counter-Defendant-Appellant, v. STATE OF NEW MEXICO, Defendant-Counter-Claimant-Appellee and Bruce King, Governor of the State of New Mexico, Defendant-Appellee Pueblo of Santa Ana; Pueblo of Tesuque; Pueblo of Taos Pueblo of Pojoaque; Pueblo of Acoma, Amici Curiae.

No. 96-2156.

United States Court of Appeals Tenth Circuit.

Dec. 10, 1997.

On the briefs: ^*

Gregory M. Quinlan, John D. Wheeler, Anne-Kathryn Claassen, Fettinger, Bloom & Quinlan, P.C., Alamogordo, NM, for Appellant.

Tom Udall, Attorney General, Christopher D. Coppin, Assistant Attorney General, Albuquerque, NM, for Appellees.

Richard W. Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, NM, for amicus Pueblo of Santa Ana.

Sarah W. Barlow, Rosenfelt, Barlow, Barber, Barudin & Borg, P.A., Albuquerque, NM, for amicus Pueblo of Taos.

Kevin Gover, Gover, Stetson & Williams, P.C., Albuquerque, NM, for amicus Pueblo of Tesuque.

Joseph D. Little, Santa Fe, NM, for amicus Pueblo of Pojoaque.

Peter C. Chestnut, Chestnut Law Offices, Albuquerque, NM, for amicus Pueblo of Acoma.

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

This case began in 1992 when plaintiff and appellant, the Apache Tribe of the Mescalero Reservation, a federally-recognized Indian tribe in New Mexico, filed an action seeking to compel the State of New Mexico to negotiate in good faith to achieve a compact permitting Class III (casino-type) gaming on the Mescalero Reservation. Eventually, in 1995, the Tribe and the State entered into a compact ("Compact") permitting such gaming, the validity of which is an issue in this case. The present appeal is from the district court's denial of the Tribe's motion to strike the State's Eleventh Amendment immunity defense, denial of the Tribe's motion to dismiss the State's counterclaim seeking to declare the Compact invalid, and grant of summary judgment to the State on its counterclaim. We affirm.

BACKGROUND

The Tribe's initial action in 1992 was filed pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 ("IGRA"), which gives district courts jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact." 25 U.S.C. § 2710(d)(7)(A)(i). The State argued that such an action was barred by the Tenth and Eleventh Amendments, and the district court agreed, dismissing the Tribe's action. On appeal to this court, we reversed, holding that the State may not assert Tenth or Eleventh Amendment immunity to an action under IGRA to compel a state to negotiate in good faith. Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422 (10th Cir.1994), vacated, 517 U.S. 1129, 116 S.Ct. 1410, 134 L.Ed.2d 537 (1996). On remand to the district court, the State filed an answer along with a counterclaim against the Tribe, seeking a declaration that the Compact was invalid. The State again argued it had Tenth and Eleventh Amendment immunity.

The Tribe then filed a motion to strike the State's Tenth and Eleventh Amendment defenses, as well as a Fed.R.Civ.P. 12(b)(1) motion to dismiss the State's counterclaim for lack of jurisdiction. The State moved for summary judgment on its counterclaim. Meanwhile, the United States Supreme Court issued its decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), in which it held that Congress lacked the authority to abrogate the states' Eleventh Amendment immunity by means of the Indian Commerce Clause, U.S. Const., Art. 1, § 8, cl. 3, pursuant to which IGRA was enacted, thereby effectively overruling our Ponca Tribe decision. Id. at ----, 116 S.Ct. at 1119. The Supreme Court did not address Tenth Amendment immunity. Id. at ---- n. 10, 116 S.Ct. at 1126 n. 10. Following its decision in Seminole, the Supreme Court vacated Ponca Tribe and remanded the case to us for reconsideration in light of Seminole. ¹

The district court then held a hearing on all outstanding motions, following which it entered an order: 1) denying the Tribe's motion to strike the State's Eleventh Amendment immunity defense; 2) granting the Tribe's motion to strike the State's Tenth Amendment immunity defense; and 3) denying the Tribe's motion to dismiss the State's counterclaim, and granting the State's motion for summary judgment on the issue of the Compact's validity, holding that the Compact was invalid. The Tribe appeals. During the pendency of this appeal, our court issued a decision, Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 45, 139 L.Ed.2d 11 (1997), in which we held that compacts entered into by various tribes, which were virtually identical to the Compact at issue in this case, were invalid and not "in effect" under IGRA because the Governor of New Mexico lacked the authority to sign the compacts on behalf of the State. Id. at 1559.

DISCUSSION

Following the Supreme Court's denial of certiorari in Pueblo of Santa Ana, we issued an order in this case, directing the parties to brief the following issues: 1) the effect of the decision in Pueblo of Santa Ana upon the issues presented in, and the disposition of, this appeal; 2) whether intervening changes in New Mexico state law affect any of the issues in this case, affect the necessity of our ruling on any of those issues, or require the court to consider certification of new state law issues to the New Mexico Supreme Court; and 3) whether this case should be stricken from the oral argument calendar and submitted on the briefs. We invited the parties to address any other issues they wished, and, of course, we have the parties' original briefs filed in this appeal. We have reviewed the briefs of the parties, as well as of amici curiae, the Pueblos of Santa Ana, Tesuque, Taos, Pojoaque and Acoma.

The Tribe argues that Pueblo of Santa Ana is not dispositive of this case "because there are still outstanding issues which were The State argues that, to the extent issues in this appeal depend upon the validity of the Compact, Pueblo of Santa Ana 's holding that identical compacts are invalid controls. The State further argues, however, that changes in New Mexico law--specifically, New Mexico has recently enacted legislation granting the Governor authority to enter into compacts with tribes, and the Tribe and the State have just entered into a new compact for Class III gaming ²--require certification to the New Mexico Supreme Court of three questions of state law:

                not considered by this Court in the Santa Ana case."   Appellant's Supp.  Br. at 2. First, the Tribe argues this case is distinguishable from Pueblo of Santa Ana because the United States is not a party to this case, as it was in Pueblo of Santa Ana.  Id. The Tribe accordingly argues we must consider whether the United States is an indispensable party in whose absence the State's counterclaim must be dismissed.  The Tribe also claims that the absence of the United States, against whom the Tribe lacks sovereign immunity, compels us to decide whether the Tribe's immunity has been abrogated by Congress.  Other issues the Tribe argues were not addressed by Pueblo of Santa Ana are whether the political question doctrine precludes us from considering this case and "whether Congress even vested the District Court with the jurisdiction to entertain the State's counterclaim."  Id. The Tribe also claims that there are "distinctions between the sovereign immunity of New Mexico and that of Florida as they relate to the applicability of Seminole."  Id. at 3. Finally, the Tribe argues that "substantial changes in New Mexico law" since our Pueblo of Santa Ana decision "suggest[s] that the Court should revisit [that] decision."  Id
                

1. Is the passage of H.B. 399 the valid exercise of authority granted to the New Mexico Legislature by the New Mexico Constitution?

2. If H.B. 399 is valid under the New Mexico Constitution, did the tribal resolution presented by the Mescalero Tribe to Governor Johnson authorize the Governor to enter into a compact with the Tribe?

3. If H.B. 399 is not valid under the New Mexico Constitution, can the defects in H.B. 399 be severed from H.B. 399?

Appellee's Supp. Br. at 9. The State's argument is that if the new compact into which the Tribe and State have recently entered is valid, the Tribe's claim relating to good faith negotiation in connection with previous compacts is moot.

The district court in this case held that: 1) the Ponca Tribe holding that IGRA does not violate the Tenth Amendment is the "law of the case" and the State's reliance on the Tenth Amendment as a defense must be stricken; 2) under Seminole the State has Eleventh Amendment immunity from the Tribe's good faith negotiation claim; 3) the State did not waive its Eleventh Amendment immunity by filing a counterclaim in this case; 4) it (the court) has jurisdiction under IGRA, 25 U.S.C. § 2710(d)(7)(A)(ii), to consider the State's counterclaim challenging the validity of the Compact; 5) the Tribe's sovereign immunity does not bar the court from

considering the State's counterclaim; 6) the political question doctrine does not prohibit the court from ruling on the State's counterclaim; and 7) the Compact is invalid because Governor Johnson lacked the authority to enter into the Compact on behalf of the State.

I. United States as Indispensable Party

The Tribe argues the United States and/or the Secretary of the Interior are indispensable parties, in whose absence the State's counterclaim seeking a declaration of Compact invalidity must be dismissed. The Tribe concedes that it did not raise this issue in the district court, but asserts that it can properly be raised anytime. We agree that the issue of indispensability can be raised at...