Nation v. Dalley

• Decision Date: 03 August 2016
• Docket Number: Case. No.15-cv-00799
• Parties: NAVAJO NATION and NORTHERN EDGE NAVAJO CASINO, Plaintiffs, v. The Honorable BRADFORD J. DALLEY, District Judge, Eleventh Judicial District, New Mexico, in his Official Capacity; HAROLD McNEAL; and MICHELLE McNEAL, Defendants.
• Court: U.S. District Court — District of New Mexico

NAVAJO NATION and NORTHERN EDGENAVAJO CASINO, Plaintiffs, v. The Honorable BRADFORD J. DALLEY,District Judge, Eleventh Judicial District, NewMexico, in his Official Capacity; HAROLDMcNEAL; and MICHELLE McNEAL, Defendants.

Case. No.15-cv-00799

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

August 3, 2016

Appearances:

For Plaintiffs Navajo Nation and Northern

Edge Navajo Casino:

PATRICK THOMAS MASON

Mason & Isaacson, PA

P.O. Box 1772

Gallup, NM 87301

For Defendant Bradford Dalley:

HECTOR BALDERAS

Attorney General for the State of New Mexico

Office of the Attorney General

P.O. Box 1508

Santa Fe, NM 87504-1508

By: PEGGY (MARGARET) ALISON

DUGGAN

Assistant Attorney General

Civil Litigation Division

P.O. Box 1508

Santa Fe, NM 87504-1508

505-827-6024

For Defendants Harold McNeal and Michelle

McNeal:

DANIEL M. ROSENFELT

LINDA J. RIOS

Rios Law Firm

P.O. Box 3398

Albuquerque, NM 87110

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Navajo Nation and Northern Edge Navajo Casino's (collectively "Plaintiffs'") motion for summary judgment and a declaration by this Court that "the Indian Gaming Regulatory Act . . . does not permit the shifting of jurisdiction from tribal courts to state courts in personal injury lawsuits against tribal enterprises" [Doc. 12]. Defendant Bradford Dalley ("Judge Dalley") and Harold and Michelle McNeal (the "McNeals") (collectively "Defendants") filed separate oppositions to Plaintiffs' motion [Docs. 13, 17-18]. Plaintiffs timely replied in support of their motion [Doc. 19].

The Court, having considered the motions, briefs and relevant law, and being otherwise fully informed, finds that Plaintiffs' Motion will be DENIED. Because the facts of this case are not in dispute and there are no legal issues remaining to be resolved, this matter is hereby DISMISSED.

BACKGROUND

This case comes before the Court following a routine slip-and-fall lawsuit argued before the Honorable Bradford J. Dalley in New Mexico District Court. Although the causes of action in this lawsuit are relatively mundane, the jurisdictional issues presented to this Court are not. In the tribal-state gaming compact between the Navajo Nation and the State of New Mexico ("Tribal-State Compact"), Doc. 12-1, the Navajo Nation and the State of New Mexico agreed that tort actions related to Indian gaming that arose on Navajo tribal land could be adjudicated in New Mexico district court. In this declaratory judgment action, Plaintiffs have asked this Court to state that the Navajo Nation lacked sufficient authority to grant New Mexico district courts jurisdiction over personal injury actions arising in gaming facilities in Indian country when signing the Tribal-State Compact. The Honorable Bradford J. Dalley, the New Mexico DistrictCourt Judge whom presides over the slip-and-fall action at issue, in combination with the plaintiffs in that action, Harold and Michelle McNeal, are the Defendants in this case. They assert, with the assistance of the New Mexico Attorney General, that the Navajo Nation did have sufficient authority to grant the State of New Mexico jurisdiction over the slip-and-fall at issue here because the Navajo Nation has both the inherent authority as a sovereign nation to grant New Mexico jurisdiction and because Congress has granted the Navajo Nation authority under the Indian Gaming Regulatory Act ("IGRA") to negotiate the Tribal-State Compact.

A brief summary of the convoluted history of Indian gaming in New Mexico will help explain why, paradoxically, the Navajo Nation is seeking a declaration by this Court against its own authority to enter into Section 8 of the Tribal-State Compact, while the State of New Mexico is attempting to affirm the sovereign authority of the Navajo Nation.

I. Indian Gaming Before IGRA¹

Large-scale commercial Indian gaming is a creature of the 20th century. By the late 1970s, "a few tribes, and at least one individual Indian, had [] begun to engage in certain forms of gaming, primarily bingo." Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 ARIZ. ST. L.J. 99, 108 (2010) (hereinafter "Ducheneaux"); NEIL JESSUP NEWTON & ROBERT ANDERSON, ET AL, COHEN'S HANDBOOK OFFEDERAL INDIAN LAW § 12.01 (LexisNexis 2012) (hereinafter "COHEN") ("Indian gaming began to develop as a source for commercial revenue for tribes in the 1970s, primarily as high stakes bingo operations."). Because these Indian gaming activities "were not conducted under state licensure and were often in technical violation of other state regulatory laws, state officials began to challenge the legality of these activities in federal and state courts." Ducheneaux at 108. As a result of the various regulatory actions against Indian tribes initiated by state officials in the 70s and 80s, a series of state and federal precedents began to develop regarding the scope of the various Indian Tribes'² ability to run gaming facilities on Tribal lands. E.g., Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir. 1981); Barona Grp. of Capitan Grande Band of Mission Indians, San Diego Cty., Cal. v. Duffy, 694 F.2d 1185 (9th Cir. 1982). The cumulative result of this precedent was a determination by federal courts that states "generally lack[ed civil] regulatory authority over Indian people on Indian reservations." COHEN at § 12.01.

According to Franklin Ducheneaux,³ the primary drafter of the Indian Gaming Regulatory Act:

The state of the law, prior to the enactment of IGRA, was clear. Where the laws of a state prohibited gambling for all persons as a matter of criminal law, tribes within that state could not engage in, or license and regulate, gambling. This was because federal law . . . made the state's criminal law applicable in Indian country. Conversely, where state law permitted gambling and regulated it under civil laws, tribes within that state could engage in, or license and regulate, gambling free of state control. Again, this was because state civil/regulatory law is not applicable [on tribal land].

Ducheneaux at 110. Restated, by the mid-1980s, federal courts had determined that, based on existing federal law, states that allowed gambling could not prohibit Indian gaming, and, within the borders of those states, state regulations such as licensing requirements would not apply to Indian gaming facilities due to federal preemption. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 217 (1987) (affirming previous lower-court decisions); COHEN at § 12.01 ("the state's laws [applying civil regulations to Indian gaming] were preempted, because the state had not shown a sufficient interest to overcome the tribal and federal interests at stake in allowing tribal gaming to continue free of state regulation, in light of the state's authorization and encouragement of gambling in many forms").

Many Tribes recognized the potential revenue that could be generated by Indian gaming following these federal court decisions and "tribes across the country began to establish gaming enterprises." Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 47 (1997) (hereinafter "Tsosie"); COHEN at § 12.01 (stating that as a result of favorable federal precedent on the issue "Indian tribes across the country began developing high stakes bingo and other gaming operations in the late 1970s and 1980s"); see Indian Gambling Control Act: Hearing on H.R. 4566 Before the House Committee on Interior and Insular Affairs, 98th Cong. 59-65 (1984) (statement of John Fritz, Deputy Assistant Secretary for Indian Affairs) (describing the growth in Indian gaming). The decisions by various Tribes to invest in Indian gaming was particularly important given the drastic cuts in social programs and federal assistance to the Tribes enacted by the federal government in the 1980s. Ducheneaux at 110-12; see Tsosie at 43. In the Navajo Nation, after the cuts in federal assistance in the 80s, "more than 45 percent of families live[d] inpoverty." Naomi Mezey, NOTE: The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming, 48 STAN. L. REV. 711, 714 (1996) (hereinafter "Mezey").⁴

Although Indian gaming seemed to many to be a solution to the sudden withdrawal of federal programs assisting the Tribes in the 1980s, states "resent[ed]" the fact that they could not regulate Indian gaming under existing precedent, particularly "the fact that they lack[ed] the authority to tax reservation income[.]" Nancy Thorington, Civil and Criminal Jurisdiction over Matters Arising in Indian Country: A Roadmap for Improving Interaction Among Tribal, State and Federal Governments, 31 MCGEORGE L. REV. 973, 1019 (2000); see Tsosie at 44 (summarizing arguments against Indian gaming in Arizona). As a result of the various state pressures against Indian gaming, states began to push for federal regulation of Indian gaming, including aggressively litigating in federal court to limit Indian gaming and lobbying Congress to pass a federal statute regulating Indian gaming. Georgetown University Law Professor Naomi Mezey has described the conditions giving rise to IGRA as "a sovereignty battle in the courts between states and tribes. As states sought to prohibit tribal gaming as inconsistent with state law, the battle focused on the scope of American Indians' right to game." Mezey at 718, 735 ("gaming was simply the 'right' over which states and tribes fought that particular sovereignty battle"). Because of the existing federal precedent on the matter that provided relatively expansive interpretations of Tribal sovereignty vis-à-vis the states, "[b]efore IGRA was enacted, states played a very limited role in Indian gaming." COHEN at § 12.02.

To summarize, as Tribes across the country began opening Indian gaming facilities, states brought lawsuits in federal court to limit Indian gaming. However, federal courts generally ruled in favor of the...