Last year the Pueblo of Pojoaque in New Mexico refused to sign the state’s new gaming compact, which raised the gaming-revenue percentage that tribes pay to the state from 8 to 10 percent. Other New Mexico pueblos signed the new arrangement.
Although Pojoaque’s former compact expired June 30, 2015, the tribe continues to operate its Cities of Gold and Buffalo Thunder casinos and puts its 8 percent for taxes into an escrow account. The U.S. Department of Justice agreed it would not prosecute the tribe, pending the outcome of ongoing litigation.
The Pojoaques are involved in two lawsuits. In the first case, the tribe sued New Mexico in federal district court, alleging the state failed to negotiate in good faith. It asked the court find the state in contempt for not renewing the operating licenses of vendors that deal with the Pojoaques. The state has indeed been found to delay action on license renewals for vendors who work with the Pojoaques. Federal District Judge James O. Browning last December warned the state gaming board that it was “playing a little bit with fire” and that, “if you continue down this path, the pueblo may be able to show that your deferrals have become threats.”
But Browning on April 21 did not find the state in contempt. He wrote, “These gaming vendors are a salty bunch, and not easily scared off from doing business. Moreover, the State of New Mexico has little economic self-interest in ruining the business of all vendors by eventually penalizing them down the road, so the threat, if any, appears not to exist now or in the future.”
In the second case, after the Pojoaques declined to sign the state’s proposed gaming compact, the tribe asked the U.S. Secretary of the Interior to approve a compact; this action is allowed by Congress under the Indian Gaming Regulatory Act if a state is not negotiating in good faith. However, New Mexico challenged that IGRA provision, and federal district court Judge James A. Parker declared in October 2014 the provision was illegal.
Parker wrote, “This Court sympathizes with the Pueblo of Pojoaque’s situation. New Mexico’s ability to prevent federal court oversight of its behavior during negotiations has essentially left New Mexico in an unassailable position in a process that Congress clearly intended to take place between ‘equal’ sovereigns.” The tribe has appealed that decision.
Michael Lonergan, press secretary for Governor Susana Martinez, said, “The state has taken great care to protect the interests of its communities and industry in good faith. The fact is, Pojoaque Pueblo is operating its casinos in violation of federal law and taking advantage of the smaller gaming tribes that have negotiated in good faith and managed their facilities responsibly.”
Attorney Richard Hughes, representing the Santa Clara Pueblo, which operates a casino less than 15 miles from Pojoaque, said, “The version of a compact they proposed to the Secretary would give Pojoaque an enormous competitive advantage over every other gaming tribe. It eliminates all revenue sharing, eliminates any state oversight and eliminates virtually every restriction on the gaming operation that this current compact contains, including no alcohol on the floor and other provisions like that, that everyone else has learned to live with.”
Pojoaque Pueblo Governor Joseph Talachy said since its compact began in 2001, the tribe has paid the state $5-$6 million a year at the 8 percent tax rate. The increase to 10 percent would cost the tribe an additional $1 million annually, Talachy said, adding he’d have to fire employees and cut social programs.
