Compacts | Litigation

Fort Silll Apache Tribe continues push for casino in New Mexico

Monday, April 20, 2015

The Fort Sill Apache Reservation in southern New Mexico. Photo from Facebook

The Fort Sill Apache Tribe is asking the New Mexico Supreme Court to reconsider its decision not to force the state to enter into Class III gaming compact negotiations.

The tribe has a reservation in the southern part of the state. But Gov. Susana Martinez (R) won't negotiate because the land has not been deemed eligible for gaming.

The Supreme Court, however, declined to issue an order to force Martinez to come to the table. The tribe is hoping to revisit the issue, noting that a former governor had wanted to negotiate a compact back in 2001.

New Mexico in Focus: Ft. Sill Gaming Compact

"We are a New Mexico tribe, Chairman Jeff Haozous said on New Mexico in Focus on April 3. "That is is our reservation and this is our homeland."

The Indian Gaming Regulatory Act requires gaming to occur on "Indian lands" over which a tribe exercises jurisdiction. There is no requirement, however, that a tribe must have eligible "Indian lands" before negotiating a compact.

Governors in other states have negotiated compacts with tribes for sites that are not yet considered "Indian lands." A notable case from Oregon led the Bush administration to adopt a questionable policy that claimed IGRA contained a requirement of the type being advanced by Martinez.

The policy was implemented without tribal consultation or public comment. It was implicitly repealed by the Obama administration in 2011, when the Bureau of Indian Affairs allowed a compact between the Confederated Tribes of the Warm Springs Reservation and the state of Oregon to go into effect for a site that has not been placed in trust.

Even for tribes with confirmed "Indian lands," compacts are not required to contain site-specific language. But Martinez negotiated a new Class III compact that contains an unusually lengthy provision that requires signatory tribes to declare that they will not use certain categories of newly acquired lands for gaming without negotiating an entirely separate agreement.

The new compact is now being reviewed by the BIA. But Haozous said he didn't even know about the agreement until he read about it in the news earlier this year.

"In fact, if there were tribes that were negotiating, we weren't invited," Haozous said on the program.

The tribe believes the language in the compact prevents them from negotiating in a fair manner. The provision regarding newly acquired lands refers to Section 20 of IGRA and reads:

The Tribe has informed the State that it does not intend to conduct Class III Gaming on Indian Lands that are eligible for gaming pursuant to 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii). If, in the future, the Tribe desires to conduct Class III Gaming on Indian Lands eligible for gaming pursuant to 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii), the Tribe intends to negotiate a separate compact with the State to address the unique circumstances and conditions associated with such lands. The Tribe acknowledges and agrees that it has not addressed those circumstances and conditions in the negotiations leading up to this Compact and that there are federal authorizations required to determine eligibility to game on those lands. For those reasons, the Tribe agrees that the execution of this Compact is not evidence of and cannot be used to support a determination that any land located in the State is eligible for gaming pursuant to the 25 U.S.C. §§ 2719 (a)(2)(B), (b)(1)(A), (b)(1)(B)(ii) or (b)(1)(B)(iii).

Get the Story:
Fort Sill Apaches cite former governor in casino fight vs. Martinez (The Santa Fe New Mexican 4/18)

NIGC Indian Land Determinations:
May 19, 2008 | April 30, 2009