New Mexico has broken the record for more tribes with “deemed approved” compacts by the Bureau of Indian Affairs than any other state in the country.
If the U.S. Department of the Interior (Secretary) does not approve or disapprove a proposed compact within 45 days of its submission, under the Indian Gaming Regulatory Act (IGRA), the proposed compact is “considered to have been approved by the Secretary, but only to the extent the Compact is consistent with the provisions of IGRA.”
BIA Assistant Secretary Kevin Washburn started the trend in June, when he allowed five Class III tribal-state gaming compacts to take effect, followed by two more in July, two in August, and another three last week, reported Indianz.com. They are: the Navajo Nation, the Jicarilla Apache Nation, the Mescalero Apache Nation, Acoma Pueblo, Jemez Pueblo, the Isleta Pueblo, Taos Pueblo, Ohkay Owingeh, Laguna Pueblo, Tesuque Pueblo, Santa Clara Pueblo and Zuni Pueblo.
Soon, Nambe Pueblo may join them. The Pueblo has signed an updated agreement with the state, according to the Gaming Control Board.
Washburn let the first five gaming compacts take effect despite his concerns about revenue sharing agreements not benefitting the Jicarilla Apache Nation, Mescalero Apache Tribe, Navajo Nation, Pueblo of Acoma, and Pueblo of Jemez.
“We are troubled by the apparent increase in revenue sharing rates for three of the Tribes,” the BIA stated in a June 9, 2015 letter. “Our analysis leads us to conclude that it is a close question whether the 2015 Compacts provide a substantial economic benefit to these Tribes. Given the Tribes’ unified stance that they receive substantial economic benefit from the 2015 compact, however, we take no action on the 2015 Compacts within the 45-day time limit on this issue.”
The five compacts are identical. These tribes were previously operating casinos under their 2001 agreements. All five tribes contended they will benefit from the certainty that their existing gaming-related investments will continue uninterrupted for many years. Moreover, if the state permits any additional non-tribal gaming, the tribe’s obligation to make revenue sharing agreements will cease.
Jicarilla, for instance, meets the lower threshold for revenue sharing and, as a result, its payment to the State of New Mexico will decrease under the 2015 compacts. Revenue sharing amounts appear that they will increase for the Acoma, Mescalero and Navajo—but the revenue sharing agreements ensure substantial tribal exclusivity through 2037, the year the 2015 compacts expire, and at lower rates than those paid by the tribes operating under the 2007 compacts. (Just three tribes — Sandia Pueblo, San Felipe Pueblo and Santa Ana Pueblo — still operate under compacts inked in 2007; the agreements expire in 2037, just like the 2015 compacts.)
One tribe’s gaming rights hang in limbo: the Pojoaque Pueblo. Its compact with the state expired on June 30 due to the Pueblo and state’s inability to reach an agreement, resulting in a lawsuit, New Mexico v. U.S. Department of the Interior, et al., which is now pending in the U.S. Court of Appeals for the Tenth Circuit.