Statement of U.S. Attorney Damon P. Martinez on Gaming at Pueblo of Pojoaque
ALBUQUERQUE – U.S. Attorney Damon P. Martinez released the following statement on the expiration of the gaming compact between the Pueblo of Pojoaque and the State of New Mexico:
“The gaming compact between the Pueblo of Pojoaque and the State of New Mexico expires today, June 30, 2015. The inability of the Pueblo and the State to reach an agreement on terms for a new compact has resulted 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. The failure of the Pueblo and State to reach an agreement has also resulted in uncertainty as to what will happen to the Pueblo’s gaming facilities after today.
“I believe that the public interest is best served by maintaining the status quo while the appeal in the Tenth Circuit litigation is pending. I therefore have advised the Pueblo and the State that I will exercise my discretion not to bring an enforcement action against the Pueblo during the pendency of the appeal so long as the Pueblo continues to operate its gaming facilities in accord with the terms of its expiring compact to the extent feasible. The Pueblo has given its commitment to me that it will comply with this condition, and I have warned the Pueblo that any failure by the Pueblo to live up to this commitment during the pendency of the appeal may result in an enforcement action to shut down the Pueblo’s casino-style gambling operations. To ensure that I can meaningfully assess whether the Pueblo is complying with the terms of the expiring compact, the Pueblo has agreed to regularly provide me with detailed information that allows me to do so on a timely basis.
“Through the Tenth Circuit litigation, the State, the U.S. Department of the Interior and the Pueblo are each seeking to determine their respective rights and their authority to enter into lawful gaming compacts. I believe it is important to permit the parties to that litigation to receive the benefit of the Tenth Circuit’s ruling on the appeal, without the process being short-circuited by premature closure of the Pueblo’s casino gambling activities. My decision will (i) maintain the status quo to the extent feasible, (ii) protect the interests of all residents of the Pojoaque Valley, (iii) shield the other gaming tribes of New Mexico from unfair competitive disadvantage, and (iv) safeguard funds that would have gone to the State of New Mexico as revenue sharing had the current compact been extended.
“In making this decision, I am mindful of my responsibilities as the chief federal law enforcement official in New Mexico, which includes enforcement of federal Indian gaming laws. The Indian Gaming Regulatory Act, which is the principal law at issue, prohibits tribes from conducting casino-style gambling in the absence of a duly authorized compact. I recognize the effects that uncompacted gaming by the Pueblo could have on the State and on other tribes, both gaming and non-gaming. All other gaming tribes are making revenue sharing payments to the State, the size of which vary according to each tribe’s compact and the dollar amount of their ‘net win.’ Uncompacted gaming by Pojoaque Pueblo without continued revenue sharing to the State would put other gaming tribes at an unfair competitive disadvantage. On the other hand, I also recognize that premature cessation of Pojoaque Pueblo gaming could have detrimental impacts on state tourism, and on employment and services for the people of the Pojoaque Valley.
“Under the terms of the expiring compact, Pojoaque Pueblo was obliged to pay eight percent of its ‘net win’ as revenue sharing to the State of New Mexico. The 2015 form compact approved by the New Mexico legislature that has been accepted by several other gaming tribes provides for this rate to rise as high as ten percent in 2018. Representatives of the State have advised me that they cannot accept payment of revenue sharing funds from Pojoaque Pueblo on gaming proceeds obtained after June 30 in the absence of a valid compact. In keeping with my decision to maintain the status quo during the pendency of the appeal to the extent feasible, the competitive disadvantage at which other gaming tribes would be placed if Pojoaque Pueblo were to conduct casino-style gaming without making revenue sharing payments will be mitigated by the Pueblo’s commitment to set aside the funds that would have gone to revenue sharing for eventual distribution pursuant to a negotiated compact or other appropriate court action after resolution of the appeal. The funds will be deposited into an account overseen by an independent trustee. Here too, the Pueblo has committed to regularly providing me with detailed information that will allow me to verify that the Pueblo is complying with its promise to safeguard the revenue sharing funds that would have gone to the State.
“Among the safeguards that were written into the expiring compact between the Pueblo and the State were requirements that the Pueblo maintain a tribal gaming agency to provide for the physical safety of patrons and of personnel of gaming enterprises; to provide for protection of property of patrons and the gaming enterprise from illegal activity; and to detain persons who may be involved in illegal acts for the purpose of notifying law enforcement authorities. The Pueblo has committed to continued compliance with these terms during the pendency of the Tenth Circuit appeal. Likewise, the Pueblo has committed to continued compliance with the other terms of the expiring compact, including but not limited to prohibition on casino-style gambling by persons under the age of 21, and prohibition on employment of gaming employees who are under the age of 21 or who are not licensed in accordance with federal and tribal law. The Pueblo has also committed to continued compliance with the terms of the expiring compact pertaining to fair gaming practices, including but not limited to posting the odds of a winning outcome on each machine; ensuring minimum payouts of at least 80 percent; maintaining current limitations on alcohol sales; and prohibiting acceptance of IOUs from patrons.
“I have advised the Pueblo that it is up to me to determine whether or not the Pueblo has complied with its commitments, and that I reserve the right to seek closure of the Pueblo’s casino gambling operations in the event of any noncompliance. Moreover, my decision not to bring an immediate enforcement action upon expiration of Pojoaque Pueblo’s current compact only extends to the limited period of time until the Tenth Circuit Court of Appeals rules on the pending litigation.”