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State Wins Casino Battle Against Pueblo of Pojoaque Tribe

By William Vogeler, Esq. | Last updated on

The Skirmish in Doubtful Canyon, which left 10 Apache dead on May 3, 1864, was the last Indian battle in what would become the history of New Mexico.

The Apaches attacked a company of California soldiers there, ending about two hours later when the last Indian fled. But more than 150 years later, the Indian wars are not really over in New Mexico.

Another skirmish has broken out between the state and the Pueblo of Pojoaque, which sued the state for interfering with its casinos. The tribe lost a battle before a federal appeals court in Pueblo of Pojoaque v. State of New Mexico.

War Not Over

The Pueblo, home to about 2,000 people, is north of Santa Fe. The tribe operates two casinos -- Buffalo Thunder Resort & Casino and the Cities of Gold Hotel & Casino.

In 2015, the Pueblo sued the state for refusing to issue a gaming compact under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721, ("IGRA.") The tribe said the state was trying to put it out of business.

During the litigation, the state withheld vendor licenses from anyone that provided services to the casinos. The tribe got a preliminary injunction against the state's action, but the trial court later dissolved it because the judge concluded federal law did not preempt the state's authority in the case.

The tribe appealed, and the U.S. Tenth Circuit Court of Appeals affirmed in a split decision.

Shutting Down Gaming

"If New Mexico's regulatory actions had the effect of shutting down gaming on Indian lands, then the State's conduct is little different than if the State had shut down the Indian gaming directly, which it indisputably cannot do," the majority said.

However, the court said the state did not act directly against the tribe and "any downstream consequences on the Pueblo stemming from the State's regulatory action at issue here are too attenuated..."

In dissent, Judge Robert Bacharach said the Pueblo alleged the state was targeting vendors in order to punish the Pueblo, resulting in major disruption to its gaming operations.

"I would conclude that IGRA preempts New Mexico's regulations regardless of whether the regulations affect the Pueblo directly or indirectly," he wrote. "The blow to the Pueblo is the same either way."

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