Copyright © 2014 Albuquerque Journal
SANTA FE – Pojoaque Pueblo has asked the federal government to approve a new gambling compact that would remove New Mexico state government from any role in oversight or restricting operations of the pueblo’s casinos.
And the pueblo no longer would pay the state a share of its slot machine revenues, which the pueblo says now comes to about $5 million a year.
In addition, Pojoaque is proposing that the minimum age for gambling at its casinos be 18, not 21 as set under existing state-tribal gaming compacts.
Also gone would be state restrictions that ban serving alcohol in gambling areas; prohibit cashing payroll, Social Security or welfare checks at casinos; limit the number of gambling facilities; and set certain personal injury remedies for casino customers.
“The state believes they created Indian gaming,” Pojoaque Pueblo Gov. George Rivera said in an interview this week. “The state becomes a partner if there could be a working relationship. When there’s not a working relationship, Indian gaming doesn’t go away – the state just becomes less and less involved.”
Pojoaque now runs two casinos north of Santa Fe – its original Cities of Gold and the newer Buffalo Thunder Resort and Casino, which includes New Mexico’s biggest hotel.
“We have built a facility that is a huge investment, and the pueblo is not willing to give its hard-earned money away while the whole reason for gaming was to take care of our communities,” Rivera said.
The U.S. Department of the Interior has formally notified the state government offices of Gov. Susana Martinez and Attorney General Gary King that, on May 9, Pojoaque submitted its proposed gambling procedures that cut out the state.
The two offices have been given 60 days – until about Aug. 22 – to submit comments or alternative proposals.
The Martinez administration, locked in a long fight with Pojoaque over its existing state gambling compact, opposes the pueblo’s federal proposal, which the Journal obtained from a source outside state government.
“The terms requested by the Pueblo of Pojoaque are characteristic of its reckless and unreasonable approach to negotiations,” said Enrique Knell, spokesman for Gov. Martinez. “These terms raise serious questions about predatory practices, responsible gaming, and the safety of visitors to Buffalo Thunder and Cities of Gold.
“Pojoaque believes it can take advantage of the good will, hard work and cooperation of the other tribes, and at the same time seek unfair competitive advantages that would be devastating to neighboring pueblos. The governor will work to ensure that Pojoaque conducts gaming on a level playing field with other tribes in the state.”
A spokesman for Attorney General King said Wednesday that King has not had a chance to see the notice letter from the Interior Department or Pojoaque’s proposal to the feds and so isn’t in a position to say what the AG’s Office will do.
Republican Martinez and Democrat King face off for governor in the November general election. Pojoaque Pueblo and its related businesses have donated $15,200 to King’s gubernatorial campaign, including the primary and general election cycles.
Pojoaque is one of five tribes whose state gambling compacts expire after June 2015 – the others are Acoma Pueblo, the Navajo Nation and the Mescalero and Jicarilla Apache tribes, which remain in negotiations with the state. Nine other tribes have ongoing compacts.
Taking the federal route
In June, Pojoaque got the go-ahead to pursue a gambling compact through federal channels. The Interior Department notified the tribe it was eligible for a process under which the department’s secretary could step in and issue a compact.
Pojoaque went to the federal agency after its negotiations with the Martinez administration collapsed, with each side accusing the other of failing to negotiate in good faith.
The tribe became eligible for the Interior secretary’s intervention after it sued the state in federal court – alleging bad faith – and a judge threw the lawsuit out in March, citing the state’s sovereign immunity.
It won’t be easy for most other tribes to follow Pojoaque’s lead and seek compacts from the feds. The existing compacts with the nine tribes without 2015 expiration dates extend all the way to 2037.
Also, any other tribes would have to sue over their compacts and the state would again have to assert “sovereign immunity” as its defense. That leaves the state with options to avoid creating the situation that has allowed Pojoaque to take its case to the Interior Department.
In Pojoaque’s case, if the state responds to the Interior Department with an alternative proposal, a mediator would select one, with the Interior secretary having the final say.
A key issue in the stalemate between Pojoaque and the Martinez administration has been revenue sharing, the money that gambling tribes pay the state in return for the state’s limiting the number of racetrack casinos to six and capping other non-tribal gambling operations.
The tribe’s current revenue-sharing rate is 8 percent, and the state has proposed increasing it to as much as 10.5 percent under a new agreement, according to Pojoaque.
Rivera said that while the state is cutting corporate taxes, it wants to increase its take from tribal casinos, including by imposing revenue-sharing on promotional “free play” offered to gamblers. “Why are the tribes getting an increase in revenue sharing when everybody else gets a decrease?”
The state, he says, has “an anti-industry standard” when it comes to Indian gaming.
“I don’t think they would limit Wal-Mart or Allsup’s or any other corporation to two facilities per county,” Rivera added.
“Our proposal is that all the (gaming) industry restrictions come off,” he said.
‘Flat’ gambling market
Rivera said changes are needed to compete with gambling operations in other states at a time when the market is flat.
“The state is saturated with Indian and non-Indian gaming,” he added. “The growth is in bringing in (customers) from surrounding states.”
He’s said before that high-end gamblers go to Las Vegas, Nev., because “they can drink a beer at a slot machine.”
Pojoaque is not asking for any “exclusivity” protections limiting non-Indian gambling in New Mexico. The tribe has argued previously that exclusivity at this point is meaningless.
If Pojoaque is successful with its proposal to the Interior Department, it would be operating under standards different from those imposed on the other gambling tribes.