TITLE: Supporting the Pueblo of Pojoaque and asking the Secretary of the Interior Sally Jewell to uphold IGRA and the Secretarial Procedures
WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and
WHEREAS, Indian tribes are recognized by the U.S. Constitution as prior sovereigns, with inherent and treaty protected rights to self-government and self-determination; and
WHEREAS, Indian tribal governments turned to gaming in the late 1970’s as a means of providing the essential governmental revenue that was needed to care for their tribal citizens and to provide important services and infrastructure; and
WHEREAS, in 1987, the United States Supreme Court issued its decision in California v. Cabazon Band of Mission Indians, which recognized the sovereignty of Indian tribes and confirmed that they retained their inherent right to pursue gaming as a form of economic development wherever it was not criminally prohibited; and
WHEREAS, in 1988 Congress responded to the pressure from State governments regarding the decision in Cabazon and passed the Indian Gaming Regulatory Act (IGRA) to establish a federal regime for the regulation of gaming and to also provide States a voice in the regulation of tribal governmental gaming within their territorial limits; and
WHEREAS, IGRA upholds the longstanding federal policies of promoting self-determination for Indian tribes; and
WHEREAS, IGRA promotes independence and self-sufficiency for Indian tribes by encouraging economic development through gaming; and
WHEREAS, in 1996, the United States Supreme Court struck down IGRA’s waiver of State sovereign immunity in Seminole Tribe of Florida v. Florida, and undermined the intention of the Congress to place Indian tribes and States on equal footing in the negotiation of compacts; and
WHEREAS, the Secretary of the Interior responded to the Seminole decision and issued the regulations in 25 C.F.R. Part 291 to provide a remedy for tribes when a State negotiates in bad faith and uses its sovereign immunity from suit to prevent the tribe from implementing the remedy envisioned by the Congress and outlined in 25 U.S.C. § 2710(d)(7)(A)(i) of IGRA; and
WHEREAS, IGRA provides in § 2710(d)(7)(B)(iii) that a court “shall consider any demand by [a] State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith;” and
WHEREAS, the State of New Mexico raised its sovereign immunity in an attempt to force a form compact on the Pueblo which contains revenue sharing and other non-gaming provisions which the Pueblo has not requested; and
WHEREAS, a New Mexico federal district court judge has enjoined the Secretary from establishing Secretarial procedures for the Pueblo, absent a judicial determination of bad faith, which will affect the ability of tribes across Indian country to negotiate a compact; and
WHEREAS, this decision puts the State of New Mexico in an unassailable position and leaves the Pueblo of Pojoaque without meaningful remedies; and
WHEREAS, Congress intended to place States and Indian tribes on an equal footing during compact negotiations as co-equal sovereigns and to provide States with regulatory oversight of tribal governmental gaming, not economic control over the revenues generated; and
WHEREAS, this decision disregards the legislative history of IGRA, the intentions of Congress, the hard work of Indian tribes for many years to prevent amendment to IGRA even after the Seminole decision, and completely overturns the process envisioned by Congress in enacting IGRA; and
WHEREAS, the federal government in accordance with its trust responsibility should support tribes through any and all means in their efforts to resolve the inequities that arise from states that refuse to negotiate Class III gaming compacts including bringing bad faith claims on behalf of tribes; and
WHEREAS, NCAI adopted resolution TUL-05-018 “Support for Congress to Codify Secretarial Compacting Procedures” urging Congress to codify the authority of the Secretary of the Interior to issue Secretarial Procedures; and
WHEREAS, NCAI adopted resolution DEN-07-043 “Supporting the Federal Government’s Secretarial Procedures Regulation for the Proper Administration of the Indian Gaming Regulatory Act” calling upon the United States to take all necessary steps to uphold the Secretary’s authority; and
WHEREAS, NCAI adopted resolution RAP-10-036 “Supporting Secretarial Procedures in Lieu of Compact;” and
WHEREAS, the Federal District Court’s decision has far reaching implications for all of Indian country and the ability of Tribes to negotiate with States on a government to government basis.
NOW THEREFORE BE IT RESOLVED, that the NCAI calls upon the Secretary of the Interior, Sally Jewell, to file suit against the State of New Mexico as trustee for the Pueblo of Pojoaque, to allow a federal judge to rule on the Pueblo’s assertion of bad faith negotiations; and
BE IT FURTHER RESOLVED, that the NCAI calls upon the Secretary of the Interior to work cooperatively with the National Indian Gaming Commission to immediately reissue the regulations at 25 C.F.R Part 291 in their current form; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution.
CERTIFICATION
The foregoing resolution was adopted by the General Assembly at the 2014 Annual Session of the National Congress of American Indians, held at the Hyatt Regency Atlanta, October 26-31, 2014 in Atlanta, Georgia, with a quorum present.