NMAGO 99-02.
Case Date | April 27, 1999 |
Court | New Mexico |
New Mexico Attorney General Opinions
1999.
NMAGO 99-02.
April 27, 1999
OPINION OF Opinion
No. 99-02
PATRICIA A.
MADRID Attorney General
BY: Elizabeth A.
Glenn Assistant Attorney General
TO:
The Honorable Manny M. Aragon
The Honorable Raymond G. SanchezCo-chairs,
Legislative Council New Mexico State Legislature State
Capitol Santa Fe, New Mexico 87501
QUESTIONS:(fn4)
1. What effect would arbitration under Section 7 of the
Tribal-State Class III Gaming Compact, NMSA 1978, Section 11-13-1 (1997)
("Section 7") have on the law as it exists, i.e., could the arbitrator change
or invalidate the regulatory fees set out in the Compact and the
statute?
2. Does the arbitration provided for in Section 7 extend to the
revenue-sharing agreement entered into between the state and a tribe? If so, is
an arbitration panel authorized to rule on whether an issue such as the
specified revenue-sharing amount violates federal law; would such a ruling be
binding on the state; and what review might the state seek of such a
ruling?
CONCLUSIONS:
1. An arbitration panel selected under the Compact could not
change or invalidate the regulatory fees specified in Section 4(E)(5) of the
Compact.
2. It is not clear that the revenue sharing agreement (codified
at NMSA 1978, § 11-13-2 (1997)) is covered by Section 7 of the Compact,
but if it is, the arbitration panel would not have authority to determine the
legal validity of the revenue-sharing amount. Judicial review of any attempt by
an arbitration panel to rule on the legal validity of either the regulatory
fees or the revenue-sharing amount may be possible in federal court.
FACTS:
Some tribes that have entered into Compacts with the state have
questioned the amount and validity of certain fees required to be paid to the
state under the Compact and related revenue-sharing agreement. Tribes have
sought to raise this question with an arbitration panel selected in accordance
with Section 7 of the Compact. This, in turn, has raised an issue regarding the
scope of the arbitrators' authority.
ANALYSIS:
1. Effect of Arbitration Panel's Decision on the Compact and
Statute.
In pertinent part, Section 7(A) of the Compact provides:
In the event either party believes that the other party has
failed to comply with or has otherwise breached any provision of this Compact,
such party may invoke the following procedure:
1. The party asserting noncompliance shall serve written notice
on the other party. The notice shall identify the specific Compact provision
believed to have been violated and shall specify the factual and legal basis
for the alleged noncompliance. The notice shall specifically identify the date,
time and nature of the alleged noncompliance. Representatives of the State and
Tribe shall thereafter meet within thirty (30) days in an effort to resolve the
dispute.
2. In the event an allegation by the complaining party is not
resolved to the satisfaction of such party within ninety (90) days after
service of the notice set forth in Paragraph A.1 of this section, the
complaining party may serve upon the other party a notice to cease conduct of
the particular game(s) or activities alleged by the complaining party to be in
noncompliance. Upon receipt of such notice, the responding party may elect to
stop the game(s) or activities specified in the notice or invoke arbitration
and continue the game(s) or activities pending the results of arbitration. The
responding...
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