Sipp v. Buffalo Thunder, Inc.

Opinion

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: January 16, 2024 4 NO. S-1-SC-39169

5 JEREMIAH SIPP a/k/a SAGE RADER, 6 and HELLA RADER,

7 Plaintiffs-Respondents, 8 v.

9 BUFFALO THUNDER, INC.; BUFFALO 10 THUNDER DEVELOPMENT AUTHORITY; 11 PUEBLO OF POJOAQUE; PUEBLO OF 12 POJOAQUE GAMING COMMISSION; and 13 POJOAQUE GAMING, INC., 14 Defendants-Petitioners.

15 ORIGINAL PROCEEDING ON CERTIORARI 16 David K. Thomson, District Judge

17 Rey-Bear McLaughlin, LLP 18 Daniel I.S.J. Rey-Bear 19 Timothy H. McLaughlin 20 Spokane, WA

21 for Petitioners

22 Valdez and White Law Firm, LLC 23 Timothy L. White 24 Albuquerque, NM

25 for Respondents 1 Rothstein Donatelli, LLP 2 Richard W. Hughes 3 Donna M. Connolly 4 Santa Fe, NM

5 for Amici Curiae Pueblos of Santa Ana and Santa Clara

6 Chestnut Law Offices, P.A. 7 Ann Berkley Rodgers 8 Albuquerque, NM 9 for Amicus Curiae Pueblo of Acoma

10 VanAmberg, Rogers, Yepa, Abeita, Gomez & Wilkinson, LLP 11 C. Bryant Rogers 12 David T. Gomez 13 Santa Fe, NM

14 for Amicus Curiae Taos Pueblo

15 Pueblo of Laguna 16 James M. Burson 17 Laguna, NM

18 for Amicus Curiae Pueblo of Laguna

19 Pueblo of Sandia 20 Steffani A. Cochran 21 Bernalillo, NM 22 for Amicus Curiae Pueblo of Sandia

23 Frye & Kelly, P.C. 24 Paul E. Frye 25 Albuquerque, NM 26 for Amicus Curiae Ohkay Owingeh 1 Sonosky, Chambers, Sachse, Mielke & Brownell, LLP 2 David C. Mielke 3 Albuquerque, NM 4 for Amici Curiae Pueblo of Isleta and San Felipe Enterprises

5 Laguna Development Corporation 6 Leander Bergen 7 Alicia Sanasac 8 Albuquerque, NM 9 for Amicus Curiae Laguna Development Corporation

10 University of New Mexico School of Law 11 Michael B. Browde 12 David J. Stout 13 Albuquerque, NM 14 for Amicus Curiae New Mexico Trial Lawyers Association 1 OPINION 2 BACON, Chief Justice. 3 {1} The instant case requires us to determine whether the jurisdiction shifting 4 from tribal court to state court authorized under Section 8(A) (“Policy Concerning 5 Protection of Visitors”) of New Mexico’s Tribal-State Class III Gaming Compact 6 (the Compact) 1 was terminated under the Compact’s own terms by either Pueblo of 7 Santa Ana v. Nash, 972 F. Supp. 2d 1254 (D.N.M. 2013), appeal dismissed, 10th 8 Cir. (13-2182 & 13-2191) (2014), or Navajo Nation v. Dalley, 896 F.3d 1196 (10th 9 Cir. 2018), cert. denied sub nom. McNeal v. Navajo Nation, 139 S. Ct. 1600 (2019). 10 The relevant terms of Section 8(A) provide that

11 [f]or purposes of this Section, any such claim [for bodily injury or 12 property damage] may be brought in state district court, including 13 claims arising on tribal land, unless it is finally determined by a state or 14 federal court that IGRA does not permit the shifting of jurisdiction over 15 visitors’ personal injury suits to state court.

16 (Emphasis added.)

1

The Tribal-State Class III Gaming Compact at issue in this case was signed by the Pueblo of Pojoaque in 2005 and is contained in the case record. The standard 2001, 2007, and 2015 compact language as approved by the Legislature is available at NMSA 1978, Ch. 11, Art. 13, Appx. (2023). See also N.M. Gaming Control Board, Tribal Compacts, https://www.gcb.nm.gov/gaming/tribal/tribal-compacts/ (last visited Dec. 29, 2023).

1 {2} Pueblo of Pojoaque and several Pueblo-owned entities (Petitioners) assert that 2 both Nash and Dalley terminated the jurisdiction shifting in Section 8(A) as each 3 case constitutes a “final[] determin[ation] by a state or federal court” that such 4 jurisdiction shifting is not permitted under the Indian Gaming Regulatory Act 5 (IGRA), 25 U.S.C. §§ 2701-2721. Accordingly, Petitioners argue for reversal of the 6 Court of Appeals’ opinion, which reversed the district court’s grant of Petitioners’ 7 motion to dismiss for lack of subject matter jurisdiction. Jeremiah Sipp and Hella 8 Rader (Respondents) argue for affirmance, asserting that the relevant jurisdiction 9 shifting under Section 8(A) was not terminated by Nash or Dalley and thus the Court 10 of Appeals’ remand of their personal-injury tort claims to the district court for further 11 proceedings was proper. 12 {3} We reverse, holding under contract law that jurisdiction shifting under Section 13 8(A) of the Compact was terminated by Nash. We therefore do not reach the 14 secondary issue of whether state jurisdiction over such claims is permissible under 15 IGRA in light of Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014). 16 I. FACTUAL AND PROCEDURAL BACKGROUND 17 {4} IGRA creates the framework for states and Indian tribes to cooperate in 18 regulating on-reservation tribal gaming. Under IGRA, a tribal-state gaming compact 19 is required for an Indian tribe to have a Class III gaming facility, and the statute

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1 “prescribes the matters that are permissible subjects of gaming-compact negotiations 2 between tribes and states.” Mendoza v. Isleta Resort & Casino, 2020-NMSC-006, ¶ 3 14, 460 P.3d 467. In 2005 and again in 2017, the Pueblo of Pojoaque and the State 4 of New Mexico entered into the Compact. Section 8(A) of the Compact provides 5 that visitors to Indian casinos may bring their bodily injury and property damage 6 claims against tribal entities in state court unless a state or federal court finally 7 determines that IGRA does not permit the shifting of jurisdiction over those claims 8 to state court. This language terminating a visitor’s option to choose state court 9 jurisdiction is the subject of the instant dispute. 10 {5} Respondents filed a complaint for damages in state district court against 11 Petitioners Buffalo Thunder, Inc., Buffalo Thunder Development Authority, the 12 Pueblo of Pojoaque, the Pueblo of Pojoaque Gaming Commission, and Pojoaque 13 Gaming, Inc. The complaint alleged that in the course of his employment for Dial 14 Electric, Respondent Sipp was in the receiving area of the Buffalo Thunder casino 15 when his head struck a large electric garage-type door which was unexpectedly and 16 suddenly lowered by a casino employee. The complaint further alleged that 17 Petitioners’ negligence directly resulted in Respondent Sipp being “rendered 18 unconscious, causing him severe injuries, including but not limited to severe head

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1 and spinal injuries.” Respondent’s claims for damages included related medical 2 costs and Respondent Hella Rader’s loss of consortium. 3 {6} Following a hearing, the district court granted Petitioners’ motion to dismiss 4 for lack of subject matter jurisdiction. The district court concluded that Respondents’ 5 claims did not fall within Section 8(A), and that “[t]herefore, [Respondents] ha[d] 6 not established an express abrogation or waiver of [Petitioners’] sovereign immunity 7 as required to establish subject matter jurisdiction” in state court. Respondents 8 timely appealed. 9 {7} In the Court of Appeals, Respondents argued that the district court erred in 10 granting Petitioners’ motion to dismiss, asserting that Section 8(A) of the Compact 11 “expressly waives sovereign immunity and provides for state court jurisdiction over 12 Plaintiffs’ claims.” Sipp v. Buffalo Thunder, Inc., 2022-NMCA-015, ¶ 6, 505 P.3d 13 897. Petitioners’ counterarguments included that jurisdiction shifting under Section 14 8(A) had been terminated by both Nash and Dalley. Id. ¶ 7. 15 {8} The Court of Appeals held that Respondents sufficiently pleaded claims that 16 fall under Section 8(A)’s waiver of sovereign immunity. Id. The Court further 17 concluded that, “[b]ecause both Nash and Dalley explicitly restricted their holdings 18 to their case-specific facts, and both cases left open the possibility that IGRA permits 19 jurisdiction shifting for tort claims under different circumstances,” neither federal

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1 case triggered the “termination clause” at the end of Section 8(A). Id. ¶ 14; see id. ¶ 9 2 (quoting Section 8(A)’s termination clause as “unless it is finally determined by a 3 state or federal court that IGRA does not permit the shifting of jurisdiction over 4 visitors’ personal injury suits to state court”). Accordingly, the Court of Appeals 5 concluded that “the district court in this case was not stripped of subject matter 6 jurisdiction on these grounds.” Id. ¶ 14. In addition, the Court of Appeals rejected 7 Petitioners’ argument that Bay Mills, 572 U.S. 782, directs a different result, 8 concluding that “the [Bay Mills] Court did not pass upon the question addressed by 9 Dalley and Nash . . . [, and c]onsequently, Bay Mills is not dispositive of the question 10 before us.” 2022-NMCA-015, ¶ 15. Under these considerations, the Court of 11 Appeals remanded to the district court for further proceedings. Id. ¶¶ 14, 27. 12 Petitioners timely petitioned this Court for a writ of certiorari. 13 {9} This appeal presents two questions: first, “Was the termination clause in the 14 tort-claims provision of the [Compact] triggered once [Nash] and then [Dalley] each 15 finally determined that IGRA does not permit shifting jurisdiction to state court over 16 casino visitors’ tort claims?”; second, “Does the holding in [Bay Mills] that ‘class 17 III gaming activity’ throughout [IGRA] unambiguously means only activity 18 ‘involved in playing class III games’ ‘in the poker hall’ and not also ‘off-site’ 19 operations, substantially limit the decision in Doe v. Santa Clara Pueblo, 2007-

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1 NMSC-008, 141 N.M. 269, 154 P.3d 644, that IGRA authorizes state jurisdiction 2 over casino visitor tort claims, to only claims directly related to such activity?” 3 {10} Following oral argument, we ordered the parties to brief what effect, if any, 4 the following cases have on the questions before the Court: C.R. Anthony Co. v. 5 Loretto Mall Partners, 1991-NMSC-070, 112 N.M. 504, 817 P.2d 238; Mark V, Inc. 6 v. Mellekas, 1993-NMSC-001, 114 N.M. 778, 845 P.2d 1232; and ConocoPhillips 7 Co. v. Lyons, 2013-NMSC-009, 299 P.3d 844. In our order, we cited Mendoza for 8 the proposition that “‘Gaming compacts are contracts between the two parties of the 9 State and a Tribe, and we treat them as such.’” Order, Sipp v. Buffalo Thunder, Inc., 10 S-1-SC-39169 (N.M. Apr. 28, 2023) (text only) 2 (quoting Mendoza, 2020-NMSC- 11 006, ¶ 28). 12 II. DISCUSSION 13 A. Standard of Review 14 {11} “In reviewing an appeal from an order granting or denying a motion to dismiss 15 for lack of jurisdiction, the determination of whether jurisdiction exists is a question

2

The “text only” parenthetical as used herein indicates the omission of all of the following—internal quotation marks, ellipses, and brackets—that are present in the quoted source, leaving the quoted text itself otherwise unchanged.

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1 of law which an appellate court reviews de novo.” Gallegos v. Pueblo of Tesuque, 2 2002-NMSC-012, ¶ 6, 132 N.M. 207, 46 P.3d 668.

3 B. Both Nash and Dalley Qualify Under Section 8(A) of the Compact to 4 Terminate Jurisdiction Shifting to State Court of Relevant Claims for 5 Bodily Injury or Property Damage

6 {12} We first address whether either Nash or Dalley triggered the termination 7 clause in Section 8(A) of the Compact, thereby terminating the Tribe’s limited 8 waiver of sovereignty expressed in Section 8(A). As the parties agree, state 9 jurisdiction in the instant case relies on this limited waiver. Accordingly, if either 10 Nash or Dalley triggered the termination clause, then jurisdiction shifting of claims 11 to state court such as Respondents’ ended under the Compact’s own terms in Section 12 8(A). 13 {13} Petitioners, citing New Mexico caselaw and secondary sources, first apply 14 contract law to characterize the termination clause in Section 8(A) as “provid[ing] 15 for what . . . is now technically called an event that terminates a duty, under which 16 an event agreed on by the parties discharges a party’s contractual obligation.” 17 (Emphasis added.) Petitioners implicitly argue that both Nash and Dalley constitute 18 that triggering event provided in Section 8(A), thereby terminating the Tribe’s duty 19 to waive its immunity from suit. Petitioners assert that both federal cases “‘finally 20 determined’ the relevant issue under the Gaming Compact’s termination clause

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1 because they are both final court decisions.” Petitioners quote Kersey v. Hatch for 2 the proposition that “a case is finalized when a judgment of conviction has been 3 rendered, the availability of appeal exhausted, and the time for filing a petition for 4 certiorari elapsed or a petition for certiorari finally denied.” 2010-NMSC-020, ¶ 20, 5 148 N.M. 381, 237 P.3d 683 (text only) (citation omitted). Petitioners also assert that 6 the finality of the decisions in Nash and Dalley is not rendered infirm by the 7 “irrelevant” qualifiers in those cases on which the Court of Appeals relied for its 8 contrary holding. 9 {14} Respondents assert that neither Nash nor Dalley triggered the termination 10 clause because both cases “are inapposite, incorrectly decided, and not binding.” 11 Respondents argue that the Court of Appeals correctly interpreted the holdings of 12 Nash and Dalley as not terminating Petitioners’ “agreement under the compact,” and 13 argue as well that “a proper review of [both] cases shows that they are just wrong” 14 on the merits. 15 {15} As discussed, we treat gaming compacts as contracts between the State and 16 the Tribe. Mendoza, 2020-NMSC-006, ¶ 28; see Gallegos, 2002-NMSC-012, ¶ 30 17 (“Tribal-state gaming compacts are agreements, not legislation, and are interpreted 18 as contracts.” (internal quotation marks and citation omitted)). “[W]e will not ignore 19 the clear language of the Compact, nor can we relieve the parties to the Compact

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1 from their obligations thereunder.” Doe, 2007-NMSC-008, ¶ 15. “Contract 2 interpretation is a matter of law that we review de novo.” Rivera v. Am. Gen. Fin. 3 Servs., 2011-NMSC-033, ¶ 27, 150 N.M. 398, 259 P.3d 803. In Lyons, we said:

4 The purpose, meaning and intent of the parties to a contract is to be 5 deduced from the language employed by them; and where such 6 language is not ambiguous, it is conclusive. . . . If a court concludes that 7 there is no ambiguity, the words of the contract are to be given their 8 ordinary and usual meaning. When interpreting an unambiguous 9 contract, a court is limited to interpreting the contract which the parties 10 made for themselves as a court may not alter or make a new agreement 11 for the parties.

12 2013-NMSC-009, ¶ 23 (brackets, internal quotation marks, and citations omitted). 13 {16} We begin our analysis by examining the plain language of the contractual 14 provision at the heart of this case, Section 8(A), which states in full:

15 The safety and protection of visitors to a Gaming Facility is a priority 16 of the Tribe, and it is the purpose of this Section to assure that any such 17 persons who suffer bodily injury or property damage proximately 18 caused by the conduct of the Gaming Enterprise have an effective 19 remedy for obtaining fair and just compensation. To that end, in this 20 Section, and subject to its terms, the Tribe agrees to carry insurance that 21 covers such injury or loss, agrees to a limited waiver of its immunity 22 from suit, and agrees to proceed either in binding arbitration 23 proceedings or in a court of competent jurisdiction, at the visitor’s 24 election, with respect to claims for bodily injury or property damage 25 proximately caused by the conduct of the Gaming Enterprise. For 26 purposes of this Section, any such claim may be brought in state district 27 court, including claims arising on tribal land, unless it is finally 28 determined by a state or federal court that IGRA does not permit the 29 shifting of jurisdiction over visitors’ personal injury suits to state court.

30 (Emphasis added.)

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1 {17} The plain language of the termination clause—a provision negotiated between 2 the State of New Mexico and the Pueblo of Pojoaque—is clear and unambiguous in 3 directing three relevant conclusions. First, the broad, inclusive language of “a state 4 or federal court” directs that any state or federal court may qualify to trigger the 5 termination clause. If the parties intended to limit the scope as to which state or 6 federal courts qualify in this regard, they certainly could have done so. Instead, 7 nothing in the parties’ contractual agreement embodied in Section 8(A) suggests any 8 such limitation. 9 {18} Second, it follows logically that “finally determined” signifies a final result 10 within the authority and capacity of such a state or federal court. In its ordinary and 11 usual meaning, a court’s final determination of an issue signifies a disposition or 12 order which resolves necessary issues and from which the parties may appeal. See 13 Handmaker v. Henney, 1999-NMSC-043, ¶ 8, 128 N.M. 328, 992 P.2d 879 (“For 14 purposes of appeal, an order or judgment is not considered final unless all issues of 15 law and fact have been determined and the case disposed of by the trial court to the 16 fullest extent possible.” (internal quotation marks and citation omitted)); Kelly Inn 17 No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 14, 113 N.M. 231, 824 P.2d 1033 18 (“The general rule in New Mexico for determining the finality of a judgment is that 19 an order or judgment is not considered final unless all issues of law and fact have

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1 been determined and the case disposed of by the trial court to the fullest extent 2 possible.” (internal quotation marks and citation omitted)); Springer Transfer Co. v. 3 Bd. of Comm’rs, 1939-NMSC-047, ¶ 9, 43 N.M. 444, 94 P.2d 977 (“A final decree 4 is one which disposes of the case or a distinct branch thereof. It is one which either 5 terminates the action itself, or decides some matter litigated by the parties, or 6 operates to divest some right, in such manner as to put it out of the power of the 7 court.” (text only) (citations omitted)).3 As with the meaning of “a state or federal 8 court,” if the parties intended for “finally determined” to have a special meaning 9 outside of its ordinary and usual meaning, they certainly could have expressed such 10 an agreement. 11 {19} We note that Respondents asserted at oral argument that “finally determined” 12 under New Mexico law means “determined by a court of final jurisdiction” and that 13 thus only “a decision by this Court or the United States Supreme Court” could

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Though not addressed by the parties, we note that the principle of finality in this context is bolstered by the fact that no appellate review followed from Nash or Dalley. We also note that other cases with relevant holdings and where the time for appeal has lapsed have followed Nash and Dalley. See, e.g., Chicken Ranch Rancheria of Me-Wuk Indians v. Newsom, 530 F. Supp. 3d 970, 987 (E.D. Cal. 2021)

(“[C]hanging the venue of patron personal injury and employee claims from tribal court to state court is not a permitted topic of IGRA negotiation.”); Pueblo of Pojoaque v. Wilson, 619 F. Supp. 3d 1095, 1103 (D.N.M. 2022) (“The Court therefore finds, pursuant to Dalley, that the IGRA does not permit the shifting of jurisdiction over [plaintiff’s tort] claims to the state courts.”).

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1 qualify to trigger the termination clause. However, Respondents did not argue this 2 proposition in their briefs and have offered no authority for it. See State ex rel. Off. 3 of State Eng’r v. Romero, 2022-NMSC-022, ¶ 2 n.1, 521 P.3d 56 (pointing out that 4 this Court will not reach an issue for which a party “makes no argument and provides 5 no facts in the briefing to help us answer that question”). In addition, we conclude 6 that this proposition is refuted by the cases cited above defining finality. 7 {20} Third, the Compact directs that state jurisdiction of relevant claims terminates 8 upon the event of a qualifying court finally determining that “IGRA does not permit 9 the shifting of jurisdiction over visitors’ personal injury suits to state court.” Under 10 current contract law, we agree with Petitioners that a state or federal court finally 11 determining such an interpretation of IGRA constitutes an “event that terminates a 12 duty.” See Restatement (Second) of Contracts § 230 (1981). 4 Specifically, under the 13 plain language of Section 8(A), that event would trigger the termination clause,

We note that the term “condition subsequent” is no longer used by at least

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one authoritative treatise. See Restatement (Second) of Contracts § 224, Rep.’s Note (1981) (“This Section revises former § 250 to eliminate the terms ‘condition precedent’ and ‘condition subsequent.’ This terminology has long been criticized and has caused confusion when used in an attempt to answer questions related to the burdens of pleading and proof.”); see also id. § 230 (“[I]f under the terms of the contract the occurrence of an event is to terminate an obligor’s duty of immediate performance or one to pay damages for breach, that duty is discharged if the event occurs.”).

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1 thereby terminating the Tribe’s duty to provide its “limited waiver of immunity from 2 suit.” 3 {21} Importantly, the unambiguous language of the termination clause provides for 4 the termination of state court jurisdiction upon such event without regard to whether 5 the state or federal court’s determination is contrary to any other court’s 6 interpretation of IGRA. Stated differently, the event that triggers the termination 7 clause need not be affirmed or followed by this Court or any other court. For this 8 reason, Respondents’ arguments regarding Doe are misplaced, as the occurrence of 9 the qualifying event terminates Petitioners’ duty regardless of prior caselaw. Further, 10 this Court need not interpret IGRA itself but simply must determine whether Nash 11 or Dalley interpreted IGRA in a manner that triggers the termination clause in 12 Section 8(A). 13 {22} In Nash, the federal district court “enter[ed] a declaration that the [IGRA] does 14 not authorize an allocation of jurisdiction from tribal court to state court over a 15 personal injury claim arising from the allegedly negligent serving of alcohol on 16 Indian land.” 972 F. Supp. 2d at 1266. The Nash Court determined that (1) “IGRA 17 limits permissible subjects of negotiation” for tribal-state gaming compacts, and (2) 18 § 2710(d)(3)(C)(ii) of IGRA, the only relevant subparagraph to mention jurisdiction, 19 permits jurisdiction shifting “only as necessary for the enforcement of laws and

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1 regulations of the State or Indian tribe, that are directly related to, and necessary for, 2 licensing and regulation of class III gaming activities.” 972 F. Supp. 2d at 1264-65. 3 Concluding that “[a] personal injury claim arising from the negligent serving of 4 alcohol has no bearing whatsoever on the licensing or regulation of class III gaming 5 activities,” the Nash Court held that New Mexico state courts had no jurisdiction to 6 hear the underlying personal injury claim. Id. at 1264-67. 7 {23} Citing precedent and IGRA, Nash expressly “conclude[d] that the IGRA does 8 not permit such a jurisdictional shifting.” Id. at 1263-65 (citing Kiowa Tribe of 9 Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998); § 2710(d)(3)(C)(ii)). By 10 its plain language, this conclusion within the federal district court’s final 11 determination of the issue constitutes the qualifying event that terminates the Tribe’s 12 duty to provide its “limited waiver of . . . immunity from suit.” Accordingly, we hold 13 that Nash triggered the termination clause in Section 8(A), thereby rendering 14 jurisdiction shifting to state court improper “with respect to claims for bodily injury 15 or property damage,” including for Respondents’ claims here. 16 {24} While our holding regarding Nash resolves the issue before us, we nonetheless 17 analyze Dalley based on its inclusion within the dispositive question on which we 18 granted certiorari. In Dalley, the Tenth Circuit Court of Appeals similarly considered 19 “whether IGRA authorizes tribes to enter into gaming compacts with states that

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1 allocate jurisdiction to state courts with respect to state-law tort claims.” 896 F.3d at 2 1205. Dalley analyzed § 2710(d)(3)(C) of IGRA as well as Doe and Bay Mills to 3 determine whether state court jurisdiction applied to underlying personal-injury tort 4 claims which arose from an alleged “slip-and-fall” on the casino’s wet bathroom 5 floor. 896 F.3d at 1202. The Dalley Court’s analysis included that jurisdiction 6 shifting under IGRA Subparagraph (C)(ii)—“[n]otably, . . . the only clause in [§ 7 2710(d)(3)(C)] that explicitly authorizes tribes to allocate jurisdiction to the 8 states”—did not pertain to “such tangential matters as the safety of walking surfaces 9 in Class III casino restrooms.” 896 F.3d at 1210. The Dalley Court “conclude[d] that 10 IGRA, under its plain terms, does not authorize tribes to allocate to states jurisdiction 11 over tort claims like those brought by the [plaintiffs t]here.” Id. at 1218. 12 {25} We recognize that whether “IGRA authorizes” jurisdiction shifting under 13 Dalley is not identical phrasing to whether “IGRA does not permit” jurisdiction 14 shifting under Section 8(A). However, under the reasoning in Dalley, this is a 15 distinction without a difference, as Dalley expressly clarified that a lack of 16 authorization equates to a prohibition in this context:

17 It is axiomatic that absent clear congressional authorization, state 18 courts lack jurisdiction to hear cases against Native Americans arising 19 from conduct in Indian country. It is also a well-settled principle that 20 “Congress possesses plenary power over Indian affairs, including the 21 power to modify or eliminate tribal rights.”

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1 Consequently, congressional approval is necessary—i.e., it is a 2 threshold requirement that must be met—before states and tribes can 3 arrive at an agreement altering the scope of a state court’s jurisdiction 4 over matters that occur on Indian land.

5 896 F.3d at 1204-05 (citations omitted). Under this reasoning, IGRA cannot permit 6 what it does not authorize, and thus the Tenth Circuit Court’s final determination in 7 Dalley that relevant jurisdiction shifting is not authorized under IGRA is 8 functionally equivalent to determining that IGRA does not permit such jurisdiction 9 shifting. Accordingly, we conclude that Dalley, like Nash, constitutes the qualifying 10 event under Section 8(A) to trigger the Compact’s termination clause. 11 {26} Respondents’ arguments regarding Nash and Dalley are irrelevant, as they 12 rely on stare decisis principles rather than contract law. Asserting that both cases 13 “are inapposite, incorrectly decided, and not binding,” Respondents implicitly invite 14 us to review on the merits Nash’s and Dalley’s interpretations of IGRA. However, 15 as we have established, the question here is whether either of those cases triggered 16 the termination clause in Section 8(A), not whether we concur with the holding or 17 reasoning of either case. 18 {27} We also address the Court of Appeals’ contrary conclusion regarding Nash 19 and Dalley. See Sipp, 2022-NMCA-015, ¶¶ 9-14. The Court of Appeals stated that 20 both cases “explicitly restricted their holdings to their case-specific facts” and “left 21 open the possibility that IGRA permits jurisdiction shifting for tort claims under

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1 different circumstances,” and therefore “neither can be said to have ‘finally 2 determined’” the relevant issue. Id. ¶ 14. This reasoning suggests that the only way 3 a final determination by a state or federal court could trigger the termination clause 4 in Section 8(A) is if that court thereby determined that no personal-injury tort claims 5 are allowable under IGRA. We reject this view for two reasons. 6 {28} First, such a reading of “finally determined” would be outside the term’s 7 ordinary and usual meaning for a state or federal court. The parties were free to 8 articulate and adopt such a distinct meaning of the term but did not. Second, this 9 view would render such a final determination impossible where IGRA expressly 10 permits negotiation over some forms of relevant jurisdiction shifting: “Any Tribal- 11 State compact . . . may include provisions relating to . . . the allocation of . . . civil 12 jurisdiction between the State and the Indian tribe necessary for the enforcement of 13 such laws and regulations.” § 2710(d)(3)(C)(ii). Given this patent grant of 14 permission in IGRA, which we need not interpret, the Court of Appeals’ reading of 15 “finally determined” would render the termination clause a nullity, as no such 16 absolute determination of the scope of IGRA could ever be possible. Nothing in 17 Respondents’ arguments or the record supports such a reading or result. For these 18 reasons, we reject the Court of Appeals’ conclusion that neither Nash nor Dalley 19 triggered the termination clause.

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1 III. CONCLUSION 2 {29} Under the foregoing, we hold that both Nash and Dalley qualified under the 3 plain language of Section 8(A) of the Compact to terminate jurisdiction shifting of 4 personal-injury tort claims to state court. Accordingly, state courts do not possess 5 subject matter jurisdiction to hear Respondent Sipp’s underlying claim, and we 6 remand for dismissal with prejudice. 7 {30} Based on our holding, we do not reach the question of whether Bay Mills 8 substantially limits the holding in Doe. 9 {31} IT IS SO ORDERED.

10 11 C. SHANNON BACON, Chief Justice

12 WE CONCUR:

13 14 MICHAEL E. VIGIL, Justice

15 16 BRIANA H. ZAMORA, Justice

17 18 JOSHUA A. ALLISON, Judge 19 Sitting by designation

20 21 DANIEL A. BRYANT, Judge 22 Sitting by designation