45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO GAMING; ENACTING A GAMING COMPACT FORM ON WHICH THE GOVERNOR MAY BASE INDIAN GAMING COMPACTS WITH TRIBES; REPEALING AND ENACTING SECTIONS OF THE NMSA 1978; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. INDIAN GAMING COMPACT.--The governor of New Mexico is authorized to enter into this Indian Gaming Compact with all Indian nations, tribes and pueblos in the state legally joining in it by enactment of a resolution pursuant to the requirements of applicable tribal and federal law. The compact as entered into shall be substantially in the form that follows:

WHEREAS, New Mexico ("State") is a sovereign state of the United States of America, having been admitted to the union pursuant to the Act of June 20, 1910, 36 Statutes at Large 557, Chapter 310, and is authorized by its constitution to enter into contracts and agreements, including this compact with the Tribe; and

WHEREAS, the ("Tribe") is a sovereign federally recognized Indian tribe and its governing body has authorized the officials of the Tribe to enter into contracts and agreements of every description, including this compact with the State; and

WHEREAS, the congress of the United States has enacted the Indian Gaming Regulatory Act of 1988, 25 U.S.C. Sections 2701 through 2721 ("IGRA"), that permits Indian tribes to conduct class III gaming on Indian lands pursuant to a tribal-state compact entered into for that purpose; and

WHEREAS, Laws 1999, Chapter 252, the Compact Negotiation Act, creates a process by which the State and the Tribe can engage in negotiations leading to a compact that is reviewed by a joint legislative committee, and finally approved by a majority vote in each house of the legislature in the form of a joint resolution; and

WHEREAS, the Tribe and the State have engaged in negotiations pursuant to the Compact Negotiation Act, leading to this compact; and

WHEREAS, the Tribe owns or controls Indian lands and by ordinance of the Tribe has adopted rules governing class III games played and related activities at all gaming facilities on that land; and

WHEREAS, the State and the Tribe, in recognition of the sovereign rights of each party and in a spirit of cooperation to promote the best interests of the residents of the State, including the members of the Tribe, have engaged in good faith negotiations, recognizing and respecting the interests of each party, and have agreed to the following compact;

NOW, THEREFORE, the State and the Tribe agree to the terms and conditions set forth in Part II of this compact.

PART II

TERMS AND CONDITIONS

SECTION 1. PURPOSE AND OBJECTIVES. The purpose and objectives of the State and the Tribe in making this compact are as follows:

A. to evidence the good will and cooperative spirit between the State and the Tribe;

B. to continue the development of an effective government-to-government relationship between the State and the Tribe;

C. to provide for the regulation of class III gaming on Indian lands as required by the IGRA;

D. to fulfill the purpose and intent of the IGRA by providing for tribal gaming as a means of generating tribal revenues, thereby promoting tribal economic development, tribal self-sufficiency and strong tribal government;

E. to provide revenues to fund tribal government operations or programs, to provide for the general welfare of the tribal members and for other purposes allowed under the IGRA;

F. to provide for the effective regulation of class III gaming in which the Tribe shall have the sole proprietary interest and be the primary beneficiary;

G. to address the State's interest in the establishment, by the Tribe, of rules and procedures for ensuring that class III gaming is conducted fairly and honestly by the owners, operators, employees and patrons of any class III gaming enterprise on Indian lands; and

H. to settle and resolve certain disputes that have arisen between the Tribe and the State under the provisions of the predecessor agreements.

SECTION 2. DEFINITIONS. For purposes of this compact, the following definitions pertain:

A. "board" means the State's gaming control board;

B. "class III gaming" means all forms of gaming as defined in 25 U.S.C. Section 2703(8) and 25 C.F.R. Section 502.4;

C. "compact" means this compact between the State and the Tribe;

D. "gaming activity" means any endeavor associated with the conduct of class III gaming;

E. "gaming employee" means a person connected directly with a gaming activity, but "gaming employee" does not include:

(1) bartenders, cocktail servers or other persons engaged solely in preparing or serving food or beverages;

(2) secretarial or janitorial personnel;

(3) stage, sound or light technicians; or

(4) other nongaming personnel;

F. "gaming enterprise" means the tribal entity created or designated by the Tribe to have authority to conduct class III gaming pursuant to this compact;

G. "gaming facility" means the buildings or structures in which class III gaming is conducted on Indian lands;

H. "gaming machine" means a mechanical, electromechanical or electronic contrivance, device or machine that, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate a game, whether the payoff is made automatically from the gaming machine or in any other manner;

I. "Indian lands" means:

(1) all lands within the exterior boundaries of the Tribe's reservation and its confirmed grants from prior sovereigns; or

(2) any other lands, title to which is either held in trust by the United States for the exclusive benefit of the Tribe or a member of the Tribe or is held by the Tribe or a member of the Tribe subject to restrictions against alienation imposed by the United States, and over which the Tribe exercises jurisdiction and governmental authority, but not including any land within the boundaries of a municipality that is outside of the boundaries of the Tribes's reservation or confirmed Spanish grant, as those boundaries existed on October 17, 1988;

J. "key employee" means that term as defined in 25 C.F.R. Section 502.14;

K. "management contract" means a contract within the meaning of 25 U.S.C. Sections 2710(d)(9) and 2711;

L. "management contractor" means any person or entity that has entered into a management contract with the Tribe;

M. "ordinance" means the gaming ordinance and any amendments thereto adopted by the tribal council of the Tribe;

N. "primary management official" means that term as defined in 25 C.F.R. Section 502.19;

O. "State" means New Mexico; and

P. "state gaming representative" means the person designated by the board pursuant to the Gaming Control Act or an agency of the State if set forth in other law, who is responsible for action of the State set out in the compact and who is the single contact with the Tribe and may be relied upon as such by the Tribe.

SECTION 3. AUTHORIZED CLASS III GAMING.

A. SCOPE OF GAMING. The Tribe may conduct, only on its Indian lands, subject to all of the terms and conditions of this compact, any or all forms of casino-style gaming, including but not limited to slot machines and other forms of electronic gaming devices; all forms of poker, blackjack and other casino-style card games, both banked and unbanked; roulette; craps; keno; wheel of fortune; pai gow; and other games played in casino settings; and any form of a lottery.

B. TRIBALLY IMPOSED LIMITATIONS. Subject to the foregoing, the Tribe shall establish in its discretion, by tribal law, such limitations as it deems appropriate on the number and type of class III gaming conducted, the location of class III gaming on its Indian lands, the hours and days of operation and betting and pot limits, applicable to the gaming activity.

SECTION 4. REGULATION OF CLASS III GAMING.

A. TRIBAL GAMING AGENCY DUTIES. The tribal gaming agency will assure that the Tribe:

(1) operates all class III gaming pursuant to this compact, tribal law, the IGRA and other applicable federal law;

(2) provides for the physical safety of patrons in any gaming facility;

(3) provides for the physical safety of personnel employed by the gaming enterprise;

(4) provides for the physical safeguarding of assets transported to and from the gaming facility and cashier's department;

(5) provides for the protection of the property of the patrons and the gaming enterprise from illegal activity;

(6) participates in licensing of primary management officials and key employees of the gaming enterprise;

(7) detains persons who may be involved in illegal acts for the purpose of notifying law enforcement authorities; and

(8) records and investigates any and all unusual occurrences related to class III gaming within the gaming facility.

B. REGULATIONS. The Tribe shall adopt laws without affecting the generality of the foregoing:

(1) prohibiting participation in any class III gaming by any person under the age of twenty-one years;

(2) prohibiting the employment of any person in class III gaming activities as a gaming employee who is under the age of eighteen years or who has not been licensed in accordance with Section 5 of this compact;

(3) requiring the Tribe to take all necessary action to impose on its gaming operation standards and requirements equivalent to or more stringent than those contained in the federal Fair Labor Standards Act of 1938, the federal Occupational Safety and Health Act of 1970 and any other federal laws relating to wages, hours of work and conditions of work and the regulations issued under those laws that are applicable to an Indian tribe;

(4) requiring that on any construction project involving any gaming facility or related structure that is funded in whole or in part by federal funds, all workers will be paid wages meeting or exceeding the standards established for the State under the federal Davis-Bacon Act;

(5) prohibiting the Tribe, the gaming enterprise and a management contractor from discriminating in the employment of a person to work for the gaming enterprise or in the gaming facility on the grounds of race, color, national origin, gender, sexual orientation, age or handicap, but subject to federal law and tribal policies regarding tribal and Indian preference in employment;

(6) providing to all qualifying employees of a gaming establishment employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave and medical and dental insurance as well as providing unemployment insurance and workers' compensation insurance through participation in programs offering benefits at least as favorable as those provided by comparable State programs; (7) providing a grievance process for an employee in cases of disciplinary or punitive action taken against an employee that includes a process for appeals to persons of greater authority than the immediate supervisor of the employee;

(8) requiring a gaming enterprise to adopt standards and requirements at least as stringent as those contained in the State's Food Service Sanitation Act;

(9) prohibiting a gaming enterprise from cashing any paycheck or any type of government assistance check, including social security, temporary assistance for needy families, pension and other similar checks, for any patron;

(10) prohibiting a gaming enterprise from extending credit by accepting IOUs or markers from its patrons;

(11) requiring that odds be posted on each gaming machine;

(12) requiring that automatic teller machines on gaming facility premises be programmed so that the machines will not accept cards issued by the State to public assistance recipients for access to temporary assistance for needy families benefits;

(13) providing that each electronic or electromechanical gaming device in use at the gaming facility must pay out a mathematically demonstrable percentage of all amounts wagered, which must not be less than eighty percent (80%);

(14) providing that no later than ninety days after this compact takes effect, all gaming machines on the premises of the gaming facility will be connected to a central computerized reporting and auditing system on the gaming facility premises, which shall collect on a continual basis the activity of each gaming machine in use at the gaming facility;

(15) enacting provisions that:

(a) prohibit an employee of the gaming facility from selling, serving, giving or delivering an alcoholic beverage to an intoxicated person or from procuring or aiding in the procurement of any alcoholic beverage for an intoxicated person at the gaming facility;

(b) require gaming facility employees that dispense, sell, serve or deliver alcoholic beverages to attend alcohol server education classes similar to those classes provided for in the State Liquor Control Act; and

(c) require the gaming enterprise to purchase and maintain a liquor liability insurance policy that will provide, at a minimum, personal injury coverage of one million dollars ($1,000,000) per incident and two million dollars ($2,000,000) aggregate per policy year;

(16) requiring the gaming enterprise to spend an amount that is no less than one-fourth of one percent (.25%) of its net win as that term is defined herein annually to fund or support programs for the treatment and assistance of compulsive gamblers and for the prevention of compulsive gambling within New Mexico;

(17) governing any management contract regarding its class III gaming activity such that it conforms to the requirements of tribal law and the IGRA and the regulations issued thereunder; and

(18) the tribal gaming agency will provide true copies of all tribal laws and regulations affecting class III gaming conducted under the provisions of this compact to the state gaming representative within thirty days after the effective date of this compact, and will provide true copies of any amendments to the compact or additional laws or regulations affecting gaming within thirty days after their enactment or approval, if any.

C. AUDIT AND FINANCIAL STATEMENTS. The tribal gaming agency shall require all books and records relating to class III gaming to be maintained in accordance with generally accepted accounting principles. All such books and records shall be retained for a period of at least five years from the date of creation pursuant to 25 C.F.R. Section 571.12. Not less than annually, the tribal gaming agency shall require an audit and a certified financial statement covering all financial activities of the gaming enterprise by an independent certified public accountant licensed by the State. The financial statement shall be prepared in accordance with generally accepted accounting principles and shall be submitted to the tribal gaming agency within one hundred twenty days of the close of the Tribe's fiscal year. Copies of the financial statement and the audit shall be furnished to the state gaming representative and the state treasurer by the tribal gaming agency within one hundred twenty days of the agency's receipt of the documents, but such documents shall be considered confidential and shall not be considered public records of the State, and no employee or agency of the State shall provide any such document to any member of the public without the express prior written consent of the Tribe. The Tribe will maintain the following records for not less than five years:

(1) revenues, expenses, assets, liabilities and equity for each gaming facility;

(2) daily cash transactions for each class III gaming activity at each gaming facility, including but not limited to transactions relating to each gaming table bank, game dropbox and gaming room bank;

(3) all returned checks, hold checks or other similar credit instruments;

(4) individual and statistical game records, with the exception of card games, to reflect statistical drop and statistical win; for electronic, computer or other technologically assisted games, analytic reports that show the total amount of cash wagered and the total amount of prizes won;

(5) contracts, correspondence and other transaction documents relating to all vendors and contractors;

(6) records of all tribal gaming enforcement activities;

(7) audits prepared by or on behalf of the Tribe; and

(8) personnel information on all class III gaming employees or agents, including rotation sheets, hours worked, employee profiles and background checks.

D. VIOLATIONS. The agents of the tribal gaming agency shall have unrestricted access to the gaming facility during all hours of class III gaming activity, and shall have immediate and unrestricted access to any and all areas of the gaming facility for the purpose of ensuring compliance with the provisions of this compact and the tribal gaming ordinance. The agents shall report immediately to the tribal gaming agency any suspected violation of this compact, the tribal gaming ordinance or regulations of the tribal gaming agency by the gaming enterprise, management contractor or any person, whether or not associated with class III gaming.

E. STATE GAMING REPRESENTATIVE. Notwithstanding that the Tribe has the primary responsibility to administer and enforce the regulatory requirements of this compact, the state gaming representative shall have the right to inspect a gaming facility, gaming activity and all records relating to class III gaming of the Tribe, subject to the following conditions:

(1) with respect to public areas of a gaming facility, at any time without prior notice during normal gaming facility business hours;

(2) with respect to private areas of a gaming facility not accessible to the public, at any time during normal gaming facility business hours, immediately after notifying the tribal gaming agency and gaming facility of his presence on the premises and presenting proper identification, and requesting access to the non-public areas of the gaming facility. The Tribe, in its sole discretion, may require an employee of the gaming facility or the tribal gaming agency to accompany the state gaming representative at all times that the state gaming representative is on the premises of a gaming facility, but if the Tribe imposes such a requirement, the Tribe shall require such an employee of the gaming facility or the tribal gaming agency to be available at all times for such purposes;

(3) with respect to inspection and copying of all management records relating to class III gaming, at any time without prior notice between the hours of 9:00 a.m. and 4:00 p.m. Monday through Friday, excluding official holidays. The reasonable costs of copying will be borne by the State; and

(4) whenever the state gaming representative, or his designee, enters the premises of the gaming facility for any inspection, the gaming representative or designee shall identify himself to security or supervisory personnel of the gaming facility.

F. CONFIDENTIALITY OF RECORDS PROVIDED TO THE GAMING REPRESENTATIVE OR BOARD.

(1) Gaming enterprise and gaming enterprise operations information that is provided to the state gaming representative shall not be considered public information and shall not be deemed subject to the State's Inspection of Public Records Act. Trade secrets, information relating to security and surveillance systems, cash handling and accounting procedures, building layout, gaming machine payouts, investigations into alleged violations of laws or regulations, personnel records and proprietary information regarding the gaming enterprise of the Tribe, class III gaming conducted by the Tribe, or the operation thereof, shall not be deemed public records as a matter of State law, and shall not be disclosed to any member of the public without the prior written approval of a duly authorized representative of the Tribe. Any communication or document of the Tribe is confidential and does not impose liability for defamation or constitute a ground for recovery in any civil action if it is required by the provisions of this compact.

(2) The confidentiality created pursuant to this section is not waived or lost because the document or communication is disclosed to the board. Notwithstanding the powers granted to the board by the Gaming Control Act, the board:

(a) may release or disclose any confidential information, documents or communications provided by the Tribe only with the prior written consent of the Tribe or pursuant to a lawful court order after timely notice of the proceedings has been given to the Tribe;

(b) shall maintain all confidential information, documents and communications in a secure place accessible only to members of the board; and

(c) shall adopt procedures and regulations to protect the confidentiality of information, documents and communications provided by the Tribe.

(3) These prohibitions shall not be construed to prohibit:

(a) the furnishing of any information to a law enforcement or regulatory agency of the federal government;

(b) the State from making known the names of persons, firms or corporations conducting class III gaming pursuant to the terms of this compact, locations at which such activities are conducted or the dates on which such activities are conducted;

(c) publishing the terms of this compact;

(d) disclosing information as necessary to audit, investigate, prosecute or arbitrate violations of this compact or other applicable laws or to defend suits against the State; and

(e) complying with subpoenas or court orders issued by courts of competent jurisdiction.

(4) To the fullest extent allowed by State law, the Tribe shall have the right to inspect State records concerning all class III gaming conducted by the Tribe; the Tribe shall have the right to copy State records, with the Tribe bearing the reasonable cost of copying.

G. REGULATORY FEE PAYMENTS.

(1) The Tribe shall reimburse the State for the costs the board incurs in carrying out any functions authorized by the terms of this compact in the amount of one hundred thousand dollars ($100,000) per calendar year effective August 29, 1997, such annual amount to be prorated for any calendar year in which operation of the gaming facility by the Tribe is less than twelve months. Payments due the State shall be made on a quarterly basis and shall be paid no later than the twenty-fifth day of the month following the end of a quarter to the State treasurer for deposit into the State general fund. This amount shall increase by five percent (5%) each year beginning on the first day of January occurring after this compact has been in effect for at least twelve months. Any regulatory fee payments paid by the Tribe that exceeded the one hundred thousand dollars ($100,000) per calendar year effective August 29, 1997 shall be credited to future regulatory fee payments.

(2) In the event the State believes that the Tribe is not administering and enforcing the regulatory requirements set forth herein, it may invoke the dispute resolution procedures set forth in Section 7 of this compact.

H. TRIBAL COMPLIANCE WITH FEDERAL LAWS. The Tribe shall comply with all applicable provisions of the federal Bank Secrecy Act and all reporting requirements of the internal revenue service.

SECTION 5. LICENSING REQUIREMENTS.

A. LICENSE REQUIRED. The gaming facility operator, not including the Tribe or tribal government, including the principals, primary management officials and key employees; if the Tribe hires a management contractor, the management contractor and its principals, primary management officials and key employees; any person, corporation or other entity that has supplied or proposes to supply any gaming device to the Tribe or the management contractor; and any person, corporation or other entity providing gaming services within or without a gaming facility shall apply for and receive a license from the tribal gaming agency before participating in any way in the operation or conduct of any class III gaming on Indian lands. The tribal gaming agency shall comply fully with the requirements of this section and the IGRA, especially at 25 U.S.C. Sections 2710 and 2711, and the regulations issued thereunder at 25 C.F.R. Parts 550-559, as well as the requirements of the Tribe's gaming ordinance and any regulations issued thereunder, in processing license applications and issuing licenses.

B. LICENSE APPLICATION. Each applicant for a license shall file with the tribal gaming agency a written application in the form prescribed by the tribal gaming agency, along with the applicant's fingerprint card, current photograph and the fee required by the tribal gaming agency.

C. BACKGROUND INVESTIGATIONS. Upon receipt of a completed application and required fee for licensing, the tribal gaming agency shall conduct or cause to be conducted a background investigation to ensure that the applicant is qualified for licensing.

D. PROVISION OF INFORMATION TO STATE GAMING REPRESENTATIVE. Whenever the tribal gaming agency is required by federal law or tribal law regulations to provide to the national Indian gaming commission any information, document or notice relating to the licensing of any key employee or primary management official of the gaming enterprise, a copy of that information, document or notice shall also be provided to the state gaming representative. The state gaming representative shall be entitled to the same right to request additional information concerning an applicant licensee, to comment on the proposed licensing of any applicant licensee and to supply the tribal gaming agency with additional information concerning any applicant licensee.

SECTION 6. PROVIDERS OF CLASS III GAMING MACHINES, EQUIPMENT OR SUPPLIES.

A. STANDARDS. Within thirty days after the effective date of this compact, if it has not already done so, the tribal gaming agency will adopt standards for all class III gaming equipment, devices or supplies to be used in any gaming facility, which standards shall be at least as strict as the comparable standards applicable to class III gaming machines, equipment or supplies within the state of Nevada. All class III gaming machines, equipment or supplies used by the Tribe after the date of this compact shall meet or exceed the standards thereby adopted.

B. GAMING EQUIPMENT, MACHINES OR SUPPLIES LESSOR OR SELLER LICENSING. Prior to entering into any future lease or purchase agreement for class III gaming machines, equipment or supplies, the Tribe shall obtain sufficient information and identification from the proposed seller or lessor and all persons holding any direct or indirect financial interest in the lessor or the lease-purchase agreement to permit the Tribe to license those persons in accordance with Section 5 of this compact.

C. ASSEMBLY AND INSTALLATION LICENSING. The seller, lessor, manufacturer or distributor shall provide, assemble and install all class III gaming equipment, devices or supplies in a manner approved and licensed by the Tribe. SECTION 7. DISPUTE RESOLUTION.

A. PROCEDURE. In the event either party believes that the other party has failed to comply with or has otherwise breached any provision of this compact, the party asserting noncompliance may invoke the procedure set forth in this section.

(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 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 that party within ninety days after service of the notice set forth in Paragraph (1) of this subsection, the complaining party may serve upon the other party a "notice to cease conduct", requesting the responding party to cease the particular game or activity alleged by the complaining party to be in noncompliance. Upon receipt of the notice to cease conduct, the responding party may elect to stop the game or activity specified in the notice or invoke arbitration and continue the game or activity pending the results of arbitration. The responding party shall act upon one of the foregoing options within thirty days of receipt of notice to cease conduct from the complaining party.

(3) Arbitration under authority of this section shall be conducted generally under the commercial arbitration rules of the American arbitration association, except that the arbitrators shall be attorneys who are licensed members in good standing of the state bar of New Mexico or of the bar of another state. The State shall select one arbitrator, the Tribe a second arbitrator, and the two so chosen shall select a third arbitrator. If the third arbitrator is not chosen in this manner within ten days after the second arbitrator is selected, the third arbitrator will be chosen in accordance with the rules of the American arbitration association.

(4) All parties shall bear their own costs of arbitration and attorney fees.

(5) The results of arbitration shall be enforceable by an action for injunctive or mandatory injunctive relief against the State and the Tribe in any court of competent jurisdiction. For purposes of any such action, the State and the Tribe acknowledge that any action or failure to act on the part of any agent or employee of the State or the Tribe contrary to a decision of the arbitrators in an arbitration proceeding conducted under the provisions of this section, occurring after a decision of those arbitrators, shall be wholly unauthorized and ultra vires acts, not protected by the sovereign immunity of the State or the Tribe. B. NO WAIVER OF REMEDIES OR SOVEREIGN IMMUNITY. Nothing in this Subsection A of this section of this compact shall be construed to waive, limit or restrict any remedy that is otherwise available to either party to enforce or resolve disputes concerning the provisions of this compact. Nothing in this compact shall be deemed a waiver of the Tribe's sovereign immunity. Nothing in this compact shall be deemed a waiver of the State's sovereign immunity.

SECTION 8. PROTECTION OF VISITORS.

A. REMEDIES. The safety and protection of visitors to a gaming facility is a priority of the Tribe, and the Tribe agrees to provide a remedy for a visitor's claim of liability for bodily injury or property damage proximately caused by the conduct of the gaming enterprise and:

(1) occurring at a gaming facility, other premises, structures or on grounds or involving vehicles and mobile equipment used by a gaming enterprise;

(2) arising out of a condition at the gaming facility or on the premises of the gaming facility; or

(3) occurring outside of the gaming facility but arising from the activities of the gaming enterprise.

B. INSURANCE COVERAGE REQUIRED. The gaming enterprise shall maintain in effect policies of liability insurance insuring the Tribe, its agents and employees against claims, demands or liability for bodily injury and property damages by a visitor arising from an occurrence described in Subsection A of this section. The policies shall provide bodily injury and property damage coverage in an amount of at least one million dollars ($1,000,000) per person and ten million dollars ($10,000,000) as an aggregate coverage amount per policy year. The Tribe shall provide the state gaming representative annually a certificate of insurance showing that the Tribe, its agents and employees are insured to the required extent and in the circumstances described in this section.

C. LIMITATION ON TIME TO BRING CLAIM. Claims brought pursuant to the provisions of this section must be commenced by filing an action in court or a demand for arbitration within three years of the date the claim accrues.

D. SPECIFIC WAIVER OF IMMUNITY. The Tribe, by entering into this compact and agreeing to the provisions of this section, waives its defense of sovereign immunity in connection with any claims for compensatory damages up to the amount of one million dollars ($1,000,000) per injured person and ten million dollars ($10,000,000) aggregate per policy year asserted as provided in this section. This is a limited waiver and does not waive the Tribe's immunity from suit for any other purpose. The Tribe shall ensure that a policy of insurance that it acquires to fulfill the requirements of this section shall include a provision under which the insurer agrees not to assert the defense of sovereign immunity on behalf of the insured.

E. ELECTION BY VISITOR. A visitor having a claim described in this section may pursue that claim in any court of competent jurisdiction, or in binding arbitration. The visitor shall make a written election that is final and binding upon the visitor.

F. ARBITRATION. Arbitration pursuant to an election as provided in Subsection E of this section shall be conducted as follows:

(1) the visitor shall submit a written demand for arbitration to the gaming enterprise, by certified mail, return receipt requested;

(2) the visitor and the gaming enterprise shall each designate an arbitrator within thirty days of the date of receipt of the demand, and the two arbitrators shall select a third arbitrator; in the event the two arbitrators cannot agree on the selection of the third arbitrator within thirty days of their appointment, they shall apply to the American arbitration association to appoint the third arbitrator;

(3) the arbitration panel shall permit the parties to engage in reasonable discovery and shall establish other procedures to ensure a full, fair and expeditious hearing on the claim; and

(4) the award of the arbitration panel shall be final and binding.

G. PUBLIC HEALTH AND SAFETY. The Tribe shall establish for its gaming facility health, safety and construction standards that are at least as stringent as the current editions of the National Electrical Code, the Uniform Building Code, the Uniform Mechanical Code, the Uniform Fire Code and the Uniform Plumbing Code, and any and all gaming facilities or additions thereto constructed by the Tribe hereafter shall be constructed and all facilities shall be maintained to comply with the applicable standards. Inspections shall be conducted with respect to these standards at least annually. If the state gaming representative requests sufficiently in advance of an annual inspection, the state gaming representative may be present during an inspection. The Tribe agrees to correct any deficiencies noted in these inspections within a time agreed upon between the State and Tribe. The tribal gaming agency will provide copies of all inspection reports of inspections occurring pursuant to this subsection to the state gaming representative, if requested to do so in writing.

SECTION 9. EFFECTIVE DATE. This compact shall be effective immediately upon publication of notice in the Federal Register of the secretary of the interior's approval or, if after forty-five days following the date that this compact is submitted to the secretary of the interior, he fails to approve or disapprove the compact. Upon the effective date of this compact, any prior tribal-state compact and any prior revenue-sharing agreement between the Tribe and the State shall be and become null and void, and have no further effect.

SECTION 10. CRIMINAL JURISDICTION.

A. JURISDICTION TO PROSECUTE. The Tribe and the State acknowledge that under the provisions of Section 23 of the IGRA, especially that portion codified at 18 U.S.C. Section 1166(d), jurisdiction to prosecute violations of State gambling laws, applicable pursuant to that section to Indian country, is vested exclusively within the United States unless the Tribe and the State agree in a compact entered into pursuant to the IGRA to transfer such jurisdiction to the State.

B. STATE JURISDICTION OVER CRIMES COMMITTED. The Tribe and the State agree that the State shall have and may exercise jurisdiction, concurrent with that of the United States, to prosecute a violator under its laws and in State court when the violation or crime is committed by a person who is not a member of a federally recognized Indian tribe and the violator has committed a violation of a State gambling law on Indian lands; any other crime against the gaming enterprise or a gaming enterprise employee; or a crime or violation occurring on the premises of the tribal gaming facility.

C. NOTIFICATION OF A CRIME. Immediately upon becoming aware of any suspected crime by a nonmember of the Tribe or a person who is not a member of a federally recognized Indian tribe, the gaming enterprise or the tribal gaming agency shall notify the State attorney general and the district attorney for the district in which the gaming facility is located, supplying all particulars available to the tribal entity at the time. The Tribe agrees that its law enforcement and gaming agencies shall perform additional investigations or other steps in furtherance of the investigation and prosecution of the violation as reasonably requested by the district attorney or other State law enforcement office and will cooperate fully with those State officials during the course of the investigation. At the time of receipt of notice by the district attorney that a suspected violation or crime has occurred, the jurisdiction over the suspected violation or crime is transferred to the State. In the event of emergency circumstances involving a violation or crime, as determined by the tribal law enforcement agency or the tribal gaming agency, the tribal law enforcement agency or the tribal gaming agency has the discretion to act as it sees fit and to call upon other agencies or entities as it deems reasonable or necessary in order to protect against any immediate threat to lives or property. The State may, in its discretion, refer the matter to federal authorities, but it shall notify the tribal gaming agency upon doing so.

D. WRITTEN REPORT FROM THE STATE. The State agrees that no less frequently than annually it shall provide the tribal gaming agency with a written report of the status and disposition of each matter referred to it under the provisions of this section that is still pending. In the event the district attorney to whom a matter is referred under the provisions of this section decides not to prosecute such matter, the district attorney shall promptly notify the tribal gaming agency of such decision in writing. The tribal gaming agency may in that event ask the attorney general of the State to pursue the matter.

E. MEMORANDUM OF UNDERSTANDING REQUIRED FOR PROSECUTION OF OFFENSES. The district attorney for the district in which the gaming facility is situated may decline to accept referrals of cases under the provisions of this section unless and until the Tribe has entered into a memorandum of understanding with the office of the district attorney. The United States attorney for the district of New Mexico may also be a party to the memorandum of understanding, addressing such matters as the specific procedures by which cases are to be referred, participation of the tribal gaming agency and tribal law enforcement personnel in the investigation and prosecution of a case, payments by the Tribe to the office of the district attorney to defray the costs of handling cases referred under the provisions of this section and related matters.

SECTION 11. BINDING EFFECT AND DURATION.

A. This compact shall be binding upon the State and the Tribe for a term of eighteen years from the date it becomes effective and may renew for an additional period, with renegotiation conducted pursuant to the Compact Negotiation Act or its successor provisions. If during the eighteen-year term, the State passes, amends or repeals a law, or takes other action, that would directly or indirectly eliminate or prohibit the conduct of class III gaming within the State, including any form of State lottery, horse racing or bicycle racing, this compact shall terminate at the end of the eighteen-year term.

B. LIMITATION ON TRIBAL GAMING TO PERIOD WHEN COMPACT IS IN EFFECT. The Tribe may operate class III gaming only while this compact or any amendment to this compact is in effect.

C. AMENDMENT PROCESS. This compact may be amended pursuant to the Compact Negotiation Act or its successor provisions.

SECTION 12. NOTICE TO PARTIES. Unless otherwise indicated, all notices, payments, requests, reports, information or demand that any party to this compact may desire or may be required to give to the other party to this compact shall be in writing and shall be personally delivered or sent by first-class mail to the other party at the address provided in writing by the other party. Every notice, payment, request, report, information or demand given pursuant to this compact shall be deemed effective upon receipt or, if mailed, upon receipt or the expiration of the third day following the day of mailing, whichever occurs first, except that any notice of change of address shall be effective only upon receipt by the party to whom the notice is addressed. SECTION 13. ENTIRE AGREEMENT. This compact is the entire agreement between the parties and supersedes all prior agreements, whether written or oral, with respect to the subject matter of this compact.  Neither this compact nor any provision within this compact may be changed, waived, discharged or terminated orally, but only by an instrument, in writing, signed by the Tribe and the State and approved by the secretary of the interior. This compact shall not be amended without the express approval of the Tribe, the governor of the State and the State legislature, as provided in the Compact Negotiation Act or its successor provisions.

SECTION 14. FILING OF COMPACT WITH STATE RECORDS CENTER. Upon the effective date of this compact, a copy shall be filed by the governor of the State with the State records center. Any subsequent amendment or modification of this compact shall be filed with the State records center.

SECTION 15. COUNTERPARTS. This compact may be executed by the parties in any number of separate counterparts with the same effect as if the signatures were upon the same instrument. All of the counterparts shall together constitute one and the same document.

SECTION 16. REVENUE SHARING.

A. SUMMARY AND CONSIDERATION. The Tribe shall agree to contribute a portion of its class III gaming revenues identified in and under procedures of this section. In return for the contribution of a portion of the Tribe's class III gaming revenues pursuant to the provisions of this section, the State agrees that the Tribe:

(1) has the exclusive right within the State to provide all types of class III gaming as described in this compact, with the sole exception of the use of gaming machines, which the State may permit on a limited basis for racetracks and veterans' and fraternal organizations; and (2) will only share that part of its revenue arising from the use of gaming machines and that all other gaming revenue is exclusively the Tribe's.

B. REVENUE TO STATE. The parties agree that, after the effective date of this compact, the Tribe shall make the quarterly payments provided for in Subsection C of this section to the State treasurer for deposit into the State general fund.

C. CALCULATION OF REVENUE TO STATE.

(1) As used in this section, "net win" means the annual total amount wagered in a calendar year at a gaming facility on gaming machines less the following amounts:

(a) the annual amount paid out in that calendar year in prizes from gaming on gaming machines;

(b) the actual amount of regulatory fees paid in a calendar year to the State as set forth in Paragraph (1) of Subsection G of Section 4 of this compact; and

(c) the sum of two hundred fifty thousand dollars ($250,000) per year as an amount representing tribal regulatory fees, with this amount increasing by five percent (5%) each year beginning on the first day of January occurring after this compact has been in effect at least twelve months.

(2) The Tribe shall pay the State a percentage of the net win based on the following schedule:

(a) if the annual calendar year total net win is equal to or less than ten million dollars ($10,000,000), the Tribe shall pay three percent (3%) of its net win;

(b) if the annual calendar year total net win is more than ten million dollars ($10,000,000), but equal to or less than forty-five million dollars ($45,000,000), the Tribe shall pay six percent (6%) of the net win; or

(c) if the annual calendar year total net win is more than forty-five million dollars ($45,000,000), the Tribe shall pay eight percent (8%) of the net win.

(3) The Tribe shall use its best judgment to reasonably estimate the anticipated annual calendar year total net win in computing the revenue-sharing payments according to Paragraph (2) of this subsection. If the actual annual calendar year total net win should differ from the estimated net win, adjustments necessary to correct the total annual revenue-sharing payments shall be reflected in the final quarterly payment for each calendar year.

(4) For purposes of these payments, all calculations of amounts due shall be based upon the quarterly activity of the gaming facility. Quarterly payments due to the State pursuant to these terms shall be paid no later than twenty-five days after the last day of each calendar quarter. Any payments due and owing from the Tribe in the quarter the compact is approved, or the final quarter the compact is in force, shall reflect the net win, but only for the portion of the quarter the compact is in effect.

D. LIMITATIONS ON OBLIGATION TO PAY REVENUE SHARING. The Tribe's obligation to make the payments provided for in Paragraph (3) of Subsection C of this section shall apply and continue only so long as there is a binding compact in effect between the Tribe and the State, which compact provides for the play of class III gaming, but shall terminate in the event of any of the following conditions:

(1) if the State passes, amends or repeals any law, or takes any other action, that would directly or indirectly attempt to restrict, or has the effect of restricting, the scope of Indian gaming; or

(2) if the State permits any expansion of nontribal class III gaming in the State; notwithstanding this general prohibition against permitted expansion of gaming activities, the State may permit:

(a) the implementation of a State lottery as described in Laws 1995, Chapter 155;

(b) up to fifteen gaming machines at any fraternal, veterans' or other nonprofit membership organization, which exists as of January 1, 2001, to operate gaming machines lawfully, but only for the benefit of the organization's members;

(c) limited fundraising activities conducted by nonprofit tax-exempt organizations pursuant to Section 30-19-6 NMSA 1978; and

(d) only those horse racetracks in existence as of January 1, 1999, specifically Ruidoso Downs, Sunland Park, The Downs at Santa Fe, Albuquerque Downs and Sun Ray Park, to each operate up to five hundred electronic gaming machines, at its own facility, on days on which live or simulcast racing occurs. Expansion from the current statutorily allowed three hundred electronic gaming machines is subject to approval of this compact by the secretary of the interior. If the approval of this compact is obtained, the authority for expansion from three hundred to five hundred gaming machines shall be effective one year after the effective date of this compact.

E. EFFECT OF VARIANCE. In the event the acts or omissions of the State cause the Tribe's obligation to make payments under Paragraph (2) of Subsection C of this section to terminate under the provisions of Subsection D of this section, the cessation of obligation to pay will not adversely affect the validity of the compact, but the amount that the Tribe agrees to reimburse the State for regulatory fees under the compact shall automatically increase by twenty percent (20%).

F. THIRD-PARTY BENEFICIARIES. This section is not intended to create any third-party beneficiaries and is entered into solely for the benefit of the Tribe and the State.

SECTION 17. BACK PAYMENTS.

A. AGREEMENT TO MAKE BACK PAYMENTS. In recognizing the desire of both the State and the Tribe to complete this compact, and to avoid the costs and frustration of further litigation, the Tribe agrees to make back payments for those past contested revenue-sharing payments not paid, either in full or in part, to the State.

B. CALCULATION OF BACK PAYMENTS. Calculation of the amount that must be paid back shall be done pursuant to the net win calculations included in the predecessor revenue-sharing agreement, Laws 1997, Chapter 190, Section 2. Any amounts that have been paid by a Tribe in excess of the amount due shall be credited against future revenue-sharing payments owed by the Tribe. Back payments will accrue until this compact goes into effect pursuant to federal law as evidenced by publication in the Federal Register.

C. PAYMENT OF BACK PAYMENTS. The Tribe shall have up to four years from the effective date of this compact in which to make the back payments. Payments shall be made quarterly until all payments owed have been made. The first quarterly payment is due thirty days after the effective date of this compact.

D. SEGREGATED TRIBAL INFRASTRUCTURE FUND. One- half of the Tribe's back payments made pursuant to Subsection C of this section shall be appropriated to a fund created in the State treasury in the name of the Tribe. The money in the fund shall be administered by the New Mexico office of Indian affairs. The money in the fund shall be used on a reimbursement basis to provide funding for education, economic development, community development or infrastructure costs made by the Tribe subsequent to August 29, 1997 on the Tribe's Indian lands. The Tribe shall supply supporting documentation of expenditures made that may be reimbursed from the fund to the New Mexico office of Indian affairs to substantiate disbursements from the fund.

SECTION 18. SEVERABILITY. Should any provision of this compact be found to be invalid or unenforceable by any court or other forum having jurisdiction, such determination shall have no effect upon the validity or enforceability of any other portion of this compact, and all such other portions shall continue in full force and effect.".

Section 2. REPEAL.--Sections 11-13-1 and 11-13-2 NMSA 1978 (being Laws 1997, Chapter 190, Sections 1 and 2) are repealed.

Section 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.