44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO TRIBAL-STATE AGREEMENTS; AUTHORIZING SUPPLEMENTAL LANGUAGE TO INDIAN GAMING COMPACTS; AMENDING PROVISIONS OF REVENUE-SHARING AGREEMENTS; ENACTING A DELAYED CONTINGENT REPEALER REGARDING NON-INDIAN GAMING ACTIVITIES IN NEW MEXICO; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

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

Section 1. A supplemental section of the Indian Gaming Compact, Section 11-13-1.1 NMSA 1978, is enacted to read:

"11-13-1.1. [NEW MATERIAL] INDIAN GAMING COMPACT SUPPLEMENT AUTHORIZED.--

A. The governor of the state upon written request from an Indian nation, tribe or pueblo located in the state that has entered into an Indian Gaming Compact in the form set forth in Section 11-13-1 NMSA 1978 is authorized to execute a supplement to the existing Indian Gaming Compact in the form set forth in this section. The supplement to the Indian Gaming Indian Compact shall be in substantially the following form:

"SUPPLEMENT TO INDIAN GAMING COMPACT

SECTION 1. Maximum Regulatory Fee Payment. On and after the effective date of this Supplement to the Indian Gaming Compact that was entered into between the State of New Mexico and the on the day of , 199 , and that took effect on the day of , 199 , and notwithstanding anything to the contrary contained in Paragraph 5 of Subsection E of SECTION 4 of that Indian Gaming Compact, the amount that the Tribe shall be required to pay the State in any State fiscal year in which the Tribe operates a Gaming Facility as reimbursement of costs the State incurs in carrying out the regulatory functions authorized by the terms of the Indian Gaming Compact is five hundred dollars ($500) per Gaming Machine.

SECTION 2. Tribal Payment of Total Regulatory Costs. The Tribe shall pay the State one hundred twenty-five dollars ($125) per Gaming Machine per quarter on the twenty-fifth day of the month following the end of the quarter.

SECTION 3. Tribal Regulatory Fee Payments limited to Payment Required in this Supplement. Except as expressly provided in this Supplement to the Indian Gaming Compact, the Tribe shall not be required to pay the State any additional sum as reimbursement of costs incurred by the State."."

Section 2. Section 11-13-2 NMSA 1978 (being Laws 1997, Chapter 190, Section 2) is amended to read:

"11-13-2. REVENUE SHARING OF TRIBAL GAMING REVENUE.--The governor is authorized to execute a revenue-sharing agreement in the form substantially set forth in this section with any New Mexico Indian nation, tribe or pueblo that has also entered into an Indian gaming compact as provided by law; provided, however, that the governor is not authorized to execute a revenue-sharing agreement in the form set forth in this section with an Indian nation, tribe or pueblo that has an outstanding balance due to the state of money owed pursuant to the revenue-sharing agreement entered into between that Indian nation, tribe or pueblo and the state in 1997. Execution of an Indian gaming compact is conditioned upon execution of a revenue-sharing agreement. The consideration for the Indian [entity] nation, tribe or pueblo entering into the revenue-sharing agreement is the condition of the agreement providing limited exclusivity of gaming activities to the [tribal entity] Indian nation, tribe or pueblos. The revenue-sharing agreement shall be in substantially the following form [and is effective when executed by the governor on behalf of the state and the appropriate official of the Indian entity]:

SECTION 1. Summary and consideration. The Tribe [shall agree to contribute] agrees to pay to the State a portion of its Class III Gaming revenues identified in and under procedures of this Revenue-Sharing Agreement, in return for which the State agrees that the Tribe:

A. [has] shall have the exclusive right within the State to provide all types of Class III Gaming described in the Indian Gaming 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

B. will only share that part of its revenue arising from the use of Gaming Machines and all other gaming revenue is exclusively the Tribe's.

SECTION 2. Revenue to State. The parties agree that, after the effective date hereof, the Tribe shall make the quarterly payments provided for in [Paragraph] SECTION 3 of the Revenue-Sharing Agreement to the state treasurer [for deposit into the General Fund of the State ("State General Fund")]. The state treasurer shall deposit in the Tribal Infrastructure Fund forty percent (40%) of the revenue-sharing payments made on the first twelve million dollars ($12,000,000) of net win by the Tribe every year and in the State General Fund and sixty percent (60%) of the revenue-sharing payment made on the first twelve million dollars ($12,000,000) of net win by the Tribe every year. The state treasurer shall deposit in the State General Fund one hundred percent (100%) of the revenue-sharing payments made on net win greater than twelve million dollars ($12,000,000) by the Tribe in a one-year period. Money deposited in the Tribal Infrastructure Fund shall be used for road and infrastructure projects on Tribal land as permitted by law.

SECTION 3. Calculation of Revenue to State.

A. As used in this Revenue-Sharing Agreement, "net win" means the annual total amount wagered at a Gaming Facility on Gaming Machines less the following amounts:

(1) the annual amount paid out in prizes from gaming on Gaming Machines;

(2) the actual amount of regulatory fees paid to the state; and

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

B. On an annual basis, the Tribe shall pay the state [sixteen percent (16%) of the net win]:

(1) four percent (4%) of the net win up to and including six million dollars ($6,000,000);

(2) eight percent (8%) of the net win above six million dollars ($6,000,000) up to and including twelve million dollars ($12,000,000); and

(3) twelve percent (12%) of the net win above twelve million dollars ($12,000,000).

C. For purposes of these payments, all calculations of amounts due shall be based upon the [quarterly] annual activity of the Gaming Facility beginning on July 1 of each year. Payments shall be made quarterly [payments due] to the State [pursuant to these terms] by submitting an amount equal to the amount of net win actually earned by the Tribe in the same quarter one year prior to the quarter for which the payment is being made and shall be paid no later than twenty-five (25) days after the last day of each calendar quarter. The payment made for the final quarter of the year shall be reduced or increased as necessary so that the payments made by the Tribe are based on the actual net win of the Tribe for the entire year. Any payments due and owing from the Tribe in the quarter the Indian Gaming Compact is approved, or the final quarter the Indian Gaming Compact is in force, shall reflect the net win, but only for the portion of the quarter the Indian Gaming Compact is in effect.

SECTION 4. Limitations. The Tribe's obligation to make the payments provided for in [Paragraphs] SECTIONS 2 and 3 of [this section] the Revenue-Sharing Agreement shall apply and continue only so long as there is a binding Indian Gaming 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:

A. If the State passes, amends or repeals any law, or takes any other action, which would directly or indirectly attempt to restrict, or has the effect of restricting, the scope of Indian gaming.

B. 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: (1) the [enactment] operation of a State lottery, (2) any fraternal, veterans or other nonprofit membership organization to operate [such electronic gaming devices] Gaming Machines lawfully, but only for the benefit of such organization's members, (3) limited fundraising activities conducted by nonprofit tax-exempt organizations pursuant to Section 30-19-6 NMSA 1978, and (4) any horse racetracks to operate [electronic gaming devices] Gaming Machines on days on which live or simulcast horse racing occurs.

SECTION 5. Effect of Variance. In the event the acts or omissions of the State cause the Tribe's obligation to make payments under [Paragraph] SECTION 3 of [this section] the Revenue-Sharing Agreement to terminate under the provisions of [Paragraph] SECTION 4 of [this section] the Revenue-Sharing Agreement, such cessation of obligation to pay will not adversely affect the validity of the Indian Gaming Compact, but the amount that the Tribe agrees to reimburse the State for regulatory fees under the Indian Gaming Compact shall automatically increase by twenty percent (20%).

SECTION 6. Third-Party Beneficiaries. This Agreement is not intended to create any third-party beneficiaries and is entered into solely for the benefit of the Tribe and the State."."

Section 3. [NEW MATERIAL] TRIBAL INFRASTRUCTURE FUND CREATED--PURPOSES.--

A. There is created in the state treasury the "tribal infrastructure fund".

B. Forty percent of the revenue-sharing submitted to the state based on the first twelve million dollars ($12,000,000) of net win of each tribe from gaming machines submitted to the state pursuant to revenue-sharing agreements entered into in the form set forth in Section 11-13-2 NMSA 1978 between a tribe and the state shall be deposited in the tribal infrastructure fund.

C. Money in the tribal infrastructure fund shall be appropriated by the legislature for projects on tribal land in the following manner:

(1) fifty percent of the money shall be appropriated to improve state roads or school bus routes on tribal land; and

(2) fifty percent of the money shall be appropriated for other infrastructure projects on tribal land.

D. For purposes of this section:

(1) "infrastructure" means tribal roads, community water and waste water systems, tourist facilities, fiber optics cable and associated technology and community centers for recreation, education or other activities; and

(2) "tribal land" means:

(a) all land within the exterior boundaries of the reservation of an Indian nation, tribe or pueblo, and its confirmed grants from prior sovereigns; and

(b) any other lands to which title is either held in trust by the United States for the exclusive benefit of an Indian nation, tribe or pueblo or one of its members or is held by an Indian nation, tribe or pueblo or one of its members, subject to restrictions against alienation imposed by the United States and over which the Indian nation, tribe or pueblo exercises jurisdiction and governmental authority.

Section 4. DELAYED REPEAL.--If on January 1, 2000, an Indian nation, tribe or pueblo that in 1997 had entered into an Indian gaming compact and a revenue-sharing agreement in the forms set forth in Laws 1997, Chapter 190, Sections 1 and 2, has a balance due and owing to the state pursuant to that revenue-sharing agreement, Sections 60-2E-1 through 60-2E-61 NMSA 1978 (being Laws 1997, Chapter 190, Sections 3 through 63, as amended) are repealed effective January 1, 2000.

Section 5. EFFECTIVE DATES.--

A. An Indian gaming compact supplement set forth in Section 1 of this act and a revenue-sharing agreement set forth in Section 2 of this act may be executed on or after June 18, 1999. The effective date of the provisions of an Indian gaming compact supplement and an amended version of a revenue-sharing agreement executed by a tribal official authorized by the Indian nation, tribe or pueblo entering into the agreement and the governor of New Mexico on behalf of the state is the date on which the supplement to that Indian gaming compact and that amended version of a revenue-sharing agreement has been approved pursuant to the provisions of the federal Indian Gaming Regulatory Act.

B. The effective date of the provisions of Section 3 of this act is July 1, 1999.