May 13, 2010 – Michael L. Antonio v. Inn of the Mountain Gods Resort and Casino and Tribal First, No. 29,377

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 13, 2010

NO. 29,377

MICHAEL L. ANTONIO,
Worker: A ppellant,

V.

INN OF THE MOUNTAIN

GODS RESORT AND

CASINO and TRIBAL FIRST,
Employer/Insurer-A ppellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Victor S. Lopez, Workers’ Compensation J udge

Gerald A. Hanrahan
Albuquerque, NM

for Appellant

John D. Wheeler & Associates
Pamela J. Kushmaul
Alamogordo, NM

for Appellees

OPINION
ROBLES, Judge.
{1} 	Michael Antonio (Worker) appeals from an order of dismissal entered by the
Workers’ Compensation Administration (WCA) for lack of subject matter jurisdiction.
On appeal, Worker alleges that (1) the WCA erred in determining that Worker’s injury
occurred on the Mescalero Apache Tribe reservation (Tribe) and that the Tribe was
not conducting business within the State of New Mexico; and (2) the WCA had
jurisdiction by default because the Tribe did not have a workers’ compensation
program in effect at the time of Worker’s injury, and the compensation that was
provided to Worker was not as good as the compensation required by the New Mexico
Workers’ Compensation Act. We conclude that the WCA did not have jurisdiction
over the Tribe because the Tribe did not expressly waive sovereign immunity and,
therefore, the WCA’s order reached the right result for the wrong reasons. 	See
Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208
P.3d 901 (noting that we may affirm on grounds not relied upon if those grounds do
not require us to look beyond the factual allegations that were raised and considered
below). We affirm.

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I. 	BACKGROUND
{2} 	Worker appeals from an order of the WCA dismissing his claim for lack of
subject matter jurisdiction. Worker was injured during the course of his employment
as a snowmaker for Ski Apache, a division of the Inn of the Mountain Gods Resort
and Casino (Inn). The Inn is wholly owned and operated by the Mescalero Apache
Tribe, a federally recognized Indian tribe.
{3} 	Worker was injured at work on January 9, 2006. From the time he was injured
until he filed a complaint with the WCA on March 22, 2007, he availed himself of the
workers’ compensation benefits available through the Tribe. 	Worker’s complaint
alleged that he was entitled to additional compensation for neck problems and
depression that resulted from his injury, over and above the permanent disability
benefits awarded to him through the Tribe’s insurer, Tribal First.
{4} 	The WCA dismissed Worker’s complaint based upon a lack of subject matter
jurisdiction, holding that Worker was injured on tribal land, and the Tribe was not
carrying out business in the state of New Mexico. Worker challenges both findings
and asserts that the WCA may exercise jurisdiction over the Tribe because Worker
was injured on federal, not tribal, lands, and that Ski Apache is located, at least in part,
in New Mexico.

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II. 	DISCUSSION
A. 	The Tribe Enjoys Sovereign Immunity From Suit
{5} 	“We review de novo the legal question of whether an Indian tribe, or an entity
under the tribe’s control, possesses sovereign immunity.” Martinez v. Cities of Gold
Casino, 2009-NMCA-087, ¶ 22, 146 N.M. 735, 215 P.3d 44, cert. denied, 2009-
NMCERT-007, 147 N.M. 361, 223 P.3d 358.
It has long been recognized that Indian tribes have the same
common-law immunity from suit as other sovereigns. A tribe is free to
waive its sovereign immunity, but such waivers must be express and
unequivocal. Because a tribe need not waive immunity at all, it is free
to prescribe the terms and conditions on which it consents to be sued,
and the manner in which the suit shall be conducted. 	Any such
conditions or limitations must be strictly construed and applied.
When a tribe is protected by sovereign immunity, a state court
lacks jurisdiction to hear a suit. (Without an unequivocal and express
waiver of sovereign immunity or congressional authorization, state
courts lack the power to entertain lawsuits against tribal entities.)
R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, ¶¶ 10-11, 139 N.M. 85,
128 P.3d 513 (filed 2005) (internal quotation marks and citations omitted).
{6} 	We begin by addressing Worker’s contentions that because he was injured off
the reservation and the Tribe was engaged in business in the state of New Mexico, the
WCA has jurisdiction over his claim. Worker rests his arguments primarily on DeFeo
v. Ski Apache Resort, 120 N.M. 640, 904 P.2d 1065 (Ct. App. 1995). DeFeo held that,
absent an unequivocal waiver of immunity by the Tribe, the Tribe is immune from suit

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in New Mexico’s state courts for personal injuries suffered by a non-Indian in Indian
country. Id. at 641-42, 644, 904 P.2d at 1066-67, 1069. The Court in DeFeo stated
that the controlling factor in that case was “the location of [the p]laintiff’s accident
and resulting injury.” Id. at 643, 904 P.2d at 1068. We note, however, that DeFeo
also contains the following language: 	“Without an explicit waiver, the Nation is
immune from suit in state court—even if the suit results from commercial activity
occurring off the Nation’s reservation.” Id.
{7} 	Worker next asserts that Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d
648 (Ct. App. 1992), stands for the proposition that Ski Apache is not immune from
suit where a skier was injured within the boundaries of New Mexico. However, the
Court in Lopez makes no mention of tribal sovereign immunity.
{8} 	Worker also argues that commercial off-reservation activity by a tribal entity
is not protected by sovereign immunity under Padilla v. Pueblo of Acoma, 107 N.M.
174, 179-80, 754 P.2d 845, 850-51 (1988) (holding that “the district court may
exercise jurisdiction over an Indian tribe when the tribe is engaged in activity off of
the reservation as an unincorporated association registered and authorized to do
business in this state and is sued in that capacity for breach of a written contract”).
Conversely, the Tribe asserts that Kiowa Tribe of Oklahoma v. Manufacturing
Technologies, Inc., 523 U.S. 751, 754 (1998), controls. We agree with the Tribe. The

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United States Supreme Court held in Kiowa Tribe that Indian tribes have immunity
from suit on contracts “whether those contracts involve governmental or commercial
activities and whether they were made on or off a reservation.” Kiowa Tribe, 523 U.S.
at 760. The New Mexico Supreme Court has recently stated that Padilla has been
implicitly overruled by Kiowa Tribe. 	See Gallegos v. Pueblo of Tesuque, 2002-
NMSC-012, ¶ 25, 132 N.M. 207, 46 P.3d 668. Thus, Padilla does not assist Worker.
{9} 	Gallegos held that on-reservation activity of an Indian tribe is protected by
sovereign immunity regardless of whether the activity is commercial or governmental.
2002-NMSC-012, ¶¶ 27, 36. Worker argues that the location of the accident controls.
However, all current New Mexico case law reiterates one consistent principle—that
sovereign immunity, unless abrogated by Congress, must be expressly waived by the
tribe.
{10} 	“[T]ribal immunity is a matter of federal law and is not subject to diminution
by the [s]tates.” Kiowa Tribe, 523 U.S. at 756; see Bales v. Chickasaw Nation Indus.,
606 F. Supp. 2d 1299, 1304-05, 1308 (D.N.M. 2009) (affirming grant of summary
judgment in employment discrimination suit in favor of [the] defendant tribal
corporation doing business in New Mexico). 	A tribe’s or tribal entity’s sovereign
immunity may not be implicitly waived. Sanchez v. Santa Ana Golf Club, Inc., 2005-
NMCA-003, ¶ 18, 136 N.M. 682, 104 P.3d 548 (filed 2004). As discussed above, the

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question of whether a tribe’s activity occurred on or off the reservation has been
rendered inconsequential under Kiowa Tribe.
{11} 	To the extent that Worker argues that Kiowa Tribe’s holding is limited to suits
on contract, we disagree. The United States Supreme Court made it clear that courts
should defer to Congress on questions regarding the limits on tribal immunity. See
Kiowa Tribe, 523 U.S. at 759 (noting that “Congress has occasionally authorized
limited classes of suits against Indian tribes” and that this capacity of Congress
“counsels some caution by us in this area” (internal quotation marks and citation
omitted)). Worker does not cite any federal legislation limiting tribal immunity to
activities occurring on tribal land.
{12} 	In its answer brief, the Tribe directs our attention to Mescalero Apache Tribe
v. Parsons, Civ. No. 97-0532 JP/DJS (D.N.M. 1998) (mem. & order), a federal district
court case determining that the tribe did not waive its immunity from personal injury
suits where the accident arose on federal, rather than tribal, land. 	Although not
controlling precedent, this memorandum opinion is informative on this issue.
{13} 	We decline to hold that the Tribe has waived sovereign immunity from suit by
operating a ski area on federal land, or that the location of Worker’s accident confers
jurisdiction to the state. 	The principle espoused in Kiowa Tribe instructs our
determination that, absent an express waiver of immunity from suit, the WCA does

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not have jurisdiction to hear Worker’s claim. 523 U.S. at 754, 760.
{14} 	It is a recognized principle of federal Indian law that certain laws, such as
employment laws, may be applicable to tribes, although the tribes still enjoy immunity
from suit. There is a difference between the right to demand compliance with state
laws and the means available to enforce them. See Bales, 606 F. Supp. 2d at 1303.
“Whether an Indian tribe is subject to a statute and whether the tribe may be sued for
violating the statute are two entirely different questions.” 	Id. (internal quotation
marks and citation omitted).
B. 	The Tribe did not Waive Sovereign Immunity in the Gaming Compact
{15} 	We turn next to Worker’s contention that the Tribe waived its immunity in
NMSA 1978, Section 11-13-1(4)(B)(6) (1997) (amended 2007) of the Compact
between itself and the state of New Mexico. Worker asserts that because the Tribe has
agreed to provide “all employees of a gaming establishment . . . workers’
compensation insurance . . . benefits at least as favorable as those provided by
comparable state programs,” it has implicitly waived its sovereign immunity with
respect to workers’ compensation disputes.
{16} 	Worker argues that under the Compact he is a gaming employee and must be
provided workers’ compensation. He asserts that, at the time of his injury, the Tribe
did not have a workers’ compensation program in effect, so the WCA has jurisdiction

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by default. 	However, the record shows that Worker was provided workers’
compensation for over eight months and was awarded permanent disability. 	The
Tribe’s current Workers’ Compensation Ordinance, effective January 1, 2007, states
that it is intended to supersede and replace all current policies, practices, customs, and
procedures relating to any work-related injury suffered by a tribal employee or
enterprise employee. Mescalero, N.M., Ordinance 06-07 (Jan. 1, 2007). Although it
is not clear from the record under what workers’ compensation program the Tribe was
operating at the time of Worker’s injury, the Tribe’s insurer provided compensation
to Worker for his diminished capacity resulting from the injury.
{17} 	The argument that Section 4(B)(6) of the Compact constitutes a waiver of tribal
sovereign immunity for workers’ compensation claims has recently been considered
and rejected by this Court. See Martinez, 2009-NMCA-087, ¶ 27 (disagreeing with
the argument that the purchasing of a workers’ compensation insurance policy
implicitly requires a tribe or tribal entity to surrender to state court jurisdiction). This
Court has held that even participation in the state’s workers’ compensation program
does not constitute an express waiver of sovereign immunity. 	See Sanchez, 2005-
NMCA-003, ¶ 18 (“[W]aivers of sovereign immunity cannot be created by implication
through activities such as participation in the state’s workers’ compensation
program.”).

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{18} 	We also note that even if, as Worker argues, the Tribe did not have a workers’
compensation program in place when he was injured, the Compact still does not
provide a private right of action. See Martinez, 2009-NMCA-087, ¶¶ 25-26 (holding
that the private right of action to which tribes agreed in the Compact pertains only to
visitors and is inapplicable to worker’s compensation disputes).
{19} 	Finally, Worker argues that the Tribe’s workers’ compensation was not as
favorable as the state’s as required by the Compact. 	Due to the foregoing
determinations that the WCA lacks subject matter jurisdiction because the Tribe did
not expressly waive immunity under Section 4(B)(6), we do not reach the question of
whether Worker is considered a “gaming employee” under the Compact. Even if we
were to find that Worker is a “gaming employee” under the terms of the Compact,
Worker has failed to exhaust tribal remedies. We cannot say without Worker having
exhausted his remedies whether the Tribe’s workers’ compensation program is less
favorable than the State of New Mexico’s.
C. 	Worker’s Remedy Lies in Tribal Court
{20} 	Worker requests that this Court order the WCA to hold a trial on the merits of
his claim. As discussed above, we cannot order a trial because the Tribe did not waive
sovereign immunity from suit. This Court’s precedent is clear that Section 4(B)(6)
does not constitute an express waiver of immunity for purposes of resolving workers’

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compensation disputes.
{21} 	This Court has determined that the Compact is silent as to where jurisdiction
might lie with regard to conflicts over the workers’ compensation provided by the
Tribe. 	Martinez, 2009-NMCA-087, ¶ 26. 	Therefore, we reasoned that the private
remedy available to injured casino patrons is inapplicable to workers’ compensation
cases. 	Id. (“Doe is thus inapplicable [to workers’ compensation disputes].”). 	The
Tribe’s current worker’s compensation program provides for a remedy in tribal court.
Mescalero, N.M., Ordinance 06-07, § 4. Because Worker has not appeared in tribal
court, his argument that the Tribe’s workers’ compensation is insufficient is
speculative and incapable of review.
III. 	CONCLUSION
{22} 	For the reasons discussed above, the Tribe is immune from suit by virtue of its
status as a sovereign nation. Worker’s question of whether he has not been provided
adequate workers’ compensation is unreviewable because he has not exhausted his
tribal remedies. Based on the foregoing, we affirm the order of the WCA granting
summary judgment and dismissing Worker’s claim against the Tribe.
{23} 	IT IS SO ORDERED.
_________________________________
ROBERT E. ROBLES, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

JAMES J. WECHSLER, Judge

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