 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 ERIC PENA,

 8          Worker-Appellant,

 9 v.                                                                    NO. 29,799

10 INN OF THE MOUNTAIN GODS
11 RESORT AND CASINO and
12 TRIBAL FIRST,

13          Employer/Insurer-Appellees.

14 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
15 Gregory D. Griego, Workers’ Compensation Judge

16 Tony Couture
17 Albuquerque, NM

18 for Appellant

19 John D. Wheeler and Associates
20 John D. Wheeler
21 Alamogordo, NM

22 for Appellees

23                                 MEMORANDUM OPINION

24 KENNEDY, Judge.

25          Eric Pena (Worker) alleges he was injured while fulfilling his duties as a terrain
 1 park supervisor at Ski Apache, near Ruidoso, New Mexico. Ski Apache is a

 2 commercial enterprise operated by Inn of the Mountain Gods Resort and Casino and

 3 insured by Tribal First (collectively Employers). After his injury, Worker filed a

 4 claim with the New Mexico Workers’ Compensation Administration (WCA), and

 5 Employers, which are an unincorporated enterprise of the Mescalero Apache Tribe,

 6 filed a motion to dismiss on the basis of tribal sovereign immunity. The workers’

 7 compensation judge (WCJ) granted Employers’ motion, and Worker appeals.

 8        For the reasons set out below, we affirm and hold that the WCJ properly

 9 dismissed this case.

10 BACKGROUND

11        Worker alleges that at the time of his injury he was employed as a terrain park

12 supervisor, and as such, was required to design, maintain, and test various ski features

13 as a normal part of his duties to Employers. On January 17, 2009, in an area of the ski

14 resort outside the boundaries of the Mescalero Apache Reservation, Worker was

15 testing such a feature when he fell and sustained injuries to his neck, back, and left

16 arm.    These injuries left Worker unable to perform his duties and he sought

17 compensation through the tribal workers’ compensation system. Employers denied

18 his claim on the basis that Worker was engaged in horseplay and was therefore acting

19 outside the course and scope of his employment when injured. It appears that Worker


                                              2
 1 did not appeal that decision.

 2        Worker subsequently submitted another claim, this time with the WCA. The

 3 matter was assigned to a mediator, who recommended dismissal on the basis that the

 4 state lacked subject matter jurisdiction to adjudicate a claim against Employers.

 5 Worker rejected and Employers accepted the mediator’s proposed resolution, and on

 6 June 9, 2009, the case was assigned to a WCJ. Employers argued that tribal sovereign

 7 immunity barred Worker’s claim, and after holding a hearing, the WCJ agreed,

 8 concluding, “[t]he US Supreme Court has established a very broad view of what

 9 constitutes sovereign immunity from suit by tribal entities.” Noting that tribal

10 immunity may be defeated in only two ways, congressional abrogation or express

11 tribal waiver, the WCJ further found, that there had been no evidence offered of an

12 express or implied waiver of immunity, and that sovereign immunity deprived the

13 WCA of subject matter jurisdiction over the dispute.

14        Neither party disputes that Ski Apache is a resort owned and operated by Inn

15 of the Mountain Gods Resort and Casino, which, in turn, is wholly owned and

16 operated as an umbrella organization by the Mescalero Apache Tribe. See DeFeo v.

17 Ski Apache Resort, 120 N.M. 640, 641 904 P.2d 1065, 1066 (1995) (providing an

18 overview of the Ski Apache resort and describing its history, boundaries, and unique

19 commercial relationship with the United States Forest Service). Worker contends (1)


                                            3
 1 sovereign immunity does not apply to state workers’ compensation claims involving

 2 off-reservation injuries; (2) the state Workers’ Compensation Act (the Act),

 3 specifically, NMSA 1978, Section 52-1-6 (1990), does not exempt Indian tribes from

 4 coverage and therefore applies to them; (3) Employers waived sovereign immunity

 5 by participating in state workers’ compensation proceedings; and (4) the gaming

 6 compact between the tribe and the state gives the WCA jurisdiction over this dispute.

 7 DISCUSSION

 8 A.     Standard of Review

 9        We review de novo the question of whether an Indian tribe or tribal sub-

10 division possesses sovereign immunity. Sanchez v. Santa Ana Golf Club, Inc., 2005-

11 NMCA-003, ¶ 4, 136 N.M. 682, 104 P.3d 548 (citing Sac and Fox Nation v. Hanson,

12 47 F.3d 1061, 1063 (10th Cir.1995)). We also apply a de novo standard to questions

13 of whether a case was properly dismissed for want of subject matter jurisdiction. Id.

14 B.     Tribal Sovereign Immunity in State Workers’ Compensation Claims

15        It is well-established in New Mexico that Indian tribes and their subdivisions

16 enjoy sovereign immunity. See Gallegos v. Pueblo of Tesuque, 2002-NMSC-012,

17 ¶ 27, 132 N.M. 207, 46 P.3d 668 (citing the United States Supreme Court’s holding

18 in Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998), and holding that

19 tribal sovereign immunity is a matter of congressional control, not subject to judicial


                                              4
 1 boundary-setting). One manifestation of tribes’ power of self-governance is their

 2 “immunity from suit in state courts.” DeFeo, 120 N.M. at 642, 904 P.2d at 1067.

 3 Absent clear waiver by the tribe itself or congressional abrogation of the doctrine,

 4 tribal sovereign immunity is absolute, and any waiver must be “unequivocally

 5 expressed.” Id.; Sanchez, 2005-NMCA-003, ¶ 5. It cannot be implied. Such

 6 immunity applies whether the activity giving rise to the plaintiff’s claim occurs within

 7 or without tribal boundaries. DeFeo, 120 N.M. at 643, 904 P.2d at 1068.

 8        These principles apply in an identical manner to claims for state workers’

 9 compensation. Indeed, our opinion in Antonio v. Inn of the Mountain Gods Resort &

10 Casino involved a factual scenario strikingly similar to the one at bar and is

11 controlling on this point. 2010-NMCA-077, ¶¶ 11, 13, 148 N.M. 858, 242 P.3d 425.

12 In Antonio, worker sustained an injury while performing his duties as a snowmaker

13 at Ski Apache. He first received compensation from the tribe and later sought

14 additional compensation through the WCA.           On the basis of tribal sovereign

15 immunity, the state WCJ dismissed worker’s claim for lack of jurisdiction. Id. ¶¶ 3-4.

16 On appeal, worker made an argument almost identical to the one advanced by Worker

17 in this case—specifically, that the doctrine of tribal sovereign immunity, as outlined

18 in Kiowa, does not protect tribes from suits before the WCA. This Court rejected that

19 argument and held, “[t]he principle espoused in Kiowa . . . instructs our determination


                                              5
 1 that, absent an express waiver of immunity from suit, the WCA does not have

 2 jurisdiction to hear [w]orker’s claim.” Antonio, 2010-NMCA-077, ¶ 13. We also

 3 rejected worker’s argument that Kiowa applies only to contract cases arising outside

 4 reservation boundaries. Antonio, 2010-NMCA-077, slip op., ¶ 11. Tribal sovereign

 5 immunity applies despite the location of the injury and regardless of whether the

 6 dispute arises in contract, tort, or some other theory. See id. ¶¶ 10-11. As this Court

 7 held, “all current New Mexico case law reiterates one consistent principle—that

 8 sovereign immunity, unless abrogated by Congress, must be expressly waived by the

 9 tribe.” Id. ¶ 9; see Sanchez, 2005-NMCA-003, ¶¶ 5-7, 18 (holding that employment

10 suit against tribe was barred by sovereign immunity because worker failed to establish

11 waiver). “[C]ourts should defer to Congress on questions regarding the limits of tribal

12 immunity.” Antonio, 2010-NMCA-077, ¶ 11.

13        The case at bar demands a similar result. Worker argues that Kiowa applies

14 only to contract disputes, but as our analysis demonstrates, that is too narrow a

15 reading. Worker also contends that the Act, specifically Section 52-1-6, does not

16 exclude tribes and therefore constitutes a law of general applicability. But this Court’s

17 holding in Antonio refutes that argument as well. Antonio, 2010-NMCA-077, ¶ 14.

18 For these reasons, we hold that tribal sovereign immunity applies in this case, and

19 because Worker directs this Court to no evidence that Congress has authorized state


                                               6
 1 workers’ compensation claims against tribes, we turn to Worker’s argument that

 2 Employers waived their immunity.

 3 C.     Waiver of Tribal Sovereign Immunity

 4        Even if sovereign immunity applies in this case, Worker contends, Employers

 5 waived it by answering his claim in the WCA proceeding. Worker relies on the fact

 6 that Employers filed a “responsive pleading when they accepted the recommended

 7 resolution” of the mediator. Such a pleading, Worker argues, suffices to effectuate a

 8 waiver; but we disagree. A strong presumption against the waiver of sovereign

 9 immunity protects tribes in exactly this situation. For example, in Sanchez, this Court

10 considered whether a tribal employer waived immunity by participating in WCA

11 proceedings. 2005-NMCA-003, ¶ 18. There, we pointed out the

12        strong presumption against waiver of tribal sovereign immunity.
13        Therefore, a waiver of sovereign immunity cannot be implied but must
14        be unequivocally expressed. Tribal entities may not be sued absent
15        consent to be sued. Indian tribes long have structured their many
16        commercial dealings upon the justified expectation that absent an express
17        waiver their sovereign immunity stood fast.

18 Id. ¶ 7 (internal quotation marks and citations omitted). Any waiver of sovereign

19 immunity must be strictly construed, we held, “with all ambiguous provisions

20 interpreted in favor of the tribe.” Id. ¶ 10. Because such a waiver cannot be implied,

21 we concluded, “waivers of sovereign immunity cannot be created by implication

22 through activities such as participation in the state’s workers’ compensation program.”

                                              7
 1 Id. ¶ 18. In this case, the recommended resolution was to dismiss the case for lack of

 2 subject matter jurisdiction. Employers’ acceptance of this proposed resolution

 3 indicates not that there was a waiver, but rather that Employers agreed that there was

 4 no jurisdiction. Accordingly, we hold that Employers’ participation in the WCA

 5 proceedings did not waive tribal sovereign immunity.

 6        Moreover, Worker’s reliance on Martinez v. Cities of Gold Casino, is

 7 misplaced. 2009-NMCA-087, ¶ 16, 146 N.M. 735, 215 P.3d 44. In Martinez, this

 8 Court made it clear that “voluntary participation in workers’ compensation does not

 9 act as a waiver of sovereign immunity.” Id. ¶ 27. Instead, tribal employers waive

10 their immunity only by explicitly doing so, for example, by agreeing that “the [WCA]

11 does have jurisdiction over this claim” or by stating that “[j]urisdiction of [WCA] is

12 not contested.” Id. ¶ 5 (alterations in original). The tribal employer in Martinez made

13 both of those statements—and it was on the basis of those explicit waivers that we

14 endorsed the WCJ’s jurisdiction in that case. Id. ¶ 28.

15 D.     Significance of the Gaming Compact

16        Finally, we consider Worker’s argument that the gaming compact between the

17 tribe and the State gives the WCA jurisdiction to hear this claim. This Court rejected

18 an identical argument in Martinez. Id. ¶ 26; see Antonio, 2010-NMCA-077, ¶¶ 17, 19-

19 20 (holding that “This Court’s precedent is clear that [the gaming compact] does not


                                              8
 1 constitute an express waiver of immunity for purposes of resolving workers’

 2 compensation disputes.”); see also NMSA 1978, § 11-13-1 (4)(B)(6) (codifying the

 3 gaming compact). Worker concedes that Martinez directly forecloses his argument

 4 on this issue and asks us to overrule it. We refuse to do so. It is firmly established

 5 that the gaming compact does not waive tribal sovereign immunity in workers’

 6 compensation claims, and we believe Martinez correctly applied that principle.

 7 CONCLUSION

 8        For these reasons, we affirm the order of the WCJ dismissing this case. Worker

 9 points to no evidence that Congress intended to allow state workers’ compensation

10 claims against Employers, and Employers have not waived their immunity. As

11 indicated above, it is unclear whether Worker appealed the denial of his workers’

12 compensation claim within the tribal system, but as this Court stated in Antonio, the

13 proper remedy lies there, not with the WCA.          “The Tribe’s current worker’s

14 compensation program provides for a remedy in tribal court[,]” and where a worker

15 has not appeared in tribal court, any “argument that the Tribe’s [program] is

16 insufficient is speculative and incapable of review.” Antonio, 2010-NMCA-077, ¶ 21.

17        IT IS SO ORDERED.



18                                         ___________________________________
19                                         RODERICK T. KENNEDY, Judge

                                             9
1 WE CONCUR:



2 __________________________________
3 CELIA FOY CASTILLO, Chief Judge



4 __________________________________
5 JAMES J. WECHSLER, Judge




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