                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 31 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 STATE OF NEW MEXICO,

               Plaintiff - Appellee,                    No. 01-2019
          v.                                          (D. New Mexico)
 PUEBLO OF POJOAQUE,                             (D.C. No. CIV-00-851-BB)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before TACHA , ANDERSON , and MURPHY , Circuit Judges.




      This case involves the gaming compact and revenue sharing agreement

entered into in 1997 between the Pueblo of Pojoaque Tribe and the State of New

Mexico. 1 The compact is a necessary prerequisite, under the Indian Gaming



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      1
        Originally, a number of other tribes were also parties to this case. All
tribes except for the Pueblo of Pojoaque have stipulated to the dismissal of their
appeals.
Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701- 2721, for the Tribe to conduct

class III gaming on its reservation in New Mexico. The revenue sharing

agreement (“RSA”), a creation of state statute, was by statute a prerequisite for

the State to enter into the compact with the Tribe.   See N.M. Stat. Ann. § 11-13-2.

The RSA requires the Tribe to pay the State 16% of its total “net win” from

gaming machines, and, in exchange therefore, the State agreed to various

restrictions on the expansion of non-Indian gaming.

       The Tribe and the State entered into the RSA and compact, which were then

submitted to the Secretary of the Interior for approval, as required by the IGRA.

Rather than electing to approve or disapprove the documents, the Secretary chose

to take no official action, which resulted in the compact and RSA going into

effect by operation of law, to the extent they comply with the IGRA.    See 25

U.S.C. § 2710(d)(8)(C).

       When the Tribe began refusing to comply with the RSA requirement that it

submit 16% of its net win to the State, the State brought this action seeking a

declaration that: (1) the RSA requirements are part of the compact; (2) the RSA

is legal under the IGRA; (3) the Tribe was violating the IGRA by failing to remit

the payment required under the RSA; and (4) all Tribal gaming in violation of the

IGRA be enjoined. The Tribe filed a motion to dismiss claiming it had sovereign

immunity from suit and that the district court lacked subject matter jurisdiction.


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The district court denied the motion to dismiss, holding “[t]he IGRA . . . provides

a solid foundation for both federal question jurisdiction and a waiver of tribal

immunity. Since the State has filed the case, the Court has jurisdiction over the

subject matter and the parties.” Memorandum Op. & Order at 14. This appeal,

which is an appeal from an immediately appealable interlocutory order, followed.

See Cohen v. Beneficial Indus. Loan Corp.         , 337 U.S. 541 (1949).

       We have carefully reviewed the arguments of the parties and the record in

this case. We AFFIRM the district court’s decision that, at this juncture in the

case, it has jurisdiction over this case and its parties.   See Mescalero Apache

Tribe v. New Mexico , 131 F.3d 1379 (10th Cir. 1997);         Pueblo of Santa Ana v.

Kelly , 104 F.3d 1546 (10th Cir. 1997). We accordingly REMAND this case for

further proceedings. We deny other pending motions.

                                                     ENTERED FOR THE COURT


                                                     Stephen H. Anderson
                                                     Circuit Judge




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