                                                                   F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                                      PUBLISH
                                                                   NOV 10 1997
                     UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                                                       Clerk
                           FOR THE TENTH CIRCUIT



JICARILLA APACHE TRIBE,

             Plaintiff-Counter-
             Defendant-Appellant,

      v.                                           No. 96-2192

JOHN J. KELLY, in his official capacity
as United States Attorney for the District
of New Mexico; JANET RENO, Attorney
General of the United States; BRUCE
BABBITT, United States Secretary of the
Interior; UNITED STATES OF
AMERICA,

             Defendants-Counter-
             Claimants-Appellees,

      and

STATE OF NEW MEXICO,

             Counter-Defendant-
             Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                        (D.C. NO. CIV-96-700-JP)
Submitted on the briefs:*

Wayne H. Bladh, Teresa Leger de Fernandez, Joshua S. Grinspoon, Nordhaus, Haltom,
Taylor, Taradash & Frye, LLP, Santa Fe, New Mexico, for Plaintiff-Appellant.

Lois J. Schiffer, Assistant U.S. Attorney General, Washington, D.C., John J. Kelly,
United States Attorney, Phyllis A. Dow, Assistant U.S. Attorney, Albuquerque, New
Mexico, for Defendants-Appellees.

Tom Udall, Attorney General of New Mexico, Christopher D. Coppin, Assistant Attorney
General, Albuquerque, New Mexico, for Counter-Defendant/Appellee State of New
Mexico.


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


ANDERSON, Circuit Judge.




       This is one of several cases involving the validity of Class III gaming on tribal

casinos in New Mexico. Plaintiff and appellant, the Jicarilla Apache Tribe, is a federally

recognized Indian Tribe in New Mexico. On February 13, 1995, it entered into a Tribal-

State Class III gaming compact with the State of New Mexico, as is permissible under the

Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (“IGRA”). On March 22, 1995,




       After examining the briefs and appellate record, this panel has determined
       *

unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.


                                            -2-
the Secretary of the Interior approved the Compact. The Tribe opened its Class III

gaming facility on May 20, 1996.

       On May 21, 1996, the Tribe brought this action for declaratory relief against John

Kelly, the United States Attorney for the District of New Mexico, Attorney General Janet

Reno, Bruce Babbitt, the Secretary of the Interior, and the United States, seeking a

declaration that: 1) it had the right to continue its Class III gaming under the Compact; 2)

its existing Class III gaming activities are lawful and that the United States’ threatened

closure of the facility was a violation of their Fifth Amendment rights; 3) Class III

gaming activities are lawful and authorized by applicable federal law and the Compact;

and 4) the defendants have a fiduciary duty to protect the Tribe’s Class III gaming

activities from interference by persons purporting to act under color of state or federal

law.

       The defendants counterclaimed against the Tribe and the State, seeking an order

declaring that the Class III gaming activities being conducted by the Tribe violated

applicable federal and state laws. The district court eventually issued an order declaring

the compact was “invalid” and “not in effect” and dismissed with prejudice the Tribe’s

action for declaratory relief. Jicarilla Apache Tribe v. Kelly, No. Civ. 96-0700 JP/LFG,

slip op. at 8-9 (D.N.M. Sept. 18, 1996).1


       1
        Two other similar cases preceded this one in the New Mexico federal district
court. Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284 (D.N.M. 1996), aff’d, 104 F.3d
                                                                           (continued...)

                                            -3-
       Our court subsequently decided Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th

Cir.), cert. denied, 65 U.S.L.W. 3713 (U.S. Oct. 6, 1997) (No. 96-1617), in which we

affirmed the district court decision, 932 F. Supp. 1284, upon which the district court in

this case had relied in dismissing the Tribe’s action. In Pueblo of Santa Ana, we held that

compacts virtually identical to the one signed by the Jicarilla Tribe were invalid under

IGRA because the Governor of New Mexico lacked authority under New Mexico law to

execute the compacts on behalf of the state. See 104 F.3d at 1559. Both sides to this case

have, at various times, conceded that the outcome of this case will be controlled by the

outcome of Pueblo of Santa Ana. See Appellant’s Br. at 6 (“[T]he Tribe offered that this

case be resolved by the outcome of Pueblo of Santa Ana v. Kelly . . . .”); Appellees’

Resp. to Order to Show Cause (“[T]he panel’s decision in this case is controlled by

Pueblo of Santa Ana v. Kelly . . . .”). We recognized as much in Pueblo of Santa Ana,

104 F.3d at 1548 n.2.

       The Tribe, however, now endeavors to distinguish this case in part from Pueblo of

Santa Ana, arguing that: 1) the “Tribe raised several arguments in the district court that


       1
         (...continued)
1546 (10th Cir.), cert. denied, 65 U.S.L.W. 3713 (U.S. Oct. 6, 1997) (No. 96-1617);
Apache Tribe of the Mescalero v. New Mexico, No. Civ. 92-0076 JC/WWD (D.N.M.
June 6, 1996). In both of those cases, the district court concluded that the compacts at
issue, which were virtually identical to the Jicarilla Tribe’s Compact, were invalid. The
district court in this case therefore issued an order to show cause why it should not reach
the same result in this case as in Pueblo of Santa Ana and Mescalero. After hearing
argument on the order to show cause, the district court entered the order dismissing the
Tribe’s action.

                                            -4-
were not raised or resolved in the Santa Ana case,” in particular that the State of New

Mexico is estopped, under state law, from asserting the invalidity of the Compact and that

the State violated its obligation to negotiate in good faith; and 2) the State “has

affirmatively filed a pleading directly against the Tribe” thereby waiving its Eleventh

Amendment immunity from the Tribe’s claim of failure to negotiate in good faith.

Appellant’s Resp. to Order to Show Cause at 2-3. Such efforts to distinguish Pueblo of

Santa Ana are unavailing.

       In Pueblo of Santa Ana, we held that:

       (1) IGRA imposes two separate requirements -- the State and the Tribe must
       have “entered into” a compact and the compact must be “in effect” pursuant
       to Secretarial approval -- before class III gaming is authorized; (2) state law
       determines the procedures by which a state may validly enter into a
       compact; and (3) in determining whether the State and the Tribes have
       entered into compacts, valid and binding under New Mexico law, we agree
       with and follow the New Mexico Supreme Court’s decision in [State ex
       rel.]Clark[ v. Johnson, 904 P.2d 11 (N.M. 1995)].

Pueblo of Santa Ana, 104 F.3d at 1553. In Clark, after reviewing both state constitutional

and statutory law, the New Mexico Supreme Court held that the Governor of New

Mexico, Gary Johnson, lacked the authority to sign the gaming compacts on behalf of the

State. 904 P.2d at 22-26. As indicated above, we agreed with that decision in Pueblo of

Santa Ana and concluded that the Governor’s lack of authority was fatal to the compacts’

validity under IGRA. The Supreme Court has just denied certiorari in Pueblo of Santa

Ana, so our decision in that case is now the law of this circuit. Pueblo of Santa Ana

compels the conclusion in this case that the Compact between the Jicarilla and the State,

                                             -5-
signed also by Governor Johnson, is invalid under state law and thus fails to comply with

IGRA.

        The Tribe also argues that it intended to file a cross-claim against the State,

asserting that the State failed to negotiate in good faith, but it was prevented from filing

that claim by the district court’s premature dismissal of this case. The Tribe thus seeks a

remand to “allow the Tribe to file a crossclaim against the State for failure to negotiate in

good faith.” Appellant’s Resp. to Order to Show Cause at 3. We have held that the

district court correctly dismissed the Tribe’s action because the Compact is invalid under

state law. Thus, the dismissal was neither “premature” nor otherwise inappropriate.

        Moreover, under Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the

Eleventh Amendment shields the state from an action seeking to compel the state to

negotiate with the Tribe in good faith.2 That Eleventh Amendment immunity can,

however, be waived. See Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 n.4

(1991); Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995). Waiver is not easily

presumed. “[A]ny waiver by the state of its Eleventh Amendment immunity must be

unequivocal . . . . Constructive consent is insufficient.” Johns, 57 F.3d at 1553 (citations

omitted). We have held that the mere appearance of the state or a state entity in a lawsuit



        The Supreme Court in Seminole held that Congress lacked the authority to
        2

abrogate the states’ Eleventh Amendment immunity in IGRA, which was enacted
pursuant to the Indian Commerce Clause. Thus, the provision in IGRA authorizing tribes
to sue states for failing to negotiate gaming compacts in good faith did not waive the
states’ Eleventh Amendment immunity.

                                             -6-
is insufficient to waive Eleventh Amendment immunity. See Mascheroni v. Board of

Regents, 28 F.3d 1554, 1560 (10th Cir. 1994); AMISUB (PSL), Inc. v. Colorado Dep’t of

Soc. Servs., 879 F.2d 789, 793 (10th Cir. 1989). “[W]aiver of Eleventh Amendment

immunity occurs ‘“only where stated by the most express language or by such

overwhelming implication from the text [of a state statute or constitution] as [will] leave

no room for any other reasonable construction.”’” Mascheroni, 28 F.3d at 1560 (quoting

Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985))). In Mascheroni, we

held that the Board of Regents’ filing of a Fed. R. Civ. P. 12(b) motion to dismiss the

plaintiff’s complaint did not, without more, waive the Board’s Eleventh Amendment

immunity. Id. at 1556, 1560.

       The Tribe argues that the State waived its Eleventh Amendment immunity by

filing a motion to dismiss the Tribe’s claims against the United States. We reject that

argument. We note initially that it appears the State never actually filed a motion to

dismiss.3 Rather, the State’s only action was to enter an appearance. Even if it did file


       3
        The Tribe asserts that “the State served on the Tribe a motion to dismiss the
Tribe’s claims against the United States” on July 25, 1996. Appellant’s Resp. to Order to
Show Cause at 4. The docket sheet for this case shows no such motion filed. See
Appellant’s App. at 272-76. Furthermore, in the transcript of proceedings held on
September 5, 1996, on the court’s order to show cause, there were references to a motion
to dismiss. The attorney for the United States referred to “the fact that Mr. Coppin [the
Assistant Attorney General for the State] . . . did do a Motion to Dismiss which was
responded to by the government which had not yet been filed.” Appellant’s App. at 85.
                                                                               (continued...)

                                            -7-
such a motion, that, without more, does not waive the State’s Eleventh Amendment

immunity. See Mascheroni, 28 F.3d at 1556, 1560.

       For the foregoing reasons, we AFFIRM the district court’s dismissal of the Tribe’s

complaint.




       3
        (...continued)
Later in the proceedings, the Tribe’s attorney stated that “[t]he State of New Mexico has
not filed any response to the counterclaims that were alleged by the United States. The
state has not yet filed any claim against the tribe . . . .” Id. at 91. The Assistant Attorney
General for the State subsequently stated:

              As far as the state filing its motion in this case, the state has entered
       its appearance, Your Honor, I entered my appearance on August 2nd,
       shortly after I started circulating our motion to dismiss the tribe’s claim.
       The state does not believe it needs to file any motions in this case. The state
       believes that these are legal issues that can be ruled on quite easily.

              ....

              Also to clarify the record, the state has no intention of filing a claim
       against the tribe.

Id. at 157-58. Thus, it appears that, while there was some discussion of the State filing a
motion to dismiss, and perhaps even drafts of such a motion were circulated, no such
motion was ever actually filed. The only formal action taken by the State, according to
the record in this case, was an entry of appearance.

                                             -8-
