ORIGINAL PROCEEDING ON CERTIORARI Leonard J. Padilla,
Workers' Compensation Judge
Barnhouse Keegan Solimon & West LLP Dolph Barnhouse Kelli
J. Keegan Christina S. West Albuquerque, NM for Petitioners
Office of LeeAnn Ortiz, LLC LeeAnn Ortiz Albuquerque, NM for
SHANNON BACON, JUSTICE
This appeal asks us to resolve three questions: (1) whether
the Pueblo of Isleta, in entering the 2015 Indian Gaming
Compact, expressly and unequivocally waived its tribal
sovereign immunity to permit jurisdiction shifting of
workers' compensation claims originating on tribal land
to the Workers' Compensation Administration; (2) whether
Gloria Mendoza, (Worker) as a non-party to the Compact, can
challenge the Pueblo's compliance with the Compact; and
(3) whether Isleta Casino, an entity of the Pueblo of Isleta,
is an indispensable party to a lawsuit against its
workers' compensation insurers. We hold that there is no
definitive jurisdiction shifting language in the Compact,
there is no private right of action for Worker to mandate
Compact compliance, and Isleta Casino, as a sovereign entity,
is an indispensable party to Worker's claim, thus
compelling dismissal of Worker's claim in its entirety.
Worker filed a workers' compensation claim with the New
Mexico Workers' Compensation Administration (WCA) after
she suffered an on-the-job injury at Isleta Resort &
Casino. Isleta Casino is located on the Pueblo of Isleta (the
Pueblo). Because Worker's injury occurred within the
Pueblo's sovereign jurisdiction, the WCA dismissed
Worker's claim for lack of jurisdiction, referencing the
Pueblo's tribal sovereign immunity. On account of the
Pueblo's sovereign status, Worker's complaint was
dismissed as to all parties, which included Hudson Insurance
Company (Isleta Casino's insurer) and Tribal First
(Hudson's third-party administrator) (hereinafter,
collectively "Petitioners"). Worker appealed the
WCA's dismissal to the New Mexico Court of Appeals.
In response to the Court of Appeals' decision,
Petitioners petitioned this Court for certiorari.
In response to the Court of Appeals' decision,
Petitioners filed a petition for writ of certiorari with this
Court. We granted certiorari and proceed to address the
aforementioned issues. Due to the unusual procedural posture
of this case and the lack of record before us, we narrowly
limit the holding to the facts presented here. With that
consideration, we reverse the Court of Appeals' opinion
in its entirety and affirm the WCA's dismissal of
Worker's claim. The doctrine of sovereign immunity
dictates our analysis and prohibits the claim from proceeding
against any party in the WCA.
Worker injured her knee while working as a custodial porter
at Isleta Casino. On the day of the accident, she filed a
notice of accident form with her employer. In response to the
notice of accident, Worker received correspondence from
Tribal First informing her that her claim was denied.
According to the letter, Worker's claim was denied
because, "[p]er Isleta Resort & Casino['s] work
injury program, claims are to be reported within 24 hours.
Since you did not report your claim timely per Isleta Resort
& [Casino's] work injury program, your claim is
denied." After receiving the letter of denial, Worker
filed a claim with the WCA. In response to this claim, Tribal
First sent a letter to the WCA stating that because Isleta
Casino is a tribal entity that retains sovereign immunity
preventing it from being sued in state court, the WCA lacked
jurisdiction over the matter.
Despite the assertion of sovereign immunity, the WCA held a
mediation conference in order to address Worker's claim.
Following the mediation, the mediator presented her
non-binding observations that (1) Hudson is the workers'
compensation insurer for Isleta Casino, which was
demonstrated by the filing of the Acord Certificate of
Insurance with the WCA; (2) the Tribal First adjuster
appeared telephonically and stated repeatedly that the WCA
lacked jurisdiction to hear the case because of tribal
sovereignty; (3) Tribal First had accepted premiums from the
Pueblo but did not pay Worker's claim; and (4)
Worker's counsel produced a copy of the Pueblo's
tribal code, which does not mention workers' compensation
as part of its jurisdiction.
After reviewing the information from the mediator, the
Director presented his recommended resolution, which provided
• Because of the agreement between the Pueblo and the
State of New Mexico (the Compact), the WCA has jurisdiction
over Worker's claim;
• Tribal First and Hudson were the insurers for Isleta
Casino at the time of Worker's injury;
• Worker's claim is compensable under the WCA, as it
occurred on the job and in the course of employment;
• The Pueblo waived its sovereign immunity by entering
into the Compact with the State; and
• Tribal First is acting in bad faith and engaging in
unfair claims practices.
response, Isleta Casino and Tribal First filed a notice of
rejection of recommended resolution and a motion to dismiss
for lack of subject matter jurisdiction, citing the
Pueblo's sovereign immunity.
In their motion to dismiss, Petitioners stated two reasons in
support of the WCA's lack of jurisdiction. First, they
contended that the WCA lacked jurisdiction because tribal
sovereign immunity barred the claim. Second, they argued that
the Pueblo had exclusive jurisdiction over workers'
compensation claims made under its insurance policy.
Following those arguments, Petitioners asserted that because
the WCA lacked jurisdiction to adjudicate Worker's claim,
it necessarily lacked jurisdiction to adjudicate bad faith
claims against Hudson and Tribal First.
In response to the motion to dismiss, Worker argued that the
Compact contained an express and unequivocal waiver of
sovereign immunity that permitted her to bring a claim in the
WCA. In support of her argument, Worker cited to Section
4(B)(6) of the Compact, which provides that the Pueblo shall
requiring the Tribe, through its Gaming Enterprise or through
a third-party entity, to provide to all employees of the
Gaming Enterprise employment benefits, including, at a
minimum, sick leave, life insurance, paid annual leave or
paid time off and medical and dental insurance as well as
providing unemployment insurance and workers'
compensation insurance through participation in programs
offering benefits at least as favorable as those provided by
comparable State programs, and which programs shall afford
the employees due process of law and shall include an
effective means for an employee to appeal an adverse
determination by the insurer to an impartial forum, such as
(but not limited to) the Tribe's Tribal Court, which
appeal shall be decided in a timely manner and in an
administrative or judicial proceeding and as to which no
defense of tribal sovereign immunity would be available;
and provided that to fulfill this requirement the Tribe may
elect to participate in the State's program upon
execution of an appropriate agreement with the State[.]
NMSA 1978, § 11-13-app. (2015) (emphasis added). Worker
asserted that even if the Pueblo did retain sovereign
immunity, such status did not extend to its insurer.
Additionally, she argued that because the Pueblo had no
workers' compensation program in place, the state program
became the default. Following Petitioners' reply, the WCA
granted the motion to dismiss.
The WCA provided three reasons for granting Petitioners'
motion to dismiss. First, it found that within the Compact,
the Pueblo did not expressly and unequivocally waive
sovereign immunity, such that it could be sued in the WCA.
Next, it determined that Worker did not have standing to
challenge the terms of the Compact because the Compact is a
contract between the Pueblo and the State. Finally, it
concluded that Isleta Casino was an indispensable party to
the claim, and thus, the claim could not proceed absent its
joinder. The order of dismissal summarily disposed of
Worker's claim against all parties.
Following the dismissal, Worker filed a notice of appeal with
the Court of Appeals. The Court of Appeals reversed the
findings of the WCA and remanded the case back to the WCA for
further proceedings. Mendoza, 2018-NMCA-038, ¶
1. The Court of Appeals held that (1) the Compact between the
Pueblo and the State of New Mexico set forth an express and
unequivocal waiver of sovereign immunity as to workers'
compensation claims; (2) even if the Compact did not contain
an express waiver of sovereign immunity, "Worker ha[d] a
right to pursue her workers' compensation claim directly
against Hudson and [Tribal First]"; (3) even if the
Pueblo had not waived sovereign immunity, it was not an
indispensable party, and its absence did not prevent
Worker's claim from proceeding; and (4) Worker was a
third-party beneficiary to the Pueblo's workers'
compensation policy. Mendoza v. Isleta Resort and
Casino, 2018-NMCA-038, ¶¶ 29-30, 37, 44, 419
In our review of this case, we note the particular
deficiencies in the record that, in part, direct our
analysis. Not only does the record lack an insurance contract
between Petitioners for us to consider, no evidence of a
tribal workers' compensation program or agreement between
the Pueblo and the State exists in the record. Here, the
record was so inadequately developed that we are unable to
determine, with the limited information before us, what, and
to what extent, interests of the Pueblo could be implicated
should the case proceed absent is joinder. Because of these
deficiencies, we are left to speculate about these potential
interests of the Pueblo, whether such indeterminate ...