As discussed in a previous blog, in 2010, the New Mexico Court of Appeals concluded that the Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at a business wholly owned and operated by a federally recognized Indian tribe, if the Tribe has not expressly waived sovereign immunity. See Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, cert. den.
However, recent cases highlight that there can be quite a bit of parsing between tribal business entities, and as to whether which if any have waived tribal immunity
and the effect of their relationship to one another. They also reflect a level of state power that potentially exists even in the face of tribal immunity.
and the effect of their relationship to one another. They also reflect a level of state power that potentially exists even in the face of tribal immunity.
Martinez v. Pojoaque Gaming, Inc, dba Cities of Gold Casino (Martinez I) 2009-NMCA-087, and Martinez v. Pojoaque Gaming, Inc, dba Cities of Gold Casino (Martinez II) 2011-NMCA-103, cert den., dealt with the tribal immunity of Pojoaque Gaming Inc. (PGI) and the the Pueblo of Pojoaque Gaming Commission (PPGC). It was determined that the latter was immune from suit, but that the former had waived its tribal immunity.
Nonetheless, the Court of Appeals also concluded the WCA can order the PGI to rehire to rehire an employee found to have been fired in retaliation for filing a workers compensation claim, even though the PPGC had suspended the employee's license and the WCJ lacked authority to order the PPGC to reinstate that license. The WCJ had found that PGI had intentionally and in bad faith retaliated against the employee, but concluded the WCJ had not authority to remedy the violation since the WCJ could not require the PPGC to license the worker. The Court of Appeals mandated the WCJ to order PGI to rehire the employee in Martinez I, and in Martinez II that order was reiterated quite sternly.
The Court observed the "statutory provision does not recognize that an employer might have legitimate business reasons for not rehiring the employee nor does it allow consideration of any other remedies as a substitute for rehire. More importantly, nothing in Section 52-1-28.2(B) allows an employer who has acted in bad faith and with 'willful, wanton or reckless disregard' of a worker's rights to escape with no sanction as the WCJ decided in this instance." Id. at para. 15.
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