Ante Up

Talachy asked for an extension of the Pueblo's current gaming compact until the state and tribe could reach an agreement on a new one. But the state maintained that its terms, which five other tribes had already signed, were fair. It was late June. The Pueblos of Acoma and Jemez, the Jicarilla Apache Nation, the Mescalero Apache and the Navajo Nation all entered into similar compacts with the state that April. Ten more tribes would eventually join them.

Under the new provisions, New Mexico would raise its cut of Pojoaque Pueblo's gross gaming revenue, essentially a tax, from 8 percent to a max of 10.5 percent, gradually increasing over a 23-year period. In 2014, the tribe's last full year of revenue sharing, it reported net wins of about $61 million, calling for the Pueblo to turn over about $4.8 million to state coffers. Talachy viewed any tax hike as a deal-breaker.

Casino revenue helps pay for the tribe's $43 million payroll, tribal police department, foster care system, day care and water infrastructure, among other essentials. It also partially funds the Pojoaque Boys and Girls Club, Wellness Center and Senior Center, all services shared with the surrounding, non-Native community. An extraordinary education program, which sends tribal members to college for free, is completely subsidized by gaming money.

The casino businesses themselves, which include hotels, restaurants, shops and a wedding chapel, employ about 800 New Mexico residents.

At the Roundhouse, Talachy refused to pick up the pen. "I don't care what anybody says about revenue sharing. It's an illegal tax," he tells SFR. "Why do we fight? Because my stores of maize are being depleted already, and now if I give that up, that means the well-being of my people ultimately gets negatively impacted."

Ritchie, who is also deputy chief of staff for Gov. Susana Martinez, gave Talachy a moment to consider the offer. But Pojoaque Pueblo's tribal council had already determined its strategy would be to "fight with all we got," as Talachy tells it. Before the door closed behind Ritchie, Talachy stood up, walked to the exit and relayed his answer.

"I stopped short of telling him to shove the compact up his ass," he recalls. "He came back in and was completely flustered. Red-faced. Beet red. He was just violently angry."

Ritchie said he would give the Pueblo more time to deliberate. (A spokesman for the New Mexico governor's office wouldn't confirm or deny that version of events.)

A few days after the meeting, Talachy raced his pickup truck around his tribe's land, about 15 miles north of Santa Fe. The gaming compact was set to expire at midnight.

Talachy imagined US Marshals wheeling slot machines out of Cities of Gold and Buffalo Thunder, the tribe's two casinos. Just months into his governorship, he would feel humiliated if Pojoaque's largest employers shuttered under his watch. "The main thing that was going through my mind was failure," he says.

He spoke with tribal police officers about what they should do if the feds decided to take action. He considered options for civil disobedience, as previous governors had done. "Nothing was off the table," he explains.

Ritchie called. Once again, the state's negotiator asked if Pojoaque would accept the 2015 provisions. Talachy repeated the same answer he gave in the Roundhouse, understanding that he had just shut the door on the state, leaving his casinos in a legal gray zone. Also on his mind were two ongoing lawsuits, one between Pojoaque Pueblo and New Mexico, and the other between the state and the US Department of the Interior. The latter case, currently under appeal, could determine whether the tribe will be allowed to legally operate its casinos.

During the past few years, Talachy made regular trips to Washington DC to meet with the representatives from the Bureau of Indian Affairs, to plead for recourse should their negotiations with the state collapse. And just two days prior, he had sent a letter to the New Mexico US Attorney's Office, stating the Pueblo intended to keep its casinos' lights on, with or without the state's approval.

Near the end of the day, Talachy received another message that allayed his anxiety: an email from the office of the federal prosecutor, US Attorney Damon Martinez. Sitting in his pickup truck, Talachy breathed with relief as he read the words on the screen: "I will exercise my discretion to withhold enforcement action against the Pueblo for operating Class III gaming without a compact during the pendency of the appeal."

"That night, we waited until midnight, and it was all quiet," Talachy says.

When the Pueblo of Pojoaque first drove down this proverbial road two decades ago, they threatened to shut a real one down. It was 1995, and the entire tribal gaming industry in New Mexico, then just a few years old, faced a crisis. Gov. Jacob Viarrial led the Pueblo of Pojoaque at the time.

Just after being sworn into office, New Mexico Gov. Gary Johnson signed gaming compacts with 14 tribes, after his predecessor Bruce King refused to. But Johnson faced considerable opposition from legislators who felt that more gambling would hurt the state. Two of those lawmakers sued the Republican governor, claiming he had no authority to sign the compacts without first getting legislative approval.

The state Supreme Court ruled in the pair's favor, invalidating every gaming compact in New Mexico and leaving at least 10 tribal gaming operations on shaky legal grounds.

But the slot machines kept running in Indian Country. After five months, US Attorney John Kelly issued an ultimatum: shut them down, or we'll do it for you.

In response, Viarrial called a news conference at Cities of Gold, Pojoaque's only casino at the time. With the support of several tribal leaders, he announced a plan to place tollbooths across State Highway 502 and US 84/285, a move that would affect tens of thousands of commuters, including engineers and scientists who drove twice a weekday between Santa Fe and Los Alamos.

"If the governor did not have the authority to sign the gaming compacts, then none of the other agreements that he had ever signed with us were legal either," Viarrial explained during an Indian law symposium two years later. "That included any agreements where we granted the state the right to put highways through our land."

Cities of Gold never shut down, and the Pueblo of Pojoaque reluctantly signed a compact with New Mexico in 1997.

Viarrial’s protest wrote itself into tribal lore. The governor had already long-secured his spot. During Viarrial’s tenure, which spanned more than two decades before his death in 2004, the Pojoaque Pueblo evolved from a sparse plot of hills and dales to a strip of apartments, shops and restaurants, perhaps the most developed stretch of highway in north Santa Fe County. Casino jobs lifted tribal members out of abject poverty. Culture thrived.

Everybody in Pojoaque has a story about the late governor, who many refer to as "Uncle Jake." He would occasionally load up a vehicle with Pueblo children and take them to Disneyland. Tribal members assumed Viarrial was joking when he shared his plans to open a laundromat called Jake's Dirty Shorts. He was not kidding.

"He was such a generous and loving man," says Sandra Romero, a tribal council member and biological niece of Viarrial. "And I think my nephew Joe is taking after him."

The Pojoaque Pueblo adopted Joseph back into the tribe when he was 4 years old. Talachy's birth mother, Angie Viarrial, relocated to Chicago as a teenager, where she would eventually work as nurse's assistant. Talachy's father was a mechanic of German descent. When life took a turn for the worse in Chicago, Angie felt her son would be better off on the reservation. She called Jake Viarrial, in this case her actual uncle, who arranged for Joe's adoption. The child landed at the home of Thelma Talachy, another former governor.

After Thelma adopted him, Joe took on her last name. About five years later, he was walking across a street in Española when a pickup truck barrelled down the road and knocked him over. He remembers seeing Thelma, who had rushed to his side, covered in blood as she called for help. "Worst day of my life," she says.

He worked his first summer job at 14, digging trenches and cranking pumps for the reservation's sewage system. "I think that's where I got my work ethic from," he says. Occassionally, he pulled a syringe out of the pipes. Eddie Lopez, Talachy's supervisor at the time, says, "I wanted to show him that there're better things in life than making six dollars an hour."

If the sewers imbued Talachy with discipline, then St. Catherine's Indian School in Santa Fe, where he boarded for four years, developed his sense of indignation. Talachy didn't make many Hispanic friends. His light complexion didn't ingratiate him with other Native kids either. "I got a lot of crap," he recalls. "But I also learned how to fight, how to stand up for myself."

Talachy dropped out of high school his senior year and started working for Los Alamos National Bank. In 2005, he entered the Federal Law Enforcement Training Center and graduated at the top of his class. After several years serving as a tribal police officer ("I arrested my cousins but always treated them with dignity and respect"), Talachy worked for Pojoaque Pueblo's risk and safety management division.

The Pueblo's tribal council elected him lieutenant governor in 2009. He served as second in command to Gov. George Rivera, who is best known for revitalizing tribal arts and establishing a number of social services. Rivera also oversaw the opening of Buffalo Thunder, a 60,000-square-foot resort that includes 393 hotel rooms and a 36-hole golf course. It also houses a colorful gaming floor where gamblers can play blackjack, craps and roulette, or try their luck on hundreds of slot machines with names like Gong Xi Fa Cai and Mustang.

As lieutenant governor, Talachy focused much of his attention on employing tribal members in Pojoaque's gaming industry, despite pushback from casino management. "Somehow there was that stereotype that Indians are drunks and lazy, so they wouldn't hire Indians there," says Elizabeth Duran, who served as the first female Pueblo governor in New Mexico. "And Joe told them, 'This is a business of ours, and we are not going to tolerate a corporate policy that our Indian people will not employed because of stereotypes.'" When he started as lieutenant governor, you could count on one hand the number of tribal members working for the casinos on the corporate side. Today, there are more than 35.

It was also during this time that Talachy became involved with the compact negotiations, sitting at his first roundtable meeting with state officials and other tribal leaders. By the time the Pojoaque Pueblo elected Talachy governor in 2015, he was intimately familiar with the process.

The Indian Gaming Regulatory Act, passed by Congress in 1988, sought to reach a delicate balance of state and tribal interests as casinos proliferated on reservations. The law requires states and tribes to negotiate oversight of gaming operations. It was supposed to clear up fuzziness at the intersection of federal, state and tribal jurisdiction, but the law ultimately led to more confusion.

The act created a framework for states to enter compacts with tribes, under the condition that both parties negotiate in good faith. States often offered gaming exclusivity rights to Native tribes in exchange for a share of casino revenue. But as tribal casinos increased in numbers, exclusivity became less valuable, writes Matthew Fletcher, a professor of Indigenous law at Michigan State University.

Some tribes felt that states were asking for too much, giving too little or refusing to come to the table at all, and they took to the courts. In the early '90s, tribes from Oklahoma to Connecticut filed lawsuits asserting states refused to negotiate with them in good faith. States usually hid behind the 11th Amendment, which bars sovereign entities from suing one another. The lower courts split on whether states could claim sovereign immunity in these situations.

When the issue went to the US Supreme Court in Seminole Tribe v Florida, the justices ruled in favor of Florida, essentially striking down the tribes' only recourse in the event of bad faith negotiations. In response, the Interior Department created a procedure for tribes to negotiate directly with the federal government for gaming compacts.

Pojoaque went this route in 2014, after losing a lawsuit with the state over sovereign immunity protections. In turn, New Mexico sued the federal government, challenging the Interior Department's authority to negotiate compacts directly with tribes. A district court ruled in the state's favor. The case is currently under review by the 10th Circuit Court of Appeals, and Fletcher says it's likely to hit the Supreme Court eventually. A separate lawsuit that the Pueblo filed last year against the state is also pending.

When US Attorney Martinez sent his letter to Talachy hours before the Pojoaque Pueblo's compact expired, it cleared the tribe to continue casino operations as the appeal moved through the courts—despite not having a state-tribal compact or an agreement with the secretary of the interior. As long as they followed all the laws regulating tribal gaming and saved a portion of revenues in escrow for when the compact issue is resolved, the Pueblo would be safe from prosecution.

Hour later, a spokesperson for Gov. Martinez issued a statement, saying the US attorney's decision "provides no protection to banks, credit card vendors, gaming machine vendors, advertisers, bondholders, and others that are now doing business with an illegal gambling enterprise."

Martinez' statement struck tribal members as a threat. Their fears were shortly confirmed. Two weeks after Pojoaque's compact expired, the New Mexico Gaming Control Board determined in a closed-door session that the tribe was running illegal gaming operations and stopped approving license applications or renewals for vendors that sold equipment or software to Pojoaque Pueblo.

In early September, the board sent audit notices to the Pueblo's vendors, asking them to turn over any records of their business with the tribe's casinos. Later that month, Terrence Bailey, the executive director of Pojoaque's gaming operations, met with some of the tribe's vendors at an expo in Las Vegas, Nevada.

Bailey learned the state gaming board sent citations to businesses that sold equipment or software to Pojoaque casinos. One citation sent to Aristocrat Technologies, Inc. says the company violated New Mexico gaming laws by selling "gaming devices to a person that could not lawfully own or operate the gaming device."

At least two vendors stopped providing equipment to Buffalo Thunder and Cities of Gold, including, most significantly, a new computer system that runs many of their gaming machines. Without the system, the tribe stood to lose an estimated $300,000 a month, according to court filings.

"I was fucking livid. It was really kind of a Mafia tactic, almost," Talachy says. "I anticipated every one of these attacks, and I anticipate more."

The Pueblo immediately sought a court order to stop the state from meddling with the tribe's vendors. In its request, the tribe called its current situation a "throw back to one of the darkest times in the history of European conquest, when the pueblos were required to pay a tribute tax, whereby the Spanish confiscated the pueblos' maize and other resources, and deprived the pueblos' ability to self-sustain." US Judge District Robert Brack ruled in favor of Pojoaque Pueblo.

"Defendants' harassment and threatening conduct directed at the vendors is a thinly disguised attempt to accomplish indirectly that which Defendants know they are without authority or jurisdiction to accomplish directly," Brack wrote. He ordered the state to stop punishing vendors for doing business with Pojoaque Pueblo.

No one from the governor's office would grant an interview to SFR about the compact issue. In response to emailed questions, Gov. Martinez spokesman Michael Lonergan writes, "The State has taken great care to protect the interests of its communities and industry in good faith. The fact is, Pojoaque Pueblo is operating its casinos in violation of federal law and taking advantage of the smaller gaming tribes that have negotiated in good faith and managed their facilities responsibly."

Both the tribe's case with the state and the state's case with the feds are still in limbo.

One recent afternoon, I accompany Talachy for a drive around Pojoaque that circles through the reservation and the surrounding valley. For 40 minutes, the governor surveys the land that used to belong to his tribe.

As we chat, Talachy periodically pauses his train of thought to point toward a patch of farmland or a stretch of homes. "That's private property, right there," he repeats over and over. We drive by rocks caked in dirt cliffsides: ruins. "You can see the discolored area. There was a structure there," Talachy explains. As we follow a section of the Rio Grande, he notes that it still belongs to the tribe. "But what am I supposed to do with the river?"

When the tribe was still in compact talks with New Mexico, Talachy says he took a state negotiator on the same drive. He hoped to offer some perspective on why his tribe feels so strongly about getting a fair deal.

After the painful era of Spanish conquest, which wrought disease and famine, the Pueblo of Pojoaque nearly disappeared. In 1934, a newspaper notice invited Pojoaque natives to reclaim their land. Fourteen people re-established the Pueblo. Today, there are nearly 500 tribal members.

"I think the reason why we fight is, we've been in a position of having nothing," Talachy says. "We know what it feels like to be almost extinct. The most valuable land in the valley taken away from us, and that's not enough for you? Americans have short memories. This administration has no memory."

As we pull up to the tribal council chambers, a woman and her two children, a boy and a girl, step out of their vehicle. The boy runs up to Talachy's truck. He is carrying one of his own.

"Whatchu doing, man? That's awesome," the governor says to the boy from his driver side window.

"Should we take our kids to that meeting tonight or no?" the mother asks.

"Yeah, yeah. It would be good to take them."

Santa Fe Reporter