McINTYRE, J.
The Campo Band of Mission Indians (the Tribe) entered into a compact with the State of California (the State) relating to its operation of gambling facilities in the State (the Compact); in the Compact, the Tribe agreed to comply with certain standards relating to public health and safety at its facilities, to maintain certain public liability insurance for personal injury claims by patrons injured at the facilities and to adopt a tort liability ordinance setting forth the terms and conditions under which it would waive its sovereign immunity relating to such claims and the procedures for processing those claims. The Tribe adopted a regulation that requires a claimant to comply with certain procedures and, subject to such compliance, provides for arbitration of the patron's claim.
Here, the Tribe concluded that an injured patron failed to comply with the procedural prerequisites to arbitration and refused to participate in arbitration of her claim; the patron filed this action seeking to compel arbitration, which the superior court granted. The fundamental issue in this case is whether the superior court had subject matter jurisdiction to order the Tribe to arbitration. We find that the Compact included a waiver of the Tribe's tribal sovereign immunity relating to patron claims for negligence resulting in personal injury up to specified limits, and thus the superior court had limited subject matter jurisdiction over the patron's claim against the Tribe, but the superior court erred in determining the compliance issue itself rather than submitting that issue for determination in arbitration. Accordingly, we grant the petition in part.
FACTUAL AND PROCEDURAL BACKGROUND
The Tribe and the State entered into the Compact pursuant to the Indian Gaming Regulatory Act of 1988 ( 18 U.S.C. § 1166 et seq.; 25 U.S.C. § 2701 et seq. (the Act).) In relevant part, the Compact requires that the Tribe: "[c]arry no less than five million dollars ($5,000,000) in public liability insurance for patron claims, and that the Tribe provide reasonable assurance that those claims will be promptly and fairly adjudicated, and that legitimate claims will be paid; provided that nothing herein requires the Tribe to agree to liability for punitive damages or attorneys' fees. . . . [T]he Tribe shall adopt and make available to patrons a tort liability ordinance setting forth the terms and conditions, if any, under which the Tribe waives immunity to suit for money damages resulting from intentional or negligent injuries to person or property at the Gaming Facility or in connection with the Tribe's Gaming Operation, including procedures for processing any claims for such money damages; provided that nothing in this Section shall require the Tribe to waive its immunity to suit except to the extent of the policy limits set out above."
Pursuant to this provision (section 10.2(d)) of the Compact, the Tribe promulgated gaming regulation 004, which provides in relevant part:
"V. Due Diligence
"In cooperation with the [Tribe's insurer] . . ., and subject to the limits of the public liability insurance policy, the Tribe shall exercise due diligence to ensure that patron claims are promptly and fairly adjudicated and that legitimate claims are paid. [¶] . . . [¶]
"VII. Initial Processing of Patron Claims
"The patron allegedly suffering the injury to person or property must present his or her claim, in detail and in writing within thirty (30) days of the injury, to the Executive Committee. The Executive Committee shall promptly forward a copy of the patron's claim to the Insurance Company and to the Gaming Operation. . . . A patron may request resolution of his or her claim directly by the Tribe in accordance with the Process outlined in Section IX of this Regulation only after exhausting the claims processes of the Insurance Company and the Gaming Operation without reaching a settlement of the claim.
"VIII. Sovereign Immunity
"Except as stated in this Section, the sovereign immunity of the Tribe is in no manner waived by this Regulation or by any action of the Executive Committee or employees of the Tribe acting pursuant to this Regulation. In the event the Executive Committee grants a request for arbitration in accordance with Section IX of this Regulation and the patron is successful in obtaining an arbitration award, the Tribe hereby consents to waive its sovereign immunity from suit for the limited and sole purpose of enforcing the arbitration award [on the following conditions:] [¶] . . . [¶]
"C. The suit must be an action to enforce the arbitration award and the relief sought is limited to specific performance. Any waiver granted pursuant to this Section shall not be effective as to any patrons or other persons seeking monetary damages, declaratory relief, injunctive relief and/or any other forms of relief other than such specific performance, [¶] . . . [¶]
"E. The suit must be brought in: [¶] 1. the judicial forum or other dispute resolution system established by the Tribe as having adjudicatory jurisdiction over patron claims, or, in the absence of any such forum [¶] 2. the Superior Court for the State of California for the County of San Diego in San Diego, California.
"IX. Dispute Resolution
"A. A patron who exhausts the claims processes of the Insurance Company and the Gaming Operation without reaching a settlement of his or her claim may request arbitration of his or her claim. The patron allegedly suffering the injury . . . must submit a request for arbitration in writing to the Executive Committee. . . . The request must be submitted to the Executive Committee within thirty (30) days from the date on which the patron receives the later of the final decisions from the Insurance Company and the Gaming Operation.
"B. The Executive Committee shall have thirty (30) days to either grant or deny the request for arbitration. If the Executive Committee fails to grant or deny the request within thirty (30) days, the request shall be deemed to have been denied. The Executive Committee shall notify the patron in writing of its decision and the reasons for its decision by registered mail with return receipt requested. . . .
"C. If the Executive Committee grants the patron's request for arbitration, the patron and the Executive Committee shall first meet and confer in a good faith attempt to resolve the dispute through negotiation. . . .
"D. If the dispute is not resolved to the satisfaction of the patron within thirty (30) days after the first meeting, the dispute shall be submitted to mandatory binding arbitration.
"E. Arbitration shall be administered by the American Arbitration Association in accordance with its Accident Claims Arbitration Rules. . . ."
In March 2004, Celeste Bluehawk sued the Tribe in superior court, alleging that she was injured in December 2002, when she slipped and fell on a wet floor at the Tribe's Golden Acorn casino. The Tribe moved to dismiss Bluehawk's action, arguing that it had sovereign tribal immunity from such a suit, that its promulgation of regulation 004 did not constitute a waiver of its immunity to suit in state court and that accordingly the state court lacked subject matter jurisdiction. Bluehawk argued that regulation 004 included a waiver of the Tribe's sovereign immunity or, alternatively, that the court could and should exercise jurisdiction over the matter to permit discovery relating to the waiver issue. She also contended that the regulation was (1) void because it conflicted with the claims requirement of the Compact and (2) unduly restrictive and an unconscionable abrogation of her legal rights. Finally, she contended that in any event, she had complied with the procedures set forth therein.
The trial court agreed with the Tribe's contention that it lacked subject matter jurisdiction over Bluehawk's claims and dismissed her complaint. It also held, however, that Bluehawk had complied with the claims procedures set forth in regulation 004 and that her opportunity to request arbitration thereunder had not run because the Tribe's insurer had never notified her of its final decision concerning her claim. The court indicated that the parties should engage in settlement negotiations and if those were unsuccessful, "arbitration was the next step."
Thereafter, Bluehawk attempted to negotiate with the Tribe's insurer, but without success, and in September 2004, she sent a letter requesting arbitration pursuant to regulation 004. The Tribe responded that its executive committee was considering whether it was willing to "waive Ms. Bluehawk's lack of compliance with Regulation 004" and that it would notify her of the decision by letter. In late December 2004, the Tribe sent Bluehawk a letter stating that it had previously rejected her claim on the grounds that it was "untimely, defective and non-compliant with [regulation 004]."
Several days later, Bluehawk filed another lawsuit for premises liability against the Tribe in state court, although she also requested that the Tribe stipulate to submit the matter to arbitration. In February 2005, the Tribe filed a motion to dismiss Bluehawk's complaint, again on the basis of tribal sovereign immunity. Bluehawk filed a motion to compel arbitration of her claim, which was calendared to be heard concurrently with the motion to dismiss.
Based on a consideration of full briefing of both motions by the parties, the superior court granted Bluehawk's motion to compel arbitration, finding that by virtue of its agreement in the Compact to waive its immunity from suits for money damages and to provide reasonable assurance that patron claims would be promptly and fairly adjudicated, the Tribe waived its sovereign immunity for the purposes of a suit to compel arbitration. The court also concluded that although regulation 004 provided no recourse or appeal for a claimant whose request for arbitration is denied or deemed denied, that aspect of the regulation was inconsistent with the Tribe's obligations under the Compact to promptly and fairly adjudicate liability claims and pay legitimate claims.
The Tribe filed a petition for a writ of mandate in this court, arguing the superior court lacked jurisdiction to make such an order or, alternatively, that the court erred in compelling arbitration of Bluehawk's claim because there was no evidence to support a finding that she had complied with the procedural requirements of regulation 004. We issued an order to show cause.
DISCUSSION
1. General Principles Affecting State Court Jurisdiction
A. Tribal Sovereign Immunity Principles
Under federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit. ( Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 57-58 [ 56 L.Ed.2d 106, 98 S.Ct. 1670]; Tamiami Partners v. Miccosukee Tribe of Indians (11th Cir. 1995) 63 F.3d 1030, 1050 [recognizing that allowing a suit against a tribe to go to trial would render tribal sovereign immunity "meaningless"].) Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the Tribe has waived its immunity by consenting to suit. ( Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 754 [ 140 L.Ed.2d 981, 118 S.Ct. 1700].) Absent such authorization or consent, the courts do not have subject matter jurisdiction over suits against a tribe. ( Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182 [ 127 Cal.Rptr.2d 706].)
B. Congressional Authorization
The Act authorizes tribal gaming and allows state governments to have a role in the regulation of such gaming. ( Artichoke Joe's California Grand Casino v. Norton (9th Cir. 2003) 353 F.3d 712, 715.) The Act, which preempts state law as to the governance of gaming activities on Indian lands ( Gaming Corp. of America v. Dorsey Whitney (8th Cir. 1996) 88 F.3d 536, 544 ( Dorsey Whitney); American Vantage Companies v. Table Mountain Rancheria (2002) 103 Cal.App.4th 590, 597 [ 126 Cal.Rptr.2d 849]), nonetheless provides that a tribe may operate class III gaming (which includes casino and slot machine gambling ( 18 U.S.C. § 1166(c)(2))) on its land only if (1) the state where the land is located permits such gaming and (2) the Secretary of the Interior has approved a gaming compact entered into between the tribe and the state. ( Artichoke Joe's California Grand Casino v. Norton, supra, 353 F.3d at pp. 715-716; 25 U.S.C. § 2710(d)(1).)
The California Constitution authorizes class III gaming on Indian lands within the state (Cal. Const., art. IV, § 19, subd. (f)) and the State entered into the Compact with the Tribe relating to the Tribe's class III gaming operations pursuant to such authorization. Thus, in accordance with the Act, the State may apply its laws or assert jurisdiction in matters concerning Indian gaming, but only to the extent provided in the Compact. ( Dorsey Whitney, supra, 88 F.3d at p. 546.)
C. Tribal Consent/Waiver of Immunity
As noted ante, a tribe may consent to suit and thus waive its tribal sovereign immunity. However, such consent cannot be implied and, while no talismanic words are required, it must nonetheless be "clear." ( C L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla. (2001) 532 U.S. 411, 414-420 [ 149 L.Ed.2d 623, 121 S.Ct. 1589]; Big Valley Band of Porno Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1193 [ 35 Cal.Rptr.3d 357].) If the tribe has consented to suit, any conditional limitation imposed on its consent must be strictly construed and applied. ( Missouri River Services v. Omaha Tribe of Nebraska (8th Cir. 2001) 267 F.3d 848, 852.)
2. Did the Superior Court Have Subject Matter Jurisdiction to Order Arbitration of Bluehawk's Claim?
On a motion asserting sovereign immunity as a basis for dismissing an action for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists. ( Garcia v. Akwesasne Housing Authority (2nd Cir. 2001) 268 F.3d 76, 84; Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1418 [ 88 Cal.Rptr.2d 828].) In the absence of conflicting extrinsic evidence relevant to the issue, the question of whether a court has subject matter jurisdiction over an action against an Indian tribe is a question of law subject to our de novo review. ( Warburton/Buttner v. Superior Court, supra, 103 Cal.App.4th at p. 1180.)
Here, the superior court concluded that (1) the Tribe's agreement with the State included its consent to (or waiver of tribal sovereign immunity from) a suit compelling arbitration of patron claims; and (2) insofar as regulation 004 provides no recourse or avenue of appeal for a claimant whose request for arbitration is denied or deemed denied, it was inconsistent with the Compact, which required the Tribe to provide assurance that patron claims would be promptly and fairly adjudicated. The Tribe contends that the Compact does not include any waiver of its immunity from suits for money damages and that regulation 004 contains only a limited waiver of immunity that is applicable only where the claimant has complied with the procedures specified in the regulation and obtained an award against it in arbitration. We find that the Tribe's consent was broader than it contends, but narrower than the superior court found.
A. Did the Tribe Waive Its Tribal Sovereign Immunity?
As described ante, in the Compact the Tribe agreed to comply with certain standards relating to public health and safety at its facilities, maintain specified public liability insurance for personal injury negligence claims by patrons claiming to have been injured at those facilities and adopt a tort liability ordinance setting forth the terms and conditions, if any, under which it would waive its sovereign immunity relating to such claims and the procedures for processing those claims. The Compact specifically excludes liability for punitive damages, intentional acts not covered by the insurance policy and attorney fees, but specifies that otherwise the Tribe's agreement with the State did not "waive its immunity to suit except to the extent of the policy limits and insurance coverage (provided for therein]." (Italics added.)
By virtue of this language in the Compact, the Tribe unambiguously waived its immunity relating to patron claims for negligent acts to the extent of the insurance coverage it contractually obligated itself to obtain for such claims. Any contrary interpretation would ignore the italicized language agreed to by the Tribe in the Compact. (See C L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., supra, 532 U.S. at pp. 418-422 [holding that the inclusion of an arbitration clause providing for judicial enforcement of the resulting award in a contract entered into by a tribe necessarily constituted a waiver of its tribal immunity despite the absence of any express waiver of sovereign immunity in the contract because a contrary interpretation would render the arbitration clause meaningless].) Although this language clearly does limit the amount of damages for which the Tribe can be held liable in an action against it, we disagree with the dissent's assertion that that language (which specifically refers to a waiver of immunity) can be read as merely a limitation on such damages and nothing more.
The Tribe argues, however, that other language in the Compact requiring it to establish a tort liability ordinance "setting forth the terms and conditions, if any, under which it waives immunity to suit" specifically negates the existence of any waiver of sovereign immunity therein, instead leaving the issue of waiver to be left solely to the Tribe's discretion in establishing the ordinance. There are several problems with the Tribe's argument. First, the Tribe reads the quoted language too generously in its own favor. The words "if any" in the quoted passage merely modify the words that immediately precede them ("terms and conditions") and thus simply indicate that the Tribe may, or may not, establish terms or conditions that an injured patron must comply with to pursue a claim against the Tribe. More importantly, the Tribe's assertion that it can, in imposing such terms and conditions, essentially revoke (or render totally ineffective) the waiver of tribal sovereign immunity set forth in the Compact is contrary to its express agreement therein limiting its waiver only relating to specified types of claims and the extent of the required insurance coverage.
The Tribe points to regulation 004 and argues that its waiver of tribal sovereign immunity was limited to suits to enforce arbitration awards against it by claimants who have complied with the procedures set forth therein. However, although the regulation on its face provides only for arbitration of the merits of a claimant's claims, this limitation conflicts with the Compact, in which the Tribe agreed to obtain liability insurance and create a set of procedures by which patrons' negligence claims would be considered and resolved. In accordance with the terms of the Compact, the compact is controlling over the Tribe's regulation in the event of a conflict between them. Having consented to waive its tribal sovereign immunity in the Compact, the Tribe cannot, in drafting regulation 004, render its obligations totally illusory by retaining the sole and unfettered discretion to determine whether a claimant has complied with the procedural requirements set forth in its regulation. For these reasons, we conclude that the Tribe has waived its tribal sovereign immunity as to patron negligence claims against it up to the limits of the insurance it is required to maintain under the Compact.
B. Did the Superior Court Have Jurisdiction to Compel Arbitration of Bluehawk's Claim on its Merits?
Having concluded that the Tribe waived its tribal sovereign immunity relating to a patron's negligent personal injury claims up to the amount of the required insurance coverage, we must also consider whether that waiver included a right to be sued in state courts relating to the viability of the patron's claims. We answer this question in the negative.
A waiver of immunity "`is altogether voluntary'" on the part of the tribe and thus the tribe "`may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted. . . .'" ( Amer. Indian Agr. Credit v. Stand. Rock Sioux Tribe (8th Cir. 1985) 780 F.2d 1374, 1378, quoting Beers v. State of Arkansas (1857) 61 U.S. 527, 529 [ 15 L.Ed. 991].) Here, although the Tribe waived its sovereign immunity relating to certain patron claims, regulation 004 establishes arbitration as the forum in which those claims are to be resolved. As we have concluded that the Tribe does not have the unilateral right to determine whether a patron has complied with the procedural prerequisites to pursuing the merits of his or her claim in arbitration, we also conclude that, where the Tribe contends that a claimant has not complied with regulation 004's procedural prerequisites, that issue must be determined in the forum that the Tribe has chosen for determination of the viability of claims against it, to wit, arbitration. (See Rosebud Sioux v. Val-U Const. Co. (8th Cir. 1995) 50 F.3d 560, 562.)
For these reasons, we direct the superior court to vacate its order compelling the Tribe to submit to arbitration of the merits of Bluehawk's claim and to issue an order compelling the Tribe to participate in an arbitration in which the issues relating to the viability of Bluehawk's claims are addressed.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to (1) vacate its order finding that Bluehawk complied with the procedural requirements of regulation 004 and compelling the Tribe to arbitrate the merits of Bluehawk's claim and (2) issue a new order compelling the Tribe to submit the issue of Bluehawk's procedural compliance to arbitration and, if the arbitrators conclude that Bluehawk in fact complied with the procedural requirements, to require the Tribe to also arbitrate the merits of Bluehawk's claim. In all other respects, the petition is denied. The stay issued on June 10, 2005 will be vacated when the opinion is final as to this court. Bluehawk is entitled to costs in the writ proceeding.
McDonald, J., concurred.