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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO

 3          Plaintiff-Appellant,

 4 v.                                                                                    NO. 33,319

 5 DARRYL PAUL,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Robert A. Aragon, District Judge

 9 Hector H. Balderas, Attorney General
10 James W. Grayson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Law Works LLC
14 John A. McCall
15 Albuquerque, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 FRY, Judge.

19   {1}    The State appeals the district court’s dismissal of Defendant’s vehicular

20 homicide charge on jurisdictional grounds. Defendant, an enrolled member of the
 1 Navajo Nation, was allegedly driving while intoxicated and caused an accident that

 2 took the life of Victim. The accident occurred on a section of Interstate 40 that runs

 3 through “Parcel 3” of the former Fort Wingate Military Reservation. See State v. Dick,

 4 1999-NMCA-062, ¶¶ 3-4, 127 N.M. 382, 981 P.2d 796 (describing Fort Wingate and

 5 the administration of the four parcels located within it). In Dick, this Court concluded

 6 that Parcel 3 is a dependent Indian community and, as such, the State does not have

 7 jurisdiction over crimes committed by Indians in this area. Id. ¶¶ 8, 28. We reaffirmed

 8 this holding in State v. Steven B., 2013-NMCA-078, ¶¶ 15-16, 306 P.3d 509, and

 9 declined to overrule Dick. Thus, because both parties stipulated to the fact that the

10 accident occurred in Parcel 3 and that “[t]he jurisdictional analysis of the facts . . . is

11 the same analysis as was done in [Dick],” the district court concluded that it did not

12 have subject matter jurisdiction over the case.

13   {2}   On appeal, the State argues that while Congress expressly included rights-of-

14 way, such as Interstate 40, in the definition of Indian country, it omitted rights-of-way

15 from the definition of Indian country for dependent Indian communities. See 18

16 U.S.C. § 1151 (2013) (defining Indian country, in part, as “(a) all land within the

17 limits of any Indian reservation under the jurisdiction of the United States

18 Government . . . and, including rights-of-way running through the reservation, (b) all

19 dependent Indian communities within the borders of the United States whether within

20 the original or subsequently acquired territory thereof”). Arguing that Congress did

21 not intend to include rights-of-way running through dependent Indian communities

22 in the definition of Indian country, the State contends that the district court erred in

                                                2
 1 concluding that it did not have jurisdiction. We hold that the State did not preserve

 2 this argument. We therefore affirm.

 3 DISCUSSION

 4 The State Did Not Preserve Its Argument

 5   {3}   In the proceedings below, the State conceded that “Parcel 3 of Fort Wingate is

 6 Indian Country pursuant to [Dick].” The State’s only argument was that a federal

 7 district court in United States v. M.C. reached an opposite conclusion regarding Parcel

 8 3’s status as Indian country. 311 F. Supp. 2d 1281, 1287 (D.N.M. 2004) (holding that

 9 Parcel 3 is not a dependent Indian community and is therefore not Indian country).

10 The State argued that this creates an “untenable jurisdictional framework resulting

11 from the two diverging opinions.” At the hearing on the motion to dismiss, the State

12 acknowledged that Dick controlled but argued that it should be overruled in order to

13 preserve the issue for appellate review.

14   {4}   On appeal, the State argues two reasons why the new argument it raises on

15 appeal was preserved. First, the State argues that because the essential question before

16 the district court was whether the crime occurred in Indian country as defined in

17 Section 1151, the State’s argument on appeal is only a more a technical iteration of

18 that basic question, and the preservation requirement of Rule 12-216(A) NMRA is

19 accordingly met. Second, the State argues that because the question presented is

20 jurisdictional in nature, preservation was not required. See id. (“[The preservation]

21 rule shall not preclude the appellate court from considering jurisdictional questions.”).



                                               3
 1   {5}   Rule 12-216(A) requires that “[t]o preserve a question for review it must appear

 2 that a ruling or decision by the district court was fairly invoked[.]” “The rule serves

 3 many purposes: it provides the lower court an opportunity to correct any mistake, it

 4 provides the opposing party a fair opportunity to show why the court should rule in

 5 its favor, and it creates a record from which this Court may make informed decisions.”

 6 State v. Joanna V., 2003-NMCA-100, ¶ 7, 134 N.M. 232, 75 P.3d 832.

 7   {6}   With respect to the State’s first contention, we are unpersuaded that its

 8 argument made below adequately preserved its current argument on appeal. At no

 9 time did the State, or Defendant for that matter, argue the issue of congressional intent

10 in regard to whether Section 1151 exempted rights-of-way through dependent Indian

11 communities from the definition of Indian country. The fact that the parties argued the

12 validity of Dick below and that Section 1151 is the relevant statute at issue in Dick is

13 not sufficient to support a conclusion that the State’s argument on appeal was

14 preserved. See State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768

15 (stating that a party must alert the district court to the specific theory on which it bases

16 its argument in order to preserve an issue for appeal).

17   {7}   As for the State’s second contention, although its argument presents a

18 jurisdictional question, this Court has interpreted Rule 12-216(B) to apply to

19 “[m]atters having the effect of denying the existence of subject matter jurisdiction”

20 but not to allow for new arguments on appeal seeking to “create jurisdiction.” Anthony

21 Water & Sanitation Dist. v. Turney, 2002-NMCA-095, ¶ 15, 132 N.M. 683, 54 P.3d

22 87. The purpose of Rule 12-216(B) in the first context embodies the principle that a

                                                4
 1 court’s lack of subject matter jurisdiction directly affects the validity of a court’s

 2 judgment. See State v. Trujillo, 2007-NMSC-017, ¶ 8, 141 N.M. 451, 157 P.3d 16

 3 (“Because a [district] court does not have subject-matter jurisdiction to impose a

 4 sentence that is illegal, the legality of [the] sentence need not be raised in the [district]

 5 court.”). This same concern does not exist in the context of unpreserved arguments

 6 supporting jurisdiction when the district court has previously decided none exists.

 7   {8}   While we recognize that our Supreme Court relied on Rule 12-216(B) in State

 8 v. Montoya to review whether a magistrate court’s order was a final appealable order

 9 of dismissal, we are unpersuaded that Montoya compels a different conclusion in this

10 case. 2008-NMSC-043, ¶ 1, 144 N.M. 458, 188 P.3d 1209. The jurisdictional question

11 in Montoya involved a district court’s jurisdiction over a de novo appeal from

12 magistrate court. Id. ¶ 8. It did not overrule our decision in Turney or otherwise

13 consider the issue of whether it is proper to entertain unpreserved arguments on appeal

14 to create jurisdiction. “[C]ases are not authority for propositions not considered.”

15 Sangre de Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343,

16 503 P.2d 323. Accordingly, we rely on our decision in Turney and decline to review

17 the State’s unpreserved argument.

18 We Decline To Overrule Steven B. and Dick

19   {9}   The State argues that we should overrule Steven B. and Dick. The State

20 acknowledges in its briefing that it is doing so in order to “maintain the argument for

21 further review.” While nothing in this Opinion limits the State’s ability to pursue this

22 argument before the New Mexico Supreme Court, a formal Court of Appeals opinion

                                                 5
 1 is controlling authority in this Court. Arco Materials, Inc. v. State, Taxation &

 2 Revenue Dep’t, 1994-NMCA-062, ¶ 3, 118 N.M. 12, 878 P.2d 330, rev’d on other

 3 grounds by Blaze Constr. Co. v. Taxation & Revenue Dep’t, 1994-NMSC-110, 118

 4 N.M. 647, 884 P.2d 803. Therefore, we decline to reconsider Steven B. and Dick.

 5 CONCLUSION

 6   {10}   For the foregoing reasons, we affirm the district court’s dismissal of

 7 Defendant’s charges.

 8   {11}   IT IS SO ORDERED.


 9                                                   _________________________
10                                                   CYNTHIA A. FRY, Judge


11 WE CONCUR:


12 _________________________________
13 MICHAEL D. BUSTAMANTE, Judge


14 _________________________________
15 LINDA M. VANZI, Judge




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