                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'04- 15:44:31 2012.08.08
Certiorari Denied, June 19, 2012, No. 33,645

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-074

Filing Date: May 10, 2012

Docket No. 30,577

CLOYD G. HINKLE,

       Plaintiff-Appellant,

v.

DOROTHY M. ABEITA,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie A. Mackie Huling, District Judge

Hinkle Law Offices, P.C.,
Cynthia A. Braun
Albuquerque, NM

for Appellant

Miller Stratvert P.A.
H. Brook Laskey
Shona Zimmerman-Burnett
Albuquerque, NM

for Appellee

                                        OPINION

HANISEE, Judge.

{1}     In this appeal, we are asked to reconsider whether our state courts have subject
matter jurisdiction over tort claims filed against Indian defendants for conduct occurring on
state highways within Indian country. Although binding precedent holds that our state courts
do not have jurisdiction over such matters, see Hartley v. Baca, 97 N.M. 441, 442-43, 640

                                             1
P.2d 941, 942-43 (Ct. App. 1981), we revisit the issue to determine whether evolving federal
Indian Law jurisprudence and recent precedent from our own Supreme Court now require
a different result. We hold that those developments do not alter our analysis in Hartley, and
we hereby affirm the district court’s decision to dismiss for lack of subject matter
jurisdiction.

I.     BACKGROUND

{2}      Cloyd Hinkle, a non-Indian, and Dorothy Abeita, an enrolled member of Isleta
Pueblo, were involved in a motor vehicle accident within the exterior boundaries of Isleta
Pueblo at the intersection of a state highway and a tribal road. For purposes of this appeal,
the parties stipulate that the accident occurred on State Highway 314—a public state right-
of-way—at a location which they also agree qualifies as Indian country. Hinkle maintains
that as he sought to pass Abeita’s slower-moving car while driving his motorcycle on State
Highway 314, Abeita abruptly turned left toward a tribal road without signaling, causing
Hinkle to “lay his bike down” and collide with her car. Hinkle filed suit in Bernalillo
County District Court, claiming that Abeita’s negligent driving caused injury to him and
damage to his motorcycle. Abeita filed a motion for summary judgment based primarily on
this Court’s decision in Hartley, asserting that the district court lacked subject matter
jurisdiction because she was a member of Isleta Pueblo and the accident occurred within the
exterior boundaries of the Pueblo. After briefing and a hearing on the motion, the district
court agreed with Abeita that it lacked subject matter jurisdiction pursuant to the Hartley
analysis and dismissed Hinkle’s complaint. We now consider Hinkle’s appeal from the
district court’s determination in light of the evolved body of federal Indian Law since our
decision in Hartley, and our Supreme Court’s recent decision in Garcia v. Gutierrez,
2009-NMSC-044, 147 N.M. 105, 217 P.3d 591.

II.    STANDARD OF REVIEW

{3}     The lone issue to be resolved is the propriety of the district court’s order granting
Abeita’s motion for summary judgment and dismissing Hinkle’s complaint for lack of
subject matter jurisdiction. “In reviewing an appeal from an order granting or denying a
motion to dismiss for lack of jurisdiction, the determination of whether jurisdiction exists
is a question of law which an appellate court reviews de novo.” Gallegos v. Pueblo of
Tesuque, 2002-NMSC-012, ¶¶ 6, 7, 132 N.M. 207, 46 P.3d 668 (determining that New
Mexico courts lacked subject matter jurisdiction over a tort action brought by a non-Indian
against an Indian tribe). Likewise, “[a]n appeal from the grant of a motion for summary
judgment presents a question of law and is reviewed de novo.” Cable v. Wells Fargo Bank
N.M., N.A., 2010-NMSC-017, ¶ 9, 148 N.M. 127, 231 P.3d 108 (internal quotation marks
and citation omitted).

III.   DISCUSSION

{4}    Over thirty years ago in Hartley, this Court resolved the exact legal issue raised in

                                             2
this case on nearly identical facts. 97 N.M. at 442, 640 P.2d at 942. Then, a non-Indian
motorcyclist filed a personal injury action in state court against a pueblo-member motorist.
Id. The underlying accident also occurred on a state highway within the exterior boundaries
of an Indian pueblo. Id. And as in the case at bar, the district court in Hartley dismissed for
lack of subject matter jurisdiction. Id. This Court affirmed that dismissal based on the
“infringement test” established in Williams v. Lee, 358 U.S. 217, 220 (1959), which it cited
as follows: The question of whether states have subject matter jurisdiction, absent governing
acts of Congress, “has always been whether the state action infringed on the right of
reservation Indians to make their own laws and be ruled by them.” Hartley, 97 N.M. at 443,
640 P.2d at 943 (internal quotation marks and citation omitted). The infringement test was
established in recognition of the fact that the states generally do not have power to regulate
the property or conduct of tribes or tribal members within Indian country because Indian
tribes and pueblos retain aspects of the inherent sovereignty they possessed prior to
becoming subject to the authority of the federal government. See generally Felix S. Cohen,
Cohen’s Handbook of Federal Indian Law § 6.03 (Nell Jessup Newton ed. 2005).

{5}      In Hartley, this Court enumerated the criteria relevant to the infringement test: “(1)
whether the parties are Indians or non-Indians; (2) whether the cause of action arose within
the Indian reservation; and (3) the nature of the interest to be protected.” 97 N.M. at 443,
640 P.2d at 943 (citing Chino v. Chino, 90 N.M. 203, 206, 561 P.2d 476, 479 (1977)). Upon
considering the Williams criteria, this Court concluded that state jurisdiction over the civil
tort claim “would run afoul of the infringement test,” because (1) “[the defendant] was an
Indian,” (2) “the accident occurred on State Road 30 within the exterior boundaries of the
Santa Clara Pueblo,” and (3) “the nature of the interest to be protected [was] the right of [the
member defendant] to be heard in the Santa Clara Tribal Court under its tribal laws.”
Hartley, 97 N.M. at 443, 640 P.2d at 943 (internal quotation marks omitted).

{6}      Hinkle concedes in his briefing to our Court that Hartley stands as binding precedent
over these facts—and if it remains good law would compel our state courts to dismiss his
and other factually similar actions for lack of jurisdiction. Nonetheless, he argues that since
this Court decided Hartley in 1981, federal precedent—beginning with Montana v. United
States, 450 U.S. 544 (1981)—has fundamentally altered the analysis used in Hartley and
applied stricter limitations to the reach of tribal jurisdiction. Accordingly, Hinkle urges us
to reconsider our holding in Hartley and utilize the Montana rule—in place of the
infringement test—to now allow state court jurisdiction over his claim against Abeita. While
we disagree with the legal conclusions that Hinkle would have us adopt, we accept the
opportunity to explain the impact of Montana and its progeny on our own state-court
jurisdictional analysis. In doing so, we reaffirm both our reliance on the infringement test
articulated over half a century ago in Williams, as well as our “venerable tradition of
defer[ence]” to tribal sovereignty, State v. Harrison, 2010-NMSC-038, ¶ 27, 148 N.M. 500,
238 P.3d 869, particularly where the exercise of that sovereignty concerns tribal authority
over the conduct of its own members in Indian country. See Found. Reserve Ins. Co. v.
Garcia, 105 N.M. 514, 516, 734 P.2d 754, 756 (1987) (“Exclusive tribal jurisdiction exists
. . . when an Indian is being sued by a non-Indian over an occurrence or transaction arising

                                               3
in Indian country . . . .”).

{7}     Hinkle initially suggests that this Court overlooked or was unaware of Montana when
it decided Hartley because Montana was very recent precedent at the time and was not
referenced within the Hartley opinion. As a matter of chronology, the United States
Supreme Court decided Montana three months prior to this Court’s opinion in Hartley. We
do not read the dispositional proximity, or this Court’s silence on the topic, as meaning
anything more than that this Court viewed the Montana analysis as distinct from that needed
to resolve the state jurisdictional issue in Hartley. Montana itself cautions that it addresses
only a “[narrow] regulatory issue:” Did the Crow Tribe have “the power . . . to regulate non-
Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe”?
450 U.S. at 557. That issue was raised in the context of tribal, not state jurisdiction.
Furthermore, nearly six years after Montana became law, our New Mexico Supreme Court
expressed its approval of Hartley’s outcome and analysis. Found. Reserve, 105 N.M. at 515,
734 P.2d at 755 (“The Court of Appeals [in Hartley], applying the infringement test,
properly affirmed the district court’s dismissal of the action for lack of subject matter
jurisdiction.”).

{8}     Although we reject the assumption that this Court was oblivious of Montana when
it applied the infringement test in Hartley, or that our New Mexico Supreme Court
mistakenly ignored Montana when it later approved that analysis in Foundation Reserve, we
nevertheless agree that Hartley now warrants review. Though Montana did not itself
announce a rule necessary for our courts to address in Hartley or Found. Reserve, subsequent
cases expanding the Montana rule certainly have done so. First in 1997, the United States
Supreme Court in Strate v. A-1 Contractors, 520 U.S. 438, 443, 459 (1997), extended the
Montana rule to prohibit tribal court jurisdiction over a case arising from a motor vehicle
accident involving two nonmembers on a highway within the boundaries of an Indian
reservation. And it did so again in Nevada v. Hicks, 533 U.S. 353 (2001), when the Court
further expanded the Montana rule to forbid a civil lawsuit in tribal court brought by a tribal
member against state police officers who executed a search warrant on reservation land. Id.
at 358-60, 364-65. Other cases as well have continued the trend to curtail the exercise of
tribal authority over nonmembers. See, e.g., Atkinson Trading Co. v. Shirley, 532 U.S. 645,
647 (2001) (barring a tribe’s regulatory authority to impose taxes upon non-Indian activity
occurring on non-Indian fee land within a reservation). Moreover, our own New Mexico
Supreme Court’s recent decision in Garcia, when read broadly, invites the argument that the
Montana analysis is now relevant to the determination of state court jurisdiction.
2009-NMSC-044, ¶¶ 27-34 (discussing the Montana line of cases within its determination
of state court jurisdiction over a child-custody dispute between a member and nonmember
pursuant to the Uniform Child-Custody Jurisdiction Enforcement Act (UCCJEA)).

{9}     We thus address Hinkle’s argument that the Montana rule, as it has evolved in the
course of federal jurisprudence, should supplant the test articulated in Williams and applied
in Hartley. Adoption of that rule here, Hinkle suggests, would allow our state courts to
assert subject matter jurisdiction over accidents occurring on state and federal public

                                              4
highways without consideration of tribal boundaries. Hinkle further maintains that the
assertion of state jurisdiction in such circumstances would be publicly beneficial in that it
would ensure a consistent venue for accidents on public rights-of-way throughout New
Mexico. After consideration of each of the Montana-born cases, however, we disagree with
Hinkle’s analysis for the following reasons: (1) the Montana cases were carefully drafted
to determine the parameters of tribal court jurisdiction, not state court jurisdiction, and are
therefore legally distinguishable; (2) the common principle among cases that apply the
Montana rule—that a given tribe exceeded its sovereign powers by exerting jurisdiction over
“unconsenting” nonmembers of the tribe—is inapplicable to actions filed by nonmembers
against tribal members; (3) our courts, as well as federal and state courts across the Country,
have continued to rely on Williams to determine state court jurisdiction despite the
availability of the Montana rule; and (4) as a matter of policy, “the courts of this state have
adopted greater protection for tribal sovereignty as a matter of state law.” Harrison,
2010-NMSC-038, ¶ 27.

The Montana Line of Cases Is Limited to Determining Tribal Court Jurisdiction

{10} Although the Montana-derived jurisprudence expansively bars tribal authority over
various types of nonmember conduct within tribal boundaries, it is nearly unanimous in its
exclusion of that analysis to state court jurisdiction. In fact, the United States Supreme
Court in Montana and the cases that followed was careful to limit its holdings to the narrow
question of tribal court jurisdiction, and has been largely silent as to the separate question
of state court jurisdiction. See, e.g., Montana, 450 U.S. at 557 (addressing the narrow issue
of whether the Tribe’s power includes the ability to regulate non-Indian recreational
activities “on reservation land owned in fee by nonmembers of the Tribe.”); Strate, 520 U.S.
at 442 (“This case concerns the adjudicatory authority of tribal courts over personal injury
actions against defendants who are not tribal members.” (emphasis added)); Atkinson
Trading Co., 532 U.S. at 647 (“The question with which we are presented is whether
[Montana’s] general rule applies to tribal attempts to tax nonmember activity occurring on
non-Indian fee land.” (emphasis added)); Hicks, 533 U.S. at 358 n.2 (“Our holding in this
case is limited to the question of tribal-court jurisdiction over state officers enforcing state
law.” (emphasis added)); Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 320 (2008) (“The question presented is whether the Tribal Court had jurisdiction
to adjudicate a discrimination claim concerning the non-Indian bank’s sale of fee land it
owned.” (emphasis added)). Based on the expressly focused holdings in those cases, as well
as their collective silence as to any inquiry of alternative jurisdiction, we conclude each is
distinguishable from the related but distinct question at bar—state court jurisdiction. We
thus decline to extend the Montana rule to determinations of the propriety of state court
jurisdiction absent a clear directive from the United States Supreme Court or our New
Mexico Supreme Court.

{11} Indeed, our decision to narrowly apply the Montana rule to only those questions of
tribal jurisdictional authority enjoys broad support among leading Indian law treatises, as
well as courts across the nation. Cohen’s, supra, § 6.03[2][c], at 536-37 (stating that the

                                               5
analysis for tribal court jurisdiction is distinct from the analysis for state court jurisdiction);
Winer v. Penny Enters., Inc., 674 N.W.2d 9, 15-16 (N.D. 2004) (“[A]ll of the cases relied
upon by [the plaintiff] which have applied the Strate analysis have involved situations
testing tribal court jurisdiction over non-Indian defendants where the conduct occurred on
a right-of-way. We have not found any case wherein the Strate analysis has been used to
determine whether a state court has jurisdiction over a tort action brought against an Indian
arising on a right-of-way within the exterior boundaries of a reservation.” (citations
omitted)); State v. Cummings, 679 N.W.2d 484, 487-88 (S.D. 2004) (refusing to apply the
Hicks analysis to determine state jurisdiction in Indian land because “[b]y its own terms,”
Hicks constrained its analysis to “[w]hether a tribal court may assert jurisdiction over civil
claims” (emphasis partially omitted)); Cossey v. Cherokee Nation Enters., LLC, 212 P.3d
447, 467 n.1 (Okla. 2009) (determining that the Montana “cases are inapplicable” to the
jurisdictional propriety of a state tort action brought by a nonmember casino patron against
a tribe “because they concern a tribe’s or a tribal court’s authority over non-Indians,” and
“[t]he question in this matter is whether the state district court has acquired civil adjudicatory
authority.”); but see Zempel v. Liberty, 143 P.3d 123, 130-34 (Mont. 2006) (determining the
Montana district court had subject matter jurisdiction over a tort claim by a nonmember
against a tribal member by first applying the Montana rule to ascertain tribal jurisdiction).

{12} Our own Court has even limited Strate’s application to its express terms in other
contexts. See Williams v. Bd. of Cnty. Comm’rs of San Juan Cnty., 1998-NMCA-090, ¶ 17,
125 N.M. 445, 963 P.2d 522 (dismissing the argument, in a case involving a suit of the
Navajo Nation in state court, that Strate governed the jurisdictional inquiry by stating: “we
disagree . . . that the holding in Strate v. A-1 Contractors dictates [our conclusion.] Strate
addressed tribal court jurisdiction [and its decision] was independent of case law holding that
Indian nations may not be sued in state courts.”); Halwood v. Cowboy Auto Sales, Inc.,
1997-NMCA-098, ¶ 15, 124 N.M. 77, 946 P.2d 1088 (declining to apply Strate in
determining whether a tribal court had jurisdiction to award punitive damages against a
non-Indian company because Strate expressed no opinion on whether tribal courts lack
jurisdiction over nonmember conduct on member-owned reservation land).

{13} We do recognize, as Hinkle argues, that our New Mexico Supreme Court in Garcia
has recently discussed the principles undergirding the Montana line of cases within its
determination of state court jurisdiction. 2009-NMSC-044, ¶ 32 (“Although our case
addresses state jurisdiction, not tribal jurisdiction, the Montana cases nonetheless show that
it is not enough merely to conclude that a certain plot of land is, or is not, ‘Indian
country.’”). But we view the Court’s discussion of Montana in deciding Garcia as
consistent with the inherent limitation of the Montana rule. There, our New Mexico
Supreme Court faced a perplexing child custody dispute between an Indian parent and a non-
Indian parent, involving parallel claims filed in both tribal and state court. Id. ¶ 2. The
central issue concerned the application of the UCCJEA, which has been adopted in some
form by all fifty states, and which both defines state jurisdiction over child custody matters
and requires the State of New Mexico to treat tribes as a co-equal state. Id. ¶¶ 13, 15. While
the Court discussed the Montana cases at length, it did so only to “answer the narrow

                                                6
question [of] whether the fee land can be considered part of the Pojoaque Pueblo solely for
the purpose[] of [ascertaining] the UCCJEA’s ‘home-state’ jurisdiction.” Id. ¶ 33. Tellingly,
it did not utilize Montana or its progeny in concluding that state jurisdiction was proper on
Garcia’s facts. And ultimately, our Supreme Court in Garcia expressly reaffirmed
“appl[ication of] the infringement test to determine whether the exercise of state authority
will compromise the tribal sovereignty recognized in Williams.” Id. ¶ 47. And while Garcia
notes that “the Montana line of cases subsequently narrowed Williams, particularly where
the issue is tribal authority over non-Indians,” it does not encroach upon Williams or its
seminal methodology to identify restrictions on state jurisdictional reach. Id. The Court
simply applied the long-standing infringement analysis under the unique facts presented,
incorporated the added nuances of UCCJEA application and jurisdictionally concurrent
litigation involving minor children, and determined that state court jurisdiction under those
circumstances would not impermissibly infringe upon tribal authority under Williams. We
therefore do not read Garcia as importing the Montana rule into determinations of state court
jurisdiction or as supplanting the infringement test.

The Montana Rule Applies Only When the Unconsenting Party Is a Nonmember

{14} Even were we to attempt to import the Montana analysis in resolving the question
of state jurisdiction in the manner Hinkle suggests, it would not be to his benefit because the
result in each of the Montana cases turned on the key fact that the “unconsenting part[ies]”
to tribal authority were all nonmembers. Hicks, 533 U.S. at 382 (Souter, J., concurring) (“It
is the membership status of the unconsenting party, not the status of real property, that
counts as the primary jurisdictional fact.”); Smith v. Salish Kootenai Coll., 434 F.3d 1127,
1131 (9th Cir. 2006) (“The Court has repeatedly demonstrated its concern that tribal courts
not require ‘defendants who are not tribal members’ to ‘defend [themselves against ordinary
claims] in an unfamiliar court.’” (quoting Strate, 520 U.S. at 442, 459) (alteration in original)
(emphasis added)); Montana, 450 U.S. at 564 (barring tribal authority over conduct of
“nonmembers of a tribe on lands no longer owned by the tribe”); Atkinson Trading Co., 532
U.S. at 647, 659 (determining no tribal jurisdiction exists over civil-rights claim by Indian
against non-Indian defendants); Plains Commerce Bank, 554 U.S. at 330-41 (holding that
a tribal court lacked subject matter jurisdiction over a suit by an Indian plaintiff against a
non-Indian defendant for conduct involving the sale of fee land within Indian country). The
principle concern in each of those cases was Indian jurisdiction over the conduct of
unconsenting nonmembers. Here, the conduct sought to be regulated is that of an
unconsenting tribal member. And if fidelity to the construct of separate sovereigns—state
or tribal—is to be maintained in a manner that is congruent, the same concern must be
articulated when an action involves the application of state court jurisdiction to an
unconsenting tribal member.

{15} Furthermore, were this case to be filed in tribal court, Abeita—the tribal
member—and not Hinkle, would be called to answer for her conduct. Hinkle’s presence in
tribal court can be secured only by his own volition, which would then exclude his status as
an unconsenting party to the suit. These facts are not rendered legally meaningless simply

                                               7
because the jurisdiction available to Hinkle does not include his preference for state court.
See Williams, 358 U.S. at 218 (recognizing that nonmember plaintiffs can be made to file
their claims in tribal court when the state’s exercise of jurisdiction would impinge tribal
sovereignty). Similarly, tribal member plaintiffs sacrifice their status as unconsenting parties
in state court by electing to proceed away from their preferred tribal court based upon its
absence of jurisdiction over the nonmember defendant. Cf. Three Affiliated Tribes of the
Fort Berthold Reservation v. Wold Eng’g, 467 U.S. 138, 148 (1984) (recognizing that Indian
plaintiffs may elect to file their claims in state courts against non-Indian defendants for
causes of action arising in Indian country when tribal courts lack jurisdiction). Thus, under
the Montana analysis, this action would survive jurisdictional scrutiny if filed in tribal court
by Hinkle because the conduct to be regulated is that of a tribal member.

{16} Indeed, it is well settled that where the conduct to be regulated is that of a tribal
member on non-Indian fee land within the tribe’s exterior boundaries, tribal authority is near
its apogee—being eclipsed only when such conduct occurs on tribal-owned land within those
boundaries. See Cohen’s, supra, § 7.02[1][a], at 599 (recognizing that tribal courts have
exclusive jurisdiction over civil matters where both parties are Indian because those actions
are “first and foremost a matter of internal tribal law.”); William C. Canby, Jr., American
Indian Law in a Nutshell 224-26 (4th ed. 2004) (stating that when a non-Indian plaintiff sues
an Indian defendant for conduct arising in Indian country, the tribe also has exclusive
jurisdiction); Montana, 450 U.S. at 564 (recognizing the tribes’ inherent power over actions
“involv[ing] only the relations among members of a tribe” (internal quotation marks and
citation omitted)); Strate, 520 U.S. at 459 (“Indian tribes retain their inherent power [to
punish tribal offenders,] to determine tribal membership, to regulate domestic relations
among members, and to prescribe rules of inheritance for members . . . .” (alterations in
original) (internal quotation marks and citation omitted)); Tempest Recovery Servs., Inc. v.
Belone, 2003-NMSC-019, ¶ 14, 134 N.M. 133, 74 P.3d 67 (“Exclusive tribal jurisdiction
exists where an action involves a proprietary interest in Indian land; or when an Indian sues
another Indian on a claim for relief recognized only by tribal custom and law; or when an
Indian is being sued by a non-Indian over an occurrence or transaction arising in Indian
country.” (quoting Found. Reserve, 105 N.M. at 516, 734 P.2d at 756) (internal quotation
marks omitted)). Therefore, we cannot accept the conclusion Hinkle draws—that the tribal
court would not have jurisdiction over Hinkle’s action were it to have been filed in tribal
court—because it is based on a misunderstanding of the Montana cases as applied to these
facts.

{17} Hinkle argues that “[f]rom these cases, we can extrapolate a general trend in favor
of subject matter jurisdiction in state court, and against tribal court, where the cause of action
involves activities of a non-tribal member on fee land within the exterior boundaries of tribal
land.” Implicit in this argument is the assumption that (1) we should supplant our reliance
on the infringement test with the Montana analysis in determining state court jurisdiction;
and (2) when gaps in tribal court jurisdiction exist, state court jurisdiction must necessarily
fill the void. We disagree with both implications and reject Hinkle’s argument.


                                                8
{18} First, we refuse to supplant the infringement test with the Montana analysis, not only
because we determine that the Montana rule is inapplicable to questions of state jurisdiction,
as well as to actions filed against tribal members based upon their conduct within Indian
country, but because our New Mexico courts, alongside courts nationwide, have continued
to rely on Williams since the publication of Montana and its progeny. Garcia, 2009-NMSC-
044, ¶ 47 (“[W]e continue to apply the infringement test to determine whether the exercise
of state authority will compromise the tribal sovereignty recognized in Williams.”); Tempest
Recovery Servs., Inc., 2003-NMSC-019, ¶ 14 (“We have adopted the ‘infringement test’
developed from Williams, the seminal Supreme Court case addressing a state court’s
jurisdiction over causes of action involving Indian matters.”); Found. Reserve, 105 N.M. at
515, 734 P.2d at 755 (“The test for determining whether a state court has jurisdiction over
causes of action involving Indian matters is set forth in Williams.”); Robert L. Lucero, Jr.,
State v. Romero: The Legacy of Pueblo Land Grants and The Contours of Jurisdiction in
Indian Country, 37 N.M. L. Rev. 671, 684 (2007) (“Th[e] ‘infringement’ test from Williams
has become the standard for determining whether a state exercise of adjudicatory civil
jurisdiction is permissible.”); Winer, 674 N.W.2d at 16 (“If Strate signals a drastic departure
from the state court jurisdictional principles enunciated in Williams v. Lee and its progeny,
it is well hidden in the Strate decision.”).

{19} Second, we do not agree that where tribal court jurisdiction has been denounced, our
state courts must necessarily assume jurisdiction.

                It would be a mistake to assume . . . that every situation in which
       tribal jurisdiction is lacking warrants a finding of state authority. . . . [W]hen
       there is no tribal jurisdiction under . . . Montana, it is possible that
       application of the [infringement] test may preclude state authority, resulting
       in a jurisdictional vacuum. If this proves to be the situation, Congress could
       fix the problem by enacting legislation that extends federal jurisdiction over
       such matters, delegates responsibility to the states, or assigns jurisdiction to
       the tribes.

Cohen’s, supra, § 6.03[2][c], at 536-57. Nor should our courts engage in determining tribal
court jurisdiction. Garcia, 2009-NMSC-044, ¶ 62 (“It is not for us as a state court to say
whether the Pojoaque Pueblo, subject to the plenary power of Congress, has jurisdiction.”);
accord Astorga v. Wing, 118 P.3d 1103, 1106 (Ariz. Ct. App. 2005) (stating that, unlike
federal courts, state courts do not have authority to review a tribal court’s exercise of
jurisdiction over nonmembers). In sum, the balance between state and tribal causes of action
is not a jurisdictional see-saw, rising and falling in balanced harmony. Rather,
determinations of jurisdictional propriety derive from larger notions of shared autonomy, co-
existent sovereignty, and the sometimes overlapping boundaries of governmental
authority—both geographic and with respect to tribal membership and property ownership.
C.f. Garcia, 2009-NMSC-044, ¶¶ 3, 27, 35 (recognizing the possibility of non-exclusive
concurrent state and tribal jurisdiction, exclusive state jurisdiction, and exclusive tribal
jurisdiction, depending on the circumstances); see Black’s Law Dictionary 727-28 (9th ed.

                                               9
2009) (defining “jurisdiction” as “[a] geographic area within which political or judicial
authority may be exercised”). As our Supreme Court has recently noted, it is Congress’s role
to adjust the fulcrum between state and tribal jurisdiction where neither side can rise to
assume jurisdiction as a result of the application of either Montana or Williams. See Garcia,
2009-NMSC-044, ¶ 1 (“There are occasions, and this is one, when this Court can give no
definitive answer to the increasingly complex jurisdictional disputes between state and tribal
courts. Given its plenary authority over Indian matters, Congress could provide such
answers, but it has not.”).

Our Courts Offer Greater Protection for Tribal Sovereignty Under State Law

{20} Finally, we refuse to read the Montana line of cases as a repudiation of tribal
sovereignty. See Hicks, 533 U.S. at 371 (“Self-government and internal relations are not
directly at issue here, since the issue is whether the Tribes’ law will apply, not to their own
members, but to a narrow category of outsiders.”). Rather, we read those cases as
recognizing, as a matter of federal law, the necessary limits of tribal authority in light of the
tribes’ status as dependent nations. Montana, 450 U.S. at 564 (“[I]n addition to the power
to punish tribal offenders, the Indian tribes retain their inherent power[s] . . . . But exercise
of tribal power beyond what is necessary to protect tribal self-government or to control
internal relations is inconsistent with the dependent status of the tribes . . . .”). With very
specific and narrow exceptions, tribes have not historically exercised authority beyond their
geographic boundaries or over the conduct of nonmembers of the tribe. Hicks, 533 U.S. at
382 (stating that “[l]imiting tribal-court civil jurisdiction [over nonmember defendants] not
only applies the animating principle behind our precedents, but fits with historical
assumptions about tribal authority” and tracing the history back through the early nineteenth
century as support). In contrast to that historical limit, inherent tribal authority has
consistently been recognized as including the ability to regulate the conduct of tribal
members, especially when the conduct occurs within tribal boundaries. Montana, 450 U.S.
at 563 (“Indian tribes are ‘unique aggregations possessing attributes of sovereignty over both
their members and their territory . . . .’” (citation omitted)); Doe v. Santa Clara Pueblo,
2007-NMSC-008, ¶ 18, 141 N.M. 269, 154 P.3d 1644 (“[A]s a general proposition of Indian
law[,] derived from the sovereign status of Indian tribes, tribal courts have exclusive
jurisdiction over claims arising on tribal lands against tribes, tribal members, or tribal
entities.”).

{21} Applying tribal law to the tortious conduct of tribal members within tribal boundaries
has been held to fall under the categories of tribal self-government and internal relations.
Smith, 434 F.3d at 1140-41 (“The Tribes’ system of tort is an important means by which the
Tribes regulate the domestic and commercial relations of its members. Tort liability has
historically been a means for compensating injured parties and punishing guilty parties for
their willful or negligent acts. . . . The Tribes have a strong interest in regulating the conduct
of their members; it is part of what it means to be a tribal member. The Tribes plainly have
an interest in compensating persons injured by their own . . . .”).


                                               10
{22} Simply because our United States Supreme Court has fortified the limitations of
tribal reach over nonmember conduct on tribal land by virtue of the Montana cases, there
does not exist a corresponding decrease of the inherent aspects of tribal sovereignty, such
as jurisdictional authority over tribal members in Indian country. Nor did the Montana cases
diminish our State’s great respect and ongoing deference to the Indian tribes and pueblos
situated within New Mexico. As our Supreme Court recently recognized, “New Mexico has
a unique and venerable tradition of deferring to a tribal government’s exercise of the
sovereign power vested in them.” Harrison, 2010-NMSC-038, ¶ 27 (alteration, internal
quotation marks, and citation omitted). We therefore reiterate our reliance on the
longstanding infringement test to determine whether state court jurisdiction impinges on
tribal sovereignty, even in cases where the Montana analysis commands the absence of tribal
court jurisdiction. We adhere to this formality not only because we cannot discern any clear
signal in federal Indian Law to the contrary, but because “the courts of this state have
adopted greater protection for tribal sovereignty as a matter of state law.” Harrison,
2010-NMSC-038, ¶ 27.

IV.    CONCLUSION

{23} Today, we reaffirm our analysis and conclusion in Hartley, our reliance on the
Williams infringement test to determine state court jurisdiction over matters arising in Indian
country, as well as our State’s venerable respect for tribal sovereignty. Accordingly, we
affirm the district court’s “Order Granting Defendant’s Motion for Summary Judgment” on
the grounds that the district court was without subject matter jurisdiction.

{24}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
RODERICK T. KENNEDY, Judge

Topic Index for Hinkle v. Abeita, Docket No. 30,577

APPEAL AND ERROR
Standard of Review

JURISDICTION
Subject Matter

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CIVIL PROCEDURE
Summary Judgment

INDIAN LAW
Indian Law, General
Tribal and State Authority and Jurisdiction

NEGLIGENCE
Personal Injury




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