1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see

2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please

3 also note that this electronic memorandum opinion may contain computer-generated errors or other

4 deviations from the official paper version filed by the Court of Appeals and does not include the

5 filing date. 

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

7 PEGGY A. and TIMOTHY A.

8 REED,

9 Plaintiffs-Appellants,

10 v. NO. 28,249

11 ROBERT GUTIERREZ and

12 PUEBLO OF SANTA CLARA,

13 NEW MEXICO,

14 Defendants-Appellees.

15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

16 Valerie Mackie Huling, District Judge

17 Streubel Kochersberger

18 & Mortimer, LLC

19 David A. Streubel

20 Kallie L. Dixon

21 Albuquerque, NM

22 for Appellants

23 The Law Offices of 

24 Robert Bruce Collins

25 Robert Bruce Collins

26 Holly R. Harvey

27 Albuquerque, NM

28 for Appellees
2

1 MEMORANDUM OPINION

2 FRY, Chief Judge.

3 In this case, we determine whether the doctrine of tribal sovereign immunity

4 shields Defendant Pueblo of Santa Clara, New Mexico (the Pueblo) and its employee,

5 Defendant Robert Gutierrez, from liability for an off-reservation tort. We hold

6 pursuant to Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S.

7 751 (1998), that they are immune from the claims of Plaintiffs Peggy and Timothy

8 Reed and affirm the district court. 

9 BACKGROUND

10 We consider this matter on appeal from the district court’s order of dismissal

11 pursuant to Rule 1-012(B)(6) NMRA. For purposes of this appeal, all relevant facts

12 are undisputed. See, e.g., N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co.,

13 2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342 (courts “accept as true all well14 pleaded fact[s]” in an appeal of a Rule 1-012(B)(6) motion).

15 On November 29, 2005, Pueblo employee Gutierrez operated a vehicle owned

16 by the Pueblo while conducting tribal business within the course and scope of his

17 employment. Just past noon that day, he improperly turned into oncoming traffic and

18 injured Plaintiff Peggy Reed and, derivatively, her husband, Plaintiff Timothy Reed.
3

1 This did not occur within the geographical boundaries of the Pueblo’s territory, but

2 within the State of New Mexico.

3 In the district court, Defendants invoked the doctrine of tribal sovereign

4 immunity and sought to dismiss Plaintiffs’ claims. The district court granted

5 Defendants’ motion.

6 On appeal, Plaintiffs attack the doctrine of tribal sovereign immunity, arguing

7 that (1) this Court should ignore the doctrine in its entirety, and (2) in the alternative,

8 this Court should limit the doctrine to exclude off-reservation torts committed by

9 tribes.

10 DISCUSSION 

11 Standard of Review

12 We apply a de novo standard of review to dismissals under Rule 1-012(B)(6).

13 In doing so, “we accept as true all well-pleaded factual allegations in the complaint

14 and resolve all doubts in favor of the complaint’s sufficiency.” N.M. Pub. Sch. Ins.

15 Auth., 2008-NMSC-067, ¶ 11; Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667,

16 54 P.3d 71. Dismissal under Rule 1-012(B)(6) is proper when a plaintiff would be

17 legally precluded from obtaining “relief under any state of facts provable under the

18 claim.” N.M. Pub. Sch. Ins. Auth., 2008-NMSC-067, ¶ 11 (internal quotation marks

19 and citation omitted). We similarly apply a de novo standard to “the legal question
4

1 of whether an Indian tribe, or an entity under the tribe’s control, possesses sovereign

2 immunity.” Sanchez v. Santa Ana Golf Club, Inc., 2005-NMCA-003, ¶ 4, 136 N.M.

3 682, 104 P.3d 548.

4 Tribal Sovereign Immunity

5 The doctrine of tribal sovereign immunity is well-established. See Kiowa Tribe

6 of Okla., 523 U.S. at 764 (Stevens, J., dissenting); Gallegos v. Pueblo of Tesuque,

7 2002-NMSC-012, ¶ 7, 132 N.M. 207, 46 P.3d 668. “Without an unequivocal and

8 express waiver of sovereign immunity or congressional authorization, tribal entities

9 are immune from suit.” Sanchez, 2005-NMCA-003, ¶ 5. Congress maintains

10 “ultimate authority over Indian affairs, and, thus, . . . can expressly authorize suits

11 against Indian tribes through legislation.” Gallegos, 2002-NMSC-012, ¶ 7. A tribe

12 may waive its sovereign immunity and unequivocally express consent to suit. “Thus,

13 tribal immunity is a matter of federal law and is not subject to diminution by the

14 states.” Id.

15 The United States Supreme Court’s opinion in Kiowa controls our holding

16 today. In that case, the Court considered a contract, apparently negotiated outside the

17 reservation’s boundaries, between an Indian tribe and a non-tribal business entity.

18 Kiowa Tribe of Okla., 523 U.S. at 753-54. After signing a promissory note, the tribe

19 defaulted and was sued in state court. Id. at 754. The tribe argued that sovereign
5

1 immunity barred suit under the circumstances, and on certiorari, the United States

2 Supreme Court agreed. Id. at 753-54. Reaffirming the notion that states may not

3 abrogate tribal immunity in any way, the Court held that “the immunity possessed by

4 Indian tribes is not coextensive with that of the [s]tates.” Id. at 756. Such immunity

5 exists both on and off the reservation and may only be circumvented by an act of

6 Congress or waiver by the tribe itself. Id. at 760.

7 Since Kiowa’s publication, New Mexico courts have cited it repeatedly. For

8 instance, in Srader v. Verant, our Supreme Court determined that certain Indian tribes

9 were indispensable parties that could not be joined in a lawsuit by aggrieved casino

10 patrons because of sovereign immunity. 1998-NMSC-025, ¶¶ 1, 23, 125 N.M. 521,

11 964 P.2d 82. Citing Kiowa, the Court held that “[s]overeign immunity precludes

12 joining the gaming tribes in this case. As sovereigns, Indian tribes are immune from

13 suit absent Congressional authorization or an effective waiver in tribal, state, or

14 federal court.” Srader, 1998-NMSC-025, ¶ 29; see Sanchez, 2005-NMCA-003, ¶¶ 1-

15 2, 5 (citing Kiowa and holding that a tribe was immune from a wrongful discharge suit

16 in state court); see also Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-

17 NMCA-077, ¶¶ 9-10, ___ N.M. ___, ___ P.3d ___ (affirming dismissal of workers’

18 compensation claim against a tribe on the basis of sovereign immunity and noting that

19 “the question of whether a tribe’s activity occurred on or off the reservation has been
6

1 rendered inconsequential under Kiowa”). Given this authority, we decline Plaintiffs’

2 invitation to ignore the holding in Kiowa.

3 Plaintiffs alternatively argue that Kiowa, because it involved a contract dispute,

4 does not apply to off-reservation torts. They direct our attention to Padilla v. Pueblo

5 of Acoma, 107 N.M. 174, 754 P.2d 845 (1988), abrogated by Gallegos, 2002-NMSC6 012, ¶ 25. In that case, decided prior to Kiowa, our Supreme Court refused to apply

7 the doctrine of tribal sovereign immunity and held that a pueblo was liable in state

8 court for its off-reservation conduct. Padilla, 107 N.M. at 179-80, 754 P.2d at 850-

9 51. Framing its holding as “solely a matter of comity,” the Court concluded that

10 because the state subjects itself to suit on such claims, the pueblo should likewise be

11 required to submit to suit for acts occurring outside reservation boundaries. Id.

12 Plaintiffs argue that if this Court chooses to recognize the doctrine of tribal sovereign

13 immunity, Kiowa reversed Padillaonly insofar as Kiowa dealt with contract cases.

14 We do not agree. Kiowa explicitly denounced the applicability of comity in the

15 tribal sovereign immunity context, stating that a tribe’s sovereign immunity “is not

16 coextensive with that of the [s]tates.” 523 U.S. at 756. Because the holding in Padilla

17 rests on a principle rejected by Kiowa, Padilla no longer controls this issue. See

18 Gallegos, 2002-NMSC-012, ¶ 25 (acknowledging that Kiowa implicitly overruled

19 Padilla).
7

1 We acknowledge that some controversy surrounds the idea of immunizing

2 tribes from the consequences of their off-reservation conduct. See, e.g., Kiowa, 523

3 U.S. at 764 (Stevens, J., dissenting) (observing that none of the Court’s prior opinions

4 “attempted to set forth any reasoned explanation for a distinction between the [s]tates’

5 power to regulate the off-reservation conduct of Indian tribes and the [s]tates’ power

6 to adjudicate disputes arising out of such off-reservation conduct”). Nevertheless, we

7 believe that the majority opinion in Kiowa and New Mexico precedent interpreting

8 Kiowa compel the conclusion that tribal sovereign immunity extends to off9 reservation torts. See Gallegos, 2002-NMSC-012, ¶ 7 (stating that “tribal immunity

10 is a matter of federal law and is not subject to diminution by the states”). 

11 Defendant Gutierrez

12 Plaintiffs argue in their reply brief that tribal immunity should not extend to

13 Defendant Gutierrez, an employee of the tribe, because insulating an employee “does

14 not further [the] reasons” underlying sovereign immunity. We decline to address this

15 argument for two reasons. First, Plaintiffs do not support their argument with citation

16 to authority. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA17 078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (explaining that appellate courts need not

18 address arguments that are unsupported by authority). Second, we will not ordinarily
8

1 consider an argument raised for the first time in a reply brief. Mitchell-Carr v.

2 McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65.

3 CONCLUSION

4 For the reasons stated above, we affirm the district court’s judgment dismissing

5 Plaintiffs’ claims against Defendants.

6 IT IS SO ORDERED.

7 ___________________________________

8 CYNTHIA A. FRY, Chief Judge

9 WE CONCUR:

10 ____________________________

11 JAMES J. WECHSLER, Judge

12 

13 TIMOTHY L. GARCIA, Judge