This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 PEGGY A. and TIMOTHY A. 7 REED, 8 Plaintiffs-Appellants, 9

v. NO. 28,249 10 ROBERT GUTIERREZ and 11 PUEBLO OF SANTA CLARA, 12 NEW MEXICO, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 Valerie Mackie Huling, District Judge 16 Streubel Kochersberger 17 & Mortimer, LLC 18 David A. Streubel 19 Kallie L. Dixon 20 Albuquerque, NM 21 for Appellants 22 The Law Offices of 23 Robert Bruce Collins 24 Robert Bruce Collins 25 Holly R. Harvey 26 Albuquerque, NM 27 for Appellees 282 MEMORANDUM OPINION 1 FRY, Chief Judge. 2 In this case, we determine whether the doctrine of tribal sovereign immunity 3 shields Defendant Pueblo of Santa Clara, New Mexico (the Pueblo) and its employee, 4 Defendant Robert Gutierrez, from liability for an off-reservation tort. We hold 5 pursuant to Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. , 523 U.S. 6 751 (1998), that they are immune from the claims of Plaintiffs Peggy and Timothy 7 Reed and affirm the district court. 8 BACKGROUND 9 We consider this matter on appeal from the district court’s order of dismissal 10 pursuant to Rule 1-012(B)(6) NMRA. For purpos es of this appeal, all relevant facts 11 are undisputed. See, e.g. , N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co. , 12 2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342 (courts “ accept as true all well13 pleaded fact[s]” in an appealof a Rule 1-012(B)(6) motion). 14 On November 29, 2005, Pueblo employ ee Gutierrez operated a vehicle owned 15 by the Pueblo while conducting tribal busin ess within the course and scope of his 16 employment. Just past noon that day, he improperly turned into oncoming traffic and 17 injured Plaintiff Peggy Reed and, derivatively, her husband, Plaintiff Timothy Reed. 183 This did not occur within the geographicalboundaries of the Pueblo’s territory, but 1 within the State of New Mexico. 2 In the district court, Defendants inv oked the doctrine of tribal sovereign 3 immunity and sought to dismiss Plaintiffs’ claims. The district court granted 4 Defendants’ motion. 5 On appeal, Plaintiffs attack the doctrin e of tribal sovereign immunity, arguing 6 that (1) this Court should ignore the doctrine in its entirety, and (2) in the alternative, 7 this Court should limit the doctrine to exclude off-reservation torts committed by 8 tribes. 9 DISCUSSION 10 Standard of Review 11 We apply a de novo standard of reviewto dismissals under Rule 1-012(B)(6). 12 In doing so, “we accept as true all well-plead ed factual allegations in the complaint 13 and resolve all doubts in favor of the complaint’s sufficiency.” N.M. Pub. Sch. Ins. 14 Auth. , 2008-NMSC-067, ¶ 11; Valdez v. State , 2002-NMSC-028, ¶ 4, 132 N.M. 667, 15 54 P.3d 71. Dismissal under Rule 1-012(B )(6) is proper when a plaintiff would be 16 legally precluded from obtaining “relief under any state of facts provable under the 17 claim.” N.M. Pub. Sch. Ins. Auth. , 2008-NMSC-067, ¶ 11 (internal quotation marks 18 and citation omitted). We si milarly apply a de novo standard to “the legal question 194 of whether an Indian tribe, or an entity under the tribe’s contro l, possesses sovereign 1 immunity.” Sanchez v. Santa Ana Golf Club, Inc. , 2005-NMCA-003, ¶ 4, 136 N.M. 2 682, 104 P.3d 548. 3 Tribal Sovereign Immunity 4 The doctrine of tribal sovereign immunity is well-established. See Kiowa Tribe 5 of Okla. , 523 U.S. at 764 (Stevens, J., dissenting); Gallegos v. Pueblo of Tesuque , 6 2002-NMSC-012, ¶ 7, 132 N.M. 207, 46 P.3d 668. “Without an unequivocal and 7 express waiver of sovereign immunity or congressional authorization, tribal entities 8 are immune from suit.” Sanchez , 2005-NMCA-003, ¶ 5. Congress maintains 9 “ultimate authority over Indian affairs, and, thus, . . . can expressly authorize suits 10 against Indian tribes through legislation.” Gallegos , 2002-NMSC-012, ¶ 7. A tribe 11 may waive its sovereign immunity and unequi vocally express consent to suit. “Thus, 12 tribal immunity is a matter of federal law and is not subject to diminution by the 13 states.” Id. 14 The United States Supreme Court’s opinion in Kiowa controls our holding 15 today. In that case, the C ourt considered a contract, apparently negotiated outside the 16 reservation’s boundari es, between an Indian tribe and a non-tribal business entity. 17 Kiowa Tribe of Okla. , 523 U.S. at 753-54. After signing a promissory note, the tribe 18 defaulted and was suedin state court. Id. at 754. The tribe argued that sovereign 195 immunity barred suit under the circumstances, and on certiorari, the United States 1 Supreme Court agreed. Id. at 753-54. Reaffirming the notion that states may not 2 abrogate tribal immunity in any way, the Court held that “the immunity possessed by 3 Indian tribes is not coextensive with that of the [s]tates.” Id. at 756. Such immunity 4 exists both on and off the reservation and may only be circumvented by an act of 5 Congress or waiver by the tribe itself. Id. at 760. 6 Since Kiowa’spublication, New Mexico courts have cited it repeatedly. For 7 instance, in Srader v. Verant , our Supreme Court determinedthat certain Indian tribes 8 were indispensable parties that could not be joined in a laws uit by aggrieved casino 9 patrons because of sovereign immunity. 1998-NMSC-025, ¶¶ 1, 23, 125 N.M. 521, 10 964 P.2d 82. Citing Kiowa , the Court held that “[s]overeign immunity precludes 11 joining the gaming tribes in this case. As sovereigns, Indian tribes are immune from 12 suit absent Congressional authorization or aneffective waiver in tribal, state, or 13 federal court.” Srader, 1998-NMSC-025, ¶ 29; see Sanchez , 2005-NMCA-003, ¶¶ 1- 14 2, 5 (citing Kiowa and holding that a tribe was immune from a wrongful discharge suit 15 in state court); see also Antonio v. Inn of th e Mountain Gods Resort & Casino , 2010- 16 NMCA-077, ¶¶ 9-10, ___ N.M. ___, ___ P.3d ___ (affirming dismissal of workers’ 17 compensation claim against a tribe on the basis of sovereign immunity and noting that 18 “the question of whether a tribe’s activity occurred on or off the reservation has been 196 rendered incons equential under Kiowa ”). Given this authority, we decline Plaintiffs’ 1 invitation to ignore the holding in Kiowa

. 2 Plaintiffs alternatively argue that Kiowa , because it involved a contract dispute, 3 does not apply to off-reservation torts. They direct our attention to Padilla v. Pueblo 4 of Acoma , 107 N.M. 174, 754 P.2d 845 (1988), abrogated by Gallegos , 2002-NMSC5 012, ¶ 25. In that case, decided prior to Kiowa , our Supreme Court refused to apply 6 the doctrine of tribal sovereign immunity and held that a pueblo was liable in state 7 court for its off-reservation conduct. Padilla , 107 N.M. at 179-80, 754 P.2d at 850- 8 51. Framing its holding as “solely a matter of comity,” the Court concluded that 9 because the state subjects itself to suit on such claims, the pueblo should likewise be 10 required to submit to suit for acts occurring outside reservation boundaries. Id. 11 Plaintiffs argue that if this Court chooses to recognize the doctrine of tribal sovereign 12 immunity, Kiowareversed Padilla only insofar as Kiowa dealt with contract cases. 13 We do not agree. Kiowaexplicitly denounced the app licability of comity in the 14 tribal sovereign immunity context, stati ng that a tribe’s sovereign immunity “is not 15 coextensive with that of the [s]tates.” 523 U.S. at 756. Because the holding in Padilla 16 rests on a principle rejected by Kiowa , Padillano longer controls this issue. See 17 Gallegos , 2002-NMSC-012, ¶ 25 (acknowledging that Kiowaimplicitly overruled 18 Padilla ). 197 We acknowledge that some controversy surrounds the idea of immunizing 1 tribes from the consequences of their off-reservation conduct. See, e.g. , Kiowa , 523 2 U.S. at 764 (Stevens, J., dissenting) (observing that none of the Court’s prior opinions 3 “attempted to set forth any reasoned explanation for a distinction between the [s]tates’ 4 power to regulate the off-reservation conduct of Indian tribes and the [s]tates’ power 5 to adjudicate disputes arising out of suchoff-reservation conduct” ). Nevertheless, we 6 believe that the majority opinion in Kiowa and New Mexico precedent interpreting 7 Kiowacompel the conclusion that tribal sovereign immunity extends to off8 reservation torts. See Gallegos , 2002-NMSC-012, ¶ 7 (stating that “tribal immunity 9 is a matter of federal law and is not subject to diminution by the states”). 10 Defendant Gutierrez 11 Plaintiffs argue in their reply brief that tribal immunity should not extend to 12 Defendant Gutierrez, an employee of the trib e, because insulating an employee “does 13 not further [the] reasons” underlying soverei gn immunity. We decline to address this 14 argument for two reasons. First, Plaintiffs do not support their argument with citation 15 to authority. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t , 1998-NMCA16 078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (explaini ng that appellate courts need not 17 address arguments that are unsupported by authority). Second, we will not ordinarily 188 consider an argument raised for the first time in a reply brief. Mitchell-Carr v. 1 McLendon , 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65. 2 CONCLUSION 3 For the reasons stated above, we affirm the district court’s judgment dismissing 4 Plaintiffs’ claims against Defendants. 5 IT IS SO ORDERED. 6

___________________________________ 7 CYNTHIA A. FRY, Chief Judge 8 WE CONCUR : 9

____________________________ 10 JAMES J. WECHSLER, Judge 11

12 TIMOTHY L. GARCIA, Judge 13