1

Certiorari Granted, September 20, 2013, No. 34,287

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-094

Filing Date: July 23, 2013

Docket No. 31,297

HAMAATSA, INC., a New Mexico

not-for-profit corporation,

Plaintiff-Appellee,

v.

PUEBLO OF SAN FELIPE,

a federally recognized Indian tribe,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

George P. Eichwald, District Judge

The Simons Firm, LLP

Thomas A. Simons, IV

Faith Kalman Reyes

Santa Fe, NM

for Appellee

Samuel D. Gollis, Attorney at Law, P.C.

Samuel D. Gollis

Gwenellen P. Janov, Of Counsel

Albuquerque, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Hamaatsa, Inc. filed an action against the Pueblo of San Felipe seeking a declaration
2

that a road, which crossed Pueblo property that was acquired in fee simple, was a state public

road. In an interlocutory appeal, the Pueblo contends that the district court erred in denying

the Pueblo’s motion to dismiss for lack of subject matter jurisdiction based on sovereign

immunity. We affirm.

BACKGROUND

The Complaint

{2} Hamaatsa’s complaint requests the district court to declare Northern R.S. 2477 (the

road) a state public road. Further, as a member of the public and the owner of property

contiguous to the road, Hamaatsa requests that the court declare that the Pueblo cannot

restrict its use of the road. The complaint was filed in response to the Pueblo’s notice to

Hamaatsa threatening to restrict Hamaatsa’s use of the road.

{3} The complaint alleges that the road was owned by the Bureau of Land Management

(the BLM) since at least 1906, was constructed and used by the public from at least 1935 up

to and including the date of the complaint, and was used by Hamaatsa and its predecessors

in interest to access their property. The complaint further alleges that under 43 U.S.C. § 932

(1866), Rev. Stat. § 2477, the road has been a public road since at least 1906 or 1935, and

because it was not retained by the United States, the road became vested in the public as a

state highway, and it remains a public state highway because it has not been vacated.

Although § 932 was repealed, the road was constructed before the repeal in 1976, the repeal

expressly preserved the road, and the road remained a state highway pursuant to NMSA

1978, Section 67-2-1 (1905). The property through which the road runs was conveyed to

the Pueblo in December 2001 by the BLM in fee simple. In that conveyance, the BLM

reserved an easement along the road “for the full use as a road by the United States for

public purposes.” By quitclaim deed, the BLM purported, in September 2002, to quitclaim

its interest in the road to the Pueblo.

The Motion to Dismiss

{4} The Pueblo moved, pursuant to Rule 1-012(B)(1) NMRA, to dismiss Hamaatsa’s

complaint for lack of subject matter jurisdiction based on the doctrine of tribal sovereign

immunity. At a district court hearing on the Pueblo’s motion to dismiss, much of the

argument involved the question whether the action was in personam or in rem.

{5} The Pueblo argued that the action was for injunctive relief, affecting and altering the

Pueblo’s interest in the fee simple parcel it had acquired, and that the action was therefore

in personam. The Pueblo also argued that Hamaatsa’s action was in essence a quiet title

action that would “materially. . . affect the ownership interest of the Pueblo in its property”

and that “[t]o declare that the road, in fact, exists fundamentally alters the Pueblo’s property

interest, ownership interest, in this property.”
1

 The state or county has exclusive regulatory authority and jurisdiction over its

roads. N.M. Const. art. V, § 14 (creating the state transportation commission); § 67-2-1

(“All roads and highways, except private roads, established in pursuance of any law of New

Mexico, and roads dedicated to public use, that have not been vacated or abandoned, and

such other roads as are recognized and maintained by the corporate authorities of any county

in New Mexico, are hereby declared to be public highways.”); NMSA 1978, § 67-3-11

(2003) (authorizing the state transportation commission “to make all rules and regulations

as may be necessary to carry out the provisions of” the Highway Department Organization

Act, NMSA 1978, §§ 67-1-1 to -3 (1977)); NMSA 1978, § 67-3-12 (2006) (describing the

3

{6} Hamaatsa responded that its action was for non-monetary declaratory relief and that

it was not seeking an injunction. Hamaatsa’s counsel stated, “We have simply sought a

declaration that this is a public road.” Hamaatsa presented argument and authority to

support its view that the action was not, as the Pueblo had asserted, a quiet title action, but

was an action purely in rem, arguing that “[t]his case is all about in rem jurisdiction.”

{7} The court ruled simply that the action was in rem, and the court denied the Pueblo’s

motion to dismiss. Additionally, the court granted leave for an interlocutory appeal.

The Interlocutory Appeal

{8} This case comes to this Court through interlocutory appeal based on the district

court’s denial of the Pueblo’s Rule 1-012(B)(1) motion to dismiss for lack of subject matter

jurisdiction. Our review is de novo. Lu v. Educ. Trust Bd. of N.M., 2013-NMCA-010, ¶ 7,

293 P.3d 186.

{9} As conceded by the Pueblo in its argument to the district court and in its brief in chief

on appeal, the Pueblo’s purely facial challenge to jurisdiction compels us to accept as true

all material allegations of the complaint and also to construe the complaint in favor of the

complaining party. Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24

P.3d 803; see Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (stating that when

analyzing a facial attack under Federal Rule of Civil Procedure 12(b)(1), the court “must

accept the allegations in the complaint as true”); Genberg v. Porter, ___ F. Supp. 2d ___,

Civ. A. No. 11-cv-02434-WYD-MEH, 2013 WL 1222056, at *6 (D. Colo. March 25, 2013)

(same); In re Polyurethane Foam Antitrust Litig., 799 F. Supp. 2d 777, 791, 793 (N.D. Ohio

2011) (indicating that allegations that may seem conclusory in nature but are supported by

factual allegations are not to be denied the presumption of truth but instead may be examined

by the court “to gauge whether the remaining allegations, accepted as true, plausibly give

rise to entitlement to relief” (internal quotation marks and citation omitted)). The Pueblo

nowhere argues that any particular allegation in the complaint is unworthy of being accepted

as true for the purposes of the motion to dismiss. Accordingly, as this case comes to us,

Hamaatsa’s action is to declare the road, alleged and conceded for the purposes of the

motion to be a state public road, to be a state public road.1
powers and duties of the state transportation commission); Jicarilla Apache Tribe v. Bd. of

Cnty. Comm’rs, 1994-NMSC-104, ¶ 21, 118 N.M. 550, 883 P.2d 136 (explaining that state

courts have exclusive jurisdiction over matters relating to public roads). 

2

 If the attack is facial only, and if the facts alleged show that in personam

jurisdiction is involved, it seems clear that, facially, the tribe should likely be dismissed. If

the attack is factual, and if the facts show that in personam jurisdiction is involved, it seems

clear that factually, the tribe should likely be dismissed. If the attack is facial only, and if

the facts alleged show that in rem jurisdiction is involved, the court would then be required

to resolve whether the tribe should nevertheless be dismissed pursuant to its sovereign

immunity. The same holds if the attack is factual and the facts show that in rem jurisdiction

is involved. If persuasive law holds that even if the facts alleged or proved show that the

action is in rem, the tribe still has sovereign immunity, it would appear that there is no

reason to ever get into the question whether the action is in rem, since whether it is in rem

or not in rem would be irrelevant.

3

 Hamaatsa argued in the district court that it filed the action upon being threatened

with blockage because the Pueblo was in the process of attempting to have its fee simple

4

{10} We review the district court’s denial of the Pueblo’s motion to dismiss as the case

has come to us, but we decide it on grounds different from those relied upon by the district

court. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154

(indicating that the appellate courts may affirm a district court’s ruling on a ground different

from that relied on by the district court). We see no reason to address the issue of in rem

versus in personam, or, if the action is in rem, whether the Pueblo can nevertheless seek

dismissal for lack of subject matter jurisdiction based on sovereign immunity.2

 By choosing

to make its attack on Hamaatsa’s complaint a purely facial one, thereby conceding the truth

of the allegations in the complaint, the Pueblo admitted the existence of a state public road.

As we indicate later in the body of this Opinion, there is no basis for a sovereign immunity

defense at this stage of the proceeding where it is presumed that the road in question is a

state public road.

DISCUSSION

{11} Notwithstanding its purely facial attack and admission of the truth of the allegations

of the complaint, including that the road is a state public road, the Pueblo argues that

sovereign immunity bars the action for lack of subject matter jurisdiction. Yet, the Pueblo

offered no evidence of any property or governance interests whatsoever in the road or that

the road, concededly a state public road, would threaten or otherwise affect its sovereignty.

The Pueblo has not attempted any proof, for example, that even though the road is a state

public road, a district court’s declaration of that fact would in any way undermine the

Pueblo’s sovereignty or sovereign authority, infringe on any right of the Pueblo to govern

itself or control its internal relations, or otherwise adversely affect its governmental,

property, or treasury interests.3
parcel placed in trust. We proceed with the understanding that, as the Southwest Director

of the Bureau of Indian Affairs (BIA) concluded, favorably to Hamaatsa, the BIA would not

take the fee simple parcel in trust until the present dispute over the road is resolved. See

Hamaatsa, Inc. v. Sw. Reg’l Dir., 55 IBIA 132, 132-33 (2012) (order vacating decisions and

dismissing appeal).

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{12} To our knowledge, no United States Supreme Court case or body of federal law, and

no New Mexico case, is clearly determinative or constitutes binding precedent favoring the

Pueblo under the particular circumstances here. This Court has considerable difficulty, at

this Rule 1-012(B)(1) stage, construing the law to require dismissal for lack of subject matter

jurisdiction based on sovereign immunity. In our view, the Pueblo’s invocation of sovereign

immunity in a facial challenge at this stage of the proceedings is not supported by law.

{13} “Tribal sovereign immunity is ‘a necessary corollary to Indian sovereignty and selfgovernance[.]’ ” Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 928 (7th Cir. 2008) (quoting

Three Affiliated Tribes of Ft. Berthold Res. v. Wold Eng’g, P.C., 476 U.S. 877, 894 (1986)).

If common law sovereign immunity from suit is an attribute of sovereignty, one must wonder

why immunity should exist in this case where the Pueblo has shown no other attribute of

sovereignty—such as a property, treasury, or governance interest in or sovereign authority

over the road—that could bestow immunity from inherent sovereignty. In this case, with no

evidence showing that a significant aspect of the Pueblo’s inherent sovereignty or sovereign

authority is adversely affected, we see no justifiable basis on which the Pueblo can draw

immunity from inherent sovereignty.

{14} In our view, the issue in this case is a matter of state law, over which the district court

has jurisdiction. See Jicarilla Apache Tribe, 1994-NMSC-104, ¶¶ 10-19 (stating that

“[w]hether an easement—a public road at that—exists across land held in fee simple is

clearly an issue of state law” and holding that Public Law 280 did not preempt “state[]court

jurisdiction to adjudicate a preexisting interest in land that is purchased by an Indian tribe

and then held by the tribe in fee simple”). We note that the United States Supreme Court

supports the view that an Indian tribe cannot exercise jurisdiction over conduct on a public

roadway. See Montana v. United States, 450 U.S. 544, 566 (1981) (making clear that a tribe

cannot regulate the conduct of persons on land it does not own when there is no direct effect

on the political or economic security of the tribe); see also Nevada v. Hicks, 533 U.S. 353,

359 (2001) (“Where nonmembers are concerned, the ‘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, and so cannot survive without express congressional

delegation.’ ” (quoting Montana, 450 U.S. at 564)); Atkinson Trading Co. v. Shirley, 532

U.S. 645, 647 (2001) (holding, based on Montana, that “Indian tribes lack civil authority

over . . . tribal attempts to tax nonmember activity occurring on non-Indian fee land”); Strate

v. A-1 Contractors, 520 U.S. 438, 442, 459 (1997) (holding that a tribe cannot exercise

jurisdiction and does not have adjudicatory authority over conduct on a public highway that

runs through its reservation); South Dakota v. Bourland, 508 U.S. 679, 694-95, 697 (1993)
4

 While there exists no “unequivocal expression” in the present case manifesting an

intent to relinquish tribal immunity, see Potawatomi, 498 U.S. at 509 (stating that to

relinquish its immunity, a tribe’s waiver must be “clear”), one would nevertheless reasonably

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(explaining that a tribe did not have authority to regulate non-Indian hunting and fishing on

land that was located within the reservation, but was owned by the United States); Brendale

v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 430 (1989)

(stating, in the context of a zoning dispute, that “[t]he governing principle is that the tribe

has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate

the use of fee land”).

{15} The legal and practical effect of permitting the Pueblo to assert sovereign immunity

in its facial challenge and at this stage of the proceedings would be to permit the Pueblo to

assert control over a state public road, yet to deprive Hamaatsa, or any other member of the

public, any opportunity for legal recourse. As noted in Jicarilla Apache Tribe, we must be

mindful of the practical effects of the application of sovereign immunity as an unfettered bar

to claims that patently do not infringe on tribal sovereignty. See 1994-NMSC-104, ¶ 21

(explaining that “[b]ecause it would concern a matter of state law, a complaint involving a

disputed easement across a tract of land . . . would not be entertained in federal district

court[,]” and the practical effect of depriving state courts of jurisdiction over such matters

is the “anomalous result” of denying tribal and non-tribal parties a judicial forum in which

to settle their respective property rights). Jicarilla Apache Tribe supports the conclusion,

at least in this stage of the proceedings, that the issue regarding the road is one of state law

over which the district court has jurisdiction.

{16} Further, to permit a sovereign immunity bar at this facial attack stage of the

proceedings would mean that, based on nothing more than the bare assertion of sovereignty,

a pueblo or tribe could acquire, in fee simple, subject to an existing state public road, one or

more lot or acreage virtually anywhere in New Mexico and immediately deny the motoring

public and all neighboring property owners access. And it means that no person whose

property is, and perhaps has been for generations, contiguous to a public road before a fee

simple acquisition of property through which the road runs, could invoke state court

jurisdiction to at least obtain a judicial declaration, binding on a pueblo or tribe, that a road

is a state public road. In our view, the Pueblo cannot have such carte blanche immunity on

a Rule 1-012(B)(1) facial attack when it acquires property in fee simple subject to a state

public road as it did here.

{17} “Suits against Indian tribes . . . remain a highly contentious issue.” Carole E.

Goldberg, Rebecca Tsosie, Kevin K. Washburn & Elizabeth Rodke Washburn, American

Indian Law: Native Nations and The Federal System 443 (6th ed. 2010). The circumstances

here lend credence to Justice Stevens’ words in his concurring opinion in Oklahoma Tax

Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma (Potawatomi), 498 U.S.

505, 514 (1991) (Stevens, J., concurring).4

 He stated:
inquire whether a tribe that obtains a property beyond reservation boundaries in fee simple,

knowing that the property is subject to a state public road, should be held at least at the Rule

1-012(B)(1) facial attack stage to have knowingly relinquished immunity if sued for

threatening to block or blocking public access, particularly when the access being blocked

or threatened has not been shown to adversely affect significant tribal governance or other

aspects of inherent tribal sovereignty.

7

The doctrine of sovereign immunity is founded upon an anachronistic

fiction. In my opinion all Governments—federal, state, and tribal—should

generally be accountable for their illegal conduct. . . . Nevertheless, I am not

sure that the rule of tribal sovereign immunity extends to cases arising from

a tribe’s conduct of commercial activity outside its own territory[.]

Id. at 514-15 (Stevens, J., concurring) (citations omitted). Justice Stevens then correctly

points out that the majority opinion in Potawatomi “in effect acknowledges limits to a tribe’s

sovereign immunity, although it does not do so explicitly.” Id. at 515 (Stevens, J.,

concurring). Justice Stevens states:

My purpose in writing separately is to emphasize that the Court’s holding in

effect rejects the argument that this governmental entity—the [t]ribe—is

completely immune from legal process. By addressing the substance of the

tax commission’s claim for prospective injunctive relief against the [t]ribe,

the Court today recognizes that a tribe’s sovereign immunity from actions

seeking money damages does not necessarily extend to actions seeking

equitable relief.

Id. at 515-16 (Stevens, J., concurring).

{18} The majority in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523

U.S. 751 (1998), discussed Potawatomi and in language also pertinent to the case now before

this Court, stated:

The doctrine of tribal immunity came under attack a few years ago in

Potawatomi . . . . The petitioner there asked us to abandon or at least narrow

the doctrine because tribal businesses had become far removed from tribal

self-governance and internal affairs. We retained the doctrine, however, on

the theory that Congress had failed to abrogate it in order to promote

economic development and tribal self-sufficiency. The rationale, it must be

said, can be challenged as inapposite to modern, wide-ranging tribal

enterprises extending well beyond traditional tribal customs and activities.

Justice [Stevens], in a separate opinion, criticized tribal immunity as founded

upon an anachronistic fiction and suggested it might not extend to offreservation commercial activity.
8

. . . In our interdependent and mobile society . . . tribal immunity

extends beyond what is needed to safeguard tribal self-governance. This is

evident when tribes take part in the Nation’s commerce. Tribal enterprises

now include ski resorts, gambling, and sales of cigarettes to non-Indians. In

this economic context, immunity can harm those who are unaware that they

are dealing with a tribe, who do not know of tribal immunity, or who have no

choice in the matter, as in the case of tort victims.

Kiowa Tribe, 523 U.S. at 757-58 (internal quotation marks and citations omitted).

{19} In spite of its misgivings, the Court in Kiowa Tribe invoked sovereign immunity. Id.

at 753, 760. Keeping with his view of sovereign immunity, Justice Stevens, in his dissent

in Kiowa Tribe, with Justices Thomas and Ginsburg joining, stated:

Absent express federal law to the contrary, Indians going beyond

reservation boundaries have generally been held subject to nondiscriminatory

state law otherwise applicable to all citizens of the [s]tate. There is no

federal statute or treaty that provides petitioner . . . any immunity from the

application of Oklahoma law to its off-reservation commercial activities.

Nor, in my opinion, should this Court extend the judge-made doctrine of

sovereign immunity to pre-empt the authority of the state courts to decide for

themselves whether to accord such immunity to Indian tribes as a matter of

comity.

. . . .

In sum, we have treated the doctrine of sovereign immunity from

judicial jurisdiction as settled law, but in none of our cases have we applied

the doctrine to purely off-reservation conduct. Despite the broad language

used in prior cases, it is quite wrong for the Court to suggest that it is merely

following precedent, for we have simply never considered whether a tribe is

immune from a suit that has no meaningful nexus to the tribe’s land or its

sovereign functions. Moreover, none of our opinions has attempted to set

forth any reasoned explanation for a distinction between the [s]tates’ power

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

to adjudicate disputes arising out of such off-reservation conduct.

Accordingly, while I agree with the Court that it is now too late to repudiate

the doctrine entirely, for the following reasons[,] I would not extend the

doctrine beyond its present contours.

Id. at 760, 764 (internal quotation marks and citations omitted). The majority’s concerns and

Justice Stevens’ dissent in Kiowa Tribe, read fully, should stimulate analysts to reasonably

view the case now before this Court as one beyond the periphery of immunity, requiring

affirmance of the district court’s denial of the Pueblo’s motion to dismiss.
9

{20} This is not a case in which a party suing a tribe has engaged in a contractual or

commercial relationship with that tribe. No one is forced to enter into such relationships.

Those entering into such relationships do so voluntarily, by choice, and they should know

the legal risks. When a tribe acquires property in fee simple that envelops a state public road

and subsequently denies access to existing property owners or other individuals, those

excluded are innocent citizens who had no choice and cannot be held to have known or

anticipated a legal risk of access denial and a dispositive facial assertion of sovereign

immunity by an Indian tribe.

{21} In sum, the allegations of the complaint survive the Rule 1-012(B)(1) facial attack.

The allegations in the complaint were presumed to be true for the purposes of the motion,

and the Pueblo has not shown any factual, legal, or rational basis on which to invoke

sovereign immunity in the face of those allegations—including the allegation, undisputed

and fully supported by other allegations, that the road is a state public road.

CONCLUSION

{22} We affirm the district court’s denial of the Pueblo’s motion to dismiss under Rule 1-

012(B)(1), and we remand for further proceedings.

{23} IT IS SO ORDERED.

__________________________________

JONATHAN B. SUTIN, Judge

I CONCUR:

_________________________________

J. MILES HANISEE, Judge

JAMES J. WECHSLER, Judge, dissenting.

WECHSLER, Judge (dissenting).

{24} Regardless of the stage of a proceeding, the doctrine of tribal sovereign immunity

applies to insulate Indian tribes from being required to defend actions in state court. I

therefore believe that this Court must analyze the issues presented to the district court.

When I conduct that analysis, I conclude that the Pueblo’s motion to dismiss should have

been granted. I thus respectfully dissent.

TRIBAL SOVEREIGN IMMUNITY

{25} My concerns with the Majority Opinion focus on its discussion of (1) Kiowa Tribe,

523 U.S. 751, (2) cases that do not involve tribal sovereign immunity, (3) the equities of this
10

case, and (4) the timing of the Pueblo’s motion. I discuss each below.

{26} As to my first concern, the doctrine of tribal sovereign immunity is a matter of

federal law and is not subject to diminution by the state. Armijo v. Pueblo of Laguna, 2011-

NMCA-006, ¶ 10, 149 N.M. 234, 247 P.3d 1119. The doctrine recognizes that “Indian tribes

are domestic dependent nations that exercise inherent sovereign authority over their

members and territories. Indeed, Indian tribes have long been recognized as possessing the

common-law immunity from suit traditionally enjoyed by sovereign powers.” Id. (internal

quotation marks and citation omitted). Sovereign immunity not only embraces the longrecognized principle that a tribe is immune from suit, but it likewise protects a tribe from

being hauled into court. Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)

(stating, in the context of state sovereign immunity, that sovereign immunity “does not exist

solely in order to prevent federal-court judgments that must be paid out of a [s]tate’s

treasury[;] it also serves to avoid the indignity of subjecting a [s]tate to the coercive process

of judicial tribunals at the instance of private parties[.]” (alteration, internal quotation marks,

and citations omitted); United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992) (holding

that tribal sovereign immunity barred a subpoena directing the tribe’s director of social

services to produce records based on the rationale that tribal sovereign immunity

encompasses immunity from the “processes of the court”).

{27} As the Majority Opinion states, there are issues concerning the scope of tribal

sovereign immunity when tribes or pueblos engage in activities that extend beyond the

original purpose of the doctrine to safeguard tribal self-governance. See Kiowa Tribe, 523

U.S. at 757-58 (stating that the rationale supporting the tribal immunity doctrine “can be

challenged as inapposite to modern, wide-ranging tribal enterprises extending well beyond

traditional tribal customs and activities”). Kiowa Tribe involved a commercial transaction

in which the Kiowa Tribe executed and delivered a promissory note beyond its tribal lands

to make payments also beyond its tribal lands. Id. at 753-54. After the tribe defaulted, the

payee sued the tribe in state court. Id. at 754. Despite the Kiowa Tribe Court’s expressing

“reasons to doubt the wisdom of perpetuating the doctrine” of tribal sovereign immunity

beyond the degree “needed to safeguard tribal self-governance[,]” and notwithstanding the

different outcome suggested by Justice Stevens’ dissent, the Court stated that “the doctrine

of tribal immunity is settled law and controls in this case” and deferred to Congress to make

any changes to the doctrine. Id. at 756-60. It reversed the decision of the Oklahoma Court

of Civil Appeals that declined to recognize immunity. Id. at 760. The Court specifically

held, as has our New Mexico Supreme Court, that there are only two exceptions to tribal

sovereign immunity: (1) Congress can expressly authorize suits against Indian tribes, and

(2) a tribe can waive its sovereign immunity. Id. at 754; Gallegos v. Pueblo of Tesuque,

2002-NMSC-012, ¶ 7, 132 N.M. 207, 46 P.3d 668. The Majority Opinion relies on the

dissent and the majority’s concerns in Kiowa Tribe, as well as the concurring opinion in

Potawatomi, 498 U.S. at 514-15, in which Justice Stevens expressed similar concerns about

applying tribal sovereign immunity to tribal commercial activity “outside its own territory.”

I too recognize that the Pueblo’s assertion of tribal sovereign immunity in this case appears

to extend the doctrine beyond its original purpose of safeguarding tribal self-governance or
11

the protection of reservation land or land held in trust by the United States. See Kiowa

Tribe, 523 U.S. at 758. Yet, if the Supreme Court in Kiowa Tribe, despite its concerns,

followed the doctrine, deferring to Congress to make changes, I do not believe that this Court

is in a position to act differently.

{28} Second, I have difficulty with the Majority Opinion’s application of cases that do not

involve issues of tribal sovereign immunity to support its holding. It concludes that “the

issue in this case is a matter of state law,” citing Jicarilla Apache Tribe, 118 N.M. at 554-57,

883 P.2d at 140-43. Majority Op. ¶ 14. But, our Supreme Court has expressly stated that

“tribal immunity is a matter of federal law.” Gallegos, 2002-NMSC-012, ¶ 7; see also

Kiowa Tribe, 523 U.S. at 754-55 (applying federal law to determine the availability of tribal

sovereign immunity). Further, Jicarilla Apache Tribe is a case of statutory construction, not

tribal sovereign immunity. The issue was whether a federal statute, 28 U.S.C. § 1360(b)

(1984), preempted state court jurisdiction of an Indian tribe’s trespass action in a dispute

concerning land purchased by the tribe. Jicarilla Apache Tribe, 118 N.M. at 551, 883 P.2d

at 137. Our Supreme Court decided against preemption and considered a result that would

have precluded the tribe from bringing its trespass action in state court to be an anomalous

construction of the statute, supporting its conclusion. Id. at 558, 883 P.2d at 144. Because

Jicarilla Apache Tribe does not address tribal sovereign immunity, it is not relevant to our

analysis.

{29} Similarly, the Majority Opinion cites Montana and several other United States

Supreme Court cases for the proposition that the Court “supports the view that an Indian

tribe cannot exercise jurisdiction over conduct on a public roadway.” Majority Op. ¶ 14.

However, Montana and the cases that follow it also do not involve issues of tribal sovereign

immunity. See 450 U.S. at 557 (addressing “the question of the power of the [t]ribe to

regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers

of the [t]ribe”). Rather, they involve the separate issue of a tribe’s sovereign authority over

tribal lands. See Nevada, 533 U.S. at 374 (relying on Montana and Strate and concluding

that because the tribe lacked sovereign authority over the dispute, it “also lacked adjudicative

authority to hear respondent’s claim that those officials violated tribal law in the

performance of their duties”); Atkinson Trading, 532 U.S. at 647 (addressing the sovereign

authority of a tribe to tax nonmember activity occurring on non-Indian fee land); Strate, 520

U.S. at 442 (addressing “the adjudicatory authority of tribal courts over personal injury

actions against defendants who are not tribal members”); Bourland, 508 U.S. at 681-82

(addressing “whether the [tribe] may regulate hunting and fishing by non-Indians on lands

and overlying waters located within the [t]ribe’s reservation but acquired by the United

States”); Brendale, 492 U.S. at 414 (addressing “whether the [tribe or the state], has the

authority to zone fee lands owned by nonmembers of the [t]ribe located within the

boundaries of the” reservation). “There is a difference between the right to demand

compliance with state laws and the means available to enforce them.” Kiowa Tribe, 523 U.S.

at 755; see also Armijo, 2011-NMCA-006, ¶ 18 (stating that cases involving a tribe bringing

suit to preclude a municipality from imposing taxes or other local laws “do not explore the

boundaries of a tribe’s sovereign immunity from suit[, and r]ather, they explore a tribe’s
12

sovereign authority over purchased lands”).

{30} Third, “sovereign immunity is not a discretionary doctrine that may be applied as a

remedy depending on the equities of a given situation[, and,] it presents a pure jurisdictional

question.” Armijo, 2011-NMCA-006, ¶ 13 (internal quotation marks and citation omitted).

The Majority Opinion stresses that the effect of permitting the Pueblo to exercise tribal

sovereign immunity would be to deprive Hamaatsa and other members of the public the

opportunity for legal recourse. Majority Op. ¶ 16. The Majority Opinion even speculates

that if tribal sovereign immunity were to apply, a pueblo or tribe could acquire property

“virtually anywhere in New Mexico” and deny access to the motoring public and

neighboring property owners. Supra. This speculation assumes that a property owner has

the ability to convey a dedicated public road and extends far beyond the facts of this case.

But, more significantly, although I agree that Hamaatsa makes a strong equitable argument,

as this Court stated in Armijo, it is not relevant to the jurisdictional question before us. Id.

{31} Lastly, I do not agree with the Majority Opinion that the timing of the Pueblo’s

motion is relevant to our analysis. Whether under federal or state Rules of Civil Procedure,

an assertion that tribal sovereign immunity requires dismissal of a lawsuit “is generally

raised in a [R]ule [1-0]12([B])(1) motion[.]” Cash Advance & Preferred Cash Loans v.

State, 242 P.3d 1099, 1113 (Colo. 2010); see id. (citing cases, including Kiowa Tribe, 523

U.S. at 754, in which the issue of tribal sovereign immunity has been raised by such motion).

A motion under Rule 1-012(B) “shall be made before pleading if a further pleading is

permitted.” Thus, the Pueblo’s motion was properly before the district court and

necessitated a decision.

{32} I therefore turn to the merits of the Pueblo’s motion to dismiss. The district court

denied that motion, reasoning that the complaint presented an in rem proceeding and that

tribal sovereign immunity does not apply to in rem proceedings or to actions seeking nonmonetary relief. I address these issues below, first considering whether this case presents

an issue of in rem or in personam jurisdiction. Concluding that it is in rem, I then address

whether tribal sovereign immunity applies to an in rem proceeding in which the subject is

property held by an Indian tribe in fee simple. Lastly, I consider whether it applies to a

complaint seeking declaratory relief.

IN REM

{33} The Pueblo argues that the district court erroneously concluded that the complaint

presented an in rem proceeding and that it need not exercise in personam jurisdiction over

the Pueblo. In the Pueblo’s view, Hamaatsa’s complaint presents an action for declaratory

and injunctive relief in which Hamaatsa seeks to quiet the Pueblo’s title to its land, and,

therefore, as a quiet title action, it is not an in rem proceeding. Hamaatsa responds by

arguing that the complaint does not seek to quiet title to the Pueblo’s land, and, even

assuming that the complaint presents a quiet title action under our quiet title statute, NMSA

1978, § 42-6-1 (1951), a quiet title action requires only in rem jurisdiction over the property
13

at issue and not in personam jurisdiction over the property owner.

{34} Our Supreme Court has stated that historically and “[m]ost commonly, in rem is

defined as a proceeding or action instituted against a thing in contradistinction to in

personam actions which are directed against a person.” State v. Nunez, 2000-NMSC-013,

¶ 78, 129 N.M. 63, 2 P.3d 264 (internal quotation marks and citation omitted). “However,

in modern jurisprudence, this definition is neither conceptually nor practically accurate.”

Id. In the modern sense, an in rem proceeding is one “[i]nvolving or determining the status

of a thing, and therefore the rights of persons generally with respect to that thing.” Black’s

Law Dictionary 864 (9th ed. 2009). A “proceeding[] in rem [is one] which determine[s]

interests in specific property as against the whole world.” State ex rel. Hill v. Dist. Court

of Eighth Judicial Dist., 79 N.M. 33, 34, 439 P.2d 551, 552 (1968). In other words, “[a]n

in rem action is directed, not against the property per se, but rather at resolving the interests,

claims, titles, and rights in that property[, a]nd it is persons—as individuals, governments,

corporations—who possess those interests, claims, titles, and rights.” Nunez, 2000-NMSC013, ¶ 78 (footnote omitted).

{35} Applying these definitions, Hamaatsa’s complaint presents an in rem proceeding

regarding the road, in that the action pertains to the status of the road and seeks to declare

the road to be public under state and federal law. Although the action affects the interests,

claims, titles, and rights of the Pueblo to the road and to restrict access to the use of the road,

the essential character of the complaint is a declaratory action seeking a determination of the

status of property as against the whole world. The Pueblo’s title to the road conveyed by the

2002 BLM quitclaim deed does not transform this action into an in personam action against

the Pueblo. See id. I acknowledge the Pueblo’s argument that because the prayer for relief

asked the district court to declare “that [the Pueblo] cannot restrict [Hamaatsa’s] use of

the . . . [r]oad as a member of the public,” Hamaatsa is seeking to enjoin the Pueblo from

restricting access to the road and that such an injunction requires in personam jurisdiction.

However, I do not read this language as seeking to enjoin the Pueblo from interfering with

Hamaatsa’s right to use the road. Even if the complaint sought to enjoin the Pueblo and

other members of the public, the character of the action is nonetheless in rem. See United

States v. Oregon, 657 F.2d 1009, 1015-16 (9th Cir. 1981) (“[A] court possessed of the res

in a proceeding in rem . . . may enjoin those who would interfere with that custody.”

(internal quotation marks and citation omitted)).

{36} The Pueblo cites to a trilogy of New Mexico cases involving the declaration of the

right of the plaintiff to use a road on allegedly privately owned adjacent land under § 932

for the proposition that such actions are in personam. See generally Lovelace v. Hightower,

50 N.M. 50, 168 P.2d 864 (1946); Wilson v. Williams, 43 N.M. 173, 87 P.2d 683 (1939);

Quintana v. Knowles, 115 N.M. 360, 851 P.2d 482 (Ct. App. 1993). The Pueblo argues that

these cases do not contain “even the remotest suggestion that the exercise of jurisdiction by

the [appellate courts] and the courts below was or could have been premised upon anything

other than in personam jurisdiction.” However, likewise, none of these cases addressed or

considered the issue of whether the jurisdiction was in rem or in personam. Grygorwicz v.
14

Trujillo, 2006-NMCA-089, ¶ 15, 140 N.M. 129, 140 P.3d 550 (“Cases are not authority for

propositions not considered.” (alteration, internal quotation marks, and citation omitted)).

{37} The Pueblo next argues that the complaint presents an action to quiet title under the

quiet title statute, Section 42-6-1, and that “[t]he [d]istrict [c]ourt’s decision . . . runs afoul

of the longstanding legal principle in our [s]tate that actions to quiet title . . . are actions in

personam.” For support, the Pueblo cites State ex rel. Truitt v. District Court of Ninth

Judicial District, 44 N.M. 16, 23, 96 P.2d 710, 714-15 (1939), in which our Supreme Court

stated that “actions affecting title to property within the jurisdiction of the court, but which

is not seized or otherwise brought under the direct control of the court for disposition . . . are

usually held to be in personam. Such are actions . . . to quiet title to property.” However,

Hamaatsa’s complaint is not an action for quiet title, nor are quiet title actions considered

actions in personam under New Mexico law.

{38} In addition, in two later cases, our Supreme Court has limited the statement in Truitt

that quiet title actions are in personam. In Hill, 79 N.M. at 34-35, 439 P.2d at 552-53, the

Court noted that the facts of Truitt involved an attempted reformation of a sublease and that

the Court addressed the issue of whether the plaintiff must personally serve the defendant

in order for the district court to acquire jurisdiction. The Court stated that Truitt contained

“various statements that were not necessary for that decision” and that “any discussion in the

opinion of other types of action was dicta and will not be considered as binding upon us.”

Hill, 79 N.M. at 35, 439 P.2d at 553. In Sullivan v. Albuquerque National Trust & Savings

Bank of Albuquerque, 51 N.M. 456, 462, 188 P.2d 169, 173 (1947), our Supreme Court also

indicated that a complaint to quiet title is not an in personam action. Addressing whether

“the plaintiff’s [quiet title] complaint is accurately appraised as one in personam” so as to

require personal service to the defendant, it concluded that “the complaint does have

allegations sufficient to [be] treated as a complaint in a suit to quiet title to real estate” and

that constructive service to the defendant was sufficient to withstand a motion to dismiss for

lack of jurisdiction. Id. Implicit in this holding is the determination that a suit to quiet title

is not an in personam proceeding and, instead, is an in rem proceeding.

{39} Further, a complaint in which a plaintiff seeks to establish and use a public road

under Section 932 is not a quiet title action. In Kinscherff v. United States, 586 F.2d 159,

160-61 (10th Cir. 1978) (per curiam), the Tenth Circuit held that a suit by the plaintiffs under

§ 932 is not a quiet title action under the federal quiet title statute, 28 U.S.C. § 2409(a)

(1948). The court reasoned that in order for a plaintiff to bring a quiet title suit, the plaintiff

must have an interest in or title to the property at issue that is superior to the defendant’s

interest. Kinscherff, 586 F.2d at 160. The court held that the plaintiffs did not claim an

interest or title to the road they sought to have declared public because a member of the

public does not have a real property interest in public roads under New Mexico law. Id. at

161. Although the Pueblo attempts to distinguish Kinscherff on the ground that the Tenth

Circuit addressed whether the complaint in Kinscherff was a quiet title suit under the federal

quiet title statute, the New Mexico quiet title statute, Section 42-6-1, likewise requires that

a plaintiff assert an “interest” in the property at issue. Therefore, Hamaatsa’s complaint was
15

not a complaint seeking to quiet title in the road under Section 42-6-1. Rather, Hamaatsa’s

complaint presented an in rem proceeding regarding the road.

{40} I thus turn to whether the doctrine of sovereign immunity extends to in rem actions

affecting property owned by a tribe in fee simple and whether tribal sovereign immunity

applies to actions not seeking monetary relief. In this regard, the Pueblo argues that, even

if the complaint presented an in rem cause of action, the district court erred by determining

that tribal sovereign immunity did not bar Hamaatsa’s complaint. It contends that the

doctrine of tribal sovereign immunity applies to proceedings in rem when an Indian tribe

owns the property that is subject to the proceeding and that the doctrine applies to

proceedings not seeking monetary relief.

In Rem Proceedings and Tribal Sovereign Immunity

Oneida I

{41} The Pueblo cites Oneida Indian Nation of New York v. Madison County (Oneida I),

401 F. Supp. 2d 219 (N.D.N.Y. 2005), aff’d by 605 F.3d 149 (2d Cir. 2010) (Oneida II),

vacated and remanded on other grounds by Madison County, New York v. Oneida Indian

Nation of New York, __ U.S. __, 131 S. Ct. 704 (2011) (per curiam), for the proposition that

tribal sovereign immunity bars an in rem proceeding when an Indian tribe owns the property

that is the subject of the proceeding. In Oneida I, an Indian tribe filed an action to prevent

a county from assessing and enforcing property taxes against tribally owned property.

Oneida I, 401 F. Supp. 2d at 222. After the United States Supreme Court, in a companion

case, held that the county could lawfully impose a tax on the tribally owned property, the

county filed a state court foreclosure action for unpaid taxes. Id. at 223. See generally City

of Sherrill, N.Y. v. Oneida Indian Nation of N.Y. (Sherrill), 544 U.S. 197 (2005). The tribe

sought to enjoin the county in federal district court from proceeding with the state

foreclosure action. Oneida I, 401 F. Supp. 2d at 223.

{42} Despite the Supreme Court’s holding in Sherrill that a locality could impose a tax on

tribally owned land, the federal district court held that tribal sovereign immunity barred the

state foreclosure action against the tribally owned lands. Oneida I, 401 F. Supp. 2d at 230.

In so deciding, the district court stated that “[i]t is of no moment that the state foreclosure

suit at issue here is in rem [and w]hat is relevant is that the [c]ounty is attempting to bring

suit against the [tribe].” Id. at 229. The district court relied on the United States Supreme

Court decision in Kiowa Tribe, 523 U.S. at 755, which, as I have discussed, declined to

abrogate the tribal immunity doctrine and deferred to Congress to do so, and United States

v. Nordic Village, Inc., 503 U.S. 30, 38 (1992), which declined to adopt an “in rem exception

to the sovereign-immunity bar” in the context of state sovereign immunity under the

Eleventh Amendment.

{43} The Second Circuit affirmed the district court’s decision. In affirming, the Second

Circuit distinguished cases addressing whether a locality could impose taxes on tribal lands,
5

 Hamaatsa relies on footnote 7 in Sherrill to argue that Sherrill also addressed tribal

sovereign immunity. Footnote 7 responds to an argument in Justice Stevens’ dissent that the

Court’s analysis would lead to the inconsistent conclusion that the tribe could raise “tax

immunity” as a defense to the eviction proceeding that the City of Sherrill had initiated in

state court. Sherrill, 544 U.S. at 225 (Stevens, J., dissenting). The Court disagreed, stating

in the footnote that “[t]he equitable cast of the relief sought remains the same whether

asserted affirmatively or defensively.” Id. at 214 n.7. I cannot conclude, however, based

solely on this footnote discussing “tax immunity” that the Sherrill holding involves more

than tribal sovereign authority as opposed to tribal sovereign immunity. 

16

such as Sherrill, by noting that the freedom from state taxation derives from the tribal

sovereign authority doctrine, not from the tribal sovereign immunity doctrine. Oneida II,

605 F.3d at 156-57. The Second Circuit noted that tribal sovereign authority and tribal

sovereign immunity are two distinct doctrines with different historical origins and purposes.

Id. at 157-58. In short, “Sherrill dealt with the right to demand compliance with state laws[,

and i]t did not address the means available to enforce those laws.” Oneida II, 605 F.3d at

159 (internal quotation marks and citations omitted).5

{44} I agree with the district court in Oneida I that the doctrine of sovereign tribal

immunity applies to an in rem proceeding involving tribally owned property. Regardless of

whether the complaint is characterized as in rem, an action essentially to declare a tribally

owned property a public highway is in effect an action against the tribe. See Oneida I, 401

F. Supp. 2d at 229 (“The [c]ounty cannot circumvent [t]ribal sovereign immunity by

characterizing the suit as in rem, when it is, in actuality, a suit to take the tribe’s property.”).

Further, because tribal sovereign immunity is a matter of federal law and “Congress is in a

position to weigh and accommodate the competing policy concerns and reliance interests”

in determining the bounds of the doctrine, courts exercise “caution . . . in this area.” Kiowa

Tribe, 523 U.S. at 759. If Congress wishes to authorize in rem suits against tribal property,

it may do so. See id. (“Congress has occasionally authorized limited classes of suits against

Indian tribes and has always been at liberty to dispense with such tribal immunity or to limit

it.” (internal quotation marks and citation omitted)).

Armijo

{45} This Court has previously applied the tribal sovereign immunity doctrine in a case

involving similar facts. In Armijo, the tribe purchased a ranch outside the boundaries of the

tribe’s reservation. 2011-NMCA-006, ¶¶ 2, 11. The plaintiff filed suit against the tribe and

another individual (the cross-claimant) for quiet title. Id. ¶ 3. The cross-claimant filed a

cross-claim against the tribe to quiet title to a portion of the ranch based on adverse

possession and the tribe moved to dismiss under Rule 1-012(B)(1) based on sovereign

immunity. Armijo, 2011-NMCA-006, ¶¶ 4, 7. The district court denied the tribe’s motion

to dismiss because the matter arose outside of the tribe’s reservation. Id. This Court
17

reversed the district court, applying tribal sovereign immunity and holding that doctrine

applies “without drawing a distinction based on where the tribal activities occurred.” Id. ¶

12 (internal quotation marks and citation omitted). Although this Court recognized the

district court’s “concern with the equities of the case,” it held that sovereign immunity is a

jurisdictional question and not a discretionary doctrine. Id. ¶ 13. I acknowledge that Armijo

does not address the specific issue before the Court in this case, whether tribal sovereign

immunity applies to an in rem proceeding in which the subject matter is property owned by

an Indian tribe in fee simple. However, the nature of the cause of action and the nature of

the property subject to the suit are similar. In both cases, the effect of the suit is to deprive

an Indian tribe of the use and control of property that the tribe purchased in fee simple. As

we identified in Armijo, the proper inquiry is not the location or nature of the disputed

property, nor the equities of the case, but whether a federal statute authorized the suit or the

tribe consented to jurisdiction. See id. ¶ 14.

Yakima

{46} Hamaatsa argues that a determination that the tribal sovereign immunity doctrine

applies to proceedings in rem conflicts with the United States Supreme Court decision in

County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation (Yakima), 502

U.S. 251 (1992). In Yakima, the Supreme Court addressed whether a county could impose

an ad valorem tax on reservation land and an excise tax on sales of such land under the

federal General Allotment Act. Id. at 253, 270. The Supreme Court held that the ad valorem

tax “constitutes taxation of land within the meaning of the General Allotment Act and is

therefore prima facie valid.” Id. at 266 (alteration and internal quotation marks omitted).

However, noting that an excise tax is in personam, not in rem, the Court held that the excise

tax was void because it was not a tax on land within the meaning of the General Allotment

Act. Id. at 265, 269-70. Yakima, like Sherrill, does not explore tribal sovereign immunity

and instead deals with the inapposite issue of tribal sovereign authority regarding the extent

the General Allotment Act permits a county to impose an ad valorem tax and excise tax on

fee patented reservation lands. As in Sherrill, it was the tribe that instituted suit in Yakima

for declaratory and injunctive relief, arguing that the taxes were invalid. Yakima, 502 U.S.

at 256; see Armijo, 2011-NMCA-006, ¶ 18 (stating that cases involving a tribe bringing suit

to preclude a municipality from imposing taxes or other local laws “do not explore the

boundaries of a tribe’s sovereign immunity from suit[, and r]ather, they explore a tribe’s

sovereign authority over purchased lands”). Yakima therefore does not support Hamaatsa’s

position that tribal sovereign immunity does not apply to an in rem proceeding.

Other State Cases

{47} Hamaatsa also directs us to several state appellate court decisions that have

concluded that tribal sovereign immunity does not apply to an in rem proceeding concerning

property held by an Indian tribe in fee simple. In Anderson & Middleton Lumber Co. v.

Quinault Indian Nation (Anderson), 929 P.2d 379, 381 (Wash. 1996) (en banc), the plaintiff

brought suit to partition and quiet title to an eighty-acre parcel of land located on a tribe’s
18

reservation. The tribe filed a motion to dismiss for lack of jurisdiction based on tribal

sovereign immunity, which the trial court denied, holding that it had in rem jurisdiction over

the property. Id. The Washington Supreme Court affirmed, holding that under Yakima, “it

is reasonable to conclude that the [trial court] had proper in rem jurisdiction over [the

plaintiff’s] suit to quiet title and partition” the property. Anderson, 929 P.2d at 385; see also

Smale v. Noretep, 208 P.3d 1180, 1181 (Wash. Ct. App. 2009) (applying Anderson to deny

tribal sovereignty in a case in which the plaintiffs sued to quiet title on tribally owned lands).

{48} In the same vein, in Cass County Joint Water Resource District v. 1.43 Acres of Land

in Highland Township (Cass County), 2002 ND 83, ¶ 12, 643 N.W.2d 685, 691, the North

Dakota Supreme Court addressed the “novel question [of] whether tribal sovereign immunity

bars a purely in rem action against land held by [a t]ribe in fee.” In that case, the court

addressed a condemnation action, which was undisputedly an in rem proceeding. Id. ¶ 8.

The court cited Yakima for the proposition that courts “have recognized distinctions in

application of the doctrine of tribal sovereign immunity based upon the in rem or in

personam nature of the proceedings.” Cass Cnty., 2002 ND 83, ¶ 13. Based on Yakima and

Anderson, the court concluded that “the district court could validly exercise jurisdiction over

[the] condemnation action” because it was a purely in rem proceeding. Cass Cnty., 2002 ND

83, ¶ 20.

{49} I am not persuaded by the reasoning of Anderson and Cass County. As I have

discussed, Yakima does not involve tribal sovereign immunity and does not compel the result

reached in Anderson and Cass County. See Oneida II, 605 F.3d at 156-57 (stating that the

freedom from state taxation derives from the tribal sovereign authority doctrine, not from

the tribal sovereign immunity doctrine); see also Armijo, 2011-NMCA-006, ¶ 18

(recognizing the difference between tribal sovereign immunity and tribal sovereign

authority). I also disagree with Hamaatsa’s argument that Sherrill, 544 U.S. at 213, supports

a conclusion that property held in fee simple is subject to local authority, including

enforcement, because Sherrill likewise dealt with tribal sovereign authority, not tribal

sovereign immunity. See Oneida II, 605 F.3d at 159 (“Sherrill dealt with the right to

demand compliance with state laws[, and i]t did not address the means available to enforce

those laws.” (internal quotation marks and citations omitted)).

Non-Monetary Relief and Tribal Sovereign Immunity

{50} In denying the Pueblo’s motion to dismiss, the district court also concluded that tribal

sovereign immunity did not apply because Hamaatsa’s complaint did not seek monetary

damages. The Pueblo argues that the district court erred in determining that tribal sovereign

immunity does not apply to a complaint for declaratory or injunctive relief.

{51} Generally, tribal sovereign immunity applies to actions for declaratory and injunctive

relief to the same extent that it applies to an action for damages. See Imperial Granite Co.

v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991) (“The immunity

extends to suits for declaratory and injunctive relief.”); see also Wisconsin v. Ho-Chunk
19

Nation, 512 F.3d 921, 928 (7th Cir. 2008) (“Tribal sovereign immunity is a necessary

corollary to Indian sovereignty and self-governance[] and extends to suits for injunctive or

declaratory relief.” (internal quotation marks and citation omitted)); Cohen’s Handbook of

Federal Indian Law § 7.05[1][a] (Nell Jessup Newton ed., 2005) (“Tribal immunity applies

to suits for . . . declaratory and injunctive relief.”). Indeed, this Court has applied tribal

sovereign immunity to a complaint that did not seek monetary damages. See Armijo, 2011-

NMCA-006, ¶¶ 5, 24 (holding that tribal sovereign immunity applied to a cross-claim for

adverse possession of tribally owned land).

{52} Hamaatsa points out that the Fifth Circuit, in TTEA v. Ysleta Del Sur Pueblo, 181

F.3d 676, 680-81 (5th Cir. 1999), held that tribal sovereign immunity does not apply to

actions seeking declaratory and injunctive relief. See also Comstock Oil & Gas Inc. v. Ala.

& Coushatta Indian Tribes of Tex., 261 F.3d 567, 571 (5th Cir. 2001) (following TTEA). In

TTEA, the Fifth Circuit reasoned that the doctrine of tribal sovereign immunity should not

extend further than the doctrine of state sovereign immunity and noted that “[s]tate sovereign

immunity does not preclude declaratory or injunctive relief against state officials.” TTEA,

181 F.3d at 680. It held that, regardless, Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978), controlled the issue of declaratory and injunctive relief. TTEA, 181 F.3d at 180. In

Santa Clara Pueblo, the Supreme Court concluded that tribal sovereign immunity barred a

lawsuit against the tribe under Title I of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303

(1968, as amended through 2010), but a tribal official was not protected by the tribe’s

immunity. Santa Clara Pueblo, 436 U.S. at 59. I thus cannot agree with the reasoning of

TTEA that relies upon the absence of immunity, tribal or state, for officials because officials

stand in a different position from the tribe or the state. Moreover, the Supreme Court has

further clarified “that the immunity possessed by Indian tribes is not coextensive with that

of the [s]tates.” Kiowa Tribe, 523 U.S. at 755-56.

{53} Rather, even though Kiowa Tribe involved a demand for monetary damages, its

ruling nevertheless embraces non-monetary relief demanded of an Indian tribe. As I have

discussed, the Supreme Court in Kiowa Tribe recognized that the original purpose of the

tribal sovereign immunity doctrine may seem strained when applied to modern tribal

business activity, off-reservation conduct. 523 U.S. at 757-58 (stating that the rationale

supporting the tribal immunity doctrine “can be challenged as inapposite to modern, wideranging tribal enterprises extending well beyond traditional tribal customs and activities”).

I similarly recognize that the Pueblo’s assertion of tribal sovereign immunity in this case

appears to extend the doctrine beyond its original purpose of safeguarding tribal selfgovernance. In addition, this case involves the tribal acquisition of fee property rather than

reservation land or land held in trust by the United States for a tribe. It thereby addresses

tribal interests that are more attenuated than those addressed within the traditional reach of

the sovereign immunity doctrine. See id. at 758. However, as I have earlier noted, despite

its expressions of “reasons to doubt the wisdom of perpetuating the doctrine” of tribal

sovereign immunity beyond the degree “needed to safeguard tribal self-governance[,]” the

Supreme Court in Kiowa Tribe noted that “the doctrine of tribal immunity is settled law” and

controlled in that case. Id. at 756, 758. It held that an Indian tribe is subject to suit only
20

where Congress has authorized the suit or the tribe has waived its immunity and deferred to

Congress to make changes to the doctrine. Id. at 754, 758. I would not accept the invitation

to add another exception. As in Kiowa Tribe, Hamaatsa’s remedy lies with Congress to

change the law concerning the doctrine. See id. at 754.

Hamaatsa’s Remaining Arguments

{54} Hamaatsa argues that we should affirm the district court because “the Pueblo’s

position would deprive Hamaatsa of a judicial forum.” Hamaatsa cites Dry Creek Lodge,

Inc. v. Arapahoe & Shoshone Tribes (Dry Creek), 623 F.2d 682, 684-85 (10th Cir. 1980),

in which the Tenth Circuit concluded that tribal sovereign immunity did not apply to a suit

by non-Indian plaintiffs against a tribe under the Indian Civil Rights Act when the tribal

court did not provide a forum to hear the dispute. However, the Tenth Circuit has limited

the Dry Creek exception to suits “against an Indian tribe under [the Indian Civil Rights Act]

when three circumstances are present: (1) the dispute involves a non-Indian; (2) the dispute

does not involve internal tribal affairs; and (3) there is no tribal forum to hear the dispute.”

Walton v. Tesuque Pueblo, 443 F.3d 1274, 1278 (10th Cir. 2006). Further, the Tenth Circuit

has stated “that the rule has minimal precedential value and in the twenty-six years since Dry

Creek, with the exception of Dry Creek itself, we have never found the rule to apply.”

Walton, 443 F.3d at 1278 (internal quotation marks and citation omitted). Because

Hamaatsa’s complaint does not arise under the Indian Civil Rights Act, the Dry Creek

exception does not apply in this case.

{55} Hamaatsa also argues that the district court’s order should be affirmed because “tribal

sovereign immunity should not apply more expansively to tribes than to other sovereigns.”

However, Hamaatsa fails to develop this argument on appeal, and I therefore do not address

it. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d

1076 (refusing to review an undeveloped and unclear argument on appeal).

CONCLUSION

{56} For the foregoing reasons, I respectfully dissent from the Majority Opinion. I believe

that the district court should have granted the motion to dismiss.

____________________________________

JAMES J. WECHSLER, Judge

Topic Index for Hamaatsa, Inc. v. Pueblo of San Felipe, No. 31,297

Appeal and Error

Interlocutory Appeal

FEDERAL LAW

Federal Jurisdiction
21

GOVERNMENT

Highways

Sovereign Immunity

INDIAN LAW

Indian Lands

Indian Law, General

Tribal and State Authority and Jurisdiction

JUDGMENT

Declaratory Judgment

JURISDICTION

Federal Jurisdiction

In Rem

Personal

Subject Matter