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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
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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 rightof-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
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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
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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 nonIndian 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
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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
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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 nonIndian 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
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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
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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. 
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{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-NMSC044, ¶ 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, coexistent 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.
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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 . . . .”). 
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{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
12

CIVIL PROCEDURE

Summary Judgment

INDIAN LAW

Indian Law, General

Tribal and State Authority and Jurisdiction

NEGLIGENCE

Personal Injury