1 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, 6402 P.2d 941, 942-43 (Ct. App. 1981), we revisit the i ssue to determine whether evolving federal Indian Law jurisprudence and recent preceden t from our own Supreme Court now require a different result. We hold that those de velopments do not alter our analysis in Hartley , and we hereby affirm the district court’s deci sion 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 accide nt 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 occu rred 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 w ith 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 IsletaPueblo 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 in3 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 Hartleydismissed 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 rele vant 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 infringeme nt test,” because (1) “[the defendant] was an Indian,” (2) “the accident occurred on State Ro ad 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 Sant a 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 Hartleystands as binding precedent over these facts—and if it remains good law woul d compel our state courts to dismiss his and other factually similar actions for lack of jurisdiction. Nonetheless, he argues that since this Court decided Hartleyin 1981, federal precedent—beginning with Montana v. United States , 450 U.S. 544 (1981)—has fundamentally altered the analysis used in Hartleyand applied stricter limitations to the reach of tribal jurisdiction. Accordingly, Hinkle urges us to reconsider our holding in Hartleyand 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 rea ffirm 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) (“Ex clusive tribal jurisdiction exists . . . when an Indian is being sued by a non-I ndian over an occurrence or transaction arising4 in Indian country . . . .”).

{7} Hinkle initially suggests that this Court overlooked or was unaware of Montanawhen it decided Hartleybecause Montana was very recent precedent at the time and was not referenced within the Hartleyopinion. 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 la nd owned in fee by nonmem bers 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 th at 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 Hartleynow warrants review. Though Montana did not itself announce a rule necessary for our courts to address in Hartleyor 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 highw ay 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 execu ted 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 de termination 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-cus tody 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, s hould supplant the test articulated in Williams and applied in Hartley . Adoption of that rule here, Hinkle s uggests, would allow our state courts to assert subject matter jurisdiction over accidents occurring on state and federal public5 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 acci dents 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 tribalcourt 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 polic y, “the courts of this state have adopted greater protection for tribal s overeignty 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 ju risdiction. In fact, the United States Supreme Court in Montana and the cases that followed was caref ul to limit its holdings to the narrow question of tribal court jurisdiction, and has beenlargely 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 infee by nonmembers of the Tribe.”); Strate , 520 U.S. at 442 (“This case concerns th e adjudicatory authority of tribal courtsover 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 tribalattempts 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. L ong Family Land & Cattle Co. , 554 U.S. 316, 320 (2008) (“The questi on presented is whether the Tribal Court had jurisdiction to adjudicate a discrimination claim concerni ng the non-Indian bank’s sale of fee land it owned.” (emphasis added)). Based on the expre ssly 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 di rective 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 tribaljurisdictional 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 the6 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-I ndian 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 jurisdicti on 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 ac tion 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 Cn ty. 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 jurisdic tion [and its decision] was inde pendent 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 juri sdiction 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 Garciaas 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 defi nes 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 narrow7 question [of] whether the fee land can be consider ed part of the Pojoaque Pueblo solely for the purpose[] of [ascertaining] the U CCJEA’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 Garciaexpressly 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 determinedthat state court jurisdiction under those circumstances would not impermissibl y infringe upon tribal authority under Williams . We therefore do not read Garciaas 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 suggest s, 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 allnonmembers. 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 jurisdic tion 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 juri sdiction 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 app lication 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 an swer for her conduct. Hinkle’s presence in tribal court can be secured only by his own vo lition, which would then exclude his status as an unconsenting party to the suit. These fact s are not rendered legally meaningless simply8 because the jurisdiction available to Hinkle doe s not include his preference for state court. See Williams , 358 U.S. at 218 (recognizing that nonmem ber 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) (r ecognizing that Indian plaintiffs may elect to file their claims instate 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 Nutshell224-26 (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 trib al 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 assu mption 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.9 {18} First, we refuse to supplant th e 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 tribalmembers 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 acti on 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 tribalcourt 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 au thority. . . . [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 pr oves 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 fo r 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 possib ility 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.10 2009) (defining “jurisdiction” as “[a] geogr aphic 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 th is 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 internalrelations 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 pr otect 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 civ il 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 hi storical limit, inherent tribal authority has consistently been recognized as including the ability to regulate the conduct of tribal members, especially when the conduc t occurs within tribal boundaries. Montana , 450 U.S. at 563 (“Indian tribes are ‘uni que aggregations possessing attri butes 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 in jured 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 . . . .”).11 {22} Simply because our United States Supreme Court has fortified the limitations of tribalreach over nonmember conduct on tribal land by virtue of the Montana cases, there does not exist a corresponding decrease of the i nherent aspects of tribal sovereignty, such as jurisdictional authority over tribal me mbers 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 Granti ng 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 Matter12 CIVIL PROCEDURE Summary Judgment

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

NEGLIGENCE Personal Injury