August 11, 2014 – Tiffany South v. Police Chief Isaac Lujan, Police Captain Will Duran and Mary-Alice Brogdon, in their individual capacities, No. 32,015

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	August 11, 2014
NO. 32,015
TIFFANY SOUTH,
Plaintiff-Appellant,
v.
POLICE CHIEF ISAAC LUJAN, POLICE
CAPTAIN WILL DURAN, and MARY-
ALICE BROGDON, in their individual capacities,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge
Law Office of George Geran
George T. Geran
Santa Fe, NM
for Appellant
Sonosky, Chambers, Sachse, Milch & Brownell, LLP
David C. Mielke
Albuquerque, NM
for Appellees

OPINION
BUSTAMANTE, Judge.
{1} 	Plaintiff-Appellant Tiffany South—a former officer with the Sandia Pueblo
Police Department (Plaintiff) filed a complaint for violation of the New Mexico
Human Rights Act (NMHRA), retaliatory discharge, and tortious inference with
contract against Defendants-Appellees Isaac Lujan, William Duran, and Mary-Alice
Brogdon (collectively, Defendants) in their individual capacities. The district court
granted Appellees’ motion to dismiss based on lack of jurisdiction. 	Because the
record on appeal is insufficient to permit review, we reverse and remand for factual
development on the issues relevant to state court jurisdiction.
BACKGROUND
{2} 	Plaintiff, who had been an officer with the Sandia Pueblo Police Department
(the Department), alleged that Defendants Lujan and Duran, the Chief and Captain of
the Department, respectively, had sexually harassed her and that, together with
Defendant Brogdon, the employee relations manager for Sandia Pueblo, had retaliated
against her after she complained of the sexual harassment. She also maintained that
Defendants interfered with her employment contract with Sandia Pueblo “with the
explicit motive of terminating [her employment] for false reasons[.]”

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{3} 	Plaintiff is not Indian. Defendant Lujan is Indian and a member of the Pueblo.
Defendants Duran and Brogdon are neither Indian nor members of the Pueblo. Sandia
Pueblo is not named as a party in the complaint.
{4} 	Defendants moved for dismissal of the complaint, arguing that the NMHRA did
not apply to the Pueblo and its employees and that, in any case, Plaintiff’s claims were
barred by the Pueblo’s sovereign immunity and, therefore, the district court lacked
jurisdiction to hear the complaint. 	See Rule 1-012(B)(1), (2) NMRA. 	They also
argued that the suit must be dismissed because the Pueblo is a necessary party to the
suit which cannot be joined. 	See Rule 1-019 NMRA. 	After a hearing, the district
court granted Defendants’ motion and dismissed the complaint with prejudice.
Plaintiff appealed. Additional facts are provided as pertinent to our discussion.
DISCUSSION
{5} 	This case involves a suit by a non-Indian Plaintiff against one Indian and two
non-Indian employees of the Department, in their individual capacities, for conduct
that allegedly occurred both within and outside of Indian country. 	See 18 U.S.C. §
1151 (2012) (defining “Indian country” to include “all land within the limits of any
Indian reservation under the jurisdiction of the United States Government”). Because
our jurisprudence on state court jurisdiction over matters involving Indians or tribes
frequently depends on factors such as the location or source of the underlying
transaction or occurrence, whether the parties are Indian or not, and the interests at

3
stake, the overarching question presented—does the state court have subject matter
jurisdiction over these claims?—itself depends on the answers to a number of
components. See, e.g., Found. Reserve Ins. Co., Inc. v. Garcia, 1987-NMSC-024, ¶ 8,
105 N.M. 514, 734 P.2d 754 (relying on fact that the transaction giving rise to the
claim occurred outside of the reservation); State Sec., Inc. v. Anderson, 1973-NMSC-
017, ¶ 14, 84 N.M. 629, 506 P.2d 786 (“In this case there is not a proprietary interest
in land, one Indian is not suing another Indian and the transaction did not arise in
Indian country.”); Alexander v. Cook, 1977-NMCA-069, ¶¶ 17-19, 90 N.M. 598, 566
P.2d 846 (holding that state court jurisdiction over a suit for damages between non-
Indians for “business activities” that occurred on Indian land did not infringe on tribal
sovereignty). Here, these include, for instance, whether the conduct complained of
occurred on the reservation, whether the conduct complained of occurred within the
scope of employment, whether the Pueblo is a necessary party, and to what extent the
Pueblo has sought to regulate disputes between its employees when employees are
sued in tort in their individual capacities. These questions are fact-intensive inquiries.
See, e.g., Rivera v. N.M. Highway & Transp. Dep’t, 1993-NMCA-057, ¶ 6, 115 N.M.
562, 855 P.2d 136 (“Generally, whether an employee is acting in the course and scope
of employment is a question of fact.”); Gallegos v. Pueblo of Tesuque, 2002-NMSC-
012, ¶ 42, 132 N.M. 207, 46 P.3d 668 (“The determination of whether a particular

4
nonparty should be joined under Rule 1-019 is heavily influenced by the facts and
circumstances of each case.” (internal quotation marks and citation omitted)).
{6} 	The parties argued these issues below and reiterate them on appeal. In addition,
they dispute whether the Pueblo’s sovereign immunity applies to shield Defendants
from suit in state court. 	However, because the district court neither made factual
findings nor indicated the legal basis for its decision, there is no transcript of the
hearing in the record, and the parties did not develop a factual record to support the
district court’s ruling or adequately develop their arguments on appeal, we are unable
to review whether the district court properly granted Defendants’ motion to dismiss.
{7} 	We begin by explaining our standard of review and why we do not accept as
true the facts alleged in the complaint. When considering motions to dismiss based
on a failure to state a claim under Rule 1-012(B)(6) or lack of standing, we “accept
as true all material allegations of the complaint and 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 (lack of standing); Delfino v. Griffo, 2011-NMSC-015, ¶ 9,
150 N.M. 97, 257 P.3d 917 (“In reviewing a district court’s decision to dismiss for
failure to state a claim, we accept all well-pleaded factual allegations in the complaint
as true and resolve all doubts in favor of sufficiency of the complaint.” 	(internal
quotation marks and citation omitted)). Similarly, “[w]hen reviewing a district court’s
grant of a motion [for judgment on the pleadings based on sovereign immunity], we

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accept as true the facts pleaded in the complaint, and we review de novo the district
court’s application of the law to those facts.” Guzman v. Laguna Dev. Corp., 2009-
NMCA-116, ¶ 16, 147 N.M. 244, 219 P.3d 12; see Rule 1-012(C).
{8} 	But this standard does not always apply when reviewing the district court’s
ruling on a motion to dismiss for lack of subject matter jurisdiction under Rule 1-
012(B)(1). The difference lies in the type of attack—facial or factual—mounted by
the movant.
In reviewing a facial attack on the complaint, a district court must accept
the allegations in the complaint as true. [In contrast, in a factual attack,]
a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends.
When reviewing a factual attack on subject matter jurisdiction, a district
court may not presume the truthfulness of the complaint’s factual
allegations.
Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citations omitted); see
Hamaatsa, Inc. v. Pueblo of San Felipe, 2013-NMCA-094, ¶ 9, 310 P.3d 631, cert.
granted, 2013-NMCERT-009, 311 P.3d 452 (“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.”);
see also Genberg v. Porter, 935 F. Supp. 2d 1094, 1102 (D. Colo. 2013), aff’d in part,
appeal dismissed in part, No. 13-1140, 2014 WL 1876246 (10th Cir. May 12, 2014)
(“When a party moves to dismiss for lack of subject matter jurisdiction pursuant to

6
Fed. R. Civ. P. 12(b)(1), the attack is either a facial attack to the allegations of the
complaint or a factual attack.”) 	This rule is based on the fundamental nature of
jurisdictional questions: “Because at issue in a factual [1-012(B)(1)] motion is the
[district] court’s jurisdiction—its very power to hear the case—there is substantial
authority that the [district] court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724,
730 (8th Cir. 1990).
{9} 	When the challenge is factual, “[a] court has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule [1-012(B)(1)]. 	In such instances, a court’s reference to evidence
outside the pleadings does not convert the motion to a . . . motion [for summary
judgment].” Holt, 46 F.3d at 1003 (citations omitted). “However, a court is required
to convert a Rule [1-012(B)(1)] motion to dismiss into a Rule [1-012(B)(6)] motion
or a . . . summary judgment motion when resolution of the jurisdictional question is
intertwined with the merits of the case.” Id.
{10} 	Here, Defendants challenge several factual allegations in the complaint that bear
on subject matter jurisdiction, such as whether the alleged conduct was in Defendants’
scope of employment and the location of the alleged conduct, and thus their attack is
a factual one. We do not, therefore, presume the truthfulness of the complaint and

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instead rely on factual findings by the district court pertaining to subject matter
jurisdiction.
{11} 	Where factual determinations are essential to a district court’s ruling but are
inadequately developed for appeal, this Court may remand for entry of findings of fact
because “[a]s an appellate court, we will not originally determine the questions of
fact.” Guidry v. Petty Concrete Co., 1967-NMSC-048, ¶ 13, 77 N.M. 531, 424 P.2d
806. For example, in In re Begay, this Court considered whether the district court
erred in denying a motion to dismiss based on lack of subject matter jurisdiction.
1988-NMCA-081, ¶ 14, 107 N.M. 810, 765 P.2d 1178. After determining that the
question of jurisdiction was “dependent upon resolution of factual questions” and that
the district court did not enter any relevant finding of fact, this Court remanded for
entry of findings. 	Id. ¶¶ 14, 22. Although it “recognize[d] that findings of fact and
conclusions of law are not required when ruling on a motion[,]” see Rule 1-052(A)
NMRA, this Court nevertheless stated that express findings are “preferable” when the
district court’s ruling rests on resolution of facts. In re Begay, 1988-NMCA-081, ¶
17. 	It concluded, “In the absence of factual findings or some statement by the
[district] 	court 	explaining 	the 	basis 	for 	its 	decision 	(including 	any 	factual
determinations supporting the decision), a reviewing court is unable to decide an
appeal without great difficulty.” Id.

1
We note that “[t]he general rule is that sexual harassment by a supervisor is not
conduct within the scope of employment.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 757 (1998); see Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 29, 135 N.M.
539, 91 P.3d 58. As we understand Plaintiff’s briefing (although it is far from clear),
Plaintiff appears to rely on this principle in support of her position that the NMHRA
permits suits against individuals. It is also unclear from the briefing whether Plaintiff
also argues that Defendants are not subject to the Pueblo’s sovereign immunity by
virtue of this rule. In either case, we decline to consider undeveloped arguments and
make no statement as to the applicability of Ellerth or Ocana to the present matter.
See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s]
arguments might be.”).
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{12} 	Here, there are two important issues that are inadequately developed for review.
The first is whether Defendants’ alleged conduct occurred within the scope of
employment by the Pueblo. 1 This question is important to the ultimate determination
of jurisdiction because it goes to whether state court jurisdiction would infringe on the
Pueblo’s sovereignty, as well as to whether the Pueblo’s sovereign immunity prevents
suit against Defendants. See, e.g., Evans v. McKay, 869 F.2d 1341, 1348 n.9 (9th Cir.
1989) (“While officials and agents of an Indian tribe do not have the same immunity
as the tribe itself, tribal immunity nevertheless extends to individual tribal officials
while acting in their representative capacity and within the scope of their authority.”
(internal quotation marks and citations omitted)); Rodriguez v. Wong, 82 P.3d 263,
266-267 (Wash. Ct. App. 2004) (relying in part on the fact that the complaint alleged
conduct within the scope of employment to hold that state court jurisdiction would
infringe on the tribe’s sovereignty). 	It is also relevant to whether the Pueblo is a

9
necessary party, since it bears on whether the Pueblo has an interest in the outcome
of the suit. See Srader v. Verant, 1998-NMSC-025, ¶ 22, 125 N.M. 521, 964 P.2d 82
(“Courts demonstrate a willingness to bring in an absent person whenever there exists
a reasonable possibility that the person’s interests will be affected by the conclusion
of an action to which he has not been made a party.”).
{13} 	Our review of the scope of employment issue is hindered on several fronts.
First, it is unclear from Plaintiff’s briefs and complaint whether she alleges that
Defendants acted outside the scope of their respective authority or not. For instance,
she states, “[t]he claims involved . . . arise out of the employment of each of the
parties by the Pueblo.” Elsewhere, however, she makes a statement directly to the
contrary, that she “pled [her] claims against [Defendants] acting as individuals acting
outside of the scope of their employment.” She repeatedly refers to the supervisory
nature of Defendants’ positions in the briefs and complaint. The rest of the briefing
sheds little light on Plaintiff’s position. For instance, Plaintiff appears to acknowledge
a “majority rule” that “[u]sually the distinction between immune employees and non-
immune employees is that tribal officials acting in their official capacity and within
their scope of authority enjoy the immunity of their tribe” but then appears to
implicitly assume that Defendants were acting in the scope of employment and argues
that, notwithstanding that rule, immunity applies only to tribe employees “who can
officially speak for the tribe” and that Defendants here did not have that power or,

2Defendants maintain that Defendant Brogdon was no longer employed by the
Tribe when Plaintiff was discharged.
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alternatively, that a scope of employment analysis has no relevance to claims of
discrimination. 	In the complaint, Plaintiff states that the complained of “behavior
[wa]s plead, alternatively, as within and without the scope of employment[.]”
{14} 	More importantly given the burden of proof, Defendants’ answer brief does no
better in assisting the Court to resolve this issue. See State v. Begay, 1987-NMCA-
025, ¶ 6, 105 N.M. 498, 734 P.2d 278 (“Demonstrating a lack of jurisdiction is [the]
defendant’s burden.”). Defendants argue that “each [Defendant] was employed by the
Pueblo in a managerial capacity and that the first two were acting in that capacity
when . . . Plaintiff [was] discharged.”) 2 They repeat this assertion several times. They
do not, however, direct us to anything in the record supporting it or that would permit
us to infer that the district court resolved the question one way or the other. See In re
Application of Metro. Invs., Inc., 1990-NMCA-070, ¶ 15, 110 N.M. 436, 796 P.2d
1132 (“[A]rguments of counsel are not evidence.”). Since the district court entered
no findings on this issue, it remains unresolved. See Guidry, 1967-NMSC-048, ¶ 13
(stating resolution of factual disputes is not the role of this Court).
{15} 	The second issue is whether state court jurisdiction would infringe on the
Pueblo’s sovereignty under the facts of this case. This question derives from Williams
v. Lee, in which the Supreme Court stated that the primary inquiry when determining

11
whether a state court has jurisdiction over a matter involving a non-Indian and an
Indian is “whether the state action infringed on the right of reservation Indians to
make their own laws and be ruled by them.” 358 U.S. 217, 220 (1959); see State ex
rel. Dep’t of Human Servs. v. Jojola, 1983-NMSC-028, ¶ 8, 99 N.M. 500, 660 P.2d
590 (“This test is principally applicable in situations involving a non-Indian party.”).
The so-called “infringement test” set out in Williams “was designed to resolve [the]
conflict [that occurs when both a state and a tribe may assert jurisdiction] by providing
that the [s]tate could protect its interest up to the point where tribal self-government
would be affected.” McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 179
(1973); see Hinkle v. Abeita, 2012-NMCA-074, ¶ 22, 283 P.3d 877 (reaffirming New
Mexico’s reliance on the infringement test). 	Under that test, courts consider “(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.”
Hartley v. Baca, 1981-NMCA-080, ¶ 9, 97 N.M. 441, 640 P.2d 941. It is clear that
in the context of this case, the answers to these questions are somewhat thorny,
because the suit involves allegations by a non-Indian against both Indians and non-
Indians, for conduct alleged to have occurred both on and off the reservation, either
within or outside of the scope of employment. Given this posture, the interests of the
parties, as well as those of the State of New Mexico and the Pueblo, are also not
readily apparent, especially in light of the fact that Defendants are named in their

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individual capacities. Thus, the answers to factual questions as to the location of the
alleged conduct, whether the conduct was within the scope of employment, whether
the Pueblo is a necessary party, and so forth are essential to review of this issue.
{16} 	In addition, Defendants fail to explain how state court jurisdiction would
infringe on the Pueblo’s sovereignty in this case. Defendants assert that “Plaintiff[’]s
claims here go to the heart of the Pueblo’s interest in operating a vital department of
tribal government and in having and enforcing its own employment laws and
policies.” They contend that “[a] more direct threat to a tribe’s self-governing powers
. . . can hardly be imagined.” If the Pueblo was named as a defendant, this argument
would hold more sway. However, Defendants fail to fully develop a factual basis for
the infringement test. Defendants’ application of the infringement test rests on their
assertions that the suit involves an Indian and that “the alleged actions and inactions
giving rise to Plaintiff[’]s claims arose entirely on the Pueblo.” The first assertion is
not contested by Plaintiff, but neither does it address the two non-Indian Defendants.
Plaintiff contests the second assertion, as discussed above. Thus, Defendants’ analysis
of the first two prongs of the infringement test is either incomplete or rests on disputed
facts that the district court did not resolve. As to the third prong, other than counsel’s
assertions, Defendants do not explain how a suit against the Defendants in their

3Plaintiff appears to agree that her NMHRA claim does not apply to Defendant
Lujan on the basis that he is not subject to state law.
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individual capacities under the NMHRA3 and common law torts would have an
impact on the Pueblo’s sovereignty. Even if we assumed that the state court does not
have jurisdiction over the Indian defendant because he has an interest in being heard
in Pueblo court under the laws of the Pueblo, see Hinkle, 2012-NMCA-074, ¶ 5
(stating that an Indian defendant had an interest in being heard in the tribal court),
Defendants do not address how state court jurisdiction over the two non-Indian tribe
employees, as individuals, infringes on tribal authority, especially if they were acting
outside their scope of employment. 	See Alexander, 1977-NMCA-069, ¶ 17 (“The
resolution of [a] dispute [between non-Indians for damages] by a New Mexico court
does not infringe on Indian government any more than state court jurisdiction over
crimes between non-Indians that arise on Indian land.”); Cordova v. Holwegner, 971
P.2d 531, 538 (Wash. Ct. App. 1999) (“[W]e find nothing in the record indicating that
the tribe has exclusive . . . jurisdiction over this garden-variety tort litigation between
non[-]members that arose . . . on the closed area of the reservation.”); Cuprak v. Sun
Int’l Hotels Ltd., No. CV 970112045S, 1997 WL 663299, at *4 (Conn. Super. Ct. Oct.
9, 1997) (holding no tribal infringement in state court jurisdiction over a suit between
a non-Indian corporation operating a casino for the Mohegan tribe and a non-Indian
employee of the corporation and stating that, although the alleged conduct occurred

4We note that the defendants in Rodriguez argued that even though the
defendants were named as individuals, the suit was really against the tribe, 82 P.3d at
265, and that, unlike here, the court permitted the tribe to appear as amicus curiae, id.,
and the complaint alleged only conduct that occurred in the scope of employment. Id.
at 266.
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both on and off the reservation and the tribe had an economic interest, “the [t]ribe’s
interest is significantly weakened since the tribe is neither a party to this action nor are
tribal assets at stake. On the other hand, the state of Connecticut has a real interest in
adjudicating disputes that arise between its citizens.”); but see Rodriguez, 82 P.3d at
267 (holding that state court jurisdiction impermissibly infringed on tribal sovereignty
where the tribe had “exercised its jurisdiction to develop its own non-discrimination
. . . policies” and the plaintiff was a non-Indian employee of the tribe). 4
{17} 	We 	conclude 	that 	additional 	development 	of 	the 	facts 	relevant 	to 	the
infringement test and the extent of infringement posed under the specific posture of
this case is necessary. We are aware that some New Mexico cases have been decided
on the basis of a party’s failure to explain how tribal governance was impinged by
state court jurisdiction. 	See, e.g., Tempest Recovery Servs., Inc. v. Belone, 2003-
NMSC-019, ¶ 15, 134 N.M. 133, 74 P.3d 67 (“New Mexico can exercise concurrent
jurisdiction over the breach of contract action because we cannot see, and [the
defendant] does not demonstrate, how concurrent jurisdiction would impinge upon
tribal sovereignty in the present context.”); Wacondo v. Concha, 1994-NMCA-040,

15
¶ 13, 117 N.M. 530, 873 P.2d 276 (“The [d]efendant has failed to show how
recognizing concurrent jurisdiction in tribal and state courts would impinge upon
tribal sovereignty in the present context.”); G. M. Shupe, Inc. v. Bureau of Revenue,
1976-NMCA-040, ¶ 6, 89 N.M. 265, 550 P.2d 277 (“In the case before us the taxpayer
has failed to point to any specific way in which the tribe will be affected, relying
instead on a general invocation of sovereignty. . . . There is no indication from the
record that the [p]ueblo will sustain any direct effects as a result of the tax, and
therefore no conflict with tri[b]al sovereignty is shown.”). But we decline to reverse
on this basis alone given the near total lack of factual development below. 	We
therefore remand for additional proceedings consistent with this Opinion.
{18} 	Finally, to the extent Defendants maintain that Plaintiff’s suit is “in reality
against the Pueblo” in support of their position that the Pueblo’s sovereign immunity
applies to bar suit, this question too hinges on resolution of facts, such as whether the
conduct was within the scope of employment, whether the damages requested
implicate the Pueblo, and whether a judgment would have an impact on Pueblo
governance. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11
(1984) (“[A] suit is against the sovereign if the judgment sought would expend itself
on the public treasury or domain, or interfere with the public administration, or if the
effect of the judgment would be to restrain the Government from acting, or to compel
it to act.”), superseded by statute as stated in Joshua B. v. New Trier Twp. High Sch.

16
Dist., 770 F. Supp. 431 (N.D. Ill. 1991) (internal quotation marks and citation
omitted). The facts related to whether the Pueblo is the real party in interest are also
pertinent to whether the Pueblo is a necessary party and to the third prong of the
infringement test. Because the record provides no resolution of the facts behind these
questions, we are unable to review this argument. See Guidry, 1967-NMSC-048, ¶ 13.
CONCLUSION
{19} 	There being no factual basis for the district court’s ruling in the record, we
reverse and remand to the district court for further proceedings consistent with this
Opinion.
{20} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
MICHAEL E. VIGIL, Judge
__________________________________
TIMOTHY L. GARCIA, Judge