May 10, 2012 – Cloyd G. Hinkle v. Dorothy M. Abeita, No. 30,577

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: May 10, 2012
NO. 30,577
CLOYDG. HINKLE,
Plaintiff-A ppellant,
V.
DOROTHY M. ABEITA,
Defendant-A ppellee.
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 Zimmennan- Bumett

Albuquerque, NM

for Appellee

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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 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 right-of-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

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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.”

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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 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

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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

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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 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

7
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 non-Indian 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
Foundation Reserve, subsequent cases expanding the Montana rule certainly have

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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

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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 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

10
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

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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 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

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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

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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 non-Indian 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 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

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“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

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v. Salish Kootenai College, 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

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exclude his status as an unconsenting party to the suit. These facts are not rendered
legally meaningless simply 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

17
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.

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{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.
{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-NMSC-044, 	¶ 	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

19
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.

20
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, co-existent 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. 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

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{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

22
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 . . . .”).
{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

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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, J udge

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