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  "name": "CLOYD G. HINKLE, Plaintiff-Appellant, v. DOROTHY M. ABEITA, Defendant-Appellee",
  "name_abbreviation": "Hinkle v. Abeita",
  "decision_date": "2012-06-19",
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    "judges": [
      "J. MILES HANISEE, Judge",
      "JAMES J. WECHSLER, Judge",
      "RODERICK T. KENNEDY, Judge"
    ],
    "parties": [
      "CLOYD G. HINKLE, Plaintiff-Appellant, v. DOROTHY M. ABEITA, Defendant-Appellee."
    ],
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      {
        "text": "OPINION\nHANISEE, Judge.\n{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\u2019s decision to dismiss for lack of subject matter jurisdiction.\nI.BACKGROUND\n{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 \u2014 a public state right-of-way \u2014 at a location which they also agree qualifies as Indian country. Hinkle maintains that as he sought to pass Abeita\u2019s slower-moving car while driving his motorcycle on State Highway 314, Abeita abruptly turned left toward a tribal road without signaling, causing Hinlcle to \u201clay his bike down\u201d and collide with her car. Hinkle filed suit in Bernalillo County District Court, claiming that Abeita\u2019s negligent driving caused injury to him and damage to his motorcycle. Abeita filed a motion for summary judgment based primarily on this Court\u2019s 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\u2019s complaint. We now consider Hinkle\u2019s appeal from the district court\u2019s determination in light of the evolved body of federal Indian Law since our decision in Hartley, and our Supreme Court\u2019s recent decision in Garcia v. Gutierrez, 2009-NMSC-044, 147 N.M. 105, 217 P.3d 591.\nII. STANDARD OF REVIEW\n{3} The lone issue to be resolved is the propriety of the district court\u2019s order granting Abeita\u2019s motion for summary judgment and dismissing Hinkle\u2019s complaint for lack of subject matter jurisdiction. \u201cIn 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.\u201d Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, \u00b6\u00b6 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, \u201c[a]n appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo.\u201d Cable v. Wells Fargo Bank N.M., N.A., 2010-NMSC-017, \u00b6 9, 148 N.M. 127, 231 P.3d 108 (internal quotation marks and citation omitted).\nIII. DISCUSSION\n{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 \u201cinfringement test\u201d 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, \u201chas always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.\u201d 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\u2019s Handbook of Federal Indian Law \u00a7 6.03 (Nell Jessup Newton ed. 2005).\n{5} In Hartley, this Court enumerated the criteria relevant to the infringement test: \u201c(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.\u201d 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 \u201cwould run afoul of the infringement test,\u201d because (1) \u201c[the defendant] was an Indian,\u201d (2) \u201cthe accident occurred on State Road 30 within the exterior boundaries of the Santa Clara Pueblo,\u201d and (3) \u201cthe 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.\u201d Hartley, 97 N.M. at 443, 640 P.2d at 943 (internal quotation marks omitted).\n{6} Hinkle concedes in his briefing to our Court that Hartley stands as binding precedent over these facts \u2014 and if it remains good law would compel our state courts to dismiss his and other factually similar actions for lack of jurisdiction. Nonetheless, he argues that since this Court decided Hartley in 1981, federal precedent \u2014 beginningwith Montana v. United States, 450 U.S. 544 (1981)\u2014has 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 \u2014 in place of the infringement test \u2014 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 \u201cvenerable tradition of defer[ence]\u201d to tribal sovereignty, State v. Harrison, 2010-NMSC-038, \u00b6 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) (\u201cExclusive tribal jurisdiction exists . . . when an Indian is being sued by a non-Indian over an occurrence or transaction arising in Indian country . . . .\u201d).\n{7} Hinkle initially suggests that this Court overlooked or was unaware of Montana when it decided Hartley because Montana was very recent precedent at the time and was not referenced within the Hartley opinion. As a matter of chronology, the United States Supreme Court decided Montana three months prior to this Court\u2019s opinion in Hartley. We do not read the dispositional proximity, or this Court\u2019s 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 \u201c[narrow] regulatory issue:\u201d Did the Crow Tribe have \u201cthe power ... to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe\u201d? 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 (\u201cThe Court of Appeals [in Hartley'], applying the infringement test, properly affirmed the district court\u2019s dismissal of the action for lack of subject matter jurisdiction.\u201d).\n{8} Although we reject the assumption that this Court was oblivious of Montana when it applied the infringement test in Hartley, or that our New Mexico Supreme Court mistakenly ignored Montana when it later approved that analysis in Foundation Reserve, we nevertheless agree that Hartley now warrants review. Though Montana did not itself announce a rule necessary for our courts to address in Hartley or Found. Reserve, subsequent cases expanding the Montana rule certainly have done so. First in 1997, the United States Supreme Court in Strate v. A-1 Contractors, 520 U.S. 438, 443, 459 (1997), extended the Montana rule to prohibit tribal court jurisdiction over a case arising from a motor vehicle accident involving two nonmembers on a highway within the boundaries of an Indian reservation. And it did so again in Nevada v. Hicks, 533 U.S. 353 (2001), when the Court further expanded the Montana rule to forbid a civil lawsuit in tribal court brought by a tribal member against state police officers who executed a search warrant on reservation land. Id. at 358-60, 364-65. Other cases as well have continued the trend to curtail the exercise of tribal authority over nonmembers. See, e.g., Atkinson Trading Co. v. Shirley, 532 U.S. 645, 647 (2001) (barring a tribe\u2019s 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\u2019s 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, \u00b6\u00b6 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)).\n{9} We thus address Hinkle\u2019s argument that the Montana rule, as it has evolved in the course of federal jurisprudence, should supplant the test articulated in Williams and applied in Hartley. Adoption of that rule here, Hinkle suggests, would allow our state courts to assert subject matter jurisdiction over accidents occurring on state and federal public 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\u2019s 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 \u2014 that a given tribe exceeded its sovereign powers by exerting jurisdiction over \u201cunconsenting\u201d nonmembers of the tribe \u2014 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, \u201cthe courts of this state have adopted greater protection for tribal sovereignty as a matter of state law.\u201d Harrison, 2010-NMSC-038, \u00b6 27.\nThe Montana Line of Cases Is Limited to Determining Tribal Court Jurisdiction\n{10} Although the Montana-derived jurisprudence expansively bars tribal authority over various types of nonmember conduct within tribal boundaries, it is nearly unanimous in its exclusion of that analysis to state court jurisdiction. In fact, the United States Supreme Court in Montana and the cases that followed was careful to limit its holdings to the narrow question of tribal court jurisdiction, and has been largely silent as to the separate question of state court jurisdiction. See, e.g., Montana, 450 U.S. at 557 (addressing the narrow issue of whether the Tribe's power includes the ability to regulate non-Indian recreational activities \u201con reservation land owned in fee by nonmembers of the Tribe.\u201d); Strate, 520 U.S. at 442 (\u201cThis case concerns the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members.\u201d (emphasis added)); Atkinson Trading Co., 532 U.S. at 647 (\u201cThe question with which we are presented is whether [Montana\u2019s\\ general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land.\u201d (emphasis added)); Hicks, 533 U.S. at 358 n.2 (\u201cOur holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law.\u201d (emphasis added)); Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 320 (2008) (\u201cThe question presented is whether the Tribal Court had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank\u2019s sale of fee land it owned.\u201d (emphasis added)). Based on the expressly focused holdings in those cases, as well as their collective silence as to any inquiry of alternative jurisdiction, we conclude each is distinguishable from the related but distinct question at bar \u2014 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.\n{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\u2019s, supra, \u00a7 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) (\u201c[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.\u201d (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 \u201c[b]y its own terms,\u201d Hicks constrained its analysis to \u201c[wjhether a tribal court rosy assert jurisdiction over civil claims\u201d (emphasis partially omitted)); Cossey v. Cherokee Nation Enters., LLC, 212 P.3d 447, 467 n.1 (Okla. 2009) (determining that the Montana \u201ccases are inapplicable\u201d to the jurisdictional propriety of a state tort action brought by a nonmember casino patron against a tribe \u201cbecause they concern a tribe\u2019s or a tribal court\u2019s authority over non-Indians,\u201d and \u201c[t]he question in this matter is whether the state district court has acquired civil adjudicatory authority.\u201d); 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).\n{12} Our own Court has even limited Strate\u2019s application to its express terms in other contexts. See Williams v. Bd. of Cnty. Comm\u2019rs of San Juan Cnty., 1998-NMCA-090, \u00b6 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: \u201cwe disagree . . . that the holding in Strate v. A-l 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.\u201d); Halwood v. Cowboy Auto Sales, Inc., 1997-NMCA-098, \u00b6 15, 124 N.M. 77, 946 P.2d 1088 (declining to apply Strate in determining whether a tribal court had jurisdiction to award punitive damages against a non-Indian company because Strate expressed no opinion on whether tribal courts lack jurisdiction over nonmember conduct on member-owned reservation land).\n{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, \u00b6 32 (\u201cAlthough 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, \u2018Indian country.\u2019\u201d). But we view the Court\u2019s 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. \u00b6 2. The central issue concerned the application of the UCC JEA, 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. \u00b6\u00b6 13, 15. While the Court discussed the Montana cases at length, it did so only to \u201canswer the narrow question [of] whether the fee land can be considered part of the Pojoaque Pueblo solely for the purposef] of [ascertaining] the UCCJEA\u2019s \u2018home-state\u2019 jurisdiction.\u201d Id. \u00b6 33. Tellingly, it did not utilize Mon tana or its progeny in concluding that state jurisdiction was proper on Garcia\u2019s facts. And ultimately, our Supreme Court in Garcia expressly reaffirmed \u201capplication of] the infringement test to determine whether the exercise of state authority will compromise the tribal sovereignty recognized in Williams.\u201d Id. \u00b6 47. And while Garcia notes that \u201cthe Montana line of cases subsequently narrowed Williams, particularly where the issue is tribal authority over non-Indians,\u201d it does not encroach upon Williams or its seminal methodology to identify restrictions on state jurisdictional reach. Id. The Court simply applied the longstanding 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.\nThe Montana Rule Applies Only When the Unconsenting Party Is a Nonmember\n{14} Even were we to attempt to import th^Montana analysis inresolvingthe 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 \u201cunconsenting partfies]\u201d to tribal authority were all nonmembers. Hicks, 533 U.S. at 382 (Souter, J., concurring) (\u201cIt is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.\u201d); Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1131 (9th Cir. 2006) (\u201cThe Court has repeatedly demonstrated its concern that tribal courts not require \u2018defendants who are not tribal members\u2019 to \u2018defend [themselves against ordinary claims] in an unfamiliar court.\u2019\u201d (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 \u201cnonmembers of a tribe on lands no longer owned by the tribe\u201d); 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 \u2014 state or tribal \u2014 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.\n{15} Furthermore, were this case to be filed in tribal court, Abeita \u2014 the tribal member \u2014 and not Hinkle, would be called to answer for her conduct. Hinkle\u2019s presence in tribal court can be secured only by his own volition, which would then exclude his status as an unconsenting party to the suit. These facts are not rendered legally meaningless simply 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\u2019s 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\u2019g, 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.\n{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\u2019s exterior boundaries, tribal authority is near its apogee \u2014 being eclipsed only when such conduct occurs on tribal-owned land within those boundaries. See Cohen\u2019s, supra, \u00a7 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 \u201cfirst and foremost a matter ofinternal tribal law.\u201d); 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\u2019 inherent power over actions \u201cinvolv[ing] only the relations among members of a tribe\u201d (internal quotation marks and citation omitted)); Strate, 520 U.S. at 459 (\u201cIndian 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 . . . .\u201d (alterations in original) (internal quotation marks and citation omitted)); Tempest Recovery Servs., Inc. v. Belone, 2003-NMSC-019, \u00b6 14, 134 N.M. 133, 74 P.3d 67 (\u201cExclusive 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.\u201d (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 \u2014 that the tribal court would not have jurisdiction over Hinkle\u2019s action were it to have been filed in tribal court \u2014 because it is based on a misunderstanding of the Montana cases as applied to these facts.\n{17} Hinkle argues that \u201c[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.\u201d 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\u2019s argument.\n{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, \u00b6 47 (\u201c[W]e continue to apply the infringement test to determine whether the exercise of state authority will compromise the tribal sovereignty recognized in Williams.\u201d); Tempest Recovery Servs., Inc., 2003-NMSC-019, \u00b6 14 (\u201cWehave adopted the \u2018infringement test\u2019 developed from Williams, the seminal Supreme Court case addressing a state court\u2019s jurisdiction over causes of action involving Indian matters.\u201d); Found. Reserve, 105 N.M. at 515, 734 P.2d at 755 (\u201cThe test for determining whether a state court has jurisdiction over causes of action involving Indian matters is set forth in Williams.\u201d); 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) (\u201cTh[e] \u2018infringement\u2019 test from Williams has become the standard for determining whether a state exercise of adjudicatory civil jurisdiction is permissible.\u201d); Winer, 674 N.W.2d at 16 (\u201cIf Strate signals a drastic departure from the state courtjurisdictional principles enunciated in Williams v. Lee and its progeny, it is well hidden in the Strate decision.\u201d).\n{19} Second, we do not agree that where tribal court jurisdiction has been denounced, our state courts must necessarily assume jurisdiction.\nIt would be a mistake to assume . . . that every situation in which tribal jurisdiction is lacking warrants a finding of state authority. . . . [Wjhen 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.\nCohen\u2018s, supra, \u00a7 6.03[2][c], at 536-57. Nor should our courts engage in determining tribal court jurisdiction. Garcia, 2009-NMSC-044, \u00b6 62 (\u201cIt is not for us as a state court to say whether the Pojoaque Pueblo, subject to the plenary power of Congress, has jurisdiction.\u201d); 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\u2019s 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 \u2014 both geographic and with respect to tribal membership and property ownership. C.f Garcia, 2009-NMSC-044, \u00b6\u00b6 3, 27, 35 (recognizing the possibility of nonexclusive concurrent state and tribal jurisdiction, exclusive state jurisdiction, and exclusive tribal jurisdiction, depending on the circumstances); see Black\u2019s Law Dictionary 727-28 (9th ed. 2009) (defining \u201cjurisdiction\u201d as \u201c[a] geographic area within which political or judicial authority may be exercised\u201d). As our Supreme Court has recently noted, it is Congress\u2019s 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 Montana or Williams. See Garcia, 2009-NMSC-044, \u00b6 1 (\u201cThere 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.\u201d).\nOur Courts Offer Greater Protection for Tribal Sovereignty Under State Law\n{20} Finally, we refuse to read the Montana line of cases as a repudiation of tribal sovereignty. See Hicks, 533 U.S. at 371 (\u201cSelf-government and internal relations are not directly at issue here, since the issue is whether the Tribes\u2019 law will apply, not to their own members, but to a narrow category of outsiders.\u201d). Rather, we read those cases as recognizing, as a matter of federal law, the necessary limits of tribal authority in light of the tribes\u2019 status as dependent nations. Montana, 450 U.S. at 564 (\u201c[I]n addition to the power to punish tribal offenders, the Indian tribes retain their inherent powerfs] . . .. 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 . . . .\u201d). 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\u201c[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\u201d 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 (\u201cIndiantribes are \u2018unique aggregations possessing attributes of sovereignty over both their members and their territory . . . .\u2019\u201d (citation omitted)); Doe v. Santa Clara Pueblo, 2007-NMSC-008, \u00b6 18, 141 N.M. 269, 154 P.3d 1644 (\u201c[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.\u201d).\n{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 (\u201cThe Tribes\u2019 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 . . . .\u201d).\n{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\u2019s great respect and ongoing deference to the Indian tribes and pueblos situated within New Mexico. As our Supreme Court recently recognized, \u201cNew Mexico has a unique and venerable tradition of deferring to a tribal government\u2019s exercise of the sovereign power vested in them.\u201d Harrison, 2010-NMSC-038, \u00b6 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 \u201cthe courts of this state have adopted greater protection for tribal sovereignty as a matter of state law.\u201d Harrison, 2010-NMSC-038, \u00b6 27.\nIV. CONCLUSION\n{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\u2019s venerable respect for tribal sovereignty. Accordingly, we affirm the district court\u2019s \u201cOrder Granting Defendant\u2019s Motion for Summary Judgment\u201d on the grounds that the district court was without subject matter jurisdiction.\n{24} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nRODERICK T. KENNEDY, Judge",
        "type": "majority",
        "author": "HANISEE, Judge."
      }
    ],
    "attorneys": [
      "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"
    ],
    "corrections": "",
    "head_matter": "Certiorari Denied, June 19, 2012,\nNo. 33,645\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-074\nFiling Date: May 10, 2012\nDocket No. 30,577\nCLOYD G. HINKLE, Plaintiff-Appellant, v. DOROTHY M. ABEITA, Defendant-Appellee.\nHinkle Law Offices, P.C., Cynthia A. Braun Albuquerque, NM for Appellant\nMiller Stratvert P.A. H. Brook Laskey Shona Zimmerman-Burnett Albuquerque, NM for Appellee"
  },
  "file_name": "0209-01",
  "first_page_order": 225,
  "last_page_order": 235
}