New Mexico Court of Appeals Holds Tribal Sovereign Immunity Inapplicable in Dispute over Use of Public Road Crossing Tribal Lands

On July 23, 2013, the Court of Appeals of the State of New Mexico ruled in Hamaatsa, Inc. v. Pueblo of San Felipe, in by a vote of 2-1 that the Pueblo of San Felipe was not immune to a lawsuit seeking a ruling that a road owned by the Pueblo was open to the public.

The case arose after the Pueblo acquired land in fee simple previously owned by the Bureau of Land Management (BLM). The Plaintiff, Hamaatsa, owns property contiguous to a road that also crosses through the former BLM parcel. Hamaatsa brought suit in state court after the Pueblo allegedly threatened to restrict Hamaatsa’s use of the road. The complaint asks the court to declare that the road is a state public road and that the Pueblo cannot limit use of the road by members of the public, including Hamaatsa. The Pueblo moved to dismiss the complaint, arguing that the Pueblo could not be sued because of sovereign immunity. The district court denied the Pueblo’s motion to dismiss, holding that sovereign immunity did not apply, and the New Mexico appellate court reviewed de novo.

Because the Pueblo facially challenged the court’s jurisdiction over the lawsuit and did not specifically challenge any of the factual allegations in the complaint, the court assumed that the road was in fact a public road for purposes of its ruling on the motion to dismiss. The appellate court ultimately based its decision on that fact, finding that the Pueblo’s sovereign immunity did not apply because of the assumed status of the road. The court reasoned that “the Pueblo offered no evidence of any property or governance interests whatsoever in the road or that the road, concededly a state public road, would threaten or otherwise affect its sovereignty.” The court further stated, “If common law sovereign immunity from suit is an attribute of sovereignty, one must wonder why immunity should exist in this case where the Pueblo has shown no other attribute of sovereignty – such as property, treasury, or governance interest in sovereign authority over the road – that could bestow immunity from inherent sovereignty.”

The New Mexico appellate court also expressed concern that, if sovereign immunity were found to protect the Pueblo, Hamaatsa and potentially many others would be denied legal recourse against the Pueblo for excluding them from a public road. Further, the court implied that it could be possible to infer a waiver of sovereign immunity from the fact that the Pueblo had knowingly purchased property subject to a state public road, though the court did not make its ruling on that basis. There is no automatic right of appeal to the New Mexico Supreme Court, and it is unclear whether the Pueblo will seek discretionary review.

One judge dissented. The dissent criticized the majority for straying from the precedent set by the Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998). In Kiowa Tribe, the Supreme Court held that sovereign immunity barred a suit to enforce a promissory note that the Tribe had signed in the course of commercial dealings outside of reservation boundaries. Though the Supreme Court majority expressed some distaste for the result, it nevertheless held that tribal sovereign immunity is settled law and applies even to off-reservation activity in the absence of a clear waiver or congressional abrogation.

The dissent also pointed out that many of the cases relied upon by the majority opinion – cases establishing that tribes lack full jurisdiction over public rights-of-way running through their reservations – have to do with jurisdiction and not with sovereign immunity. The dissent further argued that the Supreme Court has made clear that “[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them,” and therefore that the majority’s concerns about foreclosing legal remedies against the Pueblo were not an appropriate basis for the decision. Instead, the dissent would have found that sovereign immunity blocked the suit even though it was an in rem action (requiring jurisdiction only over the property at issue) rather than an in personam action (requiring jurisdiction over the property owner). The dissent reasoned that since the property was owned by the Pueblo, the action was in effect a suit against the Pueblo itself.

On July 26, 2013, we reported on a sovereign immunity case in the New York State Appellate Division, Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corporation, et al., holding that tribal sovereign immunity did not extend to a wholly-owned subsidiary of the Seneca Niagara Falls Gaming Corporation. (See our General Memorandum 13-067). Both of these recent cases restrict the scope of tribal sovereign immunity beyond what might be expected in light of the Supreme Court’s broad ruling in Kiowa Tribe.

Please let us know if we may provide additional information regarding these tribal sovereign immunity cases.