Reed v. Gutierrez ( 2010 )


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  •  1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
    2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
    3   also note that this electronic memorandum opinion may contain computer-generated errors or other
    4   deviations from the official paper version filed by the Court of Appeals and does not include the
    5   filing date.
    6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    7 PEGGY A. and TIMOTHY A.
    8 REED,
    9          Plaintiffs-Appellants,
    10 v.                                            NO. 28,249
    11 ROBERT GUTIERREZ and
    12 PUEBLO OF SANTA CLARA,
    13 NEW MEXICO,
    14          Defendants-Appellees.
    15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    16 Valerie Mackie Huling, District Judge
    17   Streubel Kochersberger
    18   & Mortimer, LLC
    19   David A. Streubel
    20   Kallie L. Dixon
    21   Albuquerque, NM
    22 for Appellants
    23   The Law Offices of
    24   Robert Bruce Collins
    25   Robert Bruce Collins
    26   Holly R. Harvey
    27   Albuquerque, NM
    28 for Appellees
    1                            MEMORANDUM OPINION
    2 FRY, Chief Judge.
    3        In this case, we determine whether the doctrine of tribal sovereign immunity
    4 shields Defendant Pueblo of Santa Clara, New Mexico (the Pueblo) and its employee,
    5 Defendant Robert Gutierrez, from liability for an off-reservation tort. We hold
    6 pursuant to Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 
    523 U.S. 7
    751 (1998), that they are immune from the claims of Plaintiffs Peggy and Timothy
    8 Reed and affirm the district court.
    9 BACKGROUND
    10        We consider this matter on appeal from the district court’s order of dismissal
    11 pursuant to Rule 1-012(B)(6) NMRA. For purposes of this appeal, all relevant facts
    12 are undisputed. See, e.g., N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co.,
    13 2008-NMSC-067, ¶ 11, 
    145 N.M. 316
    , 
    198 P.3d 342
    (courts “accept as true all well-
    14 pleaded fact[s]” in an appeal of a Rule 1-012(B)(6) motion).
    15        On November 29, 2005, Pueblo employee Gutierrez operated a vehicle owned
    16 by the Pueblo while conducting tribal business within the course and scope of his
    17 employment. Just past noon that day, he improperly turned into oncoming traffic and
    18 injured Plaintiff Peggy Reed and, derivatively, her husband, Plaintiff Timothy Reed.
    2
    1 This did not occur within the geographical boundaries of the Pueblo’s territory, but
    2 within the State of New Mexico.
    3           In the district court, Defendants invoked the doctrine of tribal sovereign
    4 immunity and sought to dismiss Plaintiffs’ claims. The district court granted
    5 Defendants’ motion.
    6           On appeal, Plaintiffs attack the doctrine of tribal sovereign immunity, arguing
    7 that (1) this Court should ignore the doctrine in its entirety, and (2) in the alternative,
    8 this Court should limit the doctrine to exclude off-reservation torts committed by
    9 tribes.
    10 DISCUSSION
    11 Standard of Review
    12           We apply a de novo standard of review to dismissals under Rule 1-012(B)(6).
    13 In doing so, “we accept as true all well-pleaded factual allegations in the complaint
    14 and resolve all doubts in favor of the complaint’s sufficiency.” N.M. Pub. Sch. Ins.
    15 Auth., 2008-NMSC-067, ¶ 11; Valdez v. State, 2002-NMSC-028, ¶ 4, 
    132 N.M. 667
    ,
    16 
    54 P.3d 71
    . Dismissal under Rule 1-012(B)(6) is proper when a plaintiff would be
    17 legally precluded from obtaining “relief under any state of facts provable under the
    18 claim.” N.M. Pub. Sch. Ins. Auth., 2008-NMSC-067, ¶ 11 (internal quotation marks
    19 and citation omitted). We similarly apply a de novo standard to “the legal question
    3
    1 of whether an Indian tribe, or an entity under the tribe’s control, possesses sovereign
    2 immunity.” Sanchez v. Santa Ana Golf Club, Inc., 2005-NMCA-003, ¶ 4, 
    136 N.M. 3
    682, 
    104 P.3d 548
    .
    4 Tribal Sovereign Immunity
    5        The doctrine of tribal sovereign immunity is well-established. See Kiowa Tribe
    6 of 
    Okla., 523 U.S. at 764
    (Stevens, J., dissenting); Gallegos v. Pueblo of Tesuque,
    7 2002-NMSC-012, ¶ 7, 
    132 N.M. 207
    , 
    46 P.3d 668
    . “Without an unequivocal and
    8 express waiver of sovereign immunity or congressional authorization, tribal entities
    9 are immune from suit.” Sanchez, 2005-NMCA-003, ¶ 5. Congress maintains
    10 “ultimate authority over Indian affairs, and, thus, . . . can expressly authorize suits
    11 against Indian tribes through legislation.” Gallegos, 2002-NMSC-012, ¶ 7. A tribe
    12 may waive its sovereign immunity and unequivocally express consent to suit. “Thus,
    13 tribal immunity is a matter of federal law and is not subject to diminution by the
    14 states.” 
    Id. 15 The United
    States Supreme Court’s opinion in Kiowa controls our holding
    16 today. In that case, the Court considered a contract, apparently negotiated outside the
    17 reservation’s boundaries, between an Indian tribe and a non-tribal business entity.
    18 Kiowa Tribe of 
    Okla., 523 U.S. at 753-54
    . After signing a promissory note, the tribe
    19 defaulted and was sued in state court. 
    Id. at 754. The
    tribe argued that sovereign
    4
    1 immunity barred suit under the circumstances, and on certiorari, the United States
    2 Supreme Court agreed. 
    Id. at 753-54. Reaffirming
    the notion that states may not
    3 abrogate tribal immunity in any way, the Court held that “the immunity possessed by
    4 Indian tribes is not coextensive with that of the [s]tates.” 
    Id. at 756. Such
    immunity
    5 exists both on and off the reservation and may only be circumvented by an act of
    6 Congress or waiver by the tribe itself. 
    Id. at 760. 7
           Since Kiowa’s publication, New Mexico courts have cited it repeatedly. For
    8 instance, in Srader v. Verant, our Supreme Court determined that certain Indian tribes
    9 were indispensable parties that could not be joined in a lawsuit by aggrieved casino
    10 patrons because of sovereign immunity. 1998-NMSC-025, ¶¶ 1, 23, 
    125 N.M. 521
    ,
    11 
    964 P.2d 82
    . Citing Kiowa, the Court held that “[s]overeign immunity precludes
    12 joining the gaming tribes in this case. As sovereigns, Indian tribes are immune from
    13 suit absent Congressional authorization or an effective waiver in tribal, state, or
    14 federal court.” Srader, 1998-NMSC-025, ¶ 29; see Sanchez, 2005-NMCA-003, ¶¶ 1-
    15 2, 5 (citing Kiowa and holding that a tribe was immune from a wrongful discharge suit
    16 in state court); see also Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-
    17 NMCA-077, ¶¶ 9-10, ___ N.M. ___, ___ P.3d ___ (affirming dismissal of workers’
    18 compensation claim against a tribe on the basis of sovereign immunity and noting that
    19 “the question of whether a tribe’s activity occurred on or off the reservation has been
    5
    1 rendered inconsequential under Kiowa”). Given this authority, we decline Plaintiffs’
    2 invitation to ignore the holding in Kiowa.
    3        Plaintiffs alternatively argue that Kiowa, because it involved a contract dispute,
    4 does not apply to off-reservation torts. They direct our attention to Padilla v. Pueblo
    5 of Acoma, 
    107 N.M. 174
    , 
    754 P.2d 845
    (1988), abrogated by Gallegos, 2002-NMSC-
    6 012, ¶ 25. In that case, decided prior to Kiowa, our Supreme Court refused to apply
    7 the doctrine of tribal sovereign immunity and held that a pueblo was liable in state
    8 court for its off-reservation conduct. 
    Padilla, 107 N.M. at 179-80
    , 754 P.2d at 850-
    9 51. Framing its holding as “solely a matter of comity,” the Court concluded that
    10 because the state subjects itself to suit on such claims, the pueblo should likewise be
    11 required to submit to suit for acts occurring outside reservation boundaries. 
    Id. 12 Plaintiffs argue
    that if this Court chooses to recognize the doctrine of tribal sovereign
    13 immunity, Kiowa reversed Padillaonly insofar as Kiowa dealt with contract cases.
    14        We do not agree. Kiowa explicitly denounced the applicability of comity in the
    15 tribal sovereign immunity context, stating that a tribe’s sovereign immunity “is not
    16 coextensive with that of the 
    [s]tates.” 523 U.S. at 756
    . Because the holding in Padilla
    17 rests on a principle rejected by Kiowa, Padilla no longer controls this issue. See
    18 Gallegos, 2002-NMSC-012, ¶ 25 (acknowledging that Kiowa implicitly overruled
    19 Padilla).
    6
    1        We acknowledge that some controversy surrounds the idea of immunizing
    2 tribes from the consequences of their off-reservation conduct. See, e.g., Kiowa, 
    523 3 U.S. at 764
    (Stevens, J., dissenting) (observing that none of the Court’s prior opinions
    4 “attempted to set forth any reasoned explanation for a distinction between the [s]tates’
    5 power to regulate the off-reservation conduct of Indian tribes and the [s]tates’ power
    6 to adjudicate disputes arising out of such off-reservation conduct”). Nevertheless, we
    7 believe that the majority opinion in Kiowa and New Mexico precedent interpreting
    8 Kiowa compel the conclusion that tribal sovereign immunity extends to off-
    9 reservation torts. See Gallegos, 2002-NMSC-012, ¶ 7 (stating that “tribal immunity
    10 is a matter of federal law and is not subject to diminution by the states”).
    11 Defendant Gutierrez
    12        Plaintiffs argue in their reply brief that tribal immunity should not extend to
    13 Defendant Gutierrez, an employee of the tribe, because insulating an employee “does
    14 not further [the] reasons” underlying sovereign immunity. We decline to address this
    15 argument for two reasons. First, Plaintiffs do not support their argument with citation
    16 to authority. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-
    17 078, ¶ 10, 
    125 N.M. 244
    , 
    959 P.2d 969
    (explaining that appellate courts need not
    18 address arguments that are unsupported by authority). Second, we will not ordinarily
    7
    1 consider an argument raised for the first time in a reply brief. Mitchell-Carr v.
    2 McLendon, 1999-NMSC-025, ¶ 29, 
    127 N.M. 282
    , 
    980 P.2d 65
    .
    3 CONCLUSION
    4       For the reasons stated above, we affirm the district court’s judgment dismissing
    5 Plaintiffs’ claims against Defendants.
    6       IT IS SO ORDERED.
    7                                          ___________________________________
    8                                          CYNTHIA A. FRY, Chief Judge
    9 WE CONCUR:
    10 ____________________________
    11 JAMES J. WECHSLER, Judge
    12
    13 TIMOTHY L. GARCIA, Judge
    8