DeFeo v. Ski Apache Resort

• Decision Date: 15 September 1995
• Docket Number: No. 16060,16060
• Citation: 1995 NMCA 118,904 P.2d 1065,120 N.M. 640
• Parties: Troy DeFEO, Plaintiff-Appellee, v. SKI APACHE RESORT, Apache Tribe of the Mescalero Reservation, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1065

904 P.2d 1065

120 N.M. 640

Troy DeFEO, Plaintiff-Appellee, v. SKI APACHE RESORT, Apache Tribe of the Mescalero

Reservation, Defendants-Appellants.

No. 16060.

Court of Appeals of New Mexico.

Sept. 15, 1995.

Certiorari Denied Oct. 19, 1995.

Charles E. Hawthorne, Hawthorne & Hawthorne, P.A., Ruidoso, for Plaintiff-Appellee.

Joe L. McClaugherty, Jere K. Smith, McClaugherty, Silver & Downes, P.C., Santa Fe, for Defendants-Appellants.

OPINION

APODACA, Chief Judge.

¶1 Defendant Apache Tribe of the Mescalero Reservation (the Tribe) filed this interlocutory appeal from the trial court's denial of its motion to dismiss Plaintiff Troy DeFeo's (Plaintiff) complaint for lack of jurisdiction. Plaintiff, a non-Indian, sued the Tribe for personal injuries he sustained at Ski Apache Resort (the resort), a ski resort owned and operated by the Tribe. The resort is a single-business entity, located both within and without the boundaries of the Mescalero Apache Tribe Reservation (the reservation). We must decide whether: (1) the trial court had jurisdiction over a claim made by a non-Indian for personal injuries sustained within the boundaries of an Indian reservation, and (2) the Tribe can waive its sovereign immunity by implication or by engaging in commercial activity. We hold that the Tribe is immune from suit in New Mexico's state courts for personal injuries suffered by a non-Indian in Indian country, absent an unequivocal waiver of immunity by the Tribe. We therefore reverse and remand to the trial court for dismissal of Plaintiff's complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. History of Ski Apache Resort

¶2 The resort was originally started as a ski facility during the 1961-62 ski season, under a permit from the United States Department of Agriculture on land in the Lincoln National Forest. This land is located adjacent to the reservation. At that time, no portion of the ski area was within the boundaries of the reservation; the resort was operated wholly within the boundaries of the Lincoln National Forest.

¶3 During the 1962-63 ski season, the resort opened a gondola lift, and the ski area was expanded to include the Apache Bowl, an area lying partially on the reservation. In 1981, a chairlift was constructed on part of the Apache Bowl, entirely on reservation land. In 1992, another chairlift was constructed on Elk Ridge, which also lies on reservation land. The Elk Ridge section includes a lift ticket sales office, restaurant, day lodge, sports shop, and ski lifts, all of which are within the reservation's boundaries.

¶4 The resort currently has eight chairlifts, one gondola lift, and two surface lifts. Six of the chairlifts, the gondola lift, and the two surface lifts are located in the Lincoln National Forest (off reservation land). Only the Apache Bowl and the Elk Ridge chairlifts are located on the reservation. Before 1992, the location of all lift ticket sales and the beginning of the ski lift system were all on Lincoln National Forest land. The business offices of the resort are located on Lincoln National Forest land.

¶5 Until 1992, a skier could only reach the reservation by purchasing a ski lift ticket, taking a ski lift, exiting the ski lift, all on the Lincoln National Forest, and then skiing into Apache Bowl. After Elk Ridge opened, a skier could reach the entire ski area from the reservation by buying a ticket at Elk Ridge and taking the chairlift to the ski area.

B. Nature of Occurrence

¶6 On March 12, 1992, Plaintiff was injured while exiting from a ski lift at the resort. The accident occurred at the top of Lift No. 6 in Apache Bowl, entirely within the boundaries of the reservation.

¶7 Plaintiff sued the Tribe for personal injuries in the trial court, which is a state court comprising the Twelfth Judicial District. The Tribe moved to dismiss for lack of subject matter jurisdiction, arguing that New Mexico state courts lacked jurisdiction over this incident because the Mescalero Apache Tribal Courts had exclusive jurisdiction over the lawsuit. The trial court denied the Tribe's motion, stating that the Tribe "ha[d] waived its sovereign right to have its interests protected by its own courts and under its own law by the operation of [the resort]."

¶8 The Tribe filed an interlocutory appeal with this Court.

II. DISCUSSION

¶9 Indian tribes are "domestic dependent nations" that exercise inherent sovereign authority over their members and territories, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831), and " 'retain[ ] their original natural rights' " to exercise self-government, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832)). Tribal authority extends to the activities of both Indians and non-Indians on reservation lands. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15-16, 18, 107 S.Ct. 971, 976-977, 978, 94 L.Ed.2d 10 (1987); see also Montana v. United States, 450 U.S. 544, 565-66 (1981).

10. One aspect of an Indian tribe's sovereignty and power of self-government is its immunity from suit in state courts. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677. Suits against Indian tribes are barred "absent a clear waiver [of immunity] by the tribe or congressional abrogation." Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677 (internal quotations and citations omitted). This requirement advances the " 'overriding goal' of encouraging tribal self-sufficiency and economic development." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 1092, 94 L.Ed.2d 244 (1987); see Oklahoma Tax Comm'n, 498 U.S. at 510, 111 S.Ct. at 910; see also American Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir.1985) ("Indian tribes long have structured their many commercial dealings upon the justified expectation that absent an express waiver their sovereign immunity stood fast."). If an Indian tribe's sovereign immunity stays intact, state courts lack the power to hear or decide the litigation. See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977) ("Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.").

11. Plaintiff has neither alleged nor presented any facts of an express waiver of sovereign immunity by the Tribe. In fact, the Tribe expressly reserved the jurisdiction of the Tribe's courts in civil matters. The Revised Constitution of the Mescalero Apache Tribe provides that "[t]he jurisdiction of the Tribal Courts shall extend to all matters, criminal and civil, except where prohibited by the Constitution, laws or treaties of the United States of America." Revised Mescalero Apache Tribe Const. art. XXV, part III, § 1.

12. In an attempt to circumvent the overwhelming authority that vests the Tribe with immunity from suit in state courts for incidents arising in Indian country, Plaintiff argues that, although the accident at issue clearly occurred on the reservation, the location of the accident is irrelevant because the resort is an off-reservation business. Because the resort is a single-business operation located partially on and partially off of the reservation, with the majority of the resort being operated off-reservation, Plaintiff contends that the Tribe engaged in off-reservation business. Relying on our Supreme Court's decision in Padilla v. Pueblo of Acoma, 107 N.M. 174, 178, 754 P.2d 845, 849 (1988), cert. denied, 490 U.S. 1029, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989), Plaintiff argues that the Tribe "unequivocally waived its sovereign immunity because the [resort] is an off-reservation activity."

13. In Padilla, the Pueblo was doing business as a roofing contractor on off-reservation building projects. When the Pueblo allegedly breached its contract, it was sued in state court by a non-Indian. The Supreme Court rejected the Pueblo's claim of immunity to suit in state courts, stating:

Having found no provision under the supreme law of the land that prohibits a state's exercise of jurisdiction over sovereign Indian tribes for off-reservation conduct, we believe the exercise of jurisdiction over a sovereign Indian tribe for off-reservation conduct is solely a matter of comity. It is the policy of New Mexico to allow breach of written contract actions against the state. Therefore, we hold that, regardless of where the contract was executed, the district court may exercise jurisdiction over an Indian tribe when the tribe is engaged in activity off of the reservation as an unincorporated association registered and authorized to do business in this state and is sued in that capacity for breach of a written contract to pay for the performance of contractual obligations accomplished or intended to be accomplished in connection with this off-reservation activity of the tribe.

Id. at 179-80, 754 P.2d at 850-51 (emphasis added) (citations omitted). Thus, our Supreme Court concluded that no immunity existed because the Pueblo had engaged in off-reservation conduct.

14. Padilla is distinguishable from the present case. The cause of action that formed the basis of the suit in Padilla arose off-reservation. Here, on the other hand, the cause of action clearly arose on-reservation. The trial court concluded that "[t]here [was] no question that the Plaintiff's injuries occurred within the...