Gallegos v. Pueblo of Tesuque, No. 26,149.

• Docket Nº: No. 26,149.
• Citation: 46 P.3d 668, 132 N.M. 207, 2002 NMSC 12
• Case Date: April 26, 2002
• Court: Supreme Court of New Mexico

46 P.3d 668
132 N.M. 207
2002 NMSC 12

Lisa GALLEGOS, Plaintiff-Appellant,
v.
PUEBLO OF TESUQUE d/b/a Camel Rock Gaming Center, Zurich American Insurance Company, National Sanitary Supply Company, Inc., Rubbermaid, Inc., and Does 1-20, inclusive, Defendants-Appellees

No. 26,149.

Supreme Court of New Mexico.

April 26, 2002.

46 P.3d 671

Eric Treisman, Monte D. Richard, Santa Fe, NM, for Appellant

Butt, Thornton & Baehr, P.C., Emily A. Franke, James H. Johansen, Guebert & Yeomans, P.C., Terry R. Guebert, Alysan Boothe Collins, Stetson Law Offices, P.C., Catherine Baker Stetson, Jana L. Walker, Albuquerque, NM, for Appellees.

Williams, Janov & Cooney, P.C., Gwenellen P. Janov, Albuquerque, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg, & Enfield, L.L.P., Richard W. Hughes, Santa Fe, NM, Nordhaus, Haltom, Taylor, Taradash & Frye, Lester K. Taylor, Ussery & Parrish, P.A., David C. Mielke, Hilary C. Tompkins, Albuquerque, NM, for Amici Curiae, Pueblos of Santa Ana, San Felipe, Sandia, Isleta and Laguna.

Carpenter & Chavez, Ltd., William H. Carpenter, Vanzi & Gagne, P.C., Linda M. Vanzi, Pasternack & Blake, P.C., Valerie A. Chang, Albuquerque, NM, for Amicus Curiae, New Mexico Trial Lawyers Association.

OPINION

BACA, Justice.

{1} In this case, certified from the Court of Appeals pursuant to NMSA 1978, § 34-5-14(C)(2) (1972), we confront two issues presented in two cases consolidated by the Court of Appeals prior to certification. First, we are asked whether federal or state law, or the terms of the 1995 or 1997 Compacts, provide the state court with subject matter jurisdiction over an action in tort brought by a non-Indian against an Indian tribe, when the non-Indian was allegedly injured at the tribe's gaming facility and no gaming compact was legally in effect. Second, we are asked to decide whether the Pueblo of Tesuque ("Tesuque") is an indispensable party pursuant to Rule 1-019-NMRA-2002 in an action against Zurich American Insurance Company ("Zurich"), Tesuque's insurance carrier, for breach of contract for failure to pay medical payments, breach of contract for raising a sovereign immunity defense, insurance bad faith, and unfair practices under the New Mexico Trade Practices and Fraud Act, NMSA 1978, § 59A-16-1 to-30 (1984, as amended through 2001). Given the unique circumstances of this case, we confine the application of our analysis to these facts. We hold that (1) the dismissal of Lisa Gallegos' ("Gallegos") complaint was proper as Tesuque had not expressly and unequivocally waived its immunity from suit or consented to state court jurisdiction through a compact or other form, and (2) Tesuque is an indispensable party in this suit against its insurance carrier.

{2} Therefore, we affirm the district court's order granting the motion to dismiss the complaint against Tesuque for lack of subject matter jurisdiction and affirm the district court's order granting the motion to dismiss the complaint against Zurich for failure to join an indispensable party.

I.

{3} On October 28, 1996, Gallegos was a visitor at the Camel Rock Gaming Center ("Casino") located on the Pueblo of Tesuque Indian reservation. As Gallegos was entering the walkway from the parking lot, a sudden gust of wind blew a garbage container into her, knocking her down. As a result of this incident, Gallegos allegedly suffered severe contusions and injuries, including a displaced fracture of her right elbow. At the time of the incident, Tesuque, which owned and operated the Casino, had an insurance policy in effect with Zurich. As a result of her injuries, Gallegos asserts that she incurred substantial medical expenses. She reported over $20,000 in such expenses to Zurich, which paid a small portion and then discontinued payment.

46 P.3d 672

{4} On December 11, 1997, Gallegos filed a lawsuit in a New Mexico district court against Tesuque and other defendants to recover for the personal injuries she allegedly sustained as a result of the October 28, 1996 incident. Defendants filed a motion to dismiss asserting that Gallegos' lawsuit fell within the exclusive jurisdiction of the tribal court and that the state court lacked jurisdiction over it as Tesuque is immune from suit in state court. On August 3, 1998, the district court granted the motion and dismissed the complaint as to Tesuque, orally finding that the district court lacked jurisdiction to hear the action because no compact covered the date of the incident and Tesuque had not waived its sovereign immunity. The court dismissed the complaint as to the other defendants without prejudice to Gallegos' right to file an amended complaint. Gallegos appealed the district court's order as to Tesuque to the Court of Appeals

{5} On October 26, 1998, Gallegos filed a separate lawsuit against Zurich and several other defendants. She alleged breach of contract for failure to pay medical payments, breach of contract for raising a sovereign immunity defense, insurance bad faith, and unfair practices under the New Mexico Trade Practices and Fraud Act against Zurich. After filing an answer, Zurich filed a motion to dismiss for failure to join an indispensable party pursuant to Rule 1-019. Zurich claimed that Gallegos was seeking to recover damages for Tesuque's alleged liability, and, thus, Tesuque was an indispensable party. Zurich argued that, since sovereign immunity precluded joinder of Tesuque in an action in state court, the action against Zurich must be dismissed. The district court dismissed Zurich from the lawsuit. Gallegos appealed to the Court of Appeals. The Court of Appeals recognized that any ruling in this case "involve[d] a significant issue of intersovereign law and substantial public interest concerning personal injuries suffered by patrons of our State's tribal-run casinos after the invalidation of the original 1995 Gaming Compacts, ... but prior to the effective date of the Compacts enacted in 1997," and, thus, sought certification to this Court.

II.

{6} We first address the issue of whether the district court had subject matter jurisdiction over the claim brought by Gallegos against Tesuque. 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. See Barnae v. Barnae, 1997-NMCA-077, ¶¶ 10-11, 123 N.M. 583, 943 P.2d 1036; see also Sac and Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.1995) (concluding that the validity of an assertion of sovereign immunity is a question of law which requires de novo review).

{7} Tesuque argues that it is immune from suit in state court and that the district court properly dismissed the action brought by Gallegos on the basis of lack of subject matter jurisdiction and tribal sovereign immunity. We agree. "Indian tribes are `domestic dependent nations' that exercise inherent sovereign authority over their members and territories." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831)). Indeed, "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); accord Hanson, 47 F.3d at 1063. Although Indian tribes enjoy sovereign authority over their members and territories, their immunity from suit in state court is not absolute. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. Article I, Section 8 of the U.S. Constitution provides Congress with the ultimate authority over Indian affairs, and, thus, Congress can expressly authorize suits against Indian tribes through legislation. Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890-91, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); see Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. A tribe can also waive its own immunity by unequivocally expressing such a waiver. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751,

46 P.3d 673

754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670; Hanson, 47 F.3d at 1063; cf. Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997). Thus, tribal immunity is a matter of federal law and is not subject to diminution by the states. See Three Affiliated Tribes, 476 U.S. at 891, 106 S.Ct. 2305. Without an unequivocal and express waiver of sovereign immunity or congressional authorization, state courts lack the power to entertain lawsuits against tribal entities. See Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 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.")

{8} Gallegos was allegedly injured on Tesuque's reservation while she was patronizing Tesuque's gaming facility. As gaming on tribal lands is governed by the federal Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721 (1994 & Supp. V 1999), we must determine what, if any, effect the provisions of the IGRA have on this case and Gallegos' claims.

A.

{9} Before the passage of the IGRA, Congress found that "numerous Indian tribes [had] become engaged in or [had] licensed gaming activities on Indian lands as a means of generating tribal government revenue." 25 U.S.C. § 2701(1) (1994). Existing federal law, however, did not "provide clear standards or regulations for the conduct of gaming on Indian lands." 25 U.S.C. § 2701(3) (1994). Accordingly, in 1988, Congress passed the IGRA which provided "a `comprehensive regulatory framework for gaming activities on Indian lands' which `[sought] to balance the interests of tribal governments, the states, and the federal government.'" Pueblo of Santa Ana...