Padilla v. Pueblo of Acoma, 16835

• Decision Date: 09 May 1988
• Docket Number: No. 16835,16835
• Parties: , 56 USLW 2671 Frank PADILLA, Plaintiff-Appellant, v. PUEBLO OF ACOMA, d/b/a Sky City Contractors, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 845

754 P.2d 845

107 N.M. 174, 56 USLW 2671

Frank PADILLA, Plaintiff-Appellant, v. PUEBLO OF ACOMA, d/b/a Sky City Contractors, Defendant-Appellee.

No. 16835.

Supreme Court of New Mexico.

May 9, 1988.

Rehearing Denied June 3, 1988.

[107 N.M. 175] Grisham, Lawless & Earl, Richard V. Earl, Albuquerque, for plaintiff-appellant.

Ortega & Snead, P.A., Michael D. Bustamante, Albuquerque, for defendant-appellee.

OPINION

RANSOM, Justice.

Frank Padilla, a roofing consultant, sued the Pueblo of Acoma d/b/a Sky City Contractors for breach of contracts under which Padilla supervised Sky City's installation of roofs on two building projects located off the Acoma reservation. The Pueblo moved to dismiss the suit for lack of subject matter jurisdiction on the grounds of sovereign immunity. Following a hearing, the district court granted the Pueblo's motion and dismissed the complaint. Padilla appeals. We reverse.

We initially address whether the Pueblo adequately raised lack of subject matter jurisdiction in its motion to dismiss under SCRA 1986, 1-012(B)(1). Padilla submits that, under Aetna Casualty & Surety Co. v. Bendix Control Division, 101 N.M. 235 680 P.2d 616 (Ct.App.1984), a proper challenge of jurisdiction must contain something more than the bare allegations within the motion. Id. at 240, 680 P.2d at 621. Padilla argues that the Pueblo's failure either to verify or to accompany its motion with an affidavit or other sworn testimony requires this Court to accept as true Padilla's allegation that Sky City is an unincorporated association registered and authorized to do business in New Mexico and, by implication, not protected under the Pueblo's tribal immunity.

The focus in Aetna was limited, however, to factual allegations that would satisfy the "minimum contacts" due process requirements for personal jurisdiction over a nonresident defendant. There, the complaint alleged sufficient facts concerning the commission of a tortious act within the state. The allegations in the complaint had to be taken as true in the absence of affidavits or other testimony under oath supporting a motion asserting lack of personal jurisdiction. In this case, the jurisdictional attack is on the power and authority of the court to act when an Indian tribe asserts its sovereign immunity. The plaintiff's naming of the Pueblo of Acoma as the defendant, together with the long recognized policy of judicial notice of Pueblo Indian tribes, United States v. Lucero, 1 N.M. 422 (1869), established the factual basis for the Pueblo's motion to dismiss on the grounds of sovereign immunity. No sworn testimony was necessary to establish that the defendant was indeed a Pueblo Indian tribe. We accept as true, and discuss later in this opinion, the allegation that the defendant Pueblo was doing business as an unincorporated association registered and authorized to do business in the state.

The issue before us is whether the state courts have the power and authority to exercise jurisdiction over an Indian tribe that has not waived sovereign immunity for liability claimed to arise out of the tribe's off-reservation conduct. See State v. Patten, 41 N.M. 395, 69 P.2d 931 (1937) (three jurisdictional essentials are jurisdiction over parties, jurisdiction of subject matter, and power or authority to decide particular matters presented).¹

The laws of the United States are the supreme law of the land, and judges in every state are bound thereby. U.S. Const. art. VI. We feel constrained, therefore, to answer the jurisdictional question in terms of whether the supreme law of the land has divested the courts of the State of New Mexico of the power and authority over an Indian tribe that has not waived sovereign immunity for off-reservation business conduct. Or, to put it in other words, has the supreme law of the land divested state courts of subject matter jurisdiction over a private claim against an Indian tribe that asserts sovereign immunity for its off-reservation business conduct?

Where a tribe's sovereign immunity obtains, it is well settled and binding upon this Court that only under congressional consent or an effective waiver may a state court exercise jurisdiction over a recognized Indian tribe. Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). Furthermore, any waiver of tribal immunity from suit " 'cannot be implied but must be unequivocally expressed.' " Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976)). Tribal sovereignty is subject to plenary federal control and definition. Absent federal authorization, tribal immunity is privileged from diminution by the states. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 106 S.Ct. 2305, 2313, 90 L.Ed.2d 881 (1986).

Crucial to the concluding decisional portion of this opinion is the absence of any controlling case law specifically divesting state courts of jurisdiction over Indian tribes doing business outside of reservation boundaries as an unincorporated association registered and authorized to do business in the state. Before reaching the determinative issue in this case, however, we will consider other significant points raised and argued by the parties.

Padilla points to no federal legislation which would constitute congressional consent to sue the Pueblo of Acoma d/b/a Sky City Contractors for breach of contract. He does claim that NMSA 1978, Section 53-9-1 (Repl.Pamp.1983), establishes that the Pueblo Indians may be sued as a corporation and be required to defend such suit in any court of law or equity. Padilla relies on the following statutory language:

The inhabitants within the state of New Mexico, known by the name of the Pueblo Indians, and living in towns or villages built on lands granted to such Indians by the laws of Spain and Mexico * * * shall be known in the law by the name of the Pueblo de * * *, (naming it), and by that name they and their successors shall have perpetual succession, sue and be sued, plead and be impleaded, bring and defend in any court of law or equity, all such actions, pleas and matters whatsoever, proper to recover, protect, reclaim, demand or assert the right of such inhabitants, or any individual thereof, to any lands, tenements or hereditaments, possessed, occupied or claimed contrary to law, by any person whatsoever, and to bring and defend all such actions, and to resist any encroachment, claim or trespass made upon such lands, tenements or hereditaments, belonging to said inhabitants, or to any individual.

The clause "sue and be sued" must be evaluated within the context of the statute and its history. The original enactment of Section 53-9-1 predates the 1848 treaty of Guadalupe Hildago which similarly protected title to Pueblo Indian lands. See Treaty of Peace Between the United States and Mexico, NMSA 1978 (Vol.1 Pamp.3); United States v. Joseph, 94 U.S. (4 Otto) 614, 24 L.Ed. 295 (1876), aff'g 1 N.M. 593 (1874). The territorial statute was passed to define the status of Pueblo Indian tribes under United States jurisdiction and to establish their right to protect their lands from encroachment. See Garcia v. United States, 43 F.2d 873 (10th Cir.1930). Further, in Your Food Stores, Inc. v. Village of Espanola, 68 N.M. 327, 361 P.2d 950, cert. denied, 368 U.S. 915, 82 S.Ct. 194, 7 L.Ed.2d 131 (1961), this Court, in examining whether a political subdivision of the state could extend its corporate limits to include lands of an Indian tribe, found that the terms upon which New Mexico was admitted to the United States left no room for a claim by the state to governmental power over the Indian tribes and Indian lands, unless Congress specifically granted jurisdiction or unless the decisions of the United States Supreme Court sanctioned the exercise of jurisdiction. Id. at 330, 361 P.2d at 952. The territorial statute, which clearly was enacted to protect the right of Indians to aboriginal lands, cannot be extended to constitute a federal grant of general jurisdiction over Indian tribes to the State.

Tribal immunity cases generally center upon the Indian Reorganization Act of 1934, codified at 25 U.S.C. Sections 461-479 (1976). See Felix S. Cohen's Handbook of Federal Indian Law Ch. 6, Sec. A4c (R. Strickland ed. 1982). Under Section 16 of the Act, Indian tribes have been found to have waived immunity by virtue of legislative ordinances enacted under a tribal constitution. See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.1980), aff'd, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982). Further, federal courts generally have held that the "sue and be sued" proviso of a tribal corporate charter under Section 17 of the Act constitutes a waiver of immunity for the tribe as a corporate entity, although it does not waive the sovereign immunity of the tribe as a political entity. Boe v. Fort Belknap Indian Community, 455 F.Supp. 462 (D.Mont.1978), aff'd, 642 F.2d 276 (9th Cir.1981). However, the Pueblo of Acoma never has availed itself of the opportunity to adopt a constitution and incorporate under the Act. See An Ordinance Prescribing a Code of Law and Order for the Pueblo de Acoma Indian Reservation (1971). Consequently, the Pueblo has no legislative ordinance enacted under a tribal constitution or a corporate charter that arguably could provide the basis for an express waiver of sovereign immunity. See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.1980) aff'd, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982); Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir.1982).

It is further urged that the State's exercise of jurisdiction over Sky City should be evaluated under the infringement test formulated in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251...