New Mexico Court of Appeals

New Mexico COA Decides Tribal Police Officer May Recover Worker’s Comp for Certain Off-Duty, Off-Reservation Activities

Matthew L.M. Fletcher

Here is the opinion in Schultz v. Pojoaque Tribal Police Dep’t. An excerpt:

In this workers’ compensation case, the issue before us is whether Officer Kevin Schultz’s accidental death arose out of and within the course of his employment with the Pueblo of Pojoaque Tribal Police Department (Employer). The workers’ compensation judge (WCJ) concluded that Officer Schultz’s death did not arise out of and in the course of his  employment because he was off-duty, outside his jurisdiction, and on a personal day trip near the Rio Grande at the time of the accident. Because of the unique nature of law enforcement duties, we conclude that law enforcement officers may recover workers’ compensation benefits in some instances for off-duty injuries occurring in response to circumstances reasonably calling for police officer assistance. Accordingly, because we also hold that there was a sufficient nexus between Officer Schultz’s actions in undertaking the rescue of a drowning child and the duties of his employment as a police officer, we reverse.

Split New Mexico COA Panel Holds Pueblo of San Felipe Not Immune from Land Suit (Case to Watch)

Matthew L.M. Fletcher2 Comments

Here is the opinion in Hamaatsa, Inc. v. Pueblo of San Felipe. An excerpt from the majority:

Notwithstanding its purely facial attack and admission of the truth of the allegations of the complaint, including that the road is a state public road, the Pueblo argues that sovereign immunity bars the action for lack of subject matter jurisdiction. Yet, 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 Pueblo has not attempted any proof, for example, that even though the road is a state public road, a district court’s declaration of that fact would in any way undermine the Pueblo’s sovereignty or sovereign authority, infringe on any right of the Pueblo to govern itself or control its internal relations, or otherwise adversely affect its governmental, property, or treasury interests.

And from the dissent:

Third, “sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation[, and,] it presents a pure  jurisdictional question.” Armijo, 2011-NMCA-006, ¶ 13 (internal quotation marks and  citation omitted). The Majority Opinion stresses that the effect of permitting the Pueblo to  exercise tribal sovereign immunity would be to deprive Hamaatsa and other members of  the public the opportunity for legal recourse. Majority Op. ¶ 16. The Majority Opinion even speculates that if tribal sovereign immunity were to apply, a pueblo or tribe could acquire  property “virtually anywhere in New Mexico” and deny access to the motoring public and neighboring property owners. Supra. This speculation assumes that a property owner has the ability to convey a dedicated public road and extends far beyond the facts of this case. But, more significantly, although I agree that Hamaatsa makes a strong equitable  argument, as this Court stated in Armijo, it is not relevant to the jurisdictional question  before us. Id.

New Mexico COA Reverses Parental Rights Termination in Case Involving Child Eligible for Navajo Membership

Matthew L.M. Fletcher

Here is the opinion in State, ex rel., Children, Youth, and Families Department v. Marsalee P.

An excerpt:

We examine in this appeal of a parental termination order circumstances that require the district court and Petitioner Children, Youth and Families Department (the Department) to fulfill obligations under the Abuse and Neglect Act, NMSA 1978, Sections 32A-4-1 to -34 (1993, as amended through 2009). We hold that the district court erred by terminating Mother’s parental rights without ensuring that the Department had complied with Section 32A-4-22(I) of the Abuse and Neglect Act, which mandates that the Department “shall pursue the enrollment” on behalf of children eligible for enrollment in an Indian tribe. Accordingly, we reverse the termination of Mother’s parental rights and remand to the district court.

New Mexico Court of Appeals Reaffirms Holding that Fort Wingate Military Reservation (Navajo) is Indian Country

Matthew L.M. Fletcher

Here is the opinion in State v. Steven B.:

CA31,322

An excerpt:

In State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796, this Court held that the State does not have jurisdiction to prosecute a criminal defendant within Parcel Three of the former Fort Wingate Military Reservation (Parcel Three). A subsequent decision by the United States District Court for the District of New Mexico, United States v. M.C., 311  F. Supp. 2d 1281 (D.N.M. 2004), decided otherwise. In this appeal, the State asks this Court to agree with the federal court decision and overrule its holding in Dick. Because we continue to believe that Parcel Three is within “Indian country” as defined by 18 U.S.C. § 1151 (1949) and discussed in Alaska v. Native Village of Venetie Tribal Government (Venetie), 522 U.S. 520 (1998), we affirm the ruling of the district court dismissing the State’s prosecution.

The federal court decision referenced in the opinion is here: 311_F.Supp.2d_1281

New Mexico Court of Appeals Reinstates Zuni Tribe Right to Challenge Land Use Decision

Matthew L.M. Fletcher1 Comment

Here is the opinion in Zuni Indian Tribe v. McKinley Co. Bd. of Co. Comm’rs.

An excerpt:

The New Mexico Subdivision Act (the Act), NMSA 1978, §§ 47-6-1 to -29 (1973, as amended through 2009), governs the subdivision review and approval process by counties. The appeals provision of the Act, Section 47-6-15(B), provides that a party adversely affected “by a decision of the board of county commissioners may appeal to the district court pursuant to the provisions of [NMSA 1978, §] 39-3-1.1 [(1999)]”—the statute governing administrative appeals. In this case, we address whether a county’s approval or disapproval of a preliminary subdivision plat application constitutes a final, appealable decision for purposes of Section 47-6-15(B) of the Act. We also decide whether a timely filed appeal from a decision on a preliminary plat application is rendered moot simply because the county proceeded to approve the final plat application during the pendency of the appeal.

https://i0.wp.com/www.azpines.com/tampico-springs-ranch/wp-content/blogs.dir/7/files/tampico-ranch-photos/tsr9.jpg

New Mexico COA Affirms State Conviction of Navajo Member for Crime on Navajo Fee Land (Baca Chapter)

Matthew L.M. Fletcher

Here is the opinion in State v. Vandever.

An excerpt:

Defendant Milroy Vandever was involved in an automobile accident in the checkerboard area of western New Mexico; a highway worker was killed. Defendant filed a motion to dismiss, contending that the district court lacked jurisdiction because he is an enrolled member of the Navajo Nation and the accident occurred in Indian country. The district court denied the motion, and Defendant pled guilty to homicide by vehicle, driving while under the influence of intoxicating liquor or drugs (DWI), and knowingly leaving the scene of an accident involving great bodily harm or death. We affirm the decision of the district court denying the motion to dismiss because Defendant did not meet his burden of establishing that the accident occurred in Indian country.

New Mexico COA Revisits State Jurisdiction over State Controlled Highways in Indian Country — Reaffirms Tribal Sovereignty

Matthew L.M. Fletcher

Here is the very interesting opinion in Hinkle v. Abeita.

An excerpt:

In this appeal, we are asked to reconsider whether our state courts have subject matter jurisdiction over tort claims filed against Indian defendants for conduct occurring on state highways within Indian country. Although binding precedent holds that our state courts do not have jurisdiction over such matters, see Hartley v. Baca, 97 N.M. 441, 442-43, 640 P.2d 941, 942-43 (Ct. App. 1981), we revisit the issue to determine whether evolving federal Indian Law jurisprudence and recent precedent from our own Supreme Court now require a different result. We hold that those developments do not alter our analysis in Hartley, and we hereby affirm the district court’s decision to dismiss for lack of subject matter jurisdiction.

If anyone has the briefs, we’d love to post them.

Materials in Challenge to Designation of New Mexico’s Mt. Taylor as Cultural Property

Matthew L.M. Fletcher1 Comment

Here are the materials in Reyellen Resources Inc. v. New Mexico Cultural Properties Review Committee:

2011-02-04 Rayellen Resources v. NM CPRC dist ct dcn

2012-03-08 NMCA order certifying Mt. Taylor TCP to NMSC

An excerpt from the trial court opinion:

Petitioners, variolls surface and mineral owners, filed a First Amended Petition for Writ of Certiorari challenging the Respondents’ listing of “more than 700 square miles spanning portions of three New Mexico counties encompassing the entirely of Mt. Taylor–from its peak to its surrounding mesas–as a traditional cultural property on the New Mexico State Register of Cultural Properties.” Respondents herein are the New Mexico Cultural Properties Review Committee. Alan “Mac” Watson, individually and as Chairman oflhe Cultural Properties Review Committee and the Pueblo of Acoma, will be hereinafter collectively referred as “Respondents”. This Court granted certiorari and now reverses and remands tor the reasons stated below.

N.M. Appellate Court Orders Pojoaque Pueblo to Re-Hire Injured Worker, Pay Post-Judgment Interest

Matthew L.M. Fletcher

Here is the link to the opinion. The prior opinion is posted here.

H/T Indianz.

N.M. SCT to Consider State-Law Dram Shop Actions and Tribal Immunity under N.M. Indian Gaming Compacts

Matthew L.M. Fletcher

The New Mexico Court of Appeals last May decided Mendoza v. Tamaya Enterprises, Inc. (opinion link here), holding in part that the New Mexico Indian gaming compact signed by the Pueblo of Santa Ana waived tribal immunity in state court to state-law dram shop actions. The New Mexico Supreme Court agreed to review this case.

As readers will know, we’ve been following multiple state cases involving tribal immunity from state law dram shop actions (e.g., cases involving the Mohegans, and tribes in Washington and Oklahoma; broader discussion here).

As Pechanga reported, one personal injury firm in ABQ suggests that Mendoza “significantly curtailed tribal immunity.” That seems to be an exaggeration — at least when it comes to the common law of tribal immunity — in that it appears likely that the New Mexico compacts include a sufficiently broad waiver. But that remains to be seen as well.