New Mexico Supreme Court

New Mexico SCT Orders Equitable Tolling of Statute of Limitations on Worker’s Comp Claim against Pojoaque Police Dept.

Matthew L.M. Fletcher

Here is the opinion in Schultz v. Pojoaque Tribal Police Dept. (N.M.).

An excerpt:

{1} On August 17, 2002, Pojoaque Tribal Police Officer Kevin Schultz drowned while rescuing a twelve-year-old boy from the Rio Grande near Pilar, New Mexico. On the day of the accident, Schultz had taken the day off from work to chaperone a group of children from his church on a recreational outing. This case arose when Schultz’s  widow, Cheryl, filed a claim for workers’ compensation benefits resulting from her husband’s death, but only after the statute of limitations had expired.

{2} Notwithstanding the late filing, Mrs. Schultz contends that the conduct of the Pojoaque Tribal Police Department (police department or employer) caused her to file after the deadline, and thus, we should consider her complaint timely filed pursuant to NMSA 1978, Section 52-1-36 (1937) (as amended through 1989) of the Workers’ Compensation Act (the Act), entitled “Effect of failure of worker to file claim by reason of conduct of employer.” This particular statute goes to the heart of Mrs. Schultz’s appeal.

{3} Both the Workers’ Compensation Judge (WCJ) and the Court of Appeals decided that Mrs. Schultz’s complaint was not timely filed. For the reasons that follow, we  reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.

Federal Court Allows Pueblo of Santa Ana’s Challenge to N.M. Gaming Compact’s Jurisdiction Shifting Provisions to Proceed

Matthew L.M. Fletcher2 Comments

Here are the materials in Pueblo of Santa Ana v. Nash (D. N.M.):

Memo Opinion

Party Defendants Motion to Dismiss

Judge Nash Motion to Dismiss

Response to Party Defendants

Response to Judge Nash

Party Defendants Reply

Judge Nash Reply

Here are the materials in the state supreme court decision that is the subject of this challenge.

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.

State Supreme Court Outcomes: New Mexico

Matthew L.M. Fletcher

We took a day off yesterday (travel to give a talk to the 2011 PLSI’ers). And in honor of them, New Mexico!

In New Mexico, tribal interests succeed 44 percent of the time.

Here are the cases (including yesterday’s whopper!):

Continue reading →

New Mexico Supreme Court Holds State Dram Shop Actions Apply to Tribal Enterprises

Matthew L.M. Fletcher5 Comments

Here is the opinion in Mendoza v. Tamaya Enterprises, Inc. News article here.

Along with Oklahoma, New Mexico is one of the few states to allow state law dram shop actions against tribal businesses. And, along with Oklahoma, the reasoning behind the decision is tied to the state-specific jurisdictional scheme created in the tribal gaming compacts.

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.

New Mexico Supreme Court Holds ICWA Trumps State Abuse and Neglect Law

Matthew L.M. Fletcher

Here is the opinion in In the Matter of Esther V.

An excerpt:

In this case, the district court entered an order finding that Marlene C. (Mother)neglected her month-old baby (Child) and gave legal custody to the Children, Youth andFamilies Department (CYFD).  Mother appealed, arguing that the district court failed tomake the factual findings required by § 1912(d) and (e) of ICWA at the adjudicatoryhearing.  State ex rel. Children, Youth & Families Dep’t v. Marlene C., 2009-NMCA-058,¶¶ 1, 10, 14, 146 N.M. 588, 212 P.3d 1142.  The Court of Appeals reversed the adjudicationof neglect, holding that CYFD failed to prove the § 1912(e) requirement by clear andconvincing evidence as required by the statute.  Id. ¶¶ 18, 20.  The Court of Appeals did notdecide whether the findings required by § 1912(d) and (e) must always be made at theadjudicatory hearing.  See id. ¶ 14.  We hold that, in a contested adjudication to which ICWAapplies, the district court must always make the findings of fact required under § 1912(d) and(e) of ICWA at the adjudication stage, founded either on evidence of record or admissions supported by a factual basis.  We therefore reverse the district court’s adjudication of neglectand remand to that court for further hearing.

 

New Mexico Supreme Court Upholds State Hot Pursuit Criminal Search in Indian Country

Matthew L.M. Fletcher

But recognizes that the tribal government could enact legislation to prohibit such hot pursuits.

Here is the opinion in State v. Harrison: New Mexico Supreme Court Opinion.

New Mexico Court Decides Indian Jurisdiction Case

Matthew L.M. Fletcher

Here is the opinion in Garcia v. Gutierrez, from the New Mexico Supreme Court (Garcia v Gutierrez — NM SCT Opinion). An excerpt:

In this case—a divorce and custody dispute between an Indian father and a
non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and
tribal courts have entered conflicting decrees. Regrettably, complete resolution of that

In this case—a divorce and custody dispute between an Indian father and a non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and tribal courts have entered conflicting decrees. Regrettably, complete resolution of that conflict lies beyond our reach.

What we can do, however, is conclude that the state court does have jurisdiction. The tribal court—given the importance of the Pueblo’s children to its culture and its future—likely has jurisdiction; and neither is exclusive of the other. As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak, 78 N.M. 743, 744, 438 P.2d 153, 154 (1968) (“In making [a child-custody determination, a court’s] controlling influence should be the welfare and best interests of the child.”).

Thanks to T.L.M. for the head’s up.

New Mexico Supreme Court Grants Cert in ICWA Case

Matthew L.M. Fletcher

The New Mexico Supreme Court will hear State v. Marlene C. (link to court’s certiorari page). Here is the lower court opinion.

From the N.M. Court of Appeals opinion:

Mother appeals from an adjudication of neglect. Mother is a member of the Navajo Nation, and the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (2006), applies to Child. Although the parties to this case agree that ICWA does apply, they disagree about its specific application to issues of preservation and evidentiary requirements. We hold that under the circumstances of this case, ICWA permits Mother to challenge on appeal the sufficiency of the evidence presented at the adjudicatory hearing, and we further hold that the Children, Youth, and Families Department (Department) did not provide sufficient evidence to satisfy the requirements of ICWA. Accordingly, we reverse the adjudication of neglect and remand for further proceedings.