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

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.