The Court found that the assertion of sovereign immunity in a motion to dismiss improper because it would prevent any person from invoking state court jurisdiction in a dispute with a tribe.5 The Court also relied on minority opinions of the United States Supreme Court that questioned the utility of sovereign immunity, apparently in an attempt to encourage the acceptance of a limited view of immunity.
The Dissent: Tribal Sovereign Immunity Applies and Was Not Waived: In his dissent, Judge Wechsler asserts that the majority improperly diminished tribal sovereign immunity in violation of the rule that tribal sovereign immunity can only be waived by a tribe or abrogated by Congress: there is no role for the State.6 He faulted the majority for relying on cases involving tribal authority over tribal land, not tribal immunity from suit in state court.7 He further objected to the consideration of equitable factors in a “pure jurisdictional question.”8 Finally, Judge Wechsler found the majority’s consideration of the timing of the motion to be irrelevant.9
Judge Wechsler then considered the merits of the motion to dismiss, and concluded that he would have reversed the district court’s denial of the motion. Construing Hamaatsa’s action as an in rem proceeding as to the road status,10 Judge Wechsler concluded that tribal sovereign immunity applied. “[A]n action essentially to declare a tribally owned property a public highway is in effect an action against the tribe.”11 Judge Wechsler also rejected Hamaatsa’s argument that tribal sovereign immunity only applied to actions for monetary relief, rejecting the Fifth Circuit’s contrary rule.12
The Pueblo has 30 days from the entry of the order to file a writ of certiorari with the New Mexico Supreme Court. As of this writing, the Pueblo does not appear to have filed a writ of certiorari.