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N.M. opinion says tribes have 'given up' authority
WEDNESDAY, JANUARY 29, 2003

Tribes in New Mexico do not have the authority to impose taxes on road projects that run through tribal land, the state's top law enforcer has determined.

In a January 23 opinion, attorney general Patricia Madrid said that tribes usually lack jurisdiction over the activities of non-members. Referring to a series of Supreme Court decisions seen as negative to Indian rights, she said tribes have "given up" their sovereignty on land where the projects occur.

"Under those decisions, a tribe generally has no inherent sovereign power to tax nonmembers who are working on a state highway project," she wrote.

Madrid was responding to a dispute that surfaced when the Navajo Nation sought to tax a state highway contractor. The tribe was asking for more than $250,000 for work being done on the reservation.

But since the project occurs on a right-of-way, she said the tribe lost civil or criminal authority over the land. She cited a federal law that authorizes the easements.

"The affected tribe consents to the grant and receives compensation," the opinion states. "None of the easements reserve general gatekeeping rights to the tribes."

The opinion applies to all reservation easements, Madrid argued, even though some tribes have recently retained greater control over rights-of-way in response to the court rulings. In those instances, she said the state retains "exclusive right to regulate, among other things, highway design, highway construction and highway maintenance."

Three Supreme Court rulings were part of the review. One was 1981's Montana case that limits tribal authority over non-member activity on non-Indian land. There are exceptions if there is a consensual relationship or if the activity in question affects the political integrity, the economic security or the health or welfare of the tribe.

The second was a 2001 decision that struck down the Navajo Nation's hotel tax. The court found no existence of a consensual relationship or any effect on the tribe's sovereignty.

Finally, Madrid cited 1997's Strate case that involved a right-of-way on a North Dakota reservation. The Supreme Court determined that an easement is equivalent to non-Indian owned land, thus the tribe lacks jurisdiction except under the Montana exceptions.

Get the Opinion:
Opinion No. 03-03 (January 23, 2003)

Relevant Links:
New Mexico Attorney General - http://www.ago.state.nm.us

Relevant Court Decisions:
Atkinson Trading Co., Inc. v. Shirley (2001) | Strate v. A-1 Contractors (1997) | Montana v. US (1981)

Related Stories:
State disputes 'illegal jurisdiction' of tribe (10/10)
Supreme Court strikes down Navajo tax (5/30)
Supreme Court to take on taxation (11/28)
Crow fate may rest in decision (11/28)
Court rules against Crow tax (07/18)

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