The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof, and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through the United States, or any prior sovereignty; and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the congress of the United States; and that the lands and other property belonging to citizens of the United States residing without this state shall never be taxed at a higher rate than the lands and other property belonging to residents thereof; that no taxes shall be imposed by this state upon lands or property therein belonging to or which may hereafter be acquired by the United States or reserved for its use; but nothing herein shall preclude this state from taxing as other lands and property are taxed, any lands and other property outside of an Indian reservation, owned or held by any Indian, save and except such lands as have been granted or acquired as aforesaid, or as may be granted or confirmed to any Indian or Indians under any act of congress; but all such lands shall be exempt from taxation by this state so long and to such extent as the congress of the United States has prescribed or may hereafter prescribe.

ANNOTATIONS

Comparable provisions. — Utah Const., art. III, Second.

Wyoming Const., art. XXI, § 26.

I. GENERAL CONSIDERATION.

This section is the same as Enabling Act, § 2B. Tenorio v. Tenorio, 1940-NMSC-002, 44 N.M. 89, 98 P.2d 838, superseded by statute, Your Food Stores, Inc. v. Village of Espanola, 1961-NMSC-041, 68 N.M. 327, 361 P.2d 950.

Lessee for construction on federal land subject to taxation. — Congress having explicitly removed bar of sovereign immunity as it applied to property belonging to United States, the immunity granted federal government by this section and N.M. Const., art. VIII, § 3 (relating to tax exempt property), clearly was not available to one who had lease to construct military housing on federal land; it was his interest that was subject to taxation. Kirtland Heights, Inc. v. Board of Cnty. Comm'rs, 1958-NMSC-066, 64 N.M. 179, 326 P.2d 672.

Policy permitting sale of handcrafted works by Indians only, valid. — The policy of the state of New Mexico and that of the city of Santa Fe, which permits Indians to display and to sell their handcrafted jewelry, arts and crafts on the grounds of the museum of New Mexico and the palace of the governors, but which prohibits any persons other than Indians from offering for sale handcrafted jewelry and specifically forbids sales by persons other than Indians within the plaza, is valid. Livingston v. Ewing, 601 F.2d 1110 (10th Cir.), cert. denied, 444 U.S. 870, 100 S. Ct. 147, 62 L. Ed. 2d 95 (1979).

Pueblo Indians have no power to alienate Indian land except to United States since the fee of such lands is in the United States subject only to right of occupancy; thus, to acquire title in Indian lands, the title both of the Indian pueblo and of the United States must be acquired. United States ex rel. Pueblo of San Ildefonso v. Brewer, 184 F. Supp. 377 (D.N.M. 1960).

Indian authorities do not act under color of state law. — Pueblos do not derive their governmental powers from state nor from United States, and consequently there was no basis for holding that conduct of pueblo civil authorities of which protestant pueblo Indians complain (allegedly subjecting plaintiffs to indignities, threats and reprisals because of their faith) was done under color of state law, statute, ordinance, regulation, custom or usage. Toledo v. Pueblo De Jemez, 119 F. Supp. 429 (D.N.M. 1954).

Field sobriety tests performed in Indian country. — Field sobriety tests are procedural, rather than substantive, in nature because they are the investigative method by which the state enforces its substantive law prohibiting DWI, and in the absence of a tribal procedure governing the administration of field sobriety tests, a state officer may investigate a possible DWI by administering field sobriety tests in Indian country. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

State officers' investigative authority in Indian country. — State officers have authority to enter Indian country to investigate off-reservation crimes committed in the officers’ presence by Indians, so long as the investigation does not infringe on tribal sovereignty by circumventing or contravening a governing tribal procedure. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

Where a state officer, who was not cross-commissioned with the bureau of Indian affairs or an Indian nation, tribe, or pueblo, observed a vehicle traveling on a county road at a high rate of speed in excess of the speed limit; the officer pursued the vehicle; the vehicle did not stop when the officer turned on the emergency lights or the siren of the police vehicle; when the vehicle crossed a bridge and entered the Navajo reservation, the driver threw a bottle containing a yellow liquid out of the passenger window; the vehicle stopped inside the Navajo reservation; defendant, who was driving the vehicle, had blood shot, watery eyes and smelled moderately of alcohol and admitted that defendant had thrown a bottle of beer out of the vehicle; defendant failed field sobriety tests; defendant was Navajo; and the Navajo Nation did not have a tribal procedure governing the administration of field sobriety tests, the traffic stop and the administration of the field sobriety tests did not infringe on the sovereignty of the Navajo Nation. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

Tribal sovereign immunity divests a state district court of subject matter jurisdiction. — Where plaintiff, a non-profit New Mexico corporation filed a complaint against defendant, a federally recognized Indian tribe organized under the federal Indian Reorganization Act (pueblo), requesting that the district court declare that the pueblo cannot restrict plaintiff’s use of an easement and right-of-way over land owned by the pueblo, but used by plaintiff and its predecessors in interest to access its property for many years and has been a public road that vested in the public as a state highway when it was retained by the United States since at least 1935, the district court erred in denying the pueblo’s motion to dismiss, because under federal law, the pueblo is immune from suit, absent a waiver of its immunity or congressional authorization of the suit, regardless of the nature of the claim giving rise to the dispute, and the pueblo properly asserted its immunity by Rule 1-012(B)(1) NMRA motion to dismiss. Hamaatsa, Inc. v. Pueblo of San Felipe, 2017-NMSC-007, rev’g 2013-NMCA-094, 310 P.3d 631.

Motion to dismiss based on tribal sovereign immunity. — Where a road was owned by the bureau of land management since 1906 and was constructed in 1935 and used by the public since that time; in 2001, the BLM conveyed the property through which the road ran to defendant in fee simple; the BLM reserved an easement along the road for use as a road by the United States for public purposes; in 2002, the BLM conveyed its interest in the road to defendant; in plaintiff’s action to declare the road a state public road, defendant moved to dismiss the complaint for lack of subject matter jurisdiction based on tribal sovereign immunity; and defendant offered no evidence of any property or governance interests in the road or that the road would threaten or affect defendant’s sovereignty, the district court did not err in dismissing defendant’s motion to dismiss because the allegations of the complaint, including the allegation that the road was a state public road, were presumed to be true for purposes of the motion and defendant failed to show any factual, legal or rational basis on which to invoke sovereign immunity. Hamaatsa, Inc. v. Pueblo of San Felipe, 2013-NMCA-094, cert. granted, 2013-NMCERT-009.

II. JURISDICTION OVER INDIANS.

A. IN GENERAL.

Infringement test reaffirmed. — The infringement test established in Williams v. Lee, 358 U.S. 217 (1959), applies to determine whether state court jurisdiction impinges on tribal sovereignty, even in cases where the rule established in Montana v. United States, 450 U.S. 544 (1981), commands the absence of tribal court jurisdiction. Hinkle v. Abeita, 2012-NMCA-074, 283 P.3d 877, cert. denied, 2012-NMCERT-006.

Where an Indian and a non-Indian were involved in a motor vehicle accident on a state highway within the exterior boundaries of an Indian Pueblo, the state district court did not have subject matter jurisdiction of a suit brought by the non-Indian against the Indian. Hinkle v. Abeita, 2012-NMCA-074, 283 P.3d 877, cert. denied, 2012-NMCERT-006.

Scope of sovereign immunity. — Without an explicit waiver, Indian tribes are immune from suit in state court, even if the suit results from commercial activity occurring off the tribal reservation. Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-NMCA-077, 148 N.M. 858, 242 P.3d 425, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Where worker was injured during the course of worker’s employment by an Indian tribe at a ski run that was operated by the Indian tribe on federal not tribal land, the Indian tribe did not waive sovereign immunity by operating the ski run off tribal land, the location of the ski run off tribal land did not confer jurisdiction to the state, and the workers' compensation judge lacked subject matter jurisdiction of worker’s claim. Antonio v. Inn of the Mountain Gods Resort & Casino, 2010-NMCA-077, 148 N.M. 858, 242 P.3d 425, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Compact added nothing to authority and jurisdiction of United States over Indian land as it existed under earlier congressional acts. Martinez v. Martinez, 1945-NMSC-009, 49 N.M. 83, 157 P.2d 484.

State disclaimed only proprietary interest in Indian lands. — Disclaimer in this section whereby people of New Mexico forever disclaimed all right and title to all lands lying within boundaries of state owned or held by any Indian or Indian tribes, right or title to which shall have been acquired through United States or any prior sovereignty, is a disclaimer of proprietary, rather than of governmental, interest. Sangre De Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973); Paiz v. Hughes, 1966-NMSC-151, 76 N.M. 562, 417 P.2d 51.

Civil jurisdiction over suit on promissory note against Indian who does not live on reservation is clearly a governmental and not a proprietary interest. Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49.

Disclaimer of proprietary rather than governmental interest did not prevent New Mexico state courts from obtaining jurisdiction over Indian residing on Indian reservation established by United States government by issuing and serving process upon Indian while he was on the reservation, such Indian having entered into a contract while off reservation and in this state; issuance and service of process was unrelated to any proprietary interest. State Sec., Inc. v. Anderson, 1973-NMSC-017, 84 N.M. 629, 506 P.2d 786.

State's constitutional disclaimer of all right and title to Indian lands applies only to a proprietary interest in such lands and does not apply to a nonproprietary intent in subjecting the United States to a state action involving a general water right adjudication. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir. 1979), cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 426 (1979).

Indian lands subject to absolute congressional jurisdiction and control. — State lacks jurisdiction over Indian lands until and unless Indian title is extinguished. Until such extinguishment of title, lands involved are subject to absolute jurisdiction and control of congress of United States. State v. Begay, 1958-NMSC-013, 63 N.M. 409, 320 P.2d 1017, cert. denied, 357 U.S. 918, 78 S. Ct. 1359, 2 L. Ed. 2d 1363 (1958), overruled to extent opinion declared exclusive federal jurisdiction over Indian lands, State v. Warner, 1963-NMSC-034, 71 N.M. 418, 379 P.2d 66.

Congress legislates for pueblos. — Congress and not state of New Mexico legislates for pueblos of New Mexico. Toledo v. Pueblo De Jemez, 119 F. Supp. 429 (D.N.M. 1954).

No state governmental power absent congressional or supreme court sanction. — Terms upon which New Mexico was admitted as state and this section left no room for claim by state to governmental power over Indians or Indian lands except where such jurisdiction has been specifically granted by act of congress or sanctioned by decisions of supreme court of United States. Your Food Stores, Inc. v. Village of Espanola, 1961-NMSC-041, 68 N.M. 327, 361 P.2d 950, cert. denied, 368 U.S. 915, 82 S. Ct. 194, 7 L. Ed. 2d 131.

State must act to accept jurisdiction granted. — Although congress did specifically act in 1953 to give its consent to state to assume jurisdiction over Indians within its boundaries, such jurisdiction is prohibited until state should amend its constitution or statute, removing any legal impediment to such assumption of jurisdiction. New Mexico has not seen fit to amend this section and so has not accepted jurisdiction over the Indians. Chino v. Chino, 1977-NMSC-020, 90 N.M. 203, 561 P.2d 476; Your Food Stores, Inc. v. Village of Espanola, 1961-NMSC-041, 68 N.M. 327, 361 P.2d 950, cert. denied, 368 U.S. 915, 82 S. Ct. 194, 7 L. Ed. 2d 131.

Test for a dependent Indian community. — To determine if a particular tract of land is a dependent Indian community, the land in question must have been set aside by the federal government for the use of the Indians as Indian land and the land must be under federal superintendence. Congress or the executive must have taken some explicit action to create Indian country, and the set-aside requirement requires more than a transfer of land for Indian use, it requires that the transfer of land be for the purpose of a long-term settlement by an Indian community. State v. Steven B., 2015-NMSC-020, rev’g 2013-NMCA-078, 306 P.3d 509 and No. 32,136, mem. op. N.M. Ct. App. April 9, 2013, and overruling State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796.

Parcel Three of Fort Wingate was not set aside for Indians as Indian land. — In a consolidated appeal, where respondents were both enrolled members of the Navajo Nation who were accused of criminal offenses committed on Parcel Three of Fort Wingate, the district court erred in concluding that it lacked jurisdiction over respondents based on the court’s conclusion that the crimes were committed on Indian land. The New Mexico supreme court held that the crimes did not occur within Indian country as defined in the Indian Country Crimes Act, 18 U.S.C. §§ 1151 to 1170. The land in question was transferred by congress, through Public Law 567, to the department of interior for use by the bureau of Indian affairs for the primary purpose of educating children. Public Law 567 demonstrates that congress did not set aside Parcel Three of Fort Wingate for long-term settlement by an Indian community. Parcel Three was therefore not located in Indian country for purposes of state criminal jurisdiction. State v. Steven B., 2015-NMSC-020, rev’g 2013-NMCA-078, 306 P.3d 509 and No. 32,136, mem. op. N.M. Ct. App. April 9, 2013, and overruling State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796.

Jurisdiction over federal land set aside for Indian use. — Where a child, who was an enrolled member of the Navajo Nation, was charged with battery upon a school employee at a high school that was located on federal land set aside by congress for use by the bureau of Indian affairs; the BIA controlled all occupancy of the land, operated the high school and an elementary school on the land, primarily for the education of Indian children, and provided housing on the land for students and school employees; a school board elected at Navajo Nation elections established school policies, curriculum and budgets; the principals of the schools were BIA employees; law enforcement on the land was provided by the Navajo Nation, the county sheriff and state police; utility and fire protection services were not provided to any Indian entity; the Navajo Nation prosecuted misdemeanors that occurred at the schools in the Navajo Nation courts; in State v. Dick, 1999-NMCA-062,127 N.M. 382, 981 P.2d 796, the court held that the state did not have jurisdiction to prosecute a criminal defendant within the land, because the land was a dependent Indian community; and in United States v. M.C., 311 F. Supp. 2d 1281 (D.N.M. 2004), the court held that the land was not a dependent Indian community, because the school community was not located on tribal lands or land held in trust for Native Americans, the state did not have jurisdiction to prosecute the battery case because the court of appeals, following Dick, held that the schools were a "dependent Indian community" and the land was, therefore within "Indian country" as defined in 18 U.S.C. § 1151. State v. Steven B., 2013-NMCA-078, cert. granted, 2013-NMCERT-007.

Federal authority over Indians not exclusive. — Reservation is not a completely separate entity existing outside of political and governmental jurisdiction of New Mexico. State has some jurisdiction, and there is not and never has been "exclusive federal authority." Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

We reject broad assertion that federal government has exclusive jurisdiction over tribe for all purposes. Even on reservations, state laws may be applied unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973).

Test of validity of state action is whether such action interferes with right of reservation Indians to make their own laws and be ruled by them. Test is not exclusive jurisdiction of the Indians or of the United States over Indian reservation lands. Paiz v. Hughes, 1966-NMSC-151, 76 N.M. 562, 417 P.2d 51.

Political nature of Indian tribes. — Indian tribes are distinct political entities with right to self-government, having exclusive authority within their territorial boundaries and not subject to laws of state in which they are located nor to federal laws except where applicability of federal laws or jurisdiction of courts is expressly conferred by federal legislation. Your Food Stores, Inc. v. Village of Espanola, 1961-NMSC-041, 68 N.M. 327, 361 P.2d 950, cert. denied, 368 U.S. 915, 82 S. Ct. 194, 7 L. Ed. 2d 131.

Limits of state jurisdiction are reservation self-government and federal law. — Even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law; neither Navajo tribal self-government nor rights granted or reserved by federal law would be in conflict with state's operation and exclusive control of schools located on reservation lands, leased by district with approval of both Navajo tribe and secretary of the interior. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

Indian rights to sue and be sued in state courts. — In matters not affecting either the federal government or tribal relations, an Indian has the same status to sue and be sued in state courts as any other citizen, but when Indians do invoke jurisdiction of state courts, they are bound by decisions of these courts and cannot be heard to complain of adjudication of all claims and issues which can be and are properly asserted by or against them in suits which they have initiated. Paiz v. Hughes, 1966-NMSC-151, 76 N.M. 562, 417 P.2d 51.

In matters not affecting either federal government or tribal relations, an Indian has same status to sue and be sued in state courts as any other citizen. Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49.

Criteria for deciding whether interference with Indian self-government. — Criteria to be considered to determine whether or not application of state law would infringe upon self-government of Indians are: (1) whether parties are Indians or non-Indians, (2) whether cause of action arose within Indian reservation and (3) what is nature of interest to be protected. Chino v. Chino, 1977-NMSC-020, 90 N.M. 203, 561 P.2d 476.

State should not fill vacuums in Indian law. — For state to move into areas where Indian law and procedure have not achieved degree of certainty of state law and procedure would deny Indians the opportunity of developing their own system. Chino v. Chino, 1977-NMSC-020, 90 N.M. 203, 561 P.2d 476.

B. SPECIFIC CASES.

City and county jurisdiction. — City and board of commissioners may not exercise claimed authority over lands if they would thereby interfere with self-government of the Tesuque pueblo or impair a right granted, reserved or preempted by congress. Sangre De Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973).

Support obligations properly within state court jurisdiction. — Enforcement of the former New Mexico Revised Uniform Reciprocal Enforcement of Support Act (now Uniform Interstate Family Support Act, Chapter 40, Article 6A NMSA 1978) did not interfere with internal self-government of Zuni tribe or contravene an express federal grant or reservation by placing jurisdiction of actions to enforce support obligations in district courts of New Mexico rather than tribal courts, as support obligation here arises from marital relationship between appellant and appellee. Natewa v. Natewa, 1972-NMSC-049, 84 N.M. 69, 499 P.2d 691.

Criminal prosecutions against non-Indians. — Exercise of jurisdiction by state courts over criminal offenses on Indian reservation lands, by non-Indians against non-Indians and where no Indian property is involved, would not affect authority of tribal counsel over reservation affairs and therefore would not infringe on right of Indians to govern themselves. State v. Warner, 1963-NMSC-034, 71 N.M. 418, 379 P.2d 66.

Enforcement of compulsory school attendance laws. — It has long been policy of federal government to encourage and support states in providing public education to Indian children whether they live on or off a reservation, and secretary of interior has been authorized to permit states to enforce penalties of state compulsory school attendance laws against Indian children and their parents, if tribe adopts resolution consenting to such enforcement. Navajo tribal code has given consent to application of state compulsory school attendance laws to Indians of Navajo tribe and their enforcement on lands of reservation wherever an established public school district lies or extends within such reservation. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

Enforcement of real property laws. — Action for forcible entry and unlawful detainer deals directly with question of occupancy and ownership of land, and when land lies within a reservation, enforcement of owner's rights to such property by state court would infringe upon governmental powers of tribe, whether those owners are Indians or non-Indians. Civil jurisdiction of lands within reservation remains with tribe despite fact that tribal law makes no provision for a wrongful entry and detainer action. Chino v. Chino, 1977-NMSC-020, 90 N.M. 203, 561 P.2d 476.

Easement does not confer criminal jurisdiction. — Where federal government's permission for state to construct highway across Indian reservation was merely an easement, beneficial title in Indians was not extinguished, and state did not have criminal jurisdiction over Indian driving an automobile on such highway. State v. Begay, 1958-NMSC-013, 63 N.M. 409, 320 P.2d 1017, cert. denied, 357 U.S. 918, 78 S. Ct. 1359, 2 L. Ed. 2d 1363, overruled on another point, State v. Warner, 1963-NMSC-034, 71 N.M. 418, 379 P.2d 66.

Criminal jurisdiction in land owned by Indian tribe. — Where defendant struck and killed a highway worker while defendant was driving under the influence of alcohol; defendant was an enrolled member of the Navajo Nation; the Navajo Nation owned the land upon which the accident occurred in fee simple title, paid county property taxes on the land, and used the land as "chapter land" for the development of a chapter house, which was a political subdivision of the Navajo Nation; and defendant did not present evidence to show that the accident site was within the boundaries of the Navajo Nation as they existed on the date of the accident, that the federal government designated the land as Indian country or transferred the land to Indians for use by Indians, that the land was a dependent Indian community, or that the land was within the boundaries of the Navajo Nation as established by the 1868 treaty between the Navajo Nation and the United States or was once an Indian allotment, the accident did not occur within Indian country as defined in the Indian Country Crimes Act, 18 U.S.C. §§1151 to 1170 (2010) and the state district court had jurisdiction over the case. State v. Vandever, 2013-NMCA-002, 292 P.3d 476, cert. denied, 2012-NMCERT-011.

State may adjudicate water rights. — This section does not prohibit state adjudication of Indian water rights since state would not be asserting a proprietary interest in Indian lands and since state can exercise power over Indians where, as in this case, federal government has specifically granted it. State ex rel. Reynolds v. Lewis, 1976-NMSC-001, 88 N.M. 636, 545 P.2d 1014.

Service proper on nonreservation Indians outside reservation. — Where nonreservation Indians were involved and service of process was not made within an Indian reservation, service of process upon these Indians on privately leased lands would not affect authority of tribal Indians over reservation affairs or impinge on right of reservation Indians to make their own laws or be governed by them. Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49.

III. TAXATION OF INDIANS.

Permanent improvements on reservation immune from property tax. — Permanent improvements on tribe's tax-exempt land would certainly be immune from state's ad valorem property tax. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973).

All reservation lands and property exempt. — This section clearly precludes state from taxing Indian lands and Indian property on the reservation. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

Indian income earned on reservation. — New Mexico may not tax income and gross receipts of Indians residing on reservation when income and gross receipts involved are derived solely from activities within reservation. Hunt v. O'Cheskey, 1973-NMCA-026, 85 N.M. 381, 512 P.2d 954, cert. quashed, 85 N.M. 388, 512 P.2d 961.

State may tax Indian property outside reservation. — By virtue of Enabling Act (see Pamphlet 3), federal government permitted state to tax, as other lands and property are taxed, any lands and other property outside of Indian reservation owned or held by any Indian. Mescalero Apache Tribe v. Jones, 1971-NMCA-130, 83 N.M. 158, 489 P.2d 666, cert. denied, 83 N.M. 151, 489 P.2d 659 (1971), aff'd in part, rev'd in part on account of immunity from tax afforded by Indian Reorganization Act (25 U.S.C. § 465), 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973).

Unless Congress forbids it, New Mexico retains right to tax all Indian land and Indian activities located or occurring outside of reservation. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973).

Implied congressional consent to reservation Indians acquiring property outside reservation. — This section's reservation to state of limited power to tax lands and property of Indians outside of reservations implies consent of congress to acquisition by reservation Indians of land and property outside of an Indian reservation. Trujillo v. Prince, 1938-NMSC-024, 42 N.M. 337, 78 P.2d 145.

Taxing non-Indians' activities on Indian land does not violate this section, which is a disclaimer of proprietary interest, not of governmental control. G.M. Shupe, Inc. v. Bureau of Revenue, 1976-NMCA-040, 89 N.M. 265, 550 P.2d 277, cert. denied, 89 N.M. 321, 551 P.2d 1368.

Private non-Indian corporations cannot escape obligation to pay state taxes by locating their property on Indian reservations. Nothing forbids imposition of such a tax since it does not in any way infringe on right of reservation Indians to make their own laws and be ruled by them. Although the land itself cannot be taxed, the non-Indian property, which does not belong to and may not be acquired by United States or reserved for its use, can be. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

The gross receipts tax, Section 7-9-4 NMSA 1978, may be constitutionally imposed on a contractor doing work on an Indian reservation, where there is no imposition on the sovereignty of the United States or infringement of the Indian tribe's right to self-government. Tiffany Constr. Co. v. Bureau of Revenue, 1981-NMSC-057, 96 N.M. 296, 629 P.2d 1225, aff'g in part, rev'g in part, 1980-NMCA-115, 96 N.M. 304, 629 P.2d 1233.

Claimant of adverse possession still must prove payment of taxes. — In suit by United States as guardian of pueblo of Taos to quiet title to certain lands granted pueblo Indians, such lands were not exempt from taxation so as to relieve claimants by adverse possession from proving, under Pueblo Lands Act (June 7, 1924, 43 Stat. 636, ch. 331, §§ 4 and 5), their payment of all taxes on the lands claimed which were assessed and levied in conformity with New Mexico laws. United States v. Wooten, 40 F.2d 882 (10th Cir. 1930).

No violation as to foreign corporations. — Foreign corporations are not taxed at higher rate than domestic corporations. 1912 Op. Att'y Gen. No. 12-883.

Indians are subject to road tax for benefit of roads outside their lands. 1915 Op. Att'y Gen. No. 15-1411.

State's power to tax federal property. — State may not impose taxes upon assets or property of any agency or branch of federal government, with the exception of real property, without consent of congress. 1957 Op. Att'y Gen. No. 57-189.

Severance tax applicable to federal areas. — Unless state has relinquished its legislative jurisdiction over federal areas, severance tax (Sections 7-26-1 to 7-26-9 NMSA 1978) is applicable thereto. 1951 Op. Att'y Gen. No. 51-5353.

Criminal prosecutions against non-Indians. 1934 Op. Att'y Gen. No. 34-779.

State may not condemn Indian lands. — Absolute sovereignty of Pueblo Indian lands having been ceded to United States, state may not condemn such lands for public highways. 1922 Op. Att'y Gen. No. 22-3255.

Jurisdiction over state offenses committed by Indians. — State courts have jurisdiction in offenses against law of state committed by pueblo Indians. 1914 Op. Att'y Gen. No. 14-1237.

No service of process on reservations. — Navajo Indian lands are outside of territorial jurisdiction of state courts, and therefore any attempt to make service of process on Navajo defendant within territorial limits of said lands would be a useless act. 1958 Op. Att'y Gen. No. 58-213.

No service of process without permission of Indian agent. — Officer of state cannot serve subpoena or arrest person on Indian reservation without permission of Indian agent. In such cases agent should be notified and should deliver or assist in delivering fugitive from justice to proper state authority. 1934 Op. Att'y Gen. No. 34-779.

Game laws apply to non-Indians everywhere. — State has jurisdiction to prosecute non-Indians violating hunting and fishing laws even though such violation occurs on Indian reservation. 1954 Op. Att'y Gen. No. 54-6041.

Game laws apply to Indians outside reservations absent special rights. — If there is no treaty or agreement between United States and Indian tribe recognizing or granting rights to Indians to hunt and fish outside Indian country, an Indian hunting or fishing in New Mexico outside Indian country is subject to laws of state the same as any other person. 1954 Op. Att'y Gen. No. 54-6041.

Game laws do not apply to Indians on reservations. — An Indian hunting or fishing on reservation not his own is still an Indian in Indian country and is exempt from game laws of state. 1954 Op. Att'y Gen. No. 54-6041.

Game laws apply if items transported elsewhere. — As to possession of hides, skins, pelts, heads and game animals, birds or fish or parts thereof, in the case of such items taken by an Indian on a reservation and transported elsewhere, state would have absolutely no jurisdiction whatsoever. 1954 Op. Att'y Gen. No. 54-6041.

State cannot regulate reservation gas systems. — Indians acquiring gas resources from sources wholly upon Indian reservations are not public utilities subject to regulation by public service commission of New Mexico. 1953 Op. Att'y Gen. No. 53-5690.

Indians operating gas distribution system wholly on reservation regardless of manner in which they acquire gas on reservation are not subject to laws of state in relation to regulation as public utilities. 1953 Op. Att'y Gen. No. 53-5690.

Indian rights to sue and be sued in state courts. — Civil courts of New Mexico are open to Indians as are federal courts should they feel that injunctive relief is necessary against members or employees of state highway commission [state transportation commission] for violation of their property rights. 1953 Op. Att'y Gen. No. 53-5632.

Right to vote and run in school elections. — If isolated segment of reservation upon which Indian resides was not specifically excluded from area covered by school district, the Indian, if otherwise qualified and registered, is entitled to vote in school election in precinct in which he lives, and he is also entitled to be a candidate and to hold office of member of school board of school district in which he resides. 1955 Op. Att'y Gen. No. 55-6087.

Inclusion of Indian lands in watershed district must comply with law. — Federal, reservation and state lands may be included in a watershed district only if officials charged with administering such lands specifically agree to inclusion of lands in the district. It would also be necessary that officials administering lands in question also agree to put up a pro rata share of district's budget based on value of lands included in district because the assessment is to be uniform throughout district. This amount may be difficult of computation since in most counties property exempt from taxation is not carried on tax rolls and the value of real property as indicated on tax rolls is a determining factor in computing assessment. 1961 Op. Att'y Gen. No. 61-87.

Property of Indian trader. — Personal property and improvements belonging to Indian trader and located in and upon Indian reservation, which may be removed by such trader on leaving the reservation, are subject to general property tax, but it is otherwise if such improvements become part of the land. 1935 Op. Att'y Gen. No. 35-875.

No tax on reservation gas pumps unless congress allows. — Service station on Apache reservation, operated by Mescalero Apache tribal enterprises, is liable for payment of New Mexico motor fuel tax (64-26-2 and 64-26-2.1, 1953 Comp., now repealed) by virtue of congressional authorization (4 U.S.C. § 104). 1957 Op. Att'y Gen. No. 57-263.

Land held under ordinary patent may be taxed. — Land held by pueblo Indian under ordinary patent from United States is taxable. 1915 Op. Att'y Gen. No. 15-1709.

Law reviews. — For note, "State Regulation of Oil and Gas Pools on State, Federal, Indian and Fee Lands," see 2 Nat. Resources J. 355 (1962).

For article, "The Bill of Rights and American Indian Tribal Governments," see 6 Nat. Resources J. 581 (1966).

For student symposium, "Constitutional Revision - Indians in the New Mexico Constitution," see 9 Nat. Resources J. 466 (1969).

For article, "Indians - Civil Jurisdiction in New Mexico - State, Federal and Tribal Courts," see 1 N.M. L. Rev. 196 (1971).

For comment, "Indians - State Jurisdiction Over Real Estate Developments on Tribal Lands," see 2 N.M. L. Rev. 81 (1972).

For article, "The Indian Tax Cases - A Territorial Analysis," see 9 N.M. L. Rev. 221 (1979).

For article, "Survey of New Mexico Law, 1979-80: Indian Law," see 11 N.M. L. Rev. 189 (1981).

For article, "Tremors: Justice Scalia and Professor Clinton Re-Shape the Debate over the Cross-Boundary Enforcement of Tribal and State Judgments", see 34 N.M. L. Rev. 239 (2004).

For article, "A Different Kind of Symmetry", see 34 N.M. L. Rev. 263 (2004).

For article, "Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders", see 34 N.M. L. Rev. 297 (2004).

For article, "Enforcement of Tribal Court Tax Judgments Outside of Indian Country: The Ways and Means", see 34 N.M. L. Rev. 339 (2004).

For article, "Full Faith and Credit, Comity, or Federal Mandate? A Path That Leads to Recognition and Enforcement of Tribal Court Orders, Tribal Protection Orders, and Tribal Child Custody Orders", see 34 N.M. L. Rev. 381 (2004).

For article, "Federal Courts, State Power, and Indian Tribes: Confronting the Well-Pleaded Complaint Rule", see 35 N.M. L. Rev. 1 (2005).

For note, "State Fishing and Game Regulations Do Not Apply on Tribally Owned Reservation Land", see 23 Nat. Resources J. 4871 (1983).

For note, "Non-Lease Agreements Available for Indian Mineral Development," see 24 Nat. Resources J. 195 (1984).

For comment, "Administration of Reserved and Non-Reserved Water Rights on an Indian Reservation: Post-Adjudication Questions on the Big Horn River," see 32 Nat. Resources J. 681 (1992).

For article, "Tribal Authority Under the Clean Air Act: How Is It Working?", see 44 Nat. Resources J. 213 (2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Indians § 58 et seq.; 71 Am. Jur. 2d State and Local Taxation §§ 183, 221, 223, 235, 236.

Constitutional exemption from taxation as subject to legislative regulation respecting conditions of its assertion, 4 A.L.R.2d 744.

Leasehold estate in public property as subject of tax, 54 A.L.R.3d 402.

Taxation of property owned by public body but not devoted to public or governmental use, 54 A.L.R.3d 402.

Proof and extinguishment of aboriginal title to Indian lands, 41 A.L.R. Fed. 425.

Effect of federal assault statute (18 USCS § 113) on prosecutions under Assimilative Crimes Act (18 USCS § 13) making state criminal laws applicable to acts committed on federal reservations, 57 A.L.R. Fed. 957.

42 C.J.S. Indians §§ 30, 69, 70, 131; 84 C.J.S. Taxation §§ 27, 207, 212, 252, 258.