Act of August 15, 1953, c. 505, §§ 6 and 7, 67 Stat. 590, 28 U.S.C.A. § 1360 note. New Mexico has not seen fit to amend section 2 of Article XXI of the Constitution and has not accepted jurisdiction over the Indians. Appellee relies upon Anderson v. Brule County, 67 S.D. 308, 292 N.W. 429, holding that the provisions of an enabling act identical with that of New Mexico were inserted to permit supreme powers by the United States to fulfill its obligations to the Indians rather than to withhold power from the states to exercise jurisdiction over Indian reservations, and that it was intended that the states should exercise limited jurisdiction over such Indian reservations unless Congress specifically acted on the subject. That court sustained the right of the State to include Indian lands within the corporate limits of a municipality.
"Even if such lands be deemed part of an Indian reservation, the property of persons other than Indians situated thereon might be subjected to taxation by the laws of this state." In the case of Anderson v. Brule County, 67 S.D. 308, 313, 292 N.W. 429, 431, the court says regarding this matter: "That these and similar provisions in other enabling acts and constitutions of the several states were inserted for the purpose of maintaining ample supreme powers on the part of the United States to permit it to fully respond to its legal and moral obligations to the Indians rather than for the purpose of withholding power from the states to exercise jurisdiction over the reservations, and that it was intended the states should exercise a limited jurisdiction over Indian reservations within their exterior boundaries
Under this state of the record, such alleged defense will be deemed to have been waived, so far as this appeal is concerned, and cannot be considered by the court. State v. Steensland, 56 S.D. 534, 229 N.W. 395; Anderson v. Brule County, 67 S.D. 308, 292 N.W. 429; Parsons v. City of Sioux Falls, 65 S.D. 145, 272 N.W. 288; Goetz v. Gurney, 50 S.D. 337, 210 N.W. 155; Minnehaha Land Investment Co. v. Consolidated Sand Stone Co., 64 S.D. 48, 264 N.W. 198. It is further contended by appellant that the trial court committed error in permitting the witness, Fox, to testify as to what type of library was referred to in the plans and specifications compiled for use in the construction of the Memorial Building.