#28738-a-DG

2019 S.D. 33

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

TIMOTHY STATHIS, Plaintiff and Appellant,

v.

MARTY INDIAN SCHOOL, a

South Dakota non-profit corporation;

ELK SOLDIER also known as GARY

DRAPEAU, SR.; GLENN DRAPEAU;

GALENA DRAPEAU; SARA W.

ZEPHIER; SARAH R. ZEPHIER;

STEPHANIE COURNOYER; JULIE

BLACKMOON-WRIGHT; and JOHN

AND/OR JANE DOES ONE (1)

THROUGH FIVE (5), Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

CHARLES MIX COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE BRUCE V. ANDERSON

Judge

* * * *

JAMES D. TAYLOR

Mitchell, South Dakota Attorney for plaintiff and 

appellant.

REBECCA L. KIDDER of

Fredericks, Peebles & Morgan, LLP

Rapid City, South Dakota Attorneys for defendants and 

appellees.

* * * * 

ARGUED ON APRIL 30, 2019

OPINION FILED 06/19/19
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GILBERTSON, Chief Justice

[¶1.] Timothy Stathis was employed as the high school principal at the 

Marty Indian School (MIS) in Marty, South Dakota. In late 2017, a series of 

incidents between Stathis and members of the MIS school board and community of 

Marty led to the termination of Stathis’s employment. Stathis sued MIS and other 

involved parties in state court for breach of contract, breach of settlement 

agreement, wrongful termination, libel, and slander and requested punitive 

damages. The circuit court dismissed Stathis’s complaint on the grounds of tribal 

sovereign immunity, immunity of tribal officials and employees, federal preemption, 

and infringement of tribal sovereignty. We affirm the circuit court’s dismissal solely

on a lack of subject matter jurisdiction based on federal preemption.

Facts and Procedural History

[¶2.] On May 8, 2017, Stathis entered into an employment contract with 

MIS to continue to serve as its high school principal. MIS is located in the town of 

Marty, South Dakota on the Yankton Sioux Indian Reservation. The school was 

chartered by the Yankton Sioux Tribe, a federally recognized Indian Tribe. The 

school operates under a constitution that was approved by the Yankton Sioux Tribal 

Business and Claims Committee on November 6, 2013. The constitution designates 

MIS as “a legal entity of the Yankton Sioux Tribe, from whom Marty Indian School, 

Inc. has been delegated authority to operate and maintain the Marty Indian 

School.” It also states that MIS was “created for the purpose of maintaining and 

continually upgrading the educational process for the students of the Marty Indian 

School.”
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[¶3.] Stathis’s contract with MIS stated that his term of employment would 

begin around August 1, 2017, and end around June 30, 2018. A provision of the 

contract entitled “SCHOOL LAW” provided that:

The [MIS] School Board is an entity of the Yankton Sioux Tribe, 

and is not bound by the laws of the State of South Dakota. The 

By-laws and Policies and Procedures Manual of the School 

Board shall be binding and controlling on the parties and shall 

control the conduct of the operation of the school. Any matter by 

[sic] controlled by the By-laws and Policies and Procedures will 

be controlled by the laws of the State of South Dakota. If any 

ambiguity or question as to whether the laws of the State of 

South Dakota or the By-laws and Policies and Procedures 

Manual of the School Board is controlling shall arise, the By-law 

and Policies and Procedures of the School board shall be binding 

and controlling. The exceptions to South Dakota School law 

includes, but is not limited to, the following matters, to wit:

Administrator or Supervisor Retirement, School Calendar, 

Continuing Contract and Tenure, and Conflict of Interest. 

Nothing herein shall be construed to constitute and [sic] 

acceptance by the School Board of the jurisdiction of South 

Dakota courts. 

[¶4.] As part of his duties as principal, Stathis was required to administer 

school improvement grants issued by the Bureau of Indian Education. This 

involved granting monetary bonuses to faculty to incentivize improvement in both 

faculty and student performance. While employed at MIS, Stathis developed a set 

of criteria to assist in awarding these bonuses. These criteria and the awarding of 

bonuses became the subject of several disputes between Stathis, MIS faculty, the 

MIS school board, and members of the Marty community.

[¶5.] On November 15, 2017, opposition to Stathis’s handling of monetary 

bonuses reached a boiling point. On that date, Elk Soldier (also known as Gary 

Drapeau, Sr.), a member of MIS faculty, arranged a sit-in demonstration at the MIS 

library for students and other community members to protest Stathis’s actions. The 
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exact nature of the participants’ grievances with Stathis is somewhat unclear from 

the record. As the gathering grew in size, members of the MIS school board, 

including Appellees Julia Blackmoon-Wright, Sarah W. Zephier, and Stephanie 

Cournoyer, began to arrive to assess the situation. Blackmoon-Wright sat in the

front row of the gathering and stated, “I am a School Board Member, I am here to 

listen to what you want to say.” Sarah W. Zephier, the president of the school 

board, then took control of the gathering. 

[¶6.] President Zephier encouraged attendees of the gathering to voice their 

specific complaints regarding Stathis. This led to what Stathis characterizes as “an 

impromptu open and public meeting about Stathis between students, the entire 

Marty Indian School Board, members of the public, and Appellees John and/or Jane 

Does One (1) through Five (5).” The impromptu meeting continued for 

approximately two hours, at which point it was announced over the school’s public 

address system that there would be an emergency executive session of the school 

board. The school board commenced a meeting in private, then called Stathis before 

the board to answer questions, and then excused Stathis from the meeting so the 

school board could meet in private. 

[¶7.] Later that evening, Stathis received an email from the MIS 

superintendent stating that he had been suspended from his employment for ten 

days, beginning on November 16, 2017. Stathis later determined that he would not 

be paid during the term of his suspension. He filed a written grievance with the 

school board regarding his suspension without pay and the events of November 15-

16, 2017. On November 29, 2017, after receipt of the grievance and several 
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discussions, the school board reinstated Stathis and stated that he would be repaid 

his previously withheld wages. Stathis returned to work on November 30, 2017.

[¶8.] On December 1, 2017, another incident involving Elk Soldier and 

Stathis occurred. That morning, Elk Soldier called Yankton Sioux Tribal Police to 

report that there had been a physical fight in the MIS school office between Stathis 

and another MIS staff member. When tribal police arrived at the scene, Stathis 

informed them that no fight had actually occurred. Elk Soldier later claimed that 

he had wrongly believed a fight had occurred between Stathis and another staff 

member. Later that day, both Elk Soldier and another MIS staff member, Appellee 

Galena Drapeau, submitted letters of resignation to the MIS superintendent. 

President Zephier then convened a meeting of the school board to discuss Stathis’s 

employment. Stathis was not present. At the end of the meeting, the school board 

advised Stathis that his contract had been terminated. 

[¶9.] Stathis claimed that the school board informed him that the remaining 

salary under his contract would be paid in full. On December 12, 2017, Stathis 

returned to the school and was given a check that school officials claimed to be the 

remaining amount owed to Stathis under his contract minus taxes and other 

withholdings. Shortly after receiving the check, however, Stathis was ordered by 

the MIS superintendent to surrender the check back to the school or a stop payment 

order would be entered. After Stathis was informed of this decision, a tribal police 

officer was called to the school and escorted Stathis from the MIS campus.

[¶10.] Stathis claims to have made repeated demands for the payment of the 

balance of his contract. On December 20, 2017, the school board met again and 
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decided to pay Stathis $1,500 as a complete settlement of the balance owed on 

Stathis’s contract. The school board also opted to pay Stathis’s salary for the two 

weeks he was suspended. On January 12, 2018, Stathis received a $1,500 

settlement check and a $2,916 check for his salary during the two-week suspension. 

Stathis elected to not accept the $1,500 check. He later filed two written grievances 

with the school board, but claimed that both were unanswered. 

[¶11.] Stathis sued the Appellees in this action in circuit court for breach of 

contract, breach of settlement agreement, wrongful termination, libel, and slander, 

and requested punitive damages arising from the termination of his employment 

contract with MIS. Appellees Elk Soldier (a.k.a. Gary Drapeau, Sr.), Glenn 

Drapeau, and Galena Drapeau were employees of MIS at the time of Stathis’s 

employment. Appellees President Zephier, Sarah R. Zephier, Stephanie Cournoyer, 

and Julie Blackmoon-Wright were members of the MIS school board at the time of 

Stathis’s employment. Appellees John and/or Jane Does one through five remain 

unknown, but are presumed to be employees, school board members, or students at 

MIS who were involved at the public meeting regarding Stathis. All named 

Appellees (defendants) are members of the Yankton Sioux Tribe. 

[¶12.] Appellees moved to dismiss Stathis’s complaint under SDCL 15-6-

12(b)(1) (lack of subject matter jurisdiction), SDCL 15-6-12(b)(2) (lack of personal 

jurisdiction), SDCL 15-6-12(b)(5) (failure to state a claim on which relief can be 

granted), and SDCL 15-6-12(b)(6) (failure to join a party). The Appellees claimed 

the circuit court did not have jurisdiction to hear Stathis’s claims on the basis of 

tribal sovereign immunity, immunity of tribal officials and employees, federal 
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preemption, and infringement of tribal sovereignty. A hearing was held on the 

motion on July 9, 2018. The circuit court granted the motion on the basis of tribal 

sovereign immunity, immunity of tribal officials and employees, federal preemption, 

and infringement of tribal sovereignty. The court declined to rule on the issue of 

failure to join a necessary and indispensable party under SDCL 15-6-12(b)(6). 

Stathis appeals, claiming the circuit court erred in granting the motion to dismiss 

on the above bases. 

Standard of Review

[¶13.] “A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency 

of the pleading, not the facts which support it.” Mordhorst v. Dakota Truck 

Underwriters & Risk Admin. Servs., 2016 S.D. 70, ¶ 8, 886 N.W.2d 322, 323

(quoting Nygaard v. Sioux Valley Hosps. & Health Sys., 2007 S.D. 34, ¶ 9, 

731 N.W.2d 184, 190). “Therefore, we review a circuit court’s decision to grant such 

a motion de novo.” Id. “For purposes of the pleading, the court must treat as true 

all facts properly pleaded in the complaint and resolve all doubts in favor of the 

pleader.” Id. ¶ 8, 886 N.W.2d at 323-24 (quoting Nygaard, 2007 S.D. 34, ¶ 9, 

731 N.W.2d at 190). However, “the court is free to ignore legal conclusions, 

unsupported conclusions, unwarranted inferences, and sweeping legal conclusions 

cast in the form of factual allegations.” Id. ¶ 8, 886 N.W.2d at 324 (quoting 

Nygaard, 2007 S.D. 34, ¶ 9, 731 N.W.2d at 190). Jurisdictional issues are also 

reviewed de novo. Hutterville Hutterian Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 

18, 791 N.W.2d 169, 174. 
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Analysis & Decision

[¶14.] Stathis’s challenge to the circuit court’s grant of the Appellees’ motion 

to dismiss under SDCL 15-6-12(b)(1) raises an underlying question whether the 

circuit court, and therefore this Court, has subject matter jurisdiction to entertain 

the legal issues presented in this case. “Subject matter jurisdiction is a ‘a court’s 

competence to hear and determine cases of the general class to which proceedings in 

question belong; the power to deal with the general subject involved in the action;’ 

and ‘deals with the court’s competence to hear a particular category of cases.’” In re 

Heupel Family Revocable Tr., 2018 S.D. 46, ¶ 25, 914 N.W.2d 571, 578 (quoting 

Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 14, 729 N.W.2d 335, 342). 

“Subject matter jurisdiction is conferred solely by constitutional or statutory 

provisions.” Lippold v. Meade Cty. Bd. of Commr’s, 2018 S.D. 7, ¶ 17, 906 N.W.2d 

917, 921-22 (quoting Lake Hendricks Improvement Ass’n v. Brookings Cty. Planning 

& Zoning Comm’n, 2016 S.D. 48, ¶ 15, 882 N.W.2d 307, 312). “[S]ubject matter 

jurisdiction can neither be conferred on a court, nor denied to a court by the acts of 

the parties or the procedures they employ.” Id. (quoting Cable v. Union Cty. Bd. of 

Cty. Comm’rs, 2009 S.D. 59, ¶ 20, 769 N.W.2d 817, 825). “The test for determining 

jurisdiction is ordinarily the nature of the case, as made by the complaint, and the 

relief sought.” Id. (quoting State v. Phipps, 406 N.W.2d 146, 148 (S.D. 1987)).

[¶15.] The nature of this case presents the question whether a non-Indian 

may sue a tribal entity, tribal employees, and tribal members in state court for 

contractual and other civil claims which arose from conduct that occurred on the 

reservation. “There are two distinct barriers to a state’s assumption of jurisdiction 
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over reservation Indians: ‘infringement’ and ‘preemption.’” Sage v. Sicangu Oyate 

Ho, Inc., 473 N.W.2d 480, 481 (S.D. 1991). “Although ‘either barrier, standing 

alone, can be a sufficient basis for holding state law inapplicable to activity 

undertaken on the reservation or by tribal members,’ we consider them together 

because ‘they are related.’” Id. (quoting White Mountain Apache Tribe v. Bracker, 

448 U.S. 136, 143, 100 S. Ct. 2578, 2583, 65 L. Ed. 2d 665 (1980)).

[¶16.] We have described the concept of infringement as follows:

Infringement refers to the original sovereignty of Indian tribes 

apart from the recognition of same by the federal government. 

“It must always be remembered that the various Indian tribes 

were once independent and sovereign nations, and that their 

claim to sovereignty long predates that of our own Government.” 

McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 172, 93 S.

Ct. 1257, 1262, 36 L. Ed. 2d 129 (1973). Therefore, even when 

an assertion of state jurisdiction over reservation Indians is not 

expressly preempted by federal law to the contrary, “the 

question has always been whether the state action infringed on 

the right of reservation Indians to make their own laws and be 

ruled by them.” Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 

269, 271, 3 L. Ed. 2d 251 (1959).

Id. In contrast, “[t]he [federal] preemption inquiry ‘is not dependent on mechanical 

or absolute conceptions of state or tribal sovereignty,’ but calls for ‘a particularized 

inquiry into the nature of the state, federal, and tribal interest at stake, an inquiry 

designed to determine whether, in the specific context, the exercise of state 

authority would violate federal law.’” Id. (quoting Bracker, 448 U.S. at 145, 100 S.

Ct. at 2584).

[¶17.] This Court has previously analyzed infringement and preemption 

principles in a context similar to the case at hand. In Sage, Sage, a non-Indian, was 

continuously employed as principal of the St. Francis Indian School, located on the 
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Rosebud Sioux Reservation, from 1979 to 1990. 473 N.W.2d at 481. When the 

school notified Sage of its final decision not to renew his contract for the 1990-91 

school year, Sage filed a notice of appeal in state court pursuant to a provision of 

state law. Id. The school moved to dismiss the appeal on the ground that the 

circuit court lacked subject matter jurisdiction. Id. The circuit court granted the 

motion, and we affirmed. Id. at 481, 484. 

[¶18.] In analyzing Sage’s appeal, we stated that “assertions of state subject

matter jurisdiction over contracts between reservation Indians and outsiders have 

generally been found either to infringe tribal sovereignty or to be preempted by 

federal law.” Id. at 482. We further stated that “[i]t is well settled that civil 

jurisdiction over activities of non-Indians concerning transactions taking place on 

Indian lands presumptively lies in the tribal courts unless affirmatively limited by a 

specific treaty provision or federal statute.” Id. (quoting White Mountain Apache 

Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1305 (9th Cir. 1988)). This 

presumption of tribal court jurisdiction is based on necessity. As part of its inherent 

sovereignty, a tribe must be able to “regulate the activities of nonmembers who 

enter consensual relationships with the tribe or its members, through commercial 

dealing, contracts, leases, or other arrangements.” Id. (quoting Brendale v. 

Confederated Yakima Indian Nation, 492 U.S. 408, 428, 109 S. Ct. 2994, 3007, 

106 L. Ed. 2d 343 (1989)); see also Babbitt Ford, Inc. v. Navajo Indian Tribe, 

710 F.2d 587, 592 (9th Cir. 1983).

[¶19.] Here, the circuit court issued findings of fact and conclusions of law 

alongside its order granting the Appellees’ motion to dismiss. The court concluded, 
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among other things, that it lacked jurisdiction over Stathis’s complaint based on 

both the grounds of infringement and federal preemption. We agree with the circuit 

court’s determination that it lacked jurisdiction on the ground of federal 

preemption. As only one ground is necessary to deprive this Court of subject matter 

jurisdiction, we decline to make a conclusion regarding infringement. See Sage, 473 

N.W.2d at 482-83 (declining to reach the question of infringement because of finding 

of federal preemption).

[¶20.] Article XXII of the South Dakota Constitution serves as a “legal 

principal[] that guide[s] our resolution” on issues of infringement of tribal 

sovereignty or federal preemption of state court jurisdiction. See Risse v. Meeks, 

1998 S.D. 112, ¶ 11, 585 N.W.2d 875, 877. Article XXII provides, in part:

That we, the people inhabiting the state of South Dakota, do 

agree and declare that we forever disclaim all right and title to 

the unappropriated public lands lying within the boundary of 

South Dakota, and to all lands lying within said limits owned or 

held by any Indian or Indian tribes; and that until the title 

thereto shall have been extinguished by the United States, the 

same shall be and remain subject to the disposition of the 

United States; and said Indian lands shall remain under the 

absolute jurisdiction and control of the Congress of the United 

States[.]

S.D. Const. art. XXII.

[¶21.] In addition to our state’s constitution, federal statutes guide our 

resolution of this issue. Pertinent here are the Self-Determination Act, 25 U.S.C. 

§ 5302 (2012), and the Tribally Controlled Schools Act, 25 U.S.C. § 2501 (2012). The 

Self-Determination Act provides that “a major national goal of the United States is 

to provide the quantity and quality of educational services and opportunities which 

will permit Indian children to compete and excel in the life areas of their choice, and 
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to achieve the measure of self-determination essential to their social and economic 

well-being.” 25 U.S.C. § 5302(c) (2012). In pursuit of this goal, Congress has 

expressly stated that “parental and community control of the educational process is 

of crucial importance to the Indian people.” 25 U.S.C. § 5301(b)(3) (2012). Both this 

Court and the Eighth Circuit Court of Appeals have recognized the importance of 

the Self-Determination Act in finding that cases involving Indian education on the 

reservation are preempted by federal law. See Marty Indian Sch. Bd., Inc. v. State 

of S.D., 824 F.2d 684, 687 (8th Cir. 1987); Sage, 473 N.W.2d at 483.

[¶22.] In addition, MIS receives federal funding to operate from the Bureau of 

Indian Education under the Tribally Controlled Schools Act. As part of that act, 

Congress recognized:

that the Indian Self-Determination and Education Assistance 

Act [25 U.S.C. § 5301 et seq.], which was a product of the 

legitimate aspirations and a recognition of the inherent 

authority of Indian nations, was and is a crucial positive step 

toward tribal and community control and that the United States 

has an obligation to assure maximum Indian participation in the 

direction of educational services so as to render the persons 

administering such services and the services themselves more

responsive to the needs and desires of Indian communities.

25 U.S.C. § 2501(a) (2012). Congress further recognized that,

(1) true self-determination in any society of people is dependent 

upon an educational process that will ensure the development of 

qualified people to fulfill meaningful leadership roles;

(2) that Indian people have special and unique educational 

needs, including the need for programs to meet the linguistic 

and cultural aspirations of Indian tribes and communities; . . . 

25 U.S.C. § 2501(d)(1)-(2) (2012). 

[¶23.] Together, the Self-Determination Act and the Tribally Controlled 

Schools Act show a clear intent of Congress to preempt state court entanglement 
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into the education of Indians living on the reservation. MIS is a legal entity of the 

Yankton Sioux Tribe. According to its own constitution, MIS was chartered by the 

tribe to “maintain[] and continually upgrad[e] the educational process” for children 

living on the Yankton Sioux Reservation in the Marty community. The ability of 

MIS and the tribe to resolve disputes regarding employment contracts is inherently 

part of maintaining an educational process. State court action in this dispute is 

preempted by federal law, and therefore, the circuit court did not err in dismissing 

Stathis’s complaint on that basis.

Conclusion

[¶24.] The circuit court lacked subject matter jurisdiction to hear Stathis’s 

claims against MIS. We affirm the circuit court’s dismissal of Stathis’s claims on 

that basis alone. Because we find that the circuit court lacked subject matter 

jurisdiction, we may not reach a decision on the additional legal issues raised by 

Stathis, including tribal sovereign immunity and the immunity of tribal officials 

and employees.

[¶25.] JENSEN and SALTER, Justices, and POWER, Circuit Court Judge, 

and WILBUR, Retired Justice, concur.

[¶26.] POWER, Circuit Court Judge, sitting for KERN, Justice, disqualified.