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2024 S.D. 50

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

LESLIE J. TORGERSON, Plaintiff and Appellant,

v.

TERRI A. TORGERSON, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

ROBERTS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON S. FLEMMER

Judge

* * * *

THOMAS K. WILKA of

Hagen, Wilka & Archer, LLP

Sioux Falls, South Dakota

CRAIG O. ASH

Milbank, South Dakota Attorneys for plaintiff and

appellant.

GORDON P. NIELSEN of

Delaney, Nielsen & Sannes, P.C.

Sisseton, South Dakota Attorneys for defendant and

appellee.

* * * *

ARGUED

APRIL 26, 2023

OPINION FILED 08/21/24
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KERN, Justice

[¶1.] Terri Torgerson, an enrolled member of the Sisseton Wahpeton Oyate 

Tribe (SWO), filed divorce proceedings against Leslie Torgerson, a non-Indian, in 

tribal court. Leslie then filed divorce proceedings in Roberts County. He also 

moved to dismiss the tribal court proceedings for lack of jurisdiction and improper 

service of process. The tribal court denied his motion, finding that it had 

jurisdiction and service was proper. Terri subsequently moved to dismiss Leslie’s 

divorce proceedings in Roberts County. The circuit court granted Terri’s motion, 

concluding that the tribal court’s order was entitled to full faith and credit. Leslie 

appeals the circuit court’s order. We reverse.

Factual and Procedural History

[¶2.] Leslie and Terri were married in Vermillion, South Dakota, on October 

7, 1994. Three years into the couple’s marriage, Leslie adopted Terri’s son, an 

enrolled member of SWO, who is now in his thirties. No biological children were 

born to the marriage. The couple lived in the same home in Sisseton, South Dakota, 

for their entire marriage. The home, while on fee land, is within the original 

boundaries of the Lake Traverse Indian Reservation. However, in DeCoteau v. 

District County Court, 420 U.S. 425, 95 S. Ct. 1082, 43 L. Ed. 2d 300 (1975), the 

Supreme Court held that Congress disestablished the Lake Traverse Reservation 

through an act of Congress in 1891 approving a surplus land agreement.

[¶3.] Between 1994 and 2004, the couple owned and operated Dakota Sioux 

Fuel & Propane, Inc., which had been incorporated under Terri’s name and held a 

tribal charter. During its time of operation, the corporation conducted business 
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with SWO and had some involvement with its tribal court system. Dakota Sioux 

Fuel & Propane, Inc. was administratively dissolved on July 1, 2004. Since its 

dissolution over twenty years ago, Leslie has not conducted business with SWO or 

on SWO’s tribal land. Therefore, Leslie’s sole affiliation with SWO has been his 

wife’s and adoptive son’s status as enrolled members.

[¶4.] On October 18, 2021, Terri filed a summons and complaint against 

Leslie in SWO’s tribal court seeking a divorce. Leslie was personally served with 

copies of the filed summons and complaint on October 27. Although the summons 

and complaint were filed with SWO’s clerk of court, the clerk did not issue the 

summons for service on Leslie. The summons and complaint were signed and 

issued by Terri’s attorney only.1 Eileen Pfeiffer, clerk of SWO’s tribal court, 

explained in an affidavit that she did not issue a tribal court summons because she 

was waiting for a delivery address from Terri’s attorney. Because Pfeiffer was 

never provided with the address, she did not issue the tribal summons.

[¶5.] Meanwhile, Leslie filed for a divorce in state court in Roberts County. 

He provided the Roberts County Sheriff’s Department with a copy of the summons 

and complaint on November 10, 2021, for service upon Terri. The sheriff, however, 

failed to effectuate service as requested, so Leslie utilized a private process server, 

who served Terri on January 26, 2022.

[¶6.] Leslie moved to dismiss Terri’s divorce action in tribal court, arguing 

that the tribal court lacked jurisdiction, and that the service of process was 

1. Based on the record, Leslie has yet to receive a summons issued by SWO’s 

clerk.
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improper because the summons had not been issued by SWO’s clerk of court, as 

required under SWO’s code. The tribal court held a hearing on Leslie’s motion on 

January 10, 2022. Its order notes that neither party was personally present, but 

both appeared through counsel. The tribal court denied the motion, finding:

While [Leslie] is not an SWO Tribal member, his wife and 

children are. He resides within the boundaries of the Lake 

Traverse Reservation and is employed by a Tribal entity. This 

claim was also filed by [Terri], who is a Tribal member. In this 

matter, the Tribal Court may have concurrent jurisdiction with 

the state, but because the claim was filed in this Court first, it 

obtained valid personal jurisdiction over the parties first. 

[Leslie] was served in a manner consistent with Tribal Court 

service process, and [Leslie] admitted that he had received 

service.

The tribal court further concluded that it had “jurisdiction in this matter, [and 

Leslie] was properly served with the Summons and Complaint.” Leslie did not 

appeal the tribal court’s order.

[¶7.] Terri subsequently filed a motion to dismiss and brief in support 

thereof with the circuit court, arguing that Leslie’s divorce action should be 

dismissed for lack of subject matter jurisdiction, “improper venue, and failure to 

state a claim upon which relief can be granted.” In response, Leslie directed the 

court to SDCL 1-1-25, which sets forth the conditions under which the court could 

recognize the tribal court order as a matter of comity and argued that the tribal 

court order could not be recognized because the tribal court did not have jurisdiction 

to enter it. He further noted that Terri had the burden of proving the statutory 

requirements by presenting clear and convincing evidence. The circuit court held a 

hearing on Terri’s motion on May 23, 2022. Neither Leslie nor Terri testified at the 

hearing, and the only evidence submitted was the affidavit from Leslie. In his 
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affidavit Leslie averred that he was not a tribal member, nor were his biological 

children2, that he and Terri had lived at the same address in Sisseton since July 

1994, that he was not employed by a tribal entity, nor did he conduct business with 

SWO or on SWO tribal lands.

[¶8.] After considering the parties’ arguments, the circuit court concluded 

that it shared concurrent subject matter jurisdiction with SWO over the divorce 

because the Tribe has the authority to grant divorces to its members. The circuit 

court further concluded that “although there may have been some irregularities, the 

action was properly initiated in tribal court.” The circuit court therefore granted 

Terri’s motion to dismiss and ordered her counsel to submit proposed findings of 

fact and conclusions of law for the court’s consideration.

[¶9.] On June 5, 2022, the circuit court entered findings of fact and 

conclusions of law and an order dismissing Leslie’s divorce action with prejudice. In 

its conclusions, the court stated that the case should be adjudicated by the tribunal 

that “first obtained valid personal jurisdiction over the parties.” Deferring to the 

tribal court’s order, the circuit court determined SWO was the first to obtain “valid 

personal jurisdiction” over the parties, and therefore, the court concluded that the 

case was first commenced in tribal court. Additionally, the circuit court, referencing 

what it described as “long-standing principles,” held that it was “bound to recognize 

the tribal court’s determination of its own jurisdiction” as a matter of full faith and 

credit. (Emphasis added.) The court did not refer to or apply the statutory 

requirements in SDCL 1-1-25 for recognizing the tribal court’s order as a matter of 

2. Leslie indicated that his adopted son was a Tribal member.
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comity. Leslie filed a notice of appeal from the circuit court’s order on July 7, 2022. 

Both parties submitted separate motions to supplement the record, which this 

Court granted.3

[¶10.] In the interim, the tribal court continued its divorce proceedings and 

held a divorce trial on July 19, 2022. Leslie did not appear personally, but his 

attorney appeared on his behalf for the limited purpose of contesting jurisdiction. 

Leslie did, however, provide the tribal court with a list of personal property that the 

tribal court admitted as an exhibit at the divorce trial.4 The tribal court divided the 

parties’ marital property and entered findings of fact and conclusion of law, a decree 

of divorce, and judgment on August 2, 2022. Leslie filed a notice of appeal in tribal 

court on August 26, 2022, but the notice was rejected as untimely because it was 

filed after SWO’s 20-day deadline to appeal.

[¶11.] In his appeal from the circuit court’s order granting Terri’s motion to 

dismiss, Leslie raises the following issues, which we rephrase and restate:

1. Whether Leslie is precluded from challenging the tribal 

court’s jurisdiction in circuit court.

3. The parties have submitted four requests to supplement the record in total. 

On September 29, 2022, we granted a motion by Terri’s attorney to 

supplement the record with an affidavit and four exhibits. Then on January 

6, 2023, we granted Leslie’s attorney’s motion to supplement the record with 

an affidavit and six exhibits. We also granted a motion by Terri’s attorney to 

supplement the record a second time with two exhibits. Lastly, Terri’s 

attorney submitted a third motion to supplement the record with an 

additional exhibit which we took under advisement and now grant.

4. In an affidavit submitted to supplement the record, Leslie’s attorney 

unequivocally denies filing the exhibits for use in the divorce trial. He avers 

that he left the original documents at his office and had his secretary email a 

copy to the clerk of the tribal court for printing so that he could have hard 

copies available for his convenience.
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2. Whether the circuit court erred by failing to determine if 

the tribal court order was entitled to comity under SDCL 

1-1-25.

Standard of Review

[¶12.] In granting Terri’s motion to dismiss, the circuit court extended full 

faith and credit to the tribal court’s order finding that it had jurisdiction and 

determined that Terri’s service of process was proper. The application of full faith 

and credit raises “purely legal questions of constitutional principles,” which we 

review de novo. In re Cleopatra Cameron Gift Trust, 2019 S.D. 35, ¶ 17, 931 N.W.2d 

244, 249. “We [also] apply de novo review to a circuit court’s decision to grant a 

motion to dismiss.” In re Estate of Calvin, 2021 S.D. 45, ¶ 13, 963 N.W.2d 319, 323 

(citing Fodness v. City of Sioux Falls, 2020 S.D. 43, ¶ 9, 947 N.W.2d 619, 624). In 

doing so, we give “no deference to the circuit court’s determination.” Hallberg v. 

S.D. Bd. of Regents, 2019 S.D. 67, ¶ 10, 937 N.W.2d 568, 572.

[¶13.] Furthermore, when a circuit court issues findings of fact and 

conclusions of law, we review the “findings of fact under the clearly erroneous 

standard” and the “conclusions of law de novo.” Leedom v. Leedom, 2020 S.D. 40, 

¶ 11, 947 N.W.2d 143, 147 (quoting Lowe v. Schwartz, 2007 S.D. 85, ¶ 9, 738 

N.W.2d 63, 66–67). “Once the facts have been determined, however, the application 

of a legal standard to those facts is a question of law reviewed de novo.” State v. 

Myhre, 2001 S.D. 109, ¶ 9, 633 N.W.2d 186, 188 (citing Spenner v. City of Sioux 

Falls, 1998 S.D. 56, ¶ 13, 580 N.W.2d 606, 610).
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Analysis and Decision

1. Whether Leslie is precluded from challenging the 

tribal court’s jurisdiction in circuit court.

[¶14.] As a preliminary matter, we address Terri’s assertion that res judicata 

precludes Leslie from challenging in circuit court a tribal court’s finding of 

jurisdiction and proper service of process after the tribal court heard argument and 

entered an order on the matter. Traditionally speaking, the doctrine of res judicata 

is a rule of intra-sovereign preclusion and finality that serves to protect litigants 

from repeated litigation.5 Restatement (Second) Judgments 1 Scope (Am. L. Inst. 

1982) (explaining that res judicata applies within a single legal system and 

addresses “the effect in a state court of a prior judgment rendered in a court of that 

state” or the corresponding scenario within the federal judiciary). “No legal 

judgment has any effect, of its own force, beyond the [legal system] of the 

sovereignty from which i[t]” was issued. Wilson v. Marchington, 127 F.3d 805, 807 

(9th Cir. 1997); see generally Comity, Black’s Law Dictionary (11th ed. 2019) 

(defining comity, rather than res judicata, as the practice of recognizing the judicial 

acts of separate sovereigns). Therefore, res judicata does not require the courts of 

one sovereign to recognize and enforce judicial acts rendered by courts of another 

sovereign. Rather, the degree to which judgments of foreign sovereigns are given 

5. Res judicata is comprised of two interrelated preclusion concepts, claim 

preclusion and issue preclusion. Healy Ranch, Inc. v. Healy, 2022 S.D. 43, 

¶ 40, 978 N.W.2d 786, 798. Issue preclusion has often been referred to 

independently as collateral estoppel; yet we discuss issue preclusion under 

the umbrella of res judicata because the difference between issue and claim 

preclusion is “one of degree and emphasis[,]” and we apply the same elements 

of res judicata under both preclusion theories. Id. ¶¶ 41, 43, 978 N.W.2d at 

798–99.
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preclusive and final effect is a matter of full faith and credit, when applicable, or 

comity. We first address whether full faith and credit is applicable here.

[¶15.] In general, “the full faith and credit clause of the Constitution 

precludes any inquiry [from a sister state] into the merits of [a] cause of action, the 

logic or consistency of the decision, or the validity of the legal principles on which 

[a] judgment is based.” Milliken v. Meyer, 311 U.S. 457, 462, 61 S. Ct. 339, 342, 85 

L. Ed. 278 (1940). Through the “Constitutional provision for full faith and credit, 

the local doctrines of res judicata . . . become a part of national jurisprudence[.]” 

Riley v. New York Tr. Co., 315 U.S. 343, 349, 62 S. Ct. 608, 612, 86 L. Ed. 885 

(1942). “Full faith and credit thus generally requires every State to give to a 

judgment at least the res judicata effect which the judgment would be accorded in 

the State which rendered it.” Durfee v. Duke, 375 U.S. 106, 109, 84 S. Ct. 242, 244, 

11 L. Ed. 2d 186 (1963). Therefore, once an issue is fully and fairly litigated, a 

judicial determination on the matter is final and given preclusive effect among 

sister states, territories, and possession of the United States. V.L. v. E.L., 577 U.S. 

404, 406–07, 136 S. Ct. 1017, 1020, 194 L. Ed. 2d 92 (2016).

[¶16.] But full faith and credit does not apply to Indian tribes in the same 

way it applies to our sister states. By its terms, the full faith and credit clause, as 

implemented by 28 U.S.C. § 1738, applies only to judgments from a state, territory, 

or possession of the United States, not Indian tribes.6 As the South Dakota District 

6. “Judgments rendered in a foreign nation are not entitled to the protection of 

full faith and credit.” Restatement (Second) Conflict of L. § 98 cmt. b (Am. L. 

Inst. 1971); see generally Baker by Thomas v. General Motors Corp., 522 U.S. 

222, 242, 118 S. Ct. 657, 668, 139 L. Ed. 2d 580 (1998) (Scalia, J., concurring) 

(continued . . .)
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Court recently acknowledged, modern full faith and credit statutes reflect how 

“Congress views a ‘territory or possession of the United States’ as distinct from an 

Indian Tribe”; therefore, “Congress not only considers it necessary to specify when 

[full faith and credit] legislation is meant to apply to tribes, but also that Congress 

is capable of doing so when it desires.”7 Nygaard v. Taylor, 602 F. Supp. 3d 1172, 

1189, 1191 (D.S.D. 2022). Therefore, unless federal legislation specifically states 

otherwise, “the enforcement of tribal court judgments in other jurisdictions is . . . 

________________________

(. . . continued)

(“Judgments recovered in one State of the Union, when proved in courts of 

another government, whether state or national, within the United States, 

differ from judgments recovered in a foreign [nation] in no other respect than 

in not being reexaminable on their merits, nor impeachable for fraud in 

obtaining them, if rendered by a court having jurisdiction of the cause and of 

the parties.”).

7. Congress has delineated discreet exceptions for certain types of tribal court 

proceedings which are subject to full faith and credit:

the Indian Land Consolidation Act, 25 U.S.C. §§ 2201–2211 

(1983) (extending full faith and credit for certain actions 

involving trust, restricted or controlled lands), the Maine Indian 

Claims Settlement Act, 25 U.S.C. § 1725(g) (1980) (requiring the 

Passamaquoddy Tribe, the Penobscot Nation and the State of 

Maine to “give full faith and credit to the judicial proceedings of 

each other”), [] the Indian Child Welfare Act of 1978, 25 U.S.C. 

§§ 1901 et seq. (extending full faith and credit to tribal custody 

proceedings), [and the Violent Crime Control and Law 

Enforcement Act of 1994, 18 U.S.C. § 2265(a) (granting full faith 

and credit to protection orders issued by Indian tribes)].

Wilson v. Marchington, 127 F.3d 805, 809 (9th Cir. 1997); see also Santa 

Clara Pueblo v. Martinez, 436 U.S. 49, 65 n.21, 98 S. Ct. 1670, 1681 n.21, 56 

L. Ed. 2d 106 (1978) (recognizing that tribal court orders are only entitled to 

full faith and credit in certain circumstances). Aside from these specific 

proceedings, South Dakota courts must apply the principles of comity when 

recognizing and enforcing orders or judgments from tribal courts. SDCL 1-1-

25. State ex rel. LeCompte v. Keckler, 2001 S.D. 68, ¶ 10, 628 N.W.2d 749, 

753–54.
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dependent on the local law of the enforcing jurisdiction.” Frank R. Pommersheim, 

The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction, 31 Ariz. L. Rev. 

329, 342 (1989). Here, there is no legislation requiring full faith and credit for 

divorce actions in tribal court.

[¶17.] Rather, SDCL 1-1-25 provides that South Dakota courts may only give 

effect to a tribal court order as a matter of comity after finding certain conditions 

have been established. Within South Dakota, “[i]t is settled law that tribal court 

orders should be recognized in state courts under the principle of comity,” State ex 

rel. Joseph v. Redwing, 429 N.W.2d 49, 50 (S.D. 1988), not full faith and credit. See

In re J.D.M.C., 2007 S.D. 97, ¶ 38, 739 N.W.2d 796, 808; see generally Red Fox v. 

Hettich, 494 N.W.2d 638, 641 n.3 (S.D. 1993) (“We have not extended full faith and 

credit to tribal court judgments in the past and are not compelled to do so now.”). 

Through the enactment of SDCL 1-1-25, our Legislature has long recognized that 

the principles of comity govern the recognition and enforcement of a tribal court’s 

order and judgment. See Pommersheim, 31 Ariz. L. Rev. at 342 (“A few states, as a 

matter of state common law, require that full faith and credit be given to tribal 

court judgments. Other states, like South Dakota, apply some form of the principle 

of comity.”).

[¶18.] “‘Comity,’ in the legal sense, is . . . the recognition which one nation 

allows within its territory to the legislative, executive, or judicial acts of another 

nation[.]” Gesinger v. Gesinger, 531 N.W.2d 17, 19 (S.D. 1995); see also Comity, 

Black’s Law Dictionary (11th ed. 2019). Before a South Dakota court may enforce a 

tribal court’s order or judgment, the party seeking recognition must establish by 
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clear and convincing evidence that the process by which the order was obtained 

complies with provisions of SDCL 1-1-25. Through SDCL 1-1-25, the South Dakota 

Legislature directs the courts of this State to inquire into the validity of the tribal 

court’s order or judgment, including whether the tribal court had proper subject 

matter and personal jurisdiction. Consequently, contrary to Terri’s view, the 

principles of res judicata and full faith and credit, as applied between the orders of 

SWO’s tribal court and the circuit court, are inapplicable to the court’s obligation 

under SDCL 1-1-25.

[¶19.] Yet, Terri argues that two of this Court’s past cases support applying 

res judicata and giving full faith and credit to the tribal court’s order here. See 

Wells v. Wells (Wells II), 2005 S.D. 67, 698 N.W.2d 504 and In re J.D.M.C., 2007 

S.D. 97, 739 N.W.2d 796. Terri’s reliance on these cases, however, is misplaced.

[¶20.] To accurately understand our holding in Wells II, it is helpful to review 

the Wells case from its inception. In Wells I, “William and Dolly, enrolled members 

of the Crow Creek Tribe,” resided on the Crow Creek Reservation with their five 

children until Dolly took the children and moved to Rapid City. Wells v. Wells 

(Wells I), 451 N.W.2d 402, 402 (S.D. 1990). Once Dolly left the reservation, William 

attempted to initiate a divorce proceeding in Crow Creek’s tribal court but failed to 

personally serve Dolly, as tribal law required. Id. A few months later, Dolly 

initiated a divorce against William in Pennington County. Id. at 403. In response, 

William sent Dolly’s attorney a summons and complaint and an admission of service 

which she refused to sign. Id. The tribal court, however, accepted this as valid 

service of process and granted William a default decree of divorce and custody of 
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their children. Id. Dolly had William served with her state court pleadings on the 

reservation, but the circuit court found the service invalid and granted William’s 

motion to dismiss the case for insufficient service of process. Id.

[¶21.] Dolly initiated new divorce proceedings against William in Pennington 

County. Id. William again moved to dismiss the case, arguing that South Dakota 

lacked subject matter jurisdiction. Id. The circuit court denied William’s motion, 

determining that it shared concurrent subject matter jurisdiction over the divorce 

proceedings. Id. The court determined that it would not recognize the tribal court’s 

divorce as a matter of comity because it failed to comply with the requirements of 

SDCL 1-1-25. Id. at 403–04. On intermediate appeal to this Court, we affirmed, 

holding “the tribal court divorce decree did not warrant recognition through 

principles of comity, and the circuit court had subject-matter jurisdiction of the 

divorce proceedings.” Wells II, 2005 S.D. 67, ¶ 7, 698 N.W.2d at 506–07.

[¶22.] Thereafter, the circuit court granted Dolly and William a divorce, 

awarded Dolly custody of the children, and ordered William to pay $650 a month in 

child support. Id., 698 N.W.2d at 507. William filed a notice of appeal asserting 

that the circuit court’s order was invalid for lack of personal and subject matter 

jurisdiction. Id. ¶ 8. The appeal was later dismissed after William failed to file and 

serve a brief or order transcripts. Id.

[¶23.] Twelve years later, in Wells II, the Office of Child Support 

Enforcement initiated enforcement proceedings against William, seeking past due 

child support. Id. ¶ 9. William moved to vacate the judgment originally ordering 

the child support payments, arguing that the order was void due to lack of personal 
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and subject matter jurisdiction. Id. The circuit court in Wells II held that res 

judicata precluded William’s motion to vacate. Id. ¶ 10. William appealed, and this 

Court affirmed, holding that res judicata precludes South Dakota courts from 

“reexamining asserted jurisdictional defects when the matter” was fully and fairly 

litigated in an earlier circuit court proceeding. Id. ¶¶ 15–22, 698 N.W.2d at 508–11. 

Aside from an attack via direct appeal, a circuit court’s determination of jurisdiction 

after full and fair litigation is res judicata as to all other proceedings. See id. ¶ 17, 

698 N.W.2d at 509. Thus, Wells II supports the traditional view that res judicata 

precludes a subsequent circuit court of the same sovereign from inquiring into the 

first circuit court’s decision regarding jurisdiction when the issue of jurisdiction had 

been fully and fairly litigated in the first instance, and not, as Terri contends, the 

circuit court’s ability to inquire into the validity of the tribal court’s jurisdiction 

here. See Id. ¶ 22, 698 N.W.2d at 511.

[¶24.] In regard to J.D.M.C., Terri’s argument takes our holding out of 

context. In J.D.M.C., Mother, an enrolled member of SWO, and Father, a nonIndian, shared custody of two daughters, both enrolled SWO members. 2007 S.D. 

97, ¶ 2, 739 N.W.2d at 799. After the parties were divorced in Roberts County, one 

of their daughters died while in Father’s custody. Id. ¶¶ 2–3. Mother filed an abuse 

and neglect petition in tribal court to remove J.D.M.C., the surviving daughter, 

from Father’s custody. Id. ¶ 3. Despite Father’s contest to jurisdiction, the tribal 

court found J.D.M.C. to be a ward of the tribal court, determined that it had 

jurisdiction, and entered an emergency custody order. Id. ¶ 4, 739 N.W.2d at 800. 

SWO subsequently sought enforcement of the order in circuit court, and Father filed 
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a motion for a comity hearing to contest the order’s validity. Id. ¶ 5. The circuit 

court adopted the tribal court’s order after determining that it was subject to full 

faith and credit under the Indian Child Welfare Act (ICWA). Id.

[¶25.] On appeal, this Court stated, “While Indian tribes are not technically 

‘states’ to which the United States Constitution’s full faith and credit clause would 

apply, under ICWA, a judgment entered in the SWO tribal court must be given full 

faith and credit[.]” Id. ¶ 38, 739 N.W.2d at 808 (emphasis added) (citing 25 U.S.C. 

§ 1911(d), the Indian Child Welfare Act).8 We also stated, in accordance with 

Durfee and Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S. 

Ct. 517, 75 L. Ed. 1244 (1931), that “a judgment is entitled to full faith and credit—

even as to questions of jurisdiction[.]” Id. (quoting Durfee, 375 U.S. at 111, 84 S. Ct. 

at 245). Nonetheless, J.D.M.C. does not stand for the proposition that all tribal 

court judgments are entitled to full faith and credit; rather, it merely restates the 

requirements of ICWA, see 25 U.S.C. § 1911(d), which under the supremacy clause 

displaces our usual directive to apply the principles of comity before recognizing a 

tribal court’s judicial acts. See U.S. Const. art. VI, cl. 2 (“[T]he Laws of the United 

States . . . shall be the supreme Law of the Land; and the judges in every State shall 

be bound thereby, any . . . Laws of any State to the Contrary notwithstanding.”); see 

8. 25 U.S.C. § 1911(d) provides:

The United States, every State, every territory or possession of 

the United States, and every Indian tribe shall give full faith 

and credit to the public acts, records, and judicial proceedings of 

any Indian tribe applicable to Indian child custody proceedings 

to the same extent that such entities give full faith and credit to 

the public acts, records, and judicial proceedings of any other 

entity.
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generally In re Estate of Flaws, 2016 S.D. 61, ¶ 18, 885 N.W.2d 580, 584 

(recognizing that federal preemption occurs only when “Congress . . . expresses a 

clear intent to pre-empt state law,” . . . or where the state law obstructs the 

accomplishment of federal objectives).9

[¶26.] Based upon the clear legislative expression of comity in SDCL 1-1-25 

and because none of the authorities Terri relies on support the application of res 

judicata or full faith and credit to the tribal court’s order, as a matter of common 

law, we hold that the circuit court’s extension of full faith and credit to a tribal court 

order in this context was erroneous. We, therefore, also hold that Leslie is not 

precluded from challenging the tribal court’s order granting Terri’s motion to 

dismiss for lack of jurisdiction.

9. Terri also relies on Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 

186 (1963) and Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 

522, 51 S. Ct. 517, 75 L. Ed. 1244 (1931), yet these cases are distinguishable. 

In Durfee, the United States Supreme Court merely recognized that the 

question of jurisdiction, once it has been fully litigated, is precluded from 

relitigation and is res judicata, via the full faith and credit clause, to the 

same degree as any other valid final judgment. 375 U.S. at 111, 84 S. Ct. at 

245. In reaching its decision, the Supreme Court relied on Baldwin, which 

the Court found to have “unambiguously established” the idea that full faith 

and credit requires a jurisdictional determination from state or federal court 

to be final and free from review by later state and federal courts. Id. at 111–

12, 84 S. Ct. at 245. But neither case directly applies to Leslie’s appeal. 

Each case dealt with sovereigns subject to the full faith and credit clause, 

which, as stated earlier, incorporated “local doctrines of res judicata.” Id. at 

109, 84 S. Ct. at 244. Because the full faith and credit clause does not apply 

between states and Indian Nations, unless otherwise prescribed by federal 

law, Durfee and Baldwin do not supplant the legislative mandate imposed 

under SDCL 1-1-25.
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2. Whether the circuit court erred by failing to 

determine if the tribal court order was entitled to 

comity under SDCL 1-1-25.

a. the elements of the comity analysis

[¶27.] Before any court may adjudicate a matter, it must have subject matter 

and personal jurisdiction. A court has subject matter jurisdiction if it has authority 

to hear and adjudicate the general class of subject matter to which the case belongs. 

Red Fox, 494 N.W.2d at 643. When two sovereigns have jurisdiction over the same 

subject matter, they are said to have concurrent subject matter jurisdiction. Harris 

v. Young, 473 N.W.2d 141, 145–46 (S.D. 1991). In such instances, we have stated 

that the case may be adjudicated by whichever sovereign first obtains valid 

personal jurisdiction. Id. at 145. Therefore, in simultaneous parallel proceedings, 

the second tribunal must determine, first, whether concurrent jurisdiction exists, 

and if it does, it must also inquire into the validity of the first tribunal’s exercise of 

personal jurisdiction. Because the first tribunal is unable to issue a valid, binding 

judgment without personal jurisdiction, the second tribunal has the right to 

question the truth and existence of a fact, like personal jurisdiction, upon which the 

first tribunal’s judicial authority depends. See Wells I, 451 N.W.2d at 404 (citing 

Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577 

(1945)).10

10. “[B]efore a court is bound by the judgment rendered in another [sovereign], it 

may inquire into the jurisdictional basis of the foreign court’s decree.” Wells 

v. Wells (Wells I), 451 N.W.2d 402, 404 (S.D. 1990) (quoting Underwriters 

Nat’l Assurance Co. v. North Carolina Life and Accident and Health Ins. 

(continued . . .)
#30046

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[¶28.] However, the nature of this inquiry changes when the first tribunal is 

a tribal court that has issued an order or judgment. In such instances, the tribal 

court’s judicial acts will be given recognition and preclusive effect only if the tribal 

court’s order or judgment satisfies the requirements of SDCL 1-1-25 to wit:

No order or judgment of a tribal court in the state of South 

Dakota may be recognized as a matter of comity . . . except 

under the following terms and conditions: (1) Before a state 

court may consider recognizing a tribal court order or judgment 

the party seeking recognition shall establish by clear and 

convincing evidence that:

a) The tribal court had jurisdiction over both the subject 

matter and the parties;

b) The order or judgment was not fraudulently obtained;

c) The order or judgment was obtained by a process that 

assures the requisites of an impartial administration of 

justice including but not limited to due notice and a 

hearing;

d) The order or judgment complies with the laws, ordinances 

and regulations of the jurisdiction from which it was 

obtained; and

e) The order or judgment does not contravene the public 

policy of the State of South Dakota.

[¶29.] Importantly, SDCL 1-1-25 specifically provides that “[n]o order or 

judgment of a tribal court in the State of South Dakota may be recognized as a 

matter of comity in the state courts of South Dakota [unless] . . . [t]he tribal court 

had jurisdiction over both the subject matter and parties.” (Emphasis added.) This 

statutory limitation on comity explicitly requires courts to analyze subject matter 

________________________

(. . . continued)

Guar. Ass’n, 455 U.S. 691, 705, 102 S. Ct. 1357, 1366, 71 L. Ed. 2d 558 

(1982)).
#30046

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and personal jurisdiction as a predicate to any grant of comity. At the same time, 

tribal jurisdiction has also been limited as a matter of federal law by Supreme 

Court precedent.

[¶30.] Most notably, in Montana v. United States, the Supreme Court held 

that a tribe could exercise such jurisdiction over non-members on their reservation 

“who enter consensual relationships with the tribe or its members” or whose 

conduct “threatens or has some direct effect on the political integrity, the economic 

security, or the health or welfare of the tribe.” 450 U.S. 544, 565–66, 101 S. Ct. 

1245, 1258–59, 67 L. Ed. 2d 493 (1981). These two exceptions are a necessary 

predicate to any exercise of tribal jurisdiction. Thus, a tribal court judgment 

involving non-members is only entitled to comity pursuant to SDCL 1-1-25 if the 

tribal court has personal and subject matter jurisdiction and one of the Montana 

exceptions applies.11 Absent any one of these elements, comity is inappropriate 

because the tribal court lacks jurisdiction. Here, the tribal court order fails under 

all three.

11. Instead of applying the statutory jurisdictional criteria of personal and 

subject matter jurisdiction, the special concurrence focuses exclusively and 

narrowly on the Montana exceptions. Montana v. United States, 450 U.S. 

544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981). It is helpful to remember that 

comity is a creature of state, not federal, law. Where the Legislature has 

provided us with specific jurisdictional inquiries to apply—here subject 

matter and personal jurisdiction—we are bound to follow this statutory 

command. Indeed, even if a Montana exception applies, comity is only 

appropriate if the tribal court has subject matter and personal jurisdiction. 

Thus, although a tribal court cannot exercise jurisdiction outside the limits 

set by Montana, personal and subject matter jurisdiction are necessary 

jurisdictional components of the SDCL 1-1-25 comity analysis.
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b. the tribal court order is not entitled to comity

[¶31.] Because “[c]ircuit courts may not refuse to hear divorce proceedings 

properly commenced first in South Dakota, in favor of another [sovereign’s] 

jurisdiction,” Langdeau v. Langdeau, 2008 S.D. 44, ¶ 18, 751 N.W.2d 722, 729, the 

circuit court could not have dismissed Leslie’s divorce action unless it recognized 

the tribal court’s order as a matter of comity under SDCL 1-1-25. As previously 

noted, the circuit court failed to conduct the required comity analysis. Even so, we 

decline to remand this issue for further proceedings because it is apparent from the 

record that Terri cannot establish by clear and convincing evidence that the tribal 

court order was entitled to comity pursuant to SDCL 1-1-25.

i. subject matter jurisdiction

[¶32.] Subject matter jurisdiction pertains to a tribunal’s power to hear and 

adjudicate a certain class of cases. Red Fox, 494 N.W.2d at 643. A court’s 

jurisdiction over a particular class of subject matter is conferred by the sovereign’s 

laws. Id. A tribal court’s subject matter jurisdiction is conferred by the tribe’s 

constitution, tribal code, treaties, or decisional law. Id. (citing Cohen, Federal 

Indian law, p. 428 (1958)); see also Pommersheim, 31 Ariz. L. Rev. at 337. 

Likewise, a tribal court’s “jurisdiction may also be limited by express restrictions 

found within tribal law itself or even, occasionally, by the absence of positive tribal 

law on point.” Id. Even when a tribal court has general subject matter jurisdiction, 

“there may be self-imposed tribal limitations regarding available remedies.” Id. at 

338.
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[¶33.] SWO’s tribal code confers to its court’s civil jurisdiction over “divorces 

of the members of the Sisseton-Wahpeton Sioux Tribe and other Indian Tribes.” 

SWO Code 34-03-01. As stated in Section 34-17-01, “The [SWO] shall have 

authority to grant divorces to members of the [SWO] or any other Indian tribe 

whether the marriage was consummated under marriage license issued by the 

Clerk of the [SWO], or under license issued by State or Tribal authority.”

[¶34.] Leslie argues that the tribal code’s plural form “members” indicates 

that the Tribe has expressly limited its jurisdiction to divorce actions between 

Indians who are members of an Indian tribe. When we know of no other authority 

on point, we interpret a tribe’s code, when we are required to do so, by looking at 

the plain meaning of the words used and its surrounding provisions. Wells I, 451 

N.W.2d at 404. The language in Section 34-17-01 giving authority to grant a 

divorce to “members of the [SWO] or any other Indian tribe” does appear to restrict 

the tribal court’s jurisdiction to couples who are both Indians or members of a tribe. 

This limitation on tribal court subject matter jurisdiction is made even more clear 

from a review of the provisions surrounding Section 34-17-01.

[¶35.] Chapter 34 contains express restrictions on SWO’s judicial jurisdiction 

to grant a divorce in a marriage between an enrolled member and a non-Indian. 

Section 34-17-02 explicitly lays out the two ways for a marriage to be dissolved: “(1) 

By the death of one of the parties; or (2) By the judgment of the Sisseton-Wahpeton 

Sioux Tribal Courts decreeing a divorce of the parties where the parties are members 

of the Sisseton-Wahpeton Sioux Tribe or any Indian Tribe.” (Emphasis added.) The 

use of parties in conjunction with members further supports the reading that each 
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spouse must be a member of an Indian tribe. Additionally, in Sections 34-23-04 and 

34-23-05, the code articulates the procedure to be followed when service upon the 

defendant cannot be completed. As the provisions below illustrate, the tribal code 

does not seem to entertain the possibility of a non-Indian defendant:

In case service cannot be made upon the Reservation, the 

summons, together with a copy of the complaint shall be 

forwarded to the law and order department of the Reservation 

where the defendant is enrolled, or the law and order department 

of the jurisdiction of the defendant’s last known address and 

there served.

SWO Code 34-23-04 (emphasis added), and

If service cannot be made personally either on the Lake Traverse 

Reservation or on the Reservation where the defendant is 

enrolled, a return shall be made to the Clerk showing said facts; 

thereupon the clerk shall cause to be posted at the Agency and 

courthouse of both Reservations a copy of the summons and 

complaint; and also mail a copy of the summons and complaint 

to the last known post office address of the defendant and 

service shall be deemed complete[.]

SWO Code 34-23-05 (emphasis added).

[¶36.] A definition of “members” that included non-Indians would render 

Sections 34-17-02, 34-23-04, and 34-23-05 superfluous. Thus, SWO’s subject matter 

jurisdiction over divorces appears to be limited to marriages between “members of 

the Sisseton-Wahpeton Sioux Tribe or any Indian Tribe,” thus excluding marriages 

involving a non-Indian. Because SWO lacks subject matter jurisdiction, the tribal 

court order is not enforceable under SDCL 1-1-25. While the absence of subject 

matter jurisdiction is sufficient to conclude as a matter of law that the tribal court’s 

order is not enforceable as a matter of statutory comity, the record also 

demonstrates, as discussed below, that the tribal court also lacked personal 
#30046

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jurisdiction, as required for a South Dakota court to enforce the order under SDCL 

1-1-25.

ii. personal jurisdiction

[¶37.] “Tribal judicial jurisdiction also depends on whether the tribal court 

has personal jurisdiction over the defendant.” Red Fox, 494 N.W.2d at 644. When a 

tribe’s code contains a long-arm statute for personal jurisdiction over nondomiciliaries, we analyze personal jurisdiction under that provision; otherwise, we 

“apply a traditional federal long-arm jurisdiction analysis.” Red Fox, 494 N.W.2d at 

645. Because SWO’s code contains a long-arm statute, that is where we begin. See 

generally id. For a court to exercise personal jurisdiction over a non-domiciliary, 

“two conditions must be satisfied.” Davis v. Otten, 2022 S.D. 39, ¶ 12, 978 N.W.2d 

358, 363. “First, the forum[’s] long-arm statute must authorize the exercise of such 

personal jurisdiction.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 

F.3d 285, 292 (4th Cir. 2009); see Davis, 2022 S.D. 39, ¶ 12, 978 N.W.2d at 363. 

“Second, if that authorization exists, the Due Process Clause of the Fourteenth 

Amendment requires that the defendant have sufficient minimum contacts with the 

forum[.]” CFA Inst., 551 F.3d at 292.

[¶38.] SWO’s long-arm statute extends personal jurisdiction to four categories 

of actions by a non-domiciliary:

As to the cause of action arising from any of the acts enumerated 

in this section, a Court may exercise personal jurisdiction over 

any non-domiciliary, or his executor or administrator, who in 

person or through an agent: 1. Transacts any business within 

the Lake Traverse Indian Reservation; or 2. Commits a tortious 

act within the Lake Traverse Indian Reservation, except as to 

cause of action for defamation of character arising from the act; 

or 3. Commits a tortious act within the Lake Traverse Indian 
#30046

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Reservation causing injury to person or property within the 

Lake Traverse Indian Reservation, except as to cause of action 

for defamation of character arising from the act, if he: (a) 

Regularly does or solicits business or engages in any other 

persistent course of conduct, or derives substantial revenue from 

goods used or consumes or services rendered, in the Lake 

Traverse Indian Reservation: or (b) Expects or should 

reasonably expect the act to have consequences in the Lake 

Traverse Indian Reservation and derives substantial revenue 

from interstate or international commerce; 4. Own, uses or 

possesses any real property situated within the Lake Traverse 

Indian Reservation.

SWO Code 45-01-02.

[¶39.] Here, the tribal court found that the cause of action is a “domestic 

relations case.” The dispute does not fall within the enumerated categorizations of 

SWO’s long-arm statute. The divorce action did not arise from the transaction of 

business in Indian country, a tortious act committed on or causing injury within 

Indian country, or the use or ownership of real property in Indian country. 

Therefore, even if we construed the Tribe’s code broadly, see generally Davis, 2022 

S.D. 39, ¶ 13, 978 N.W.2d at 364, Leslie is not subject to personal jurisdiction under 

the long-arm statute.

[¶40.] Even if we assume that Leslie is subject to SWO’s long-arm statute, 

Leslie’s contacts with SWO are not sufficient to satisfy due process. A tribal court’s 

exercise of personal jurisdiction over a party must comport with due process. 

Application of DeFender, 435 N.W.2d 717, 720 (S.D. 1989); see 25 U.S.C. § 1302(8). 

Thus, personal jurisdiction depends on reasonable notice and “minimum contacts.” 

Red Fox, 494 N.W.2d at 645 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S. 

Ct. 154, 90 L. Ed. 95 (1945)).
#30046

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[¶41.] Leslie argues that Terri’s service of process did not comply with SWO’s 

tribal code; however, he did receive a copy of the summons and complaint that Terri 

filed with the tribal court. For purposes of our analysis, we will assume Leslie 

received reasonable notice of Terri’s tribal court proceedings. Next, we must 

determine whether Leslie had sufficient minimum contacts with SWO to ensure the 

Tribe’s exercise of personal jurisdiction “does not offend traditional notions of fair 

play and substantial justice.” J.D.M.C., 2007 S.D. 97, ¶ 44, 739 N.W.2d at 811. To 

do so, we apply a three-step analysis to examine whether the assertion of personal 

jurisdiction satisfies due process:

First, the defendant must purposefully avail himself of the 

privilege of acting in the forum state, thus invoking the benefits 

and protections of its laws. Second, the cause of action must 

arise from defendant’s activities directed at the forum state. 

Finally, the acts of defendant must have substantial connection 

with the forum state to make the exercise of jurisdiction over 

defendant a reasonable one.

Id. ¶ 45, 739 N.W.2d at 811 (quoting Daktronics, Inc. v. LBW Tech Co., Inc., 2007 

S.D. 80, ¶ 6, 737 N.W.2d 413, 417).

[¶42.] Here, the unchallenged facts before the circuit court established that 

Leslie is a non-Indian who, for the duration of his marriage, has never resided in 

Indian country. Although he worked for Dakota Sioux Fuel & Propane, Inc., which 

held a tribal charter and conducted business with SWO, the corporation was 

dissolved in July 2004—twenty years ago. Since that time, Leslie’s only connection 

to SWO is his wife’s and adoptive son’s status as enrolled tribal members.12 

12. To the extent it has any application to our determination that the tribal court 

lacked personal jurisdiction over Leslie, we note that he challenges the circuit 

(continued . . .)
#30046

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Nonetheless, being married to a tribal member does not by itself establish minimum 

contacts sufficient for personal jurisdiction to comport with due process. See

Application of DeFender, 435 N.W.2d at 721. Based on our review of the record, 

there is no evidence to establish that Leslie purposefully availed himself of the 

privilege of acting in the forum, or that Leslie’s connection with SWO twenty years 

ago was sufficient for the exercise of personal jurisdiction to be fair and reasonable. 

Thus, we conclude that Terri has failed to present clear and convincing evidence 

showing that SWO’s exercise of personal jurisdiction over Leslie was proper.

iii. Montana.

[¶43.] In Montana v. United States, the Supreme Court limited the 

jurisdiction of Indian Tribes over nonmembers:

Indian tribes retain inherent sovereign power to exercise some 

forms of civil jurisdiction over non-Indians on their reservations, 

even on non-Indian fee lands. A tribe may regulate, through 

taxation, licensing, or other means, the activities of nonmembers 

who enter consensual relationships with the tribe or its 

members, through commercial dealing, contracts, leases, or 

other arrangements. A tribe may also retain inherent power to 

exercise civil authority over the conduct of non-Indians on fee 

lands within its reservation when that conduct threatens or has 

________________________

(. . . continued)

court’s finding that “Leslie and Terri owned and operated Dakota Sioux Fuel 

& Propane in Sisseton, for many years which was a tribally chartered 

business, and both have had dealings with the [SWO] and its court’s system.” 

Leslie correctly states that the only reference in the record supporting this 

finding of fact are the unsworn statements of Terri’s attorney during the 

motions hearing. Because there was no evidence presented to the circuit 

court supporting this finding, it was clearly erroneous for the court to make 

this finding. Also, as to Leslie’s challenge to the circuit court’s finding that 

“Leslie appeared personally along with legal counsel at the tribal court”, this 

finding is directly contradicted by the record and is therefore clearly 

erroneous. The tribal court’s order states, “The legal representative of both 

parties were present, but the Plaintiff and Defendant did not attend.”
#30046

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some direct effect on the political integrity, the economic 

security, or the health or welfare of the tribe.

450 U.S. at 565–66, 101 S. Ct. at 1258 (citations and footnote omitted). Recently, 

the Supreme Court has described Montana as establishing a “general jurisdictionlimiting principle.” United States v. Cooley, 593 U.S. 345, 351, 141 S. Ct. 1638, 

1644, 210 L. Ed. 2d 1 (2021). In other words, the Montana exceptions are 

overarching jurisdictional considerations, rather than unique formulations of 

subject matter or personal jurisdiction. Thus, for purposes of the comity analysis, 

Montana operates as a federal backstop, limiting tribal court jurisdiction to the 

exceptions above, even if the statutory requirements of personal and subject matter 

jurisdiction are satisfied.

[¶44.] Here, as the concurrence notes, Leslie is a non-Indian and his 

marriage to Terri is insufficient to trigger either of the Montana exceptions. See 

J.D.M.C., 2007 S.D. 97, ¶ 41, 739 N.W.2d at 809 (holding that “marrying a tribal 

member, allowing children to be enrolled members of the tribe and receiving tribal 

services do not qualify under the consensual relationship exception in Montana”). 

Because we conclude that the tribal court order is not enforceable, we need not 

address Leslie’s argument that the tribal court’s order did not comply with tribal 

law because Terri’s service of process did not adhere to the procedures articulated in 

SWO’s tribal code or her arguments that the circuit court’s findings were clearly 

erroneous in several respects.

Conclusion

[¶45.] The circuit court’s order recognizing as valid the tribal court’s 

jurisdiction and service of process under the principles of full faith and credit was a 
#30046

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legal error. Because there is no applicable federal law specifically requiring the 

application of full faith and credit, the circuit court should have applied SDCL 1-1-

25. However, even if the circuit court had applied SDCL 1-1-25, the record does not 

contain sufficient evidence to recognize the tribal court’s order under principles of 

comity. Terri failed to present any evidence to the circuit court, let alone clear and 

convincing evidence, to satisfy the jurisdictional requirement of SDCL 1-1-25. 

Accordingly, we reverse the circuit court’s order granting full faith and credit to the 

tribal court order.

[¶46.] In rendering this opinion, we note that our decision does not, nor could 

it, determine or seek to limit the tribal court’s inherent judicial authority, nor do we 

sit as an appellate tribal court. We accord the utmost respect to the nine sovereign 

tribal courts operating within this State’s territorial boundaries. However, our 

decision must apply the standards our Legislature requires us to follow and 

controlling federal precedent in determining whether a tribal court’s judicial acts 

are entitled to recognition by the courts of this State.

[¶47.] JENSEN, Chief Justice, concurs.

[¶48.] SALTER and DEVANEY, Justices, concur specially and dissent in 

part.

[¶49.] MYREN, Justice, concurs in part and dissents in part.

SALTER, Justice (concurring specially and dissenting in part).

[¶50.] I agree that the circuit court erred by failing to conduct a comity 

inquiry under SDCL 1-1-25. This, in turn, led to the court recognizing tribal court 

jurisdiction when it is apparent that none existed for this divorce case involving a 
#30046

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non-Indian. In my view, this principal question is not a close one, and I write 

specially to suggest that our cases may not adequately account for the United States 

Supreme Court’s decisions involving the assertion of tribal jurisdiction over nonIndians.

[¶51.] Before a South Dakota court may recognize a tribal court order under 

principles of comity, the party seeking recognition must establish, among other 

things, that “[t]he tribal court had jurisdiction over both the subject matter and the 

parties[.]” SDCL 1-1-25(1)(a). Where the tribal court order purports to assert 

jurisdiction over a non-Indian, this showing presents a formidable challenge, even 

in cases—unlike this one—where the non-Indian lives within a reservation.

[¶52.] In Montana v. United States, the Supreme Court held that the Crow 

Tribe of Montana could not regulate hunting and fishing by non-Indians on land 

within its reservation that the Crow Tribe “no longer owned[.]” 450 U.S. 544, 564, 

101 S. Ct. 1245, 1258, 67 L. Ed. 2d 493 (1981). The Court relied upon broad 

“general principles” from Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. 

Ct. 1011, 55 L. Ed. 2d 209 (1978), which categorically prohibited tribes from 

asserting criminal jurisdiction over non-Indians on the basis of its inherent 

authority. Id. at 565 (discussing Oliphant). In the context of civil jurisdiction, the 

Montana Court concluded that the inherent power of Indian tribes, generally, did 

“not extend to the activities of nonmembers of the tribe[,]” but the rule allowed for 

two exceptions:

Indian tribes retain inherent sovereign power to exercise some 

forms of civil jurisdiction over non-Indians on their reservations, 

even on non-Indian fee lands. A tribe may regulate, through 

taxation, licensing, or other means, the activities of nonmembers 
#30046

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who enter consensual relationships with the tribe or its 

members, through commercial dealing, contracts, leases, or 

other arrangements. A tribe may also retain inherent power to 

exercise civil authority over the conduct of non-Indians on fee 

lands within its reservation when that conduct threatens or has 

some direct effect on the political integrity, the economic 

security, or the health or welfare of the tribe.

Id. at 565–66 (citations and footnote omitted).

[¶53.] In our 1993 Red Fox v. Hettich decision, a plurality of the Court viewed 

Montana somewhat narrowly as an expression of “tribal legislative jurisdiction.” 

494 N.W.2d 638, 646 (S.D. 1993). To this jurisdictional subpart, the Red Fox

plurality added a longer order of operations, including an inquiry into “tribal 

judicial jurisdiction,” which, in turn, was a function of territorial jurisdiction, 

subject-matter jurisdiction, and personal jurisdiction. Id. at 642–44. As to the last 

of these, we engaged in a “traditional long-arm analysis,” holding that “before the 

tribal court can assert jurisdiction over a non-Indian, he must receive notice and 

have ‘minimum contacts’ with the tribe.” Id. at 645 (quoting Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)).13

[¶54.] But in two decisions after Red Fox, the Supreme Court left little doubt 

that Montana provided a more complete rule concerning a tribe’s authority to assert 

civil jurisdiction over non-Indians.

Montana thus described a general rule that, absent a different 

congressional direction, Indian tribes lack civil authority over 

the conduct of nonmembers on non-Indian land within a 

reservation, subject to two exceptions . . . .

13. The non-Indian defendant in Red Fox v. Hettich lived within the exterior 

boundaries of the Standing Rock Indian Reservation on fee land. 494 N.W.2d 

638 (S.D. 1993).
#30046

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Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S. Ct. 1404, 1409–10, 137 L. Ed. 2d 

661 (1997); see also South Dakota v. Bourland, 508 U.S. 679, 695 n.15, 113 S. Ct. 

2309, 2320 n.15, 124 L. Ed. 2d 606 (1993) (quoting Montana, 450 U.S. at 565, 101 S. 

Ct. at 1258) (noting the “reality that after Montana, tribal sovereignty over 

nonmembers ‘cannot survive without express congressional delegation’ . . . and is 

therefore not inherent”).

[¶55.] Similarly, in Plains Commerce Bank v. Long Family Land & Cattle 

Co., the Supreme Court held that “[g]iven Montana’s general proposition that the 

inherent sovereign powers of an Indian tribe do not extend to the activities of 

nonmembers of the tribe, efforts by a tribe to regulate nonmembers, especially on 

non-Indian fee land, are presumptively invalid.” 554 U.S. 316, 330, 128 S. Ct. 2709, 

2720, 171 L. Ed. 2d 457 (2008) (cleaned up). The Court described the Montana

exceptions to this general rule—consensual commercial relationships and threats to 

the tribe—as “limited.” Id. (citation omitted).

[¶56.] But in our J.D.M.C. decision, which came after Strate but before Plains 

Commerce, we continued to view Montana’s general rule with what may have been 

unjustified precision. As the Red Fox plurality had fourteen years earlier, we 

relegated Montana to a test for “legislative jurisdiction” and analyzed other 

dissected jurisdictional concepts,14 including personal jurisdiction under a 

14. It is difficult to perceive any meaningful distinction between a tribe’s 

legislative jurisdiction and its judicial or adjudicative jurisdiction in a case 

like this, given the Supreme Court’s holding in Strate v. A-1 Contractors: “As 

to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its 

legislative jurisdiction. Absent congressional direction enlarging tribal-court 

jurisdiction, we adhere to that understanding.” 520 U.S. 438, 453, 117 S. Ct. 

(continued . . .)
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traditional “minimum contacts” analysis. In re J.D.M.C., 2007 S.D. 97, ¶¶ 41, 43–

47, 739 N.W.2d 796, 809–12. But this personal jurisdiction inquiry seems 

particularly dubious.

[¶57.] The non-Indian father named in an SWO tribal court abuse and 

neglect order in J.D.M.C. did not reside within a reservation and by undertaking a 

minimum contacts inquiry, we seemed to suggest that he could conceivably be 

subject to the SWO’s jurisdiction.15 There is no authoritative support for this sort of 

expansion of tribal jurisdiction over non-Indians. The Montana general rule and 

exceptions are applicable only for assertions of tribal jurisdiction over non-Indians 

living or acting within a reservation. And, in any event, we specifically held in 

J.D.M.C. that “marrying a tribal member, allowing children to be enrolled members 

of the tribe and receiving tribal services do not qualify under the consensual 

________________________

(. . . continued)

1404, 1413, 137 L. Ed. 2d 661 (1997). In other words, a tribe cannot, without 

express congressional authority, enact laws that exceed the tribe’s inherent 

power to adjudicate.

15. The father in In re J.D.M.C., 2007 S.D. 97, 739 N.W.2d 796, lived in Sisseton 

on fee land, but unlike the fee land status of the non-Indian defendant in Red 

Fox, the Sisseton fee land was not Indian country because it did not lie within 

the exterior boundaries of a reservation as a result of the Supreme Court’s 

DeCoteau decision. DeCoteau v. District County Court, 420 U.S. 425, 95 S. Ct. 

1082, 43 L. Ed. 2d 300 (1975). See 18 U.S.C. 1151(a) (defining “Indian 

country” as “all land within the limits of any Indian reservation under the 

jurisdiction of the United States Government, notwithstanding the issuance 

of any patent”). However, Indian country status has generally not been 

significant for a determination of civil jurisdiction under the Montana line of 

cases which have instead focused on limits of Indian reservations and the fee 

status of land within them. See Garcia v. Gutierrez, 217 P.3d 591, 597 (N.M. 

2009) (observing that the “Montana cases largely fail to address” the 

significance of Indian country under 18 U.S.C. 1151).
#30046

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relationship exception in Montana.” Id. ¶ 41 (citing Atkinson Trading Co., Inc. v. 

Shirley, 532 U.S. 645, 655, 121 S. Ct. 1825, 1833, 149 L. Ed. 2d 889 (2001)).

[¶58.] In both Red Fox and J.D.M.C., we appeared uneasy as we acted on our 

impulse to label Montana’s holding as a subject matter or personal jurisdiction 

concept. See Red Fox, 494 N.W.2d at 643 (asking if Montana is “a facet of subject 

matter jurisdiction? Of personal jurisdiction? It is unclear. It appears from our 

reading of the cases, that it is neither and both.”); J.D.M.C., 2007 S.D. 97, ¶ 41, 739 

N.W.2d at 809 (“Montana is really a test for subject matter jurisdiction[.]”). Though 

I can appreciate such careful attention to detail, distinguishing between the two 

jurisdictional types does not make a tribal court’s assertion of jurisdiction over a 

non-Indian any more or less permissible.

[¶59.] The non-Indian party in Red Fox lived on a reservation, and our 

decision should have reflected a more accurate view of Montana’s holding. In 

J.D.M.C., the non-Indian party did not live on a reservation, and there was no 

exceptional basis for the assertion of tribal jurisdiction. Our suggestion that a 

tribal court could somehow acquire jurisdiction over a non-Indian in these 

circumstances using conventional jurisdictional concepts was, in my view, incorrect.

[¶60.] As it relates to the comity issue here, there is a straightforward path to 

resolution. Comity under SDCL 1-1-25 depends upon the tribal court having 

jurisdiction over Leslie. It did not. Leslie is a non-Indian and did not live on a 

reservation, and there is no claim that a Montana exception applies. The tribal 
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court’s orders relating to Leslie are not, therefore, entitled to comity.16 It is 

unnecessary to further examine, as the Court does, the discrete topics of the tribal 

court’s subject-matter jurisdiction or consider the possibility that Leslie could be 

haled into court under a traditional due process assessment of his contacts with the 

tribal forum.

[¶61.] Finally, I would not engage in the res judicata analysis the Court 

undertakes. Terri’s res judicata theory is simply an extension of what she, at times, 

mischaracterizes as a full faith and credit argument, which the Court correctly 

reclassifies as a comity issue. This comity issue concerns the circuit court’s 

recognition of the tribal court’s initial assertion of jurisdiction, not the final tribal 

court judgment of divorce. See Mack v. Trautner, 2009 S.D. 13, ¶ 12, 763 N.W.2d 

121, 124 (quoting Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., Inc., 336 

N.W.2d 153, 157 (S.D. 1983)) (“[F]or res judicata to bar a subsequent claim, ‘the 

earlier court must have had jurisdiction and its decision must be final and 

unreversed.’”).

[¶62.] Consequently, Terri’s claim that Leslie’s effort on appeal constitutes an 

impermissible collateral attack on a final tribal court divorce begs the fundamental 

predicate question of comity (and jurisdiction) which lies at the heart of the appeal. 

If there was no basis for recognizing the tribal order asserting jurisdiction in the 

16. Frankly, even if Leslie did live on fee land within a reservation, there 

appears to be no basis for tribal jurisdiction. His marriage to Terri is not the 

sort of consensual relationship envisioned by Montana, as we noted in 

J.D.M.C., and there is no claim that Leslie’s “conduct threatens or has some 

direct effect on the political integrity, the economic security, or the health or 

welfare of the tribe.” Montana, 450 U.S. at 566, 101 S. Ct. at 1258.
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first place, then neither is there a basis for recognizing the subsequent tribal 

divorce judgment purporting to divide the marital estate.17

[¶63.] DEVANEY, Justice, joins this writing.

MYREN, Justice (concurring in part and dissenting in part).

[¶64.] I agree with Justice Kern’s analysis, which concludes that the full faith 

and credit clause does not apply to Indian tribes in the same way it applies to 

states. I also agree that South Dakota courts may only give effect to a tribal court 

order as a matter of comity under circumstances consistent with SDCL 1-1-25.

[¶65.] Terri filed a motion to dismiss based entirely on the theory that the 

tribal court’s order was “entitled to the same full faith and credit as any other outof-state judicial proceeding.” Leslie filed a memorandum in opposition to the motion 

to dismiss, contending the tribal court order “cannot be recognized pursuant to 

SDCL 1-1-25(1)(a), and the state court case should be allowed to proceed.” An 

affidavit from Leslie was attached to the memorandum in opposition to the motion 

to dismiss. The circuit court conducted a hearing regarding Terri’s motion to 

dismiss. Terri’s counsel informed the court that “[m]y client, Terri Torgerson, is in 

the courtroom today if the Court would be inclined to hear testimony from her.” 

17. Terri argues that the tribal court had jurisdiction over the divorce case as a 

component of its sovereignty and its “rightful and legitimate concern in the 

marital status of its tribal members[.]” She may well be correct if she was 

arguing only that the tribal court has the authority to determine the marital 

status of SWO members, but that narrow issue is not presented. Instead, 

Terri’s claim is broader and does not differentiate between this determination 

of status and the other divisible legal issues that often accompany divorces, 

such as the equitable division of the marital estate. See Kelly v. Kelly, 759 

N.W.2d 721, 723 (N.D. 2009) (describing the “divisible divorce” doctrine 

which involves (1) a determination of marital status and (2) “the adjudication 

of the incidences of the marriage”).
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Leslie again requested a comity ruling by drawing the circuit court’s attention to 

SDCL 1-1-25. His counsel specifically argued, “It’s up to the party wanting that 

order to be recognized to prove it by clear and convincing evidence.” Neither party 

presented any testimony or other evidence at the hearing. Neither party mentioned 

Leslie’s affidavit attached to the memorandum in opposition or asked the circuit 

court to receive it into evidence. The circuit court did not discuss SDCL 1-1-25 or 

make any ruling related to comity. Instead, the circuit court granted the motion to 

dismiss and based its decision entirely on the application of the full faith and credit 

clause. I agree the circuit court erred in its application of the full faith and credit 

clause. However, there is no comity ruling for this Court to review for error, and I 

would remand with direction that the circuit court address the unresolved comity 

issue.

[¶66.] The opinions of Justices Kern and Salter provide learned and detailed 

explanations about how they perceive the United States Supreme Court’s decision 

in Montana should affect the comity analysis. I announce no position on that issue 

because I do not believe that discussion is necessary for our resolution of this case. 

The circuit court issued no comity ruling, and we are not called upon to explain 

whether a circuit court’s decision about comity was correct or incorrect. In this 

situation, any explanation of comity by the Court is dicta.