Risse v. Meeks

SD 112 Risse, RISSE, and Juanita Bonnie Art Appellants,

Page, Plaintiffs Amy Meeks, MEEKS, Elsie James Toczek, al., Defendants et Appellees. 20184.

No. Dakota. Supreme of South Court April 1998. on Briefs Considered Aug. Reassigned 10, 1998. Opinion Decided Nov. Kemnitz, plaintiffs Philip, for

Ralph A. appellants. Of- of Abourezk Law

Charles Abourezk appel- fices, City, Rapid for defendants lees. (on

GILBERTSON, reassignment). cattle owners Landowner sued damages. trespass of cattle and granted motion to owners’ dismiss Cattle on the issue of subject matter not have trial court held did jurisdiction. affirm. We FACTS Risse, Risse, and Juanita Art Bonnie Risses) (collectively referred to

Page land Ben- residing on deeded non-Indians Dakota, County, outside South nett subject jurisdiction. argued of the Pine matter Meeks current exterior boundaries They Ridge they predicate Reservation. started the that Indian were Indians and the act Meeks, current action James Elsie punitive damages or omission for occurred Meeks, Amy (collectively and, such, Toczek re- Country2 Indian as this claim was Meeks), members of ferred to as who are only cognizable in tribal court. (Tribe) residing Tribe within [¶ 7.] On October the trial court Pine Ridge the exterior boundaries of the dismissing filed an order the second count County. Indian Reservation Jackson complaint relating punitive damages 12,1994, allege August Risses that on [¶ 3.] that the the basis trial court lacked sub- twenty-four one head cattle car- hundred ject jurisdiction. trial matter court held rying registered to Meeks en- the brands subject that pu- matter over the property in Bennett tered onto Risses’ Coun- nitive claim would lie tribal court. ty. allegedly The cattle entered Risses’ appeal. [¶ 8.] Risses by property land Meeks leased from the Tribe. The land from which the cattle trust ISSUE

entered Risses’ land held by for the benefit Tribe the United States [¶ Whether the trial court erred in within America and is located Bennett determining that it did have County, but outside the current exterior matter over the dam- Ridge boundaries of the Pine Indian Reser- ages claim set forth in two of count Riss- vation.1 complaint. es’ Following alleged trespass, Riss- gathered pursuant es and retained the cattle STANDARD OF REVIEW provided SDCL ch 40-28 and notice of “Our [¶ 10.] standard review of a probable damage by caused trial grant court’s or denial of a motion to by cattle. The cattle were reclaimed Meeks dismiss is same as our of a review motion through posting required by aof bond as judgment for summary pleader enti —is SDCL 40-28-9. tled judgment as a matter of law?” Estate filed suit [¶ 5.] Risses with the state circuit Billings v. Congregation Deadwood Je County, court in Jackson South Dakota. The Witnesses, (S.D. hovah N.W.2d alleged first complaint count of the 1993) Ranch, (citing Marsden, Jensen Inc. v. sought compensatory damages (S.D.1989)). N.W.2d Jurisdic crossing onto Risses’ land. The second any tional issues raised time. complaint count sought dam- ¶ 6, Hayes, Devitt v. 1996 SD willful, wanton, ages and claimed and reck- Oveson, (citing Deno v. Meeks, by less alleging conduct failed to (S.D.1981)). This Court reviews property. install a fence around their challenges de novo. Id. acknowledged jur- Vandermay,

[¶ 6.] Meeks State v. court’s N.W.2d (S.D.1991); complaint, Horse, isdiction as to count one of Spotted but State v. (S.D.1990)). moved to dismiss the second count lack of parties litigation 1. approach Country All to this this dis- defines Indian 18USC1151 pute proposition from the State of South (a) any all land within the limits Dakota has no over land held in trust under the of the United by the United States of America. State of Government, notwithstanding the issu- arguing South Dakota has filed an amicus brief and, patent, any including righls-of- ance of automatically that all land is trust outside reservation, (b) way running through the jurisdiction merely its trust sta- dependent Indian communities within the bor- argument by tus. As the advanced the amicus ders of the United States whether within the parties was not nor briefed raised and we original thereof, acquired subsequently territory it, adequate record to address we will and whether within without proceed adjudicate appeal state, (c) this without allotments, ventur- limits of a all Indian ing point into the raised the State leave it the Indian titles to which have not been extin- adequate guished, including rights-of-way another time with record with running briefing. through full same. Umiker, (S.D.1979); Hall v.

DECISION 364-65, 209 362-363 legal prin There are certain issue. our cipals guide resolution general proposition, puni As a art de Constitution XXII Dakota’s South tive are not recoverable in tort ac Indian lands shall remain that “said clares expressly allowed statute. tions unless jurisdiction and control of under absolute Nonetheless, 21-1-4. SDCL 21-3-2 SDCL Congress See of the United States.” provides: 650, 152 N.W.2d Temple, v. Smith any In for of obli- action the breach consistently held This Court has 547 contract, arising gation not “inappropriate for states to assert that it is of guilty oppression, has been defendant if it affairs’ jurisdiction over ‘reservation fraud, malice, presumed, or or in actual or sovereignty and with tribal would interfere animals, any wrongful injury to ease of impair of self-government and in- being subjects property, of committed 531 Gesinger Gesinger, v. tribal courts.” by tentionally or willful and wanton mis- (S.D.1995) (citing Iowa Mut. conduct, disregard humanity, in of LaPlante, 9, 15-16, 107 Ins. Co. jury, damage, may addition the actual (1987)); 19-20 94 L.Ed.2d S.Ct. give damages example, of sake Guardianship Flyinghorse, re see also In of by way punishing the defendant. (S.D.1990); Wells 456 N.W.2d (S.D.1990). Wells, In 451 N.W.2d specifically found this statute This Court has jurisdiction, “‘the determining issues of applies brought pursuant of action causes always whether the state question has been Till, In this Court deter- to SDCL 40-28-4. infringed neighboring was entitled mined landowner their laws be ruled Indians make own exemplary in an action ” Ho, Inc., Oyate Sage Sicangu by them.’ damage by trespass- owner caused for (quoting cattle, ing where evidence indicated Lee, Williams v. U.S. disregard neigh- wanton and reckless (1959)). 269, 271, Finally, 3 L.Ed.2d rights by the cattle owner. bor’s assump preemption forms another barrier to at 279. reservation Indians. this there is Id., at White Mountain 481-482 as to whether the circuit has 136, 143, Bracker, 448 U.S. Apache Tribe v. underlying claim jurisdiction to decide the 40-28-4 under SDCL (1980)). compensatory damages. ques issue of complaint alleges Risses’ a violation juris state have tion is do the courts 40-28-4, provides which as follows: of SDCL damages? over the claim for diction pro- Except chapter as in this otherwise vided, in his any person owning having or complaint One of the [f Count mules, horses, charge possession any or alleges: swine, cattle, sheep, which such goats, or 12,1994,124 August head That on about or trespass upon ei- animals shall by Defendants and of cattle owned unfenced, by or ther fenced owned specifically charge in the and control person, cropped any being possession did enter onto Defendant James Meeks injured by trespass, by any person such damage plaintiffs and cause lands person injured any liable to such shall be thereon, added). (emphasis by reason of for all sustained trespassing. such pursuant Clearly a cause of action this is damage Risse’s ch based on SDCL 40-28 interpreted provide has been statute not Indian Coun- undisputedly land liability damage by done live- for strict jurisdiction of try the State under injury to another’s stock for Bennett, Count Two Dakota. of South property. Till Supra 2. note (if seeking punitive damages, any factually proven) complaint Risse’s Meeks can alleges: realty acts or omissions committed lease and which owned fencing in not the Defendants conduct such, United of America in trust. As land intentional and will-

their leased disregard any disposed claim of ful with reckless wanton and Plaintiffs, Const, Rickert, rights (emphasis XXII. add- art. See ed). 440-41, 481-2, U.S. at 47 L.Ed. recently 537-38. More in DeCoteau v. Dis- kept The Meeks’ cattle were land Court, County trict America owned the United States of (1975), Oglala Under trust for the Sioux Tribe. in matters Court held of civil Tribal Law and Order Code that: Book, 35, 17, “Grazing § ch Permit Contracts Code,” improvements permanent such as It is common ground here that become the of the landown- fences occurring on conduct the trust allotments er, in this case the United States in trust for beyond jurisdiction, being the State’s currently Tribe.4 Dakota law is in the South instead the concern agreement accord that absent an to the con- federal authorities. trary, fixture part fences become a of the Brennan, In Peano 20 S.D. Curran, realty. See Curran v. N.W. 409 in suit was state (1939) (interpreting 289 N.W. 418 SDCL 43- by agent court an Indian an Indian 33-2). allegedly destroying the Indian’s fence In recognized 17.] Till this Court [¶ Ridge located on the Pine Indian Reserva damages punitive by were recoverable a tion. the jurisdic We held that State had no landowner suffered when who a adjudicate tion to as the neighbor’s trespassed cattle on the landown- realty action arose on was which under the so, doing land. In we er’s noted that it was exclusive of the United States based on “tortious acts involve circum- state precluded by art ingredients, stances or ... or malice a XXII our State Constitution. Id.See also disregard rights

wanton and reckless A O’Neal v. Diamond Cattle Id., plaintiff.” of the 281 N.W.2d at 279. In (1935). N.W. upholding jury plaintiff, verdict for the so on did based the defendants intentional not on does non-suit Risses keep to failure the fence-line closed punitive their damages. Chapter trespass. Obviously malice, or wanton Oglala Section 20 of permits Sioux Code disregard and reckless occurs intentional jurisdiction of all suits wherein “defen- improper maintenance of the fence failure dant is Oglala a member of the Sioux Tribe to install fence at the defendants’ bound- and of all other suits between members and us, ary line. In the case now before there is non-members who consent to the even a claim that the Meeks entered onto permit- of the tribe.” Punitive damages are any legal the Risse’s land or had or contrac- injury “deliberately ted when inflict- place obligation tual a fence Risse’s Code, 2, § ed.” ch 22.2. Risses land. conceded the trial court that could Thus, applicable complaint litigated 18.] have matter in tribal court and on justification law find with fault their sole doing so was lands, nothing approach. part 4. There essentially novel to this In tion are and their Rickert, United States 188 U.S. 23 S.Ct. necessary use the Indians effectuate although L.Ed. the Court held Id., policy of the United at States.” 188 U.S. at South Dakota's tax laws the time classified L.Ed. permanent improvements realty owned analysis applied Rickert Court the same to an Indians, personal United trust for attempt to tax cattle located on this trust land property, this state classification did create provided by which was United States to state permanent improvements form of taxation 443-4, 482-83, Indians. 188 S.Ct. at U.S. at realty. made to "The 47 L.Ed. at 538-39. improvements ques- fact remains that the here Personal going there[J ain’t “we (1976); Lee, court as the using tribal Williams with dissatisfaction legal of a dis- jurisdiction for the resolution 3 L.Ed.2d 251 On the hand, rejected as a valid basis out- pute has “tribal activities conducted been other proceed in another jurisdiction to present different consid- create side Mutual, 18- system. express Iowa court .... Absent federal law to erations 21-2. 94 L.Ed.2d at beyond contrary, going Indians reserva- generally tion boundaries been held sum, we hold that the tribal subject non-discriminatory state law oth- has exclusive applicable to all citizens of the State.” erwise affirm the trial damage claim and therefore Jones, Apache Tribe v. Mescalero court. 145, 148-49, (1973) (citation omitted). if a con- MILLER, C.J., Thus [If J., troversy Country, Indi- KONENKAMP, arose outside Indian writing. concur with living ans on reservations AMUNDSON, JJ., SABERS and jurisdiction. Spencer, Voorhees dissent. (Nev 1, 5-6, 1321, 1323-24 Nev. 504 P.2d KONENKAMP, (concurring). 1973). a majority opinion sets forth question But the here is more en analysis. concur congruent jurisdictional tangled. types jurisdictional dis these of only purpose responding for of separately proper inquiry is putes, whether the “[t]he legal princi- By employing to the dissents. infringe the state would actions of law, ples from Indian the dissents isolated right of reservation Indians to make and be to legally sound resolution fail to articulate by their own laws.” Matter governed of miss problem. They jurisdictional a difficult C.L.L., Guardianship D.L.L. and 291 of points: none of the cases two crucial Williams, 278, 281 (S.D.1980)(citing; sovereign crossing bound- cite involve 217, 269, 3 L.Ed.2d at aries; excep- ignore both well-settled 251; Fisher, Ry. N. 116 U.S. Utah & Co. v. splitting causes of against to rule tions (1885)). 246, 28, L.Ed. Even 6 S.Ct. 29 542 actions. is off the reserva when the focus allege do not that the own- courts, courts, 25.] Plaintiffs tion, not state are the tribal off the reservation onto ers drove their cattle disputes cer to resolve about forum strayed plaintiffs only (citations that the cattle Id. property interests. tain Indian adequate omitted). test,” off the due to lack reservation “infringement Under might purpose poli- fencing. be the or What thirty say today this Court said can what perhaps Indian land: cy having fences on years ago: of the reserva-

to mark off the boundaries courts have [0]ur state interest; tion; special some demarcate a civil action hear and determine straying; prevent horses possession alleged wrongful use and quality and help stockgrowers maintain the Country by a in Indian land located herds, breeding or control health their impose To state law Indian defendant. mixing sires from with by preventing inferior controversy jurisdiction in this and state reasons, state Whatever the other herds. Reser- infringe upon Ridge the Pine would the construc- have no over courts power to make vation Indians’ and maintenance of fences Indian by them. governed their own laws and Country. imposing punitive damages Yet Wilson, 482, 487, 161 N.W.2d v. Kain fencing the reservation allows decisions on omitted). (citation indirectly it could never state to do what directly. do argu- of the the converse Consider tribal courts regulate and ment. Would power to Indians 26.] State upon non-resi- impose punitive damages gener- sharply delimited. See Indian lands 373, or maintain failure to construct County, 426 dents for ally Bryan v. Itasca U.S. 880 First,

fences off the No court has ble to this reservation? case. the Restatement 26(l)(e) (1982) Cowboy ever v. Judgments § so held. See Halwood Auto Second holds Sales, Inc., 77, general inapplicable 124 N.M. 946 P.2d 1088 the when: empowered (Ct.App.1997)(tribal court to im plaintiff rely was unable to on a cer- pose punitive on non-Indians for theory tain or case to seek certain reservation); Resources, conduct on UNC remedy or form relief in first 358, Benally, F.Supp. 514 Inc. v. 362 because of the limitations on the (D.N.M.1981)(tribal impose court cannot trib matter courts restric- al civil standards of behavior conduct off tions their to entertain multi- seeking in civil compensato suits ple multiple theories or demands reme- This, ry course, punitive damages). action, single dies or in a forms relief not, say that states in various plaintiff and the desires the second ac- circumstances, exercise rely theory tion to on that seek claims Indians in state courts non- remedy or form relief.... Indians, even when those claims arose See, e.g., United v. States Pan-American Country. Poafpybitty Shelly See v. Cir.1932), (9th Co., 753, 55 Petroleum F.2d 782 365, 982, Oil 88 S.Ct. U.S. denied, rt. 287 U.S. ce (1968); Williams, L.Ed.2d 1238 U.S. (1932). 77 L.Ed. Top See also Cream (dictum); S.Ct. 3 L.Ed.2d 251 Creamery Inc., v. Dean Milk Co. 383 F.2d Candelaria, United v. U.S. (6th Cir.1967); Lyons Westing (1926); 70 L.Ed. 1023 (2d Cir.1955), house Elec. Corp., F.2d 184 Patrick, Felix denied, reh’g (2d.Cir.1955), 222 F.2d 195 cert. (1892); L.Ed. Fellows v. Lyons, Walsh denied (19 How.) Blacksmith, 15 L.Ed. (1955). 100 L.Ed. 737 Further Temple, See also Smith more, the apply rule does not if: (S.D.1967)(resident 650, 152 judgment in plain- The the first action VI, § tribal Indians have under Art ly inconsistent with fair equitable and bring of South Dakota Constitution to implementation statutory of a or constitu- maintain civil in actions courts re scheme, tional or it sense wrongs against person proper dress of plaintiff permit- scheme that the should be ty). split ted to his claim.... against splitting [¶ 29.] rule actions is 26(l)(d) Judgments § Restatement Second of adjunct an to judicata. the doctrine of res (1982). Unmistakably, the constitutional and judicata “The prevents doctrine of res ... statutory “scheme” preservation here ‘splitting of a requires cause action’ and all sovereignty. upon grounds a single claim is based Secondly, action, importantly, [¶ to be asserted in but more 31.] and concluded one pain being separate against splitting inapplicable barred from suit.” actions is Wright, splits § Federal when the itself Courts 297. Accord an action Clark, dismissing v. County attributing Baertsch Lewis and a claim without fault (Mont litigant. Mont. to Wildfong P.2d Fireman’s Fund 1986)(rule Co., Mich.App. Ins. splitting causes of action (Mich.App.1989). merger Only and doctrine of inextricably litigant splits when a related principle judicata). to will apply. res At the heart cause action the doctrine Indus., judicata Aquatherm preclude parties res is the effort Inc. “to v. Florida Power & (11th Light Cir.1996), contesting matters have had a F.3d (11th Cir.1998), aff'd, opportunity litigate.” reh’g full and fair 145 F.3d 1258 to Mon- en denied, (11th Cir.1998). States, banc tana v. United 162 F.3d 100 59 L.Ed.2d 210 dealing complexjurisdiction- with questions dissenters’ indiscriminate reli- al it is incumbent us to state against splitting ance on the rule clearly causes of our rationale for the benefit of future exceptions ignores clearly applica- disputes. action two respond We must also at times to erty rights interfering and laws from with legal argument, lest confuse problematical Moreover, property. to for our decisions. the title real since juridical underpinnings testimony Thus, major- such actions often involve the fully I concur with the although explain why concerning the my analysis to local witnesses ity opinion, I add usages action and the historical be error. the dissents consider property, the restricted venue makes it C.J., MILLER, joins special likely more be that the action will tried in so I am authorized to state. writing and a convenient forum with full disclosure of facts, all relevant and notice to interest- SABERS, (dissenting). parties. ed dispositive of law in principle [¶ 34.] The engage in an Court will exhaus- majority rule that this case is survey dealing tive of all the cases with the be trespass property to real must “transitory” It problem. “local” is suffi- property real is situated. brought where the point generally cient out that those punitive damages claim Because which have been found be local cases action, independent separate or cause of property; injunctive involved either title to punitive damage ancillary dependent, stop injury property; relief to or an property the real also be tried where must action for ... or waste. Therefore, trial court erred situated. remand. we should reverse and 6-8); (Collecting at nn. Hunt cases see also Attrill, ington “Trespass realty, being a local [1135.] (1892) (“Crimes 36 L.Ed. county be in the where action must local, are their nature Trespass § CJS lies[.]” the land rights of crimes is local. And so (1954); Trespass 75 AmJur2d see also property, subject being real fixed and (1991): § at 156 immovable.”). trespasses damages for Actions to recover person personal property are or to princi- Perhaps this is such a basic may transitory character ple of the common law of that this brought against the offender he wherever compelled court has never before felt to state However, actions to recov- be found. analyzed it. in cases where injuries damages for real er jurisdiction in we had actions for whether local, transitory, and not and therefore country, trespass property in to real Indian they brought in the forum where must be we based our decision on where land was the land is situated. situated, giving regard no where de- added). See, e.g., is Dia- (Emphasis A “local action” O’Neal v. resided. fendant 481, 484, Co., mond A 63 S.D. 260 Cattle it principal facts on which wherein [o]ne (finding 838 no mat- N.W. nature; as are of a local where is founded trespass jurisdiction in action for to Indi- ter recovered, of is be possession land country stating, “Certainly case an trespass, damages for an actual presents controversy a with reference affecting in such case waste possession Indian lands in the right of of particu- the cause of action relates some Brennan, country.”); 20 Peano v. usually constitutes locality, lar which also (1906) (de- 342, 349, 106 412 N.W. the venue of the action. clining subject matter to assume (6th ed.1990). Dictionary Black’s Law 938 noting that tres- land and over reservation In French v. Coal 36.] [¶ Clinchfield reservation would be pass to land outside the 15-16 (D. Del.1976), F.Supp. court 407 jurisdiction). court under state difference between local and discussed the transitory explained rationale actions and It sense whatsoever for makes no requiring actions be local require majority opinion to is situated: where real court when damage claim to be tried tribal salutory trespass It must be tried reasons. The rule exists Obviously, tribal trespass prop- local occurred. prevents courts unfamiliar with 882 AMUNDSON, (dissenting). over the

court has no majority opinion claim. The cites authori- respectfully I dissent. 42.] ty multiplicity for the creation of such a of consistently [If This Court has held Therefore, puni- suits. would hold that the it “inappropriate that is for states to assert damage claim be tried tive must same jurisdiction over ‘reservation if affairs’ it county in the same where the land is would sovereignty interfere with tribal not a “cause ac- situated because of self-government impair of merely dependent, ancillary tion” —it a Gesinger courts.” Gesinger, v. 531 claim to the cause of action. (S.D.1995) (citing 20 Iowa Mut. opinion majority violates three LaPlante, 9, 16, 107 Ins. Co. v. First, principles principle of law: 971, 976, (1987)); L.Ed.2d see also In rule,” above; “majority second, as stated Guardianship Flyinghorse, re 456 N.W.2d principle against multiplicity of law of ac- (S.D.1990); Wells, Wells tions; and, third, spirit principle of the (S.D.1990). In determining against law splitting causes of action because “ jurisdiction, issues of question ‘the has al split, mandating here a ways been infringed whether the state action action, causes but of one cause action right of reservation Indians to make claim, dependent, ancillary and one ” their own laws and be ruled them.’ qualify does not even as a cause of action. Sage Ho, Inc., Sicangu Oyate 473 N.W.2d Distributing Wayne, Sodak Company See (S.D.1991) Lee, (quoting Williams 496, 499, 93 N.W.2d 217, 220, (stating “[i]t is likewise conceded that (1959)). Furthermore, pre permit single the rule this state does emption assumption forms another barrier split among cause action be or divided over reservation Indians. Id. suits.”) (citations omitted). gen- several See Apache White Mountain Tribe v. erally Benning, Wintersteen v. Bracker, (S.D.1994) J., (Sabers, dissenting) (1980)). (stating generally recognized “[i]t that the against splitting In this there is no primarily for benefit defen- juris to whether the circuit court has dant....”); Family Bowen v. American diction to underlying decide the claim for Group, Ins. trespass under SDCL 40-28-3 and the issue (stating long recognized “we have compensatory damages. question is: subrogated split interest Would the assertion the state court of insured’s cause of action a tortfea- over the claim for dam sor.”); Edwards, Annotation, Joseph E. ages infringe “on the of reservation of, Raise, Promptly Waiver Failing Indians to make their own laws and be ruled Action, Objection Splitting Cause 40 by Guardianship of Sasse, them”? In re (1971) (stating A.L.R.3d that “[t]he (S.D.1985) Williams, N.W.2d precluding splitting of a cause of action 3 L.Ed.2d at is founded principle person the that no 254). test, In considering this certain crite should be unnecessarily with a mul- harassed helpful guide analysis. ria are our “These suits.”). tiplicity of (1) following: are the parties whether are non-Indians, Indians or whether the cause above, Notwithstanding [¶ 40.] if the reservation, of action arose within the Indian claimant here is his trespass successful on and what is the nature of the interest to claims, punitive damage may and he have to (citations omitted). protected.” be Id. go levy any to tribal court to and on execute judgment in excess of the bond. noted, parties As we are composed

[¶ 41.] The trial court erred as a matter of of both Indian and non-Indians. rejecting jurisdiction However, law punitive on allegedly trespassed the cattle on damage claim and part we should reverse and land that was Country” of “Indian remand. damaged property belonging to non-In- Thus, punitive for Clearly, damages Risses’ claim the cause of action persons. dian parties independent do not an additional cause arose off the reservation Furthermore, point. separated this can and stand on action which be protected is to be of the interest nature its D. & own. See Edward Jones Schaffer property hold their of non-Indians to right (holding trespassing animals damage by secure punitive damages “that are not allowed ab contains no This record on non-Indian land. compensatory damages.”); sent an award sovereign interest the tribe evidence (S.D. Anderson, Speck v. infringed upon if the would otherwise be Kirkwood, 1984); Inc., Johnson jurisdiction over all circuit court was allowed (S.D.1981). short, an in this case. In examina- the issues punitive damages 48.] Risses’ claim for criteria leads the conclusion these merely an to an asserts entitlement addition- allowing damages, requires proof al element of not “interfere with tribal this case would disregard of malice or a wanton reckless impair self-government sovereignty [nor] rights by authority Gesinger, 531 the claimant’s the defendant. of tribal courts.” (citation omitted). warranted, punitive is no To damages There find that are N.W.2d at attempt jurisdiction in this case jury trespass to confer will first have to find that a only tribe, sought Then, over the 40-28-4. occurred under SDCL readily who have admitted over members punitive jury will have to consider whether trespass. has state court by considering are warranted alleged Meeks’ conduct as relates to Nevertheless, ruling Meeks seek a may their cattle. This conduct which would bifurcate this from this Court on have occurred the reservation off parts of action into two single cause —one reservation, may actually be or the conduct relating presentation requiring of evidence an omission or lack of conduct. Malice compensatory damages to claim for be “However, presumed. be 21-3-2. requir- SDCL presented in court and another circuit injuries damages for relating punitive damage actions to recover ing evidence local, transitory, portion presented in tribal and not of the claim be real authority provide they for such in the court. Meeks and therefore must be procedure and I find no Am- an odd forum land is situated.” 75 (1991). justify it. Trespass § 204 Evidence that Jur2d allowed their cattle Meeks with- To hold that the state court is maliciously are the real that Meeks did so punitive dam- jurisdiction to decide the out were issues whether Meeks be to treat the claim for ages issue would residing at the time on the reservation separate damages as a ac- Thus, if allegedly malice. acted with indisputable it is that “[a] tion. trespassing properly underlying claim for punitive damages must based on court, claim for circuit before the action, since, as a underlying cause of some by that same properly addressed rule, separate is no and distinct general there not, significant any court. This would exemplary damages.” cause of action for way, infringe “on of reservation § Punitive Damages AmJur2d make their own laws and be ruled Indians to damages merely constitute element re- (cita- Sage, covery underlying cause of action. Id. them.”5 apply sovereign immunity indi- provides does not even dis- tribal SDCL 21-1-4.1 before covery punitive damages, there on the issue of the tribe over whom the vidual members of court, hearing in which the trial based personal jurisdiction must be con- obtained court has evidence,” convincing upon finds a "clear and Puyallup occurring the reservation. duct on there to believe that has been damages. reasonable basis Tribe, Dept., Washington Game 433 U.S. Inc. v. punitive to warrant conduct sufficient 667, L.Ed.2d 97 S.Ct. Here, knowing do the benefit not have (1977) (rejecting that the state the claim evidence, any, what if there on the issue. We on- reserva- could not exercise oc- will that the issue involves conduct assume fishing). does mean that state law tion Nevertheless, curring on the reservation. imposed upon members in this the tribal will Supreme held that Court of United States has omitted); Contractors, Strate v. A-1 issue arose on non-tribal land when the cattle cf. 438, 117 1404, 137 L.Ed.2d allegedly property. crossed onto Risses’ The (1997) (state jurisdiction over tort court had regulations statutes and that Tribe cites are involving though non-Indians even inapplicable, deal with livestock on tribal land where events occurred tribal land, on grazing issues not with pro necessary court’s was not of animals prop- onto non-tribal self-government). tect tribal erty. trespass of animals onto non- Tribe has filed a tribal land and the claim for anot curiae, contending brief as amicus that the thus, and, “reservation affair” is not outside government Tribe and federal have enacted of our Gesing- state courts. regulations govern extensive laws and er, (citing Cropmate 531 N.W.2d at 20 Co. v. grazing management and range conduct Inc., Indian Resources Intern. F.Supp. effectively on trust preempts land which (D.Mont.1993)).6 state court in this ease. We [¶ 50.] would reverse and disagree. power remand. tribe’s inherent “[A] does ‘beyond necessary pro- reach what is self-government tect tribal or to control in- Strate,

ternal at relations.’” 520 U.S. (quot- 137 L.Ed.2d States, ing Montana v. United 1245, 1257-58, (1981)) (alterations omitted). 509-10 While speaks land,” Tribe itsof “affected the real respect case with ages. to the claim for dam- tion[.]” the same case affirmed a stale The conduct that warrant ruling finding state court "be- damages, any, if will be evaluated based land, patented upon cause 'the non-Indian place rules laws of the portion giving acts omissions rise to occurs, namely conduct tribal land. occurred, the [order court] is not within " Country.’ majority 6. The relies DeCoteau v. District just 43 L.Ed.2d at 305. In this Court, County portion giving of the acts rise to Risses' claim for (1975), propo- major arose on non-Indian but occurring sition "Indian conduct portion arose there. beyond jurisdic- trust allotments is the State's

Case Details

Case Name: Risse v. Meeks

Court Name: South Dakota Supreme Court

Date Published: Nov 10, 1998

Citation: 585 N.W.2d 875

Docket Number: None

Court Abbreviation: S.D.