Gesinger v. Gesinger, 18649

• Decision Date: 26 April 1995
• Docket Number: No. 18649,18649
• Citation: 531 N.W.2d 17
• Parties: Keith GESINGER, Plaintiff and Appellee, v. Gerald GESINGER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 17

531 N.W.2d 17

Keith GESINGER, Plaintiff and Appellee, v. Gerald GESINGER, Defendant and Appellant.

No. 18649.

Supreme Court of South Dakota.

Argued Sept. 14, 1994.

Decided April 26, 1995.

Al Arendt of Maher and Arendt, Pierre, for plaintiff and appellee.

Eric H. Bogue, Dupree, for defendant and appellant.

AMUNDSON, Justice.

Appellant Gerald Gesinger (Gerald) appeals from the trial court's decision to grant comity to the judgment of the Cheyenne River Sioux Tribal Court (tribal court) in favor of Keith Gesinger (Keith). We affirm.

FACTS

The parties in this case are father and son. Gerald is non-Indian; Keith is Indian, and an enrolled member of the Cheyenne River Sioux Tribe. The two entered into an oral employment agreement whereby Keith would receive livestock as compensation for working for his father. In 1987, a dispute arose over ownership of twenty head of cattle which, at the time of the initial dispute, were located on the Cheyenne River Sioux Reservation.

Gerald and Keith remained at odds over ownership of the livestock. In the spring of 1988, the controversy culminated in a physical confrontation when Gerald came onto Keith's trust property attempting to reclaim some of the cow-calf pairs. Tribal police and the Dewey County Sheriff were summoned and the parties entered into a written agreement over ownership of the cattle on the site. Like the previous oral contract, the written agreement was never fully satisfied by either party.

In July of 1988, Gerald commenced a suit in tribal court against Keith for conversion of the cattle. Keith moved to dismiss the suit, alleging the tribal court lacked jurisdiction under the Cheyenne River Sioux Tribal By-Laws existing at the time. ¹ The tribal court granted Keith's motion on October 21, 1988. Gerald did not appeal this decision.

After the suit was dismissed, Keith sold some of the cattle at a Fort Pierre livestock sale. Gerald filed a claim and delivery action in Stanley County which tied up the cattle proceeds. The state trial court subsequently dismissed the action for lack of jurisdiction over Keith, due to his status as an enrolled tribal member. In January 1989, Gerald once again entered onto Keith's trust property and removed more cattle allegedly belonging to Keith.

In January 1990, Keith returned to tribal court to file an action against Gerald seeking money damages for wrongful conversion of the cattle and the return of any remaining livestock. The tribal court assumed jurisdiction based on the recent decisions of Duchenaux v. First Federal (# 85-022-A) [16 Ind.L.Rep. 6147 (1989) ]; Thorstenson v. Cudmore, (# 88-018-A) [18 Ind.L.Rep. 6051 (1991) ]; and Lind v. Dale (# 89-019-A). Gerald filed an interlocutory appeal regarding the jurisdiction issue to the Tribal Court of Appeals. On January 17, 1992, the Cheyenne River Court of Appeals filed a memorandum opinion and order affirming tribal court jurisdiction. Keith's claim was remanded for a jury trial in tribal court.

The jury returned a verdict for Keith, which the tribal court ultimately reduced to $29,517.86. Gerald appealed the verdict and posted a cost bond, but refused to post a supersedeas bond. The tribal appeal was pending at the time this action for comity was filed. ² Due to Gerald's refusal to post the supersedeas bond, the tribal court issued an order denying a stay of execution of judgment pending the outcome of the tribal appeal. Keith brought a motion for release of funds to retrieve the disputed sum being held by the clerk of courts for Stanley County. His motion was denied by the Sixth Circuit Court. Keith then filed a petition to grant comity to the tribal court judgment with the Eighth Circuit Court in Dewey County. Comity was granted. Gerald appeals this order.

ISSUES

I. DID THE CIRCUIT COURT ERR BY GRANTING COMITY TO THE TRIBAL COURT JUDGMENT UNDER SDCL 1-1-25?

II. DID THE CIRCUIT COURT ERR BY GRANTING COMITY TO A TRIBAL COURT JUDGMENT STILL ON APPEAL TO THE TRIBAL APPELLATE COURT?

STANDARD OF REVIEW

Comity will only be granted where the elements of SDCL 1-1-25 are established by clear and convincing evidence. One Feather v. O.S.T. Pub. Safety Com'n., 482 N.W.2d 48, 49 (S.D.1992). "Comity" has been defined as:

The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity of nations.' ...

'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, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Mexican v. Circle Bear, 370 N.W.2d 737, 740 (S.D.1985) (quoting Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 143, 40 L.Ed. 95, 108 (1894)). Comity is a question of jurisdiction which is reviewed de novo. Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993) (citing State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990)), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991).

DECISION

ISSUE I

THE CIRCUIT COURT DID NOT ERR BY GRANTING COMITY TO THE TRIBAL COURT JUDGMENT UNDER SDCL 1-1-25.

The requirements to grant comity to a tribal court under South Dakota law are established in SDCL 1-1-25. ³ This statute allows a state court to recognize tribal court orders and judgments where the tribal court had jurisdiction over the subject matter and the parties; the judgment was obtained by a process assuring the requisites of an impartial administration of justice; the judgment complies with tribal laws, ordinances and regulations; and does not contravene the public policy of the state of South Dakota. One Feather, 482 N.W.2d at 49 (holding trial court erred by ordering execution of a judgment when execution was in direct conflict with a recognized tribal court order).

Gerald argues that the circuit court's grant of comity to the tribal court order was erroneous because Keith failed to satisfy the requirements of SDCL 1-1-25. Gerald asserts four reasons to support his claim that granting comity was in error. They are: first, the tribal court lacked jurisdiction to entertain the suit; second, the tribal court was not impartial in administering justice; third, the tribal court failed to comply with its own tribal constitution; and fourth, to grant comity contravenes public policy. Each argument will be discussed in turn.

I. Jurisdiction

Gerald's first contention is that the tribal court lacked both subject matter and personal jurisdiction. The Cheyenne River Sioux Tribal Constitution in effect at the time, provides in pertinent part: "[Tribal Courts] shall have jurisdiction ... between Indians and non-Indians where such cases are brought before it by stipulation of both parties ..." C.R.S.T. Const. Art. V, Sec. (1)(c). ⁴ Gerald alleges that tribal jurisdiction could not be maintained because the parties did not so stipulate.

Despite the irony of the facts, at the time Keith initiated the second trial over the controversy in tribal court, the status of the law had changed to warrant both personal and subject matter jurisdiction to the tribe. Tribal Court of Appeal's case law, subsequent to the dismissal of Gerald's original claim, interpreted that "stipulation of tribal jurisdiction" could be satisfied by the parties' written agreement. See Dale, (# 89-019-A); Thorstenson, (# 88-018-A); Duchenaux (# 85-022-A). The Tribal Court of Appeals reasserted this interpretation when Gerald argued the jurisdiction issue on interlocutory appeal.

Both parties concede they signed a written agreement regarding ownership of the cattle. Moreover, the cattle were located on trust property of the Cheyenne River Sioux Reservation when Gerald entered onto the reservation to repossess them. The United States Supreme Court has held it inappropriate for states to assert jurisdiction over "reservation affairs" if it would interfere with tribal sovereignty and self-government and impair the authority of tribal courts. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16, 107 S.Ct. 971, 976, 94 L.Ed.2d 10 (1987) (citing Nat. Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)).

In a case factually related to the Gesinger dispute, Cropmate Co. v. Indian Resources Intern. Inc., the Ninth Circuit Court of Appeals held that "the determinative inquiry [of tribal jurisdiction] is whether the dispute at issue, i.e., the purported agreement between [the parties], is a 'reservation affair.' " 840 F.Supp. 744, 747 (D.Mont.1993). The court explained that "tribal courts presumptively [have] jurisdiction over activities that take place on tribal land." Id. (citing United States v. Plainbull, 957 F.2d 724, 727 (9th Cir.1992)).

Clearly, the dispute between Gerald and his son is a "reservation affair." The cattle were located on trust land, Keith was a tribal member residing on the reservation, and the written agreement regarding the cattle disposition was executed on the reservation. Therefore, the trial court was correct to find jurisdiction with the tribal court.

Gerald further alleges that this court's holding in Red Fox, 494 N.W.2d 638, supports his claim against recognizing the tribal court's personal jurisdiction over a non-Indian. Red Fox held that, unless the tribe has authority to regulate the conduct of non-Indians on state highways, the tribal court does not have authority to adjudicate the action. Id. at 645. However, the facts of Red Fox are clearly distinguishable from those presented in this case.

Here, we are dealing with a breach of contract and conversion action against a tribal member whose property was maintained on Indian trust land. Moreover, Gerald freely entered into a contract with...