Mexican v. Circle Bear, No. 14917

• Court: Supreme Court of South Dakota
• Writing for the Court: WOLLMAN; FOSHEIM, C.J., MORGAN, J., and WUEST; HENDERSON; HENDERSON
• Citation: 370 N.W.2d 737
• Parties: Mabel MEXICAN, Plaintiff and Appellant, v. Irene CIRCLE BEAR and Sarah Mexican, Defendants and Appellees, and Campbell Paula Quinn Funeral Home, Defendants.
• Docket Number: No. 14917
• Decision Date: 03 July 1985

Page 737

370 N.W.2d 737 Mabel MEXICAN, Plaintiff and Appellant,
v.
Irene CIRCLE BEAR and Sarah Mexican, Defendants and
Appellees,
and
Campbell Paula Quinn Funeral Home, Defendants. No. 14917. Supreme Court of South Dakota. Argued May 22, 1985.
Decided July 3, 1985.

Michael Depree of Dakota Plains Legal Services, Eagle Butte, for plaintiff and appellant.

Ramon Roubideaux, Rapid City, for defendants and appellees.

Keith A. Tidball of Tidball & Johnson, Pierre, for amicus curiae Cheyenne River Sioux Tribe; B. Kevin Gover of Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., of counsel.

Page 738

WOLLMAN, Justice.

This is an appeal from a judgment of the circuit court quashing a temporary restraining order and releasing the body of Charles Mexican, deceased, to his sisters, Irene Circle Bear and Sarah Mexican. We reverse and remand with directions to give recognition to the order of the Cheyenne River Tribal Court.

Charles Mexican and Mabel Mexican (for convenience we will refer to decedent and the parties by their first names) were married on March 17, 1955. Mabel is an enrolled member of the Cheyenne River Sioux Tribe of South Dakota; Charles was an enrolled member of the Oglala Sioux Tribe of South Dakota. Irene and Sarah are enrolled members of the Oglala Sioux Tribe.

Charles and Mabel were long-time residents of Red Scaffold, South Dakota, which is located within the boundaries of the Cheyenne River Sioux Reservation. Charles served as a medicine man for the Sioux Nation. He became ill in late 1984 and was treated at the Indian Health Services Hospital in Eagle Butte, South Dakota. On January 8, 1985, Indian Health Services personnel transferred Charles to Sioux Sanitorium Hospital in Rapid City, where he remained until the time of his death on March 14, 1985. During his period of hospitalization in Rapid City, Charles was not visited by Mabel, which caused him to feel estranged from and unhappy with her. During his period of hospitalization Charles executed a will that purported to disinherit Mabel.

Prior to January 8, 1985, Charles' directions to Mabel were that he wished to be buried with his mother at Bridger, South Dakota. During his period of hospitalization, however, Charles expressed his desire that he be buried either with his deceased father at Rockyford, located within the boundaries of the Pine Ridge Indian Reservation, or in Rapid City, or in such place as designated by his son, John Mexican. Charles further stated that he did not want to be buried at Red Scaffold, South Dakota, and that he wanted his sisters to make arrangements for the disposal and burial of his body.

Upon learning of Charles' death and of his sisters' plans to bury him in Rapid City, Mabel obtained from the Cheyenne River Sioux Tribal Court on March 15, 1985, an ex parte order enjoining Irene and Sarah from burying Charles' body and directing those having physical custody of the body to turn it over to Mabel. Upon learning that Campbell Paula Quinn Funeral Home, which had custody of the body, would not honor the tribal court order, Mabel applied to the circuit court on March 16 for a temporary restraining order and order to show cause why Irene and Sarah and the funeral home should not be permanently enjoined from interfering with her rights and duties under state law to dispose of her husband's body. The trial court issued a restraining order and order to show cause. A hearing on the order to show cause was held in Rapid City on March 18. Irene and Sarah moved to continue the circuit court proceedings until the Cheyenne River Sioux Tribal Court had been given a chance to hold a hearing on the order that it had issued on March 15.

On March 19 a hearing was held in the Cheyenne River Sioux Tribal Court, at which Irene and Sarah, together with John Mexican and one of Irene's daughters, testified in support of Irene and Sarah's contentions that Charles and Mabel were estranged at the time of Charles' death and that Charles had directed that he be buried at a place other than on the Cheyenne River Reservation. Counsel for Irene and Sarah stated during the course of the hearing that "our claim is a tribal custom and usage, that's our claim to the body of Charles Mexican." Again, in arguing his clients' position at the conclusion of the hearing, counsel stated:

[I]t would appear that the court could take judicial notice whatever the court considers tribal custom to be because I think that's a controlling matter here. I don't think the State law has really anything to do with it.... We feel that since the court has taken the matter over

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we're moving the court to vacate its Order of March 15, 1985. That the court indicate in an Order where it considers the tribal custom to be and that particular order would be a very great use by Judge Konenkamp who now has to make the final decision concerning this matter in Rapid City. But, I do know that he wants to know. He wants the tribal custom and usage of the tribe to be taken into consideration when he makes his decision. I think that's the way he's going to go. The State law might provide for white people. I do feel that he's not bound just like we're bound to accept state law. Most of the Judges are looking to give full faith and credit to tribal court orders and I think that's a good development. I think they're really looking to us to give them some advice in this matter that they know little or nothing about.

At the conclusion of the hearing, the tribal judge entered oral findings from the bench, reduced to writing and filed on March 20, and awarded custody of Charles' body to Mabel.

Among other things, the tribal court judge found that the customs of both the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe are that upon the death of a married person the surviving spouse, absent any showing that the parties were separated at the time of death, has the duty to bury the deceased spouse and the right to custody of the body for the limited purpose of burial. The tribal court found that Charles and Mabel were not separated at the time of Charles' death. The tribal court also found that the will that Charles had executed on March 11, 1985, contained no direction regarding his wishes for the disposition of his body upon his death.

On March 20, 1985, a further hearing was held before the circuit court in Rapid City. The trial court was made aware of the tribal court judge's findings of fact and order. At the close of the hearing, the circuit court quashed its March 16 temporary restraining order and entered a judgment awarding the custody of Charles' body to Irene and Sarah. This appeal followed. The trial court stayed its judgment pending our decision on appeal.

SDCL 34-26-1 provides:

Every person has the right to direct the manner in which his body or any part thereof shall be disposed of after his death, and to direct the manner in which any part of his body which becomes separated therefrom during his lifetime shall be disposed of. The provisions ... of Secs. 34-26-14 to 34-26-19, inclusive, do not apply where such person has given directions for the disposal of his body or any part thereof inconsistent with those provisions.

SDCL 34-26-14 provides in part: The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it....

SDCL 34-26-16 provides in part:

The duty of burying the body of a deceased person .. devolves upon the persons hereinafter specified:

(1) If the decedent was married the duty of burial devolves upon the husband or wife;

....

Although there is no property right as such in a dead body, the right to bury a dead body has been recognized by the courts as a quasi-property right. See, e.g., 22 Am.Jur.2d Dead Bodies Sec. 4 (1965); 25A C.J.S. Dead Bodies Sec. 2 (1966). The importance of the interest of the living in the bodies of the dead has been characterized as follows:

"We can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed; none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency...."

Scarpaci v. Milwaukee County, 96 Wis.2d 663, 672, 292 N.W.2d 816, 820 (1980) (quoting Koerber v. Patek, 123 Wis. 453, 102 N.W. 40 (1905)). It is with a recognition of

Page 740

and an appreciation for the highly personal nature of the right to arrange for the burial of the body of a deceased family member that we approach the resolution of the issue before us.

Mabel advances three arguments in support of her contention that the circuit court erred in entering its order of March 20, 1985: (1) that the circuit court lacked jurisdiction; (2) that the circuit court should have given full faith and credit to the tribal court's order; and (3) that the circuit court should have given recognition and effect to the tribal court's order under the doctrine of comity. We find it necessary to discuss only the last of these arguments.

The doctrine of comity has been defined as follows:

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." Although the phrase has been often criticised, no satisfactory substitute has been suggested.

"Comity," in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows...