Red Fox v. Hettich

Decision Date13 January 1993
Docket NumberNo. 17509,17509
Citation494 N.W.2d 638
PartiesLavonne RED FOX, Plaintiff and Appellant, v. Ronald HETTICH, and Northwest G.F. Mutual, Defendants and Appellees.
CourtSouth Dakota Supreme Court

B.J. Jones, Dakota Plains Legal Services, Fort Yates, for plaintiff and appellant.

Daniel Todd of Bormann, Buckmeier, Bauer & Todd, Mobridge, for defendants and appellees.

Mark Barnett, Atty. Gen., John P. Guhin, Deputy Atty. Gen., Pierre, for amicus curiae State of S.D.

MILLER, Chief Justice (on reassignment).

LaVonne Red Fox (Red Fox) appeals from an order of the circuit court which granted summary judgment to Ronald Hettich (Hettich) and Northwest G.F. Mutual Insurance (Northwest), Hettich's homeowner's insurance carrier. We affirm.


Red Fox is an enrolled member of the Standing Rock Sioux Tribe who, at the time this action was commenced in circuit court, resided in Fort Yates, North Dakota, which is within the exterior boundaries of the Standing Rock Sioux Indian Reservation. This reservation extends from North Dakota into South Dakota. Hettich is a non-Indian who, at the time this action was commenced, resided and operated a business in McLaughlin, South Dakota, 1 which is within the exterior boundaries of the Standing Rock Sioux Indian Reservation. In the past he has utilized the Standing Rock Sioux Tribal Court to collect judgments from tribal members.

On the night of September 24, 1988, Red Fox was operating a motor vehicle on State Highway 63 in Corson County, South Dakota, which county lies entirely within the Standing Rock Sioux Indian Reservation. She struck a dead horse, owned by Hettich, which was on the highway. A few days later, Red Fox filed a civil complaint in the Standing Rock Sioux Tribal Court in Fort Yates, alleging that her vehicle was damaged as a result of Hettich's negligence. On September 28, Hettich was served by certified mail with the summons and complaint as well as a notice of hearing set for October 21.

Hettich did not appear at the hearing in tribal court. At that hearing, the tribal court heard testimony from Red Fox and the officer who investigated the accident. Thereafter, findings of fact and conclusions of law were entered, as was a default judgment against Hettich which awarded Red Fox $1,780.86 for property damages. Notice of entry of judgment was filed and served on Hettich by regular mail on November 3. Hettich refused to satisfy the tribal court judgment and failed to comply with the tribal court's May 2, 1989, order to appear before it to disclose his assets.

Red Fox then commenced this action in circuit court against Hettich and Northwest seeking an order from the circuit court granting full faith and credit to the tribal court judgment or recognizing its judgment on the basis of comity. In addition, Red Fox sought to recover attorney's fees from Northwest, pursuant to SDCL 58-12-3, for its refusal to pay the judgment.

All parties moved for summary judgment. The circuit court heard argument on November 26, 1990, and on March 12, 1991, entered an order which denied Red Fox' motion for summary judgment and granted summary judgment to Hettich and Northwest. The circuit court determined that (1) the tribal court had subject matter jurisdiction over the cause of action against Hettich; (2) the tribal court could not assert personal jurisdiction over Hettich; (3) the tribal court judgment was not entitled to recognition either under full faith and credit or comity principles; and (4) Red Fox had no bad faith claim against Northwest.

Red Fox appeals, claiming the circuit court erred (1) in concluding the tribal court's judgment was not entitled to comity because it did not have personal jurisdiction over Hettich and (2) in failing to award attorney's fees. Because we decide the trial court properly concluded the tribal court judgment was not entitled to comity, we need not reach the question of attorney's fees.



We first examine the status of the parties and the location which gave rise to this civil action. Plaintiff, Red Fox, is an enrolled member of the Standing Rock Sioux Tribe. Defendant, Hettich, is a non-Indian. Red Fox resides on the North Dakota portion of the Standing Rock Sioux Indian Reservation; Hettich resides on fee land on the South Dakota portion. The claimed tort occurred within the exterior boundaries of the Standing Rock Sioux Indian Reservation.

A judgment was entered in tribal court which Red Fox asked the circuit court to recognize. The circuit court denied recognition of the tribal judgment. SDCL 1-1-25 guides our determination of whether the tribal court judgment may be recognized by the courts of South Dakota:

No 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, 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[.]

SDCL 1-1-25(1)(a). 2

As a preliminary matter, this statute applies only to an "order or judgment of a tribal court in the state of South Dakota[.]" Interestingly enough, it is Red Fox who claims that the Standing Rock Sioux Tribal Court is not a tribal court of South Dakota because its headquarters is in Fort Yates, North Dakota. Therefore, she asserts that we must recognize the tribal court judgment under the principles of full faith and credit. 3 However, the Standing Rock Sioux Tribal Court exercises its jurisdiction throughout the Standing Rock Reservation, including that substantial portion which lies within South Dakota. Thus, we believe the Standing Rock Sioux Tribal Court is "a tribal court in the state of South Dakota" within the meaning of SDCL 1-1-25 and that this case is governed by SDCL 1-1-25. We now turn to an examination of the statute's terms and conditions.

Red Fox must first clearly and convincingly establish that the tribal court had jurisdiction over both the subject matter and the parties. SDCL 1-1-25(1)(a); Wells v. Wells, 451 N.W.2d 402, 403 (S.D.1990); In re Defender, 435 N.W.2d 717, 720 (S.D.1989); State ex rel. Joseph v. Redwing, 429 N.W.2d 49, 50 (S.D.1988) cert. denied, 490 U.S. 1069, 109 S.Ct. 2071, 104 L.Ed.2d 636 (1989). See also, Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985) (citing Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S.Ct. 139, 158, 40 L.Ed. 95, 122 (1895)). We review jurisdictional challenges de novo. State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990) cert. denied, --- U.S. ----, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991).


Before a tribal court may adjudicate a matter, Professor Frank Pommersheim notes: "First, the tribal court has to determine whether it possesses judicial jurisdiction over the suit. And second, the court must resolve whether the tribe has the legislative authority to regulate the conduct of non-Indians engaged in the activities at issue." F. Pommersheim, The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction, 31 Ariz. L.Rev. 329, 335 (1989) (hereinafter Pommersheim) (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 12, 107 S.Ct. 971, 974, 94 L.Ed.2d 10, 17 (1987)). See National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985).

We agree with Professor Pommersheim's general thesis that tribal judicial jurisdiction depends on "whether the tribal court has proper subject matter, personal, and territorial jurisdiction...." Pommersheim, supra at 336. These issues are resolved by determining whether federal law limits the tribal court's authority and whether tribal law has empowered the tribal court to hear the case. Id. at 334. Unless the determination has been made that the tribal court has judicial jurisdiction, we need not resolve whether the tribe has legislative authority to regulate Hettich's conduct pursuant to Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Both must be found before SDCL 1-1-25(1)(a) is satisfied, for without legislative authority to regulate Hettich's conduct, the tribal court will have no case which it can adjudicate. 4

SDCL 1-1-25, requires us to analyze jurisdictional issues through its traditional components of subject matter and personal jurisdiction. This is not unreasonable in light of the fact that we engage in such an analysis before recognizing other foreign judgments, Baldwin v. Heinold Commodities, Inc., 363 N.W.2d 191, 194 (S.D.1985); Bahr v. Bahr, 85 S.D. 240, 244, 180 N.W.2d 465, 467 (1970); see also SDCL 15-16A-1 to 10 (Uniform Enforcement of Foreign Judgments Act), as do federal courts. Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 1188, 59 L.Ed.2d 416, 425 (1979); Kulko v. California Super. Ct., 436 U.S. 84, 96, 98 S.Ct. 1690, 1702, 56 L.Ed.2d 132, 143 (1978). However, a review of the cases of the United States Supreme Court reveals that the analysis of jurisdictional issues between Indian and federal or state governments is rarely broken down into the traditional facets of subject matter and personal jurisdiction. Rather, the United States Supreme Court refers to criminal or civil jurisdiction. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Montana, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493, and cases decided since, refer to regulatory jurisdiction. But is this 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. While recognizing Indian tribes occupy a unique...

To continue reading

Request your trial
14 cases
  • Calvello v. Yankton Sioux Tribe
    • United States
    • South Dakota Supreme Court
    • March 25, 1998
    ...reviewable de novo. Bruggeman v. South Dakota Chem. Dep. Counselor Cert. Bd., 1997 SD 132, p 6, 571 N.W.2d 851, 852; Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993). Lastly, we also review de novo whether an Indian tribe waived its sovereign immunity. See Rosebud Sioux Tribe v. Val-U Con......
  • Macarthur v. San Juan County
    • United States
    • U.S. District Court — District of Utah
    • October 12, 2005
    ...of comity if a list of conditions is met, including impartiality of the tribal proceedings. S.D. Cod. Laws 1-1-25; see Red Fox v. Hettich, 494 N.W.2d 638 (S.D.1993). Other state statutes or rules vary greatly in the degree to which the condition recognition of tribal court William C. Canby,......
  • In re J.D.M.C.
    • United States
    • South Dakota Supreme Court
    • September 12, 2007
    ...reservation in order to meet the due process requirements of the Indian Civil Rights Act (ICRA). See 25 USC § 1302; Red Fox v. Hettich, 494 N.W.2d 638, 645 (S.D. 1993); In re DeFender, 435 N.W.2d 717 (S.D.1989); see also B.J. Jones, A Primer on Tribal Court Civil Practice, available at http......
  • In re C.J.
    • United States
    • Ohio Court of Appeals
    • March 13, 2018
    ...process standards that govern state court assertion of jurisdiction over non-residents also apply to tribal courts. Red Fox v. Hettich , 494 N.W.2d 638, 645 (S.D.1993) ; J.D.M.C. at ¶ 44–52 ; In re DeFender , 435 N.W.2d 717, 720–21 (S.D.1989). Thus, a state or an Indian tribe may constituti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT