Risse v. Meeks

Decision Date29 April 1998
Docket NumberNo. 20184,20184
Citation585 N.W.2d 875,1998 SD 112
PartiesArt RISSE, Bonnie Risse, and Juanita Page, Plaintiffs and Appellants, v. James MEEKS, Elsie Meeks, Amy Toczek, et al., Defendants and Appellees. . Considered on Briefs
CourtSouth Dakota Supreme Court

Ralph A. Kemnitz, Philip, for plaintiffs and appellants.

Charles Abourezk of Abourezk Law Offices, Rapid City, for defendants and appellees.

GILBERTSON, Justice (on reassignment).

¶1 Landowner sued cattle owners for trespass of cattle and punitive damages. Cattle owners' motion to dismiss was granted on the issue of punitive damages because the trial court held it did not have subject matter jurisdiction. We affirm.


¶2 Art Risse, Bonnie Risse, and Juanita Page (collectively referred to as Risses) are non-Indians residing on deeded land in Bennett County, South Dakota, outside of the current exterior boundaries of the Pine Ridge Indian Reservation. They started the current action against James Meeks, Elsie Meeks, and Amy Toczek (collectively referred to as Meeks), who are members of the Oglala Sioux Tribe (Tribe) residing within the exterior boundaries of the Pine Ridge Indian Reservation in Jackson County.

¶3 Risses allege that on August 12, 1994, one hundred twenty-four head of cattle carrying the brands registered to Meeks entered onto Risses' property in Bennett County. The cattle allegedly entered Risses' property from land leased by Meeks from the Tribe. The land from which the cattle entered Risses' property is trust land held for the benefit of Tribe by the United States of America and is located within Bennett County, but outside the current exterior boundaries of the Pine Ridge Indian Reservation. 1

¶4 Following the alleged trespass, Risses gathered and retained the cattle pursuant to SDCL ch 40-28 and provided notice of trespass and probable damage caused by the cattle. The cattle were reclaimed by Meeks through posting of a bond as required by SDCL 40-28-9.

¶5 Risses filed suit with the state circuit court in Jackson County, South Dakota. The first count of the complaint alleged a trespass and sought compensatory damages for the cattle crossing onto Risses' land. The second count of the complaint sought punitive damages and claimed willful, wanton, and reckless conduct by Meeks, alleging they failed to install a fence around their property.

¶6 Meeks acknowledged the court's jurisdiction as to count one of the complaint, but moved to dismiss the second count for lack of subject matter jurisdiction. Meeks argued that they were Indians and the predicate act or omission for punitive damages occurred in Indian Country 2 and, as such, this claim was only cognizable in tribal court.

¶7 On October 17, 1996, the trial court filed an order dismissing the second count of the complaint relating to punitive damages on the basis that the trial court lacked subject matter jurisdiction. The trial court held that subject matter jurisdiction over the punitive damages claim would lie in tribal court.

¶8 Risses appeal.


¶9 Whether the trial court erred in determining that it did not have subject matter jurisdiction over the punitive damages claim set forth in count two of Risses' complaint.


¶10 "Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment--is the pleader entitled to judgment as a matter of law?" Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D.1993) (citing Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762, 764 (S.D.1989)). Jurisdictional issues may be raised at any time. Devitt v. Hayes, 1996 SD 71, p 6, 551 N.W.2d 298, 300 (citing Deno v. Oveson, 307 N.W.2d 862, 863 (S.D.1981)). This Court reviews challenges to court jurisdiction de novo. Id. (citing State v. Vandermay, 478 N.W.2d 289, 290 (S.D.1991); State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990)).


¶11 There are certain legal principals that guide our resolution of this issue. South Dakota's Constitution art XXII declares that "said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." See Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967). This Court has consistently held that it is "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." Gesinger v. Gesinger, 531 N.W.2d 17, 20 (S.D.1995) (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15-16, 107 S.Ct. 971, 976, 94 L.Ed.2d 10, 19-20 (1987)); see also In re Guardianship of Flyinghorse, 456 N.W.2d 567, 568 (S.D.1990); Wells v. Wells, 451 N.W.2d 402, 405 (S.D.1990). In determining issues of jurisdiction, " 'the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.' " Sage v. Sicangu Oyate Ho, Inc., 473 N.W.2d 480, 481 (S.D.1991) (quoting Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251, 254 (1959)). Finally, preemption forms another barrier to assumption of jurisdiction over reservation Indians. Id., at 481-482 (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672 (1980)).

¶12 Risses' complaint alleges a violation of SDCL 40-28-4, which provides as follows:

Except as in this chapter otherwise provided, any person owning or having in his charge or possession any horses, mules, cattle, goats, sheep, or swine, which such animals shall trespass upon the land, either fenced or unfenced, owned by or in possession of any person, or being cropped by any person injured by such trespass, shall be liable to any such person injured for all damages sustained by reason of such trespassing.

This statute has been interpreted to provide for strict liability for damage done by livestock for trespass and injury to another's property. Till v. Bennett, 281 N.W.2d 276, 278 (S.D.1979); Hall v. Umiker, 87 S.D. 362, 364-65, 209 N.W.2d 361, 362-363 (1973).

¶13 As a general proposition, punitive damages are not recoverable in tort actions unless expressly allowed by statute. SDCL 21-1-4. Nonetheless, SDCL 21-3-2 provides:

In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.

This Court has specifically found this statute applies to causes of action brought pursuant to SDCL 40-28-4. In Till, this Court determined a neighboring landowner was entitled to exemplary damages in an action against a cattle owner for damage caused by trespassing cattle, where the evidence indicated a wanton and reckless disregard of the neighbor's rights by the cattle owner. 281 N.W.2d at 279.

¶14 In this case, there is no dispute as to whether the circuit court has proper jurisdiction to decide the underlying claim for trespass under SDCL 40-28-4 and the issue of compensatory damages. The question is do the courts of this state have jurisdiction over the claim for punitive damages?

¶15 Count One of the complaint alleges:

That on or about August 12, 1994, 124 head of cattle owned by the Defendants and specifically in the charge and control of Defendant James Meeks did enter onto the lands of the plaintiffs and cause damage thereon. (emphasis added).

Clearly this is a cause of action pursuant to SDCL ch 40-28 based on damage to Risse's land that is undisputedly not Indian Country 3 and is under the jurisdiction of the State of South Dakota. However, Count Two of Risse's complaint seeking punitive damages, alleges:

that the Defendants conduct in not fencing their leased land was intentional and willful with wanton and reckless disregard for the rights of the Plaintiffs. (emphasis added).

¶16 The Meeks' cattle were kept on land owned by the United States of America in trust for the Oglala Sioux Tribe. Under the Oglala Sioux Tribal Law and Order Code Book, ch 35, § 17, "Grazing Permit Contracts Code," all permanent improvements such as fences become the property of the landowner, in this case the United States in trust for the Tribe. 4 South Dakota law is currently in accord that absent an agreement to the contrary, fences become a fixture and part of the realty. See Curran v. Curran, 67 S.D. 119, 289 N.W. 418 (1939) (interpreting SDCL 43-33-2).

¶17 In Till this Court recognized that punitive damages were recoverable by a landowner who suffered damages when a neighbor's cattle trespassed on the landowner's land. In doing so, we noted that it was based on "tortious acts which involve circumstances or ingredients, of malice ... or a wanton and reckless disregard of the rights of the plaintiff." Id., 281 N.W.2d at 279. In upholding a jury verdict for the plaintiff, we did so based on the defendants intentional failure to keep the fence-line closed to cattle trespass. Obviously the malice, or wanton and reckless disregard occurs by intentional improper maintenance of the fence or failure to install the fence at the defendants' boundary line. In the case now before us, there is not even a claim that the Meeks entered onto the Risse's land or had any legal or contractual obligation to place a fence upon Risse's land.

¶18 Thus, the complaint and applicable law on punitive damages find fault with the Meeks (if any can be factually proven) for acts or omissions committed upon the realty which they lease and which is owned by the United States of America in trust. As such, any claim of state jurisdiction is disposed of by S.D....

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