Red Fox v. Hettich

494 N.W.2d 638, 1993 S.D. LEXIS 3, 1993 WL 5511

• Court: South Dakota Supreme Court
• Decided: January 13, 1993
• Docket: 17509
• Status: Published

Opinions

MILLER, Chief Justice

(on reassignment).

LaVonne Red Pox (Red Pox) appeals from an order of the circuit court which granted summary judgment to Ronald Het-tich (Hettich) and Northwest G.P. Mutual Insurance (Northwest), Hettich’s homeowner’s insurance carrier. We affirm.

FACTS

Red Pox is an enrolled member of the Standing Rock Sioux Tribe who, at the time this action was commenced in circuit court, resided in Port 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 Pox 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 Pox 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 Pox 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 Het-tich; (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.

DECISION

WHETHER THE TRIAL COURT ERRED IN REFUSING TO RECOGNIZE THE TRIBAL COURT ORDER UNDER THE PRINCIPLE OF COMITY.

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 l-l-25(l)(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).

TRIBAL JUDICIAL JURISDICTION

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 l-l-25(l)(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 position in the United States, we also recognize that this failure to analyze questions of tribal jurisdiction through, jurisdiction’s traditional component parts does not promote clarity of jurisdictional analysis.

We take the opportunity presented by this case to begin to clarify our method of jurisdictional analysis for the recognition of tribal court judgments. SDCL 1-1-25 does not directly address a criminal/civil breakdown of jurisdiction. Nor does it directly address a territorial or a legislative breakdown of jurisdiction. Nevertheless, we must make the initial determination of whether the action is civil or criminal. Once that determination is made, we look to territorial jurisdiction which is implicit in jurisdictional analysis. We then engage in our statute’s traditional subject matter and personal jurisdiction analysis. We conclude with Montana’s legislative analysis which will confirm or negate subject matter and personal jurisdiction, without actually being a facet of either.

The method we engage in today will help to better mesh South Dakota’s comity statute and its traditional subject matter/personal jurisdictional analytic requirements, with the United States Supreme Court’s civil/criminal/legislative jurisdictional analytic requirements.⁵

A. TERRITORIAL JURISDICTION

Having previously determined that this is a civil action, we now look to whether the territorial jurisdiction component of tribal judicial jurisdiction is satisfied. Although territorial jurisdiction is not directly addressed by the statute, it is a necessary predicate to the determination of subject matter and personal jurisdiction. This civil action arose out of an incident which occurred within the boundaries of the Standing Rock Sioux Indian Reservation⁶ on State Highway 63. The landowners adjacent to this highway, who owned their land in fee, had previously granted easements to the state for its construction. Nevertheless, this incident occurred within the boundaries of the reservation and is in Indian country.⁷ We conclude therefore, that the territorial jurisdiction component of the Standing Rock Sioux Tribal Court’s judicial jurisdiction has been met.

B. SUBJECT MATTER JURISDICTION

Subject matter jurisdiction relates to the power of a court to hear and determine a general class of cases to which a particular proceeding belongs.

Leon v. Numkena, 142 Ariz. 307, 689 P.2d 566, 568 (1984) (citations omitted). See also Harris v. Young, 473 N.W.2d 141, 143-44 (S.D.1991); In re Guardianship of Flyinghorse, 456 N.W.2d 567, 568 (S.D.1990); Redwing, 429 N.W.2d at 51.

A court’s jurisdiction of the subject matter ... exists when a constitution or statute specifically confers upon the court such jurisdiction. Timmerman v. Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957). This power is likewise conferred upon Indian courts by their constitutions or tribal codes. See generally Cohen, Federal Indian Law, p. 428 (1958).

Leon, 689 P.2d at 568.

The circuit court concluded the tribal court had subject matter jurisdiction over this cause of action. Despite the circuit court’s invitation to do so, Hettich did not formally appeal by way of notice of review. Normally, when an appellee fails to file a notice of review pursuant to SDCL 15-26A-22 (1992 Supp), the trial court’s conclusion of law becomes the law of the case and there is nothing for this court to review. See Rude Transp. Co. v. P.U.C., 431 N.W.2d 160, 162 (S.D.1988); State v. Howell, 354 N.W.2d 196, 198 (S.D.1984); In re Application of Northwestern Bell Telephone Co., 326 N.W.2d 100, 104 (S.D.1982); Gridley v. Engelhart, 322 N.W.2d 3, 5-6 (S.D.1982).

Nevertheless, both parties (and State, who filed an amicus brief) set out extensive arguments in their briefs regarding subject matter jurisdiction. In addition, Red Fox included in the docketing statement the issue of whether the tribal court judgment is entitled to comity. This issue necessarily includes the issue of subject matter jurisdiction. See SDCL 1-1-25. Further, the issue of subject matter jurisdiction in this case is of utmost importance to the state and the tribes. Thus, we will address it. See State Hwy. Comm’n v. Beets, 88 S.D. 536, 539-40, 224 N.W.2d 567, 568-69 (1974).

We first determine whether any federal statutes, decisional law or treaties control.⁸ Pommersheim, supra at 336. “Interestingly enough, there are no federal statutes or decisions that categorically bar tribal court jurisdiction over certain civil matters. Because of the general absence of federal statutes that deal with the allocation of civil jurisdiction, few civil cases will be disposed of at this stage of analysis.” Id. at 337. Similarly, we find no federal statutes, decisional law, or treaties which categorically limit this tribal court’s civil judicial jurisdiction through limits on subject matter, personal or territorial jurisdiction. Nor do we find any federal statutes or treaties which categorically grant this tribal court civil judicial jurisdiction. Absent specific treaty provisions or federal statutes which categorically bar or grant the Standing Rock Sioux Tribal Court civil judicial jurisdiction, “[cjivil jurisdiction over [activities of non-Indians on reservation lands] presumptively lies in the tribal courts[.]” Iowa Mutual, 480 U.S. at 18, 107 S.Ct. at 977, 94 L.Ed.2d at 21; Sage v. Sicangu Oyate Ho, Inc., 473 N.W.2d 480, 482 (S.D.1991); Defender, 435 N.W.2d at 722.

We now look to determine whether Red Fox has clearly and convincingly established that the tribal court has civil subject matter jurisdiction as a matter of tribal law. Tribal law includes treaties, the tribal constitution, code, decisional law and custom. Pommersheim, supra at 337. The Standing Rock Sioux Tribal Code provides:

1-107. Civil jurisdiction of the Standing Rock Sioux Tribal Court.

The judicial power shall extend to all cases in law and equity arising under the Tribal Constitution, the customs or the laws of the Tribe, and to any case in which the Tribe, a member of the Tribe, an Indian residing on the Reservation or a corporation or entity owned in whole or insubstantial part by any Indian shall be a party.

The tribal code clearly allows civil subject matter jurisdiction, as Red Fox, an enrolled member of the tribe, is a party to this civil action.

C. PERSONAL JURISDICTION

Tribal judicial jurisdiction also depends on whether the tribal court has personal jurisdiction over the defendant. The Standing Rock Sioux Tribal Code does not appear to limit jurisdiction to any great extent and clearly grants the Standing Rock Sioux Tribal Court personal jurisdiction over Red Fox. It is, however, silent on whether the tribal court has personal jurisdiction over a non-Indian defendant who resides within the exterior boundaries of the reservation.

Some tribal codes contain “long-arm statutes” similar to those found in state and federal law to obtain personal jurisdiction over non-tribal members. See, Law and Order Code of the Shoshone and Arapaho Tribes of the Wind River Indian Reservation, Wyoming Tit. I, § 1-2-3; Law and Order Code for the Ute Indian Tribe of the Uintah and Ouray Reservation, Utah ch. 2, § 1-2-3. The Standing Rock Sioux Tribal Code, however, contains no “long-arm” provision. Nevertheless, we agree with Professor Pommersheim’s suggestion that absent a tribal code provision, a tribal court could apply traditional federal long-arm jurisdictional analysis. Pommersheim, supra at 341. See, e.g., Rosebud Hous. Auth. v. LaCreek Elec. Coop., 13 Indian L.Rep. 6030 (Rosebud Sx.Tr.Ct.1986). Therefore, applying traditional long-arm analysis, before the tribal court can assert jurisdiction over a non-Indian, he must receive notice and have “minimum contacts” with the tribe. International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

We have previously said that the same due process standards which govern state court assertions of jurisdiction over nonresident defendants apply to tribal courts. Defender, 435 N.W.2d at 720 n. 2. Hettich was served notice of the tribal court proceeding via certified mail. This type of service is permitted by the Standing Rock Sioux Tribal Code, 2-102(4)(b)(4) and under the Federal Rules of Civil Procedure. Fed.R.Civ.P. 4(c)(2)(C)(ii) & (D). Cf. Wells, 451 N.W.2d at 403-04. Hettich acknowledged in his answer that he received notice of the claim. We conclude the reasonable notice requirement was met.

We next look to determine whether Red Fox has clearly and convincingly established that Hettich has the requisite “minimum contacts” with the Standing Rock Sioux Indian Reservation to enable this tribal court to assert jurisdiction over Hettich. More in the way of “minimum contacts” is required for a tribal court to exercise long-arm jurisdiction over a non-Indian “than would be sufficient for the citizen of one state to assert personal jurisdiction over the citizen of another state.” Babbitt Ford, Inc. v. Navajo Indian Tribe, 519 F.Supp. 418, 431 (Ariz.1981) aff'd in part, rev. in part on different grounds, 710 F.2d 587 (9th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984); Swift Transp., Inc. v. John, 546 F.Supp. 1185, 1193 (Ariz.1982), vacated as moot, 574 F.Supp. 710 (Ariz.1983). See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Hettich owns land, fee in nature, within the exterior boundaries of the reservation. He also owns and operates a grocery store within the exterior boundaries of the reservation. He engages in commercial transactions with tribal members. He has utilized the Standing Rock Sioux Tribal Court system to sue tribal members. Het-tich had sufficient minimum contacts with the tribe to justify the tribal court’s assumption of personal jurisdiction over him. Accordingly, we conclude the Standing Rock Sioux Tribal Court had judicial jurisdiction.

Nevertheless, mere presence within reservation boundaries is not enough to confer adjudicatory power on a tribal court. Montana, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493; Babbitt, 710 F.2d at 598. Unless the tribe has the authority to regulate the conduct of non-Indians on state highways, the tribal court will not have the authority to adjudicate this action. Iowa Mutual, 480 U.S. at 12,107 S.Ct. at 974, 94 L.Ed.2d at 17; Pommersheim, supra at 334. If mere physical presence within reservation boundaries is enough to confer tribal court jurisdiction, then the distinctions between reservation lands owned by Indians and those owned by non-Indians, as set forth in Montana and Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989), are meaningless. Therefore, a determination of whether there is tribal authority over non-Indians and their property is the other facet of a tribal court’s civil jurisdiction in Indian country. Pommersheim, supra at 334. We now look to determine whether Red Fox has clearly and convincingly established that the tribal court has the authority to adjudicate this matter as a result of the tribe’s authority to regulate the claimed conduct of Hettich.

TRIBAL LEGISLATIVE JURISDICTION

We again begin our inquiry with an examination of federal law. Tribal authority is inherent in the tribe’s retained sovereignty; it does not arise by delegation from the federal government. United States v. Wheeler, 435 U.S. 313, 328, 98 S.Ct. 1079, 1088-89, 55 L.Ed.2d 303, 315-16 (1978). Nevertheless, Indian tribes are “no longer ‘possessed of the full attributes of sovereignty!!]’ ” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106, 113 (1978); Montana, 450 U.S. at 565, 101 S.Ct. at 1258, 67 L.Ed.2d at 510; Wheeler, 435 U.S. at 322-23, 98 S.Ct. at 1086, 55 L.Ed.2d at 312 (1978). Tribal sovereignty is subject to limitation by specific Constitutional and treaty provisions, Wheeler, 435 U.S. at 323, 98 S.Ct. at 1086, 55 L.Ed.2d at 312, acts of Congress, Id.; Santa Clara Pueblo, 436 U.S. at 56, 72, 98 S.Ct. at 1675, 1684, 56 L.Ed.2d at 114, 124; Oliphant, 435 U.S. at 195, 98 S.Ct. at 1014, 55 L.Ed.2d at 213; Lone Wolf v. Hitchcock, 187 U.S. 553, 556, 23 S.Ct. 216, 217, 47 L.Ed. 299, 301 (1903); Fredericks v. Mandel, 650 F.2d 144 (8th Cir.1981); Nebraska Pub. Power Disk v. 100.95 Acres of Land, 540 F.Supp. 592, 598 (Neb.1982); Swift Transp., 546 F.Supp. at 1193; State v. Vandermay, 478 N.W.2d 289, 290 (S.D.1991); or by implication due to the tribe’s dependent status. Montana, 450 U.S. at 565, 101 S.Ct. at 1258, 67 L.Ed.2d at 510; Wheeler, 435 U.S. at 323, 98 S.Ct. at 1079, 1086, 55 L.Ed.2d at 303, 312; Cardin v. De La Cruz, 671 F.2d 363, 366 (9th Cir.) cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). As a general rule, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana, 450 U.S. at 565, 101 S.Ct. at 1258, 67 L.Ed.2d at 510.

Montana, discussing the extent of tribal civil regulatory authority over non-Indians, “established that the dependent status of Indian tribes has implicitly divested them of the power to regulate, in general, ‘the conduct of non-members on land no longer owned by, or held in trust for the Tribe.’ ” De La Cruz, 671 F.2d at 366 (citing Montana and Colville Confederated Tribe v. Walton, 647 F.2d 42, 52 (9th Cir.1981)). Montana acknowledged that tribes retain some civil authority over non-Indians:

But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes and so cannot survive without express congressional delegation.... [Thus,] the inherent sovereign powers of an Indian tribe do not extend to activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.

Montana, 450 U.S. at 564-65, 101 S.Ct. at 1258, 67 L.Ed.2d at 509-10 (citations omitted). Montana went on to note, without deciding, that a tribe may have other authority as well:

A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Montana, 450 U.S. at 566, 101 S.Ct. at 1258, 67 L.Ed.2d at 511 (citations omitted). In contrast to the determination of the judicial jurisdiction of a tribal court, “[t]he primary effect of Montana is to create a threshold presumption that tribes do not have legislative and regulatory jurisdiction over non-Indians on fee lands within the reservation.” Pommersheim, supra at 345.

We look first to determine whether Hettich was engaged in “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565, 101 S.Ct. at 1258, 67 L.Ed.2d at 510. It is clear that neither Hettich’s consensual relationship with the tribe, through his utilization of its courts, nor his relationship with its members, through the operation of his grocery store, gave rise to the tort involved in this case. We conclude, therefore, that it is not within the inherent sovereign powers of the Standing Rock Sioux Tribe to “regulate, through taxation, licensing, or other means,” Hettich’s claimed tortious conduct on State Highway 63.

We next look to determine whether Red Fox has clearly and convincingly established that Hettich’s claimed conduct, allowing his horse to wander onto State Highway 63, within the reservation, “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. (Emphasis added.) While Montana dealt with a tribe’s authority to regulate non-Indian fishing on reservation land owned in fee by nonmembers of the tribe, it can be used to determine the extent that a tribe may regulate the tortious conduct of non-Indians on non-Indian lands within the reservation boundaries.

It is apparent that Hettich’s conduct had a direct effect on “the economic security, or the health or welfare” of Red Fox. However, the second test under Montana is concerned with the effect upon the tribe, not on the individual tribal member.⁹ Red Fox argues that the health and welfare of the tribe was affected because a tribal member’s property was damaged and a tribal officer was required to investigate. While it may be argued that the tribe may be “indirectly” affected by Hettich’s conduct, only by stretching the test set forth in Montana to extremes can it be said that Hettich’s conduct “directly” affected the tribe.¹⁰ The distinction between tribal interests and tribal member interests is reflected in the cases cited in Montana, as well as subsequent cases applying the test. See Babbitt, 710 F.2d 587 (tribe’s interest in enforcing repossession statute); De La Cruz, 671 F.2d 363 (tribe’s interest in enforcing building, health, and safety regulations); Knight v. Shoshone & Arapahoe Indian Tribes, 670 F.2d 900 (10th Cir.1982) (tribe’s interest in enforcing zoning ordinance). Red Fox has not referred this court to any law of the Standing Rock Sioux Tribe which determines that conduct such as Hettich’s claimed conduct has a direct effect on tribal interests. Red Fox has not clearly and convincingly established that the Standing Rock Sioux Tribe is directly affected by Hettich’s claimed conduct. We conclude, therefore, that the state court acted properly when it did not recognize the tribal court judgment under the principles of comity because Red Fox has failed to establish clearly and convincingly that the tribal court had jurisdiction to consider Hettieh’s claimed conduct.¹¹

Our decision today does not determine that the tribal court was without jurisdiction. Nor do we determine that the state of South Dakota has jurisdiction. Rather, we hold only that Red Fox has not met her burden of proof. This holding is consistent with Montana’s general proposition that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana, 450 U.S. at 565, 101 S.Ct. at 1258, 67 L.Ed.2d at .¹²

Affirmed.

AMUNDSON, J., concurs. SABERS, J., concurs specially. WUEST and HENDERSON, JJ., concur in part and dissent in part.

1 . The population of McLaughlin is mostly non-Indian and the town is surrounded mostly by fee land owned by non-Indians.

2 . SDCL 1-1-25 was passed by the legislature following our decision in Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985). The statute’s requirements for the application of comity are more restrictive than we set out in Circle Bear. The terms and conditions of SDCL 1-1-25 continue:

(b) The order or judgment was not fraudulently obtained;

(c) The order or judgment was obtained by a process that assures the requisites of an impartial administration of justice including but not limited to due notice and a hearing;

(d) The order or judgment complies with the laws, ordinances and regulations of the jurisdiction from which it was obtained; and

(e) The order or judgment does not contravene the public policy of the state of South Dakota.

(2) If a court is satisfied that all of the foregoing conditions exist, the court may recognize the tribal court order or judgment in any of the following circumstances:

(a) In any child custody or domestic relations case; or

(b) In any case in which the jurisdiction issuing the order or judgment also grants comity to orders and judgments of the South Dakota courts; or

(c) In other cases if exceptional circumstances warrant it; or

(d) Any order required or authorized to be recognized pursuant to 25 U.S.C. § 1911(d) or 25 U.S.C. § 1919.

3 . 28 U.S.C. § 1738 (1988) requires states to give full faith and credit to judicial proceedings of other states, territories or possessions. We have not extended full faith and credit to tribal court judgments in the past, Mexican v. Circle Bear, 370 N.W.2d 737, 740 (S.D.1985), and are not compelled to do -so now.

4 . This method of analysis may be summarized mathematically:

A tribal court’s adjudicative authority = judicial jurisdiction + legislative jurisdiction. This is further broken down:

Judicial jurisdiction = territorial jurisdiction -I- subject matter jurisdiction + personal jurisdiction. Legislative jurisdiction = Montana's regulatory authority.

Therefore: (A tribal court’s adjudicative authority) = (territorial jurisdiction + subject matter jurisdiction + personal jurisdiction) + (Montana’s regulatory authority).

The import of this formula is that if any part is missing, regardless of what else exists, it still equals something less than a tribal court’s adjudicative authority.

5 . We have no occasion today to address criminal jurisdictional analysis and express no opinion in that area.

6 . A significant portion of the history of this reservation is set out in Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), and State v. Janis, 317 N.W.2d 133 (S.D.1982).

7 . "Indian Country" includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation!;.]” 18 U.S.C. § 1151 (1988). This section generally applies to questions of civil jurisdiction as well as to questions of criminal jurisdiction. DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 1084 n. 2, 43 L.Ed.2d 300, 304 n. 2 (1975); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 177-78 n. 17, 93 S.Ct. 1257, 1265 n. 17, 36 L.Ed.2d 129, 139 n. 17 (1973); Kennedy v. District Court of Montana, 400 U.S. 423, 424 n. 1, 91 S.Ct. 480, 481 n. 1, 27 L.Ed.2d 507, 509 n. 17 (1971); Williams v. Lee, 358 U.S. 217, 220-22 nn. 5, 6 & 10, 79 S.Ct. 269, 270-72 nn. 5, 6 & 10, 3 L.Ed.2d 251, 254-55 nn. 5, 6 & 10 (1959).

8 . See, e.g., General Crimes Act, 18 U.S.C. § 1152 (1988); Major Crimes Act, 18 U.S.C. § 1153 (1988); Public Law 280, 18 U.S.C. § 1162 (1988), 25 U.S.C. §§ 1321-1326 (1988), 28 U.S.C. § 1360 (1988); Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1988).

9 . We are aware that federal legislation can confer individual rights on the individual tribal member. See McClanahan, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129.

10 . But see Sage v. Lodge Grass Sch. Dist., 13 Indian L.Rep. 6035 (Crow Ct.App.1986), which found tribal interest were affected in the remand of National Farmers Union from the United States Supreme Court.

11 .In light of this decision, we need not address the remaining terms and conditions of SDCL 1-1-25.

12 . Our decision today does not leave Red Fox without a forum in which to press her claim. It is not clear from the record whether Red Fox can levy on the judgment or has other avenues available in the tribal court to enforce her tribal court judgment. Nor does our decision pre-elude her from bringing an action in state court against Hettich, similar to her original action in tribal court, assuming it is not barred by time or otherwise.