(concurring).
[¶24.] The majority opinion sets forth a congruent jurisdictional analysis. I concur separately only for the purpose of responding to the dissents. By employing legal principles isolated from Indian law, the dissents fail to articulate a legally sound resolution to a difficult jurisdictional problem. They miss two crucial points: (1) none of the cases they cite involve the crossing of sovereign boundaries; and (2) both ignore well-settled exceptions to the rule against splitting causes of actions.
[¶ 25.] Plaintiffs do not allege that the owners drove their cattle off the reservation onto plaintiffs land, only that the cattle strayed off the reservation due to lack of adequate fencing. What might be the purpose or policy for having fences on Indian land: perhaps to mark off the boundaries of the reservation; to demarcate some special interest; to prevent cattle and horses from straying; to help stockgrowers maintain the quality and health of their herds, or to control breeding by preventing inferior sires from mixing with other herds. Whatever the reasons, state courts have no jurisdiction over the construction and maintenance of fences in Indian Country. Yet imposing punitive damages for fencing decisions on the reservation allows the state to do indirectly what it could never do directly.
[¶ 26.] State power to regulate Indians and Indian lands is sharply delimited. See generally Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2113, 48 L.Ed.2d 710 (1976); Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). On the other hand, “tribal activities conducted outside the reservation present different considerations .... Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973) (citation omitted). Thus if a controversy arose outside Indian Country, Indians living on reservations may be subject to state jurisdiction. Voorhees v. Spencer, 89 Nev. 1, 5-6, 504 P.2d 1321, 1323-24 (Nev 1973).
[¶ 27.] But the question here is more entangled. In these types of jurisdictional disputes, “[t]he proper inquiry is whether the actions of the state would infringe on the right of reservation Indians to make and be governed by their own laws.” Matter of Guardianship of D.L.L. and C.L.L., 291 N.W.2d 278, 281 (S.D.1980)(citing; Williams, 358 U.S. at 217, 79 S.Ct. at 269, 3 L.Ed.2d at 251; Utah & N. Ry. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542 (1885)). Even when the focus of a dispute is off the reservation, tribal courts, not state courts, are the proper forum to resolve disputes about certain Indian property interests. Id. (citations omitted). Under the “infringement test,” we can say today what this Court said thirty years ago:
[0]ur state courts have no jurisdiction to hear and determine a civil action for the alleged wrongful use and possession of land located in Indian Country by a tribal Indian defendant. To impose state law and state jurisdiction in this controversy would infringe upon the Pine Ridge Reservation Indians’ right and power to make their own laws and be governed by them.
Kain v. Wilson, 83 S.D. 482, 487, 161 N.W.2d 704, 706 (S.D.1968) (citation omitted).
[¶ 28.] Consider the converse of the argument. Would tribal courts have jurisdiction to impose punitive damages upon non-residents for failure to construct or maintain *880fences off the reservation? No court has ever so held. See Halwood v. Cowboy Auto Sales, Inc., 124 N.M. 77, 946 P.2d 1088 (Ct.App.1997)(tribal court empowered to impose punitive damages on non-Indians for conduct on reservation); UNC Resources, Inc. v. Benally, 514 F.Supp. 358, 362 (D.N.M.1981)(tribal court cannot impose tribal civil standards of behavior for conduct off reservation in civil suits seeking compensatory and punitive damages). This, of course, is not to say that states may not, in various circumstances, exercise jurisdiction over claims by Indians in state courts against non-Indians, even when those claims arose in Indian Country. See Poafpybitty v. Shelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238 (1968); Williams, 358 U.S. at 219, 79 S.Ct. at 270, 3 L.Ed.2d 251 (dictum); United States v. Candelaria, 271 U.S. 432, 444, 46 S.Ct. 561, 564, 70 L.Ed. 1023 (1926); Felix v. Patrick, 145 U.S. 317, 332, 12 S.Ct. 862, 867, 36 L.Ed. 719 (1892); Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 15 L.Ed. 684 (1857). See also Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (S.D.1967)(resident tribal Indians have right under Art VI, § 20 of South Dakota Constitution to bring and maintain civil actions in state courts for redress of wrongs against person and property).
[¶ 29.] The rule against splitting actions is an adjunct to the doctrine of res judicata. “The doctrine of res judicata ... prevents ‘splitting of a cause of action’ and requires all grounds upon which a single claim is based to be asserted and concluded in one action, on pain of being barred from separate suit.” Wright, Federal Courts § 78, at 297. Accord Baertsch v. County of Lewis and Clark, 223 Mont. 206, 209, 727 P.2d 504, 506 (Mont 1986)(rule against splitting causes of action and doctrine of merger inextricably related to principle of res judicata). At the heart of res judicata is the effort “to preclude parties from contesting matters that they have had a full and fair opportunity to litigate.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979).
[¶ 30.] The dissenters’ indiscriminate reliance on the rule against splitting causes of action ignores two exceptions clearly applicable to this case. First, the Restatement Second of Judgments § 26(l)(e) (1982) holds the general rule inapplicable when:
The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief....
See, e.g., United States v. Pan-American Petroleum Co., 55 F.2d 753, 782 (9th Cir.1932), cert. denied, 287 U.S. 612, 53 S.Ct. 14, 77 L.Ed. 532 (1932). See also Cream Top Creamery v. Dean Milk Co. Inc., 383 F.2d 358, 363 (6th Cir.1967); Lyons v. Westinghouse Elec. Corp., 222 F.2d 184 (2d Cir.1955), reh’g denied, 222 F.2d 195 (2d.Cir.1955), cert. denied Walsh v. Lyons, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955). Furthermore, the rule does not apply if:
The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim....
Restatement Second of Judgments § 26(l)(d) (1982). Unmistakably, the constitutional and statutory “scheme” here is the preservation of tribal sovereignty.
[¶ 31.] Secondly, but more importantly, the rule against splitting actions is inapplicable when the court itself splits an action by dismissing a claim without attributing fault to the litigant. Wildfong v. Fireman’s Fund Ins. Co., 181 Mich.App. 110, 448 N.W.2d 722 (Mich.App.1989). Only when a litigant splits a cause of action will the doctrine apply. Aquatherm Indus., Inc. v. Florida Power & Light Co., 84 F.3d 1388, 1395 (11th Cir.1996), aff'd, 145 F.3d 1258 (11th Cir.1998), reh’g en banc denied, 162 F.3d 100 (11th Cir.1998).
[¶ 32.] In dealing with complex jurisdictional questions it is incumbent upon us to state our rationale clearly for the benefit of future disputes. We must also respond at times to *881problematical legal argument, lest it confuse the juridical underpinnings for our decisions. Thus, although I fully concur with the majority opinion, I add my analysis to explain why I consider the dissents to be in error.
[¶ 33.] MILLER, C.J., joins this special writing and I am authorized to so state.