(dissenting).
[¶ 42.] I respectfully dissent.
[If 43.] 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, 16, 107 S.Ct. 971, 976, 94 L.Ed.2d 10 (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)). Furthermore, preemption forms another barrier to assumption of jurisdiction over reservation Indians. Id. (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672 (1980)).
[¶ 44.] 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 40-28-3 and the issue of compensatory damages. The question is: Would the assertion by the state court of jurisdiction over the claim for punitive damages infringe “on the right of reservation Indians to make their own laws and be ruled by them”? In re Guardianship of Sasse, 363 N.W.2d 209, 211 (S.D.1985) (citing Williams, 358 U.S. at 220, 79 S.Ct. at 271, 3 L.Ed.2d at 254). In considering this test, certain criteria are helpful to guide our analysis. “These are the following: (1) whether the parties are Indians or non-Indians, (2) whether the cause of action arose within the Indian reservation, and (3) what is the nature of the interest to be protected.” Id. (citations omitted).
[¶45.] As we have noted, the parties are composed of both Indian and non-Indians. However, the cattle allegedly trespassed on land that was not part of “Indian Country” and damaged property belonging to non-In*883dian persons. Clearly, the cause of action arose off the reservation and the parties do not dispute this point. Furthermore, the nature of the interest to be protected is the right of non-Indians to hold their property secure from damage by trespassing animals on non-Indian land. This record contains no evidence that a sovereign interest of the tribe would otherwise be infringed upon if the circuit court was allowed jurisdiction over all the issues in this case. In short, an examination of these criteria leads to the conclusion that allowing state court jurisdiction over this case would not “interfere with tribal sovereignty and self-government [nor] impair the authority of tribal courts.” Gesinger, 531 N.W.2d at 20 (citation omitted). There is no attempt to confer jurisdiction in this case over the tribe, jurisdiction is only sought over members who have readily admitted state court has jurisdiction for trespass.
[¶ 46.] Nevertheless, Meeks seek a ruling from this Court which would bifurcate this single cause of action into two parts — one requiring presentation of evidence relating to the claim for compensatory damages to be presented in circuit court and another requiring evidence relating to the punitive damage portion of the claim to be presented in tribal court. Meeks provide no authority for such an odd procedure and I find no authority to justify it.
[¶ 47.] To hold that the state court is without jurisdiction to decide the punitive damages issue would be to treat the claim for punitive damages as a separate cause of action. However, it is indisputable that “[a] claim for punitive damages must be based on some underlying cause of action, since, as a general rule, there is no separate and distinct cause of action for exemplary damages.” 22 AmJur2d Damages § 741 (1995). Punitive damages merely constitute an element of recovery on the underlying cause of action. Id. Thus, Risses’ claim for punitive damages is not an independent or additional cause of action which can be separated and stand on its own. See Schaffer v. Edward D. Jones & Co., 521 N.W.2d 921, 928 (S.D.1994) (holding “that punitive damages are not allowed absent an award for compensatory damages.”); Speck v. Anderson, 349 N.W.2d 49, 51 (S.D.1984); Johnson v. Kirkwood, Inc., 306 N.W.2d 640, 643 (S.D.1981).
[¶ 48.] Risses’ claim for punitive damages merely asserts an entitlement to an additional element of damages, which requires proof of malice or a wanton and reckless disregard for the claimant’s rights by the defendant. To find that punitive damages are warranted, the jury will first have to find that a trespass occurred under SDCL 40-28-4. Then, the jury will have to consider whether punitive damages are warranted by considering Meeks’ conduct as it relates to the alleged trespass of their cattle. This conduct may have occurred on the reservation or off the reservation, or the conduct may actually be an omission or lack of conduct. Malice may be presumed. SDCL 21-3-2. “However, actions to recover damages for injuries to real property are local, and not transitory, and therefore they must be brought in the forum where the land is situated.” 75 Am-Jur2d Trespass § 204 (1991). Evidence that Meeks allowed their cattle to trespass and that Meeks did so maliciously are the real issues in this case, not whether Meeks were residing on the reservation at the time they allegedly acted with malice. Thus, if the underlying claim for trespassing is properly before the circuit court, the claim for punitive damages is properly addressed by that same court. This would not, in any significant way, infringe “on the right of reservation Indians to make their own laws and be ruled by them.”5 Sage, 473 N.W.2d at 481 (cita*884tion omitted); cf. Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (state court had jurisdiction over tort action involving non-Indians even though events occurred on tribal land where tribal court’s jurisdiction was not necessary to protect tribal self-government).
[¶ 49.] The Oglala Sioux Tribe has filed a brief as amicus curiae, contending that the Tribe and federal government have enacted extensive laws and regulations to govern the conduct of grazing and range management on trust land which effectively preempts state court jurisdiction in this ease. We disagree. “[A] tribe’s inherent power does not reach ‘beyond what is necessary to protect tribal self-government or to control internal relations.’” Strate, 520 U.S. at 459, 117 S.Ct. at 1416, 137 L.Ed.2d at 679 (quoting Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1257-58, 67 L.Ed.2d 493, 509-10 (1981)) (alterations omitted). While Tribe speaks of its “affected land,” the real issue arose on non-tribal land when the cattle allegedly crossed onto Risses’ property. The statutes and regulations that Tribe cites are inapplicable, because they deal with livestock and grazing issues on tribal land, not with the trespass of animals onto non-tribal property. The trespass of animals onto non-tribal land and the claim for damages is not a “reservation affair” and, thus, is not outside the jurisdiction of our state courts. Gesinger, 531 N.W.2d at 20 (citing Cropmate Co. v. Indian Resources Intern. Inc., 840 F.Supp. 744, 747 (D.Mont.1993)).6
[¶ 50.] I would reverse and remand.
. SDCL 21-1-4.1 provides that even before discovery on the issue of punitive damages, there must be a hearing in which the trial court, based upon "clear and convincing evidence,” finds a reasonable basis to believe that there has been conduct sufficient to warrant punitive damages. Here, we do not have the benefit of knowing what evidence, if any, there is on the issue. We will assume that the issue involves conduct occurring on the reservation. Nevertheless, the Supreme Court of the United States has held that tribal sovereign immunity does not apply to individual members of the tribe over whom the state court has obtained personal jurisdiction for conduct occurring on the reservation. Puyallup Tribe, Inc. v. Washington Game Dept., 433 U.S. 165, 175, 97 S.Ct. 2616, 2622, 53 L.Ed.2d 667, 675 (1977) (rejecting the claim that the state could not exercise jurisdiction over on- reservation fishing). This does not mean that state law will be imposed upon the tribal members in this *884case with respect to the claim for punitive damages. The conduct that may warrant punitive damages, if any, will have to be evaluated based upon the rules or laws of the place where the conduct occurs, namely tribal land.
. The majority relies on DeCoteau v. District County Court, 420 U.S. 425, 428, 95 S.Ct. 1082, 1085, 43 L.Ed.2d 300, 305 (1975), for the proposition that "Indian conduct occurring on the trust allotments is beyond the State's jurisdiction[.]” However, the same case affirmed a stale court ruling finding state court jurisdiction "because 'the non-Indian patented land, upon which a portion of the acts or omissions giving rise to the [order of the court] occurred, is not within Indian Country.’ " 420 U.S. at 429, 95 S.Ct. at 1085, 43 L.Ed.2d at 305. In this case, not just a portion of the acts giving rise to Risses' claim for damages arose on non-Indian land, but the major portion arose there.