(concurring specially).
[¶ 17.] Although I concur with the majority opinion, I write specially to react to the comments in the dissent. The dissenting opinion espouses a' bright-line rule, declaring that the state has no subject matter jurisdiction over any case if both parties are Indians residing on a reservation. I respectfully suggest that the dissent over-simplifies an otherwise complicated legal issue involving difficult and important historical considerations.
[¶ 18.] The dissent’s sweeping endorsement of such bright-line rule concerning subject matter jurisdiction is simply not appropriate in all situations. In the recent past, our state courts granted divorces to hundreds if not thousands of Indian parties domiciled on reservations. In so doing, the state courts accommodated the Indian parties because there was no tribal forum, or because the tribal laws did not grant to the tribal forum jurisdiction over such matters. To blindly adopt the dissenting opinion would tell everyone impacted by those divorce decrees, who have been relying upon the state-granted divorce judgment for years, that their divorces, including child custody and property issues, are void.
[¶ 19.] Although tribal courts are of “growing significance and importance throughout Indian country and particularly here in South Dakota,” Frank Pommersheim, South Dakota Tribal Court Handbook 1 (Rev.Ed. 1992)[hereinafter Tribal Court Handbook], they are generally less than fifty years old. Id. at 3. In fact, the Lower Brule Sioux Tribe did not enact a divorce code until 1982. Lower Brule Sioux Tribe, Ordinance LB-82-A (Jan. 7, 1982). Further, in 1980 there were no domestic relations or divorce provisions included in the Rosebud Sioux Tribe’s “Proposed Revised Tribal Law and Order Code.” Indian Tribal Codes: A Microfiche Collection of Indian Tribal Law Codes R3 *710(Ralph W. Johnson et al. eds. 1980).3 Moreover, as recently as 1992 there were still two “CFR” 4 courts on reservations in South Dakota. Tribal Court Handbook at 2. Until the CFR was amended six years ago, these courts did not have jurisdiction over domestic relations, probate proceedings, or children’s matters (guardian ad litem, abuse and neglect proceedings).5 Compare 25 CFR § 11 (1992) with 25 CFR § 11 (1994); see also 58 Fed.Reg. 54406 (1993) (proposed regulations to revise laws in CFR courts; proposals were ultimately adopted and codified at 25 CFR § 11).
[¶ 20.] The dissent does not address the situation where a tribe cannot (or could not) judicially exercise jurisdiction over its internal affairs because there is (was) no tribal court or because the tribal court has not (had not) been granted jurisdiction by its own government. In such cases, not only is it permissible, but it is only appropriate and just for state courts to accept and exercise jurisdiction. Otherwise, a legal vacuum would exist to the significant detriment of our South Dakota Indian citizens who are domiciled on the reservations.
[¶ 21.] The United States Supreme Court acknowledged such a situation without deciding how to handle it in Fisher v. District Court of the Sixteenth Judicial District, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976). In Fisher, the Supreme Court found the tribe to have ex-elusive jurisdiction over an adoption proceeding, where all parties were Indians residing on a reservation. Fisher, 424 U.S. at 389, 96 S.Ct. at 948, 47 L.Ed.2d at 113. In overruling the Montana Supreme Court’s assertion of jurisdiction, the Court stated inter alia that adoption is an internal matter and that exercise of state jurisdiction would be an infringement upon the inherent right of tribal self-governance. Fisher, 424 U.S. at 387, 96 S.Ct. at 947, 47 L.Ed.2d at 112. Accord Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251, 254 (1959); Kennerly v. District Court of Montana, 400 U.S. 423, 426-27, 91 S.Ct. 480, 482, 27 L.Ed.2d 507, 511 (1971) (per curiam). Because the tribal ordinance which authorized the creation of a tribal court was sanctioned by § 16 of the Indian Reorganization Act, 25 USC § 476, the Fisher court reasoned that such creation of a tribal court system under federal direction was “clearly adequate to defeat state jurisdiction over litigation involving reservation Indians.” Fisher, 424 U.S. at 390, 96 S.Ct. at 948, 47 L.Ed.2d at 113. The Court further surmised, “even if we assume that the Montana courts properly exercised adoption jurisdiction prior to the organization of the Tribe, a question we do not decide, that jurisdiction has now been preempted.” Id. (emphasis added). Thus, the Court contemplated that if a tribe did not have an organized tribal court, then perhaps state jurisdiction was proper.
*711[¶ 22.] The Montana Supreme Court addressed the issue more directly in In re Marriage of Limpy, 195 Mont. 314, 636 P.2d 266 (1981). There, the court held because .a tribe had established a functioning forum to adjudicate issues of child custody, there was no basis for the state to assume jurisdiction over a child custody action involving two Indians residing on a reservation. However, the court .theorized that “if-there were no Tribal forum, it is difficult to see how the exercise of jurisdiction by a State court would infringe on Tribal self-government.” Id. at 269. The Lim/py court cited another Montana case in support of this statement, Little Horn State Bank v. Stops, 170 Mont. 510, 555 P.2d 211 (1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977). In Little Horn, state enforcement of a state judgment on a reservation was upheld where the tribe had no means of enforcing the same. Id. at 214. In Little Horn, the rationale for allowing state enforcement was that in the absence of a tribal mechanism for enforcing a state judgment, there was no infringement on tribal self-government. Id.
. Since 1980, Rosebud Sioux Tribe has enacted a domestic relations code, but the exact date of enactment is unclear. Indian Tribal Codes: A Microfiche Collection of Indian Tribal Law Codes R3 (Ralph W. Johnson et al. eds. 1988).
. "CFR” stands for the Code of Federal Regulations. CFR courts are governed by Title 25 of the CFR, and are direct successors to the federally created Courts of Indian Offenses that were prevalent on reservations in the late nineteenth and early twentieth centuries. CFR courts are much more restricted in their authority than tribal courts established pursuant to tribal authority. Tribal Court Handbook at 2 n. 10.
.That tribal courts are a relatively new institution of justice has also been recognized by the United States Supreme Court. See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14-15, 107 S.Ct. 971, 975-76, 94 L.Ed.2d 10, 19 (1987) (federal government has consistently encouraged the development of tribal courts); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65, n. 21, 98 S.Ct. 1670, 1681, n. 21, 56 L.Ed.2d 106, 120 n. 21 (1978) (of the 287 tribal governments in operation in the United States, 117 had operating tribal courts in 1976); and United States v. Wheeler, 435 U.S. 313, 327, n. 25, 98 S.Ct. 1079, 1088, n. 25, 55 L.Ed.2d 303, 315 n. 25 (1978) (Navajo tribal courts were established in 1958).