(dissenting).
[¶23.] The majority opinion holds that even though the state court did not have jurisdiction over Jones’ divorce, the parties, by active. participation in seeking a divorce, are estopped from attacking the divorce on jurisdictional grounds.
[¶ 24.] In 1985, we addressed the issue of whether a state court has subject matter jurisdiction over a guardianship matter involving enrolled members of an Indian tribe. After holding that the state court had no subject matter jurisdiction, we stated:
In reaching our decision, we have not overlooked the argument that [defendant] waived his right to contest state court jurisdiction or consented to the jurisdiction of the state court by entering a general appearance. It has long been the rule in this state that ‘where the court has no jurisdiction of the subject-matter of the action, jurisdiction cannot be given to such court by any act of the parties, even by joint stipulation.... ’ In Honomichl v. State, 333 N.W.2d 797, 799 (S.D.1983), we restated the general rule that ‘subject matter jurisdiction cannot be conferred by agreement, consent, or waived.’
In re Guardianship of Sasse, 363 N.W.2d 209, 212 (S.D.1985) (internal citations omitted). This court concluded that “[a] judgment which a court had no jurisdiction to pronounce is void and may be attacked at any time either directly or collaterally.” Id. (citations omitted).
[¶ 25.] In Wells v. Wells, 451 N.W.2d 402, 405 (S.D.1990), the wife left the reservation to reside in Rapid City where she filed for divorce. We set forth the test for determining whether a state court may assume jurisdiction over claims involving Indians: “the question has always been whether the state action [would infringe] on the right of reservation Indians to make their own laws and be ruled by them.” Id. (quoting Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251, 254 (1959)). Based on the fact that the wife moved off the reservation prior to filing for divorce, we found that the state court’s exercise of jurisdiction went beyond reservation affairs; in fact, we recognized that “all operative facts ... did not occur solely on the reservation.” Id. We noted:
Just as South Dakota does not retain exclusive jurisdiction over the marriage of South Dakota citizens who leave the state, the tribe does not retain exclusive jurisdiction over the marriage of its members who leave the reservation.
Id. Therefore, the Wells court concluded that “when one spouse is domiciled off the reservation a state court may entertain a divorce action without infringing upon tribal sovereignty.” Id. at 406.
[¶ 26.] The Wells court also distinguished many cases cited by the husband: “all of these cases differ from Wells in one *712significant way - all the Indian parties were domiciled on a reservation.” Id. at 406 (emphasis in original). “Unquestionably, in such a situation a state court would lack subject matter jurisdiction, but such is not the case here.” Id.
[¶27.] Justice Henderson concurred in result in the Wells case. He insightfully noted:
‘All too often, courts seem to pay little more than lip service to the right and power of Indian peoples to govern themselves.’ We do not have subject matter jurisdiction over disputes in domestic relation cases of Indian people and we must zealously guard against any type of creeping encroachment thereon.
Id. at 407 (Henderson, J., concurring in result) (citations omitted). “State court actions which undermine the authority of tribal courts are an impermissible infringement upon the right of tribal self government.” Id. at 409 (Henderson, J., concurring in result) (citing Williams, 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d at 255.)
[¶ 28.] Shortly after the Wells case, this court addressed a custody dispute between a non-Indian father and an Indian mother. We stated:
The [S]tate of South Dakota has no general civil jurisdiction over Indians on reservations within its borders. Clearly, if this were a custody dispute between two enrolled members of tribe domiciled on reservation, the subject matter jurisdiction of the tribal court would be exclusive.
Harris v. Young, 473 N.W.2d 141, 144 (S.D.1991) (internal citations omitted) (emphasis added).
[¶ 29.] It is clear that this court has consistently recognized that a tribal court would have exclusive subject matter jurisdiction if both parties to a suit were domiciled on Indian land. Presented now with such a fact pattern, the majority opinion circumvents the law and jurisdiction through estoppel. For at least the past 19 years, was this mere lip service to the right and power of Indian people to govern themselves?
[¶ 30.] The majority opinion fails to cite a case where estoppel was invoked to prevent an Indian tribal member domiciled on Indian land from raising the defense of lack of subject matter jurisdiction. Nor am I aware of any. It is true that estoppel is used to some extent when out of state or foreign divorce proceedings are involved. However, given the unique situation between the state and tribal courts, it is inappropriate to use estoppel here as a mechanism to impede upon tribal sovereignty.
[¶ 31.] In this case, both parties and their children are enrolled members of the Flandreau Santee Sioux Tribe. They are all domiciled on Indian trust land, as the parents were prior to their divorce. Their property is located on tribal trust land, they receive monthly allotments from the tribe and they were domiciled on the reservation before, during and after the divorce proceedings. Clearly, a divorce between these two parties is a “reservation matter.” As stated in Wells: “Unquestionably, in such a situation [where ‘all the Indian parties were domiciled on a reservation’] a state court would lack subject matter jurisdiction....” Wells, 451 N.W.2d at 406. “[S]ubject matter jurisdiction cannot be conferred by agreement, consent, or waiver.” In re Guardianship of Sasse, 363 N.W.2d at 212 (quoting Honomichl, 333 N.W.2d at 799). To conclude that Jones is estopped from arguing that the state court lacked subject matter jurisdiction over the divorce proceeding imper-missibly infringes upon the right of tribal self government. In other words, estoppel would constitute a “creeping (or leaping) encroachment” on the tribal court’s exclusive right to govern Native American Indians residing on the reservation.
[¶ 32.] In addressing this case, one of the majority opinion’s concerns was to prevent the “bus loads” of Native American Indians who obtained divorces in state court years ago from thwarting those divorce *713decrees. My response is simply that that fact pattern is not before us now and we should reserve ruling on that matter until it is. This divorce was entered on June 10, 1996, a day and age where the law clearly provided that tribal courts have exclusive subject matter jurisdiction over two Native American Indians domiciled on Indian land.
[¶ 33.] For years, the law was that:
Subject matter jurisdiction can not be conferred by consent.
Subject matter jurisdiction can not be conferred by agreement.
Subject matter jurisdiction can not be conferred by stipulation.
Subject matter jurisdiction can not be conferred by waiver.
[¶ 34.] In fact, because jurisdiction can not be waived:
The lack of jurisdiction can be raised at any time.
By anybody, any time, any place.
[¶ 35.] In fact, as recently as May 26, 1999, this court claimed that jurisdiction must be raised sua sponte.6
[¶ 36.] But, not anymore, because now we have jurisdiction by estoppel.
[¶ 37.] I dissent.
. Decker v. Tschetter Hutterian Brethren, 1999 SD 62, ¶ 14, 594 N.W.2d 357, 362 (plurality opinion by Gilbertson J., joined by Miller C. J., and Konenkamp J., stating "this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not ....”) (quoting State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citations omitted)).