Application of Defender

HENDERSON, Justice

(concurring in result).

In concurring in result, the minority viewpoint in Redwing is cited and its thesis is incorporated hereby. However, this author believes that he can concur in result because Redwing and this case are totally distinguishable. As I write, the Clerk of the United States Supreme Court has advised the Clerk of this Court that a petition for certiorari concerning the Redwing decision has been filed with the Highest Court in this Nation. So — Redwing is a final decision in this Court, but we await to see if it is a final decision in this Nation.

*723Redwing involved an attempt to enforce child support provisions of an earlier, invalid, State court paternity proceeding. There, the State court had conducted its paternity proceeding although it lacked subject-matter jurisdiction. See Redwing, 429 N.W.2d 49, 52-59 (Henderson, J., dissenting). In Redwing, the tribal court had jurisdiction from beginning to end, which is 100% opposite to the present case. Unlike the mother in Redwing, who turned to the State court because she was dissatisfied with tribal proceedings, the father in this case went forum-shopping in the tribal court after adverse rulings in the State court.

An examination of the current factual pattern and case history does not present the same threat, from the State of South Dakota, to tribal courts as that exhibited in Redwing. Reason: The notice provided to Carole of the tribal proceeding was deficient, thus depriving the tribal court of personal jurisdiction. Obviously, she was entitled to Due Process notice.

However, I cannot agree with the majority that subject-matter jurisdiction was lacking. Title 5, Sec. 5-3-l(6), provides that the tribal juvenile court has jurisdiction over all proceedings concerning custody over a “child.” “Child,” as defined in Title 5, Sec. 5-1-2(3), is an enrolled member of the Cheyenne River Sioux Tribe, or any other Indian on the reservation, under the age of eighteen. The Tribal Code does not limit its subject-matter jurisdiction regarding its enrolled members by reference to a map. It appears that the moving hand of the Highest Court of this State is hemming in tribal control of Indian children by the geographical boundary of the reservation. I believe this is wrong. It destroys the efficacy of the tribal courts and undermines Federal policy as established by the United States Congress. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976).

The anomalous nature of tribal jurisdiction is such that tribal government can control questions of domestic relations of tribal members off the reservation, as this Court noted in In re Guardianship of D.L.L. & C.L.L., 291 N.W.2d 278, 281 (S.D.1980). Obviously, the tribal court’s reach is not, necessarily, so narrowly circumscribed as the majority opinion would have it.