(specially concurring).
As one continues to struggle in reading the law, it is perceived that gradations of jurisdiction exist, not to mention variances, as the type of Indian jurisdiction cases surface in the appellate bodies. Specifically, in this type of case, basic questions should be asked: Does this case involve tort law? Family law? Criminal law? If the latter, does the case pertain to one of the major crimes? See 18 U.S.C. § 1153. Or are we just considering a minor crime? An analysis must further encompass the specific situs of the facts giving rise to the litigation. One must consider: Are the parties Indian or non-Indian? Does the Indian Child Welfare Act apply? Two authors, Davis H. Getches and Charles. F. Wilkinson, in their treatise, Federal Indian Law (2d ed. 1986), write that the jurisdictional maze in criminal cases can be “walked with some confidence” when an analytical approach is followed. Supra, at 412. Briefly, their analysis contains these steps:
1. Was the locus of the crime in Indian Country?
2. Does Public Law 280 or a specific jurisdictional statute apply? Here, Public Law 280 is governing.
3. Was the crime committed by or against an Indian?
4. Which Defendant-Victim category applies? This question includes “victimless” and “consensual” crimes.
See Federal Indian Law, supra, at 412-15.
This point I try to make: Jurisdiction depends upon many factors. History of the particular reservation involved,* as well as legislative enactments of the particular state, likewise play a vital role. Each case must be scrutinized to determine where jurisdiction lies. Indian jurisdiction is a
complex subject and is not ordinarily amenable to black and white solutions. There are many areas of gray in this kind of litigation. Overlaying all of the above is the shifting sand of federal policy which spawns further complicated and knotty difficulties and entanglements. One law review article has characterized Indian policy as having “vacillated between assimilation, annihilation, and self-determination.” Note, Recognition of Tribal Decisions in State Courts, 37 Stan.L.Rev. 1397, 1399 (1985).
Here, I join the majority opinion based upon Washington v. Yakima Indian Nation, and the legal position of South Dakota, which is that it has assumed limited jurisdiction in this particular area of Indian jurisdiction. Article XXII of the South Dakota Constitution, entitled “Compact with the United States,” provides, inter alia, that “Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States....” Congress, through Public Law 280, and South Dakota, through the state legislature’s “highway” provision in SDCL 1-1-21, have combined to rewrite this compact. SDCL 1-1-21, when read in reference to SDCL 1-1-18, gives the state civil and criminal jurisdiction over incidents on public highways on Indian land. While the state can only protect its interests “up to the point where tribal self-government would be affected,” (McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 179, 93 S.Ct. 1257, 1266, 36 L.Ed.2d 129, 140 (1973)), state assumption of jurisdiction, when in compliance with Public Law 280, is proper. Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976).
South Dakota has nine Indian Reservations, and each has an active tribal court. Seven have tribal courts which originate in a tribal sovereignty predating the United States Constitution. Two tribal courts are derived from the federally created Courts of Indian Offenses. These tribal courts are all subject to Congressional authority. See generally F. Pommersheim, South Dakota Tribal Court Handbook (March 1988). The Sisseton-Wahpeton Sioux Reservation, formerly the Lake Traverse Indian Reservation, was technically terminated as a "reservation” in 1891, but retains some attributes of reservation status. See DeCoteau v. District County fourt, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975).