(dissenting).
I dissent. The tribal court had jurisdiction to determine that a tribal marriage existed, enter a decree of divorce, determine that Norman was the father of the couple’s then unborn child (Chanda) and must pay child support (although no amount was set). The parties by their conduct clearly recognized the tribal court’s jurisdiction as will be shown in more detail later. The tribal court decree is entitled to comity under Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985) and under SDCL 1-1-25.
Although the tribal court does not have exclusive jurisdiction of this matter, its decree is entitled to comity as any other foreign decree. Both Karen and Norman recognized this by their conduct. Karen abid-ed by the tribal court’s order to award temporary custody of Chanda to the child’s aunt while Karen sought counseling. Later, Karen moved and successfully regained custody of Chanda. Further, Karen returned to the tribal court to have the amount of support determined and enforced, and Norman returned to the tribal court to have the amount reduced.
The state circuit court recognized this in 1975 and dismissed Karen’s complaint for divorce on the grounds that:
There [was] no marriage to dissolve; that the marriage was solemnized and completed not according to South Dakota law, but according to Indian custom, ... [TJhat the marriage in the first instance was valid and the divorce was valid, but only within the confines of Indian land, and according to Indian custom.
The tribal decree also determined that Norman was the father of Chanda and was obligated for child support. Incredulously, the majority opinion says it cannot pass on the validity of the circuit court decree because it was not appealed. Just the opposite is true. The circuit court decision was a valid circuit court decision. Since it was not appealed, it is res judicata, binding upon the parties and the law of the case. Therefore, footnote 5 of Justice Henderson’s dissent is on point:
Perhaps more impactual is this scenario: Chanda Marie Redwing was bom in wedlock because of her parents’ tribal marriage. She was not born out of wedlock and she should not be the subject of a paternity action. This is precisely the conflict Fisher v. District Court warned of....
The majority opinion attempts to side step the real issue by stating:
However, it is not necessary for us to delve into or address the state court/tribal court comity issues. The specific, precise issue raised by appellant is whether the state court had “subject matter” jurisdiction, and it is clear that it did.
What is clear is that the tribal court had already determined the paternity of the child and the obligation for support. Since that is the same “subject matter” as this “new” paternity and support action the circuit court must begin with the tribal court decree and orders and not with a new factual determination. Therefore, Norman was right and the circuit court did not have subject matter jurisdiction to begin again. It only had jurisdiction to interpret, enforce, and/or modify the tribal court decree and orders.
The majority opinion wholly fails to mention the significant action taken by both Karen and Norman in tribal court since the original tribal court decree. Instead of determining the question of paternity anew, the circuit court should have accepted the tribal court decree and any subsequent orders entitled to comity, and then determined the present status of the case. We should reverse and remand for that purpose.