(concurring in part, dissenting in part).
ISSUE I
I concur.
ISSUE II
I specially concur. Essentially, an Indian tribe is not a state within the meaning of the Uniform Child Custody Jurisdiction Act (UCCJA). As held by the case of Malaterre v. Malaterre, 293 N.W.2d 139, 144 (N.D.1980), the UCCJA pertains to situations where there are jurisdictional disputes with sister states. Here, the child and mother live within South Dakota but reside on the Cheyenne Indian Reservation and therefore come within the purview of the federal Act of August 15,1953, 67 Stat. 558, now codified at 18 U.S.C. § 1162. South Dakota has never effectively assumed general civil jurisdiction over Indian Reservations under P.L. 280. Rosebud Sioux Tribe v. State of South Dakota, 900 F.2d 1164, 1171 (8th Cir.1990).
ISSUE III
I specially concur. It appears the circuit court decided that the Indian Child Welfare Act applied to the proceedings upon which it adjudicated. Not so. ICWA provides, inter alia, that it has no application to an “award, in a divorce proceeding, of custody to one of the parents.” 25 U.S.C. § 1903(1). Therefore, the trial court’s decision on this point of law could not be based upon the Cheyenne River Sioux Tribe’s failure to intervene or request a transfer. Settled law: Application of Defender, 435 N.W.2d 717, 721 (S.D.1989).
ISSUE IV
I dissent. This case should be reversed and remanded due to the dearth of salient facts as reflected by footnotes 1 and 2 of the majority opinion. As the facts go, so goes the applicable law. Additionally, mother and three daughters appear to be Indians, (mother and two daughters are enrolled members of the tribe and the third daughter appears to be eligible for enrollment), residing on the reservation, and all the circumstances supposedly justifying a change in custody occurred within the exterior boundaries of the Cheyenne River Indian Reservation. Thus, the action taken by the circuit court appears to infringe upon the right of the Cheyenne River Sioux Tribe to decide where Indian children should live. Where circumstances concerning the internal affairs of Indians residing on the reservation occur on the reservation, state court authority has consistently been held to be invalid. Matter of Guardianship of Sasse, 363 N.W.2d 209, 211 (S.D.1985); Matter of Guardianship of D.L.L. & C.L.L., 291 N.W.2d 278, 281 (S.D.1980).
Recently, our sister state of North Dakota recognized exclusive tribal jurisdiction in domestic matters involving resident Indians. Byzewski v. Byzewski, 429 N.W.2d 394, 399 (N.D.1988). South Dakota has never effectively assumed general civil jurisdiction over Indian reservations under P.L. 280. Rosebud Sioux Tribe v. State of South Dakota, 900 F.2d 1164, 1171 (8th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). See State v. Spotted Horse, 462 N.W.2d 463 (S.D.1991). The Eighth Circuit Court of Appeals stated: “We believe that the failure to assume jurisdiction in a manner consistent with the purposes of P.L. 280 is not sufficient action within the terms of the offer made by Congress to the States in 1953.” Rosebud, at 1171.
*148Here, the trial court’s action was preempted by federal law. Once it is determined that a particular matter has been preempted by federal law, any state action taken is a nullity and therefore void. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672 (1980).
In Byzewski, the North Dakota Supreme Court recognized that domestic relations among its members is an important issue of tribal control and does not dissipate merely because one of the parties to a marriage is a non-Indian. 429 N.W.2d at 399. See also the United States Supreme Court ruling in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), holding, inter alia, that the United States Supreme Court recognized that the Indians Civil Rights Act, 25 U.S.C. § 1302, provides non-Indians with various protections against unfair treatment in the tribal courts.
Thus, it is presumed that father has legal rights he may assert and that same will be protected and recognized by fair dealing in the tribal court.
ISSUE V
I concur.