(concurring specially).
I write specially to attempt to simplify a complicated area of the law. The issue simply is whether the tribal court decision was entitled to comity under SDCL 1-1-25.* The answer turns on whether the tribal court had subject matter jurisdiction under SDCL 1-1-25.
I agree with the majority that the tribal court did not have subject matter jurisdiction because, under Montana, there is a “presumption that tribes do not have legislative and regulatory jurisdiction over non-Indians on fee lands within the reservation[s],” Pommersheim, supra at 345, and Hettich’s conduct does not threaten or have any direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana, 450 U.S. at 566, 101 S.Ct. at 1258-59, 67 L.Ed.2d at 511 (citations omitted). Under these facts, the tribal court’s subject matter jurisdiction was limited to Red Fox, an enrolled member of the tribe, and never extended to Hettich, a non-Indian. Montana, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493.
Therefore, Red Fox did not establish by clear and convincing evidence that the tribal court had jurisdiction over the subject matter of the action and the tribal court judgment was not entitled to recognition as a matter of comity. SDCL l-l-25(l)(a). In this limited respect, the majority holding is simply too narrow. This state court case is over and done with and is res judicata unless appealed.
I would not reach the issue of “personal jurisdiction” because it simply is not necessary once it is determined there is no subject matter jurisdiction with respect to Het-tich, a non-Indian. If it is discussed, we should simply point out that the trial court was wrong in concluding no personal jurisdiction because, as the majority states, this type of service (certified mail) was permitted by the tribal code and reasonable notice was given and admitted. Cf. Wells v. Wells, 451 N.W.2d 402 (S.D.1990).
SDCL 1-1-25 is set forth in full in majority opinion.