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ART RISSE,
Bonnie Risse, and Juanita Page,
Plaintiffs and Appellants,

v.
JAMES MEEKS,

Elsie Meeks, Amy Toczek, et al.,
Defendants and Appellees.

South Dakota Supreme Court
Appeal from the Sixth Judicial Circuit, Jackson County, SD
Hon. Max A. Gors, Judge
#20184--Affirmed

Ralph A. Kemnitz, Philip, SD
Attorneys for Plaintiffs and Appellants.

Charles Abourezk, Abourezk Law Offices, Rapid City, SD
Attorneys for Defendants and Appellees.

Considered on Briefs Apr 29, 1998; Reassigned Aug 13, 1998
Opinion Filed Nov 10, 1998

GILBERTSON, Justice (on reassignment).
[¶1] Landowner sued cattle owners for trespass of cattle and punitive damages. Cattle owners' motion to dismiss was granted on the issue of punitive damages because the trial court held it did not have subject matter jurisdiction. We affirm.

FACTS
[¶2] Art Risse, Bonnie Risse, and Juanita Page (collectively referred to as Risses) are non-Indians residing on deeded land in Bennett County, South Dakota, outside of the current exterior boundaries of the Pine Ridge Indian Reservation. They started the current action against James Meeks, Elsie Meeks, and Amy Toczek (collectively referred to as Meeks), who are members of the Oglala Sioux Tribe (Tribe) residing within the exterior boundaries of the Pine Ridge Indian Reservation in Jackson County.
[¶3] Risses allege that on August 12, 1994, one hundred twenty-four head of cattle carrying the brands registered to Meeks entered onto Risses' property in Bennett County. The cattle allegedly entered Risses' property from land leased by Meeks from the Tribe. The land from which the cattle entered Risses' property is trust land held for the benefit of Tribe by the United States of America and is located within Bennett
County, but outside the current exterior boundaries of the Pine Ridge Indian Reservation.(fn1)
[¶4] Following the alleged trespass, Risses gathered and retained the cattle pursuant to SDCL ch 40-28 and provided notice of trespass and probable damage caused by the cattle. The cattle were reclaimed by Meeks through posting of a bond as required by SDCL 40-28-9.
[¶5] Risses filed suit with the state circuit court in Jackson County, South Dakota. The first count of the complaint alleged a trespass and sought compensatory damages for the cattle crossing onto Risses' land.
The second count of the complaint sought punitive damages and claimed willful, wanton, and reckless conduct by Meeks, alleging they failed to install a fence around their property.
[¶6] Meeks acknowledged the court's jurisdiction as to count one of the complaint, but moved to dismiss the second count for lack of subject matter jurisdiction. Meeks argued that they were Indians and the
predicate act or omission for punitive damages occurred in Indian Country(2)  and, as such, this claim was only cognizable in tribal court.
[¶7] On October 17, 1996, the trial court filed an order dismissing the second count of the complaint relating to punitive damages on the basis that the trial court lacked subject matter jurisdiction. The trial court held that subject matter jurisdiction over the punitive damages claim would lie in tribal court.
[¶8] Risses appeal.

ISSUE
[¶9] Whether the trial court erred in determining that it did not have subject matter jurisdiction over the punitive damages claim set forth in count two of Risses' complaint.

STANDARD OF REVIEW
[¶10] "Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment--is the pleader entitled to judgment as a matter of law?" Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 NW2d 138, 140 (SD 1993) (citing Jensen Ranch, Inc. v. Marsden, 440 NW2d 762, 764 (SD 1989)). Jurisdictional issues may be raised at any time.Devitt v. Hayes, 1996 SD 71, ¶6, 551 NW2d 298, 300 (citing Deno v. Oveson, 307 NW2d 862, 863 (SD 1981)). This Court reviews challenges to court jurisdiction de novo. Id. (citing State v. Vandermay, 478 NW2d 289, 290 (SD 1991); State v. Spotted Horse, 462 NW2d 463, 465 (SD 1990)).

DECISION
[¶11] There are certain legal principals that guide our resolution of this issue. South Dakota's Constitution art XXII declares that "said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." See Smith v. Temple, 82 SD 650, 152 NW2d 547 (1967). This Court has consistently held that it is "inappropriate for states to assert jurisdiction over 'reservation affairs' if it would interfere with tribal sovereignty and self-government and impair the authority of tribal courts." Gesinger v. Gesinger, 531 NW2d 17, 20 (SD 1995) (citing Iowa Mut. Ins. Co. v. LaPlante, 480 US 9, 15-16, 107 SCt 971, 976, 94 LEd2d 10, 19-20 (1987)); see also In re Guardianship of Flying Horse, 456 NW2d 567, 568 (SD 1990); Wells v. Wells, 451 NW2d 402, 405 (SD 1990). In determining issues of jurisdiction, "'the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.'" Sage v. Sicangu Oyate Ho, Inc., 473 NW2d 480, 481 (SD 1991) (quoting Williams v. Lee, 358 US 217, 220, 79 SCt 269, 271, 3 LEd2d 251, 254 (1959)). Finally, preemption forms another barrier to assumption of jurisdiction over reservation Indians. Id., at 481-482 (citing White Mountain Apache Tribe v. Bracker, 448 US 136, 143, 100 SCt 2578, 2583, 65 LEd2d 665, 672 (1980)).
[¶12] Risses' complaint alleges a violation of SDCL 40-28-4, which provides as follows:
Except as in this chapter otherwise provided, any person owning or having in his charge or possession any horses, mules, cattle, goats, sheep, or swine, which such animals shall trespass upon the land, either fenced or unfenced, owned by or in possession of any person, or being cropped by any person injured by such trespass, shall be liable to any such person injured for all damages sustained by reason of such trespassing.
This statute has been interpreted to provide for strict liability for damage done by livestock for trespass and injury to another's property. Till v. Bennett, 281 NW2d 276, 278 (SD 1979); Hall v. Umiker, 87 SD 362, 364-65, 209 NW2d 361, 362-363 (1973).
[¶13] As a general proposition, punitive damages are not recoverable in tort actions unless expressly allowed by statute. SDCL 21-1-4. Nonetheless, SDCL 21-3-2 provides:
In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.
This Court has specifically found this statute applies to causes of action brought pursuant to SDCL 40-28

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