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State of South Dakota, ex rel Stephanie Jealous of Him
Plaintiffs and Appellants
v.
David T. Mills, Jr.

Defendant and Appellee

[2001 SD 65]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Shannon County, South Dakota

Hon. Janine M. Kern, Judge

Mark Barnett Attorney General Pierre, South Dakota Patrick M. Ginsbach Special Assistant Attorney
General Hot Springs, South Dakota
Attorneys for plaintiff and appellee

Michael P. Acosta Dakota Plains Legal Services Pine Ridge, South Dakota
Attorneys for defendant and appellant

Considered on Briefs March 19, 2001
Opinion Filed 5/23/2001

#21454
KONENKAMP, Justice
[¶1.] In this child support enforcement action, we affirm the circuit court’s order refusing to dismiss for lack of jurisdiction.
Background
[¶2.] Stephanie Jealous of Him (the mother) and David Mills are enrolled members of the Oglala Sioux Tribe. They met in 1997 while Mills was employed as a police officer and the mother was employed as a dispatcher on the Pine Ridge Indian Reservation. Mills had been married since 1995. As a result of a sexual relationship with Mills, the mother gave birth to a son in July 1998. The child lives with her on the reservation.
[¶3.] The mother applied for Aid to Families with Dependant Children (AFDC). Between July 1998 and January 1999, she received $1,284 from the State of South Dakota for the care of her child. When she applied for public assistance, she listed Mills as the child’s father. She also assigned her right to the State to collect past due child support payments. The State undertook this action to recover the money it expended on behalf of the child.
[¶4.] Mills was served with a Summons, Petition, and an Order to Show Cause by personal service on December 3, 1998.[1] Service was accomplished at a Rapid City, South Dakota address. Initially, he responded to the Petition by denying he was the child’s father and requesting that the circuit court order paternity testing. He submitted to testing at a clinic in Rochester, Minnesota in March 1999. At that time, Mills reported a Rochester address to the clinic. When the clinic requested identification, Mills produced two driver’s licenses: one from South Dakota and one from Minnesota. Neither license had an address on the Pine Ridge Indian Reservation. Paternity testing confirmed that Mills was the father of the child.
[¶5.] Mills next moved to dismiss the support action. He denied that the circuit court had personal jurisdiction over him or subject matter jurisdiction over the controversy. He claimed that he had insufficient contacts off the reservation to confer personal jurisdiction on the court. Additionally, he argued that the cause of action arose on the reservation and involved two tribal members domiciled on the reservation. In his view, by accepting jurisdiction the circuit court would infringe on the sovereignty of the Oglala Sioux Tribal Court. Mills insisted that while he may have intermittently resided off the reservation, he always intended to return; thus, his domicile remained there. The State, on the other hand, offered evidence showing a contrary intent. Most of Mills’ employment since 1995 had been off the reservation. He listed Rapid City addresses to register his vehicle, to obtain a driver’s license, to apply for court appointed counsel, and to request unemployment benefits.
[¶ 6.] The circuit court held an evidentiary hearing on Mills’ motion to dismiss. After listening to live testimony, the court denied the motion. It found that Mills had waived any right to challenge personal jurisdiction; he had filed a response to the paternity action without asserting that defense.[2] In addition, the court found that Mills was domiciled off the reservation. Therefore, the court concluded that it possessed concurrent jurisdiction with the tribal court. As this proceeding was first in time, it could properly proceed.[3] Mills appeals from the denial of his motion to dismiss.
Analysis and Decision
[¶7.] The question is whether the circuit court had jurisdiction over this child support action instituted by South Dakota to recover AFDC benefits. Mills, the mother, and the child are all members of the Oglala Sioux Tribe and conception took place on the Pine Ridge Indian Reservation. The mother and the child are domiciled on the reservation. Mills asserts that his domicile remains there as well. We review the circuit court’s denial of his motion to dismiss by inquiring whether he was entitled to judgment as a matter oflaw. In Re GRF, 1997 SD 112, ¶11, 569 NW2d 29, 32 (citations omitted). A jurisdictional challenge presents a question of law subject to de novo review. Red Fox v. Hettich, 494 NW2d 638, 642 (SD 1993)(citations omitted).
[¶8.] Mills claims that this action offends the “infringement test

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