Mexican v. Circle Bear

¶1(concurring in result).

¶2Out of courtesy and respect to the tribal judge’s order, and as a willingness to grant a privilege, and not as a matter of right, but out of deference and good will, on behalf of the highest Court of this state, I would apply the principle of judicial comity to the tribal judge’s order of March 20, 1985, which awarded the custody of Charles Mexican’s body to his wife, Mabel Mexican. I do not recognize that the principle of the comity of nations should be here applied;1 and, hereby, I ascribe to the belief, in law, that there is a distinction between judicial comity and comity of nations. Comity is begotten from the womb of mutual respect and is not a child of obligation. We must live in mutual respect with our Indian brothers who serve on the trial courts of the various Indian reservations in South Dakota. They, in return, should likewise extend unto our courts reciprocating courtesy and respect.

¶3I am particularly touched, in this case, that Charles Mexican was a medicine man for the Indian people. I am deeply respectful of the First Amendment and the right of the Indian people to worship the Great Spirit. This worship anteceded on the North American Continent, by centuries, the religion of the white men who came to these shores. I am touched to the point of deepest compassion for the widow of Charles Mexican who desires that her husband be buried at a place of repose which she selects. The words of this tribal judge weigh heavily on me. His bench decision of March 19, 1985, reduced to writing and filed on March 20, 1985, gives us a deep insight into his consideration of tribal custom:

*743Now for the Counsel for the Plaintiff and the Defense. I do know a lot of things pursuant to history and custom regarding the custody of this body. First of all to the audience here, know that the Great Sioux Nation was before Pine Ridge; it was before Cheyenne River; it was before Ft. Yates and any of the other reservations. We were all one people at one time. The custom does not vary from one reservation to another today. You must understand that. And the thing that exists with the case we are talking about today — and that is — you’ve all heard the expression — the older ones in the crowd here know the expression that was used when a young lady married into another Tribe and she passed away. The same for the man marrying into another Tribe who chose to remain with that Tribe and died there. You know what that means. Those are the traditions and we are getting away from them. You are all completely against tradition and custom today, let me tell you. You are dealing with the spirit of a medicine man. That is dangerous. You don’t know what spirit can do; his spirit will not rest in peace if this court is to grant the request of the relatives. That man chose to marry here, there was not a divorce here, he died while he was still married to this woman. I will now rule for Mabel Mexican on this issue here simply based on tradition and custom, but I do want to leave this word with all of you, being relatives. This is a sad time indeed for all of you no matter which side you are on. You must bring yourself to understand that to come together to respect the memory of a medicine man you must put your feelings aside and no matter where he will be buried come to that funeral. You’ve all expressed your desires. You’ve all expressed that you loved him. That’s what you need to do — don’t let the white man’s law or any other law tear you apart. If you respect custom and tradition, then respect our tradition and come, all of you. That I will leave with you. This Court now stands adjourned.

¶4Bear in mind that counsel for the two sisters, himself also a Native American, prevailed upon the tribal court judge to take judicial notice and consider tribal custom because he believed that it iyas the “controlling matter here.” Certainly, out of courtesy, complaisance, and respect, the “white man’s law,” in the jargon of the tribal judge, should recognize the customs of the Indian people in burying their dead.

¶5It is true that this state has addressed the doctrine of comity as set forth in the 1916 and 1917 cases cited in the majority opinion. However, we were there concerned in the 1917 case with the recognition of a Wyoming mortgage; in the 1916 case, we were dealing with a sister state’s law, that of Nebraska, and specifically a Bulk Sales Law of that state to which we applied comity. Sister state to sister state is one thing. Nation to nation is quite another. In this case, within a state, we are addressing comity in a more limited geographic and conceptual scope. Perhaps the Sioux Tribe was, in the vernacular of the tribal judge, historically recognized by its own people as the “Great Sioux Nation,” as the tribal judge referred to it in the above-quoted proceeding. The “Sioux Nation,” however, cannot be a nation within a nation. We have but one nation, indivisible, and it is called the United States of America.2 Therefore, I am willing to give unto the judicial decision of this tribal judge all due deference and respect, as I have heretofore set forth, but not out of any recognition that the “Sioux Nation” is an independent nation within the United States of America. The Constitution of the United States of America established but *744one nation. I wish to quote with approval language in Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 197-98, 571 P.2d 689, 694-95 (1977), for the reason that it is aligned more closely with my thought'on the general subject of states and Indian tribes when addressing comity and full faith and credit:

We thus hold that 28 U.S.C. § 1738, does not require the courts of the state of Arizona to give full faith and credit to the enactmdnt of the Navajo Tribal Council.

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In general, the principle of “comity” is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect....

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... [Generally the principles of comity only apply between independent sovereign jurisdictions....

“[T]he Navajo Tribe is sovereign only to the degree that the federal government allows it to be.” Brown, 571 P.2d at 695 n. 7. See also, Rice v. Rehner, 463 U.S. 713, 719, 103 S.Ct. 3291, 3295, 77 L.Ed.2d 961, 970 (1983), reh’g denied, — U.S. —, 104 S.Ct. 209, 78 L.Ed.2d 185 (1983), “[t]he sovereignty that the Indian tribes retain- is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.” (Emphasis omitted) (quoting language in United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 312-13 (1978)).