#27511-aff in pt & rev in pt-JMK
2016 S.D. 60

                            IN THE SUPREME COURT

                                   OF THE

                            STATE OF SOUTH DAKOTA

                                 ****
                         IN THE MATTER OF THE
                   ESTATE OF LORRAINE ISBURG FLAWS,
                              DECEASED.

                                 ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                     BRULE COUNTY, SOUTH DAKOTA
                                 ****

                   THE HONORABLE BRUCE V. ANDERSON
                                Judge

                                    ****
ROBERT R. SCHAUB of
Schaub Law Office, PC
Chamberlain, South Dakota

PAUL O. GODTLAND
Chamberlain, South Dakota                    Attorneys for appellants Audrey
                                             Isburg Courser and Clinton
                                             Baker.
DEREK A. NELSEN of
Fuller & Williamson, LLP
Sioux Falls, South Dakota

DAVID J. LARSON
Chamberlain, South Dakota

and

JONATHAN K. VAN PATTEN
Vermillion, South Dakota                     Attorneys for appellee Yvette
                                             Herman.

                                    ****
                                             ARGUED ON MARCH 22, 2016
                                             OPINION FILED 08/31/16
#27511

KERN, Justice

[¶1.]        Decedent named heirs in her will, but all heirs predeceased her,

causing her estate to become subject to the laws of intestate succession. Decedent’s

brother had two children from his only marriage. These children were designated

as heirs. The circuit court determined that Decedent’s brother’s illegitimate

daughter was also an heir entitled to inherit equally from Decedent’s estate. In

reaching this decision, the circuit court found SDCL 29A-2-114(c) unconstitutional

as applied to the illegitimate daughter. The brother’s legitimate children appeal.

We reverse and remand.

                                  BACKGROUND

[¶2.]        On February 18, 2010, Lorraine Isburg Flaws, a member of the Crow

Creek Tribe, died testate. Lorraine’s will distributed her property to her husband

and her only child, both of whom predeceased her. Lorraine’s parents and Donald

Isburg, her only sibling, also predeceased her. Her will did not designate contingent

beneficiaries, making her estate subject to the laws of intestate succession. Under

the laws of intestate succession, Lorraine’s estate would pass to Donald’s children.

Donald had two children from his marriage to Mavis Baker: Audrey Isburg Courser

and Clinton Baker (Appellants). Donald also purportedly had two illegitimate

daughters from other relationships: Yvette Herman, born June 1, 1970, and Tamara

Isburg Allen, born October 11, 1965.

[¶3.]        At the time of his death on August 24, 1979, Donald, a member of the

Crow Creek Tribe, owned tribal land held in trust by the United States

Government. Accordingly, the United States Department of the Interior, Bureau of


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Indian Affairs, Office of Hearings and Appeals, Probate Hearings Division

(collectively the Interior Board of Indian Appeals or IBIA) probated his estate. In

October 1980, the Crow Creek Bureau of Indian Affairs (BIA) Superintendent filed

a form entitled Data for Heirship Finding and Family History. This form disclosed

Donald’s assets and indicated that Audrey and Clinton, also enrolled members of

the Tribe, were Donald’s children.

[¶4.]         In April 1981, a notice of probate hearing was mailed to potential

heirs, including his sister, Lorraine, and his legitimate children, Audrey and

Clinton. In a letter made under oath, Lorraine reported to the IBIA that she was

Donald’s sister and that Donald’s only children were Audrey and Clinton. The IBIA

completed the probate on June 8, 1981 and entered an order declaring Audrey and

Clinton to be the sole heirs of Donald’s estate. Audrey and Clinton inherited

Donald’s trust land in which he shared an ownership interest with Lorraine.

Audrey and Clinton became tenants in common with Lorraine. In July 2003, fee

simple patents were issued to Lorraine, Audrey, and Clinton, removing their land

from trust. At the time of Lorraine’s death in 2010, none of her land was held in

trust with the federal government.

[¶5.]         This appeal concerns Yvette. She contends that, in addition to

Appellants, she is entitled to a share of Lorraine’s estate. 1 In order to receive a

share of Lorraine’s estate, Yvette must establish Donald’s paternity under SDCL

29A-2-114(c). SDCL 29A-2-114 provides in relevant part:



1.      Tamara’s appeal is addressed in Estate of Flaws, 2016 S.D. 61, ____ N.W.2d
        ____.

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             (a) For purposes of intestate succession by, from, or through a
             person . . . an individual born out of wedlock is the child of that
             individual’s birth parents.
              ....
             (c) The identity of the mother of an individual born out of
             wedlock is established by the birth of the child. The identity of
             the father may be established by the subsequent marriage of the
             parents, by a written acknowledgement by the father during the
             child’s lifetime, by a judicial determination of paternity during
             the father’s lifetime, or by a presentation of clear and convincing
             proof in the proceeding to settle the father’s estate.

(Emphasis added.) Yvette concedes that Donald did not recognize her in writing

during his lifetime and that she was not judicially determined to be Donald’s child

prior to his death.

[¶6.]        Yvette submits, however, that she has proven through DNA evidence

that she is Lorraine’s niece and Donald’s daughter. DNA samples submitted by

Yvette and Lorraine in 2005 established with 94.82% probability that Donald was

Yvette’s father. In 2008, relying on the DNA results, Yvette petitioned and received

from the Crow Creek Sioux Tribal Court an order of paternity identifying Donald as

her father. At Yvette’s request, the South Dakota Department of Health issued

Yvette a new birth certificate listing Donald as her father.

[¶7.]        In early March 2010, after Lorraine’s death, Audrey filed a petition for

formal probate of Lorraine’s estate in state court. Audrey petitioned for

appointment as personal representative and to have Lorraine’s heirs judicially

determined. Tamara and Yvette objected to Audrey’s appointment and requested

appointment as co-personal representatives. After a hearing, the court appointed

attorney Stan Whiting as special administrator of the estate.




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[¶8.]         In June 2010, Tamara and Yvette filed separate petitions with the

IBIA to reopen Donald’s probate to prove they were Donald’s daughters and heirs.

These requests were made 31 years after Donald died and 29 years after the

probate was closed. While this matter was pending with the IBIA, Audrey and

Clinton moved for partial summary judgment in state court against Yvette. They

alleged that Yvette lacked standing to assert she was an heir because she could not

satisfy any of the four methods set forth in SDCL 29A-2-114(c) to establish her

father’s identity. Yvette filed a motion contending that SDCL 29A-2-114 was

facially unconstitutional because it prohibited her right to recover as an illegitimate

child in violation of the Equal Protection Clause.

[¶9.]         The circuit court agreed that Yvette could not comply with the first

three methods of proving paternity set forth in SDCL 29A-2-114(c). In an

incorporated memorandum decision and order, the court found that Yvette’s parents

did not marry, Donald did not acknowledge her in writing, and she was not

judicially determined to be his child during his lifetime. The court found that

Yvette’s petition to reopen Donald’s estate would likely take more than one year to

resolve and granted partial summary judgment to Audrey and Clinton. The court

denied Yvette’s constitutional challenge, holding that the statute did not “create an

insurmountable burden for” Yvette to inherit. Rather, according to the court, the

statute served as a “legitimate limitation on the right of the child” to prove her right

to inherit.

[¶10.]        Yvette appealed the circuit court’s decision, raising several issues,

which we addressed in In re Estate of Flaws (Flaws I ), 2012 S.D. 3, 811 N.W.2d


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749. She argued that the four methods of establishing paternity set forth in SDCL

29A-2-114(c) did not foreclose other avenues of proof because “the identity of the

father may be established” in certain ways as listed. Id. ¶ 17, 811 N.W.2d at 753

(emphasis added). We held that the methods of establishing paternity were indeed

exclusive to those listed. Because Yvette could not satisfy any of the methods set

forth in SDCL 29A-2-114(c), we held that her only remaining option was to present

her proof in Donald’s estate. Yvette’s petition to reopen Donald’s estate was still

pending with the IBIA at the time of her appeal to this Court. Therefore, we

reversed and remanded to the circuit court to await the IBIA’s final determination

regarding Donald’s estate. We declined to address the issue regarding the

constitutionality of SDCL 29A-2-114.

[¶11.]         In June 2011, the IBIA issued a show cause order, to which Appellants

responded. In April 2012, the Indian Probate Judge denied Yvette’s request to

reopen Donald’s probate. The probate court found that because the real property

had “passed out of trust” it was “no longer subject to the probate jurisdiction of the

Department of Interior.” Estate of Donald Isburg, 59 IBIA 101, 101, 2014 WL

4262746, at *1 (August 20, 2014). 2

[¶12.]         In September 2014, Appellants again moved for partial summary

judgment in state court against Yvette, alleging she lacked standing to assert she

was an heir. In response, Yvette filed a second notice challenging the




2.       Yvette appealed this order. In August 2014, the IBIA affirmed the denial of
         the request to reopen Donald’s probate. This denial was not appealed to the
         United States District Court.

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#27511

constitutionality of SDCL 29A-2-114. After a hearing, the court denied the motion

for partial summary judgment and set the matter for a court trial.

[¶13.]       At the court trial in Lorraine’s estate court proceeding, Yvette again

presented evidence of Donald’s paternity, despite her inability to prove paternity by

any of the methods set forth in SDCL 29A-2-114(c). She also alleged the statute

was unconstitutional as applied. Yvette argued that the statute impermissibly

limited the forms of proof available to her as an illegitimate child in violation of the

Equal Protection Clause. Yvette contended that her DNA evidence should be

admissible in Lorraine’s estate proceedings as it is reliable and widely accepted as a

means to prove paternity. Additionally, she asserted that the State’s only interest

in this case was the avoidance of false claims. Because she filed her claim promptly

after Lorraine’s probate was opened, Yvette argued her claim had not delayed the

efficient administration of the estate. The court took the matter under advisement.

[¶14.]       On June 9, 2015, the court issued an incorporated memorandum

decision and order denying Appellants’ motion for summary judgment. The court

made findings regarding Yvette’s paternity. The court found that Yvette’s mother

Joyzelle Gingway-Godfrey was romantically involved with Donald “during a time

frame consistent with Yvette’s conception.” Additionally, Donald provided some

financial assistance and visited Joyzelle and Yvette. In 2005, Yvette informed

Lorraine she planned to pursue genetic testing with Tamara to establish Donald’s

identity as her father. Lorraine offered to participate in the genetic testing instead

and voluntarily provided DNA samples. The DNA samples established with 94.82%

probability that Lorraine and Yvette are related as aunt and child. The court found


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the expert testimony regarding the DNA samples to be credible and scientifically

reliable. The court concluded that the “DNA evidence establishes conclusively that

Donald is Yvette’s father.”

[¶15.]       With reference to Yvette’s constitutional challenge, the court declared

SDCL 29A-2-114 unconstitutional as applied to Yvette. The court held that “SDCL

§ 29A-2-114 undoubtedly makes a classification and distinction between illegitimate

and legitimate children.” While recognizing the State’s legitimate interests, the

court found they were not compelling. The circuit court found that Lorraine’s

probate was in its initial stages, and allowing Yvette’s claim did not delay the

efficient administration of the estate. Further, the court determined that the

State’s interest in avoiding false claims was not advanced by prohibiting Yvette

from presenting DNA evidence in Lorraine’s probate. Specifically, the court held

that the failure of the statute to allow for the use of DNA evidence was “not

substantially related to a legitimate government/state interest.” The court

acknowleded that SDCL 29A-2-114 was “adopted before DNA evidence was widely

accepted in the scientific and legal communities.” But the court noted that “the

[L]egislature has not kept up with modern means of establishing paternity or

heirship in this area of the law” and is “lagging behind the scientific realities of

today’s society.” Finding SDCL 29A-2-114 unconstitutional as applied to Yvette, the

court held that the statute “acts in an arbitrary and discriminatory manner without

justification, hides the truth, and works an injustice.”

[¶16.]       On July 7, 2015, the court deined Appellants’ motion for summary

judgment and issued a judgment declaring heirship, finding Yvette “to be the child


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of Donald Isburg, and as such the niece and heir of Lorrain [sic] Isburg Flaws, on

equal footing with, and having the same rights and entitlements as Tamara Allen,

Audrey Isburg Courser, and Clinton Baker[.]” Appellants appeal the denial of their

motion for summary judgment and the court’s judgment declaring heirship.

[¶17.]       We restate Appellants’ issues as follows:

             1.     Whether the circuit court erred by denying Appellants’ motion
                    for summary judgment.

             2.     Whether SDCL 29A-2-114(c) violates the Equal Protection
                    Clauses.

                             STANDARD OF REVIEW

[¶18.]       A circuit court’s jurisdiction is reviewed de novo. Daktronics, Inc. v.

LBW Tech. Co., 2007 S.D. 80, ¶ 2, 737 N.W.2d 413, 416. Similarly, “[s]tatutory

interpretation and application are questions of law, and are reviewed by this Court

under the de novo standard of review.” State v. Powers, 2008 S.D. 119, ¶ 7, 758

N.W.2d 918, 920.

[¶19.]       A circuit court’s findings of fact will be upheld “unless they are clearly

erroneous.” Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843. A finding of

fact will be overturned on appeal if “a complete review of the evidence leaves the

Court with a definite and firm conviction that a mistake has been made.” Id.

(quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743).

Conclusions of law are reviewed under the de novo standard of review. Tri-City

Assocs., L.P. v. Belmont, Inc. (Tri-City I), 2014 S.D. 23, ¶ 19, 845 N.W.2d 911, 916.

                                     ANALYSIS

             1.     Whether the circuit court erred by denying Appellants’
                    motion for summary judgment.

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[¶20.]       Appellants argue the circuit court erred in denying their motion for

summary judgment for two reasons. First, Appellants contend that to allow Yvette

to establish Donald’s paternity in Lorraine’s state court probate violates the

Supremacy Clause. Appellants argue the determination of Donald’s heirs must

occur only in Donald’s probate, which is in the exclusive jurisdiction of the

Department of the Interior. Second, Appellants submit that Yvette lacks standing

as her claims are untimely and barred by the statutes of limitations set forth in

SDCL 29A-3-412 and 43 C.F.R. § 30.243(a) (2016).

[¶21.]       Yvette, in response, contends that the circuit court’s determination of

Lorraine’s heirs did not impose upon federal jurisdiction in any way. Nor did it

implicate the Supremacy Clause. She argues the BIA made no ruling on her claim

that she is Donald’s daughter. And accordingly the BIA’s decision does not affect

her “right to prove that she is Lorraine’s heir in Lorraine’s South Dakota probate[.]”

Yvette also contends that the statutes of limitations relied upon by Appellants are

inapplicable to the facts of her case and do not negate her standing. She also

alleges that the Appellants fail to cite the correct test to analyze standing.

                    a.     Supremacy Clause

[¶22.]       The United States Constitution article VI establishes the Constitution

of the United States as “the supreme Law of the Land[.]” U.S. Const. art. VI, cl. 2.

This supremacy is recognized in the South Dakota Constitution in article VI, § 26.

The South Dakota Constitution also expressly recognizes the supremacy of the

federal government in matters pertaining to Indian lands. It provides,



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             That we, the people inhabiting the state of South Dakota, do
             agree and declare that we forever disclaim all right and title
             to . . . all lands lying within [the boundary of South Dakota]
             owned or held by any Indian or Indian tribes . . . and said Indian
             lands shall remain under the absolute jurisdiction and control of
             the Congress of the United States . . . .

S.D. Const. art. XXII, § 2. The Supreme Court of the United States has similarly

restricted “the assertion of state regulatory authority over tribal reservations and

members” in two areas. White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

142, 100 S. Ct. 2578, 2583, 65 L. Ed. 2d 665 (1980). First, a state’s “exercise of such

authority may be pre-empted by federal law.” Id. The second restriction applies

where the exercise of authority “may unlawfully infringe ‘on the right of reservation

Indians to make their own laws and be ruled by them.’” Id. (quoting Williams v.

Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L. Ed. 2d 251 (1959)).

[¶23.]       There is a strong presumption against federal preemption. FMC Corp.

v. Holliday, 498 U.S. 52, 62, 111 S. Ct. 403, 410, 112 L. Ed. 2d 356 (1990) (noting

the “presumption that Congress does not intend to pre-empt areas of traditional

state regulation”). We begin “with the assumption that the States’ historic police

powers are not to be superseded, ‘[b]ut that presumption can be overcome where . . .

Congress has made clear its desire for pre-emption.’” Botz v. Omni Air Int’l, 286

F.3d 488, 493 (8th Cir. 2002) (quoting Egelhoff v. Breiner, 532 U.S. 141, 151, 121 S.

Ct. 1322, 1330, 149 L. Ed. 2d 264 (2001).

[¶24.]       Federal preemption “occurs when Congress . . . expresses a clear intent

to pre-empt state law, . . . where there is implicit in federal law a barrier to state

regulation, where Congress has legislated comprehensively, . . . or where the state

law stands as an obstacle to the accomplishment and execution of the full objectives

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of Congress.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368-69, 106 S. Ct. 1890,

1898, 90 L. Ed. 2d 369 (1986) (citations omitted). See also Estate of Ducheneaux v.

Ducheneaux, 2015 S.D. 11, ¶ 11, 861 N.W.2d 519, 524.

[¶25.]         We first address explicit federal preemption. Appellants contend that

the Supremacy Clause prohibits state “courts from ignoring the BIA’s determination

of Donald’s heirs and re-determining them.” They argue that, pursuant to 25 U.S.C.

§ 372, the BIA’s decisions are final and conclusive. 3 Appellants then direct us to a

number of cases in support of their position that the power to determine heirs rests

exclusively with the BIA. However, none of Lorraine’s property is held in trust by

the federal government. It is undisputed that Lorraine received a fee simple patent

from the federal government in 2003, removing her land from trust. Accordingly,

the bulk of Appellants’ authority is inapposite as the cited cases involve the

disposition of trust lands. 4 As the federal government has no property interest in

Lorraine’s assets, the statute is inapplicable.


3.       25 U.S.C. § 372 (2012) provides in part:
               When any Indian to whom an allotment of land has been made,
               or may hereafter be made, dies before the expiration of the trust
               period and before the issuance of a fee simple patent, without
               having made a will disposing of said allotment as hereinafter
               provided, the Secretary of the Interior, upon notice and hearing,
               under the Indian Land Consolidation Act [25 U.S.C.A. § 2201 et
               seq.] or a tribal probate code approved under such Act and
               pursuant to such rules as he may prescribe, shall ascertain the
               legal heirs of such decedent, and his decisions shall be subject to
               judicial review to the same extent as determinations rendered
               under section 373 of this title.

4.       Appellants direct us to Bertrand v. Doyle, 36 F.2d 351 (10th Cir. 1929), and
         Spicer v. Coon, 238 P. 833 (Okla. 1925), in support of the proposition that
         “the BIA’s conclusive right to determine heirs relates to all questions of
                                                                     (continued . . . )
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[¶26.]       Additional grounds for federal preemption occur where there is implicit

in federal law a barrier to state regulation or where the state law stands as an

obstacle to the accomplishment of the objectives of Congress. Estate of Ducheneaux,

2015 S.D. 11, ¶ 11, 861 N.W.2d at 524; Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

95, 103 S. Ct. 2890, 2899, 77 L. Ed. 2d 490 (1983). Neither exists in this case. As

discussed above, 25 U.S.C. § 372 grants the Department of the Interior exclusive

jurisdiction and authority to probate Indian lands held in trust. The South Dakota

Constitution and our case law recognize this exclusivity. Appellants have not

established any barrier to the exercise of state court jurisdiction over non-trust

lands. Nor have Appellants shown that the exercise of state jurisdiction is

incompatible with a competing federal interest or contrary to the objectives of

Congress.

[¶27.]       While it is evident that Congress intended to exercise jurisdiction over

probates of Indian lands held in trust, there is no evidence that Congress intended

to control probates of Indian estates involving non-trust land. See 25 U.S.C. § 2206

(2012). Such probates are treated the same as those of non-Indians owning fee


_____________________
( . . . continued)
          heirship” and is not subject to review by the circuit court. Neither lends
          support to Appellants’ position as both involve determination of heirship in
          trust lands. The court in Bertrand stated, “The Act [25 U.S.C. § 372] clearly
          applies to both past and future allotments and to all questions of heirship of
          the allottee arising within the trust period.” Bertrand, 36 F.2d at 352
          (emphasis added). In Spicer, the court addressed the issue whether state
          courts had jurisdiction to review the Secretary of the Interior’s determination
          of decedent’s heirs. 238 P. at 835. The court properly determined that “the
          Secretary of the Interior was the sole tribunal for the determination of”
          decedent’s heirs when decedent “died before the expiration of the trust period
          without having disposed of his allotment by will[.]” Id. at 834-35.

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simple land. Congress has not created a federal probate code but instead relies

upon the states to establish their own probate codes. Congress, through federal

legislation, has limited its jurisdiction of probates to those involving Indian lands

held in trust. It is for this reason that the IBIA declined to exercise jurisdiction to

consider Tamara’s and Yvette’s petitions to reopen Donald’s estate. If Congress

intended to maintain exclusive jurisdiction over all probates involving Indians

under any circumstances, it would have enacted the necessary legislation to

accomplish this intent.

[¶28.]       Appellants’ argument that the IBIA’s 1981 order determining Donald’s

heirs is binding and cannot be re-determined in Lorraine’s state court proceeding is

similarly unavailing. The existence of trust lands in which the United States

government has an interest is a jurisdictional prerequisite for preemption. Yvette’s

attempt to establish heirship in Lorraine’s state court proceeding will not infringe

upon the jurisdiction of the Secretary of the Interior. The circuit court did not err

by denying Appellants’ motion for summary judgment under the Supremacy Clause.

                    b.     Standing

[¶29.]       Appellants’ arguments that Yvette lacks standing to attack the

constitutionality of SDCL 29A-2-114(c) are misplaced. This Court has recognized

five requirements necessary to establish standing. An individual must establish:

             (1) a personal injury in fact, (2) a violation of his or her own, not
             a third-party’s rights, (3) that the injury falls within the zone of
             interests protected by the constitutional guarantee involved, (4)
             that the injury is traceable to the challenged act, and (5) that
             the courts can grant redress for the injury.

Good Lance v. Black Hills Dialysis, LLC, 2015 S.D. 83, ¶ 12, 871 N.W.2d 639, 643-

44. Yvette satisfies all of the requirements necessary to establish standing. The
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injury alleged is personal to Yvette, “not a third party, and it is not a generalized

grievance of the population.” Id. ¶ 13, 871 N.W.2d at 644. Further, Yvette is

affected by the application of the statute and has an interest as she is “a person

belonging to the class allegedly discriminated against”—illegitimate children. See

State v. Reed, 75 S.D. 300, 302, 63 N.W.2d 803, 804 (1954). Yvette’s alleged injury

is within the interests protected by the Equal Protection Clause of the South

Dakota Constitution. And, if Yvette can demonstrate that SDCL 29A-2-114(c) is

unconstitutional as applied to her, redress may be granted by affirming the circuit

court’s order—allowing Yvette to inherit.

                    c.     Statutes of Limitations

[¶30.]       Lastly, we address whetherYvette’s claims are barred by the statutes

of limitations set forth in SDCL 29A-3-412 and 43 C.F.R. § 30.243(a). Appellants

first argue that because Yvette was not named as an heir in Donald’s estate before

it closed, Yvette’s claims are barred by SDCL 29A-3-412. This statute provides that

an individual may petition to vacate a probate order “twelve months after the entry

of order sought to be vacated.” Yvette, however, no longer seeks a determination of

heirship in Donald’s estate. The IBIA conclusively determined it lacked jurisdiction

to reopen the estate because the estate no longer contained any lands held in trust.

Yvette seeks a determination of heirship in Lorraine’s estate. Although SDCL 29A-

3-412 is applicable to Lorraine’s estate, Lorraine’s probate proceedings are in their

earliest stages. Her heirs have not been conclusively determined, assets have not

been divided, and no final order has been entered. SDCL 29A-3-412 is inapplicable.




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[¶31.]         Similarly, Appellants’ argument that Yvette is barred from re-opening

Donald’s estate per 43 C.F.R. § 30.243(a) is meritless. 43 C.F.R. § 30.243 provides

that an interested party can petition to re-open a closed Indian probate “within 3

years after the date of the original decision and within 1 year after the petitioner’s

discovery of an alleged error.” But again, Yvette is not seeking to reopen Donald’s

estate. She seeks designation as Lorraine’s heir in Lorraine’s probate proceeding in

state court.

               2.    Whether SDCL 29A-2-114(c) violates the Equal Protection
                     Clauses.

[¶32.]         Appellants argue that the circuit court exceeded its jurisdiction in

declaring SDCL 29A-2-114(c) unconstitutional as applied to Yvette. They contend

this Court directed the circuit court to wait for the IBIA’s decision before

proceeding. Appellants assert that after the IBIA refused to re-open Donald’s

probate, the circuit court should have promptly dismissed Yvette’s claims because

she conceded she could not meet the criteria of the statute. In response, Yvette

contends that because this Court’s opinion in Flaws I did not address the

constitutionality of SDCL 29A-2-114(c), she is not precluded from presenting her

constitutional claim.

[¶33.]         We reserve the power to remit a “judgment or decision to the court

from which the appeal was taken, to be enforced accordingly . . . .” SDCL 15-30-14.

Upon remittal, a “circuit court’s jurisdiction must conform to the dictates of our

opinion.” State v. Piper, 2014 S.D. 2, ¶ 10, 842 N.W.2d 338, 343. In Flaws I, we

determined the circuit court did not err in finding that the methods and time limits

established in SDCL 29A-2-114(c) were exclusive. 2012 S.D. 3, ¶ 22, 811 N.W.2d at

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754. We declined to address Yvette’s argument that SDCL 29A-2-114 was

unconstitutional. Id. (citing Sheehan v. United Pac. Ins. Co., 439 N.W.2d 117, 119

(S.D. 1989)). We remanded the case directing the circuit court “to wait for a

reasonable time for the [IBIA’s] decision and to proceed accordingly.” Id. Because

we declined to address the constitutional arguments in Flaws I, the circuit court’s

conclusion that SDCL 29A-2-114(c) is unconstitutional as applied to Yvette does not

exceed the dictates of our opinion.

[¶34.]       As the circuit court did not exceed its jurisdiction, we next consider

whether SDCL 29A-2-114(c) violates the Equal Protection Clauses of either the

United States or South Dakota Constitutions. “[A]lleged violations of constitutional

rights are reviewed de novo.” Good Lance, 2015 S.D. 83, ¶ 8, 871 N.W.2d at 643.

Yvette, as the party challenging the constitutionality of SDCL 29A-2-114(c), bears

the burden to prove beyond a reasonable doubt that the statute is unconstitutional.

Green v. Siegel, Barnett & Schutz, 1996 S.D. 146, ¶ 7, 557 N.W.2d 396, 398. We

begin with “a strong presumption that the laws enacted by the legislature are

constitutional and that presumption is rebutted only when it clearly, palpably and

plainly appears that the statute violates a constitutional provision.” Wuest v.

Winner Sch. Dist. 59-2, 2000 S.D. 42, ¶ 32, 607 N.W.2d 912, 919.

[¶35.]       Appellants argue that SDCL 29A-2-114(c) does not violate the Equal

Protection Clause when read with other probate statutes as it does not create a

classification between legitimates and illegitimates. Additionally, Appellants

contend that even if a classification is created, such classification is not arbitrary.

Appellants assert that SDCL 29A-2-114(c) is substantially related to the State’s


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legitimate interests. Such interests include the orderly administration of estates,

“probate efficiency, certainty and the prompt determination of heirs.” In response,

Yvette submits that SDCL 29A-2-114(c) is unconstitutional as applied to her.

Yvette argues that, under the statute, she is discriminated against because she is

classified as an illegitimate. She argues that this “disparate treatment of

‘illegitimate’ children is not ‘substantially related,’ or even ‘rationally related,’ to

any government interest under these facts.”

[¶36.]         The circuit court held that SDCL 29A-2-114(c) created a classification

between legitimate and illegitimate children as children were treated differently

depending on whether they were born in or out of wedlock. The court ruled that the

statute was unconstitutional as applied to Yvette because it prohibited her from

proving paternity with DNA evidence simply because Donald’s estate was closed.

The court concluded that “the failure to allow this . . . evidence . . . to inherit . . . is

NOT substantially related to a legitimate government/state interest.”

[¶37.]         In analyzing whether SDCL 29A-2-114(c) impermissbly denies equal

protection of the law, we ask whether its terms are prohibited by the Fourteenth

Amendment of the United States Constitution or Article VI, § 18 of the South

Dakota Constiution. 5 Accounts Mgmt., Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.




5.       U.S. Const. amend. XIV, § 1 provides:
               No State shall make or enforce any law which shall abridge the
               privileges or immunities of citizens of the United States; nor
               shall any State deprive any person of life, liberty, or property,
               without due process of law; nor deny to any person within its
               jurisdiction the equal protection of the laws.

                                                                        (continued . . . )
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1992). This Court employs a two-part test to examine whether a statute violates

either of the Equal Protection Clauses. Tibbs v. Moody Cty. Bd. of Comm’rs, 2014

S.D. 44, ¶ 6, 851 N.W.2d 208, 212; People in Interest of Z.B., 2008 S.D. 108, ¶ 7, 757

N.W.2d 595, 599. First, we determine whether SDCL 29A-2-114(c) creates “an

arbitrary classification among citizens[.]” Tibbs, 2014 S.D. 44, ¶ 6, 851 N.W.2d at

212. Second, we determine whether the statute is substantially related to

important government objectives because this case involves a classification based

upon illegitimacy. See Astrue v. Capato ex rel. B.N.C., --- U.S. ---, ---, 132 S. Ct.

2021, 2033, 182 L. Ed. 2d 887 (2012) (citing application of intermediate level of

scrutiny to classifications based upon illegitimacy); Clark v. Jeter, 486 U.S. 456,

461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465 (1988) (“To withstand intermediate

scrutiny, a statutory classification must be substantially related to an important

governmental objective.”).

[¶38.]       In Lalli v. Lalli, the Supreme Court of the United States considered

the constitutionality of a New York paternity statute. 439 U.S. 259, 261-62, 99 S.

Ct. 518, 521, 58 L. Ed. 2d 503 (1978). The statute allowed an illegitimate child to

inherit from his father only if a court of competent jurisdiction entered an order of

paternity during the father’s lifetime. In finding the statute constitutional, the

Supreme Court determined the statute was related to important state objectives

including the orderly disposition of property at death. The Court also noted that


_____________________
( . . . continued)
          S.D. Const. art. VI, § 18 provides, “No law shall be passed granting to any
          citizen, class of citizens or corporation, privileges or immunities which upon
          the same terms shall not equally belong to all citizens or corporations.”

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#27511

permitting the father to participate and defend in paternity proceedings furthered

the objective of reducing fraudulent claims.

[¶39.]       Similarly, in In re Erbe, we reviewed the statutory procedures by

which an illegitimate child could inherit from her father. 457 N.W.2d 867, 869 (S.D.

1990). The case involved a constitutional challenge to SDCL 29-1-15, the precursor

to SDCL 29A-2-114(c). The provisions of SDCL 29-1-15 allowed an illegitimate

child to inherit from her father if he acknowledged her in writing in the presence of

a competent witness. Paternity could also be established if the parents married and

thereafter the father acknowledged the child as his own or adopted the child into his

family. In denying the constitutional challenge, we held that the statute properly

distinguished between the various categories of proof available to illegitimates to

establish paternity and was related to legitimate state interests. We acknowledged

that, to further its interests, the State may apply “‘a more demanding standard’ for

illegitimate children who seek to inherit from their father’s estate” in order to

promote the efficient administration of estates and avoid spurious claims. Erbe, 457

N.W.2d at 869 (quoting Lalli, 439 U.S. at 265, 99 S. Ct. at 523).

[¶40.]       In applying this precedent to Yvette’s challenge, we agree with the

circuit court that SDCL 29A-2-114(c) creates a classification as it sets forth methods

by which an illegitimate child may inherit from her father. Although SDCL 29A-2-

114(c) creates a classification, Yvette must prove beyond a reasonable doubt that

SDCL 29A-2-114(c) cannot withstand intermediate scrutiny because it is not

substantially related to important government interests.




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[¶41.]       Yvette claims that SDCL 29A-2-114(c), which limits her DNA evidence

only to proof in Donald’s estate, does not promote the orderly administration of

estates. She contends that she asserted her rights in Lorraine’s estate “early and

often,” and to allow her proof will not impede the probate. She relies primarily

upon Reed v. Campbell, 476 U.S. 852, 106 S. Ct. 2234, 90 L. Ed. 2d 858 (1986), for

the assertion that “a State’s interest in ‘finality’ is drastically curbed when the

‘administration of the estate is pending and in its initial stages.’” But, Reed is

clearly distinguishable.

[¶42.]       In Reed, the Supreme Court of the United States reversed the Texas

Court of Appeals’ holding that an illegitimate child was unable to inherit from her

father’s estate. Id. at 853, 106 S. Ct. at 2236. At the time of Reed’s father’s death,

the probate code “prohibited an illegitimate child from inheriting from her father

unless her parents had subsequently married.” Id. at 853, 106 S. Ct. at 2236.

Reed’s father, who died intestate, was never legally married to her mother. While

the probate was pending, Reed, citing as authority a recently-released opinion from

the Supreme Court of the United States, Trimble v. Gordon, filed her claim to

inherit from her father’s estate. 430 U.S. 762, 772, 97 S. Ct. 1459, 1466, 52 L. Ed.

2d 31 (1977). The Court in Trimble held that a “total statutory disinheritance of

illegitimate children whose fathers die intestate” was unconstutional. Id. The trial

court denied Reed’s claim, holding that Trimble did not apply retroactively because

Reed’s father died four months before Trimble was decided and Reed’s claim was

filed after the decision. Reed, 776 U.S. at 856, 106 S. Ct. at 2237. The Supreme

Court of the United States reversed the decision. It concluded that Trimble could be


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applied retroactively because “neither the date of [decedent’s] death nor the date the

claim was filed had any impact on the relevant state interest in orderly

administration[.]” Id. at 856, 106 S. Ct. at 2238.

[¶43.]       Yvette’s reliance upon Reed is misplaced. Unlike the statute in Reed,

SDCL 29A-2-114(c) does not preclude Yvette from being declared an heir solely

because of her status as an illegitimate child. Rather, Yvette’s claim fails because

she cannot satisfy any of the criteria for proving paternity set forth in SDCL 29A-2-

114(c). In Reed, the Court reiterated that a state may not discriminate against

“illegitimates in order to express its disapproval of their parents’ misdoconduct.” Id.

at 854, 106 S. Ct. 2237. But the Court acknowledged that states have an interest in

the orderly administration of estates and may create appropriate restrictions. Id. at

854-55, 106 S. Ct. at 2237. This interest “may justify the imposition of special

requirements upon an illegitimate child who asserts a right to inherit from her

father, and, of course, it justifies the enforcement of generally applicable limitations

on the time and the manner in which claims may be asserted.” Id. at 855, 106 S. Ct.

at 2237.

[¶44.]       Accordingly, “[o]ur inquiry under the Equal Protection Clause does not

focus on the abstract ‘fairness’ of the statute, but on whether the statute’s relation

to the state interests it is intended to promote is so tenuous that it lacks the

rationality contemplated by the [Equal Protection Clause].” Erbe, 457 N.W.2d at

870. Few statutes “are entirely free from the criticism that they sometimes produce

inequitable results.” Id. SDCL 29A-2-114(c) is no different. The statute sets forth

the requirements which govern the orderly presentation and resolution of paternity


                                          -21-
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claims including the opportunity to present proof in the father’s estate. Yvette

cannot satisfy any of the methods to establish paternity provided for in SDCL 29A-

2-114(c). Regardless of the potential for an unjust result, we cannot declare that

SDCL 29A-2-114(c) is unconstitutional solely because it does not permit Yvette to

introduce DNA evidence in Lorraine’s estate. Yvette has failed to meet her burden

of establishing beyond a reasonable doubt that the statute is not substantially

related to important governmental interests.

[¶45.]       When interpreting legislation, this Court’s purpose “is to discover the

true intention of the law [as] ascertained primarily from the language expressed in

the statute. The intent of a statute is determined from what the legislature said,

rather than what the courts think it should have said.” City of Deadwood v. M.R.

Gustafson Family Tr., 2010 S.D. 5, ¶ 6, 777 N.W.2d 628, 631. We “cannot add

language that simply is not there.” Rowley v. S. Dakota Bd. of Pardons & Paroles,

2013 S.D. 6, ¶ 12, 826 N.W.2d 360, 365. Nor can we rewrite the langage of the

statute as this is an action reserved for the Legislature. Likewise, the circuit

court’s concern that the Legislature “has not kept up with modern means of

establishing paternity or heirship in this area of the law” is not grounds to find the

application of the statute unconstitutional.

                                   CONCLUSION

[¶46.]       The circuit court did not err in denying Appellants’ motion for

summary judgment. The state court probate of Lorraine’s estate is not prohibited

by the Supremacy Clause. Further, the court properly determined that Yvette had




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standing under Good Lance to bring her claims. Yvette’s claims are not barred by

the statutes of limitations set forth in SDCL 29A-3-412 and 43 C.F.R. § 30.243(a).

[¶47.]       The circuit court did err, however, when it declared SDCL 29A-2-114(c)

unconstitutional as applied to Yvette. Although SDCL 29A-2-114(c) creates a

classification between legitimate and illegitimate children, we find it constitutional

as applied to Yvette under both our federal and state constitutions. The statute

does not unfairly discriminate against illegitimates. Rather, it sets forth reasonable

methods by which illegitimates may inherit and is substantially related to

important government interests. Under the statute, proof of paternity may occur by

the subsequent marriage of the parents, or by written acknowledgment, or judicial

determination during the father’s lifetime. The final method permits proof of

paternity in the father’s estate by clear and convincing evidence. This higher

standard of proof at this stage protects against spurious claims. The fact that

Yvette cannot satisfy any of the criteria set forth in SDCL 29A-2-114(c) does not

render the statute unconstitutional as applied. Although this may be an unjust

result, the remedy lies not with this Court. The decision to expand the provisions of

SDCL 29A-2-114(c) to permit other forms of proof, such as DNA evidence in

proceedings not limited to the father’s estate, is within the exclusive province of the

Legislature. We reverse and remand for entry of an order consistent with this

opinion.

[¶48.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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