April 21, 1975
Dr. Robert Hayes, Secretary
Department of Health
3rd Floor-Building No. 2
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-75
Tribal court orders of adoption
Dear Doctor Hayes:
You have asked whether the state Department of Health should accept tribal court orders of adoption for the purposes of establishing new birth records under SDCL 34-25-16.1.
One line of cases holds that the judicial acts of tribal courts are entitled to full faith and credit. Buster v. Wright, 135 F. 947, 953 (8th Cir. 1905); Raymond v. Raymond, 83 F. 721, 722 (8th Cir. 1897); Cornels v. Shannon, 63 F. 305, 306 (8th Cir. 1894); Strandly v. Roberts, 59 F. 836, 845 (8th Cir. 1894); Mehlin v. Ice, 56 F. 12, 18 (8th Cir. 1893); Iron Crow v. Oglala Sioux Tribe, 129 F. Supp. 15, 21 (W.D.S.D. 1955, aff'd., 231 F. 2d 89 (8th Cir. 1956); 1957-58 AGR 65, 66. These are federal cases which hold that the federal government must give full faith and credit to judgments of tribal courts. In Mackey v. Cox, 18 How. 100, 102-104, 15 L. Ed. 299, 300-01 (1856), the Supreme Court indicated that the "fact that [Indian tribes] are under the constitution of the union, and subject to act of congress regulating trade" is in large part responsible for the full faith and credit. The court went on to say, "they are not only within our jurisdiction, but the faith of the nation is pledged for their protection." The court also likened the tribes to a territory of the United States. Therefore, the federal government's unique constitutional relationship with the Indian tribes may require the federal government to afford full faith and credit to tribal judicial acts; however these cases do not support the proposition that the states must give full faith and credit to tribal court orders.
Section 1 of article IV of the United States Constitution requires the states to give full faith and credit to the judicial acts of other states. This doctrine does not extend to the judicial acts of Indian tribes which are not states. Neither does the doctrine of comity which presupposes two independent sovereign nations. Begay v. Miller, 70 Ariz. 380, 222 P. 2d 624, 628 (1950).
At best, it can be said that the tribal court adoption proceedings are valid under the theory that an adoption that is valid where it was granted is valid everywhere. Begay v. Miller, 70 Ariz. 380, 222 P. 2d 624, 628 (1950). This opinion does not deal with the validity of tribal court adoptions; it only deals with the question of whether the state Department of Health must issue a new birth certificate based on the tribal court order of adoption. As my predecessor held in 1957-58 AGR 65, 66 the state has no duty to accept a tribal court record for filing:
[Tribal court records] are not given effect by any law of the state nor is there any requirement that the action taken by such recognized tribunal must be made a record in any court of the state. The record in the tribal court alone is all sufficient.
Jurisdiction to hear, try and determine adoptions is rested in the circuit court. SDCL 25-6-6, 16-6-9 (7) and 16-6-9.1. South Dakota has not granted jurisdiction over adoptions to the tribal courts. Therefore, orders of the tribal courts respecting adoptions are of no force and effect so far as the state's duty to issue new birth certificates is concerned. Therefore, it is my opinion that the state Department of Health should not accept tribal court orders of adoption for the purpose of establishing new birth records under SDCL 34-25-16.1.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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