January 22, 1981

Mr. Harvey M. Crow 
Corson County State's Attorney 
McIntosh, South Dakota 56641

Official Opinion No. 81-3

Duty of County Coroner to Investigate Unlawful Deaths of Indians Which Occur Within Indian Country

Dear Mr. Crow:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

The Corson County Coroner has in the past been called on to investigate all deaths of Indians that warrant a coroner being at the scene, even though these deaths may have occurred within Indian country where the State of South Dakota has no criminal jurisdiction over Indian persons or over crimes arising from the death of an Indian individual.  Accordingly, the coroner has no right to order an inquest or otherwise investigate the case to determine if a state prosecution is warranted. 

It is the contention of the county that the coroner has no responsibility to investigate unlawful Indian deaths in any part of the county over which the State cannot exercise jurisdiction over Indians.  The object of a coroner's investigation and inquest is to obtain information as to whether or not the cause of death was by criminal act and, if so, to furnish foundation for a prosecution. Without jurisdiction to prosecute the perpetrator of the felonious death, the coroner's investigation of the death serves no purpose, and since South Dakota state law provides that an undertaker can gather the information and file a death certificate, the proper records are kept for vital statistics purposes.

Based on the above facts, you asked the following question:

QUESTION: 

Is the county coroner responsible for investigating unlawful Indian deaths in counties, or portions thereof, which are Indian country as defined in 18 U.S.C. § 1151?

The statute controlling this question appears to grant no discretion on whether the coroner must investigate these deaths.  SDCL 34-25-21 reads: 

In case of any death occurring without the attendance of a licensed physician, it shall be the duty of the funeral director or other person in charge of the body to notify the county coroner of such death, and when so notified such county coroner shall make the medical certificate and return from the statement of relatives or other persons having adequate knowledge of the facts.  In the absence of a coroner or deputy coroner, or if the coroner is unable to act, and only in such case, the local registrar shall prepare the death certificate from the statement of relatives or other person having knowledge of the facts.

This statute is mandatory in that the coroner 'shall' make the medical certificate and return when the death occurred without the attendance of a licensed physician.  However, the statute does not require the coroner to be directly involved in the investigation of the death.  He may take his information from other officials (e.g. federal or tribal officials) if they are  persons 'having adequate knowledge of the facts.'

The concurrent state and federal jurisdiction that exists over Indian country as defined in 18 U.S.C. § 1151 also necessitates state investigation of these deaths.  Without investigation, state officials have no way of determining whether the deceased is in fact an Indian person.  If an investigation would reveal that the deceased was a non-Indian and that the murderer was a non-Indian, the State would have jurisdiction over the offense even though it was committed within Indian country.  United States v. McBratnay, 104 U.S. 621 (1881).  Also, facts developed from an investigation may reveal that the fatal blow was inflicted outside Indian country.  In such a situation the State would have jurisdiction to prosecute the offense regardless of the race of the perpetrator or the victim.  SDCL 23A-16-11; State v. Nimrod, 138 N.W. 377 (S.D. 1912).  

Attached to your opinion request was a letter from your county coroner which presented the additional question of the possibility of making arrangements with federal officials to investigate these deaths.  If that is the desire of the county, I would refer you to the provisions of SDCL 1-24, relating to joint exercise of governmental powers.

Respectfully submitted,

Mark V. Meierhenry
Attorney General