Did a South Carolina concurrent resolution itself grant state recognition to Indian tribes named in it?

Plain-English summary

In January 2004, South Carolina’s Attorney General concluded that a concurrent resolution asking the federal Bureau of Indian Affairs to recognize named Indian tribes and organizations did not itself grant them state recognition. A concurrent resolution could carry weight as the legislature’s expressed view, but it did not have the force of law.

The distinction mattered because the Commission for Minority Affairs was drafting state recognition regulations under an amended statute. The AG said the earlier resolution did not prevent those proposed regulations from applying to the entities it named.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Tribal organizations

The opinion distinguished a legislative request for federal recognition from state recognition with legal effect. It did not determine whether any named organization would qualify under the proposed state regulations.

Commission for Minority Affairs

The office said the resolution did not exempt named entities from the commission’s proposed recognition rules. Its reasoning rested on earlier AG opinions that concurrent resolutions are not statutes and do not exercise legislative power.

Common questions

Did the resolution legally recognize the named tribes in South Carolina?
No. The AG said it requested federal recognition but had no force or effect of law as state recognition.

Could the proposed state recognition regulations apply to those groups?
Yes. The opinion said the resolution did not preclude their application.

Did the AG say the resolution was meaningless?
No. It said a concurrent resolution could carry weight as the joint view of both legislative houses while lacking the force of law.

Background and statutory framework

The commission’s director asked about a 1987 resolution in light of a statutory amendment authorizing regulations on state recognition of Native American Indian entities. The AG compared the resolution’s request to the federal Bureau with prior opinions on the legal effect of concurrent resolutions.

Citations and references

The opinion discussed S.C. Code Ann. Section 1-31-40 and the concurrent resolution dated May 14, 1987.

Official title

Questioning whether a particular concurrent resolution grants State recognition to the organizations named therein.

Requester

Janie A. Davis, Executive Director, Commission for Minority Affairs

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-9-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan9davis.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R
ATIORNEY GENERAL

January 9, 2004

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Janie A. Davis, Executive Director
Commission for Minority Affairs
6904 North Main Street, Suite I 07
Columbia, South Carolina 29203
Dear Ms. Davis:
In a letter to this office you questioned whether a particular concurrent resolution grants State recognition to the organizations named therein. You forwarded a concurrent resolution of the General Assembly dated May 14, 1987 which states in part that " ...the General Assembly requests the Bureau of Indian Affairs of the United States Department of the Interior to recognize the... (named)... Indian tribes and organizations...." The effect of the resolution has been questioned in light of the amendment to S.C. Code Ann. Section 1-31-40 (Supp. 2003) which states that the State Commission for Minority Affairs shall " ...promulgate regulations as may be necessary to carry out the provisions ofthis article including, but not limited to, regulations regarding State Recognition · of Native American Indian entities in the State of South Carolina.... " As a result of the legislation, regulations have been drafted regarding recognition of Indian tribes in this State. A question has been raised as to whether such would be applicable to the Indian tribes recognized in the referenced concurrent resolution. A prior opinion of this office dated June 17, 1987 quoted the following: (w)hile some constitutions provide to the contrary, the general rule is that a joint or concurrent resolution adopted by the legislature is not a statute, does not have the force or effect oflaw, and cannot be used for any purpose for which an exercise of legislative power is necessary. The opinion quoted another prior opinion of this office dated August 6, 1974 which stated that a concurrent resolution "does not have the force and effect of law". The opinion commented, however, that inasmuch as a concurrent resolution is " ... an expression of the sense of the two Houses concurrently, it does, nevertheless, carry great weight." Consistent with such, the referenced concurrent resolution requesting recognition of the named Indian tribes and organizations, while carrying weight, does not have the force or effect of

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REMBw C.BENN!s BUUDING • Posr OFFICE Box 11549 • COLlJMBIA, s.c. 2921 1-1549 • TEl.EPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

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Ms. Davis
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January 9, 2004
law. As a result, it is my opinion that such would not preclude applicability of the proposed regulations to the Indian tribes and organizations referenced in the resolution. If there is anything further, please advise.

Sincerely,

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a~uJ.. Charles H. Richardson
Senior Assistant Attorney General