Could South Carolina recognize a Native American group whose application was pending when Act 163 took effect?

Plain-English summary

In 2018, a legislator asked whether South Carolina’s Commission for Minority Affairs could decide a Native American Indian Group recognition application that had been pending when Act 163 took effect. The Attorney General concluded that the new Act prohibited recognition of any new group, including applicants already in the queue.

The office said it did not need to decide whether Act 163 technically removed the Commission’s jurisdiction. The Act’s substantive bar required pending applications to be denied. The opinion distinguished those applications from groups that had already been recognized when the Act became effective.

Currency note

This opinion was issued in 2018. 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.

Common questions

Q: Did filing before Act 163 took effect preserve an application for group recognition?
A: The AG said no. Pending applications were subject to the new prohibition on recognizing groups.

Q: Did the opinion revoke recognition already granted to a group?
A: No. It expressly said it did not question groups recognized by the effective date.

Q: Did the AG decide whether the Act formally removed the Commission’s jurisdiction?
A: No. It found the Act’s prohibition decisive without resolving that narrower jurisdictional label.

Background and statutory framework

Act 163 changed South Carolina law governing recognition of Native American Indian Groups by the Commission for Minority Affairs. The office applied the principle that an administrative application still pending when the law changes generally follows the new law, then treated the Act’s prohibition on new recognition as controlling.

Citations and references

• The AG said Act 163 “prohibits the recognition of new Native American Indian Groups even if the application was pending.”

• It said nothing in the opinion questioned “the continuing recognition” of groups already recognized by the Act’s effective date.

Official title

On whether the Commission has jurisdiction to consider an application for recognition which was pending upon the effective date of Act No. 163.

Requester

The Honorable Alan Clemmons, Member, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-17-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/07/Clemmons-A.-OS-10281-FINAL-Opinion-7-17-2018-JONES-01734494xD2C78-01740421xD2C78.pdf

Original opinion text

South
Wilson
f General

July 17, 2018
The Hon. Alan Clemmons

South Carolina House of Representatives
PO Box 11867

Columbia, SC 29211

Dear Rep. Clemmons:

We received your hand-delivered request this morning bearing today's date and seeking an opinion on certain questions related the jurisdiction of the Commission on Minority Affairs to consider application for recognition which was pending upon the effective date of Act 163. The Solicitor General has exercised his discretion to expedite the issuance of this opinion in light of the scheduled meeting of the Commission and the general public interest. This opinion sets out our Office's understanding of your question and our response. Issue (as quoted from your letter):

This past session the General Assembly enacted Act 163 that mandates the Commission on Minority Affairs cease the State Recognition process for Native

American groups. The law was enacted on May 1^^ and subsequently signed by

Governor McMaster on May 3*^^.
I would like to seek an opinion from your office on whether or not the Commission has jurisdiction to consider an application for recognition that was pending prior to the enactment of this law.

The Commission is scheduled to meet on July 27^*^ and because of this, I respectively ask that you expedite an opinion on this matter. Law/Analysis: It is the opinion of this Office that a court would conclude that Act 163 prohibits the recognition of new Native American Indian Groups even if the application was pending prior to the effective date of that Act. We do not reach the particular legal question of whether Act 163 is jurisdictional in nature because the unambiguous mandate of the Act and other applicable law resolve this question for all practical purposes such that any pending applications for recognition of a proposed Native American Indian Group must be denied.

Rembert C.DE?>JNis Building • Post Office Box 11549 • Columbla,SC2921M549 • Telephone 803-734-3970 • Facsimile 803-253-6283

The Hon. Alan Clemmons
Page 2

July 17,2018

Act 163 of the 2017-2018 legislative session (hereinafter the "Act") was passed on May 1, 2018 and became effective two days later on May 3. Act No. 163, 2018 S.C. Acts

.' With

the exception of the title, the text of the Act reads in full: Whereas, Chapter 139 of the South Carolina Code of Regulations provides for recognition of Native American Indian Groups; and

Whereas, under the definition of "Native American Indian Group" found in Chapter 139, a group "means a number of individuals assembled together, which

have different characteristics, interests, and behaviors that do not denote a separate ethnic and cultural heritage today, as they once did.

The group is

composed of both Native American Indians and other ethnic races. They are not all related to one another by blood. A tribal council and governmental authority unique to Native American Indians govern them"; and

Whereas, while the number of entities that may be recognized as Native American Indian Tribes is finite, recognition of Native American Indian Groups is unlimited; and Whereas, by continuing to recognize Native American Indian Groups, all of

which are entitled membership on the Advisory Committee of the Commission for Minority Affairs, the number of Group members could easily outnumber and

outvote the number of Tribe members on the Advisory Committee.

Now,

therefore,
Be it enacted by the General Assembly of the State of South Carolina: Native American Indian Groups, existing recognition, prospective repeal of regulations regarding recognition

SECTION 1 . Chapter 3 1 , Title 1 of the 1976 Code is amended by adding: "Section 1-31-60.

(A)

Notwithstanding any other provision of law, upon and

after the effective date of this statute:
(1)

any Native American Indian Group that on the effective date of this section

has been recognized by the Commission for Minority Affairs through its regulatory process remains and continues to be:

(a) recognized as a Native American Indian Group; and
Available at http://www.scstatehouse.gOv/sessl22_2017-2018/bills/3 177.htm.

The Hon. Alan Clemmons
Page 3

July 17, 2018

(b) eligible to exercise the privileges and obligations authorized by that designation;

(2) the Commission for Minority Affairs must:

(a) eliminate the eligibility for any additional Native American Indian Groups to receive official recognized status in the State; and (b) cease to recognize any additional entities as Native American Indian Groups; and

(3) any regulations providing for recognition as a Native American Indian Group are repealed. (B) The Commission for Minority Affairs must revise any regulations to:

(a) eliminate any recognition procedure as a Native American Indian Group; and (b) provide for the privileges and obligations a Native American Indian Group that continues to be recognized is authorized to exercise." Time effective

SECTION 2. This act takes effect upon approval by the Governor. Act No. 163, 2018 S.C. Acts

(codified at S.C. Code Ann. § 1-31-60 (Supp. 2018)).

Because this Act has not yet been examined by any reported opinion of a South Carolina

court, a court faced with this question would rely upon the rules of statutory construction to give

effect to the intention of the Legislature in codifying the various statutes set out above. As this Office has previously opined: The cardinal rule of statutory construction is to ascertain and effectuate the

legislative intent whenever possible. State v. Morgan, 352 S.C. 359, 574 S., E.2d 203 (Ct. App. 2002) (citing State v. Baucom, 340 S.C. 339, 531 S.E.2d 922

(2000)).

All rules of statutory interpretation are subservient to the one that

legislative intent must prevail if it can be reasonably discovered in the language

used, and that language must be construed in light of the intended purpose of the statute. State v. Hudson, 336 S.C. 237, 519 S.E.2d 577 (Ct. App. 1999).

Op. S.C. Att'y Gen., 2005 WL 1983358 (July 14, 2005).

Also, where a state agency is

tasked with enforcing a state law, that agency's interpretation of the law being enforced receives

The Hon. Alan Clemmons
Page 4

July 17, 2018

substantial deference. See Logan v. Leatherman, 290 S.C. 400, 403, 351 S.E.2d 146, 148 (1986). As our Office has opined previously:
[0]ur Court of Appeals has stated, "agencies charged with enforcing statutes . . . receive deference from the courts as to their interpretations of those laws." State v. Sweat, 379 S.C. 367, 385, 665 S.E.2d 645, 655 (Ct. App. 2008). Our Supreme

Court has recognized this fundamental principle of deference to an administrative agency interpretation in Logan v. Leatherman , 290 S.C. 400, 403, 351 S.E.2d 146, 148 (1986), when it concluded that "construction of a statute by the agency

charged with executing it is entitled to the most respectful consideration [by the courts] and should not be overruled absent cogent reasons." Particularly will the courts defer to the agency's interpretation of a statute where, as here, "the agency's construction lies within its area of expertise."

Op. S.C. Atty. Gen., January 5,

201 1 (201 1 WL 380157). . . . For all these reasons, therefore, "[i]t is this Office's

longstanding policy ... to defer to the [interpretation of] the administrative agency charged with the regulation [of] ... the subject matter."

Op. S.C. Atty.

Gen., August 9, 2013 (2013WL 4497164).

Op. S.C. Att'y Gen., 2013 WL 4873939 (September 5, 2013).

1. General Effect of Act 163
   Turning to the text of Act 163, we have no doubt that a court would conclude that the

General Assembly unambiguously intended to halt the recognition of any new Native American Indian Groups (referred to herein as "Groups").

See S.C. Code Ann. § 1-31-60 (Supp. 2018).

This is plainly demonstrated in the language of the legislation which mandates that the Commission "eliminate the eligibility for any additional Groups to receive official recognized

status in the State" and to revise its regulation to "eliminate any recognition procedure."

Id.

Moreover, the Act also repealed "any regulations providing for recognition," and mandated that the Commission "cease to recognize any additional entities." Id. While the Legislature also took measures to ensure any Groups already recognized would retain recognition, we fail to see how the General Assembly could have stated any more plainly that there shall be no recognition of any additional Groups beyond those which have already been recognized. See id.

2. Effect of Change in Law on Pending Application

Turning to your question specifically, we understand that it asks us to opine on the impact of Act 163 on applications for recognition by a proposed Group which had been submitted prior to the passage of the Act and which were pending upon the effective date. At the outset, we note

that the General Assembly plainly mandated that the Commission cease recognizing any

The Hon. Alan Clemmons
Page 5

July 17,2018

additional Groups "upon and after the effective date of the Act." (Supp. 2018).

S.C. Code Ann. § 1-31-60

Moreover the General Assembly repealed the Commission regulations which

provided for recognition.

Id.

We believe that a court would conclude that a straightforward

application of the plain language set out above would result in the denial of any pending

applications not yet approved as of the effective date of the Act. See id.; cf. Op. S.C. Att'y Gen., 2005 WL 1983358 (July 14, 2005). To the extent that there might still be some question about this result, prior opinions of this Office support reaching that identical result even without such unambiguous statements. See, e.g., Op. S.C. Att'y Gen., 1988 WL 383502 (March 2, 1988). We

discuss one of those prior opinions below.
A prior opinion of this Office issued in 1988 considered the impact of a proposed legislative amendment on pending applications for certificates of need from the SCDHEC. Op. S.C.

Att'y

Gen.,

1988

WL

383502

(March 2,

1988).

That opinion quoted American

Jurisprudence 2d for its statement of the general rule:
[A] change in the law pending an application for a permit or license is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the permit or license should be

granted. If, however, action on the application is unreasonably delayed until after the change has become effective, or if the appropriate officer arbitrarily fails to

perform a ministerial duty to issue the license promptly on an application that

conforms to the law at the time of filing, the law at the time of filing of the application ordinarily controls. 51 Am.Jur.2d Licenses and Permits § 46.

The opinion went on to conclude that under the

proposed amendment "an application for a certificate of need . . . would follow the law as amended while the application was

pending."

provided that there had not been some

unreasonable delay or arbitrary ministerial failure. Op. S.C. Att'y Gen., 1988 WL 383502 (March 2, 1988) (emphasis added). That opinion also noted that a similar principle governed appeals as

described in the 1 801 US Supreme Court case of United States v. Schooner Peggy:

„

It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not.

But if, subsequent to

the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. Id. (quoting United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801)); see also Op.

S.C. Att'y Gen., 2011 WL 2214070 (May 17, 2011) (concluding that "[t]he General Assembly

The I Ion. Alan Clemmons
Page 6
July 17, 2018

certainly possesses authority to place a moratorium on permits issued by DHEC," but cautioning that legislation nullifying a pre-existing, properly-issued permit "may present due process implications.").

In summary, our 1988 opinion concluded that where the General Assembly

changes the applicable law while an administrative application is pending, that application generally must be dealt with according to the new amended law, and not according to the law as it existed when the application was submitted. See id. Consistent with that rule discussed in our prior 1988 opinion, we believe that a court faced with the question presented in your letter would conclude that any applications to the Commission for recognition of a new Native American Indian Group which were still pending as of the effective date of Act 163 must be dealt with according to the provisions of Act 163. See Op. S.C. Att'y Gen., 1988 WL 383502 (March 2, 1988).

As discussed above, the Act patently

prohibits the recognition of any new Groups, and even goes so far as to repeal the regulations which provide for such recognition. S.C. Code Ann. § 1-31-60 (Supp. 2018). Conclusion:

Accordingly, it is the opinion of this Office that Act 163 prohibits the recognition of new

Native American Indian Groups even if the application was pending before the Commission prior to the effective date of that Act. Op. S.C. Att'y Gen., 1988 WL 383502 (March 2, 1988). Nothing in this opinion should be construed so as to question the continuing recognition

of Native American Indian Groups which were recognized as of the effective date of the Act, consistent with the express language of the General Assembly in Act 163. See S.C. Code Ann. § 1-31-60 (Supp. 2018).

Sincerely,

C

__JDavicrS! Jones" ^

/fU

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General