Could South Carolina’s legislature authorize state recognition of Native American organizations?

Plain-English summary

South Carolina’s Commission for Minority Affairs asked about proposed legislation authorizing its board to issue “State Recognition” to Native American organizations. In March 2002, the AG said the legislature’s broad lawmaking power left it to the General Assembly to decide whether to authorize recognition, the criteria for it and any resulting benefits, responsibilities or obligations. He found no state constitutional provision addressing that recognition.

The request asked whether the phrase “State Recognition” alone would obligate the state to more than a certificate. The AG did not give that assurance. His answer made the legal effects a matter for the legislature to specify. He mentioned a separate minority-business procurement statute as an example of lawmakers defining eligibility and assistance.

Currency note

This opinion was issued in 2002. 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

Native American organizations

The opinion did not establish an existing recognition program or entitlement. It said the legislature could determine whether organizations would be recognized and what recognition would mean.

Legislators and commission officials

The AG left the criteria, benefits, responsibilities and obligations to legislative choice. The opinion did not determine the effect of wording in a bill that had not yet been enacted.

Common questions

Could the legislature create a state recognition process? A: The AG said he found no constitutional bar and that the General Assembly could decide whether to do so.

Did “State Recognition” necessarily mean only a certificate? A: The letter did not say so. It left the consequences of recognition to lawmakers.

Background and statutory framework

The request arose from proposed changes to the Commission for Minority Affairs’ enabling law. The AG cited the General Assembly’s plenary power and found no constitutional provision about state recognition of Native American organizations. He used the procurement code’s defined minority-business assistance as an example of the legislature specifying consequences.

Citations and references

• §11-35-5010: procurement provision cited as an example of statutory definitions and assistance.

Official title

“…regarding proposed legislative changes to the statute of the South Carolina for Minority Affairs.” Specifically, “…requesting an opinion regarding adding language to our statute that authorizes our Board to issue ‘State Recognition’ to Native American organizations.”

Requester

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

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-25-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02march25davis.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
AITORNEY GENERAL

March 25, 2002

Janie A. Davis, Executive Director
South Carolina Commission for Minority Affairs
6904 North Main Street, Suite 107
Columbia, South Carolina 29203
Re: "State Recognition'' to Native American Organizations
Dear Ms. Davis:
In a letter to this Office, you have requested an opinion" ... regarding proposed legislative changes to the statute of the South Carolina Commission for Minority Affairs." You indicate that you are " ... requesting an opinion regarding adding language to our statute that authorizes our Board to issue 'State Recognition' to Native American organizations." Specifically, you indicate that:

... the question [you] must answer to the satisfaction of the Members of the General Assembly is whether using the term "State Recognition" obligates the State to any thing other than a certificate acknowledging that they have met a specific criteria or threshold as a Native American entity in this State. While the current statutes related to the State Commission for Minority Affairs (hereinafter the "Commission") refer to "minorities" and the "minority community" in general, which would appear to include Native Americans and other minority groups, you indicate that you have been advised that the statutes only authorize the Commission to assist the African American population. 1 Accordingly, you indicate that " ... the enabling language of [the] statute needs to be revised .... " In a prior opinion, this Office recognized that, in South Carolina, it is well-established that: The General Assembly is a creature of the Constitution ... [t]he legislature, under its plenary powers, may enact any law not specifically, or by implication prohibited [by the Constitution]. It must enact those laws mandated in the Constitution itself.

1

Apparently, this interpretation is based on the preamble to 1993 Act No. 164, Part II,
§ 110, which created the Commission.
/

REMBERT

c. DENNIS BUILDING

~atu_,,y cVLI'~ )

•

POST 0FACE Box 11549

•

COLUMBIA,

s.c. 29211-1549

•

TELEPHONE: 803-734-3970

•

FACSIMILE : 803-253-6283

Ms. Davis
Page 2
March 25, 2002
See OP. ATTY. GEN. (Dated August 18, 1983). In my research, I have uncovered no constitutional provision in South Carolina relative to the State recognition of Native American organizations. Therefore, it is left to the General Assembly, through its plenary powers, to decide whether Native American organizations should be recognized, the criteria for recognition and the benefits, responsibilities, authority, consequences, obligations, etc. that go along with such recognition. For example, in S.C. Code Ann. §11-35-5010, et seq. (South Carolina Consolidated Procurement Code, Assistance to Minority Businesses), the General Assembly defined "Minority person" and set forth the "assistance" that a business owned or controlled by such a person would receive from the State. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General

I

DKA/an