Must the South Dakota Department of Health accept a tribal court order of adoption as the basis for issuing a new birth certificate under SDCL 34-25-16.1?
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This page answers the general question as of 1975. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
In April 1975, Dr. Robert Hayes, then-Secretary of the South Dakota Department of Health, asked AG William Janklow a procedural question with significant jurisdictional implications. Tribal courts within South Dakota had been issuing adoption orders. When the resulting new families came to the state Department of Health asking for amended birth certificates reflecting the adoption, was the state required to accept the tribal order as the basis for the new birth record?
Janklow's answer was no. He worked through three layers of analysis.
First, he addressed the federal case law on tribal court judgments. Buster v. Wright, Raymond v. Raymond, Cornels v. Shannon, and a line of Eighth Circuit cases from the 1890s and early 1900s had held that the federal government must give full faith and credit to tribal court judgments. Janklow accepted those cases for what they said: they bound the federal government, not the states. He pointed to Mackey v. Cox (1856), where the Supreme Court justified federal full faith and credit by reference to the unique constitutional relationship between the federal government and Indian tribes, including federal trust obligations and congressional power under the Indian Commerce Clause. Those federal-side obligations did not extend to states.
Second, the U.S. Constitution's Full Faith and Credit Clause itself. Article IV Section 1 requires states to give full faith and credit to the judicial acts of "other States." Tribes are not states, so the textual clause does not reach them. Begay v. Miller, an Arizona Supreme Court decision, had analyzed this precise question and reached the same conclusion: the constitutional command runs between states, not between states and tribal sovereigns.
Third, the doctrine of comity. Comity is a discretionary courtesy by which one sovereign recognizes the judicial acts of another. But it presupposes two independent sovereigns of comparable status. Tribes occupy a different position: they are "domestic dependent nations" with limited sovereignty under federal supervision. Begay v. Miller held that the state-tribe relationship does not fit the comity framework cleanly.
Janklow also pointed to South Dakota's express jurisdictional choice. SDCL 25-6-6, 16-6-9(7), and 16-6-9.1 vest adoption jurisdiction in the state circuit courts. The Legislature had not delegated any adoption jurisdiction to tribal courts within South Dakota's borders. So the tribal adoption orders, whatever their effect within the tribe, did not invoke any state-side adoption authority.
He took care to limit the holding. The opinion did not address whether the underlying tribal court adoptions were valid (he cited Begay v. Miller for the proposition that "an adoption that is valid where it was granted is valid everywhere" as a generic principle). What it addressed was the narrower question: must the Department of Health treat the tribal order as the basis for an amended state birth certificate? The answer was no.
The 1957-58 AGR 65, 66 predecessor opinion had reached the same conclusion. Janklow's 1975 opinion confirmed the position.
Currency note
This opinion applied South Dakota vital-records law in 1975. Check current federal, state, and tribal law before relying on its conclusion today.
What the opinion meant at the time
For the South Dakota Department of Health, the AG concluded it should not accept tribal court adoption orders to establish new birth records under SDCL 34-25-16.1. He did not prescribe an alternative filing procedure for families.
For tribal courts and families, the opinion addressed only the state Department's duty concerning new birth records. It expressly left the validity of tribal adoptions undecided.
The opinion did not say whether a second adoption proceeding was required or available to a family holding a tribal court order.
The AG said South Dakota had not granted tribal courts adoption jurisdiction for the state's birth-record purpose and that existing state law gave the Department no duty to accept the order.
Common questions
Q: Does the Full Faith and Credit Clause apply to tribal court orders at all?
A: The AG read Article IV, Section 1 as requiring states to recognize the judicial acts of other states, not tribes. The opinion did not analyze later federal statutes.
Q: Why does comity not work either?
A: Comity is a discretionary doctrine that, as the opinion put it, "presupposes two independent sovereign nations." Janklow, citing Begay v. Miller, treated tribes as occupying a different position (domestic dependent nations under federal supervision), so the comity framework did not supply a state duty to recognize the tribal order.
Q: What does "an adoption that is valid where it was granted is valid everywhere" mean?
A: The AG cited that theory as a possible basis for treating a tribal adoption as valid. He expressly declined to decide the validity of tribal court adoptions and answered only the Department's birth-record question.
Background and statutory framework
The Department asked whether it should accept tribal court adoption orders to establish new birth records under SDCL 34-25-16.1.
The doctrinal framework Janklow worked with was:
- Federal courts must give full faith and credit to tribal court judgments (the 1890s Eighth Circuit cases).
- The Full Faith and Credit Clause's textual command runs between states only.
- Comity is discretionary and presupposes peer sovereigns.
- State legislatures can voluntarily extend recognition, but absent statute, the state is not obligated.
These principles produced the AG's conclusion that the Department should not accept tribal court adoption orders for establishing new birth records under the cited statute.
The 1957-58 AGR 65, 66 predecessor opinion had reached the same conclusion two decades earlier, framing it as: "[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." Janklow's 1975 opinion confirmed and extended that analysis.
Source
Original opinion text
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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