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?

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 was issued in 1975. Subsequent statutory and federal-law developments have substantially 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. In particular, federal legislation enacted after 1975 governing the custody and adoption of Indian children, together with later court decisions and tribal-state agreements, changed when and whether a state must recognize tribal court orders in this area. Modern questions about state recognition of tribal court adoption orders in South Dakota should be analyzed under current federal law, current state-tribal agreements, and current South Dakota vital-records statutes, not under this 1975 opinion.

What the opinion meant at the time

For the South Dakota Department of Health, the opinion provided clear guidance for vital-records administration. The Department could decline to issue new birth certificates based solely on tribal court orders. Families that wanted state recognition needed to obtain a parallel adoption order from a South Dakota circuit court.

For tribal courts and tribal members, the opinion was an obstacle. It meant that the practical work of adopting a child within tribal court (often less costly and culturally more appropriate than going through state circuit court) did not automatically produce the state-level documentation, like an amended birth certificate, that the family might need for school enrollment, passport applications, or social security purposes.

For adoptive families who had only the tribal order, the opinion meant a second proceeding was needed: filing in state circuit court for what would effectively be a confirmation or re-adoption order. The dual-track requirement increased the cost and complexity of inter-jurisdictional adoptions.

For state legislators, the opinion highlighted that, absent a statute extending recognition to tribal court adoption orders, the state was not obligated to act on them. Whether to change that by legislation or by agreement with the tribes was left to the political branches.

Common questions

Q: Does the Full Faith and Credit Clause apply to tribal court orders at all?
A: Not by the Constitution's text. As Janklow read it, Article IV Section 1 requires states to give full faith and credit to the judicial acts of "other states," and tribes are not states, so the textual clause does not reach tribal judgments. Federal statutes enacted later have added full-faith-and-credit-style requirements in particular subject-matter areas, but the opinion was decided on the general constitutional clause.

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: It is a choice-of-law principle for status determinations. If a person is validly adopted under the laws of one jurisdiction, that adoption is generally recognized as having created a parent-child relationship for purposes of inheritance and family status across other jurisdictions, even without a formal full-faith-and-credit obligation. Janklow's opinion did not dispute that the tribal adoption created a parent-child relationship; it disputed only whether the state Department of Health had to act on it for birth certificate purposes.

Background and statutory framework

South Dakota is home to several federally recognized tribes, each operating a tribal court. Those courts had been issuing adoption orders, which is what prompted the Department of Health's question about amended birth certificates.

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 1975 opinion's conclusion: South Dakota's Department of Health was not required to issue amended birth certificates on the basis of tribal court adoption orders alone.

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

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1535

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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