Barrick v. Johnson

286 N.W.2d 523, 1979 S.D. LEXIS 323

• Court: South Dakota Supreme Court
• Decided: December 24, 1979
• Docket: 12579
• Status: Published

Opinions

WOLLMAN, Chief Justice.

Appellants, Marie and Carl Barrick, the adoptive parents of Carla Barrick, sued the Department of Health, Division of Public Health Statistics (Department) on Carla’s behalf to compel the Department to issue a state birth certificate based on adoption proceedings held in the Pine Ridge Tribal Court. The Department refused to issue the certificate because the adoption occurred in tribal court. The trial court entered a judgment dismissing appellants’ action. We reverse and remand.

Carla Barrick was born at Pine Ridge, South Dakota. The attending physician filed a birth certificate in the name of Geraldine Faye Warrior directly with the State Department of Health. A birth certificate was issued in that name. Carla’s natural mother determined that she was unable to care for the child and consented to termination of parental rights. The infant became a ward of the Oglala Sioux Tribal Court. A tribal court entered an order granting the Barrick’s petition of adoption for the infant. The order also provided that the infant’s name be changed to Carla Marie Barrick. No copy of this order was filed with the Department as required by SDCL 34-25-16.

Five years later public school officials informed Mrs. Barrick that Carla should have a new birth certificate displaying the name under which the child was to be enrolled in school. The Department refused to issue the certificate, and appellants commenced this action. It was undisputed that the 1972 tribal court adoption order had not been filed with the Department pursuant to statute. Accordingly, appellants returned to the Pine Ridge tribal court to commence a second adoption proceeding. At the time of this second proceeding, the Barrick family no longer resided on the Pine Ridge Reservation. Following the second tribal court adoption action, the Department persisted in its refusal to issue a birth certificate based on the tribal court adoption order.

SDCL 34-25-16.1 provides: “If the birth occurred in South Dakota, the state department of health shall cause to be made a new certificate of birth in the new name of the child and with the name or names of the adopting person or persons . . . .” Appellants contend that this statute requires the Department to recognize a tribal court adoption order for the purpose of issuing a new birth certificate. The Department argues, however, that it is not authorized by statute to issue a new birth certificate on the basis of a tribal court order of adoption. It bases its argument on SDCL 34-25-16, which requires the clerk of courts to forward to the Department the information necessary to establish a new birth certificate, and SDCL 16-2-27, which states the duties of “duly elected or appointed clerks of courts.” Concluding that the term “clerk of courts” used in these statutes includes only state clerks of courts and does not include tribal clerks of courts, the Department contends that ipso facto the legislature meant to say that a tribal court’s decrees are not automatically recognized by state courts but rather must be expressly recognized by statute to merit recognition by state courts.

The Oglala Sioux Tribal Court had exclusive jurisdiction to order Carla Barrick’s adoption. Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976). It is our opinion that this fact distinguishes the order in question from other tribal court orders that may be denied recognition by a state. See, e. g., Lohnes v. Cloud, 254 N.W.2d 430 (N.D.1977), in which the North Dakota Supreme Court held that an unsatisfied tribal court judgment did not qualify for payment under North Dakota’s unsatisfied judgment fund statute because that statute required the judgment to be recovered in a state court. SDCL 34-25-16.1 does not contain words of limitation such as those in the North Dakota statute.

We do not view the Department’s position as including an attack on the validity of this particular adoption decree. Thus, we do not reach the question of the alleged deficiencies in tribal court adjudicatory and record-keeping procedures, for we consider the present case to involve only a very narrow issue of statutory interpretation. Likewise, we do not address the constitutional issues raised by appellants. We hold only that a decree of adoption validly granted by a tribal court to one of its wards must be honored by the State Department of Health for the purpose of granting a new birth certificate to the adopted child.

Accordingly, the judgment is reversed and the case is remanded to the trial court with instructions to order the Department to honor the tribal court adoption order in its consideration of appellants’ application for a new birth certificate. Whether the tribal court adoption order contains sufficient information for the Department’s requirements is a matter for the Department’s determination.

DUNN, MORGAN and FOSHEIM, JJ., concur. HENDERSON, Justice, dissents.