You raise a number of questions regarding establishing paternity using genetic testing
and the effect of a tribal court order based on that and other evidence. We answer
your questions in the order asked.
STATEMENT OF FACTS
Your memorandum and attachments provide the following facts.
Kaysee was born to Michelle L. H~ on March XX, 1989. Although unmarried at the time,
Ms. H~ believed that Tracy S. F~, the wage earner, was Kaysee's father. Mr. F~ reportedly
also believed that Kaysee was his daughter. Mr. F~ died in an industrial accident
on March XX, 1992. He had not signed an acknowledgment of paternity.
After Mr. F~'s death, Ms. H~ filed an action in the Port Gamble S'klallam Community
Court, a tribal court, to establish Kaysee's paternity. That court considered the
testimony of Ms. H~ as well as the affidavits of Mr. F~'s parents and his sister all
of which state that Mr. F~ had acknowledged that Kaysee was his child and their belief
that Mr. F~ was the biological father.
On June XX, 1992, the tribal court found that Mr. F~ was Kaysee's biological father,
ordered that the child's name be changed from Kaysee Ann H~ to Kaysee Ann H~-F~, and
ordered that the clerk forward a certified copy of the
court's order to the state Bureau of Vital Statistics so that a corrected birth certificate
could be issued. In fact, a birth certificate was issued showing that Tracy S. F~
was Kaysee's father.
In July 1992, Ms. H~ applied for Social Security benefits on Kaysee's behalf. In September
1992, SSA, relying on the sworn statements of Ms. H~ and Mr. F~'s family and the order
from the tribal court found that Kaysee was Mr. F~'s biological daughter and eligible
for Social Security Survivor's Benefits on his record.
Because Mr. F~ had died in an industrial accident, Ms. H~ also applied for benefits
from the Washington State Department of Labor and Industries. As part of that claim,
blood testing was done to confirm that Mr. F~ was in fact Kaysee's biological father.
The test results, dated February XX, 1994, show that Mr. F~ could not be Kaysee's
biological father. In a hearing before the Washington State Board of Industrial Appeals
the employer and the guardian for Kaysee stipulated that Mr. F~ was not Kaysee's father.
By letter dated June XX, 1994, Ms. H~' attorney asked that Kaysee's benefits be terminated
effective February XX, 1994, the date of the blood testing results.
PRIOR OGC OPINIONS
In a Memorandum dated February XX, 1985 to Assistant Regional Commissioner, Programs,
Subject: Washington State Recognition of Yakima Tribal Court Paternity Determination:
Floyd K~, we opined as follows:
Title 26 of the Revised Code of Washington covers domestic relations. R.C.W. Chapter
26.26 relates to paternity determinations. Jurisdiction to hear a paternity action
in the state of Washington is vested in the superior courts. R.C.W. 26.26.080(1).
Because the state of Washington has assumed jurisdiction over all matters subsumed
under the heading of domestic relations, it is our opinion that the courts of Washington
would hold that the Yakima Tribal Court does not have jurisdiction in this state and
that any paternity determination made by that court would not be recognized.
In a March XX, 1992 Memorandum to the Regional Commissioner, Region X, Subject: Genetic
testing in Washington State, Bunly T~, we stated that:
The commissioner should not recognize the results of DNA/genetic blood testing in
the state of Washington as determinative of the father and child relationship between
the deceased insured, Mr. Bunly T~, and the claimant, Jennifer P. T. O~, unless and
until the claimant has filed an appropriate action in Washington state court and the
state court has issued a ruling on that relationship.
You raise several questions regarding the facts set forth above and our prior opinions
regarding establishing paternity in the state of Washington. We respond to the questions
in the order asked.
Question 1: If we cannot use the sole evidence of genetic testing to establish paternity,
can we also not use it to disprove paternity?
Response: The Bunly T~ opinion was issued in 1992. In 1994, the Washington statute setting forth presumptions
of paternity was amended as follows: (g) Genetic testing indicates a ninety-eight
percent or greater probability of paternity. Thus, Washington has added another presumption
of paternity to R.C.W. 26.26.040.
SSA should apply this presumption as it would any other presumption. If genetic testing
indicates a probability of paternity of 98 percent or greater, then there is a presumption
of paternity based on that test. If the probability is less than 98 percent, then
there is no presumption of paternity.
If there are no other facts after full development, and genetic testing indicates
a probability of paternity of less than 98 percent, then there could be no presumption
of paternity. But if full development leads to other facts, then a decision must be
made considering the totality of the situation. In this regard the Washington statute
provides that: If two or more presumptions arise which conflict with each other, the
presumption which on the facts is founded on the weightier considerations of policy
and logic controls. R.C.W. 26.26.040(2). Of course, any presumption is rebutted by
a court decree from a court of competent jurisdiction (id.).
Question 2: Does the state have blanket authority over domestic relations for all
tribes in Washington or is it necessary for us to obtain tribe-by-tribe determinations?
Response: This question was recently addressed in Certification from the United States
Tax Court in Estate of Millie Cross, Deceased, Silas A. Cross, Petitioner v. The Commissioner of
Internal Revenue, Respondent, 126 Wash.2d 43,
891 P.2d 26 (1995). In that case the United States Tax Court was asked to decide whether
Washington's community property law should be applied in determining property rights
between an Indian and non-Indian living on the Puyallup Indian Reservation. Rather
than decide the question of state law, the Tax Court certified the question to the
Supreme Court of Washington. The Washington Supreme Court stated the following with
respect to R.C.W. 37.12.010:
Pursuant to Public Law 280, the Legislature in 1963 amended RCW 37.12.010. [Footnote
omitted.] State v. Sohappy, 110 Wash.2d 907, 909, 757 P.2d 509 (1988). Under RCW 37.12.010, the State of Washington
assumed full civil and criminal jurisdiction over Indians and Indian territory within
the state with respect to eight areas. Sohappy, 110 Wash.2d at 909, 757 P.2d 509. Domestic relations is one of the eight areas where
full jurisdiction was assumed. RCW 37.12.010 provides in pertinent part:
The state of Washington hereby obligates and binds itself to assume criminal and civil
jurisdiction over Indians and Indian territory, reservations, country, and lands within
this state in accordance with the consent of the United States given in accordance
by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such
assumption of jurisdiction shall not apply to Indians when on their tribal lands or
allotted lands within an established Indian reservation and held in trust by the United
States or subject to a restriction against alienation imposed by the United States,
unless the provisions of RCW 37.12.021 have been invoked, except for the following:
(1) Compulsory school attendance (2) Public assistance; (3) Domestic relations; (4)
Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent
children; and (8) Operation of motor vehicles upon the public streets, alleys, roads
The United States Supreme Court held RCW 37.12.010 complies with Public Law 280 and
is constitutional. Yakima Indian Nation, 439 U.S. at 473-74, 99 S.Ct. at 748; Schumck, 121 Wash.2d at 394, 850 P.2d 1332;.... **** Under RCW 37.12.010(3), the State assumed
full jurisdiction over Indians and Indian territory within the state in matters involving
domestic relations. Washington domestic relations law is codified at RCW Title 26.
Included within RCW Title 26 is Washington community property law. RCW 26.16. We,
therefore, conclude when the Legislature passed RCW 37.12.010, it intended to grant
jurisdiction to Washington courts to apply Washington community property law to Indians
and Indian territory within the state, which includes the authority to determine property
rights as between an enrolled member of the Puyallup tribe and his non-enrolled wife.
This conclusion is supported by the recognition that the entire subject of domestic
relations belongs t the laws of the states and not to the laws of the United States.
In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979)....
It is clear from the court's decision in Cross that the State of Washington has jurisdiction
over matters involving domestic relations, and that this jurisdiction extends to all
tribes within the state. In view of the foregoing, it is our belief that the opinion
we expressed in the K~ case, i.e., . . . that the courts of Washington would hold
that [Tribal] court does not have jurisdiction to make paternity determinations in
this state and that any paternity determination made by that court should not be recognized
is correct. Question 3: The fact that the Bureau of Vital Statistics issued a new
birth certificate suggests to us that the state now accepts tribal orders of paternity.
Has the state law changed since 1985?
Response: The state law has not changed since 1985. The law, which is found at RCW
26.26.080, provides that the Superior Courts of the State of Washington have jurisdiction
to determine the existence of the father-child relationship. We cannot reconcile the
fact that the Bureau of Vital Statistics issued a new birth certificate pursuant to
tribal court order with RCW 70.58.095, which provides in pertinent part that:
The state registrar of vital statistics shall establish a new certificate of birth
for a person born in this state when he receives a request that a new certificate
be established and such evidence as required by regulation of the state board of health
proving that such person has been acknowledged, or that a court of competent jurisdiction
has determined the paternity of such person.
Question 4: If the state of Washington accepts the tribal order of paternity, would
we have to see a revised order before reopening our decision to entitle the child?
Response: In Bunly Tan, we opined that A child and parent relationship, not presumed to be of natural origin
under RCW 26.26.040, must be established by court action under RCW 26.26.060. In the
situation presented here there has been no such determination by the state Superior
The question then becomes whether the birth certificate issued as a result of the
tribal court order must be accepted by SSA. We believe not. As noted above, only the
Superior Court of the state may determine paternity. Since there is no such determination,
we believe that SSA may develop the case as it would do in any situation involving
paternity. While we do not anticipate what SSA's development will show, we note that
there is no order by a court of competent jurisdiction purporting to decide the issue
of Kaysee's paternity.
Given the evidence which has been produced since the amended birth certificate was
issued, we believe that SSA is not precluded from reopening its prior determination
regarding the award of benefits to Kaysee.