author: MARING, Justice.

text:
    2002 ND 136
    Jane ROE, Plaintiff and Appellee, v. John DOE, Defendant and Appellant, Lora Siegfried, Director, Sioux County Social Service Board as assignee for Jane Roe, Appellee.
    No. 20020016.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Vance Gillette, New Town, for defendant and appellant.
    Kent M. Morrow, Severin, Ringsak <& Morrow, Bismarck, for plaintiff and appel-lee.
    Tyrone Jay Turner, Special Assistant State’s Attorney, Child Support Enforcement, Burleigh County Courthouse, Bismarck, for appellee.
   MARING, Justice.

[¶ 1] John Doe, (a pseudonym), appeals from an order denying his motion to vacate a 1989 amended judgment which established Doe as the father of a child born to Jane Roe, (a pseudonym), and required him to pay child support. We affirm.

I

[¶ 2] Jane Roe is a member of the Standing Rock Sioux Tribe of the Standing Rock Sioux Reservation, and John Doe is a member of Three Affiliated Tribes of the Fort Berthold Reservation. In 1987, Roe and Doe began living together in an apartment in Grand Forks, North Dakota. On November 2, 1988, Roe gave birth to a child in Grand Forks, North Dakota. On November 7, 1988, Doe signed an acknowledgment of paternity of the child. In early 1989, Roe and Doe ceased living together. On May 17, 1989, Roe brought an action in district court to establish paternity, custody, and child support.

[¶ 3] In August of 1989, Roe and Doe entered into a stipulation that Doe was the father of the child born to Roe and that Doe pay $75.00 per month in child support. The stipulation was submitted to the district court for incorporation into the judgment. In October of 1991, the amended judgment was transcribed to Grand Forks County. In November of 1993, Doe’s child support obligation was increased to $133.00 per month. In December of 1993, the judgment was transcribed to Burleigh County.

[¶ 4] In June of 1999, a motion to increase Doe’s child support obligation was filed. In July of 1999, Doe stipulated that if genetic testing showed he was the father of the child he would pay $1064.00 per month in child support. Genetic testing showed a 99.87 percent probability that Doe could not be excluded as the father of the child. In March of 2000, the judgment was amended to reflect that Doe was required to pay $1,064.00 per month in child support. In June of 2000, Doe was found in contempt for failure to pay child support.

[¶ 5] In October of 2001, approximately twelve years after the entry of the judgment, Doe filed a N.D.R.CivJP 60(b)(iv) motion to vacate the amended judgment entered on August 31, 1989. Doe argued the amended judgment was void because the trial court lacked subject matter jurisdiction to enter it. Doe argued the trial court lacked subject matter jurisdiction because, at the time the paternity action was filed, the legal residence of Roe and the child was Standing Rock Sioux Reservation. He further argued that, at the time the action was filed, he was a member of Three Affiliated Tribes and a legal resident of the Fort Berthold Reservation, but was living off the reservation to attend school in Grand Forks, North Dakota. Doe contended in an affidavit he did not know, the place of conception. Neither Doe nor Roe requested an evidentiary hearing, and the motion was submitted on the record, briefs, exhibits and affidavits. The trial court denied Doe’s motion, and Doe appealed the court’s January 3, 2002 order.

II

[¶ 6] Our standard of review for motions under Rule 60(b)(iv) is plenary. See First Western Bank & Trust v. Wickman, 527 N.W.2d 278, 279 (N.D.1995). When a motion challenges a judgment as void under Rule 60(b)(iv), the court’s sole task is to determine the validity of the judgment. Id. Unlike other Rule 60(b) motions, a court has no discretion in deciding whether to grant a Rule 60(b)(iv) motion. Id. Like other Rule 60(b) motions, however, the burden is on the party bringing a Rule 60(b)(iv) motion to show sufficient grounds exist for disturbing the finality of the judgment. See Johnson, Johnson, Stokes, Sandberg, & Kragness, Ltd. v. Birnbaum, 555 N.W.2d 583, 585 (N.D.1996); State ex rel. Niess v. Zillmer, 449 N.W.2d 812, 816 (N.D.1989); State v. Red Arrow Towbar Sales Co., 298 N.W.2d 514, 515-16 (N.D.1980); see also Cramer v. Wade, 985 P.2d 467, 470 n. 2 (Alaska 1999); Boyer v. Boyer, 1999 ME 128, ¶ 6, 736 A.2d 273; In re W.M., 778 P.2d 1106, 1109 (Wyo.1989). But cf. Theresa L. Kruk, Annotation, Who has Burden of Proof in Proceeding Under Rule 60(b)(1) of Federal Rules of Civil Procedure to Have Default Judgment Set Aside on Ground that it is Void for Lack of Jurisdiction, 102 A.L.R. Fed. 811 (noting that when a party brings a motion to vacate a default judgment under Rule 60(b)(4), some courts place the burden of proving the existence of jurisdiction on the party opposing the motion). If the judgment is valid, the Rule 60(b)(iv) motion must be denied. See First Western Bank & Trust, at 279. If the judgment is void, the motion must be granted. Id. The question to be resolved is whether the judgment is void as a matter of law. Id. A judgment entered without subject matter jurisdiction is void. See McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 10, 633 N.W.2d 157.

Ill

[¶ 7] “[T]he determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them.” McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 15, 633 N.W.2d 157. We have held, therefore, under certain circumstances, tribal courts have exclusive jurisdiction over paternity actions. See id. at ¶ 18; In re M.L.M., 529 N.W.2d 184, 186 (N.D.1995); McKenzie County Social Services Bd. v. V.G., 392 N.W.2d 399, 402 (N.D.1986). We based our decisions in McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Service Bd. v. C.G. on the infringement test of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See McKenzie County Social Services Bd. v. V.G., 392 N.W.2d at 402 (citing Williams, 358 U.S. at 223, 79 S.Ct. 269, 3 L.Ed.2d 251). Under the infringement test, state court jurisdiction over certain claims is not allowed if it “would undermine .the authority of the tribal courts over reservation affairs and thereby infringe on the right of the Indians to govern themselves.” See id.

[¶ 8] There are two categories of claims over which the United States Supreme Court has held tribal courts have exclusive civil jurisdiction under the infringement test. Included in the first category are those claims in which a non-Indian asserts a claim against an Indian for conduct occurring on that Indian’s reservation. See Williams, 358 U.S. at 223, 79 S.Ct. 269, 3 L.Ed.2d 251. In the second category, are those claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe’s reservation. See Fisher v. District Court, 424 U.S. 382, 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam). It has also been noted that an Indian tribe has exclusive jurisdiction over wholly internal tribal subject matter, such as membership disputes, divorce actions between members domiciled on the reservation, and certain probate actions. See William C. Canby, Jr., American Indian Law In A Nutshell, 187, 198-99, 202 (1998); see also Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (“Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.”); Smith v. Babbitt, 100 F.3d 556, 558 (8th Cir.1996) (“Essentially, therefore, a membership dispute is an issue for a tribe and its courts.”). Additionally, under the Indian Child Welfare Act [ICWA], Congress has given tribal courts exclusive jurisdiction “over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the ■ State by existing Federal law.” 25 U.S.C. § 1911(a). Neither paternity proceedings nor custody proceedings that are part of a divorce action fall under ICWA’s mandate of exclusive tribal court jurisdiction. See 25 U.S.C. § 1903(1) (specifically excluding custody determinations in a divorce action); State v. Zaman, 190 Ariz. 208, 946 P.2d 459, 462 (1997) (concluding ICWA does not apply to paternity actions and even the policy underlying ICWA does not apply to a paternity action where there is no threat that the child will not be exposed to his or her Indian heritage); see also 25 U.S.C. § 1902 (stating that ICWA establishes “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture”). Although we are concerned with exclusive tribal court civil jurisdiction in this case, we also note that an Indian tribe has exclusive criminal jurisdiction over crimes committed by Indians against Indians in Indian country unless such crimes fall within the Major Crimes Act of 18 U.S.C. § 1153. See Canby, supra, at 158-59. However, “[ojutside of Indian country, the state has general criminal jurisdiction over all persons, including Indians.” Id. at 165.

[¶ 9] In McKenzie County Social Services Bd. v. V.G., we held a tribal court had exclusive civil jurisdiction over a paternity claim where: (1) the mother, the child, and the alleged father were all members of Three Affiliated Tribes of the Fort Berthold Reservation; (2). the child lived with her mother on Fort Berthold Reservation at the time the paternity claim was filed; and (3) there was nothing in the record to contradict the alleged father’s assertion that the alleged paternity occurred on Fort Berthold Reservation. 392 N.W.2d at 402. Additionally, we concluded the mother’s application for public assistance outside of the reservation boundaries and the father’s occasional residences off the reservation were “insufficient to permit state court jurisdiction to hear and determine a claim between Indians for conduct on the reservation.” See id.

[¶ 10] In In re we held a state court lacked subject matter jurisdiction over a paternity claim where: (1) the mother, the children, and the alleged father were all members of the Turtle Mountain Band of Chippewa Indians; (2) the mother was employed on the Turtle Mountain Indian Reservation and intended to move there with the children; (3) the alleged father resided on the Turtle Mountain Indian Reservation at all times relevant to the paternity action; and (4) the uncontradicted testimony of the father was that the alleged conception took place on the Turtle Mountain Indian Reservation. See 529 N.W.2d at 185. Under these circumstances, we concluded the mother’s residency off the reservation for several years and the alleged father’s off-reservation employment were insufficient to overcome the danger that state court jurisdiction over the paternity action would pose to the tribe’s right of self-government. See id. at 186.

[¶ 11] In McKenzie County Social Service Bd. v. C.G., we held a trial court properly granted the defendant’s motion to vacate a paternity judgment where: (1) the mother, the alleged father, and the child were all members of Three Affiliated Tribes of the Fort Berthold Reservation; (2) the mother and the alleged father lived on Fort Berthold Reservation at the time the child was conceived; and (3) conception took place on Fort Berthold Reservation. See 2001 ND 161, ¶¶2, 18, 633 N.W.2d 157. Additionally, we concluded the alleged father’s residency off the reservation at the time the paternity suit was filed and his eight-year delay in raising subject matter jurisdiction as an issue did not validate the paternity judgment entered by the state court. See id. at ¶¶ 16, 18.

[¶ 12] Two common threads running through McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Service Bd. v. C.G. are the mother, the alleged father, and the child were all members of the same Indian tribe and the conduct giving rise to the paternity action occurred on that tribe’s reservation. “[T]he determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them.” McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 15, 633 N.W.2d 157. Thus, in an action to determine the paternity of a child where the mother, child, and putative father are all members of the same tribe and the cause of action arose on that tribe’s reservation, state court jurisdiction would undoubtedly infringe on the tribe’s right to govern itself under the rationale of Fisher. See 424 U.S. at 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (holding state court jurisdiction over an adoption proceeding infringed on a tribe’s right to govern itself when all the parties involved were members of the same tribe and all the events giving rise to the adoption occurred on that tribe’s reservation); see also Jackson County ex rel. Jackson v. Swayney, 319 N.C. 52, 352 S.E.2d 413, 419 (1987) (“State courts lack subject matter jurisdiction to determine paternity in the instant case where the child, mother and defendant are members of the Eastern Band of Cherokee Indians residing on the reservation.”). The Office of the Attorney General for the State of North Dakota issued an opinion on February 2, 2000, addressing the issue of whether state courts have jurisdiction over paternity actions where the mother, child and putative father are all enrolled tribal members. The opinion concluded that state courts may have jurisdiction depending on the residence of the parties and whether conception occurred on or off an Indian reservation. See N.D. Att’y Gen. Op.2000-07 (2000). “The Supreme Court of North Dakota has held that an Attorney General’s opinion has the force and effect of law until a contrary ruling by a court. That court has further held that opinions of an Attorney General are ‘entitled to respect,’ and a court should follow them if ‘they are persuasive.’ ” N.D. Fair Housing Council, Inc. v. Peterson, 2001 ND 81, ¶ 16, 625 N.W.2d 551 (citations omitted).

[¶ 13] In contrast to McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Service Bd. v. C.G., the parties in this case are not members of the same Indian tribe. In this case, it is undisputed that at the time the paternity action was filed, Doe was a member of Three Affiliated Tribes of the Fort Berthold Reservation and was a legal resident of Fort Berthold Reservation, but was living off the reservation to attend college. Roe and the child, on the other hand, were legal residents of Standing Rock Sioux Reservation at the time the paternity action was filed on May 17, 1989. The record does not, however, indicate whether Roe or the child were members of Standing Rock Sioux Tribe at the time the paternity action was filed. Although it is undisputed that Roe is currently a member of Standing Rock Sioux Tribe, this fact is, of little help in determining whether the state court lacked subject matter jurisdiction over the paternity action at the time it was filed in 1989. See State ex rel. R.G. v. W.M.B., 159 Wis.2d 662, 465 N.W.2d 221, 224 (1990) (“Because W.M.B. is making a collateral attack on the underlying paternity judgment, tribal interests at stake in making an adjudication of paternity must be evaluated as of the date of the original action, which was commenced in July of 1977. If the state court had subject matter jurisdiction over this action in 1977, it was empowered to hear and determine the action.”). Nonetheless, because Roe is currently a member of Standing Rock Sioux Tribe, she was at least eligible for membership in the Tribe at the time the paternity action was filed. See Standing Rock Sioux Tribe Code of Justice § 10-102.

[¶ 14] Standing Rock Sioux Tribe and Three Affiliated Tribes are each governed by their own legislative bodies, each tribe has its own set of substantive and procedural laws, each tribe has its own trial and appellate courts, and each tribe has its own reservation. See Standing Rock Sioux Tribe Code of Justice §§ 1-101, 1-201; Fort Berthold Tribal Code, Title 1, ’ Ch. 1, Sections 2-3; see also B.J. Jones, A Primer on Tribal Court Civil Practice, n. 2, at http:// www.ndcourts.com/Court/Re-source/Tribal.htm. In order to be a member of Standing Rock Sioux Tribe, an Indian must relinquish any membership rights he or she has in any other tribe. See Standing Rock Sioux Tribe Code of Justice § 10-106. Likewise, in order to be a member of Three Affiliated Tribes, an Indian must relinquish any membership rights he or she has in any other tribe. See Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation art. II, § 2. Thus, Standing Rock Sioux Tribe and Three Affiliated Tribes each possess separate and distinct “attributes of sovereignty over both their members and their territory” of a “unique and limited character.” United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); see also Duro v. Reina, 495 U.S. 676, 695, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990) (“[T]ribes are not mere fungible groups of homogenous persons among whom any Indian would feel at home.... Petitioner’s general status as an Indian says little about his consent to the exercise of authority over him by a particular tribe.”); Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (“For most practical purposes [nonmember] Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements.”); see also Conference of Western Attorneys General, American Indian Law Deskbook, 155-56 (2d ed.1998) (“[N]on-member Indians are viewed no differently from non-Indians with respect to the extent of inherent tribal authority for both civil- and criminal-regulatory purposes.”); Strate v. A-1 Contractors, 520 U.S. 438, 454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (holding that a tribe’s adjudicatory jurisdiction over nonmembers does not exceed its legislative jurisdiction over nonmembers). Therefore, we must necessarily consider the question of whether state court jurisdiction over the paternity action in this case infringed on Standing Rock Sioux Tribe’s inherent right to govern itself separately from the question of whether state court jurisdiction infringed on Three Affiliated Tribes’ inherent right to govern itself.

[¶ 15] Before resolving these two questions, however, we must also address a second factual distinction between the present case and McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Services Bd. v. C.G. In McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Service Bd. v. C.G., it was undisputed that conception of the child occurred on the Indian reservation of the tribe of which all the parties were members. In contrast, in this case, nothing in the record indicates that Doe has ever entered the reservation of Roe’s tribe, Standing Rock Sioux Reservation, or that Roe has ever entered the reservation of Doe’s tribe, Fort Berthold Reservation. It is, however, undisputed that the child was born in Grand Forks, North Dakota, and that Roe and Doe lived together in Grand Forks, North Dakota, prior to the child’s birth. Furthermore, it is undisputed that Roe, Doe, and the child lived together in Grand Forks, North Dakota, after the child’s birth until close to the time of the filing of the paternity action. Additionally, Roe alleged in her complaint the child was conceived in Grand Forks and stated in her answers to Doe’s requests to admit, which were offered by Doe as defendant’s exhibit 5 in support of his motion to vacate, that the child was conceived in Grand Forks. Nothing in the record indicates conclusively that any of the events giving rise to the paternity action occurred within the boundaries of an Indian reservation.

[¶ 16] Despite the parties’ cohabitation in Grand Forks, North Dakota, Doe contends the trial court erred in finding that conception occurred in Grand Forks. Doe states in his affidavit that the actual place of conception is “unknown,” and contends the trial court erred in finding conception occurred in Grand Forks because it based its finding, in part, on a letter submitted by Roe which was hearsay and lacked foundation.

[¶ 17] It is not necessary, however, for us to determine whether the trial court erred in finding conception occurred off either Indian reservation. The burden is on Doe in this case to show the paternity judgment is void as a matter of law. See McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 10, 683 N.W.2d 157 (stating that the question to be resolved in a Rule 60(b)(iv) motion is whether the judgment is void as a matter of law); Zillmer, 449 N.W.2d at 816 (stating that the burden is on the moving party in a N.D.R.Civ.P 60(b)(iv) motion to show sufficient grounds exist for disturbing the finality of a judgment). Therefore, if we assume the place of conception is unknown as Doe alleges, a resolution in favor of Doe would require us to hold, based on the undisputed facts of this case, that the 1989 paternity judgment is void as a matter of law, regardless of whether conception occurred on or off the reservation. We reject such a proposition for reasons discussed later.

[¶ 18] We now turn to the issue of whether, as a matter of law, the 1989 paternity judgment is void because state court jurisdiction over the paternity action infringed on either Standing Rock Sioux Tribe’s right to govern itself or Three Affiliated Tribes’ right to govern itself. See McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 10, 633 N.W.2d 157 (stating that the question to be resolved in a Rule 60(b)(iv) motion is whether the judgment is void as a matter of law). In resolving this issue, we recognize that inherent tribal sovereignty rights are not the only interests at stake in this case. While an Indian tribe has a significant interest in determining the paternity of a child of one of its members, see id. at ¶ 15, the State also has an interest in determining a child’s biological parents, see N.D. Att’y Gen. 0p.2000-07 (2000) (The North Dakota Supreme Court has “noted the significant interest the state has in family issues and child welfare.” (citation omitted)). This interest is significant where, as in this case, the child and the mother are receiving state and federal aid through an agency of the state and nearly all of the conduct leading up to the paternity action occurred in the State and off the Indian reservation. See id.; cf. Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 U.C.L.A. L.Rev. 1051, 1082 (1989) (“[T]he general precepts of federal Indian law suggest that tribes and states share significant authority over custody disputes involving Indian children. The doctrine of tribal sovereignty clearly supports tribal jurisdiction over most such disputes, except where the parties have essentially no contact with the reservation. State authority, arising from the state’s legitimate parens patriae role, likewise exists, except where the parties have essentially no contact outside the reservation.”). With these State and Tribal interests in mind, we now consider the separate questions of whether state court jurisdiction over the 1989 paternity and support action infringed on Standing Rock Sioux Tribe’s right to govern itself, and whether state court jurisdiction over the 1989 paternity and support action infringed on Three Affiliated Tribes’ right to govern itself.

A

[¶ 19] The question in regard to Standing Rock Sioux Tribe’s right to govern itself is, whether as a matter of law, state court jurisdiction over an action brought to establish the paternity of a child who is an Indian and resides on Standing Rock Sioux Reservation infringes on the Tribe’s right to govern itself when the action is brought by an Indian who is eligible for membership in Standing Rock Sioux Tribe, and who resides on the Reservation against a member of a different Indian tribe who is a resident of that tribe’s reservation, but is living off the reservation. The United States Supreme Court “repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country.” See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 148 & n. 7, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) [Three Tribes I].

The interests implicated in such cases are very different from those present in Williams v. Lee, where a non-Indian sued an Indian in state court for debts incurred in Indian country, or in Fisher v. District Court, where this Court held that a tribal court had exclusive jurisdiction over an adoption proceeding in which all parties were tribal Indians residing on a reservation. As a general matter, tribal self-government is not impeded when a State allows an Indian to enter its courts on equal terms with other persons to seek relief against a non-Indian concerning a claim arising in Indian country.

Three Tribes I, at 148-49, 104 S.Ct. 2267, 81 L.Ed.2d 113 (emphasis added); accord William C. Canby, Jr., American Indian Law, 177 (1998) (“One might be tempted to conclude from Williams [v. Lee] that the state is precluded from taking jurisdiction over claims by tribal members against non-Indians, when the claims arise in Indian country. That conclusion would be incorrect; the Supreme Court has said nothing in Williams v. Lee prevents the maintenance of such actions in state court and they have traditionally been brought there.”). Although the Court in Three Tribes I stated “[t]he exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted,” see Three Tribes I, at 149, 104 S.Ct. 2267, 81 L.Ed.2d 113 nothing in the opinion indicates it intended to limit the general rule of allowing state court jurisdiction over claims brought by an Indian against a non-Indian to only those cases in which the tribe was the plaintiff and the tribal court lacked jurisdiction over the claim at the time the suit was instituted, see id. at 148-49, 104 S.Ct. 2267, 81 L.Ed.2d 113. See also Zaman 946 P.2d at 461-62 (concluding that the application of Three Tribes I is not limited to actions in which the tribe itself is the plaintiff). Furthermore, none of the cases cited by the United States Supreme Court as illustrations of its approval of state court jurisdiction over claims by Indians against non-Indians involved cases in which the tribe was a plaintiff or cases in which it was apparent that a tribal court lacked jurisdiction over the claim. See id. at 148 & n. 7, 104 S.Ct. 2267, 81 L.Ed.2d 113 (citing McClanahan v. Arizona State Tax Comm’n, 411 U.S. at 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (dictum); Poafpybitty v. Shelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238 (1968); Williams v. Lee, 358 U.S. at 219, 79 S.Ct. 269, 3 L.Ed.2d 251 (dictum); United States v. Candelaria, 271 U.S. 432, 444, 46 S.Ct. 561, 70 L.Ed. 1023 (1926); Felix v. Patrick, 145 U.S. 317, 332, 12 S.Ct. 862, 36 L.Ed. 719 (1892); Fellows v. Blacksmith, 19 How. 366, 15 L.Ed. 684 (1856); McCrea v. Busch, 164 Mont. 442, 524 P.2d 781 (1974); Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966); Whiting v. Hoffine, 294 N.W.2d 921, 923-24 (S.D.1980)).

[¶ 20] In Zaman, the Supreme Court of Arizona relied on Three Tribes I to conclude state court jurisdiction over a paternity claim brought by a member of the Navajo Tribe against a non-Indian did not infringe on the Navajo Tribe’s right to govern itself. See Zaman, 946 P.2d at 461-62 (citing Three Tribes I). The court observed that under Three Tribes I, the infringement test is not to be used as an offensive tool against Indians, but only to protect Indians. See id. at 461. Thus, the court reasoned:

State court jurisdiction over actions brought by Indians against non-Indians does not infringe upon the rights of Indians to make their own laws and to be ruled by them. But Indian rights would be infringed if we permitted a non-Indian to challenge an Indian’s choice of the state forum. Members of tribes are citizens of the United States and of the state in which they reside and thus have the right to bring actions in state court. This right would be substantially hindered if non-Indians could prevent Indians from seeking redress in state court.

Id. at 462.

[¶ 21] In contrast to the defendants in Three Tribes I and Zaman, Doe is an Indian. However, Doe is not member of Standing Rock Sioux Tribe. Therefore, with respect to Standing Rock Sioux Tribe’s right of self-government, Doe stands “on the same footing as non-Indians.” See Confederated Tribes, 447 U.S. at 161, 100 S.Ct. 2069, 65 L.Ed.2d 10. Thus, just as the defendants in Three Tribes I and Zaman were not permitted to assert the plaintiffs’ tribes’ rights of self-government against the plaintiffs in those cases, Doe is not permitted to assert Standing Rock Sioux Tribe’s right of self-government against its own member, Roe, in this case. See Three Tribes I, 476 U.S. at 148-49, 104 S.Ct. 2267, 81 L.Ed.2d 113; Zaman, 946 P.2d at 462; Wacondo v. Concha, 117 N.M. 530, 873 P.2d 276, 280 (1994) (“[N]either federal law nor tribal sovereignty precludes Indian plaintiffs from pursuing their state remedies against a nonmember Indian in state court.”); American Indian Law Deskbook, supra, at 156 (“Whenever a tribe or a tribal member seeks to assert a reservation-based claim against a nonmember, exercise of state adjudicatory jurisdiction is permissible.”); see also In re Otter Tail Power Co., 451 N.W.2d 95, 98 (N.D.1990) (holding a public utility lacked standing to assert an Indian tribe’s sovereign rights of self-government).

[¶ 22] The court in Zaman held state court jurisdiction over a paternity action brought by a member of a tribe against a non-Indian did not infringe on the tribe’s right to self-government even when the events leading up to the paternity action occurred on the tribe’s reservation. See Zaman, 946 P.2d at 460; but see In re Marriage of Skillen, 1998 MT 43, 287 Mont. 399, 956 P.2d 1 (holding in a child custody proceeding where at least one parent is Indian and living with an Indian child on the reservation, the tribal court has exclusive jurisdiction). We do not need to reach such a holding in this case. As discussed earlier, all of the events surrounding the relationship of Doe and Roe occurred outside the boundaries of any Indian reservation, and Doe alleges the place of conception is unknown. Doe does not allege he and Roe had sexual intercourse on either reservation at anytime. Under such circumstances, the existence of any tribal court jurisdiction, much less exclusive tribal court jurisdiction, is questionable. See, Canby, supra, at 194-95 (“When the tribe or its member sues a nonmember for a claim arising outside of Indian country, tribal jurisdiction is more doubtful”). As the Court of Appeals for the Eighth Circuit explained:

[Ajbsent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. Indian tribes do, however, retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations. The operative phrase is “on their reservations.” “Neither Montana nor its progeny purports to allow Indian tribes to exercise civil jurisdiction over the activities or conduct of non-Indians occurring outside their reservations.”

Hornell Brewing Co. v. The Rosebud Sioux Tribal Court, 133 F.3d 1087, 1091 (8th Cir.1998) (citations, footnote and internal quotation marks omitted). Nonetheless, the issue before this Court is not whether Standing Rock Sioux Tribal Court or Fort Berthold Tribal Court has subject matter jurisdiction over the paternity action brought in this case, but merely whether it has exclusive jurisdiction, thereby depriving the state court of concurrent jurisdiction. Compare id. with Fisher, 424 U.S. at 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (concluding a tribal court had exclusive jurisdiction) and Confederated Tribes, 447 U.S. at 154, 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 (concluding that a state and a tribe had jurisdiction to tax on-reservation sales of cigarettes to Indians residing on the reservation but not enrolled in the tribe).

[¶ 23] We also do not need to hold in this case, as the court in Zaman did, that state court jurisdiction over a paternity action brought by a member of a tribe against a non-Indian does not infringe on the tribe’s right to self-government even when the child is eligible for membership in the tribe of the reservation on which he or she resides. See Zaman, 946 P.2d at 460. We recognize that “Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” See Montana, 450 U.S. at 564, 101 S.Ct. 1245, 67 L.Ed.2d 493. However, in this case Roe and Doe are not members of the same tribe, nothing in the record established either has entered the other’s reservation, and nothing in the record established whether the child is a member of Standing Rock Sioux Tribe or even eligible for membership in the Tribe. See Standing Rock Sioux Tribe Code of Justice § 10-102 (“[T]o be eligible for enrollment as a member of the Tribe, an applicant must possess one-fourth (⅜) degree or more of Standing Rock Sioux Indian blood and must have one parent who is a lawfully enrolled member of the Tribe.... ”). Under such circumstances and on the state of the record in this case, we cannot say, as a matter of law, that the exercise of state court jurisdiction over the 1989 paternity action infringed on Standing Rock Sioux Tribe’s inherent right to determine its tribal membership. See Harris v. Young, 473 N.W.2d 141, 142 n. 1, 145 (S.D.1991) (finding concurrent state court jurisdiction over a change of custody motion brought by a non-Indian against a tribal member where it was unknown if the child was eligible for membership in the tribe). Although not applicable to paternity actions, we note that Congress also requires a showing that a child is eligible for membership in a tribe before that tribe’s court will have exclusive jurisdiction under the Indian Child Welfare Act. See 25 U.S.C. § 1903(4) (“ ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”).

[¶ 24] We, therefore, hold that Doe has not shown, as a matter of law, that the exercise of state court jurisdiction over an action brought to establish the paternity of a child who is an Indian and resides on Standing Rock Sioux Reservation infringes on the Tribe’s right to govern itself when the action is brought by an Indian eligible for membership in Standing Rock Sioux Tribe, who resides on the reservation ■ of that tribe, against a member of Three Affiliated Tribes, who is a legal resident of that tribe’s reservation.

[¶ 25] In reaching this holding, we do not imply that Byzewski v. Byzewski, 429 N.W.2d 394 (N.D.1988) is no longer good law. In Byzewski, we held a tribal court has exclusive jurisdiction to issue support and custody orders in a divorce action brought by a member and resident of Standing Rock Sioux Tribe against her non-Indian husband. See Byzewski, at 401. The statuses of the litigants in By-zewski, were essentially identical to the statuses of Roe and Doe in regard to Standing Rock Sioux Tribe’s right to govern itself. However, Byzewski is distinguishable from this case on three key bases. First, in Byzewski, we noted that the non-Indian husband lived on Standing Rock Sioux Reservation with the wife and-“[a]ll incidents giving rise .to the custody and support issues in this action for dissolution of the second marriage occurred on the reservation.” See id. at 395, 400. Second, it was the wife, a member of the Tribe, who chose to. file the action in Standing Rock Sioux Tribal Court and who asserted state court jurisdiction over the action infringed on Standing Rock Sioux Tribe’s right to govern itself. See id. at 395-96. Third, central to our holding in Byzewski was the fact that the state court asserted its jurisdiction after the tribal court had already issued temporary custody and support orders. See id. at 397 (“[W]e conclude that, under the circumstances of this case, in particular, because first-in-time temporary orders were issued by the tribal court and because the custodial domicile was the reservation, Williams v. Lee is applicable and that the exercise of jurisdiction by the state court interferes with the sovereignty of the Tribe.”). None of these three bases are even remotely present in the case at hand.

B

■ [¶ 26] The question in regard to Three Affiliated Tribes’ right to govern itself is whether, as a matter of law, state court jurisdiction over an action brought to establish the paternity of a child who is an Indian and resides off Fort Berthold Reservation infringes on the Tribe’s right to govern itself when the action is brought against a member of Three Affiliated Tribes, who is a resident of the reservation of that tribe by an Indian eligible for membership in a different Indian tribe, who is a resident of that tribe’s reservation. As discussed earlier, a tribal court has exclusive civil jurisdiction over claims in which a non-Indian asserts.a claim against an Indian for conduct occurring on that Indian’s reservation, see Williams, 358 U.S. at 223, 79 S.Ct. 269, 3 L.Ed.2d 251 claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe’s reservation, see Fisher, 424 U.S. at 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 wholly internal tribal subject matter, such as membership disputes, divorce actions between members domiciled on the reservation, and certain probate actions, see Canby, supra, at 187, 198-99, 202, and certain child custody proceedings falling under the Indian Child Welfare Act [ICWA], see 25 U.S.C. § 1911(a). Additionally, an Indian tribe has exclusive criminal jurisdiction over crimes committed by Indians against Indians in Indian country unless such crimes fall within the Major Crimes Act of 18 U.S.C. § 1153. See Canby, supra, at 159. However, “[ojutside of Indian country, the state has general criminal jurisdiction over all persons, including Indians.” See id. at 165.

[¶ 27] This case does not present the exclusive tribal court jurisdiction scenario of Fisher because it does not involve a claim between members of the same tribe for conduct that occurred on that tribe’s reservation. See 424 U.S. at 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106. This case does present a scenario somewhat similar to that of Williams v. Lee, because, in addressing Three Affiliated Tribes’ right to self-government, Roe, as a nonmember of Three Affiliated Tribes, is viewed as a non-Indian, see Confederated Tribes, 447 U.S. at 161, 100 S.Ct. 2069, 65 L.Ed.2d 10 who brought a claim against Doe, a member of Three Affiliated Tribes and resident of the Fort Berthold Reservation. However, one key element of the Williams v. Lee analysis is missing: Doe has not shown that any of the conduct giving rise to the paternity action occurred on Fort Berthold Reservation. See Williams, 358 U.S. at 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (“It is immaterial that respondent [, the plaintiff,] is not an Indian. He was on the Reservation and the transaction with an Indian took place there.”). In this case, nothing in the record indicates, and Doe has never alleged, that the conception of the child or any other events surrounding his relationship with Roe took place within the boundaries of Fort Berthold Reservation. In fact, nothing in the record indicates that Roe, the plaintiff, has even stepped foot on Fort Berthold Reservation.

[¶ 28] In general, tribal courts do not have exclusive jurisdiction over claims against tribal member defendants that arise outside of the reservation. See Canby, supra, at 180; see also Jones, supra, § 1(b) (“[I]n general a tribal court can only exercise jurisdiction over a dispute that arises within its territory.”). “Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); accord John v. Baker, 982 P.2d 738, 759 (Alaska 1999) (“Outside Indian country, all disputes arising within the State of Alaska, whether tribal or not, are within the state’s general jurisdiction. Thus the state, as well as the tribe, can adjudicate such disputes in its courts.” (footnote omitted)). Therefore, states have consistently assumed jurisdiction over claims brought by non-Indians against tribal members for conduct arising outside the territorial boundaries of Indian reservations. See, e.g. John, 982 P.2d at 759 (recognizing concurrent state court jurisdiction over child custody proceedings between tribal members that arise outside of Indian country); Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383, 385-86 (1980) (holding state court jurisdiction over a tort action brought by a non-Indian against an association composed entirely of tribal members did not infringe on the tribe’s right to govern itself where the action arose off the reservation); North Pacific Ins. Co. v. Switzler, 143 Or.App. 223, 924 P.2d 839, 845^46 (1996) (holding state court jurisdiction over an action for declaratory relief did not infringe on a tribe’s right to govern itself where “[ujnlike in Fisher, not all of the parties to this action are Warm Springs [Tribal] members, and unlike in Williams, the action did not arise on the reservation”); Maxa v. Yakima Petroleum, Inc., 83 Wash.App. 763, 924 P.2d 372, 374-75 (1996) (holding a state court had concurrent jurisdiction over a contract dispute not clearly arising either on or off a reservation); see also DeCoteau v. District Court, 420 U.S. 425, 429, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (affirming state court jurisdiction over a neglect and dependency proceeding in a pre-'ICWA case involving a mother and children who were all tribal members where it was determined that the action arose off the reservation); State ex rel. Vega v. Medina, 549 N.W.2d 507, 510 (Iowa 1996) (listing the fact that conception occurred off the reservation as a factor weighing in favor of state court jurisdiction over a paternity action).

[¶ 29] Similar to the above cited cases, the undisputed facts of this case are Doe left Fort Berthold Reservation and engaged in a relationship with Roe, a nonmember of Doe’s tribe, outside the boundaries of Fort Berthold Reservation. Nothing in the record indicates any part of Roe and Doe’s relationship occurred within Fort Berthold Reservation. Although Doe contends the place of conception of the child is unknown, this allegation is insufficient to meet Doe’s burden of showing that the 1989 judgment of support and paternity is void as a matter of law. See McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 10, 633 N.W.2d 157 (stating that the question to be resolved in a Rule 60(b)(iv) motion is whether the judgment is void as a matter of law); Zillmer, 449 N.W.2d at 816 (stating that the burden is on the moving party in a N.D.R.Civ.P 60(b)(iv) motion to show sufficient grounds exist for disturbing the finality of a judgment). As we discussed earlier, because we must decide whether the 1989 judgment is void as a matter of law, even assuming the place of conception is unknown as Doe alleges, a resolution in favor of Doe would require us to hold, based on the undisputed facts of this case, that the 1989 paternity judgment is void, regardless of whether conception occurred on or off the reservation. This we decline to do.

[¶ 30] Where, as here, a paternity action is brought by a nonmember of Three Affiliated Tribes and a non-resident of Fort Berthold Reservation against a member of Three Affiliated Tribes whose legal residency is Fort Berthold Reservation, and the record indicates that all the events leading up to the action occurred off Fort Berthold Reservation and the place of conception is unknown, we cannot say, as a matter of law, that state court jurisdiction over the action infringed on Three Affiliated Tribes’ right of self-government. See John, 982 P.2d at 759 (“Outside Indian country, all disputes arising within the State of Alaska, whether tribal or not, are within the state’s general jurisdiction. Thus the state, as well as the tribe, can adjudicate such disputes in its courts.”). While Three Affiliated Tribes may have had jurisdiction over the paternity action in 1989, Doe has not met his burden of showing that, as a matter of law, the Tribe had exclusive jurisdiction. See Mescalero Apache Tribe, 411 U.S. at 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.”); see also Atwood, supra, at 1081 (“[W]ith respect to claims that have significant off-reservation impact or occur off-reservation, state courts may assert jurisdiction, concurrent with tribal courts, even as to actions involving Indian defendants. In such a situation, the state’s interest in hearing the dispute is not automatically overshadowed by tribal sovereignty.”).

[¶ 31] In reaching this holding, we recognize that, like Standing Rock Sioux Tribe, Three Affiliated Tribes retains “inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” See Montana, 450 U.S. at 564, 101 S.Ct. 1245, 67 L.Ed.2d 493. However, in this case Roe and Doe are members of two different Indian tribes, nothing in the record established either has entered the other’s reservation, and nothing in the record established whether the child is a member of Three Affiliated Tribes or even eligible for membership in the Tribe. See Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation art. II, § 1(c) (providing that to be eligible for enrollment a person must have “⅜ degree Indian blood of a federally recognized tribe provided at leasts Indian blood be of the Gros Ventre, Mandan and/or Arickara Tribes”). Under such circumstances and on the state of the record in this case, we cannot say, as a matter of law, that the exercise of state court jurisdiction over the 1989 paternity action infringed on Three Affiliated Tribes’ inherent right to determine its tribal membership. See Harris, 473 N.W.2d at 142 n. 1, 145 (finding concurrent state court jurisdiction over a change of custody motion brought by a non-Indian against a tribal member where it was unknown if the child was eligible for membership in the tribe); see also 25 U.S.C. § 1903(4) (“ ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”).

[¶ 32] We, therefore, hold that Doe has failed to show the 1989 paternity judgment is void as a matter of law. We affirm the trial court’s order.

[¶ 33] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RON-NING KAPSNER, JJ., concur.

      . In Duro, the Court held a tribe does not have criminal jurisdiction to prosecute nonmember Indians for crimes committed on the tribe's reservation. See 495 U.S. at 688, 110 S.Ct. 2053, 109 L.Ed.2d 693. Congress has now provided tribal courts criminal jurisdiction over nonmember Indians for crimes committed on the tribe's reservation. See Canby, supra, at 167 (citing 25 U.S.C. § 1301(2)). In citing to Duro, we do not imply that Standing Rock Sioux Tribal Court or Fort Berthold Tribal Court would be precluded from exercising jurisdiction over a paternity suit such as the one in this case, as that is not the issue before us. Thus, Duro is only cited for the distinction it drew between Indians who are not members of the same tribe. See, e.g., Wacondo v. Concha, 117 N.M. 530, 873 P.2d 276, 280 n. 3 (1994).

      . The Supreme Court has been, criticized for focusing on tribal membership in resolving tribal sovereignty issues. See, e.g., Allison M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision, 55 U. Pitt. L.Rev. 1, 35 & 48 (1993). This criticism, however, has only been levied against cases in which the conduct of the nonmembers occurred within the geographical boundaries of a tribe’s reservation. See id. Such criticism is inapplicable to this case, because nothing in the record indicates that Doe has ever entered the reservation of Roe's tribe, Standing Rock Sioux Reservation, or that Roe has ever entered the reservation of Doe's tribe, Fort Berthold Reservation.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2002 SD 85
    In the Matter of the PETITION FOR WRIT OF CERTIORARI AS TO THE DETERMINATION OF ELECTION ON THE BROOKINGS SCHOOL DISTRICT’S DECISION TO RAISE ADDITIONAL GENERAL FUND Property Tax Revenues in the Amount of $750,000.00, and In the Matter of the Election Contest as to the Issue of the Brookings School District’s Decision to Raise Additional General Fund Property Tax Revenues in the Amount of $750,000.00, Aelred J. Kurtenbach and Craig Johnson, Petitioners and Appellees, Edwin J. Luetzow, Respondent and Appellant.
    No. 22178.
    Supreme Court of South Dakota.
    Argued on April 24, 2002.
    Decided July 17, 2002.

      Richard J. Helsper of Glover, Helsper & Rasmussen, Brookings, South Dakota, Attorneys for petitioners and appellees Kur-tenbach and Johnson.
    Ellie M. Vandenberg, Volga, South Dakota Attorney for respondent and appellant.
   KONENKAMP, Justice.

[¶ 1.] This case presents the question whether a petition for recount in a school district election is sufficient, when it is not verified as required by statute. After a school district referendum election approving a tax increase, a recount board was convened on a petition that was not verified. The recount board overturned the election. We conclude that absent verification, the recount petition was invalid, and because the recount board was convened invalidly, its decision overturning the school district election was also invalid. Thus, the circuit court’s grant of a writ of certiorari reinstating the voters’ approval of the tax increase is affirmed.

A.

Background

[¶ 2.] On May 14, 2001, the Brookings School Board unanimously passed a $750,000 tax increase, authorized under SDCL 10-13-36. After a petition to refer this decision to a public vote, a referendum election was held on September 18, 2001. The question for the voters was whether the tax increase should be approved or disapproved. The final vote tally showed that 2,211 approved and 2,181 disapproved the increase.

[¶ 3.] On September 21, 2001, five persons signed and filed with the School Board a document seeking a recount. As this document was clearly not in proper form, the business manager for the school district notified one of the signers of its insufficiency. Thereafter, with the assistance of counsel, a new recount petition was prepared, signed by four voters, and submitted. It was notarized, but not verified. Furthermore, although the notary’s declaration on the petition stated “subscribed and sworn to before me,” the notary later confirmed that she administered no oath to the signatories, either orally or in writing. The business manager accepted the petition and arranged for a three-person recount board in accord with SDCL 13-7-19.3, using the procedures in a manual published by Associated School Boards of South Dakota.

[¶ 4.] In the process of counting the ballots, the recount board members discovered that 77 absentee ballots had not been properly stamped. The absentee voters themselves had fully complied with all election law requirements and their ballots were in proper form. In processing these ballots on election night, however, one of the precinct officials had forgotten to place the official precinct ballot stamp on them. Consequently, the recount board members voted 2-1 to discard all 77. Of these, 55 approved the tax increase and 22 disapproved. The recount board also decided to include five over-marked ballots and exclude three ballots, chosen at random, to reconcile the ballot count with the total number who voted. After these actions, the recount board reported that the new tally changed the result: 2,159 votes disapproved the tax increase and 2,154 approved. Thus, the recount board overturned the tax increase.

[¶ 5.] In response to the recount board’s decision, two registered voters, who had participated in the referendum election, petitioned the circuit court to issue a writ of certiorari under SDCL 21-31-1, requiring the initial tally to be entered as the voters’ decision. They asserted that the petition for recount was legally defective, being unverified, and the business manager therefore had no authority to appoint a recount board. They contended that because the recount board acted without jurisdiction, its decision was a nullity, and a writ of certiorari was the only expeditious remedy available. The respondents were the three recount board members: Edwin J. Luetzow, one of the signers of the petition for recount, Ronald C. Aho, a representative of the other side, and James Gilkerson, selected by the other two members. The circuit court granted the writ reinstating the initial tally as the official result ■ of the election, which approved the tax increase.

[¶ 6.] On appeal, Luetzow contends that (1) the circuit court erred in granting the writ of certiorari on the ground that the recount board exceeded its jurisdiction; (2) the court erred in granting a writ of certiorari when the petitioners had a plain, speedy, and adequate remedy at law; and (3) the court erred in finding that the opt-out referendum election process, including the official recount, did not result in a'free and fair expression of'the will of the voters of the Brookings School District. We need not address the last argument because we deem the first two to be dispositive.

B.

Recount Board Invalidly Convened

[¶ 7.] We begin our analysis with SDCL 13-7-19.3, which provides in relevant part:

A recount shall be conducted when, within five days after completion of the official canvass of a school district regular or speciál election at which a question is approved or disapproved by a margin not exceeding two percent of the total votes cast in'the election, any three registered voters of the school district file a petition duly verified 'by them, setting forth that they believe a recount will change the outcome. A recount board shall be appointed by the business manager who shall , appoint one person on each side of the question and one person who shall be mutually agreed upon by the other two appointed....

(Emphasis added). It is undisputed that the margin of approval was less than two percent of the total votes cast and that four registered voters signed a notarized petition setting forth their belief that a recount would change the outcome. However, it is also undisputed that none of the signatories swore, under oath, that the content of the petition was true. Thus, one of the three statutory conditions for investing the business, manager with the authority to appoint a recount board remained unmet.

[¶ 8.] The concept of verification has a special meaning in the law. The first definition assigned to the word “verify” by Black’s Law Dictionary is “[t]o confirm or substantiate by oath or affidavit.” 1561 (7th ed 1999). Thus, a “verification” is a “[cjonfirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition; [or][an][a]ffidavit of [the] truth of [the] matter stated[;] ... the object of verification is to assure good faith in aver-ments or statements of parties.” Id. Here, no oath or affidavit verified the petition for recount. Verification is important, particularly when, as here, the petition impugned the result of an election.

[¶ 9.] We faced the verification requirement in a recent case. See In the Matter of the Election Contest as to Watertown Special Referendum Election of October 26, 1999, Pertaining to Referred Ballot Issues No. 1 and 2, 2000 SD 43, 607 N.W.2d 920. There, both the majority and dissenters agreed that no verification resulted unless the signatories took an oath to affirm the truth of the matter asserted, the majority holding that an oral verification sufficed, the dissenters believing that a written verification was required. Id. at ¶¶ 9, 14, 21, 607 N.W.2d at 923, 924, 926.

[¶ 10.] Being unverified, the petition presented to the business manager was invalid. Thus, the trial court correctly reasoned that SDCL 13-7-19.3 did not vest the business manager with the authority to appoint a recount board. Without that authority, as the court ruled, the recount board had no jurisdiction to take “any action at all.”

[¶ 11.] Nonetheless, Luetzow argues that courts have no authority to review the recount board’s decision. See SDCL 12-21-6 (certiorari proceedings are excluded in school and municipal elections). He quotes footnote 3 from Becker: “Except for allegations of a corrupt election and procedures provided for their resolution under SDCL ch 12-22, the [Legislature has determined the recount board is the final arbiter of any question arising out of a municipal election recount dispute.” 1999 SD 17 at ¶ 11 n. 3, 588 N.W.2d at 917 n. 3. Luetzow insists that school district election recounts fall under the same category. However, in Becker, we also wrote:

Under certiorari, this Court may consider only whether the recount board had jurisdiction to recount the ballots and whether it regularly pursued its authority in doing so.
“The test of jurisdiction is whether there was power to enter upon the inquiry and not whether the determination by the court [or in this case, a board] of a question of law or fact involved is correct.” Janssen v. Tusha, 68 S.D. 639, 5 N.W.2d 684, 685 (1942) (internal citations omitted).

Id. at ¶ 15, 588 N.W.2d at 917-18.

[¶ 12.] We have never regarded as unreviewable a decision of a recount board called into existence invalidly. On the contrary, SDCL 21-31-1 specifically empowers courts to invoke writs of certiorari when “boards ... have exceeded their jurisdiction[.]” As the board was invalidly convened, it acted without jurisdiction.

C.

No Other Adequate Remedy

[¶ 13.] A writ of certiorari issuing in equity is an extraordinary remedy; like a writ of prohibition, it may issue only when the petitioner is without “any other plain, speedy, and adequate remedy.” SDCL 21-31-1; Sorenson v. Rickman, 486 N.W.2d 259, 261 (S.D.1992). Luetzow argues that the petitioners had a plain, speedy, and adequate remedy, namely, an election contest as provided under SDCL chapter 12-22. However, the purpose of an election contest, as contrasted with a recount, is not to have certain ballots declared void and to maintain others, but rather to determine whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters on the merits, and to obtain a new election if it did not. Larson v. Locken, 262 N.W.2d 752, 753 (S.D.1978). As the North Dakota Supreme Court explained in State ex rel. Olson v. Thompson, a recount differs from a contest in that a recount, clearly and unmistakably, if requested and made, is a part of the election process, while a contest is a challenge of the election process itself. 248 N.W.2d 347, 356 (N.D.1976).

[¶ 14.] Here, the root problem, of course, was the validity of the 77 unstamped ballots; there was no question of the validity of the election process itself. Therefore, an election contest would provide no remedy. Issuance of a writ of certiorari was the only alternative open to petitioners as a means of challenging the recount board’s jurisdiction to act. Luet-zow’s remaining arguments are without merit.

[¶ 15.] As the petition for recount was invalid, so also was the decision of the recount board, since it acted without jurisdiction.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and ZINTER, Justices, concur.

      . The full text of § 10-13-36 states:
      The governing body of a taxing district may exceed the limit pursuant to § 10-13-35 through the imposition of an excess tax levy. The governing body of a taxing district may impose an excess tax levy with an affirmative two-thirds vote of the governing body on or before July fifteenth of the year prior to the year the taxes are payable. The decision of the governing body to originally impose or subsequently increase an excess tax levy shall be published within ten days of the decision. The decision may be referred upon a petition signed by at least five percent of the registered voters in the taxing district and filed with the respective governing body within twenty days of the publication of the decision. The referendum election shall be held on or before October first preceding the year the taxes are payable. The taxing districts may not exceed the levy limits provided in chapter 10-12 except for the provisions in § 10-12-36.

      . The attorney who prepared this petition is not appellate counsel.

      . In our most recent decisions concerning this issue, we have ruled that despite the requirement that election officials stamp absentee ballots with the official stamp, it is "not the policy of this state to disenfranchise a voter because of an election official's mistake or negligence, but rather, 'to determine and carry out the intent of the elector when satisfied that the elector has endeavored to express such intent in the manner prescribed by law[.]'" Christensen v. Devany, 500 N.W.2d 213, 215 (S.D.1993) (quoting Duffy v. Mortenson, 497 N.W.2d 437, 438 (S.D.1993) (citations omitted)). See also Becker v. Pfeifer, 1999 SD 17, ¶ 22, 588 N.W.2d 913, 919; and Becker, 1999 SD 17 at ¶ 27, 588 N.W.2d at 919 (Amundson, J., concurring: "Election results that show a free and fair expression of the will of the voters should not be overturned due to the mistakes or neglect of an election official.”)

      . We granted expedited briefing in this appeal.

      . The trial involved two claims, brought and heard simultaneously. The first was the petition to issue a writ of certiorari; the second, argued in the alternative, was an action seeking an election contest. Not only do we affirm the issuance of the writ, but we also hold that an election contest would not provide a remedy. We review a trial court’s entry of a writ of certiorari only to determine whether the court exceeded its jurisdiction. Cole v. Bd. of Adjustment, 1999 SD 54, ¶ 10, 592 N.W.2d 175, 177.

      . Luetzow also cites State ex. rel. Cormick v. Ramsey, 27 S.D. 302, 130 N.W. 768 (1911), for the rule that school and municipal elections cannot be reviewed by an extraordinary writ because an adequate and speedy remedy exists at law.


author: AMUNDSON, Justice. SABERS, Justice

text:
    2002 SD 84
    STATE of South Dakota, Plaintiff and Appellee, v. Vincente CHAVEZ, Sr., Defendant and Appellant.
    No. 22087.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided July 17, 2002.
    Rehearing Denied Aug. 13, 2002.

      Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Patrick J. Kane, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Vincente Chavez, Sr., (Chavez) was convicted of six counts of aggravated assault and two counts of commission of a felony with a firearm. He appeals. We affirm in part, and remand for sentence corrections.

FACTS

[¶ 2.] During the night of November 12, 2000, Sioux Falls police were called to investigate a robbery. Victims of the crime reported that they knew the men who had robbed them as “Clown,” (later found to be Gregory Iboy (Iboy)), Sandy (later found to be Sandy Rodriguez (Rodriquez)), and “Downer” (later found to be Vincente Chavez, Jr., Appellant/Defendant Chavez’s son) (Vincent, Jr.). The victims further reported that one of the men was armed with a .25 caliber handgun and that one victim had been hit in the side of the head with the gun. The victims also stated that many items had been stolen, including a 12-gauge shotgun. They told police where Vincent, Jr. lived, which was on Franklin Avenue in Sioux Falls in Chavez’s home. Iboy was Vincent, Jr.’s, friend and he, too, was staying at the Chavez home. Vincent, Jr., however, was in jail at the time of the robbery and police were aware of this fact.

[¶ 3.] A vehicle that Rodriguez was in was stopped later that night and police found that he possessed some of the stolen items. After confirming with the victims that the items were theirs, police interviewed Rodriguez, and he gave them reason to believe that other stolen items were being stored at Chavez’s home where Iboy was staying.

[¶ 4.] That same night, police applied for and received a search warrant for the Chavez home that could be executed at any time on a no-knock basis. Sergeant Richard Miller (Miller), the Special Weapons and Tactics (SWAT) Team advisor assisted in executing the warrant because violence had been used during the robbery, and because the suspects had allegedly been involved in gang activity and narcotics. Miller determined that the SWAT Team should use a “dynamic” approach, whereby the team approaches the house without notice and secures the scene. Miller thought this was necessary because it would be less dangerous to surrounding residents and would prevent a possible hostage situation.

[¶ 5.] In the early morning hours of November 13, 2000, the SWAT Team approached Chavez’s home, and rammed open the front door. The Team then announced, “Police Department. Search warrant.” The SWAT Team split up once inside the home and one group went to search the second floor. Once upstairs, they encountered Reynala Chavez (Reyna-la), Chavez’s wife who did not speak English. They coaxed her into getting down on the floor and lying flat while they proceeded. When Officer Chris Pearson (Pearson) and Officer Tim Hagen (Hagen) approached Chavez’s bedroom door, they discovered it was closed. Hagen tried to push it open, but felt resistance against it. Hagen pushed the door part way open and saw a gun pointed at them. Hagen called out, “gun,” and yelled for the man behind the door, Chavez, to drop it. Instead, the officers alleged, Chavez began constricting his finger on the trigger. Hagen dropped to the floor and fired his P-90 towards Chavez. Pearson, who had backed away from the door, did the same. Detective Clark Baker, who was outside of Chavez’s home during the SWAT Team’s warrant execution, claims one single shot, Chavez’s handgun, was fired before the P-90 rounds went off. After the gunfire ceased, Chavez came out from behind the door, no longer holding his gun, and the officers saw that he had been injured by the gunfire. His upper right arm and left hand had both been hit with bullets and were bleeding. Chavez, who did speak English, was ordered down on the floor and he complied. He was then taken to the hospital by ambulance.

[¶ 6.] Chavez later acknowledged that Iboy, who was involved in the robbery, was in fact staying at his home. Iboy came into Chavez’s home with some friend at about 10:30 on the night of the reported robbery; the group had two rifles and a shotgun, and were carrying property that they admitted had been robbed from someone. Chavez stated that Iboy had a .25 automatic pistol, and that he bragged about how he had hit a robbery victim in the head with it. Chavez claimed that he was very angry at Iboy, and that he told Iboy to get rid of the stolen items. He also stated that he took the handgun from Iboy and that Reynala later placed it in her bedroom closet. Chavez further asserted that when he woke up to his wife’s screams, he grabbed the handgun from the cabinet in his bedroom because he feared Iboy’s robbery victims were seeking revenge. He also claimed that he had pointed the gun out the bedroom door only to shoot at the ceiling as a means of getting the intruders’ attention. He said that once he,heard officers yell for him to drop the gun, he pulled it back, yelling “okay” and “I’m sorry.” According to Chavez, all of his actions were done before he realized the people in his home were police. He claims that he never heard the officers identifying themselves as police with a search warrant as they came through the house.

[¶ 7.] Regardless of his assertions of innocent confusion, he was indicted on eight criminal counts for firing a gun at Officers Hagen and Pearson, who approached his bedroom door during the execution of the search warrant. The charges included: two counts of aggravated assault for attempting to cause bodily injury with a dangerous weapon under SDCL 22-18-1.1(2); two counts of aggravated assault for attempting to cause bodily injury to the two law enforcement officers, under SDCL 22-18-1.1(3); two counts of aggravated assault for attempting, “by physical menace with a deadly weapon to put others in fear of imminent serious bodily harm” under SDCL 22-18-1.1(5); and two counts of committing or attempting to commit a felony while armed with a firearm under SDCL 22-14-12.

[¶ 8.] Before trial, Chavez made a motion to dismiss the indictment on the grounds that multiple counts were wrongfully being charged, but the trial court denied the motion. After a jury trial, Chavez was convicted of six counts of aggravated assault and two counts of commission of a felony with a firearm. The State requested that the trial court impose two fifteen-year sentences for two counts of aggravated assault against a law enforcement officer. The State also requested the mandatory minimum of five years for the first conviction of commission of a felony with a firearm, and the mandatory minimum of ten years for the second conviction of commission of a felony with a firearm. After the sentencing hearing, the trial judge imposed concurrent fifteen-year sentences for each one of the six aggravated assault convictions, and two concurrent fifteen-year sentences for the armed felony counts, to be served consecutively with the sentences for the assault.

[¶ 9.] Chavez appeals the following issues:

1) Whether the defendant was improperly charged and convicted on multiple criminal counts.
2) Whether the evidence was sufficient to sustain the defendant’s convictions.
3) Whether the trial court erred by allowing the defendant only partial access to police manuals.
4) Whether the trial court erred in setting bail.
5) Whether the trial court erred in admitting photographs of a police reenactment of the crime scene.
6) Whether the trial court erred in its instructions to the jury.

STANDARD OF REVIEW

[¶ 10.] The issues regarding multiplicity of charges are questions of law, which we review de novo. State v. Blakey, 2001 SD 129, ¶ 5, 635 N.W.2d 748, 750. On the sufficiency of the evidence issue, we determine “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inferences fairly drawn therefrom, which will support the verdict.” State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838 (citation omitted). Issues regarding the trial court’s decision on evi-dentiary matters are reviewed under the abuse of discretion standard. State v. Machmuller, 2001 SD 82, ¶ 9, 630 N.W.2d 495, 498. “An abuse of discretion is ‘discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Id. (citations omitted). We do not ask “whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Id. (citations omitted). The issue regarding bail is also reviewed under the abusé of discretion standard. State v. Stuck, 434 N.W.2d 43, 52 (S.D.1988).

DECISION

[¶ 11.] 1) Whether the defendant was improperly charged and convicted on multiple criminal counts.

[¶ 12.] Chavez contends that the commission of a felony with a firearm conviction. under SDCL 22-14-12 is prohibited by SDCL 22-14-14. He additionally argues that he was wrongly charged with multiple crimes based on the fact that all eight charges stemmed from the same set of facts.

[¶ 13.] First, we address whether a conviction under SDCL 22-14-12 is prohibited by SDCL 22-14-14. SDCL 22-14-12 reads, in part, as follows: “Any person who commits or attempts to commit any felony when armed with a firearm, including a machine gun or short shotgun, is guilty of a Class 2 felony for the first conviction. A second or subsequent conviction is a Class 1 felony....” SDCL 22-14-14 states, in pertinent part, that “[n]o offense may be charged under [§ 22-14-12] when the use of a dangerous weapon is a necessary element of the principal felony alleged to have been committed or attempted.” SDCL 22-14-14 avers that if a necessary element of the underlying felony for the charge of commission of a felony with a firearm under SDCL 22-14r-12 requires a firearm, there cannot be a separate conviction for commission of a felony while armed with a firearm. “SDCL 22-14-13 is an enhancement statute designed to discourage firearm use and decrease the probability of serious bodily harm to felony victims.” . State v. Simons, 313 N.W.2d 465, 467 (S.D.1981) (finding that use of a weapon is not a necessary element of homicide). One “caveat” preventing a conviction for commission of a felony with -a firearm under SDCL 22-14-14 is that a “dangerous weapon” must not be- a “necessary element of a principal felony.” Id. at 468.

[¶ 14.] Under 22-18-1.1(3), “[a]ny person who ... [attempts to cause or knowingly causes any bodily injury to a law enforcement officer or other public officer engaged in the performance of the officer’s duties ... is guilty of aggravated assault.” This subsection does not require or mention the use of a deadly weapon. Therefore,' a conviction of aggravated assault under subsection 3 of SDCL 22-18-1.1, as well as a conviction of commission of a felony while armed, is not a statutory violation of SDCL 22-14-14. Nor is it a violation -of double jeopardy. State v. Corle, 294 N.W.2d 799, 800 (S.D.1980) (per curiam) (stating one transaction leading to charges of a commission of a felony while armed and aggravated assault under SDCL 22-18-1.1(3) will not violate double jeopardy because a conviction of each requires different elements be met).

[¶ 15.] Additionally, Chavez argues charging him with multiple counts of the same crime was error based on the fact that all of the charges arose from the same set of facts. We acknowledge that if there is a single transaction resulting in more than one crime, each crime must have been the result of “separate factual incidents.” State v. Well, 2000 SD 156, ¶ 21, 620 N.W.2d 192, 196. “[A] defendant cannot receive two convictions for one crime unless the [Legislature intended multiple punishments.” Id. at ¶ 23.

[¶ 16.] Here, the State concedes in its brief that the trial court should have only entered 2 convictions and sentences for aggravated assault, rather than 6. SDCL 22-18-1.1 enumerates the different ways of committing aggravated assault. The methods of committing this crime pertinent to this case include: attempting to cause bodily injury with a dangerous weapon; attempting to cause bodily injury to a public officer performing his duties; attempting by “physical menace with a deadly weapon to put another in fear of imminent bodily harm[.]” SDCL 22-18-1.1(2), (3) and (5). “[W]hen a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may charge any and all such acts conjunctively as constituting a single offense.” State v. Baker, 440 N.W.2d 284, 293 (S.D.1989) (citing State v. Likness, 386 N.W.2d 42, 43 (S.D.1986) (emphasis in original)). It is not, however, permissible to punish a defendant more than once for one offense in violation of a single statute. We have held that “SDCL 22-18-1.1 does not contain four separate offenses, but rather describes one violation that may be established in four different ways.... Each of the counts describes a different method of accomplishing the offense, but there was only one offense committed....” Id.

[¶ 17.] We have acknowledged that two convictions for the same crime cannot stand without specific legislation to that effect. Well, 2000 SD 156 at ¶ 23, 620 N.W.2d at 197. Therefore, for example, “double homicide convictions for a single death are improper” and “a single plan to steal numerous cattle was a single theft absent evidence that the defendant had a separate intent or plan.” Id. at ¶ 23. “Without two separate factual incidents or statutorily intended multiple punishments for the same facts, two convictions cannot stand.” Id.

[¶ 18.] In this case, it is permissible to convict and sentence Chavez for one count of aggravated assault as to each officer he assaulted, but he cannot be punished more than once for identical facts under varying subsections of the aggravated assault statute. See State v. Seidschlaw, 304 N.W.2d 102, 106 (S.D.1981). Here, Chavez can be convicted and sentenced for one count of aggravated assault against Hagen. He can also be convicted and sentenced of one count of aggravated assault as to Pearson. The remaining four aggravated assault convictions must be vacated. To punish Chavez three times for each separate offense clearly violates double jeopardy and the settled laws of this state. See Baker, 440 N.W.2d at 293.

[¶ 19.] If, under the same set of facts, a defendant is wrongly convicted and sentenced under more than one subsection of SDCL 22-18-1.1, the erroneous convictions must be vacated by the trial court. See id. Accordingly, this case is remanded to the trial court to vacate the convictions and sentences for the above-described four aggravated assault convictions.

[¶20.] 2) Whether the evidence is sufficient to sustain the defendant’s convictions.

[¶ 21.] Next, Chavez claims the evidence at trial is insufficient to support his conviction. Chavez’s sufficiency of the-evidence argument is based around the varying versions of what happened on the night police executed their search warrant. He testified that he was reaching out the bedroom door to fire a shot into the ceiling as a means of scaring away those he allegedly thought were the victims • of the robbery committed by Iboy and friends earlier that evening. Chavez testified that he had cracked the- door and tried to fire into the ceiling, but that the gun wouldn’t fire for some reason. He pulled the gun back into the room, readjusted, and stuck the gun back into the hall to try again to fire at the ceiling. Then, within a couple of seconds, the police allegedly saw the gun and fired at Chavez. Chavez claims he didn’t remember firing, and he had an expert testify that he may have fired as a result of an involuntary muscle contraction caused by the severing of a nerve after police shot him. He claims he did not know the police were in his home, and that he did not intentionally fire his gun. In essence, Chavez argued that the grogginess of just awakening- to screams of his wife, along with the use of medication and consumption of a few drinks several hours prior to the arrival of police made it difficult for him to. comprehend what was going on. Because of his knowledge of the earlier robbery, he claims that, in his incoherent state, he was merely trying to protect his family from intruders he thought had been robbed by Iboy and the others that evening.

[¶ 22.] The State, however, provided testimony demonstrating that Chavez’s pistol was heard firing before the P-90’s shot could be heard. Additionally, Miller and Hagen testified that they were loudly calling out that they were the police, and that they had a warrant. Additional State testimony indicated that Chavez pointed at the officers as they approached the door, and that it did not appear to be the blind aim at the ceiling described by Chavez.

[¶ 23.] Here, we must view the evidence and its inferences most favorably towards upholding the verdict. Gonzalez, 2001 SD 47 at ¶ 7, 624 N.W.2d at 838. “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence,” State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (citing State v. Karlen, 1999 SD 12 ¶ 49, 589 N.W.2d 594, 605; State v. White, 1996 SD 67, ¶ 24, 549 N.W.2d 676, 682; State v. Andrews, 393 N.W.2d 76, 80 (S.D.1986); State v. Blakey, 332 N.W.2d 729, 731, (S.D.1983)). Under this standard, we cannot cast aside the jury’s credibility determination. The jurors listened to both the prosecution’s and the defense’s version of events throughout a five-day jury trial. Chavez argues a version that presents a picture favorable to his position, but there was conflicting evidence that was shown to the jury, which it found more credible. Therefore, we affirm on this issue.

[¶ 24.] 3) Whether the trial court erred by allowing the defendant only partial access to police manuals.

[¶ 25.] Chavez had issued a subpoena duces tecum requesting the police department’s procedure manuals. The City, however, claimed these manuals were confidential. Consequently, the trial court reviewed the materials in camera and gave the defense only the pertinent portions of the procedure manuals. This, Chavez argues, deprived him of the opportunity to adequately prepare a defense.

[¶ 26.] We must determine whether the trial judge was justified in its decision to permit only pertinent portions to be viewed by the defense. Machmuller, 2001 SD 82, ¶ 9, 630 N.W.2d 495, 498. The Eighth Circuit, in analyzing the federal Freedom of Information Act, has held that law enforcement materials involving methods of enforcing laws are solely the concern of law enforcement and need not be disclosed. Hardy v. Bureau of Alcohol, Tobacco and Firearms, 631 F.2d 653, 657-58 (9thCir.1980). Allowing the full disclosure of law enforcement manual may later “impede” an agency’s “efforts to carry out its law enforcement responsibilities.” Cox v. Levi, 592 F.2d 460, 461 (8thCir.1979) (discussing obligation to disclose FBI manuals under the Freedom of Information Act). Other courts have also determined that law enforcement manuals should not be disclosed. Shay v. Mullen, 215 A.D.2d 935, 626 N.Y.S.2d 580, 581-82 (1995) (holding issuance of writ of prohibition preventing prosecutors from disclosing alcohol test manuals was warranted based on confidentiality). If, however, a defendant finds that it is necessary to use portions of a law enforcement manual, he should set forth the “factual predicate” in his discovery request, and receive only that which is necessary; his request cannot be over-broad. Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611, 613 (1990). If a subpoena duces tecum is over-broad, it may be quashed. Id.

[¶ 27.] Here, the defense, in its subpoena duces tecum, requested all “plans and policies” for carrying out a raid, and spanned from requesting information on the clothing worn by the officers to the ammunition supplied to the SWAT Team members. The trial court examined the manuals at issue, and gave Chavez portions of the operating procedure regarding the use of force and the use of interpreters for those who do not speak English. These sections were then used by the defense and entered into evidence at trial.

[¶ 28.] The trial court fairly handled this matter by giving the defense the opportunity to use pertinent portions of the manuals, while still respecting the rights of the police department to keep certain police tactics away from the public eye. Thus, we cannot find that the trial court’s decision on this matter was against reason and evidence. We affirm on issue three.

[¶ 29.] 5) Whether the trial court erred in admitting photographs of police reenactment events related to the shooting.

[¶ 30.] Next, Chavez contends that the trial court erred in admitting photographs of a police reenactment of the crime scene on the night of the search warrant execution. He asserts that the photos were not accurate portrayals of the scene because the photos were taken in daylight rather than at night, which was when the crime occurred. He further contends that there were differences in the height and weight of the actors in the photos when compared to the real participants, and that the photos were “predicated on the recollection of the officers” and not on actual events.

[¶ 31.] “Photographs are generally admissible when they accurately portray anything that a witness could describe and when they provide an aid to a verbal description of relevant objects or conditions.” State v. Blue Thunder, 466 N.W.2d 613, 621 (S.D.1991) (citations omitted). Relevant evidence of a crime scene has often been used in criminal trials. State v. Knecht, 1997 SD 53, ¶ 11, 563 N.W.2d 413, 418 (stating that “it is hard’ to fathom how evidence of the crime scene could be characterized as irrelevant” and citing numerous cases supporting that statement).

[¶ 32.] ' The photographs at issue showed how the officers were positioned in Chavez’s hallway,- and showed the pattern of the bullets in Chavez’s bedroom door through the insertion of dowels through bullet holes. At trial, the differences between the night of the crime and the images portrayed in the photographs were explained to the jury. The photographs were clearly used as a legitimate “aid to a verbal description of relevant objects or conditions.” Blue Thunder, 466 N.W.2d at 621. Thus, the trial court did not abuse its discretion in admitting them.

[¶ 33.] 6) Whether the trial court erred in its instructions to the jury.

[¶ 34.] Chavez failed to cite to any supporting authority on this issue, or even discuss this in his brief. “The failure to cite supporting authority is a'violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived.” State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599 (quoting State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994); State v. Dixon, 419 N.W.2d 699, 701 (S.D.1988)). This issue has been waived.

[¶ 35.] We find all other issues raised on appeal to be without merit’.

[¶ 36.] For the foregoing reasons, we affirm in part and remand for a vacation of the surplus assault convictions on counts 1, 2, 5 and 6 -in the judgment and sentence dated August. 23, 2001.

[¶ 37.] GILBERTSON, Chief Justice, ■ and KONENKAMP and ¿INTER, Justices, concur.

[¶ 38.] SABERS, Justice, concurs in part and concurs specially in part.

SABERS, Justice

(concurring in part and concurring specially in part).

[¶ 39.] This may be the most important criminal law case in South Dakota in years in respect to proper charging, instructing, convicting and sentencing. The majority opinion recognizes that it is not “permissible to punish a defendant more than once for one offense in violation of a single statute” and that “[t]he remaining four aggravated assault convictions must be vacated.”

[¶ 40.] The majority opinion acknowledges at ¶ 16 that “the State concedes in its brief that the trial court should have only entered two convictions ... rather than six.” Despite that clear language that the trial court erred and “wrongly convicted” Chavez four times, the majority opinion refuses to bite the,bullet and REVERSE the trial court. It attempts to avoid the inevitable by simply “affirming in part” and remanding to vacate the “surplus assault convictions.”

[¶ 41.] I respectfully submit that we must “bite the bullet” and tell the trial courts of this state that, at least from now on, they must do it right the first time or they will have to do it over until they do it right.

[¶ 42.] If the sentences are wrong and must be vacated, simple logic tells us that the convictions are wrong and must be vacated by reversal. Consequently, the instructions on which these convictions were based were wrong because they failed to clearly provide in the alternative. If the charges did not clearly provide in the alternative, they too were wrong, and the defendant has been improperly overcharged, and if prejudiced thereby, would deserve a new, fair trial.

      . A P-90 is a defense weapon. The rounds of ammunition used in a P-90 are light weight, and lose energy when they hit something so that "instead of having the point of the bullet drilling through wall, after wall, when it hits the next wall ... it doesn’t have the point to get it through the next wall.” This prevents the bullets from going places officers do not want them to go.

      . Chavez presented some evidence at trial that it was difficult for him to comprehend what was going on the night the police executed foe warrant because: 1) he was groggy when he awoke; 2) he was taking medication (Darvocet and Indocta); and 3) he had a few alcoholic drinks earlier that day. This, his expert alleged, could have caused confusion and sedation, and "could adversely have affected his ability to interpret the events that were going on.” The State, however, presented evidence that Chavez was not legally drunk and had a very low blood alcohol level, less than ten milligrams per deciliter.

      . The following was the State's request made at the time of the sentencing hearing:
      This state is asking that you impose 15 years in the South Dakota State Penitentiary for each count of aggravated assault on a law enforcement officer and that would be counts 3 and 4. The State is also asking that you impose the mandatory minimum, 5 years, for the first conviction of a commission of a felony while armed with a firearm, count 7 in the indictment. And the State is also asking that you impose the mandatory minimum of 10 years for a second conviction of the commission of a felony while armed with firearm, count 8 in the indictment. And the State is asking that these sentences run consecutive. In the State's opinion, Your Honor, this is a fair and just sentence.

      . It should be noted that “[it] is permissible ... to charge in separate counts the commission of the same offense in different ways in order to meet the evidence which may be adduced.” State v. Teutsch, 80 S.D. 462, 468, 126 N.W.2d 112, 115 (1964). Additionally, "if a defendant is convicted on two counts, relating to a single offense, a general sentence may be imposed.” Id. Here, neither the sentencing transcript, nor the judgment and sentence, shows a general sentence was imposed in this case.