On a South Dakota Indian reservation, an electrical inspector found two people doing their own home wiring under SDCL 36-16-15's homeowner exemption: one was non-Indian, the other was Indian. The state requires a wiring certificate under ARSD 20:44:04:01(2). Both refused, saying the state had no jurisdiction on the reservation. Does the State Electrical Commission have jurisdiction over either?

Plain-English summary

South Dakota requires people doing electrical work to be licensed (SDCL 36-16-1). The state carves out a homeowner exemption (SDCL 36-16-15): a property owner doing his own wiring does not need an electrician's license. The State Electrical Commission's rule ARSD 20:44:04:01(2) requires the homeowner to purchase a wiring certificate even when relying on the homeowner exemption.

Inspector Voeltz found two people doing their own wiring on a South Dakota reservation the same day. One was non-Indian. The other was Indian. Both refused to buy a wiring certificate, arguing the state's electrical commission had no jurisdiction over reservation activity.

AG Meierhenry separated the analysis by the status of the worker.

For the non-Indian on the reservation: State jurisdiction over non-Indians on the reservation generally exists for matters like building codes and electrical permits. Meierhenry assumed for this opinion that the non-Indian's home sits on fee land (land that has been opened to settlement and is usually owned by non-Indians). On fee land, state jurisdiction is well-established. The Commission therefore had authority to require the non-Indian to obtain the wiring certificate.

For the Indian on the reservation: Generally, state jurisdiction does not extend to Indians on the reservation. The state cannot impose its civil regulatory requirements directly on tribal members on tribal land. The Commission has no authority to require the Indian homeowner to obtain the certificate.

The opinion is short and turns on a long-running doctrinal distinction between state authority over non-Indians on reservation fee land (generally available) and state authority over Indians on the reservation (generally not available).

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The federal law governing state regulatory jurisdiction in Indian country has developed considerably since the early 1980s, and the line between state authority over non-Indians on fee land and the absence of state authority over tribal members on the reservation has been refined by later court decisions. Modern questions about state regulatory jurisdiction on reservations should be checked against current federal Indian law and any applicable tribal-state agreements before relying on this opinion.

What the opinion meant at the time

For the State Electrical Commission, the opinion provided a workable, if asymmetric, enforcement rule. Inspectors could pursue non-Indians on the reservation for permit violations but had to stand down when the worker was Indian.

For non-Indians living on reservation fee land, the opinion confirmed that they were subject to state electrical permitting rules just like residents anywhere else in the state. The reservation address was not a jurisdictional safe harbor.

For Indians doing their own home wiring on the reservation, the practical answer was that state inspectors could not compel compliance with the wiring certificate requirement. Whether the tribe itself had analogous building or electrical codes was a separate question the opinion did not reach.

For tribal governments, the opinion was a reminder that the state recognized the jurisdictional limits on its own authority and did not attempt to assert reach over tribal members on the reservation.

Common questions

Q: What is fee land on a reservation?
A: Fee land is land that was allotted out of trust ownership and is held in fee simple, the same way most non-reservation private land is held. During the late 19th and early 20th centuries the federal government opened large portions of reservations to settlement, and the resulting land patterns produced "checkerboard" reservations with a mix of trust land (tribal or individual Indian) and fee land (often non-Indian-owned). State jurisdiction historically extends further onto fee land than trust land.

Q: Why does state jurisdiction generally not reach Indians on the reservation?
A: Under federal Indian law, reservations are primarily under tribal and federal jurisdiction, and a state's regulatory authority does not ordinarily reach tribal members on the reservation. The opinion stated that general rule without elaborating on its federal-law basis; it simply concluded that the Commission could not require the Indian homeowner to obtain a wiring certificate.

Q: What if the non-Indian was on trust land?
A: The opinion explicitly assumed fee land. State jurisdiction over a non-Indian on trust land is more complex and varies by the type of regulation, the federal preemption status, and the tribal interest involved. The opinion did not analyze that scenario.

Q: Could the tribe issue its own electrical permits?
A: Yes, tribes can adopt their own building and electrical codes and require their own permits. The opinion was about whether the state's permit was required; it did not address tribal authority to require a separate tribal permit.

Q: What if the Indian had moved to fee land within the reservation?
A: The opinion did not analyze a tribal member on fee land within the reservation. The general rule has been that tribal members retain protection from state regulatory authority while on the reservation regardless of land status, though this has been refined by subsequent federal case law.

Q: Did the inspector face any criminal liability for attempting to enforce on the Indian homeowner?
A: The opinion did not raise that question. The practical answer was that he should not pursue enforcement, not that he had committed any wrong by asking.

Background and statutory framework

South Dakota's electrical safety regime is a standard state regulatory licensing scheme. SDCL 36-16-1 makes engaging in electrical work without compliance with the chapter a Class 2 misdemeanor. SDCL 36-16-15 provides the homeowner exemption from the licensure requirement. SDCL 36-16-34 applies the Class 2 misdemeanor to anyone who fails to register or obtain a permit.

The Commission's authority to require even homeowners to obtain a wiring certificate (via ARSD 20:44:04:01(2)) is grounded in SDCL 36-16-12's general rulemaking grant. The certificate is essentially an inspection fee that lets the Commission ensure even homeowner-installed wiring meets minimum safety standards.

The complication is that this state regulatory scheme runs into federal Indian law when applied on a reservation. The opinion sorted the two people the inspector found into two categories. The non-Indian, whom the AG assumed was on fee land (land "opened to settlement and usually owned by non-Indians"), fell under state jurisdiction, so the certificate requirement applied. The Indian homeowner on the reservation fell outside state jurisdiction, so the requirement did not apply.

That asymmetry, state authority reaching non-Indians on reservation fee land but not tribal members on the reservation, is the whole of the opinion. The AG did not analyze non-Indians on trust land, tribal members on fee land, or the federal case law behind the rule; those scenarios were not before him.

Citations and references

Statutes:

• SDCL 36-16-1 (electrical work license requirement)
• SDCL 36-16-12 (Commission rulemaking authority)
• SDCL 36-16-15 (homeowner wiring exemption)
• SDCL 36-16-34 (permit/registration misdemeanor)

Administrative rule:

• ARSD 20:44:04:01(2) (homeowner wiring certificate requirement)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1160

Original opinion text

Homeowner's wiring exemption on Indian reservation

Dear Mr. Voeltz:

You have asked for an official opinion from this office based on the following facts:

FACTS:

A non-Indian on the reservation was discovered doing electrical wiring under SDCL 36-16-15 (owner exempt from the permit requirement when doing their own work). The electrical inspector asked the non-Indian to purchase an owner's wiring certificate as required under ARSD 20:44:04:01(2). The homeowner refused, saying the inspector had no jurisdiction on the reservation.

The same day, the inspector located a job being done by an owner, an Indian on the reservation, and requested a wiring certificate and was told he did not have jurisdiction over this person either.

Based on the above facts, you have asked the following question:

QUESTION:

Does the State Electrical Commission and/or their electrical inspectors have any legal jurisdiction over either of the cases cited above?

State jurisdiction over non-Indians on the reservation generally includes the authority to prosecute such individuals for criminal offenses. SDCL 36-16-34 provides that '[a]ny person who fails to register or obtain a permit as required by this chapter is guilty of a Class 2 misdemeanor.' SDCL 36-16-15 exempts from the permit requirement an individual wiring his own premises. However, SDCL 36-16-1 provides, in pertinent part, that 'it is a Class 2 misdemeanor for any person, firm, partnership or corporation to engage in such a business or such work unless the terms of this chapter are complied with.' Pursuant to the general authority of

SDCL 36-16-12, the Commission has enacted ARSD 20:44:04:01(2) which requires the purchase of a wiring certificate for any wiring done pursuant to the owner's exemption of SDCL 36-16-15. For the purpose of this opinion, I am assuming that the non-Indian's home is located on fee land. Land held in fee has been opened to settlement and is usually owned by non-Indians. Therefore, in response to your question concerning whether the Commission has the necessary jurisdiction to require a non-Indian installing electrical wiring under SDCL 36-16-15 to obtain a wiring certificate, the answer is yes.

Generally, the State's jurisdiction does not extend to Indians on the reservation. Therefore, in response to the second part of your question concerning whether the Commission has the necessary jurisdiction to require an Indian to obtain a wiring certificate, the answer is no.

Respectfully submitted,

Mark V. Meierhenry

Attorney General