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 during AG Mark Meierhenry's tenure (1979-1987). 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 of Indian country jurisdiction has been significantly developed since the early 1980s by U.S. Supreme Court cases including Montana v. United States (1981, decided before this opinion but with subsequent elaboration), Strate v. A-1 Contractors, Nevada v. Hicks, and others. The non-Indian-on-fee-land jurisdiction analysis has become more nuanced and may not always favor state authority. Modern questions about state regulatory jurisdiction on reservations should be verified against current federal Indian law and any applicable tribal-state cooperative agreements.
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: Federal Indian law treats reservations as primarily under tribal and federal jurisdiction. State authority over Indian conduct on the reservation is limited by Public Law 280 (which gave some states civil/criminal jurisdiction; not generally South Dakota), by the federal preemption doctrine, and by the inherent sovereignty of tribes. The default rule is that state regulatory authority does not reach tribal members on the reservation.
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 the regulatory scheme runs into federal Indian law when applied on a reservation. The American framework for jurisdiction over reservations distinguishes (in rough terms):
1. Tribal members on the reservation: primarily tribal and federal authority
2. Non-Indians on trust land: complicated, varies by regulation
3. Non-Indians on fee land within the reservation: generally subject to state law
4. Anyone outside the reservation: state law
Meierhenry's 1983 opinion sorted the two enforcement targets into categories (1) and (3). He assumed the non-Indian's land was fee land, which produced state jurisdiction. He treated the Indian homeowner under category (1), which excluded state jurisdiction.
The federal case law on these jurisdictional lines is more nuanced today than in 1983, and Montana v. United States (1981) had already begun to articulate the modern framework for non-Indians on fee land. But the basic asymmetry Meierhenry described (state reaches non-Indians on fee land; state does not reach Indians on the reservation generally) remains broadly correct.
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
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