April 15, 1986

Bob D. Voeltz 
Administrator 
State Electrical Commission 
125 West Capitol 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 86-11

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