August 25, 1976

Mr. Ronald Reed, Secretary
Department of Education and
  Cultural Affairs
New State Office Building 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-80

Are out-of-state post-secondary institutions offering educational programs at Ellsworth Air Force Base required to comply with SDCL 13-48 and rules promulgated by the Secretary of Education and Cultural Affairs?

Dear Mr. Reed:

You have requested an opinion from this office in regard to the following question:

QUESTION. Are out-of-state post-secondary institutions offering educational programs at Ellsworth Air Force Base required to com­ply with SDCL 13-48 and rules promulgated by the Secretary of Education and Cultural Affairs?

The following are particularly relevant statutes in regard to the question you raise.

SDCL 13-48-7.1. No post-secondary institution, unless exempt from regulation under the provisions of § 13-48-3, shall offer courses or programs of instruction in this state and no person representing a school or organization offering courses of programs of instruction in this state shall be issued a solicitor's permit under this chapter until such post-secondary institution complies with rules established by the secretary. The secretary shall have the authority to establish rules concerning quality of education, ethical and business practices, health and safety, and fiscal responsibility, and to protect against sub-standard, transient, unethical, decep­tive, or fraudulent institutions and practices.

SDCL 13-48-20. Any act or omission or violation of §§ 13-48-1 to 13-48-19, inclusive, shall be a misdemeanor and any person found guilty of such a violation shall be liable to a fine of not to exceed five hundred dollars, or a term of imprisonment not to exceed nine­ty days in the county jail, or both such fine and imprisonment.

SDCL 1-1-3. The people of this state by their Legislature consent to the purchase or condemnation, by the United States, in the manner prescribed by law, of any tract of land within this state owned by any natural person or private corporation, required by the United States for any public building, public work, or other public pur­pose; provided that in the case of public buildings such tract shall not exceed ten acres in extent.

SDCL 1-1-4. Jurisdiction is ceded to the United States over any tract of land acquired under the provisions of § 1-1-3 to continue only so long as the United States shall own and occupy such tract. During that time the same shall be exempt from all taxes, assessments, and other charges levied or imposed under authority of the state.

SDCL 1-1-5. The consent and jurisdiction mentioned in §§ 1-1-3 and 1-1-4 are given and ceded upon the express condition that all civil and criminal process, issued from the courts of this state, may be served and executed in and upon any tract of land so acquired by the United States, in the same manner and by the same officers as if such purchase or condemnation had not been made, except in so far as such process may affect the real or personal property of the United States.

Pursuant to Article I, § 8 of the United States Constitution, the United States has the authority to exercise exclusive-legislative jurisdiction over all lands ceded by the states, and accepted by the Congress, and to exercise ex­clusive legislative jurisdiction over all places purchased with the consent of the Legislature of the state in which the same shall be found, for the erection of forts, magazines, arsenals, dock yards and other needful buildings. Under the authority of this constitutional provision and pursuant to SDCL 1-1-3 and SDCL 1-1-4, the Ellsworth Air Force Base was ceded to the United States government. Within this federal enclave, the federal govern­ment has exclusive legislative jurisdiction and apart from legislation to the contrary, your state agency has no authority to assert its state powers into areas regulated completely by the federal government.

In 1948, the United States Congress passed the Assimilative Crimes Act which is of importance in regard to the question you raise. Title 18 USCA §§ 7 and 13 provide that whenever a person is guilty of an act or omission which, although not made punishable by enactment of the Congress, would­ be punishable if it was committed or omitted within the jurisdiction of the state in which the federal enclave (such as Ellsworth Air Force Base) is situated, such person shall be guilty of a like offense and subject to a like punishment. Such offenses are federal crimes and are prosecuted in federal courts by federal authorities. People ex rel. Ray v. Martin (1944), 60 N.E. 2d 541, Affd. 90 L. Ed. 261.

Although the principle seems to be well established that states cannot en­force their regulations on federal enclaves which are subject to the "ex­clusive" legislative power of Congress, the above opinion is not inconsistent with that principle. Were it not for the provisions of 18 USCA, § 13, the provisions of SDCL 13-48 would not be enforceable on federal enclaves such as Ellsworth Air Force Base. The fact that Congress has passed the Assimilative Crimes Act provides for exceptions to the general principle that state statutes and regulations are not enforceable in federal enclaves subject to the "exclusive" legislative power of Congress. Congress has by the Assimilative Crimes Act opened the door to making statutes such as SDCL 13-48-19 applicable to conduct within the confines of federal enclaves such as Ellsworth Air Force Base. The power to enforce SDCL 13-48-19 on Ellsworth Air Force Base does not, however, rest with your state agency. That is a matter for federal authorities.

Because of the delicate legal questions raised by the situation you present, I would suggest that consideration be given to consulting the authorities at the Ellsworth Air Force Base and seek to work out a cooperative under­standing to the effect that the base would not allow post-secondary institu­tions to "operate" on the base unless there was compliance with SDCL 13-48. I do know that in the past there have been arrangements of this nature which have been helpful in working out certain similar "jurisdic­tional" problems.

If this office can be of any assistance in this regard, please feel free to con­tact us.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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