August 25, 1976
Mr. Cameron D. Clausen
Secretary-Treasurer
State Board of Funeral Services
Burke, South Dakota 57523
OFFICIAL OPINION NO. 76-81
State Board of Funeral Services jurisdiction
Dear Mr. Clausen:
You have requested an official opinion from this office in regard to the following questions:
QUESTION NO.1. Does the South Dakota State Board of Funeral Services have the jurisdictional right to enforce the provisions of SDCL 36-19-14 upon the designated Indian reservations within the State of South Dakota?
QUESTION NO.2. Does the South Dakota State Board of Funeral Services have the jurisdictional right to enforce the provisions of SDCL 36-19-14 upon Indian trust land outside the designated reservation areas in South Dakota?
QUESTION NO.3. Does the South Dakota State Board of Funeral Services have the jurisdictional right to enforce the provisions of SDCL 36-19-14 upon land that was formerly an Indian allotment, but is now patented and subject to real estate taxes?
QUESTION NO.4. Does the South Dakota State Board of Funeral Services have the jurisdictional right to enforce the provisions of SDCL 36-19-14 upon Hutterite, Mennonite or other colonies of this type?
SDCL 36-19-14 provides:
No person shall embalm any dead body or practice embalming, or direct or supervise funerals, practice funeral service, or maintain a funeral establishment in the state of South Dakota, without being licensed by the state board of funeral service.
In response to your first question, I would refer you to the case of Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1958), wherein the United States Supreme Court discusses the limits of state powers, such as those of your board, over Indians on a reservation. This decision is clear authority, I believe, that the law denies your board jurisdiction to enforce this state law on an Indian reservation against Indians or Indian businesses. Congress has not granted any power to your board to exercise regulatory powers over Indians or Indian businesses on the reservation, and in the absence of such authority the Williams case clearly prohibits your board from interfering with the Indians' right of self-government on the reservation. The board does, however, have authority to enforce their laws and rules against non-Indians who live on the reservation so long as such non-Indians do not work for the tribe or for an Indian engaged in the funeral service business.
In regard to your second question, the answer is also NO. Indian trust lands outside the boundaries of present designated reservations are also outside the scope of jurisdiction of your board insofar as Indians and Indian businesses are concerned. The case of Mescalero Apache Tribe v. Jones, 411 U.S. 145, held in part that the state of New Mexico was not authorized to impose a use tax on improvements on Indian trust lands outside the boundaries of the tribe's reservation. There may be some factual differences between the type of "trust property" you refer to and the "trust property" in the Mescalero case, but these differences do not make a difference as to the answer here. Indian trust land, even outside the boundaries of a reservation, is, in this instance, not subject to the jurisdiction of your board insofar as Indians and Indian businesses are concerned.
In regard to your third question there are three separate principles to establish. First of all, if the land involved was formerly allotted land, but now is not within a reservation, your board has authority over anybody, Indians and non-Indians, in the enforcement of the above cited statute. Secondly, your board would also have jurisdiction if fee patent land is involved and such land is within the boundaries of a recognized reservation and if the land is owned by non-Indians. Finally, if the land in question is within the reservation, and if an Indian owns or operates such land, it makes no difference whether it is allotted or fee patent land. Your board has no jurisdiction over Indians or Indian businesses in this situation.
In response to your fourth question, I believe the answer is YES. The first amendment to the United States Constitution, by reason of the fourteenth amendment to the United States Constitution, prohibits states from establishing a religion or prohibiting its free exercise, Zorach v. Clauson, 96 L. Ed. 954. The question in this area, then, becomes one of determining if the enforcement of SDCL 36-19-4 (as to Hutterites, etc.) infringes in an unconstitutional manner on the free exercise of their religion.
In the case of Wisconsin v. Yoder, 32 L. Ed. 2d 15, the United States Supreme Court held that the Wisconsin compulsory school attendance law violated the "free exercise" guarantee of the first amendment by requiring Amish children to meet certain state regulatory standards. The following language from that case is worth noting here:
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests . . .
But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers.
This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order or welfare has been demonstrated or may be properly inferred.
I do not believe the standards explained above lead to the conclusion that your enforcing SDCL 36-19-4 against religious communities such as Hutterites necessarily violates their constitutional rights. I believe this is particularly true with respect to the portions of SDCL 36-19-4 which involve public health and safety considerations. Whether a direct public health or public safety function is served by all portions of the above cited statute in a sufficient degree to lead a court to find that no unlawful restrictions on the "free exercise" of religion is involved is a speculative matter I really cannot determine at this time. The more closely the regulated function is to a public health and safety area, however, the more easily justifiable the regulation appears. What a court would do with a given set of circumstances, however, I cannot determine.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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