STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 19, 1975
Ronald J. Schreiner
and Carman H. Sutley, D.D.S.
Acting Secretaries of Health
Department of Health
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-141
Enforcement of sanitation laws on Indian reservations
Dear Gentlemen:
You have requested an opinion based on the following factual situation:
The sanitation and safety program within the Department of Health has responsibility pursuant to SDCL 34-18 for inspections and licensing of all food, lodging and campground establishment in South Dakota. It has been our policy to feel responsible for such establishments on Indian reservations that are operated by non-Indians. However, in recent months we have received strong negative comments about our presence on reservations.
1. Does the Department of Health have jurisdiction to enforce the provisions of SDCL 34-18 within the boundaries of a reservation?
2. If the answer to question number 1 is "YES" does this include all establishments or just those that are non-Indian?
3. If we are to determine Indian ownership, what constitutes "Indian"?
4. In the event legal action is necessary to enforce SDCL 34-18, what help can we expect from the states attorney?
My predecessor in an opinion dated January 18, 1946, was asked the question of whether a hotel located on tribal land and operated by a non-Indian was subject to licensing by the state. In a rather lengthy answer, a copy of which is herewith enclosed, it was stated:
Inasmuch as under the South Dakota law the operation of a hotel without obtaining a license therefor is a criminal offense, I am persuaded that upon the reasoning and under the authorities above stated that a white person or non-Indian operating a hotel on an Indian reservation in South Dakota is amenable to the laws respecting the same. I am unable to see where the application of this law to such a reservation, even though the land upon which the hotel is situated belongs to the United States, an Indian allottee or the tribe would in any manner interfere or encroach upon Indian rights or the authority of the United States.
It is not an attempt to burden Indian lands or the improvements thereon or impinge on the Indians' privileges, but merely a regulatory act under sanitary and health laws of the state.
I concur in that opinion. The United States Government has not preempted the field of licensing and enforcement of health standards regarding food and lodging establishments on reservations. Therefore, the answer to your question number 1 is YES.
I am of the opinion that the answer to your question number 2 is as follows:
In view of the number of decisions denying the state power of taxation over Indian property (see Pourier v. Board of County Commissioners of Shannon County, 157 N. W. 2d 532) and the line of reasoning set forth therein, the state has minimal jurisdiction and power to legislate and control affairs of tribal Indians within reservation boundaries.
The jurisdiction of the State to enforce the provisions of SDCL 34-18 on Indian reservations extends only to establishments "owned" by non-Indians. "Owner" is defined in SDCL 34-18-1(9) as:
the operator, agent, proprietor, manager or licensee whether it be a person, firm, corporation or association.
Thus, an establishment over which an individual failing to meet the qualifications as an Indian exercises dominion or control consistent with the above definition is subject to state regulation.
Your question number 3 asks for a definition of "Indian." The federal courts have generally adopted the following test to determine if a person is to be considered as Indian for purposes of inclusion or exclusion under a particular statute:
(1) the individual must have Indian blood; and
(2) the individual must be regarded as an Indian by the society and in the community in which he lives.
Thus, factors including, but not limited to, enrollment in a tribe and normal place of residence are determining considerations.
The answer to your question number 4 is found in statute. SDCL 7-16-9 states as follows:
7 -16-9. It shall be the duty of the state's attorney to appear in all courts of his county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party.
Further, SDCL 34-18-26 provides for closure of establishments failing to comply with health regulations and requires the state's attorney to take appropriate action for non-compliance.
Respectfully submitted,
William Janklow
Attorney General
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