California Surveyors Forums

http://www.courts.ca.gov/opinions/documents/E051769.PDF

The link...

I'm not able to post the PDF file from my iPad.

This case was certified for publication only one month ago and it appears that for the State of CA, it is a case of first impression on the effect of tribal soverieignty on the professional/vocational state licensing requirements. Note that only two other cases, one an AZ case and the other a Federal case originating in ND, were cited on this particular point.

I think that the actual application on this point had in the past, been driven mostly by the various federal agencies hiring private consultants on federally administered lands. It will be interesting to see how the Board, the tribes, and the various federal agencies will address state licensing requirements in similar situations in the future.

I suspect that there will be little proactive change. Some federal agencies might, as a matter of policy insist on hiring only properly licensed consultants as a practical matter of further assurance of actual competence. But I believe they can, and many will hire without regard to state licensure for work done completely within federally controlled lands/locations. And there will be little the Board will be likely to do about it.

Many tribes take advantage of the murkiness of the law where state and tribal sovereignty overlap/meet/clash. The statutory law is not at all clear on the separation and limits of sovereign rights, responsibilities, and jurisdiction between states and tribes. The unique type of sovereignty of the tribes, in which the tribes and their members have full citizenship to the US and to the state in which their reservation exists, and yet have various exemptions from certain responsibilities of citizenship under certain specific circumstances, was not very well conceived or design in the law. Nearly all of the activities which occur under both state and tribal sovereignty, or where the parties are subject to both sovereignties had to, or still must be litigated in order to provide clarity where the statutory law lacks it and in which Congress refuses to provide it. Suprisingly little has actually become relatively settled law.

Those tribes which are more prudent will or already do, as a matter of policy, hire only properly licensed consultants. Others more concerned with up front apparent costs will continue to hire without regard to licensure. If the state attempts to step in and educate the tribes on the need to hire only licensed contractors and consultants, many of the tribes will educate the state on how their sovereignty exempts them from having to consider state licensing regulations. If that matter got litigated, I wouldn't be willing to place any money on the outcome supporting such a requirement. I can imagine a ruling that would boil down to the tribes having the option to hire with or withour regard to state licensing requirements and yet retaining the right to seek recourse in State court against an unlicensed contractor or consultant even though they hired the contractor or consultant with the full knowledge of a lack of state license.

I've only skimmed the ruling, but there are several other interesting issues that were argued and decided. I saw discussion of the separation, or lack thereof between the corporate entity that is the company and the individual person who is the licensee, and how that may or may not affect licensing responsibilities. I'll have to go back and read it later.