Alcohol Problem - Native American Nations Should Set
Their Own Liquor-Licensing Rules
Los Angeles Daily Journal, Wednesday, June
18, 2004 pg. 6
By Ralph Barat Saltsman, Stephen Warren Solomon and Stephen
The French determine rules for wine in France. The United
Kingdom defines how much beer really is in a pint. Individual
provinces decide whether to allow sales of alcoholic beverages to
19-year-old Canadians. Each of the 50 states in America may enact
their own liquor regulations.
Native American tribes in the United States are sovereign
nations - or so we are told. In California, however, these nations
cannot define their own rules for alcoholic beverage license
applications and sales. The state Department of Alcoholic Beverage
Control regulates alcohol sales on Native American lands. Why does
this state agency have jurisdiction over sovereign nations within
The Constitution authorizes Congress to regulate commerce
"with the Indian tribes." Article 1, Section 8, Clause
3. The relationship between the U.S. government and the tribal
nations is "sovereign to sovereign." Philip P. Frickey,
"Marshalling Past and Present: Colonialism,
Constitutionalism, and Interpretation in Federal Indian Law,"
107 Harv.L.Rev. 381 (Dec. 1993).
While a tribe in this state may, with little or no local
intervention, build a casino of unlimited size and expense or
construct and staff a fire department, police department, medical
facility, library or school system, that tribe cannot sell
alcoholic beverages unless the department has granted it a
license, following the same application process as other
In many municipalities, the city must grant a conditional-use
permit before the department can issue that license. On the
reservation, with exceptions set by compact, the tribe dictates
exclusively what will be built, how and where it will be built,
and what the site's uses will be.
However, before alcohol is sold, a license is required. Native
American tribe license applicants frequently find themselves faced
with angry protesters. The protesters don't want the reservation
adjacent to their land, don't want the tribe in the neighborhood,
don't want the Las Vegas-style casino within view and don't want
casino guests driving on "their" streets to and from the
Because the tribe has the exclusive authority to dictate what
will be built on reservation land, protesting neighbors have no
realistic forum in which to complain. Thus, when they want to halt
construction of a casino, they protest the liquor license
application - sometimes in a coordinated fashion. The tribes
frequently try appeasement.
A May 7 Press-Democrat article described a recent clash in
Sonoma County: "An overflow crowd packed a town hall meeting
Tuesday to hear how they can stop or contain a casino proposed at
"With more than 400 people in attendance, Sonoma's community
center was so jammed that some stood outside and listened through
open windows. The overriding sentiment was made apparent when
county Supervisor Valerie Brown, who organized the meeting, asked
for a show of hands as to how many would join a new organization
called 'No Las Vegas in Sonoma.' Nearly everyone raised their
Meanwhile, a May 7 Riverside Press-Enterprise article described
a similar scene in San Bernardino: "Neighbors of the San
Manuel Band of Mission Indians asked San Bernardino leaders at
Monday's City Council meeting for an opportunity to observe talks
between the city and the tribe about its casino expansion.
"San Bernardino Mayor Judith Valles told neighbors she's
confident the tribe will address many of their concerns, based on
a two-hour meeting Friday with tribal leaders. Both she and City
Attorney James Penman noted, however, that they're not sure
whether the tribe's council will approve the measures when it
The 18th and 19th century treaties that the Native American
nations entered into with the United States were contracts
dictated by a conquering power, negotiated and written in a
language foreign to them. But in Worcester v. Georgia, 31 U.S. 515
(1832), Chief Justice John Marshall held that the treaties were
not acts of surrender but were reservations by the tribes of all
rights not clearly granted to the United States. Hence, the term
"reservation" for retained tribal lands. Frickey, at
The divisions between state or federal law and tribal authority
are not always easy to discern. In Fair Political Practices
Commission v. Agua Band of Cahuilla Indians, 02-A54545 (Sacramento
County Super. Ct. Feb. 27, 2003), the court found that California
has jurisdiction to pursue a tribe for state election-campaign
Flynt v. California, 104 Cal.App.4th 1125 (2002), upheld the
state-tribal gambling compacts as constitutional. Tribes thus
continue casino gambling under the compact.
About 150 years after Worcester, the Supreme Court in Rice v.
Rehner, 463 U.S. 713 (1983), upheld California's right to require
an alcoholic beverage control license before alcohol could be sold
on an Indian reservation.
Eva Rehner was a federally licensed trader, operating a general
store on the Pala Indian reservation. The 9th U.S. Circuit Court
of Appeals held that Rehner did not need a license to purchase
alcohol from wholesalers and sell alcohol from her store on the
Justice Sandra Day O'Connor, writing for the majority,
disagreed. The court based its decision on three factors: First,
tradition "has not recognized a sovereign immunity or
inherent authority in favor of liquor regulation by Indians."
Second, the courts have found concurrent jurisdiction at state and
federal levels for "the use and distribution of alcoholic
beverages in Indian country." Finally, "Congress has
authorized state regulation over Indian liquor transactions by
enacting" certain federal statutes.
The majority held that history, tradition and federal law all
lined up in favor of state regulation of alcohol sales on Indian
reservations; therefore, California could require a license before
alcohol sales could occur on tribal territory.
Justice Harry A. Blackmun's dissent noted that a "State
could not require" a cigarette sales-permit on an Indian
reservation and "could not impose a use tax on personally
installed ski lifts at a tribal resort." The dissent pointed
to historical and pervasive federal regulation of alcohol matters
pertaining to tribes.
Blacken argued, "Because nothing in the language or
legislative history of [federal law] indicates any intent to
confer licensing authority on the States, I would hold that
California's attempt to require Indian traders to obtain state
liquor licenses is pre-empted by federal law."
More recently, in Fort Balkan Indian Community v. Mazurka, 43
F.3d 428 (1994), the 9th Circuit cited Rice and upheld Montana's
authority to prosecute criminal violations of state liquor law:
"[T]he Rice court found that it was not necessary that
Congress expressly indicate that the State had jurisdiction to
regulate liquor ... The same reasoning applies here. Given the
unique context of liquor regulation and enforcement, it would not
be a severe erosion of tribal sovereignty to interpret [the
federal statute] as authorizing the prosecution of Indians in
state court for liquor violations on reservations."
States derive their independent power to regulate alcohol from
the Constitution. But the Constitution grants no authority to
states with respect to sovereign nations sited within state
boundaries. The 21st Amendment reads: "Section 2. The
transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
Native American tribes are neither states, nor territories nor
possessions of the United States. The 21st Amendment could have,
but does not, make reference to Indian reservations. Until 1983
and Rice, nothing authorized this state to intrude into Native
American sales of alcohol on reservations.
If the federal treaties are really grants of authority from
tribes to the United States, with all rights not granted being
reserved to the tribes, then Rice is wrong. The tribes clearly did
not give government power over alcoholic sales and dispensation on
reservations. None of the bases for imposing state jurisdiction
over alcohol sales in Rice can stand up under honest scrutiny.
If tribes in California are sovereign nations, state agencies
should not be involved in tribal affairs unless the tribes clearly
authorize that intrusion. Someone just might convince a court of
that injustice one day.
Perhaps the key resides in Sacramento, with an initiative or
legislation. There is precedent for Native Americans ejecting the
government from places that the government doesn't belong - so
don't bet against the tribes.
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."