Sovereign Indian Nations and the ABC
(Or: Why can the ABC Regulate Alcohol Sales on Indian Reservations?)
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Published
in Indian Country Today
By Ralph Barat Saltsman
With Stephen Warren Solomon and Stephen Allen Jamieson
Attorneys at Law
Rules for wine in the sovereign nation of France are determined by the French.
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. Indian tribes in American are sovereign nations, or so we are told.
So, in California do sovereign Indian nations define their own rules for license
applications sales. No. Does the ABC have authority to regulate alcohol sales in
sovereign Indian nations? Yes. But how can that be?
Each of the fifty U.S. states may enact their own liquor regulations. All
sovereign nations may also, from no laws to no liquor.
The relationship between the United States government and Indian nations
south of Canada and north of Mexico is “sovereign-to-sovereign,” and
Congress is authorized by the Constitution to regulate commerce “with the
Indian tribes” (107 Harv.L.Rev. 381 Dec. 1993). Why then does the State of
California Department of Alcoholic Beverage Control have jurisdiction over the
sovereign nations within its boundaries?
While an Indian Tribe in California may, with little or no local
intervention, build a casino of unlimited size and expense, may construct and
staff a fire department, police department, medical facilities and sophisticated
libraries and school systems that Indian Tribe cannot sell alcoholic beverages
unless it has been granted that authority by the ABC following the same
application process with which licensees are so familiar.
In many municipalities, a Conditional Use Permit must be granted before the
ABC can issue that license. On the reservation, with exceptions set by compact,
the Tribe dictates exclusively what will be built and how and where and what
that site’s uses will be. However, before alcohol is sold, an ABC license is
required. Since an ABC license application process is necessary, Indian tribe
applicants frequently find themselves surrounded by angry protestors who 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 reservation.
Protesting neighbors have no other realistic forum to complain about any of that
and complain anyway, while Indians frequently voluntarily try appeasement. For
example, on Tuesday May 6 in Sonoma County:
An overflow crowd packed a town hall meeting Tuesday to hear
how they can stop or contain an (sic) casino proposed at Sonoma's doorstep.
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 hands. (May 7, 2003, Press Democrat)
Meanwhile, in San Bernardino on Monday the 6th of May:
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 meets Wednesday. (May 7, 2003, Press-Enterprise)
But where hostile neighbors have no genuine way to halt construction of a
casino, they can protest the liquor license application. And they do. Sometimes
in a coordinated fashion.
When Indian nations entered into Eighteenth and Nineteenth Century treaties
with the new United States, these were contracts dictated by a conquering power,
negotiated and written in a language foreign to the Indians. But in Worcester
v. Georgia (United States Supreme Court, 1832) Chief Justice John Marshall
opined that Indian 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 (107 Harv. L. Rev. at page
402).
The lines of division between state or federal law and tribal authority are
not always easily discerned. In FPPC v. Agua Band of Cahuilla Indians
(Superior Court, Sacramento County February 2003), the court found that
California has jurisdiction to pursue an Indian tribe for state election
campaign disclosure violations. In Flynt v. California, (Court of Appeal
2002) the California – Tribal gambling compact was upheld as constitutional so
Indian tribes continue casino gambling under the compact. Civil litigation
against an Indian nation may be barred by sovereign immunity unless such
immunity is waived (as part of a contract, for example).
About 150 years after Worcester, the United States Supreme Court in Rice
v. Rehner, (1983) upheld California’s right to require an ABC 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. Recall that by the constitution, Congress regulates commerce with
Indian tribes. The Ninth Circuit Court of Appeal opined that Rehner did not need
an ABC license to purchase alcohol from wholesalers and sell alcohol from her
store on the Reservation. Justice O’Conner in a six – three decision
disagreed. The Court founded its decision on three concepts: 1) Tradition “has
not recognized a sovereign immunity or inherent authority in favor of liquor
regulation by Indians.” 2) The Courts have found concurrent jurisdiction at
state and federal levels for “the use and distribution of alcoholic beverages
in Indian country.” 3) “Congress has authorized state regulation over Indian
liquor transactions by enacting” certain federal statutes.
In dissent, Justice Blackmun noted that a “State could not require” a
state cigarette sales permit on an Indian reservation and “could not impose a
use tax on personalty installed in ski lifts at a tribal resort.” The Court
majority held that history and tradition and federal statute all lined up in
favor of state regulation of alcohol sales on Indian reservations; therefore the
State of California could require an ABC license before alcohol sales could
occur on Indian territory. The dissent pointed to historical and pervasive
federal regulation of alcohol matters pertaining to Indian tribes. Justice
Blackmun argued, “Because nothing in the language or legislative history of
[Federal Statute] 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 Belknap Indian Community v. Mazurek (1994) the
Ninth Circuit Court of Appeal cited Rice v. Rehner and upheld Montana’s
authority to prosecute criminal violations of state liquor law indicating:
“…[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
[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 Federal
Constitution. But the Constitution grants no authority to states with respect to
sovereign nations sited within state boundaries. The Twenty-First Amendment to
the United States Constitution reads, in part:
“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 prohibited.”
Indian tribes are neither states, nor territories or possessions of the
United States. The Twenty-First Amendment could have but does not make reference
to Indian reservations. Until 1983 and Rice v. Rehner, nothing authorized
California to intrude into Indian sales of alcohol on reservations
If the Indian – Federal treaties are really grants of authority from Indian
Tribes to the United States with all not granted being reserved to the tribes, Rice
v. Rehner is wrong. The Indian tribes did not clearly give government power
over alcoholic sales and dispensation on Indian reservations. None of the bases
for imposing state jurisdiction over alcohol sales in Rice v. Rehner can
stand up under honest scrutiny.
If Indian tribes in California are sovereign nations, state agencies
including the ABC should not be involved in Indian affairs unless the Tribes
clearly authorize that intrusion. Someone might just convince a court of that
injustice one day. Or perhaps the key resides in Sacramento by initiative or
legislation. There is precedent for Indians ejecting the government from places
the government doesn’t belong, so don’t bet against the Indians.
"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."
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