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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