INDIANS ‑-INTOXICATING LIQUOR ‑-REGULATION OF LIQUOR SALES ON INDIAN RESERVATION LANDS
Sales of intoxicating liquor on Indian reservation lands covered by 18 U.S.C. §§ 1154 and 1161 must be in accordance with both the provisions of state law and any tribal ordinances governing the subject.
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February 3, 1975
Honorable Gary Grant
State Senator, 11th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 11
Dear Senator Grant:
By recent letter you have asked for our opinion on the following question:
". . . Based upon the January 21, 1975 U.S. Supreme Court ruling that upheld a 1953 federal statute that allowed Indian tribes the power to make their own liquor regulations on reservation land can Indian tribes, in the state of Washington, sell liquor on reservation land and if so can they set a minimum purchasing and consumption age lower than the one prescribed under state statute?"
We answer both parts of this question in the negative.
The United States Supreme Court case to which you have referred isUnited States v. Mazurie, et al., No. 73-1018. Two federal statutes were involved. The first one, 18 U.S.C. § 1154, provides in pertinent part:
"(a) . . . whoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.
". . .
[[Orig. Op. Page 2]] "(c) The term 'Indian country' as used in this section does not include fee‑patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto."
The second federal statute, 18 U.S.C. § 1161, then states that the provisions of the foregoing section, among others,
". . . shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register."
The respondents, Martin and Margaret Mazurie, who operated a bar on the Wind River Indian Reservation in Wyoming, were convicted of violating the first of these two statutes. Although they had obtained a retail liquor license from Fremont county, Wyoming, in accordance with Wyoming law, they had failed to obtain an additional license required by an ordinance adopted by the Wind River Tribe in 1971.
Their conviction was then reversed by the United States Court of Appeals for the Tenth Circuit for the reason that, in the opinion of that court, the term "Indian country" was unconstitutionally vague. U. S. v. Mazurie, 487 F.2d 14 (1973). Following this, the United States Supreme Court granted certiorari, 415 U.S. 947 (1974) and, after hearing arguments by the parties and by the Solicitor General, it issued the January 21, 1975, ruling to which you have referred. By this ruling, and accompanying opinion (a copy of which is enclosed for your immediate reference), the supreme court unanimously reversed the court of appeals and reinstated the convictions of the respondents, holding both § 1154, supra, and § 1161, supra, to be constitutional.
[[Orig. Op. Page 3]] From the foregoing it appears clear to us that this decision does not, as you have speculated, mean that Indian tribes are permitted by federal law to sell liquor on reservation land without a state license or to set a minimum purchasing consumption age lower than that prescribed by our existing state statutes. In order for a liquor sale on Indian country to be legal, notwithstanding the criminal prohibition contained in 18 U.S.C. § 1154, it must, in the express terms of 18 U.S.C. § 1161, take place,
". . . in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction . . ."
In theMazurie case itself, the transactions in question were illegal because, although they had been licensed by the county in accordance with state law, they had not been licensed by the tribe. By the same token, these transactions would have been equally illegal if, although licensed by the tribe, they were not in conformity with the laws of the state in which they occurred.
It is hoped that the foregoing explanation of this case will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General