statute governing Indian liquor licenses
How later courts described this case
- statute governing Indian liquor licenses
Written by the judges who cited it.
The opinion
GOODWIN, Circuit Judge,
dissenting.
The result reached by the majority appears to be equitable. It evidences a scholarly approach to some complex issues of divided sovereignty, but the decision seems not to be consistent with either the text of the relevant law or legislative history.
When the Twenty-First Amendment repealed the federal criminal penalties for the sale of liquor the amendment took care to protect the regulatory interests of the several states. United States Constitution, Amendment XXI, Section 2 (1933). Some states chose to remain “dry.”
All Indian country remained dry by federal law; and for the next twenty years it remained a crime for anyone to sell liquor in Indian country. See 18 U.S.C. § 1154 .
When Congress, in 1953, conditionally lifted the criminal penalties which had been imposed upon the liquor traffic among Indians it gave Indians some kind of parity with the nation’s citizens who are not Indians. Congress indicated no intent to give Indians greater rights than other citizens enjoy with regard to liquor.
Congress took care to lift the criminal penalty only so long as the newly legalized “transactions” would be in conformity with all state laws. 18 U.S.C. § 1161 . All the discussion in the majority opinion about “conferring” or “not conferring” jurisdiction upon the states is interesting but seems unresponsive to the purpose of the statute.
The statutory language is the most troublesome in four states within this circuit: Washington, Oregon, Idaho, and Montana, so-called monopoly states. Washington since 1933 has made contraband all liquor that is not in conformity with RCWA 66.-32.010 1
Under the majority decision, Indians whose reservations lie within the boundaries of the State of Washington will have the status of super citizens. They, and they alone, can buy and import at free market prices any liquor they desire. All other citizens of the State of Washington who desire to purchase liquor must join the queue at the government store and select from a monopoly inventory at a monopoly price. Washington shares with Oregon some of the nation’s highest retail liquor prices. (Alaska enjoys the highest prices.) Washington has a special 15 percent state sales tax on liquor sold in state stores. Other monopoly states simply take their monopoly profit in lieu of taxes. The Distilled Spirits Council of the United States publishes periodic price information for the trade. According to the Council’s report for the last half of 1981, a popular blended American whiskey which sells for an average retail price of $5.60 per ml. in Arkansas and $6.25 in California sells for $7.20 in Washington. 2 I doubt that Congress intended by § 1161 to pave the way for one favored group of citizens to break the state monopolies that are so cherished by money hungry legislatures.
On the merits, this policy may be an idea whose time has come, but I would leave its implementation to the legislative branch. I would affirm No. 77-2409 and vacate No. 79-4403 and No. 79-4404.
. RCWA 66.32.010:
“Except as permitted by the board, no liquor shall be kept or had by any person within this state unless the package in which the liquor was contained had, while containing that liquor, been sealed with the official seal adopted by the board, except in the case of:
(1) Liquor imported by the board; or
(2) Liquor manufactured in the state for sale to the board or for export; or
(3) Beer, purchased in accordance with the provisions of law; or
(4) Wine or beer exempted in RCW 66.12.-010.
. Distilled Spirits Council of the United States, Incorporation, Economics and Statistics Division, December 17, 1981.