Appendix — New Mexico v. United States

Supreme Court brief1979

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IN THE

Supreme Court of the United States

October Term, 1978

_------ 78-1781

STATE OF NEW MEXICO, AND JAMES R,

BACA, DIRECTOR, DEPARTMENT OF

ALCOHOLIC BEVERAGE CONTROL,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

JEFF BINGAMAN

Attorney General of New Mexico

THOMAS L. DUNIGAN

Deputy Attorney General

Post Office Drawer 1508

Santa Fe, New Mexico 87501

(505) 827-5521

EK. BARRETT PRETTYMAN, JR.

Hogan & Hartson

815 Connecticut Ave., N.W.

Washington, D.C, 20006

(202) 331-4500

Attorneys for Petitioners

VERGARA PRINTING CO + SANTA FE, NEW MEXICO

IN THE

Supreme Court of the United States

October Term, 1978

STATE OF NEW MEXICO, AND JAMES R.

BACA, DIRECTOR, DEPARTMENT OF

ALCOHOLIC BEVERAGE CONTROL,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

JEFF BINGAMAN

Attorney General of New Mexico

THOMAS L. DUNIGAN

Deputy Attorney General

Post Office Drawer 1508

Santa Fe, New Mexico 87501

(505) 827-5521

E,. BARRETT PRETTYMAN, JR.

Hogan & Hartson

815 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 331-4500

Attorneys for Petitioners

APPENDIX A —

APPENDIX B —

APPENDIX C —

APPENDIX D —

APPENDIX E —

APPENDIX F —

APPENDIX G —

APPENDIX H —

INDEX TO APPENDIX

Judgment of the United States

District Court for the District of

New Mexico.

Findings of Fact and Conclusions

of Law of the United States District

Court for the District of New

Mexico.

Opinion Letter of United States

District Judge H. Vearle Payne

Judgment and Opinion of the

United States Court of Appeals

for the Tenth Circuit

Mr. Justice White’s Order Extending

Time To File Petition For Writ

Of Certiorari

Mescalero Apache Tribal Ordinance

No. 15, Legalizing the Introduction,

Sale and Possession of Intoxicants

Former Director of the Department

of Alcoholic Beverage Control

Jaramillo’s Letter of September 17,

1975, to Mr. Wendell Chino, President

of the Mescalero Apache Tribe.

Excerpt from 5 American Indian

Law Review 224-227 (1977) with

Addendum Prepared by Petitioners .

Page

lla

23a

24a

26a

28a

Continued next page

iil

INDEX Cont’d

APPENDIX I —

APPENDIX J —

APPENDIX K —

Selected Provisions froin New

Mexico Statute Annotated

(N.M.S.A. 1978 Comp.) dealing

with the regulation of liquor outlets.

Pertinent Federal Constitutional

and Statutory Provisions .

Memorandum Summarizing

Department of Justice Position

Regarding Jurisdiction Over

“Victimless” Crimes

Page

33a

48a

6la

APPENDIX A

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA

Plaintiff

)

) CIVIL NO. 75-602-P

STATE OF NEW MEXICO and )

CARLOS L. JARAMILLO, Director ?

Department of Alcoholic )

Beverage Control )

Defendants

JUDGMENT

The United States of America has requested this Court

to render a declaratory judgment that the Mescalero Apachie

Tribe has sole authority to regulate the licensing of tribal outlets

located within the exterior boundaries of the Mescalero Apache

Reservation and to regulate the sale of alcoholic beverages by

these outlets. The Court has also been requested to grant

appropriate injunctive relief. The Court having considered the

stipulated facts submitted by the parties, the court record of

the hearing on the preliminary injunction, and the legal argu-

ments and briefs of the parties, and having made its findings of

fact and conclusions of law;

IT IS THE JUDGMENT OF THIS COURT that as be-

tween the State of New Mexico and the Mescalero Apache

Tribe, 18 U.S.C. 1161 delegates to the Mescalero Apache Tribe

the sole authority to regulate the licensing of tribally operated

outlets within the exterior boundaries of its reservation and

to regulate the sale of alcoholic beverages by those outlets.

Therefore, the Mescalero Apache Tribe need not comply with

any state liquor license requirements, nor may any officer or

agents of the State of New Mexico enter upon the Mescalero

Apache Reservation to enforce state laws concerning licensing

and regulation of liquor sales against the liquor outlets owned

by the Mescalero Apache Tribe within the outer boundaries of

the Reservation, nor may they take any action against wholesale

suppliers that would result in the cessation of liquor sales within

the Reservation at tribally operated outlets.

IT IS FURTHER ORDERED that defendants and all

those persons acting under their control or in concert with

them are permanently enjoined from taking any action against

the Mescalero Apache Tribe or its suppliers that would result

in the cessation of liquor sales by the Tribe at any Tribal

owned outlet within the outer boundaries of the reservation;

and defendants and all those persons acting under their control

or in concert with them are permanently enjoined from order-

ing state law enforcement personnel to enforce state laws

concerning licensing and regulation of liquor sales against the

liquor outlets owned by the Mescalero Apache Tribe within

the outer boundaries of the Reservation.

s/ H. Vearle Payne

UNITED STATES DISTRICT JUDGE

——

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

STATE OF NEW MEXICO and

CARLOS L. JARAMILLO,

Director, Department of

Alcoholic Beverage Control,

Defendants.

No. 75-602 Civil

COURT’S FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The following shall constitute the Findings of Fact and

Conclusions of Law of the Court:

FINDINGS OF FACT

1. The Mescalero Apache Tribe was recognized by the

United States.Government in the Treaty of July 1, 1852, 10

Stat. 979 between the United States and representatives of the

Mescalero Apache Nation.

2. Article 1 of this Treaty places the Mescalero Apache

Nation “exclusively under the laws, jurisdiction and govern-

ment of the United States of America.”

3. The Mescalero Apache Indian Reservation was created

by a series of eight executive orders dating from May 23, 1873,

to February 17, 1912. Substantially all of the lands within the

present outer boundaries of the reservation are held in trust by

the United States for the Mescalero Apache Tribe.

4. The Mescalero Apache Tribe has a constitutional gov-

ernment organized pursuant to 25 U.S.C. Section 476, and the

government exercises full traditional powers of tribal self-

government over the entire Reservation excepting the control

surrendered to the United States as trustee.

5. The Mescalero Apache Tribe has adopted an Ordinance

published in 30 Fed. Reg. 3553 (March 17, 1965) pertaining to

the sale and consumption of alcoholic beverages within the

exterior boundaries of the Mescalero Apache Reservation.

6. 18 U.S.C. Section 1161 makes the Federal Indian liquor

laws inapplicable 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.”

7. The Mescalero Apache Tribe has owned and operated

a tribal bar in the community of Mescalero for a period of ten

(10) years without a state license to do so.

8. On April 2, 1965, Mr. H. E. Babcock, Jr., as Chief of

the New Mexico Division of Liquor Control stated in a letter

to the Mescalero Apache Tribe’s Counsel that an Indian tribe

could establish its own liquor operation on reservation land

without coming under the Liquor Division’s control.

9. Alcoholic beverages are presently being sold at the Inn

of the Mountain Gods resort complex and the tribal bar at

Mescalero without a state license, without a tribal license and

without any other type of license authorizing liquor sales.

10. Under the Ordinance referred to in paragraph 5 above

the Mescalero Apache Tribe is not required to obtain a liquor

license in order to sell intoxicating beverages within the exterior

boundaries of the Reservation.

11. Alcoholic beverages have been sold at the Inn of the

Mountain Gods since July, 1975.

12. The Inn of the Mountain Gods, the tribal bar located

in the Village of Mescalero, and the New Mexico licensed bar

owned by the Tribe at Apache Summit are all located within

the exterior boundaries of the Mescalero Apache Reservation.

13. The enterprise at the Inn of the Mountain Gods

which is owned and operated by the Mescalero Apache Tribe

was constructed and opened after a feasibility study was made

by the Bureau of Indian Affairs.

14. The revenue from the Inn of the Mountain Gods is

being used and will continue to be used for the education,

social and economic welfare and governmental needs of the

Mescalero Apache people.

15. The Inn of the Mountain Gods enterprise is owned and

operated by the Tribe according to tribal authority granted

under Article XI of the Mescalero Apache Tribal Constitution.

16. Plans and specifications for the construction of the

Inn of the Mountain Gods were approved by the Federal

Government.

17. The approval of the Bureau of Indian Affairs is

required for the budget for each fiscal year for operation of

the Inn of the Mountain Gods.

18. The Mescalero Apache Tribe maintains a full staff of

eight persons available to enforce tribal ordinances who are

not commissioned New Mexico peace officers.

19. The Federal Government has six full-time and two

part-time (averaging a total of forty hours per week) officers

on the Mescalero Apache Reservation for enforcement of

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Federal Law who are not commissioned New Mexico peace

officers.

20. Because of state quota restrictions, it would cost in

excess Of $50,000.00 to purchase a license for use at the Inn

of the Mountain Gods, and this would constitute a financial

burden on the Mescalero Apache Tribe.

21. The State of New Mexico has never taken steps under

25 U.S.C. Sections 1321 and 1322 or Public Law 280 to

assume civil or criminal jurisdiction over the Mescalero Apache

Reservation and could not now do so without the consent of

the Mescalero Apache Tribe.

22. The State of New Mexico has in the past ordered all

wholesalers in the State of New Mexico to cease delivery to the

Tribal bars and has threatened to do so in the future.

23. The State of New Mexico has threatened to send its

law enforcement personnel into the Mescalero Reservation to

enforce state laws concerning the licensing and regulation of

liquor sales.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the parties and subject

matter of this lawsuit.

2. The Mescalero Apache Tribe is a tribe of Indians duly

recognized by the Federal Government and said tribe has

jurisdiction over the territory of the Mescalero Apache Reser-

vation.

3. The Mescalero Apache Tribe has exercised the option

granted it by 18 U.S.C. 1161 to regulate the licensing, sale

and distribution of alcoholic beverages within the Mescalero

Apache Reservation.

4. 18 U.S.C. 1161 does not require the Mescalero Apache

Tribe to meet any state licensing requirements to operate tribal-

owned liquor outlets.

5. 18 U.S.C. 1161 does not grant the State of New Mexico

jurisdiction to enforce any of its liquor laws within the exterior

boundaries of the Mescalero Apache Reservation.

6. The State of New Mexico may not forbid wholesale

suppliers of the Mescalero Apache Tribe from selling to tribal-

owned outlets.

7. As between the Mescalero Apache Tribe and the State

of New Mexico, the Mescalero Apache Tribe has sole juris-

diction for regulating the licensing, sale, possession and distri-

bution of alcoholic beverages at tribal-owned outlets within

the exterior boundaries of the Mescalero Apache Reservation.

8. The 21st amendment to the United States Constitution

does not give the State of New Mexico jurisdiction to enforce

any of its liquor laws within the exterior boundaries of the

Mescalero Apache Reservation.

9. The federal government and the Mescalero Apache

Tribe have preempted the State of New Mexico from any

jurisdiction it might arguably have had to regulate the licensing

of tribal-owned liquor outlets and to regulate the sale of

alcoholic beverages at such outlets within the exterior bound-

aries of the Mescalero Apache Reservation.

10. 18 U.S.C. 1161 was designed to further Tribal self-

government and imposition of the State’s licensing regulations

against the Mescalero Apache Tribe or enforcement of state

liquor law by the state within the Mescalero Apache Reserva-

tion would be an unwarranted interference with tribal self-

government.

11. Plaintiff is entitled to a permanent injunction to

enjoin the State and its officers and agents from entering upon

the Mescalero Apache Reservation to enforce state laws con-

cerning licensing and regulation of liquor sales against the

liquor outlets owned by the Mescaiero Apache Tribe within

the outer boundaries of the Reservation, and further enjoining

them from prohibiting wholesalers from selling to tribal-owned

outlets.

12. Article I, Section 8, clause 3 of the United States

Constitution gives the sole authority to the Congress of the

United States to regulate commerce with the Indian Tribes.

Any requested Findings of Fact and Conclusions of Law

not included herein are hereby denied.

s/ H. Vearle Payne

UNITED STATES DISTRICT JUDGE

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

ALBUQUERQUE, NEW MEXICO 87103

H. VEARLE PAYNE

CHIEF JUDGE

December 17, 1976

| Addressees deleted ]

RE: USA v. State of New Mexico

No. 75-602 Civil

Dear Counsel:

I have carefully examined the file in the above styled case,

the ordinance, all of the briefs and also I have read many cases.

At first I thought I would write an opinion in this case

but the pressure of time constrains me to just write a letter.

The question is with relation to the meaning of 18 USC

1161 and particularly the phrase which reads as follows:

“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.” (emphasis added)

I would refer the parties to the recent cases of Moe, Sheriff

et al vy, Confederated Salish Kootenai Tribes of Flathead Reserva-

tion et al, on which I have the advanced sheet but which is best

cited as 44 L.W. 4535 (4-27-76) and the case which came from

New Mexico namely Morton, Secretary of Interior, et al v

Mancari, et al., 415 U.S. 535 (1974),

The question before the Court is what is the meaning of

the phrase “‘in conformity both with the laws of the state etc.”

As I understand it the State is contending that they would

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require the Indians to have a liquor license before they could

operate and would mean that the State had jurisdiction over the

reservation to that extent. An analogous question was passed

upon in the Moe case supra, in which the Court held that the

State of Montana. could not require the Indian tribes to buy a

cigarette dispensing license.

The Mancari case supra, held that a classification by Con-

gress which was reasonable and rationally designed to further

Indian self-government was not unconstitutional.

The Court does not construe the phrase mentioned above

to require the Indian tribe to buy a liquor dealers license. The

tribe has passed an ordinance that “such introduction, sale and

possession” must be “in conformity with the laws of the State

of New Mexico.” 30 F.R. 3553 (1965). The Court does not

construe either the statute nor the ordinance to mean that an

Indian reservation is required to secure a dispensers license

before it can operate.

The Indian history of Indian law indicates that the reserva-

tion is to be free from any licenses of any kind imposed by the

State.

Judgment should be entered accordingly.

Do the parties want findings of fact or will the stipulated

facts suffice? Will the parties please prepare, if they so desire,

any findings of fact and will the prevailing party please prepare

and present to the Court a judgment carrying out the provisions

of this letter within twenty days.

I will place a copy of this letter in the file so that any one

interested may know my reasoning.

Sincerely,

s/ H. Vearle Payne

H. Vearle Payne

U. S. District Judge

lla

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NOVEMBER TERM — December 18, 1978

Before Honorable Oliver Seth, Chief Judge, Honorable William

E. Doyle, Circuit Judge, and Honorable Arthur J. Stanley, Jr.,

District Judge

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ) JUDGMENT

nin ) No. 77-1309

STATE OF NEW MEXICO and CARLOS ) (py ©. No, 75-602-P)

L. JARAMILLO, Director, Department ) §

of Alcoholic Beverage Control, )

Defendants-Appellants, )

ALL INDIAN PUEBLO COUNCIL, INC., )

Amicus Curiae-Appellee. )

This cause came on to be heard on the record on appeal

from the United States District Court for the

District of New Mexico , and was argued by counsel.

Upon consideration whereof, it is ordered that the judg-

ment of that court is _affirmed.

s/ Howard K., Phillips

HOWARD K. PHILLIPS, Clerk

12a

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 77-1309

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

THE STATE OF NEW MEXICO, and

)

) Appeal from the

)

CARLOS L. JARAMILLO, Director, )

)

United States

District Court for

the District of

Department of Alcoholic

Beverage Control,

Defendants-Appellants.

No. 75-602-P)

Before SETH, Chief Judge, DOYLE, Circuit Judge, and

STANLEY,* Senior District Judge.

DOYLE, Circuit Judge.

This is an appeal by the State of New Mexico from a declar-

atory judgment entered by the United States District Court for

the District of New Mexico, January 31, 1977. In essence it

ruled that the Mescalero Apache Tribe was not subject to the

liquor licensing authority of the State of New Mexico with

respect to liquor outlets located within the exterior boundaries

of the Mescalero Apache Reservation. New Mexico contends

that it is authorized to license and thus control the liquor

traffic on the Reservation. The action is alleged to have arisen

pursuant to 28 U.S.C. 8 1345 together with Rule 65 of the

Federal Rules of Civil Procedure, and 28 U.S.C. 8 2201, 2202.

No substantial dispute exists as to the facts. There were

* Of the District of Kansas, sitting by designation.

New Mexico (D.C.

13a

stipulations as to most of these, and they are set forth in the

findings, conclusions and judgment of the trial court.

The Mescalero Indian Tribe was formally placed under the

control of the government in the Treaty of July 1, 1852,

between the United States and representatives of the Mescalero

Apache Tribe. Under the terms of this Treaty, the Tribe is

* exclusively subject to the laws, jurisdiction and government of

the United States of America. Its lands are held in trust by the

United States for the benefit of the Mescalero Apache Tribe.

The Tribe has a government which has been created under

25 U.S.C. 8 476. Under the terms of the Treaty the tribal

government exercises full sovereign powers within the bound-

aries of the Reservation, except for the control surrendered by

it to the United States as trustee. The Tribe has adopted an

ordinance (published in 30 Fed. Reg. 3553), pertaining to the

sale and consumption of alcoholic beverages within the exterior

boundaries of the Mescalero Indian Reservation. 18 U.S.C. 8

1161 was found by the court to render the federal statutes,

which previously had prohibited the sale and use of liquor by

the Indians, not applicable 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 coun-

try, certified by the Secretary of the Interior, and published in

the Federal Register.”

The Tribe has actually operated a bar in the community of

Mescalero for 10 years without having any state license to do so.

On April 2, 1965, the Chief of the New Mexico Division of

Liquor Control acknowledged in a letter to the Mescalero

Tribe’s council that an Indian tribe could establish its own

liquor operation on reservation land without being subject to

the control of the New Mexico Liquor Division.

14a

Liquor is now being sold in the Inn of the Mountain Gods, a

large resort complex, and at the tribal bar at Mescalero without

a state license, without a tribal license and without any other

kind of license authorizing liquor sales.

The trial court ruled that under the tribal ordinance, 30 Fed.

Reg. 3553, the Tribe was not required to obtain a liquor license

from the state in order to sell intoxicating beverages within

the boundaries of the Reservation. Since July 1975, the bever-

ages have been sold at the Inn of the Mountain Gods. That

institution, together with the tribal bar in Mescalero and the

bar at Apache Summit, which is licensed by New Mexico, are

all located within the exterior boundaries of the Mescalero

Apache Reservation. The Inn of the Mountain Gods is owned

by the Tribe and is operated for the benefit of its education,

social and economic welfare program on behalf of the people

of the Mescalero Apache Tribe. The budget of the Inn is sub-

mitted for approval to the Bureau of Indian Affairs. Tribal

ordinances are enforced on the premises of the Inn by those

on the staff. Also, the federal government maintains six officers

on the Mescalero Reservation for enforcement of federal law.

The trial court also found that due to state quota restrictions

the cost of purchase of a license (for use at the Inn) would be

$50,000. It was recognized by the court that this would place

a financial burden on the Tribe.

The trial court found, in addition, that New Mexico had

never sought to assert civil or criminal jurisdiction over the

Mescalero Apache Reservation. The present action was precipi-

tated as a result of New Mexico ordering all wholesalers in the

State to cease delivery to the tribal bars and by the threat of

New Mexico to send its law enforcement personnel into the

Reservation to enforce state laws concerning the liquor traffic.

The court concluded that as between the Mescalero Tribe and

the State of New Mexico, the Tribe had sole jurisdiction over

15a

the licensing of tribal-owned liquor outlets and had sole

authority to regulate the sale of alcoholic beverages at those

outlets within the exterior boundaries of the Mescalero Apache

Reservation.

Based upon the trial court’s ruling that the State of New

Mexico lacked authority to regulate liquor traffic on the Reser-

vation, it permanently enjoined the State and its officers and

agents from entering on the Reservation to enforce state laws

concerning licensing and regulation of liquor sales owned by

the Mescalero Apache Tribe within the boundaries of the

Reservation and enjoining the State and its officers from pro-

hibiting wholesalers from selling liquor to tribal-owned outlets,

Questions which the State tendered are the following:

First, whether by reason of 18 U.S.C. 81161 and the Act of

August 15, 1953, 67 Stat. 586, the laws of the State of New

Mexico with respect to the licensing and regulation of the

possession, sale, service and consumption of alcoholic beverages

apply to tribally-owned and operated facilities within the exte-

rior boundaries of the Mescalero Apache Indian Reservation.

The second question is a slightly different version of the

same question. It is whether the State of New Mexico is author-

ized by the laws of the United States to enforce its laws per-

taining to licensing and regulation of the possession, sale,

service and consumption of alcoholic beverages on tribally-

owned and operated facilities within the exterior boundaries

of the Mescalero Apache Indian Reservation.

Third, (this is aiso a replica) whether the injunction entered

by the district court prohibiting the State of New Mexico from

enforcing its laws with respect to liquor licensing and regulation

is valid and should be upheld.

The Act of Congress on which New Mexico relies is 18 U.S.C.

§ 1161. In essence it provides that the liquor prohibitions in the

l6a

prior federal statutes, 88 1154, 1156, 3113, 3488 and 3618 do

not apply within an area that is outside Indian country nor to

any act or transaction within Indian country provided that it 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 . . . , certified by the Secretary

of the Interior.”

The State’s position, therefore, depends on its obtaining a

construction of § 1161, supra, which finds that the words

“in conformity with the laws of the state” are tantamount to

saying that the licensing authority is granted to the state, so

our principal inquiry is whether this clause was designed to

grant licensing and regulation of liquor on tribal lands to the

State of New Mexico. We conclude that no such meaning can

be attributed to 8 1161, supra, and that the trial court’s judg-

ment in this regard is to be affirmed.

The boundaries of Indian country and of the Mescalero

Tribe are the same. See United States v. Mazurie, 419 U.S. 544

(1975).

The decision of the Supreme Court in United States v.

Mazurie, supra, is a leading one which virtually decides the

present question. The conflict in that case was not between the

tribe and the state, however. It was between the Wind River

Tribes and an individual bar or tavern owner, who operated his

business within an unincorporated village inside the Wind River

Reservation. Following the enactment of § 1161, supra, the

Tribe had passed an ordinance in conformity with it and had

denied a tribal license to the bar, which was held to be located

in Indian country. Mazurie, the bar owner, filed an action in

federal district court seeking to compel the issuance of a license.

17a

The district court held that the location of the bar was within

the tribal boundaries and, considering the composition of the

residents, was located within Indian country, whereby § 1161,

supra, applied. This court, however, reversed the district court’s

ruling on the basis that the prosecution had not met its burden

of proving that the bar was within Indian country. The decision

also questioned whether Congress could delegate such authority ,

to an Indian tribe.

The Supreme Court set this straight by reversing and holding

that 8 1161, supra, was not vague; that the bar’s location

rendered it subject to tribal regulation; that the fact of owner-

ship in fee of the land was not significant; that Congress still

had the authority to delegate such regulatory power to a tribal

council.

It is true that the question of state regulation was not

considered, but there was no doubt or exception expressed

concerning the authority of Congress to delegate this power to

the tribe. The Court cited with approval from one of its early

decisions, Perrin v. United States, 232 U.S. 478, 482 (1914),

as follows:

“The power of Congress to prohibit the introduction

of intoxicating liquors into an Indian reservation, where-

soever situate, and to prohibit traffic in such liquors with

tribal Indians, whether upon or off a reservation and

whether within or without the limits of a State, does not

admit of any doubt. It arises in part from the clause in the

Constitution investing Congress with authority ‘to regulate

commerce with foreign nations, and among the several

States, and with the Indian tribes,’ and in part from the

recognized relation of tribal Indians to the Federal Gov-

ernment.” 232 U.S., at 482.

Perrin was a pre-§ 1161 decision, but it attests to the scope

and extent of the power of Congress to regulate in this area.

18a

The Supreme Court reasoned that while there are limitations

on the extent to which Congress can delegate its powers, these

limitations are less restrictive when the delegation is to an

independent governmental unit. When an entity has sovereignty

of its own, Congress’ power of delegation to it is likely to be

valid.

Another decision of the Supreme Court, that of Warren Trad-

ing Post v, Arizona Tax Commission, 380 U.S. 685 (1965),

contrasts the standard in 8 1161, supra, with laws delegating

authority to the state in other areas. In the latter the intent to

empower state exercise of authority over reservations is re-

quired to be very clear. If agents of a state are to be permitted

to enter tribal land, the authority from Congress or the Secre-

tary of the Interior must be plain. In that case the operator of

a retail trading post on the Navajo Indian Reservation had been

licensed by the Commissioner of Indian affairs. The trading

post challenged the right of Arizona to levy a tax on its income

derived from trading with reservation Indians. The Supreme

Court in denying the authority of the state to levy such a tax

reasoned that the powers of the federal government over the

tribal lands resulted in relieving the state of any duties which

it otherwise might have to provide protection, etc., and thus it

could not justify levying a tax on income derived from trading

on the reservation. To allow the state to do so would permit

them to put a burden on the traders or the Indians. The Court

said:

Congress has, since the creation of the Navajo Reserva-

tion nearly a century ago, left the Indians on it largely

free to run the reservation and its affairs without state

control, a policy which has automatically relieved Arizona

of all burdens for carrying on those same responsibilities.

* * * 380 U.S. at 690.

McClanahan vy, Arizona State Tax Comm’n, 411 U.S. 164

(1973), involved an attempt by Arizona to impose a tax on the

19a

income of Navajo Indians residing on the reservation and whose

income was derived wholly from reservation sources. Arizona

was held to lack jurisdiction. The governing principles were

that the policy relieving Indians from state jurisdiction and

control is dceply rooted in the nation’s history, having first

been set forth in the opinion of Chief Justice Marshall, which

recognized that Indian nations were distinct political commun-

ities, having territorial boundaries in which their authority is

exclusive and having a right to the lands within those bound-

aries which is acknowledged and guaranteed by the United

States. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832).

The concept of Indian sovereignty was said to be important

(in McClanahan), not necessarily because it resolves the issues,

but because it provides a background for reading the applicable

treaties and statutes. The background shows the tribes to have

been independent and sovereign nations, and even though the

Navajos who were involved in the McClanahan case did not

have an express guarantee of freedom or exemption from state

taxes in its treaty, the concept of sovereignty nevertheless pre-

cludes efforts by the state to tax Indians on the reservation.

The case points out that when Arizona entered the union its

entry was conditioned on the vight gnd title to Indian lands

remaining subject to the disposition of and under the control

of Congress.

More recently, in Moe v. Salish & Kootenai Tribes, 425 U.S.

463 (1976), the Supreme Court ruled that Montana was pre-

cluded from levying cigarette sales taxes, personal property

taxes and issuing vendor’s licenses to sell cigarettes on the

Indian reservation to Indians. The Court spoke out for uniform

rules and not checkerboard enforcement. Those proposals were

said to “conflict with the congressional statutes which provide

the basis for decision with respect to such impositions.,

McClanahan, supra; Mescalero Apache Tribe v, Jones, 411 U.S.

145 (1973).” 425 U.S. at 480-81.

20a

In an even more recent case, that of Bryan v. Itasca County,

426 U.S. 373 (1976), the Supreme Court again emphasized the

need for Congress to explicitly grant power to the state in order

for the latter to exercise regulatory power in Indian country.

It said that this could not be left to inference. Here Congress

had granted jurisdiction over civil causes of action or causes to

which Indians were parties to state courts to the same extent

that the states had jurisdiction over civil causes of action. The

question was whether this allowed the state to exercise regula-

tory power in Indian country. The Supreme Court said no,

because the Act had not explicitly granted such power.

Congress, it is said, had not intended to have jurisdiction

inferred, and so the only grant was to hear cases.

In summary, the cases stre. “iat regulatory powers in Indian

country or on Indian lan eteng to the Congress except for

inherent jurisdiction of th. » %es. Congress may delegate this

authority to the state, but when it does so it must be in

specific terms. Section 1161, supra, does not delegate this

authority either expressly or impliedly.

The legal basis of this is the authority of Congress to regulate

commerce with the Indian tribes under the United States

Constitution art. 1, 8 8, cl. 3. Under this Congress is empowered

to prohibit or regulate (1) the sale of alcoholic beverages to

tribal Indians, and (2) the introduction of alcoholic beverages

into Indian country. United States v, Mazurie, supra.

Until 1953, Congress prohibited altogether the sale and use

of alcoholic beverages by the Indians. Section 1161, supra, was

enacted in 1953 so as to eliminate this federally imposed prohi-

bition on liquor dealings with the Indians. S. Rep. No. 722,

83d Cong., Ist Sess, reprinted in (1953) U.S. Code Cong. & Ad.

News 2399-2400, The legislation was intended also to end

discrimination against the Indians in areas where they were

treated differently from non-Indians. /d. at 2400. Although

2la

the statute ended federal liquor prohibition, it consented to

tribal prohibition if it was desired by the tribe.

In sum:

The cases deal with the scope and the extent of government

power over the Indian tribes and lack of state authority in this

area. We cannot perceive any semblance of support for the

State’s position that Congress intended to empower it to regu-

late the liquor traffic on Indian reservations. So if there is any

ambiguity in the statute, the cases dispel it.

We have read the arguments of the State of New Mexico

which seek to present legislative history material, but these fail

to evidence the kind of intent and purpose which New Mexico

seeks to establish.

In addition to legislative history, the State’s brief cites statu-

tory provisions which deal with other more or less related

subjects in an effort to provide support for their argument that

these somehow confer jurisdiction on the state to police liquor

problems and therefore to license the liquor trade on Indian

reservations. We disagree with these arguments, and we here are

not going to deal with what has been said beyond showing

some examples which illustrate the remoteness of their con-

tentions.

Their legislative history arguments are particularly remote.

They cite Representative Patten of New Mexico and a statement

made by him during the early stages of the consideration by

Congress of what later became § 1161. His remarks primarily

deal with the removal of the prohibition of liquor as to the

Indians.

An argument is made in respect to Public Law 277. In the

New Mexico Enabling Act, New Mexico agreed to provide in

22a

the state constitution that liquor sales to Indians were pro-

hibited. In 1953, express authority was given to New Mexico

to amend its constitution. P. L. 277 (67 Stat. 586). The argu-

ment is that the repealing impliedly granted the state juris-

diction over liquor. No such implied grant is apparent.

The consent given by the federal government to states pro-

vided for in 25 U.S.C. 8 1321, 1322 is relied on. This pertains

to the consent by the government to a state assuming criminal

and civil jurisdiction. The exercise of this jurisdiction must,

however, be with the consent of the Indian tribe under 8 1321.

This includes the civil jurisdiction. Section 1322 provides that

this is exercisable only with the consent of the tribe under

§ 1322.

Apprehension is expressed by New Mexico that it will lose

all criminal jurisdiction over the Indians by an unfavorable

decision on this liquor licensing issue. Not so. This case is

limited to liquor licensing.

New Mexico further argues that the Indians will next have

gambling. This issue is obviously not before us.

Nor does the Twenty-First Amendment permit state liquor

licensing. We see nothing in that provision which authorizes

the states to regulate liquor licensing for the Indians.

New Mexico cannot derive any aid and assistance from the

taxing cases. See Warren Trading Post v. Arizona Tax Commis-

sion, supra, and Mescalero Apache Tribe v. Jones, 411 U.S.

145 (1973). This latter does not deal with taxing income or

property on the reservation.

The collateral sources cited by the state are not more per-

suasive than the direct arguments which are made.

Our conclusion is that the judgment of the trial court must

be affirmed. It is so ordered.

23a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-788

NEW MEXICO, ET AL.,

Petitioners,

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner [sic],

IT IS ORDERED that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same is

hereby, extended to and including May 17 a, fo. F

/s/ Byron R. White

Associate Justice of the Supreme

Court of the United States

Dated this _. 12th

day of March a

24a

APPENDIX F

MESCALERO APACHE: TRIBAL ORDINANCE NO. 15,

LEGALIZING THE INTRODUCTION, SALE AND

POSSESSION OF INTOXICANTS,

30 Fed. Reg. 3553 (1965).

Ordinance Legalizing the Introduction,

Sale and Possession of Intoxicants

Pursuant to the Act of August 15, 1953 (Public Law 277,

83d Congress, 67 Stat. 586), I certify that the following Ordi-

nance No. 15 relating to the application of the Federal Indian

liquor laws on the Mescalero Reservation was duly enacted on

January 9, 1965, by the Tribal Business Committee of the

Mescalero Apache Tribe which has jurisdiction over the area of

Indian country included in the ordinance:

Pursuant to the Act of August 15, 1953 (Pub. Law 277,

83d Cong., Ist sess., 67 Stat. 586), an Indian Tribe having

appropriate jurisdiction is empowered to make an ordinance

legalizing the introduction, sale and possession of intoxicating

beverages within any area of Indian country coming within the

jurisdiction of such Tribe, and

Whereas, at an election held on the 18th day of December

1964, the majority of voters of the Mescalero Apache Tribe

indicated approval of repeal of the Federal Indian Liquor Laws

to any act or transaction within the Mescalero Apache Reserva-

tion, and did further assent to the legalizing of the introduction,

sale and possession of intoxicants within the Mescalero Apache

Reservation.

Now, therefore, be it resolved and ordained by the Mescalero

Tribal Business Committee as follows:

25a

1. That the introduction, sale and possession of intoxicating

beverages shall be lawful within the Indian country under the

jurisdiction of the Mescalero Apache Indian Tribe: Provided,

That such introduction, sale and possession is in conformity

with the laws of the State of New Mexico: Provided further,

That the sale of intoxicating beverages upon the Mescalero

Apache Reservation by any person other than the Mescalero

Apache Indian Tribe shall be pursuant to license issued by the

Mescalero Apache Tribe.

2. That any Tribal laws, resolutions or ordinances heretofore

enacted which prohibit the sale, introduction and possession

of intoxicating beverages within the Mescalero Apache Reserva-

tion are hereby repealed.

3. That this ordinance shall be effective upon its certification

by the Secretary of the Interior and its publication in the

FEDERAL REGISTER.

Dated: March 11, 1965.

John A. Carver, Jr.,

Under Secretary of the Interior

[F.R. Doc. 65-2694; Filed, Mar. 16, 1965; 8:46 a.m.]

26a

APPENDIX G

STATE OF NEW MEXICO

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

STATE CAPITOL

SANTA FE, NEW MEXICO

September 17, 1975

Mr. Wendell Chino, President

Mescalero Tribe

Mescalero, New Mexico 88340

Dear Mr. Chino:

We have been advised by the Office of the Attorney General of

the State of New Mexico that it appears as though the decision

in United States v. Mazurie, U.S. ,95 S. Ct. 710, 42

L.Ed2d 706, overrules this department’s letter of April 7, 1965,

by Mr. Howard Babcock to you.

The letter by Mr. Babcock advised that: ‘*. ..an Indian Tribe

could establish their own liquor operation on reservation land

without coming under the control of this division.”

Please find enclosed also a copy of the ‘Ordinance Legalizing the

Introduction, Sale and Possession of Intoxicants’ which was

apparently promulgated by the Tribal Business Committee of

the Mescalero Apache Tribe.

It seems that the tribe, either voluntarily or under some set of

congressional conditions, did approve of repeal of the Federal

Indian Liquor Laws to any act or transaction within the Mesca-

lero Apache Reservation and did assent to the legalizing of the

introduction, sale, and possession of intoxicants within the

Mescalero Apache Reservation.

Resolution No. 1 (one) provides: “That the introduction, sale

and possession of intoxicating beverages shall be lawful within

27a

the Indian country under the jurisdiction of the Mescalero

Apache Indian Tribe: PROVIDED, that such introduction, sale

and possession is in conformity with the laws of the State of

”

It would seem clear that the letter from Mr. Babcock is erroneous

in its instruction or advise (sic) and must thus be rendered with-

out effect.

Please be informed that we feel the sale, service, or the permitting

of consumption of alcoholic beverages or intoxicants at the Inn

of the Mountain Gods is in direct violation of the Ordinance and

of the New Mexico statutes.

You are thus ordered to cease all sale, service, possession or the

permitting of consumption of alcoholic liquors and intoxicants

at the Inn of the Mountain Gods as of the fifteenth of October,

1975, until it has been clearly determined under what conditions

the sale, service, consumption, or possession may be allowed.

Yours truly,

s/ Carlos L. Jaramillo

CARLOS L. JARAMILLO

Director

28a

APPENDIX H

Excerpt from

5 AMERICAN INDIAN LAW REV. 224-227 (1977).

Source: Volumes 18-39, Federa/ Register (1953-1974)

Table 2. Tribal Laws Dealing with Legal Alcohol 1953-1974:

By Reservation, Sale, Introduction and/or Possession, Tribal

License System, Year Legalized, “On” and/or “Off”

Specified, and Tribal Sales

29a

Table 2. Tribal Laws Dealing with Legal Alcohol 1953-1974 (continued)

Laws Specify

Tribe or Reservation (State) 3: : “£ E 5 %

g +e SSE RE B

s £3 $3260 5 £3

Szi8f2 2 : =

1. Klamath Tribe (ORE) 1953 X xX

2. Fort Belknap (MT) 1953 X

3. Cheyenne River Sioux (SD) 1953 X X xX

4. Confederated Colville

Tribes (WA) 1953 X xX

5. Minnesota Chippewa Tribe

(Consol. Chip. Agency) 1953 X xX

6. Agua Caliente (Palm Springs) :

Mission Ind. (CA) 1953 X xX

7. Standing Rock Sioux Tribe

(SD and ND) 1953 X xX

8. Bad River Chippewa Tribe,

Lake Superior (WIS) 1954 X xX

9. Guidiville Pomo Tribe (CA) 1954 X xX

10. Blackfeet Tribe (MT) 1954 X xX xX

11. Prairie Island Ind. Res. (MINN) 1954 X X

12. Tule River Tribe (CA) 1954 X xX

13. Chippewa-Cree of Rocky Boy

Res. (MT) 1954 X

14. Red Cliff Chippewa Band(WIS) 1954 X X xX

15. Lower Brule Sioux Tribe (SD) 1954 X X X

16. Lower Sioux Ind. Com.(MINN). 1954 X X

17. Graton Reservation (CA) 1954 X X

18. Colorado River Tribes (CA) 1954 X X

19. Quileute Tribe of Washington 1954 X X

& Laws Specify

at 5 E =

Tribe or Reservation (State) e y& * = t ts ©

SG 2a da:

Paveveris

20. New Upper Sioux Bandof Minn. 1954 X X

21. Keweenaw Bay Ind. Com. (MICH) 1954 X X

22. Blackfeet Tribe (MT) 1954

23. Walker River Piaute Tribe(NEV) 1955 X <X

24. Uintah and Ouray Utes (UTAH) 1955 X xX

25. Spokane Tribe (WASH) 1955 X xX X

26. Turtle Mt. Band of Chippewa(ND) 1955 X X

27. Minnesota Chippewa Tribe 1955 xX X (15%)

28. Los Coyotes Mission Indians(CA) 1955 X X

29. Affiliated Tribes of

Ft. Berthold (ND) 1956 X xX

30. San Carlos Apache Tribe (AZ) 1957

31. White Mountain Apache

Tribe (AZ) maa x& XX X SZ

32. Sandia Pueblo (NM) 1958 X xX

33. Jicarilla Apache Tribe (NM) 1958 X

34. Menominee Tribe (WIS) 1959 X xX

35. Tulalip Ind. Res. (WA) 1959 X xX

36. Pyramid Lake Paiute Res. (NEV.) 1959 X NX X X X

37. Pala Reservation (CA) 1960 X xX

38. Sycuan Reservation (CA) 1960 X X .

39. Blackfeet Res. (MT) 1960 X

40. Flathead Reservation (MT) 1960 X NW X X X

41. Colorado River Res. (AZ) 1960 X xX xX

42. Ft. Belknap Res. (MT) 1961 xX xX X

43. Jicarilla Apache Res. (NM) 1962 X xX

44. Cour D’Alene Res. (ID) 1962 X xX

45. Walker River Paiute Res. (NM) [sic] 1963 X X XxX xX

46. Crow Creek Sioux Res. (SD) 1963 X xX xX

47. Port Madison Suquamish

Res. (WASH) 1963 X xX

48. Pojoaque Pueblo (NM) 1963 X xX

49. Zia Pueblo (NM) 1964 X xX

$0. Walker River Paiute Res.. (NEV) 1964 X (sale repealed)

$1. Seminole Tribe (FLA) 1964 X XK X

52. Crow Creek Sioux Res. 1965 X X X

53. Bishop Ind. Com. (CA) 1965 X xX

$4. Santa Clara Pueblo (NM) 1965 X X

55. Mescalero Apache Hes (NM) 1965 X xX xX

$6. San Carlos Apache Res. (AZ) 1965 X X xX

30a

Table 2. Tribal Laws Dealing with Legal Alcohol 1953-1974 (continued)

Tribe or Reservation (State)

Year Legal

Introduction

and/or Possession

Laws Specify

Tribal License

By Drink

Package

Tribal Tax

Tribe to Sell

Legal! Sale

. Colorado River Res. (AZ)

. Walker River Paiute Res. (NEV)

. Cochiti Pueblo (NM)

. Lower Brule Sioux Res. (SD)

. Swinomish Res. (WA)

. Ft. Yuma Res. (AZ & CA)

. Ft. Belknap Res. (MT)

. Rincon Res. (CA)

Kalispel Res. (WA)

. Swinomish Res. (WA)

. Campo Res. (CA)

. Barona Res. (CA)

. Vievas (Baron Long) Res. (CA)

. Santa Ynez Res. (CA)

. Santa Rosa Res. (CA)

. Eastern Band of Cherokee (NC)

. Pine Ridge Res. (SD)

. Hualapai Ind. Res. (CA)

. Pauma Ind. Res. (CA)

. Hoopa Res. (CA)

. Ak-Chin Res. (AZ)

. Isleta Pueblo (NM)

. Southern Ute Res. (CO)

. Pine Ridge Res. (SD)

. Moapa River Res. (NEV)

. Chippewa Cree Tribe of

Rocky Boy Res. (MT)

. Round Valley Res. (CA)

. Pine Ridge Res. (SD)

. Hoopa Valley Res. (CA)

. Tule River Res.

. Chippewa Cree of Rocky

Bay Res. (MT)

. Tesuque Pueblo (NM)

. San Manuel Res. (CA)

. Warm Springs Res. (ORE)

. Round Valley Res. (CA)

. Ft. McDowell Mohave-Apache

Res. (AZ)

. Chemehuevi Res. (CA)

1970

<~ KK KK OK OK KK KKK KKK KU

mK OK OK OOK OOK OOK OK OOK OOK OK OK KOK KKK OK OK OKO OK

3x x XxX

-Indians allowed to

sell)

(no

<< &<

(Wholesale License Req.)

x< &x<

1 a = 2B

1970 (All Legalization {473 & #80] repealed

1970

1970 X xX

1971

x<x«— KKK OK

xx KKK

3la

Table 2. Tribal Laws Dealing with Legal Alcoho! 1953-1974

§ Laws Specify

5 c =

& “ . a

Tribe or Reservation (State) e 3° | 3 £ & = °

oe a ae a ae

Ses SE eeESE

94. Lac Courte Oreilles Res. (WIS) 1971 X xX

95. Rosebud Sioux Res. (SD) 1971 X (see below—Misprint corrected

96. Nez Perce Res. (IDA) 1971 X X xX in #10)

97. Wind River Res. (WYO) 1972 X xX

98. Fallow Paiute Res. (NEV) a aoe See See See

99. Lummi Res. (WA) 1972 X xX

100. Lone Pine Res. (CA) 1972 X xX

101. Torres-Martinez Res. (CA) 1972 X xX

102. Chemehuevi Res. (CA) 1972 X xX

103. Salt River Pima-Maricopa

Res. (AZ) 1973 X

104. White Mountain Apache Res.(AZ) 1973 X XK X X xX

105. Rosebud Sioux Res. (SD) ed © me ok ee

106. Colorado River Res. (AZ & CA) 1973 X xX

107. Tulalip Res. (WASH) 1973 X xX xX

108. Chemehuevi Res. (CA) 1973 (Correction of misprint for #102)

109. Lac Du Flambeau Res. (WIS) 1973 X xX xX

110. Yavapai-Prescott Ind. Com.(AZ) 1973 X X xX X

111. Turtle Mountain Res. (ND) 1973 X xX xX

112. Standing Rock Sioux Tribe ;

(SE & ND) 1973 X xX X

113. Hoh Res. (WA) he Sie Ae

114. La Jolla Mission Ind. Res. (CA) 1973 xX xX

115. Manzanita Mission Ind. Res. (CA) 1973 X xX

TOTALS

104 100 46 13 15 5 12

See continuation of chart, p. 32a.

32a

CONTINUATION OF FOREGOING CHART FROM

VOLUME 40 THROUGH VOLUME 44, NUMBERS 1-41,

FEDERAL REGISTER (1975 to February 1979)

PREPARED BY PETITIONERS.

c Laws Specify

c § =

Tribe or Reservation (State) a 25 xs &§ gs

Ss, FST BE 8

3 83 325422

S3iTSe& &@ELE

116. Chippewa Tribal Res. (MINN) 1975 X X

117, Fort Belknap Res. (MONT) 1976 X X XX ZX xX

118, Washoe Tribe (NEV & CA) 1976 X X xX

119. Pueblo of San Ildefonso (NM) 1976 X X

120, Hannahville Indian Res.(MICH) 1976 XK xX

121. Tulalip Indian Res. (WA) 1977 X X X X XK X(5%)

122. Sokaogon Chippewa Community

Res. (WIS) 1977 X X xX Xx

123, Gila River Indian Community (AZ) 1977 X XK xX X X

124. Fort Independence Indian Res.

(CA) 1977 X xX

125. Fort Mojave Indian Tribe (AZ, ”

NEV & CA) 1978 X X xX X

126, Muckleshoot Indian Res. (WASH) 1978 X X X X X X X

(5%)

33a

APPENDIX I

SELECTED PROVISIONS FROM 1978 COMPILATION

OF NEW MEXICO STATUTES ANNOTATED

(N.M.S.A. 1978 Comp.)

DEALING WITH

THE REGULATION OF LIQUOR OUTLETS

(1) §60-7-1 [Liquor policy of state; investigation of applicants. ]

It is hereby declared to be the policy of this act that the sale

of all alcoholic liquors in the state of New Mexico shall be

licensed, regulated and controlled so as to protect the public

health, safety and morals of every community in this state;

and it is hereby made the responsibility of the chief of division

[director of the department of alcoholic beverage control] to

investigate into the legal qualifications of all applicants for

licenses under this act, and to investigate into the conditions

existing in the community wherein are located the premises

for which any license is sought, before such license is issued, to

the end that licenses shall not be issued to unqualified or dis-

qualified persons or for prohibited places or locations.

(2) §60-7-2. Dispenser’s license.

In any local option district any person who is the proprietor

or owner of any hotel or restaurant, as herein defined, or any

person qualified under the terms of any ordinance of any muni-

cipality or resolution of any board of county commissioners or

any other person who is not disqualified by provisions of this

act, may apply for, and if found qualified by the licensing

authorities whose duty it is to make a finding concerning such

qualifications, shall be issued a dispenser’s license for the sale of

alcoholic liquors. A dispenser’s license may be reclassified or

converted to a retailer’s license upon proper application and

34a’

payment of the license fees to the chief of division [director of

the department of alcoholic beverage control]. The reclassified

or converted license shall not be considered a new or additional

license if it is to be used at the same location or if it does not

add to the sum total of the licenses of a given area in any

computation for the purpose of determining the maximum

number of licenses that may be issued.

(3) 860-7-3. Retailer’s license.

In any local option district any person who is the proprietor

or owner of any mercantile business, or who shall desire to start

or to continue a business for the sale of alcoholic liquors, if

found qualified under the provisions of this act by the licensing

authorities, whose duty it is to make a finding concerning such

qualification, shall be issued a retailer’s license for the retail sale

of alcoholic liquors. A retailer’s license may be reclassified or

converted to a dispenser’s license upon proper application and

payment of the license fees to the chief of division:| director of

the department of alcoholic beverage control]. The reclassified

or converted license shall not be considered a new or additional

license if it is to be used at the same location or if it does not

add to the sum total of the licenses of a given area in any

computation for the purpose of determining the maximum

number of licenses that may be issued.

(4) §60-7-5. Wholesaler’s license.

In any city or county any person who is not prohibited from

receiving a license by the provisions of this act, upon proper

application therefor, accompanied by the proper fees therefor,

shall be issued a license as a wholesale dealer in alcoholic

liquors. No such wholesaler shall sell, offer for sale or ship,

any alcoholic liquors not received at, and shipped from, the

premises specified in such wholesale license, except beer as

provided in Section 705 [60-7-23 NMSA 1978]; and no

35a

wholesaler shall sell or offer for sale, any alcoholic liquors to

any person other than the holder of a New Mexico wholesaler’s,

retailer’s, dispenser’s or club license; provided, that nothing

contained in this section shall prevent the sale, transportation

or shipment by a wholesaler to any person outside of the state

of New Mexico when shipped under permit from the division

[department of alcoholic beverage control].

(5) §60-7-17. [Persons prohibited from receiving licenses. |

A. The following classes of persons shall be prohibited from

receiving licenses under the provisions of this act:

(1) persons who have been convicted of two separate

misdemeanor violations of this act in any calendar year or of

any felony, except those persons restored to civil rights;

(2) a person who is not a citizen of the United States;

(3) a person under the age of twenty-one years;

(4) a corporation which is not duly qualified to do busi-

ness in the state of New Mexico;

(5) a person who is not the real party in interest in the

business to be conducted under the license for which applica-

tion is made.

B. No nonresident distiller, brewer, winer, rectifier or bottler,

and no nonresident licensee coming within the provisions of

Section 707 (a) [60-7-26 A NMSA 1978] of this act, directly

or indirectly, or through an affiliate or subsidiary, shall apply

for, be granted or hold a license under the provisions of this

act as a New Mexico wholesale liquor dealer, distiller, rectifier,

brewer, winer, bottler, dispenser or retailer.

C. It shall be a violation of this act for any person whose

license as a retailer or dispenser of alcoholic liquors has been

revoked under the provisions of this act to accept or remain

36a

in any employment in or about the retail or dispensary sale of

alcoholic liquors gratis or for hire within two years from the

date of such revocation of such person’s license.

D. It shall be a violation of this act for any retail, dispensary

or club licensee knowingly to permit any person whose license

as a retailer or dispenser of alcoholic liquors has been revoked

under the provisions of this act to engage in or about the sale

of alcoholic liquors on behalf of such retail, dispensary or club

licensee within two years from the date of such revocation of

such person’s license.

(6) §60-7-20. Expiration and renewal of licenses; transfers;

additional licenses restricted; appeal from issuance or denial.

A. All licenses provided for in the Liquor Control Act [7-17-1

to 7-17-11, 7-24-1 to 7-24-7, 60-3-1 to 60-11-4 NMSA 1978]

shall expire on June 30 of each year and may be renewed from

year to year under the rules and regulations of the division

[department of alcoholic beverage control]. The chief of the

liquor contro! division [director of the department of alcoholic

beverage control] shall determine whether any of the licensees

under his jurisdiction are delinquent in any taxes administered

by the bureau of revenue [department of alcoholic beverage

control] as of June 1 of each year. The chief [director] shall

check his own files to ascertain whether or not there exists any

other reason why a license should or might not be renewed. If

any impediment to renewal is found, the chief [director] shall,

by certified mail, return receipt requested, mailed not later

than June 10, notify the licensee of the impediment. Any New

Mexico wholesaler, rectifier, winer, wine bottler, retailer, club

or dispenser licensee who has received such a notice and who

has subsequently satisfied the chief of division [director] that

he is not presently liable in the payment of any taxes admin-

istered by the bureau of revenue [department], and is other-

wise in good standing at the expiration of any license year,

37a

shall be entitled to a new annual state license for the succeeding

license year if the iicensee is otherwise entitled thereto under

the provisions of the Liquor Control Act. At the beginning of

any new license year, and throughout the new license year, the

chief of division [director] may limit, in his discretion, the

number of additional New Mexico wholesaler, rectifier, winer,

wine bottler, retailer, club or dispenser licenses to be issued

within the state and every political subdivision thereof, and the

chief of division [director], in his discretion, may refuse to

issue any additional licenses.

B. In determining whether a new or additional license shall

be limited or refused, the chief of division [director] shall

take into consideration the population of the locality involved,

the number of existing licenses in the locality or area and the

public health, safety and morals of the political subdivision,

area or locality wherein any additional license is sought.

C. Before any license may be transferred to use at a new

location, and before any new retailer’s or dispenser’s license

is issued for a location where alcoholic liquors are not now

being sold, the chief of division [director] shall cause a notice

of the application therefor to be posted conspicuously on a

sign not smaller than thirty inches by forty inches on the out-

side of the front wall or front entrance of the immediate

premises for which the liquor license or transfer is sought or,

if no building or improvements exist on the premises, the

notice shall be posted on the front entrance of the immediate

premises for which the license or transfer is sought, on a bill-

board not smaller than five feet by five feet. The contents of

the notice shall be in the form prescribed by the division of

liquor control [department of alcoholic beverage control],

and such posting shall be over a continuous period of twenty

days prior to the issuance of the license or transfer.

* * *

38a

(7) §60-7-24. [Issuance of licenses and collection of fees. }

All licenses provided for in Section 705 [60-7-23 NMSA

1978] shall be issued by the chief of division [director of the

department of alcoholic beverage control] in strict compliance

with the provisions of this act, and license fees, at the rates

therein provided, shall be collected by the chief of division

[director] and immediately shall be remitted to the state

treasurer.

The chief of division [director] is vested with exclusive con-

trol over the issuance of, and the collection of license fees for,

distiller’s, brewer’s, rectifier’s, winer’s and wholesaler’s licenses,

and, also of, and for, public service licenses, wine bottler’s

licenses, nonresident licenses and salesman’s identification

cards; and no additional license fee, occupation license or tax

shall be imposed or collected on account thereof by any

municipality or county.

(8) 8 60-7-29. Limitation on number of licenses that can be

issued.

The maximum number of licenses to be issued under the

provisions of Sections 60-7-2, 60-7-3 and 60-7-14 NMSA 1978,

shall be as follows:

A. in incorporated municipalities, not more than one dis-

penser’s or one retailer’s or one club license for each two

thousand or major fraction thereof population in such munici-

pality;

B. in unincorporated areas, not more than one dispenser’s or

one retailer’s or one club license for each two thousand or major

fraction thereof population in any county excluding the

population of incorporated municipalities within the county,

provided no new or additional license shall be issued in unin-

corporated areas or transfers approved for locations or premises

39a

situate within five miles of the corporate limits of any munici-

pality, except that transfer of a license already within the five

miles zone may be made:

(1) to another location within the zone; and

(2) from the municipality to a location within the zone;

C. in rural areas new or additional licenses may be issued

regardless of population if the proposed location or premises

are not within ten miles of any existing licensed premises,

provided that such new or additional license and any renewal

thereof, issued in such rural areas, either before or after the

effective date of Laws of 1957, Chapter 159, Section 1 [this

section] shall not be transferred to any other location or

premises within ten miles of another licensed premises.

(9) §60-7-30. [Location of presently licensed premises;

population determination. ]

For the purposes of this act [60-7-29, 60-7-30 NMSA 1978],

all presently licensed locations or premises lying within five (5)

miles of the corporaie limits of any municipality shall be

deemed as lying within the municipality in determining the

maximum number of licenses to be issued in said municipality

under the provisions hereof and provided further that the

population of any incorporated municipality or county shall,

for the purpose of this act, be deemed to be the population

thereof as last determined by the bureau of census.

(10) §60-8-3. Grounds for suspension or revocation.

Whenever the liquor control hearing officer, in any hearing

provided for in the Liquor Control Act [7-i7-1 to 7-17-11,

7-24-1 to 7-24-7, 60-3-1 to 60-11-4 NMSA 1978] which is

conducted in substantial compliance with the provisions of the

Liquor Control Act, finds that any liquor licensee has:

40a

A. refused to comply with any provision of the Liquor

Control Act;

B. after written notice from the chief of division [director

of the department of alcoholic beverage control] or commis-

sioner [director of the revenue division of the taxation and

revenue department], neglected to comply with any of the

provisions of the Liquor Control Act;

C. refused to comply with any valid rule or regulation

adopted and promulgated under the provisions of the Liquor

Control Act by the chief of division [director] or commissioner

[director] ;

D. after written notice from the chief of division [director]

or commissioner jdirector] , neglected to comply with any valid

rule or regulation adopted and promulgated under the provi-

sions of the Liquor Control Act by the chief of division

| director] or commissioner [director] ;

FE. made any material false statement in his application for

the license granted him under the provisions of the Liquor

Control Act;

F. suffered or permitted his licensed retail liquor estab-

lishment, dispensary or club to remain a public nuisance in the

neighborhood wherein it is located after written notice from the

chief of division [director] that investigation by the division

{department of alcoholic beverage control] has revealed that

the establishment is a public nuisance in the neighborhood; or

G. violated any sections of the Liquor Control Act, he may

suspend or revoke the license of the licensee or fine the licensee,

or both.

4ia

(11) § 60-10-2. [Manufacture or sale or possession for sale

when not permitted by act. |

It shall be a violation of this act, except under the terms and

conditions of this act permitting it, for any person to manufac-

ture for the purpose of sale, possess for the purpose of sale,

offer for sale or sell, any alcohclic liquors in the state of New

Mexico.

(12) $60-10-7. Sale, shipment and delivery unlawful.

A. It shall be unlawful for any person on his own behalf or

as the agent of another person, except a licensed New Mexico,

wholesaler, rectifier or the agent of either, directly or indirectly

to sell, or offer for sale, for shipment into the state of New

Mexico, or ship into the state of New Mexico any alcoholic

liquors unless such person or his principals shall have secured

a nonresident license as provided in Section 707 [60-7-26

NMSA 1978] of this act.

B. It shall be a violation of this act to deliver any alcoholic

liquors transported into the state of New Mexico unless such

delivery is made in accordance with Article 10 [60-10-9 NMSA

1978] of this act.

(13) §60-10-8. Credit extension by wholesale liquor dealers.

It shall be a violation of the Liquor Control Act [7-17-1 to

7-17-11, 7-24-1 to 7-13-7, 60-3-1 to 60-11-4 NMSA 1978] for

any wholesale liquor dealer to agree to extend credit for the

sale of alcoholic liquors to any liquor retailer, dispenser or

club. licensee for any period more than thirty calendar days

from the date of the invoice required under the provisions of

Section 60-9-1 NMSA 1978.

(14) §60-10-10. Offenses by retailers.

It shall be a violation of this act for any retailer:

42a

A. to allow or permit any alcoholic liquors to be drunk or

consumed on his licensed premises;

B. to maintain or keep in close proximity to such licensed

premises any place for the consumption of alcoholic liquors

purchased from him;

C. to sell any alcoholic liquors at any place other than his

licensed premises;

D. to sell, possess for the purpose of sale or to have, pos- ,

sess or keep on his licensed premises, liquors not contained in

the unopened, original, immediate containers as packed and

filled by the manufacturer, rectifier or bottler thereof; or to

buy or receive any alcoholic liquor for the purpose of, or with

the intent of, reselling the same, from any person other than a

duly licensed New Mexico wholesaler or winer;

E. directly or indirectly, or through any subterfuge, to

own, operate or control any interest in any wholesale liquor

establishment, liquor manufacturing or bottling firm: provided,

that this subsection shall not prevent any retaiier from owning

stock in any corporation which wholesales, manufactures or

bottles alcoholic liquors when he owns such stock for invest-

ment purposes only.

(15) §60-10-11. Offenses by dispensers.

It shall be a violation of this act for any dispenser to [sic]:

A. to receive any alcoholic liquors for the purpose of, or

with the intent of, reselling the same, from any person other

than one duly licensed by the state of New Mexico to sell such

alcoholic liquors to dispensers for resale;

B. to sell, possess for the purpose of sale or to bottle any

bulk wine, for sale other than by the drink for immediate

consumption on his premises;

43a

C. to do any of the things which a retailer is prohibited

from doing by Subsection 60-10-10 E NMSA 1978;

D. tosell, or possess for the purpose of sale, any alcoholic

liquors at any location or place except his licensed premises or

the location permitted under Section 60-7-11 NMSA 1978.

(16) § 60-10-16. Selling or giving liquor to minors; possession;

minor defined.

A. It is a violation of the Liquor Control Act [7-17-1 to

7-17-11, 7-24-1 to 7-24-7, 60-3-1 to 60-11-4 NMSA 1978] for

any club, retailer, dispenser or any other person, except the

parent or guardian or adult spouse of any minor, or adult

person into whose custody any court has committed the minor

for the time, outside of the actual, visible personal presence of

the minor’s parent, guardian, adult spouse or the adult person

into whose custody any court has committed the minor for the

time, to do any of the following acts:

(1) to sell, serve or give any alcoholic liquor to a minor or

to permit a minor to consume alcoholic liquor on the licensed

premises;

(2) to buy alcoholic liquor for, or to procure the sale or

service of alcoholic liquor to a minor;

(3) to deliver alcoholic liquor to a minor; or

(4) to aid or assist a minor to buy, procure or be served

with alcoholic liquor.

B. It is a violation of the Liquor Control Act for any minor

to buy, attempt io buy, receive, possess or permit himself to be

served with any alcoholic liquor except when accompanied by

his parent, guardian, adult spouse or an adult person into whose

custody he has been committed for the time by some court,

who is acutally [sic], visibly and personally present at the time

44a

the alcoholic liquor is bought or received by him or possesscd

by him or served or delivered to him.

* * *

F. Violation of this section by a minor with respect to

possession is a petty misdemeanor.

(17) § 60-10-26. Loitering of minors.

Loitering of minors consists of the licensee, or his agent, of

any liquor-licensed premises permitting a minor under the age

of twenty-one years to attend, frequent or loiter in or about

the premises without being accompanied by the parent or

guardian of the minor.

(18) §60-10-27. Sale to drunkards and lunatics.

It shall be a violation of this act for any person to sell, serve,

give or deliver any alcoholic liquors to, or to procure or aid in

the procuration of any alcoholic liquors for any habitual

drunkard or person of unsound mind knowing that the person

buying, receiving or receiving service of such alcoholic liquors is

an habitual drunkard or lunatic.

(19) § 60-10-29. Prostitution; loitering; promoting..

It is a vioiation of the Liquor Control Act [7-17-1 to 7-17-11,

7-241 to 7-24-7, 60-3-1 to 60-11-4 NMSA 1978] for any

liquor licensee or his agent to knowingly:

A. allow prostitution on the licensed premises;

B. allow or permit the loitering of or solicitation by known

prostitutes on the licensed premises; or

C. procure a prostitute for a patron or solicit a patron for

a prostitute, or both or for a house of prostitution.

45a

(20) § 60-10-30. Hours and days of business; Sunday sales.

A. Alcoholic liquors shall be sold, served, deiivered or con-

sumed on licensed premises only during the following hours

and days:

(1) on Mondays from 7:00 a.m. until midnight;

(2) on other weekdays from after midnight of the previous

day until 2:00 a.m., then from 7:00 a.m. until midnight; and

(3) on Sundays only after midnight of the previous day

until 2:00 a.m., except as provided in Subsection B of. this

section.

B. Any holder of a dispenser’s or club license may, upon

payment of an additional fee of one hundred dollars ($100.00),

obtain a permit to sell, serve or permit the consumption of

alcoholic liquors by the drink on the licensed premises on

Sundays from 12:00 noon until midnight except as otherwise

provided in Subsection C of this section. The permit shall ex-

pire on June 30 of each year and may be renewed from year

to year upon application for renewal and payment of the

required fee. The permit fee shall not be prorated. Sales made

pursuant to this subsection shall be called “Sunday sales.”

* * *

(21) §60-10-35. Filling bottles; misrepresentation of liquors.

It is a violation of the Liquor Control Act [7-17-1 to 7-17-11,

7-24-1 to 7-24-7, 60-3-1 to 60-11-4 NMSA 1978] for any dis-

penser or the servant, agent or employee of any dispenser:

A. to pour into any empty or partially empty bottle which

contains or has contained any alcoholic liquor, liquor of a

different kind, class, brand, proof or age from that represented

by the label, indicia, legend or descriptive matter on the bottle;

46a

B. to have, allow, suffer or permit upon the licensed

premises of the dispenser any bottle containing alcoholic liquor

of a different kind, class, brand, proof or age from that rep-

resented by the label, indicia, legend or descriptive matter

appearing on the containing bottle;

C. to expressly or impliedly misrepresent the kind, class,

brand, proof or age of any alcoholic liquor served by the drink;

D. to pour into any empty or partially empty liquor bottle,

liquor of the same kind, class, brand and origin as that repre-

sented by the label, indicia, legend and descriptive matter

appearing on the receptacle bottle.

(22) 8 60-10-36. [Offenses concerning drinking on dispenser’s

premises. |

It shall be a violation of this act for any person to drink

any alcoholic liquors in any washroom or toilet of any dis-

penser, or to drink or consume upon the premises of any

dispenser any spirituous liquor or wine purchased therein in

in the unbroken package, except wine so purchased to be

consumed with meals, or to drink on the premises of any

dispenser any alcoholic liquors obtained elsewhere.

(23) § 60-10-37. [Employment of minors prohibited. |

It shall be a violation of this act for any retailer or dispenser

knowingly to employ any person under the age of twenty-one

years in the sale and service of alcoholic liquors.

(24) § 60-10-39. [Penalties for violation of act and rules or

regulations. |

A. The violation of any provision of this act or of any valid

rule or regulation promulgated under the provisions of this act

47a

which is not herein declared to be a felony, shall be a mis-

demeanor, and upon conviction thereof, any person shall be

punished by a fine of not more than three hundred dollars

{($300)} or by confinement in jail not more than seven months

or by both such fine and imprisonment: provided that if a

corporation be convicted of such a violation it shall be pun-

ished by a fine of not more than one thousand dollars

[($1,000)].

B. Any person convicted of a violation of this act which is

herein declared to be a felony, if an individual, shall be pun-

ished by a fine of not more than five thousand dollars

[($5,000)], or by imprisonment in the state penitentiary for

not more than five years, or by both such fine and imprison-

ment in the discretion of the court; but if such person so

convicted of such violation be a corporation, it shall be

punished by a fine of not more than ten thousand dollars

{[($10,000)}.

48a

APPENDIX J

PERTINENT FEDERAL CONSTIFUTIONAL

AND STATUTORY PROVISIONS.

(1) United States Constitution, Art. I, § 8, Clause 3.

The Congress shall have Power...

To regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes; ....

(2) United States Constitution, Amendment XXI, § 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.

(3) 18 U.S.C. § 1154.

§ 1154. Intoxicants dispensed in Indian country

(a) Whoever sells, gives away, disposes of, exchanges, or

barters any malt, spirituous, or vinous liquor, including beer,

ale, and wine, or any ardent or other intoxicating liquor of any

kind whatsoever, except for scientific,*sacramental, medicinal

or mechanical purposes, or any essence, extract, bitters, prepar-

ation, compound, composition, or any article whatsoever, under

any name, label, or brand, which produces intoxication, to any

Indian to whom an allotment of land has been made while the

title to the same shall be held in trust by the Government, or to

any Indian who is a ward of the Government under charge of

any Indian superintendent, or to any Indian, including mixed

bloods, over whom the Government, through its departments,

exercises guardianship, and 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

49a

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.

(b) It shall be a sufficient defense to any charge of introduc-

ing or attempting to introduce ardent spirits, ale, beer, wine, or

intoxicating liquors into the Indian country that the acts

charged were done under authority, in writing, from the Depart-

ment of the Army or any officer duly authorized thereunto by

the Department of the Army, but this subsection shall not bar

the prosecution of any officer, soldier, sutler or storekeeper,

attaché, or employee of the Army of the United States who

barters, donates, or furnishes in any manner whatsoever liquors,

beer, or any intoxicating beverage whatsoever to any Indian.

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.

(4) 18 U.S.C. § 1156.

§ 1156. Intoxicants possessed unlawfully

Whoever, except for scientific, sacramental, medicinal or

mechanical purposes, possesses intoxicating liquors in the Indian

country or where the introduction is prohibited by treaty or an

Act of Congress, 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.

The term “Indian country” as used in this section does not |

include fee-patented lands in non-Indian communities or rights-

50a

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.

(5) 18 U.S.C. § 3113.

§ 3113. Liquor violations in Indian country

If any superintendent of Indian affairs, or commanding

officer of a military post, or special agent of the Office of

Indian Affairs for the suppression of liquor traffic among

Indians and in the Indian country and any authorized deputies

under his supervision has probable cause to believe that any

person is about to introduce or has introduced any spirituous

liquor, beer, wine or other intoxicating liquors named in sec-

tions 1154 and 1156 of this title into the Indian country in

violation of law, he may cause the places, conveyances, and

packages of such person to be searched. If any such intoxicating

liquor is found therein, the same, together with such convey-

ances and packages of such person, shall be seized and delivered

to the proper officer, and shall be proceeded against by libel in

the proper court, and forfeited, one-half to the informer and

one-half to the use of the United States. If such person be a

trader, his license shall be revoked and his bond put in suit.

Any person in the service of the United States authorized by

this section to make searches and seizures, or any Indian may

take and destroy any ardent spirits or wine found in the Indian

country, except such as are kept or used for scientific, sacra-

mental, medicinal, or mechanical purposes or such as may be

introduced therein by the Department of the Army.

In all cases arising under this section and sections 1154 and

1156 of this title, Indians shall be competent witnesses.

Sla

(6) 18 U.S.C. § 3488.

§ 3488. Intoxicating liquor in Indian country as evidence of

unlawful introduction

The possession by a person of intoxicating liquors in Indian

country where the introduction is prohibited by treaty or

Federal statute shall be prima facie evidence of unlawful

introduction.

(7) 18 U.S.C. § 3618.

§ 3618. Conveyances carrying liquor

Any conveyance, whether used by the owner or another in

introducing or attempting to introduce intoxicants into the

Indian country, or into other places where the introduction is

prohibited by treaty or enactment of Congress, shall be subject

to seizure, libel, and forfeiture.

(8} - 8. 1055, 83d Congress, Ist Session.

83rd Congress

Ist Session H.R. 1055

IN THE HOUSE OF REPRESENTATIVES

January 6, 1953

Mr. Patten introduced the following bill; which was referred to

the Committee on Interior and Insular Affairs

A BILL

To terminate Federal discriminations against the Indians of

Arizona.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, That,

52a

wherever the phrase “Federal laws discriminating against

Indians” is used in this Act, the phrase shall be construed to

include the following and only the following provisions of law:

Revised Statutes, sections 467 and 2136, 25 United States

Code, section 266; Revised Statutes, section 2138, as amended,

18 United States Code, section 1157; Revised Statutes, section

2135, 25 United States Code, section 265; Revised Statutes,

section 2139, as amended, 18 United States Code, sections

1154 and 1156; and section | of the Act of July 4, 1884

(23 Stat. 94, 25 U.S.C., sec. 195); all of the said laws being

laws which forbid the sale, purchase, or possession by Indians

of personal property which may be sold, purchased, or pos-

sessed by non-Indians.

SEC. 2. That the said Federal laws discriminating against

Indians shall not hereafter apply to any act or transaction

within the State of Arizona outside an Indian reservation which

is in conformity with the laws of Arizona.

SEC. 3. That the said Federal laws discriminating against

Indians shall not hereafter apply to any transaction within an

Indian reservation in the State of Arizona which is in conform-

ity with the ordinances of the tribe or tribes having jurisdiction

over the said reservation.

SEC, 4. The consent of the United States is hereby given to

repeal of the third and eleventh paragraphs of article 20 of the

Constitution of Arizona, if the people of Arizona shall duly

adopt a constitutional amendment repealing the aforesaid para-

graphs.

SEC. 5. It shall be the duty of the Secretary of the Interior to

cause to be published in the Federal Register any ordinance

duly adopted by any Indian tribe or tribes in the State of

Arizona which authorizes the sale, purchase, or possession by

Indians on that reservation of personal property which may be

53a

sold, purchased, or possessed by non-Indians outside of Indian

reservations.

(9) Act of August 15, 1953, Pub.L. 83-277, 67 Stat. 586.

AN ACT

To eliminate certain discriminatory legislation against Indians in

the United States.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, That

chapter 53 of title 18, United States Code, is hereby amended

by inserting at the end of the chapter analysis preceding section

1151 of stich title the following new item:

“1161. Application of Indian liquor laws.”

SEC. 2. Title 18, United States Code, is hereby further

amended by inserting in chapter 53 thereof immediately after

section 1160 a new section, to be designated as section 1161,

as follows:

“§ 1161. Application of Indian liquor laws

“The provisions of sections 1154, 1156, 3113, 3488, and

3618, of this title, 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.”

SEC. 3. The consent of the United States is hereby given to

repeal of the third and eleventh paragraphs of article 20 of the

constitution of Arizona, and that part of section 1 of article 21

of the constitution of New Mexico relating to the sales of

intoxicants to Indians, if the people of Arizona and New

54a

Mexico shall adopt constitutional amendments to accomplish

such repeal.

SEC. 4. Section 9 of the Act of June 4, 1920, An Act to

provide for allotment of lands of the Crow Tribe, for the

distribution of tribal funds, and for other purposes (41 Stat.

751), is hereby repealed.

(10) Reclamation Act of 1902, 32 Stat. 390, 8 8.

That nothing in this act shall be construed as affecting or

intended to affect or to in any way interfere with the laws of

any State or Territory relating to the control, appropriation,

use, or distribution of water used in irrigation, or any vested

right acquired thereunder and the Secretary of the Interior, in

carrying out the provisions of this act, shall proceed in con-

formity with such laws, and nothing herein shall in any way

affect any right of any State or of the Federal Government or

of any landowner, appropriator, or user of water in, to, or

from any interstate stream or the waters thereof: Provided,

That the right to the use of water acquired under the provisions

of this act shall be appurtenant to the land irrigated and bene-

ficial use shall be the basis, the measure, and the limit of the

right.

(11) New Mexico Enabling Act, 36 Stat. 557, § 2.

The delegates to the convention thus elected shall meet....

After organization they shall declare on behalf of the people of

said proposed state that they adopt the Constitution of the

United States, whereupon the said convention shall be, and is

hereby, authorized to form a constitution and provide for a

state government for said proposed state, all in the manner and

under the conditions contained in this act. The constitution

shall be republican in form and make no distinction in civil

or political rights on account of race or color, and shall not be

55a

repugnant to the Constitution of the United States and the

principles of the Declaration of Independence.

And said convention shall provide, by an ordinance irrevoc-

able without the consent of the United States and the people of

said state—

First. That perfect toleration of religious sentiment shall be

secured, and that no inhabitant of said state shall ever be

molested in person or property on account of his or her mode

of religious worship; and that polygamous or plural marriages,

or polygamous cohabitation, and the sale, barter, or giving of

intoxicating liquors to Indians and the introduction of liquors

into Indian country, which term shall also include all lands

now owned or occupied by the Pueblo Indians of New Mexico,

are forever prohibited.

Second. That the people inhabiting said proposed state do

agree and declare that they forever disclaim all right and title to

the unappropriated and ungranted public lands lying within the

boundaries thereof and to all lands lying within said boundaries

owned or held by any Indian or Indian tribes the right or title

to which shall have been acquired through or from the United

States or any prior sovereignty, and that until the title of such

Indian or Indian tribes shall have been extinguished the same

shall be and remain subject to the disposition and under the

absolute jurisdiction and control of the congress of the United

States; that the lands and other property belonging to citizens

of the United States residing without the said state shall never

be taxed at a higher rate than the lands and other property

belonging to residents thereof; that no taxes shall be imposed

by the state upon lands or property therein belonging to or

which may hereafter be acquired by the United States or

reserved for its use; but nothing herein, or in the ordinance

herein provided for, shall preciude the said state from taxing,

as other lands arid other property are taxed, any lands and other

56a

property outside of an Indian reservation owned or held by any

Indian, save and except such lands as have been granted or

acquired as aforesaid or as may be granted or confirmed to any

Indian or Indians under any act of congress, but said ordinance

shall provide that all such lands shall be exempt from taxation

by said state so long and to such extent as congress has pre-

scribed or may hereafter prescribe.

x cd *

Eighth. That whenever hereafter any of the lands contained

within Indian reservations or allotments in said proposed state

shall be allotted, sold, reserved, or otherwise disposed of, they

shall be subject for a period of twenty-five years after such

allotment, sale, reservation, or other disposal to all the laws of

the United States prohibiting the introduction of liquor into

the Indian country; and the terms “Indian” and “Indian coun-

try”’ shall include the Pueblo Indians of New Mexico and the

lands now owned or occupied by them.

(12) Act of August 15, 1953, Pub.L. 83-280, 67 Stat. 588.

AN ACT

To confer jurisdiction on the States of California, Minnesota,

Nebraska, Oregon, and Wisconsin, with respect to criminal

offenses and civil causes of action committed or arising on

Indian reservations within such States, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, That

chapter 53 of title 18, United States Code, is hereby amended

by inserting at the end of the chapter analysis preceding section

1151 of suth title the following new item:

“*1162. State jurisdiction over offenses committed by or against

Indians in the Indian country.”

SEC. 2. Title 18, United States Code, is hereby amended by

inserting in chapter 53 thereof immediately after section

57a

1161 a new section, to be designated as section 1162, as

follows:

“§ 1162. State jurisdiction over offenses committed by or

against Indians in the Indian country

“(a) Each of the States listed in the following table shall

have jurisdiction over offenses committed by or against Indians

in the areas of Indian country listed opposite the name of the

State to the same extent that such State has jurisdiction over

offenses committed elsewhere within the State, and the criminal

laws of such State shall have the same force and effect within

such Indian country as they have elsewhere within the State:

“State of Indian country affected

California._._.._. All Indian country within the State

Minnesota________ All Indian country within the State, except

the Red Lake Reservation

Nebraska ._______. All Indian country within the State

ee All Indian country within the State, except

the Warm Springs Reservation

Wisconsin,_.______ All Indian country within the State, except

the Menominee Reservation

“(b) Nothing in this section shall authorize the alienation,

encumbrance, or taxation of any real or personal property,

including water rights, belonging to any Indian or any Indian

tribe, band, or community that is held in trust by the United

States or is subject to a restriction against alienation imposed

by the United States; or shall authorize regulation of the use

of such property in a manner inconsistent with any Federal

treaty, agreement, or statute or with any regulation made

pursuant thereto; or shall deprive any Indian or any Indian

tribe, band, or community of any right, privilege, or immunity

afforded under Federal treaty, agreement, or statute with

respect to hunting, trapping, or fishing or the control, licensing,

or regulation thereof.

58a

““(c) The provisions of sections 1152 and 1153 of this chapter

shall not be applicable within the areas of Indian country listed

in subsection (a) of this section.”

SEC. 3. Chapter 85 of title 28, United States Code, is hereby

amended by inserting at the end of the chapter analysis preceed-

ing section 1331 of such title the following new item:

“1360. State civil jurisdiction in actions to which Indians are

parties.”

' SEC. 4. Title 28, United States Code, is hereby amended by

_inserting in chapter 85 thereof immediately after section 1359

a new section, to be designated as section 1360, as follows:

“§ 1360. State civil jurisdiction in actions to which Indians are

parties

“(a) Each of the States listed in the following table shall have

jurisdiction over civil causes of action between Indians or to

which Indians are parties which arise in the areas of Indian

country listed opposite the name of the State to the same

extent that such State has jurisdiction over other civil causes

of action, and those civil laws of such State that are of general

application to private persons or private property shall have the

same force and effect within such Indian country as they have

elsewhere within the State:

“State of Indian country affected

California_...____ All Indian country within the State

Minnesota________ All Indian country within the State, except

the Red Lake Reservation

Nebraska_________ All Indian country within the State

tere All Indian country within the State, except

the Warm Springs Reservation

Wisconsin_______. All Indian country within the State, except

the Menominee Reservation

59a

“(b) Nothing in this section shall authorize the alienation,

encumbrance, or taxation of any real or personal property,

including water rights, belonging to any Indian or any Indian

tribe, band, or community thatsis held in trust by the United

States or is subject to a restriction against alienation imposed

by the United States; or shall authorize regulation of the use of

such property in a manner inconsistent with any Federal treaty,

agreement, or statute or with any regulation made pursuant

thereto; or shall confer jurisdiction upon the State to adjudi-

cate, in probate proceedings or otherwise, the ownership or

right to possession of such property or any interest therein.

“(c) Any tribal ordinance or custom heretofore or hereafter

adopted by an Indian tribe, band, or community in the exercise

of any authority which it may possess shall, if not inconsistent

with any applicable civil law of the State, be given full force

and effect in the determination of civil causes of action pur-

suant to this section.”

SEC. 5. Section | of the Act of October 5, 1949 (63 Stat.

705, ch. 604), is hereby repealed, but such repeal shall not

affect any proceedings heretofore instituted under that section.

SEC. 6. Notwithstanding the provisions of any Enabling Act

for the admission of a State, the consent of the United States is

hercSy given to the people of any State to amend, where

necessary, their State constitution or existing statutes, as the

case may be, to remove any legal impediment to the assumption

of civil and criminal jurisdiction in accordance with the pro-

visions of this Act: Provided, That the provisions of this Act

shall not become effective with respect to such assumption of

jurisdiction by any such State until the people thereof have

appropriately amended their State constitution or statutes as

the case may be.

SEC. 7. The consent of the United States is hereby given to

any other State not having jurisdiction with respect to criminal

60a

offenses or civil causes of action, or with respect to both, as

provided for in this Act, to assume jurisdiction at such time

and in such manner as the people of the State shall, by affirm-

ative legislative action, obligate and bind the State to assump-

tion thereof.

Approved August 15, 1953.

6la

APPENDIX K

MEMORANDUM SUMMARIZING

DEPARTMENT OF JUSTICE POSITION REGARDING

JURISDICTION OVER “VICTIMLESS” OFFENSES

COMMITTED BY NON-INDIANS, PRESENTED BY

DEPUTY ASSISTANT ATTORNEY GENERAL

LARRY A. HAMMOND AT THE FEDERAL BAR

ASSOCIATION INDIAN LAW CONFERENCE

HELD IN PHOENIX, ARIZCNA ON APRIL 5-6, 1979.

Deputy Assistant Attorney General

Office of Legal Counsel

Department of Justice

Washington, D.C. 20530

March 30, 1979

JURISDICTION OVER “VICTIMLESS”

OFFENSES COMMITTED BY NON-INDIANS

On March 21, 1979 the Office of Legal Counsel responded

to a request from the Deputy Attorney General, Benjamin R.

Civiletti, for our opinion on the question whether so-called

“victimless” offenses committed by non-Indians on Indian reser-

vations fall within the jurisdiction of the state or federal courts.

Several days earlier the Department of Justice filed in the United

States District Court for New Mexico a memorandum in support

of a motion for summary judgment in a case styled Mescalero

Apache Tribe v. Bell in which the Tribe has sought to require

the United States to enforce the New Mexico state traffic codes

against non-Indians operating vehicles on the Reservation. The

following is a summary of the principal conclusions set forth

in the opinion and in the memorandum:

62a

(1) Most traffic offenses and other crimes and offenses in

which there is not a plainly iderstifiable “victim” are

within the exclusive jurisdiction of the states when that

offense is committed by a non-Indian.

(2) Where, however, there is an identifiable Indian victim,

or where the conduct in question posed an immediate

and direct threat to Indian persons, property, or to speci-

fic tribal community interests there is, under the Assimila-

tive Crimes Act, a basis for asserting federal jurisdiction.

(3) Although the issue is not at all free from doubt, it is our

judgment that in cases in which there is as discussed in

(2) above, a basis for federal jurisdiction the states would

not be ousted from jurisdiction, i.e., the jurisdiction of

the state and federal governments in these cases would be

concurrent.

These conclusions were reached after consultation with the

Office of the Solicitor of Interior and with representatives of the

Native American Rights Fund and the Litigation Committee of

the National Congress of American Indians. These conclusions

represent the beginning point, rather than the culmination, of the

Department of Justice’s efforts to provide coherent and effective

law enforcement in those areas left uncertain after the Supreme

Court’s decision last Term in Oliphant v. Suquamish Tribe, 435

U.S. 191 (1978). We anticipate working closely with !nterior,

the Indian Community, the United States Attorneys, and state

law enforcement officials both in the implementation of this

opinion, and in considering whether some form of legislative

change in the controlling statutes should be proposed.

s/ Larry A. Hammond

Larry A. Hammond

Deputy Assistant Attorney General

Office of Legal Counsel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.