Opposition — New Mexico v. United States

No. 78-1731

In The Supreme Court of the Wnited States

OCTOBER TERM, 1978

STATE OF NEW MEXICO AND JAMES R. BACA,

DIRECTOR, DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

EDWARD J. SHAWAKER

JUDITH W. WEGNER

Attorneys

Department of Justice

Washington, D.C. 20530

In The Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-1731

STATE OF NEW MEXICO AND JAMES R. BACA,

DIRECTOR, DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 12a-

22a) is reported at 590 F.2d 323. The district court’s

findings of fact and conclusions of law (Pet. App. 3a-8a)

are unreported.

”

JURISDICTION

The judgment of the court of appeals was entered on

December 18, 1978 (Pet. App. lla). On March 12, 1979,

Mr. Justice White extended the time within which to

file a petition for a writ of certiorari to and including

May 17, 1979, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 1161 requires an Indian tribe

owning and operating a liquor outlet on its reservation

to obtain a state liquor license.

2. Whether the ‘State of New Mexico has jurisdiction,

at tribally owned and operated facilities within the

Mescalero Apache Indian Reservation, to enforce its

laws governing the possession, sale, service, and con-

sumption of alcoholic beverages.

STATEMENT

Alcoholic beverages are sold at three locations within

the Mescalero Apache Indian Reservation.! At one of

these locations, a tribal bar in Mescalero, New Mexico,

'The Mescalero Apache Tribe was recognized by the United

States government in the Treaty of July 1, 1852, 10 Stat. 979.

The Mescalero Apache Indian Reservation was created by a

series of eight executive orders, the first of which was issued on

May 23, 1873, and the last on February 17, 1912. Substantially

all of the lands within the reservation are held by the United

States for the use of the Tribe (Pet. App. 3a). The Tribe has a

constitutional government organized pursuant to 25 U.S.C. 476.

In 1965, the Tribe adopted an ordinance governing the sale and

consumption of alcoholic beverages on the reservation (Pet.

App. 4a, 24a-25a). The ordinance was certified by the Secretary

of the Interior and published in the Federal Register (30 Fed.

Reg. 3553 (1965)).

3

liquor has been sold for more than ten years without a

state license. The sale of alcoholic beverages at the sec-

ond location, a bar at Apache Summit, is licensed by the

State of New Mexico (Pet. App. 5a). The third place at

which liquor is sold within the reservation, and the

primary focus of this litigation, is the Inn of the Moun-

tain Gods, a tribally owned and operated resort com-

plex, revenues from which are used for “the education,

social and economic welfare and governmental needs of

the Mescalero Apache people” (ibid.). Since July 1975,

alcoholic beverages have been sold at the Inn of the

Mountain Gods without a state liquor license.

On April 2, 1965, ten years before the Inn opened, an

official of the New\ Mexico Division of Liquor Control

informed the Tribe in a letter that it could establish its

own liquor operation\on reservation land without com-

ing under the Liquor Division’s control (Pet. App. 4a).

In September 1975, shortly after the Inn opened, the

State adopted a contrary view. Relying on this Court’s

decision in United States v. Mazurie, 419 U.S. 544

(1975), the New Mexico Department of Alcoholic Bev-

erage Control ordered the Tribe to “cease all sale,

service, possession or the permitting of consumption of

alccholic liquors and intoxicants at the Inn of the Moun-

tain Gods * * * until it has been clearly determined

under what conditions the sale, service, consumption,

or possession may be allowed” (Pet. App. 27a). The

State also ordered liquor wholesalers to cease deliveries

to the tribal bars (id. at 6a). The State has threatened

to send law enforcement officers onto the reservation to

enforce New Mexico’s liquor laws (ibid. ).

Because of statutory quotas restricting the number of

liquor licenses that may be issued in New Mexico, and

because the State refused to approve the transfer of the

Apache Summit bar license to the Inn of the Mountain

Gods, the Tribe can obtain a license only by purchase or

lease from an existing holder. The purchase price for a

license is more than $50,000 (Pet. App. 6a).

4

Acting on its own behalf and on behalf of the Tribe,

the United States bvought this action in the United

States District Court for the District of New Mexico.

The complaint sought a declaration that the Tribe had

sole authority to license and regulate the sale of liquor

through tribally operated outlets located within the

reservation. It also sought an injunction prohibiting the

State from ordering law enforcement personnel to en-

force State liquor laws in connection with the Tribe’s

sale of alcoholic beverages within the reservation.

The district court granted the relief requested (Pet.

App. la-10a). The court ruled (id. at 7a) that “[a]s be-

tween the Mescalero Apache Tribe and the State of

New Mexico, the Mescalero Apache Tribe has sole

jurisdiction for regulating the licensing, sale, possession

and distribution of alcoholic beverages at tribal-owned

outlets within the exterior boundaries of the Mescalero

Apache Reservation.” The court stated that the federal

Constitution grants to Congress the sole authority to

regulate commerce with the Indian tribes and that

“{tlhe 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 regu-

late the sale of alcoholic beverages at such outlets

within the exterior boundaries of the Mescalero Apache

Reservation” (ibid.). The court held that neither the

Twenty-first Amendment nor 18 U.S.C. 1161 au-

thorizes New Mexico to exercise jurisdiction to enforce

its liquor laws within the reservation (ibid.).

The court of appeals affirmed (Pet. App. 12a-22a).

Like the district court, the court of appeals cited Arti-

cle I, Section 8, Clause 3 of the United States Constitu-

tion as the legal basis for Congress’ authority to regu-

late commerce with the Indian tribes (id. at 20a). After

reviewing the relevant decisions of this Court, the court

of appeals concluded (ibid.) that “regulatory powers in

Indian country or on Indian lands belong to the Con-

gress except for inherent jurisdiction of the tribes.

5

Congress may delegate this authority to the state, but

when it does so it must be in specific terms. Section

1161 * * * does not delegate this authority either ex-

pressly or impliedly.” The court of appeals also rejected

New Mexico’s argument that the Twenty-first Amend-

ment authorizes States to enforce their liquor licensing

laws on Indian reservations (Pet. App. 22a).

ARGUMENT

The decision of the court of appeals is correct and

does not warrant further review.

1. This Court has settled that Congress may regulate

commerce in liquor with the Indian tribes. United

States v. Mazurie, 419 U.S. 544, 554-555 (1975); Perrin

v. United States, 282 U.S. 478, 482 (1914). Congress

has long occupied this field. See, e.g., United States v.

48 Gallons of Whiskey, 93 U.S. 188, 194 (1876). As a

consequence, the states are precluded from imposing

their own regulatory scheme without congressional con-

sent. This follows from Warren Trading Post v.

Arizona Tax Commission, 380 U.S. 685 (1965), in

which the Court invalidated a state tax on persons

trading with the Indians on the reservation and held

that federal regulation had preempted the field.

Because of the comprehensive federal regulation of

commerce with the Indians, this Court has repeatedly

ruled that, in the absence of a federal statute specif-

ically authorizing the states to license or tax certain ac-

tivity by Indians on the reservation, the state cannot

exercise such power. Bryan v. Itasca County, 426 U.S.

373, 376-377 (1976); Moe v. Confederated Salish and

Kootenai Tribes, 425 U.S. 463, 480-481 (1976);

McClanahan v. Arizona State Tax Commission, 411

U.S. 164, 177-181 (1973). See also Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148 (1973). “The policy of

leaving Indians free from state jurisdiction and control

is deeply rooted in the Nation’s history.” Rice v. Olson,

324 U.S. 786, 789 (1945). In light of this policy, courts

will not interpret a statute to grant States jurisdiction

6

over Indians on reservations unless there is a clear and

unambiguous expression of congressional intent to ter-

minate Indian immunity from state law. Bryan v.

Itasca County, supra, 426 U.S. at 392-393. Doubtful

expressions are resolved in favor of the Indians. /bid.

Congress has not authorized the states to regulate

the sale of aleoholic beverages by Indians on the reser-

vation. In particular, Section 1161 of the federal crimi-

nal code, on which petitioners rely, does not confer such

authority on the states. The statute merely provides

that federal criminal laws prohibiting the sale and pos-

session of liquor in Indian country do not apply to any

act or transaction that “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 * * * .” This provision was enacted to give

individual tribes the option of retaining the existing

federal prohibition against the introduction of liquor

into “Indian country” or regulating liquor sales and use

in conformity with state law and under an ordinance

approved by the Secretary of the Interior. United

States v. Mazurie, supra, 419 U.S. at 547. The statute

does not address the extension of state control over liq-

uor transactions to Indian reservations.? Instead, Sec-

tion 1161 contemplates that state substantive standards

2The language of Section 1161 may be compared to that found

in the Clean Air Amendments of 1970, 42 U.S.C. 1857f, and the

Federal Water Pollution Control Act Amendments of 1972, 33

U.S.C. 1323. In Hancock v. Train, 426 U.S. 167 (1976), and

EPA vy. State Water Resources Control Board, 426 U.S. 200

(1976), this Court held that the Clean Air Amendments and the

FWPCA Amendments do not authorize States to insist that fed-

eral air and water pollution control facilities obtain state

operating permits. The Court’s more recent decision in Califor-

nia v. United States, 438 U.S. 645 (1978), acknowledged that

state permit requirements govern the appropriation of water for

federal water projects, but the Court reached that result

against the unique backdrop of federal deference to state water

law. No such tradition of deference to the states exists where

Indians and their activities on a reservation are concerned.

‘om —

—_—_—_——_—

concerning such matters as hours of sale or sale to

minors will be incorporated by reference in much the

same way as state law is incorporated for purposes of

defining federal offenses under the Assimilative Crimes

Act. See 18 U.S.C. 13, 1152.

The statutory reference to state law defines an

exemption from the federal prohibitions regarding the

introduction of liquor into Indian country. If alcoholic

beverages are sold on a reservation in violation of the

applicable state law, the exemption provided in Section

1161 will not apply, and the offending parties will be

subject to prosecution under one or more of the federal

criminal provisions enumerated in Section 1161 (7.e., 18

U.S.C. 1154, 1156, 3118, 3488, 3618). But Section 1161

evidences no intent to extend state jurisdiction or en-

forcement authority to the activities of Indians on the

reservation.4

*The model of the Assimilative Crimes Act demonstrates the

fallacy in petitioners’ argument that Congress must have in-

tended that the state enforce state law on Indian reservations

because uniform administration demands that a single prosecu-

tor be empowered to apply and interpret state law in a consist-

ent fashion.

4 Because federal criminal prosecution remains a possible

consequence if the sale of liquor on the reservation does not

conform with state law, the effect of the court of appeals’ deci-

sion will hardly be as drastic as petitioners suggest. Petitioners

incorrectly state (Pet. 11-12; footnote omitted) that the Tenth

Cireuit’s decision “would preclude even a federal prosecution

under Section 1154 or 1156 for failure to comply with State law.”

In support of this proposition, they state (Pet. 12 n.5) that “the

United States is permitting the Inn of the Mountain Gods to

operate without conforming to the licensing requirement of

State law.” The response to this argument is twofold. In the

first place, Section 1161’s incorporation of state law does not

necessarily mean that Indians desiring to sell liquor on the res-

ervation must comply with state licensing provisions as well as

substantive state laws concerning the hours during which liquor

may be sold, the sale of liquor to minors, and other such mat-

ters. The better view appears to be that, when Congress

8

Petitioners also contend (Pet. 16-21) that the ruling

of the courts below prohibits the States from enforcing

the criminal provisions of their liquor laws against non-

Indians on the reservation and is therefore inconsistent

with this Court’s decisions in United States v. McBrat-

ney, 104 U.S. 621 (1881), Draper v. United States, 164

U.S. 240 (1896), and New York ex rel. Ray v. Martin,

326 U.S. 496 (1946). Those cases involved violent

crimes by non-Indians against non-Indians on the res-

ervation; they are inapposite to the situation presented

here. The ruling below does not directly discuss New

Mexico’s authority to enforce its liquor laws with re-

spect to establishments owned and operated by non-

Indians on the reservation, and no such question is in-

volved in this litigation. The only matter now in con-

troversy is whether the Mescalero Apache Tribe must

have a state liquor license in order to sell alcoholic bev-

erages at the Inn of the Mountain Gods. The district

court and the court of app2als correctly answered that

question in the negative.

2. The court of appeals correctly ruled (Pet. App.

22a) that the Twenty-first Amendment does not au-

enacted Section 1161 in 1953, it intended to permit Indian tribes

to decide to sell and use liquor on the reservation to the same

extent that the surrounding State permits such sale and use or

to some lesser extent set forth in a tribal ordinance. There is no

indication in Section 1161 that Congress intended to compel In-

dian tribes to seek a state license for each location on the reser-

vation at which a tribe wishes to sell liquor. Moreover, even if

this was Congress’ intent, a tribe’s failure to obtain a license

required by a state law would give rise to a violation of federal,

not state, law. If a failure to obtain a 'icense meant that sub-

sequent sales of liquor by Indians were not in conformity with

state law, within the meaning of Section 1161, then the exemp

tion provided by Section 1161 would no longer be available and

the sales would violate 18 U.S.C. 1154 and 1156. Although fed-

eral prosecution might be appropriate in such instances, there

would still be no justification for petitioners’ insistence that the

State itself could enforce its licensing requirements on the res-

ervation.

9

thorize the States to enforce their liquor licensing laws

on Indian reservations. The Amendment prohibits the

“transportation or importation into any State * * * for

delivery or use therein of intoxicating liquors, in viola-

tion of the laws thereof * * * .” But the Mescalero

Apache Reservation is a jurisdiction separate and apart

from the State of New Mexico. Liquor transported to

the reservation for sale and consumption on the reser-

vation is not brought into New Mexico “for delivery or

use therein.” The delivery and use is on the reservation

and under a distinct sovereignty. Just as the Twenty-

first Amendment does not authorize the states to regu-

late the sale of liquor on national park lands within

state borders, so it does not expand the jurisdiction of

the states to reach within the boundaries of Indian res-

ervations. See Collins v. Yosemite Park Co., 304 U.S.

518, 5386-538 (1938).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

EDWARD J. SHAWAKER

JUDITH W. WEGNER

Attorneys

JULY 1979