Rice v. Rehner

Justice Blackmun, with whom Justice Brennan and Justice Marshall join, dissenting.

The Court today holds that a State may prevent a federally licensed Indian trader from selling liquor on an Indian reservation, or may condition the trader’s right to sell liquor upon payment of a substantial license fee. Because I believe the State lacks authority to require a license, I dissent.

Since 1790, see Act of July 22, 1790, ch. 33,1 Stat. 137, the Federal Government has regulated trade with the Indians and has required persons engaging in such trade to obtain a federal license. Existing law provides:

“The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” Act of Aug. 15, 1876, ch. 289, § 5, 19 Stat. 200, 25 U. S. C. § 261 (emphasis added).

A person wishing to trade with the Indians is “permitted to do so under such rules and regulations as the Commissioner *736of Indian Affairs may prescribe,” once he has established “to the satisfaction of the Commissioner . . . that he is a proper person to engage in such trade.” Act of Mar. 3, 1901, ch. 832, § 1, 31 Stat. 1066, as amended by the Act of Mar. 3, 1903, ch. 994, §10, 32 Stat. 1009, 25 U. S. C. §262.

Pursuant to this statutory authority, the Commissioner of Indian Affairs has promulgated detailed regulations governing the licensing and conduct of Indian traders. 25 CFR §§ 140.1-140.26 (1983). An applicant for an Indian trader’s license must submit information regarding his financing, his background and business experience, and the persons he intends to employ. Both the applicant and his employees must provide detailed references. See § 140.9(a). Gambling and drug sales on licensed premises are prohibited. §§140.19, 140.21. The trader’s prices are reviewable by federal officials, his books are subject to inspection, his merchandise must be of good quality, and his credit practices are restricted. §§ 140.22, 140.24. These statutes and regulations governing trade with the Indians have been described aptly as “comprehensive” and “all-inclusive.” Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685, 690 (1965).

In Warren Trading Post, the Court stated that these statutes and regulations “would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders.” The Court held that a State could not levy a gross proceeds tax upon the income of a licensed Indian trader, reasoning that imposition of the tax

“would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders . . . except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. This state tax on gross income would put financial burdens on [the trader] or the Indians with whom it deals in addition to those Congress or the tribes *737have prescribed, and could thereby disturb and disarrange the statutory plan Congress set up . . . Id., at 691.

The Court recently reaffirmed Warren Trading Post in Central Machinery Co. v. Arizona Tax Comm’n, 448 U. S. 160 (1980). In that case, the Court held that federal regulation of Indian traders was so comprehensive that States lacked authority to tax even a sale by an unlicensed trader who maintained no place of business on the reservation. “It is the existence of the Indian trader statutes,” the Court said, “and not their administration, that pre-empts the field of transactions with Indians occurring on reservations.” Id., at 165. The Court noted that Congress had “ ‘undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject.’” Id., at 166, quoting Warren Trading Post, 380 U. S., at 691, n. 18.

The Court’s reasoning in Warren Trading Post and Central Machinery, both of which involved state taxes, necessarily extends to other types of state regulation as well. A State, through its own licensing requirement, cannot choose who may trade with the Indians and what goods they may sell. The “sole power and authority” to make decisions of this type is vested in the Commissioner of Indian Affairs, 25 U. S. C. §261, and applicants who win the Commissioner’s approval are to be permitted to trade, § 262. An independent requirement of approval by state authorities has no place in this scheme. Yet California imposes just such a requirement on Indian traders who choose to sell a particular product— liquor. California reserves to itself the power to deny any trader the right to sell, and from those to whom it grants permission, it requires a substantial fee.1 As in Warren Trad*738ing Post, this licensing requirement clearly “frustrate[s] the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders . . . except as authorized by Acts of Congress or by valid regulations.” 380 U. S., at 691.

The Court does not explain how it reconciles California’s liquor licensing requirement with federal law governing Indian traders. Instead, the Court appears to rest its conclusion on three propositions. First, the Court asserts that “tradition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians.” Ante, at 722; see ante, at 725, 731. Second, the Court finds a “historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country.” Ante, at 724; see ante, at 726, 728, 731, n. 14. Third, the Court concludes that Congress “authorized . . . state regulation over Indian liquor transactions” by enacting 18 U. S. C. § 1161. Ante, at 726. None of these propositions supports the Court’s conclusion.

The Court gives far too much weight to the fact that Indian tribes historically have not exercised regulatory authority over sales of liquor. In prior pre-emption cases, the Court’s focus properly and consistently has been on the reach and comprehensiveness of applicable federal law, colored by the recognition that “traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important 'backdrop’ . . . against which vague or ambiguous federal enactments must always be measured.” White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 143 (1980), quoting McClanahan v. Arizona State *739Tax Comm’n, 411 U. S. 164, 172 (1973). The Court’s analysis has never turned on whether the particular area being regulated is one traditionally within the tribe’s control. In Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U. S. 832 (1982), for example, the Court held that comprehensive and pervasive federal regulation of Indian schools precluded the imposition of a state tax on construction of such a school. The Court did not find it relevant that federal policy had not “encourag[ed] the development of Indian-controlled institutions” until the early 1970’s, id., at 840, or that the school in question was “the first independent Indian school in modern times,” id., at 834. In Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), the Court held that a State could not require the operator of an on-reservation “smoke shop” to obtain a state cigarette retailer’s license; the Court did not inquire whether tribal Indians traditionally had exercised regulatory authority over cigarette sales. And in Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), the Court concluded that a State could not impose a use tax on personalty installed in ski lifts at a tribal resort, yet it could scarcely be argued that the construction of ski resorts is a matter with which Indian tribes historically have been concerned.

It is hardly surprising, given the once-prevalent view of Indians as a dependent people in need of constant federal protection and supervision, that tribal authority until recent times has not extended to areas such as education, cigarette retailing, and development of resorts. State authority has been pre-empted in these areas not because they fall within the tribes’ historic powers, but rather because federal policy favors leaving Indians free from state control, and because federal law is sufficiently comprehensive to bar the States’ exercise of authority. And “[cjontrol of liquor has historically been one of the most comprehensive federal activities in Indian affairs.” F. Cohen, Handbook of Federal Indian Law 307 (1982 ed.). Federal regulation began in 1802, Act of *740Mar. 30, 1802, §21, 2 Stat. 146, and sales of liquor to Indians or in Indian country were absolutely prohibited by federal law until 1953. See 18 U. S. C. §§ 1154, 1156.

In light of this absolute prohibition, the Court’s reliance in this case upon what it perceives as a “historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country,” ante, at 724, is disingenuous at best. The Court correctly notes that States were permitted, and in some instances required, to enforce these federal prohibitions through their own criminal laws. Ante, at 723-724, and nn. 9, 10. But the sources cited by the Court do not even suggest that the States had independent authority to decide who might sell liquor in Indian country, or to impose regulations in addition to those found in federal law.2

The only possible source of state authority to regulate liquor sales, and the source upon which the Court ultimately relies, is 18 U. S. C. § 1161. This statute provides that various federal criminal prohibitions against the sale of liquor in Indian country shall not apply to sales “in conformity both with the laws of the State . . . and with an ordinance duly adopted by the tribe having jurisdiction over [the] area . . . .”3 Sec*741tion 1161 operates as “local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law [is] not violated.” United States v. Mazurie, 419 U. S. 544, 547 (1975). As is demonstrated by the Court’s review of the legislative history, ante, at 726-728, and indeed by the language of the statute itself, § 1161 ensures that sales of liquor that would be contrary to state law remain prohibited by federal statute. If a State is altogether “dry,” Indian country within that State must be “dry” as well. If a State bans liquor sales to minors or liquor sales on Sundays, sales to minors and Sunday sales also are forbidden in the Indian country. Section 1161, in other words, as the Court has said in the past, “permit[s] application of state liquor law standards within an Indian reservation.” Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S., at 687, n. 3 (emphasis added).4

In this case, of course, no question is raised respecting compliance with state liquor law standards. Respondent Rehner has not challenged the substantive conditions imposed by the State upon the sale of liquor. The sole question before the Court is whether §1161 grants the State regulatory jurisdiction over liquor transactions on Indian *742reservations, or, in other words, whether it authorizes the State to require a license as a condition of doing business.5 On this question, the statute and its legislative history are silent.

This silence is significant, in light of the Court’s frequent recognition that “ ‘State laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.’” McClanahan v. Arizona State Tax Comrn’n, 411 U. S., at 170-171, quoting U. S. Dept. of the Interior, Federal Indian Law 845 (1958); Bryan v. Itasca County, 426 U. S. 373, 376, n. 2 (1976). In cases where a State seeks to assert regulatory authority, the Court has required far more than a mere reference to state law in a federal statute. In Bryan v. Itasca County, for example, the Court refused to find a grant of regulatory authority in § 4(a) of Pub. L. 280, 67 Stat. 589, as amended, 28 U. S. C. § 1360(a), which provides that a State’s “civil laws . . . that are of general application to private persons or private property shall have the same force and effect within... Indian country as they have elsewhere.” Despite this seemingly absolute language, the Court found nothing in the statute or its history “remotely resembling an intention to confer general state civil regulatory control over Indian reservations.” 426 U. S., at 384. The Court noted that several other statutes passed by the same Congress— the so-called Termination Acts6 — expressly conferred upon the States general regulatory authority over certain Indian tribes. Construing Pub. L. 280 and the Termination Acts in *743pari materia, the Court concluded that “if Congress in enacting Pub. L. 280 had intended to confer upon the States general civil regulatory powers . . . over reservation Indians, it would have expressly said so.” 426 U. S., at 390.

I reach the same conclusion here. This Court has held in other contexts that federal statutes requiring “compl[iance] with . . . State . . . requirements” do not require that the party obtain a state permit or license. E. g., Hancock v. Train, 426 U. S. 167 (1976) (interpreting § 118 of the Clean Air Act, 42 U. S. C. § 1857f); EPA v. California State Water Resources Control Board, 426 U. S. 200 (1976) (interpreting §313 of the Federal Water Pollution Control Act Amendments of 1972, 33 U. S. C. § 1323). The federal agency charged with administering Indian affairs takes the position that § 1161 does not authorize States to enforce their liquor licensing requirements on Indian reservations, Applicability of the Liquor Laws of the State of Montana on the Rocky Boy’s Reservation, 78 I. D. 39 (1971), and this agency interpretation is entitled to deference.7 The only other Court of *744Appeals to have considered the question has taken the same position. See United States v. New Mexico, 590 F. 2d 323 (CA10 1978), cert. denied, 444 U. S. 832 (1979).8 Because nothing in the language or legislative history of § 1161 indicates any intent to confer licensing authority on the States, I would hold that California’s attempt to require Indian traders to obtain state liquor licenses is pre-empted by federal law.

The Court obviously argues to a result that it strongly feels is desirable and good. But that, however strong the feelings may be, is activism in which this Court should not indulge. I therefore dissent.

An application for an off-sale general liquor license must be accompanied by a fee of $6,000, which is deposited in the State’s General Fund. Cal. Bus. & Prof. Code Ann. §23954.5 (West Supp. 1983). Once a license is granted, the licensee must pay annual fees totalling $409. §§ 23053.5, *73823320(21), 23320.2. Portions of these fees are deposited in the General Fund as well. See §§ 23320.2, 25761. Licenses are available in very limited numbers, see § 23817 (West 1964), but are transferable upon the approval of the Department of Alcoholic Beverage Control, see § 24070 (West Supp. 1983). Respondent Rehner has alleged that the market price for an off-sale general license is approximately $55,000. App. JA-7.

For the most part, the cases cited by the Court upheld convictions under state statutes barring liquor sales on or off the reservation to persons of Indian descent. Such statutes clearly would be unconstitutional today, and in any event involved no exercise of state regulatory authority over reservation activities. The one case involving on-reservation activity is State v. Lindsey, 133 Wash. 140, 233 P. 327 (1925), which upheld a conviction of a non-Indian operating a distillery on reservation land. The court concluded that state law was applicable because “no personal or property right of an Indian, tribal or non-tribal, [was] involved in the action,” id., at 144, 233 P., at 328, relying on this Court’s decision in Draper v. United States, 164 U. S. 240 (1896).

Section 1161 provides in full:

“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 transac*741tion is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.”

The sections cross-referenced in § 1161 prohibit the distribution of alcoholic beverages to Indians and the possession of alcoholic beverages in Indian country, and establish procedures for enforcing these prohibitions.

Since California exercises general criminal jurisdiction over Indian country pursuant to §2 of Pub. L. 280, 67 Stat. 688, as amended, 18 U. S. C. §1162, it may enforce directly any substantive criminal provisions governing liquor sales on Indian reservations. For example, it is a misdemeanor under California law to sell or furnish liquor to a minor, Cal. Bus. & Prof. Code Ann. § 25658 (West 1964); this provision is as applicable in Indian country as elsewhere.

In several other federal statutes regulating Indian affairs, Congress has chosen to incorporate substantive state standards into federal law. E. g., 18 U. S. C. § 13 (Assimilative Crimes Act); 18 U. S. C. § 1153 (Major Crimes Act). These statutes, of course, do not confer any regulatory or enforcement jurisdiction on the States.

See, <?. g., 68 Stat. 718, 25 U. S. C. §564; 68 Stat. 769, 25 U. S. C. §726; 68 Stat. 1103, 25 U. S. C. §757.

Relying on a 1954 opinion issued by the Solicitor of the Department of the Interior, the Court states that the Bureau of Indian Affairs “contemplated that liquor transactions on reservations would be subject to . . . state licensing laws.” Ante, at 729. In fact, the sole question presented to the Solicitor in 1954 was whether § 1161 authorized a tribe to limit the types of liquor sales permitted on a reservation, i. e., whether the tribe could permit package sales but not sales for on-premises consumption. The Solicitor stated that the tribe could impose such a limit, and that an individual who sold liquor for on-premises consumption would be subject to federal prosecution even if he had obtained a state license permitting on-premises sales. The state license, in other words, would have no effect as far as federal law was concerned. But the Solicitor reserved decision on the question presented in this case:

“What acts would constitute a violation of the liquor laws of the State of California, is not a matter upon which at this time it is appropriate for me to express an opinion. Nor would it be appropriate for me to discuss the liquor licensing authority of the State Board of Equalization . . . .” Liquor — Tribal Ordinance Regulating Traffic Within Reservation, *744No. M-36241 (Sept. 22,1954), reprinted in 2 Op. Solicitor of Dept, of Interior Relating to Indian Affairs 1917-1974, pp. 1648, 1650.

The Solicitor addressed this reserved issue directly in 1971:

“If Congress had intended to impose state law here with state enforcement jurisdiction, we think Congress would have expressly granted jurisdiction to the states under 18 U. S. C. sec. 1161, which it did not do. Rather, we believe the intent was merely to require the state liquor laws to be used as the standard of measurement to define lawful and unlawful activity on the reservation.” 78 I. D., at 40.

See also F. Cohen, Handbook of Federal Indian Law 308 (1982) (“[Ejection 1161 incorporates state liquor laws as a standard of measurement to define what conduct is lawful or unlawful under federal law. . . . [Rjes-ervation Indians need not obtain a state liquor license to sell lawfully”).