Brown v. DIST. CT. OF SEVENTEENTH JUD. D.

IN THE SUPREME COURT OF THE STATE OF MONTANA

CAROLINE ANN BROWN AND HARLEY LEROY
BROWN,
Petitioners,
-vs-
DISTRICT COURT OF THE SEVENTEENTH
JUDICIAL DISTRICT FOR THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
BLAINE, and THE HONORABLE LEONARD
LANGEN, a Judge thereof,
Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Petitioner:
Frisbee, Moore, Stufft & Olson; Jayne Mitchell, Cut
Bank, Montana
For Respondent:
Hon. Karc ~acicot, Attorney General, Helena, Montana
Clay Smith, Solicitor, Attorney General's office
Donald Ranstrom, County Attorney, chinook, Montana

submitted on ~ r i e f s : Dec. 14, 1 9 8 8
~ecided: J u l y 1 9 , 1 9 8 9
Filed:

--- -- - -
P

' Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

The United States Supreme Court in ice, ~irector,
Department of ~lcoholic Beverage Control of ~alifornia v.
Rehner (hereafter - -
ice v. Rehner) (1983), 463 U.S. 713, 103
S.Ct. 3291, 77 L.Ed.2d 961, decided that Congress, by
enacting 18 U.S.C. S 1161, gave states the power to regulate
within their borders the possession and sale of liquor by
Indian persons in Indian country through the licensing
provisions of the states. Our case here answers the further
problem: whether such liquor regulation by the states
includes the power to enforce state criminal statutes against
Indian persons for violations of state law relating to the
possession or the sale of liquor within Indian country. We
hold here that under - -v. Rehner, and the applicable
Rice
federal statute, Montana can, and does, have the power to
punish by criminal proceedings in its state courts violations
of state liquor laws occurring within its borders by 1ndian
persons in Indian country. Because of our holding, we deny
the petition for a writ of supervisory control from this
Court, and dismiss these proceedings.
In Rice 5 Rehner, the pivotal case here, Rehner was a
federally licensed Indian trader who operated a general store
on the Pala ~eservation in San Diego, ~alifornia. The Pala
Tribe had adopted a tribal ordinance permitting the sale of
liquor on the reservation, providing that the sales conformed
to state law. Rehner sought from the state an exemption from
its law requiring a state license for retail sale of liquor
for off-premises consumption. When she was refused an
exemption, Rehner filed suit seeking a declaratory judgment
that she was not required to obtain a license from the state
and an order directing that liquor wholesalers could sell to
her without her state license. The federal district court
granted the state's motion to dismiss, ruling that Rehner was
required to have a state license under 18 U.S.C. 5 1161. The
Court of Appeals reversed the district court, holding that S
1161 did not confer jurisdiction on the states to require
liquor licenses. (9th Cir. 1982), 678 F.2d 1340. On writ of
certiorari, the United States Supreme Court, as above noted,
reversed the Court of Appeals, holding that California may
properly require Rehner to obtain a state license in order to
sell liquor for off-premises consumption.
As noted by the dissent in Rice 5 Rehner, the United
States Supreme Court rested its conclusion on three
propositions. 463 U.S. at 738 (Blackmun, J., dissenting).
First, the Supreme Court asserted that "tradition simply has
not recognized sovereign immunity or inherent authority in
favor of liquor regulation by Indians." Second, the Supreme
Court found a "historical tradition of concurrent state and
federal jurisdiction over the use and distribution of
alcoholic beverages in Indian country." ~ h i r d ,the Supreme
Court concluded that Congress "authorized .
. . state
regulation over 1ndian liquor transactions" by enacting 18
U.S.C. B 1161.
The principal argument of the petitioners (hereafter
Brown or Browns) is that ice 5 Rehner held only that the
states could require Indians transacting liquor business on
the reservation to purchase a state liquor license. They
argue that - -v. Rehner did not, however, and could not,
ice
confer on the state criminal jurisdiction over liquor
offenses committed by Indians on the reservation, contending
that criminal jurisdiction over Indians can only be conferred
upon the states by Congress with the express consent of the
tribe. They argue that Nontana has not been given such a
grant of criminal jurisdiction.
The facts in this case parallel somewhat the facts in
- -v. Rehner.
Rice This action arises from an information filed
in Blaine County District Court, charging Harley LeRoy Brown
and Caroline Ann Brown with the felony offense of sale and
possession of beer and wine without a license in violation of
Montana's statute, 5 16-6-301(1), MCA. Caroline Ann Brown is
an enrolled member of the Fort Eelknap Tribal Community of
the Assiniboine and Gros Ventre 'Tribes. Harley LeRoy Brown
is an Indian person residing on the Fort Belknap ~eservation
and is the husband of ~arolineAnn Brown and the head of an
Indian family. The Browns operate a small grocery store at
Hays, Montana, selling groceries, as well as beer and wine.
At the time of the alleged offense, they claim they had a
valid tribal and federal license authorizing them to sell
beer and wine. The District Court, however, noted that the
Browns had not obtained from the tribe such a liquor license.
On January 6, 1988, the Blaine County Attorney caused a
state search warrant to be issued from the ~ l a i n e County
Justice Court. Law enforcement officials attempted to
execute the Blaine County search warrant on the reservation;
but were told by the chief tribal judge of the Fort Belknap
Tribal Court that the search warrant was invalid because the
state had no jurisdiction on the reservation. Apparently,
the state officers then caused an action to be filed in
~ r i b a lCourt charging the Browns with criminal violations of
tribal ordinances relating to the sale and display of liquor
on the reservation. Under the charges filed in the ~ r i b a l
Court, a search warrant was issued from that Court under
which evidence was seized from the grocery store at Hays,
Montana; and transported to Blaine County District Court.
The evidence was not taken to the ~ r i b a l Court and it is
contended that the tribal search warrant was not served upon
Caroline Ann Brown, from whose possession the evidence was
seized. Following the seizure and transport of the evidence,
the Tribal Court action was dismissed. State court charges
were filed against the Browns on February 4, 1988, after the
Tribal Court action was dismissed.
On April 6, 1988, Browns moved to dismiss the charges
against them on grounds that the Montana State District Court
did not have criminal jurisdiction over Indians who allegedly
committed crimes within the exterior boundaries of the
reservation. The defendants further moved to quash the
search warrant and suppress the evidence seized under the
Tribal Court search warrant, which evidence had been
transferred to the state court.
On August 6, 1988, the ~istrictCourt denied both the
motion to dismiss and the motion to quash. In denying the
motion to dismiss, the ~istrict Court relied on - -v.ice
Rehner particularly. Thereupon, the petitioners filed their
application for a writ of supervisory control or other
appropriate writ from this Court to review the issue of
jurisdiction, and the issue of whether the evidence should be
suppressed.
Under Title 18 U.S.C. S 1154, 1156, 3113, and 3488,
introduction of liquor, possession thereof, dispensing
thereof or transporting the same is forbidden in Indian
country. As noted in - -v. Rehner, 463 U.S. 722, Congress
ice
imposed complete prohibition of liquor on 1ndian lands in
Indian country in 1832 and "these prohibitions are still in
effect subject to suspension, conditioned on compliance with
state law and tribal ordinance." The united States Supreme
Court derived that statement from the provisions of Ti-tle 18
U.S.C. $ 1161, which follow:
,
 The provisions of 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
- transaction - - conformity ----
or is in both with the laws
of - state in which - -act or transaction
- the such -
occurs and with-an ordinance duly adopted by the
tribe having jurisdiction over such area of Indian
country . .. (Emphasis added.)
Plainly, under the language of 5 1161, two things are
necessary to remove the federal prohibition against liquor in
Indian country: (I) conformity with the laws of the state
in which the transaction occurs; and, (2) an ordinance duly
adopted by the tribe having jurisdiction over the area of
Indian country. In this case, the Fort Belknap Indian
Community adopted its Tribal Ordinance No. 3-74 in 1974,
which regulates liquor transactions on the reservation under
the jurisdiction of the Fort Belknap Indian community
"provided that such introduction, sale or possession is i.n
conformity with the laws of the state of Montana."
The principal argument of Brown in this case is that
ice
- -v. Rehner was a civil case, which only held that Indians
transacting a liquor business on the reservation must
purchase a state liquor license; and that it did not give
state courts criminal jurisdiction over Indians who commit
liquor offenses on the reservation. Brown contends that
criminal jurisdiction over Indians can only be conferred upon
the states by Congress by the express consent of the tribe.
18 U.S.C. S 1162. They contend that Montana has not been
given such a grant of criminal jurisdiction.
Such an interpretation would be a narrow construction of
18 U.S.C. 5 1161 and would overlook the specific reference in
- -v. Rehner that Congress has also historically permitted.
Rice
concurrent state regulation through the "imposition of
criminal penalties on those who supply ~ndianswith liquor,
or who introduce liquor into 1ndian country." 463 U.S. at
726. The interpretation ignores also the obvious
determination in - -v. Rehner that the state was entitled
Rice
to effective regulation of liquor, the Supreme Court saying:
The historical tradition of concurrent state and
federal jurisdiction over the use and distribution
of alcoholic beverages in Indian country is
justified by the relevant state interests involved.
See confederated ~ r i b e s ,supra, [447 U.S.] at 156,
65 L.Ed.2d 10, 100 S.Ct. 2069. Rehner ' s
distribution of liquor has a significant impact
beyond the limits of the Pala ~eservation. The
state has an unquestionable interest in liquor
traffic that occurs within its borders, and this
interest is independent of the authority conferred
on the states by the Twenty-first Amendment.
Crowley v. ~hristlansen, 137 U.S. 86, 91, (1890).
Liquor sold by Rehner to other Pala tribal members
or to nonmembers can easily find its way out of the
reservation and into the hands of those whom, for
whatever reason, the state does not wish to possess
alcoholic beverages, or to possess them through a
distribution network over which the state has no
control. p his particular "spillover" effect is
qualitatively different from any. spillover"
effects of income taxes or taxes on cigarettes. "A
state's regulatory interest will be particularly
substantial if the state can point to
off-reservation effects that necessitate state
intervention." New ~ e x i c o v. Mescalero Apache
Tribe, 462 U.S. 234, 65 L.Ed.2d 611, 103 S.Ct. 2378
(1983).
ice
- -v. Rehner, 463 U.S. at 724.
In this case, the district judge particularly noted the
"spillover" effect, remarking that the state's regulatory
interest was substantial because the Brown grocery was
located on Montana State Highway No. 66, a state-maintained,
two-lane paved highway, carrying non-Indian traffic from
~illings,Nontana, to the south; to Harlem, Montana, to the
north. Moreover, - -v. Rehner recognized that "it cannot
Rice
be doubted that the state's police power over liquor
transactions within its borders is broad enough to protect
the same Congressional decision in favor of the state" [by
allowing removal of the prohibition against liquor on
reservations from transactions that conform both with the
laws of the state and with a tribal ordinance]. 463 U.S. at
731.
The second principal argument made by Brown is that the
Fort Belknap community has preempted the field by asserting
exclusive jurisdiction over liquor offenses on the
reservation. In support, they point to the criminal
prosecution ordinances adopted by the tribe which provide
procedures in the tribal courts for crimes committed on the
reservation. They also point to ~esolution No. 71-88,
adopted by the tribal community on April 6, 1988, after the
institution of the criminal action in this case. Resolution
t o 71-88 declared in effect that its previously adopted
J.
ordinance allowing the use and sale of alcoholic beverages on
the reservation did not cede or authorize jurisdiction within
the reservation to the state of Montana.
For these contentions, the Browns rely on State of
Wisconsin v. ~ i gJohn (Wis. Ct. App. 1987), 409 N.W.2d 455;
and upon the federal decisions in U.S. v. Cowboy (10th ~ i r .
1982), 694 F.2d 1228; U.S. v. Johnson (9th Cir. 1980), 637
F.2d 1224; and U.S. v. Allen (8th ~ i r .1978), 574 F.2d 435.
State - Big John, supra, has no application in this
v.
cause because it involved the state's attempt to regulate the
use of boats in isc cons in, an activity well within the
traditional area of 1ndian tribal sovereignty. - -v.
Rice
Rehner specifically pointed out that the regulation of liquor
on reservations was not within the inherent or historical
tribal sovereignty. The federal cases likewise do not
support Brown in this case. - - Allen, supra, involved
U.S. v.
an assault by an 1ndian against other Indians on a
reservation and has no connection with the interpretation of
Indian liquor laws except that the parties were drinking when
the assault occurred. - - Johnson, supra, held that
U.S. v.
offenses by an Indian against an Indian are subject to the
jurisdiction of the Tribal Courts if not covered by the Major
Crimes Act, in a case construing the federal ~uvenile
~elinquencyAct. u.
1. Cowboy, supra, held that the tribal
courts had concurrent jurisdiction with the federal courts
over Indians who offend 1 8 U.S.C. B 1154 (dispensing liquor).
No state statutes were involved and the court there did not
pass upon the application of state criminal laws under 18

The state district court in this case rejected the
preemption argument pointing to the language in - -v.
ice
Rehner, which said:
... Our examination of § 1161 leads us to
conclude that Congress authorized, rather than
preempted state regulation over Indian liquor
transactions.
463 U.S. at 7 2 6 .
Again, the District Court noted from - -v. Rehner:
Rice
It is clear then that Congress viewed S 1161 as
abolishing federal prohibition, and as legalizing
Indian liquor transactions as long as those
transactions conformed both with tribal ordinances
and state law. It is also clear that Congress
contemplated that its absolute, but not exclusive
power, to regulate Indian liquor transactions would
be delegated to the tribes themselves and to the
states, which historically shared concurrent
jurisdiction with the federal government in this
same area .
. .
463 U.S. at 7 2 8 .
We agree with the District Court that preemption has not
occurred here. In sum, we hold that when Congress decided to
allow the end of prohibition of liquor on reservations in
certain cases, it did so under the conditions that state law
and tribal ordinances would regulate liquor transactions in
Indian country. If we were to interpret 18 U.S.C. 5 1161 as
permitting only state licensing of liquor transactions on
Indian reservations, but not the power to enforce the same,
the state would be powerless to effectuate the intent of
Congress that such liquor transactions on reservations be "in
conformity with state law."
ice
- -v. Rehner, supra, was decided by a divided court,
but its majority holding clearly implies that state criminal
laws relating to liquor transgressions apply to offenses
committed by Indians in 1ndian country. We so hold.
With respect to the second portion of Browns' petition
for writ in this cause asking us to direct the suppression of
the evidence seized under the tribal search warrant, we find
this issue to be premature because Browns have a clear remedy
by appeal. The order denying suppression of the evidence is
interlocutory and in such case a writ of supervisory control
from this Court is not obtainable.
The application for writ of supervisory control is
denied and these proceedings dismissed.

We Concur:

,,d Chief Justice