IN THE SUPREME COURT OF THE STATE OF MONTANA 

CAROLINE ANN BROWN AND HARLEY LEROY 

BROWN, 

Petitioners, 

-vsDISTRICT 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 

Filed: 

submitted on ~riefs: Dec. 14, 1988 

~ecided: July 19, 1989 

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 -- Rice v. Rehner, and the applicable 

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." ~hird, 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 -- ice v. Rehner did not, however, and could not, 

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 

-- Rice v. Rehner. 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 ~aroline Ann 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 ~laine 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 

~ribal Court 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 ~ribal 

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 ~ribal 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 ~istrict Court denied both the 

motion to dismiss and the motion to quash. In denying the 

motion to dismiss, the ~istrict Court relied on -- ice v. 

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 -- ice v. Rehner, 463 U.S. 722, Congress 

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 

- 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.) 

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 

-- Rice v. Rehner that Congress has also historically permitted. 

concurrent state regulation through the "imposition of 

criminal penalties on those who supply ~ndians with liquor, 
or who introduce liquor into 1ndian country." 463 U.S. at 

726. The interpretation ignores also the obvious 

determination in Rice -- v. Rehner that the state was entitled 

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 ~ribes, 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 ~exico 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, -- Rice v. Rehner recognized that "it cannot 

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 

tJo. 71-88 declared in effect that its previously adopted 

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. ~ig John (Wis. Ct. App. 1987), 409 N.W.2d 455; 

and upon the federal decisions in U.S. v. Cowboy (10th ~ir. 

1982), 694 F.2d 1228; U.S. v. Johnson (9th Cir. 1980), 637 

F.2d 1224; and U.S. v. Allen (8th ~ir. 1978), 574 F.2d 435. 

State - v. Big John, supra, has no application in this 

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. -- Rice v. 

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. - U.S. - v. Allen, supra, involved 
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. - U.S. - v. Johnson, supra, held that 

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 

~elinquency Act. u. 1. Cowboy, supra, held that the tribal 

courts had concurrent jurisdiction with the federal courts 

over Indians who offend 18 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 -- ice v. 

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 726. 

Again, the District Court noted from -- Rice v. Rehner: 

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 728. 

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: 

Chief Justice ,,d