IN THE SUPREME COURTOF THE STATE OF MONTANA

CAROLINEANN BROWNAND HARLEY LEROY BROWN, Petitioners,-vsDISTRICT COURT OF THE SEVENTEENTH JUDICIAL DISTRICT FOR THE STATE OF MONTANA, IN AND FOR THE COUNTYOF BLAINE,and THEHONORABLELEONARD LANGEN,a Judge thereof, Respondents.

ORIGINALPROCEEDING:

COUNSELOF RECORD:

For Petitioner: Frisbee, Moore, Stufft & Olson; Jayne Mitchell, Cut Bank, Montana

ForRespondent:

Hon.Karc ~acicot, Attorney General, Helena,Montana Clay Smith, Solicitor,Attorney General's office Donald Ranstrom,CountyAttorney, chinook,Montana

Filed: submittedon~riefs:Dec. 14, 1988 ~ecided:July 19, 1989

P --- ---- 

# 'ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

The United States Supreme Court in 

### ice, ~irector, Department of ~lcoholicBeverage Control of ~aliforniav. 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 thepower 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 criminalproceedings 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 

### 5Rehner, the pivotal case here, Rehner was a federally licensed Indian traderwho operated 

### a general store

on the Pala ~eservationin San Diego, ~alifornia. The Pala Tribe had adopted a tribal ordinance permitting the sale of liquoron the reservation,providing that the salesconformed 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 shewas not required to obtain a license from the stateand an order directing that liquorwholesalers could sell to her without her state license. The federal district court granted the state'smotion to dismiss, ruling thatRehnerwas required to have a state licenseunder 18U.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. (9thCir. 1982), 678F.2d 1340. Onwrit of certiorari, the United States Supreme Court, as above noted, reversed the Court of Appeals, holding that California may properly requireRehner to obtain a state license in order to sell liquor for off-premisesconsumption. As noted by the dissent in Rice 

### 5Rehner, 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 regulationby 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 

### 5Rehner 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 Indianscanonlybe conferred upon the states by Congress with the express consent of thetribe. 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 actionarises from an information filed 

### -- in Blaine County District Court, chargingHarley LeRoy Brown and Caroline Ann Brown with the felony offense of sale and possessionofbeer and wine without a license inviolation 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 Brownshad 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 searchwarrant 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 criminalviolations 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 iscontended that the tribal searchwarrantwas not served upon Caroline Ann Brown, from whose possession the evidence was seized. Following the seizureand transportof the evidence, the Tribal Court action was dismissed. State court charges

were filed against the Browns on February 4, 1988,after the Tribal Court actionwas dismissed. On April 6, 1988, Browns moved to dismiss the charges against them on grounds that theMontana StateDistrict 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 statecourt. 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 ~istrictCourt 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 ofwhether 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 "theseprohibitions 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-tle18 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 countrynor to any actor transaction within any area of Indian countryprovided such act or transaction is in conformityboth 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

# .

# . . (Emphasisadded.) 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 ordinanceduly 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 reservationunder the jurisdiction of the Fort Belknap Indian community "provided that such introduction, sale or possession 

### is i.n conformitywith the laws of the state ofMontana." The principal argument of Brown in this case is that 

### ice v. Rehnerwas 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 Indianscanonlybe conferredupon 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 sucha grant of criminal jurisdiction. Such an interpretationwould be anarrow construction of 18U.S.C. 

### 5 1161 andwould 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 justifiedby the relevant state interests involved. See confederated ~ribes, supra, [447U.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 tribalmembers or to nonmembers can easily find its way out of the reservation and into the hands of those whom, for whatever reason,the statedoes not wish topossess 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 ~exicov. Mescalero Apache Tribe, 462U.S. 234, 65L.Ed.2d 611, 103 S.Ct. 2378

(1983). 

### ice v. Rehner, 463U.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 HighwayNo. 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 liquortransactions 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 lawsof the stateand with a tribal ordinance]. 463U.S. at 731. The second principal argumentmade 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 ~esolutionNo. 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 ordinanceallowing the use and sale of alcoholic beverages on the reservationdid not cede or authorize jurisdiction within the reservation to the state ofMontana. 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 (9thCir. 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

causebecause 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 specificallypointed 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 theparties 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 coveredby 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 Indianswho offend 18U.S.C. 

### B 1154 (dispensingliquor). 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 thatpreemption has not occurred here. In sum,we hold that when Congressdecided toallow 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. Ifwe 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 reservationsbe "in conformitywith 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 committedby Indians in 1ndiancountry. We sohold. With respect to the second portion of Browns' petition forwrit in this causeasking us to direct the suppression of the evidence seized under the tribal searchwarrant,we find this issue tobe premature because Brownshave a clear remedy by appeal. The order denying suppressionof the evidence is interlocutoryand in such case a writ of supervisory control from this Court isnot obtainable. The application for writ of supervisory control is denied and these proceedings dismissed.

We Concur:

Chief Justice 

# ,,d