The Crazy Horse malt liquor case: from tradition to modernity and halfway back.

• Author: Pommersheim, Frank

1. INTRODUCTION AND BACKGROUND

   Tasunke Witko, or Crazy Horse as he is known in English, is a revered nineteenth century warrior and spiritual leader of the Oglala Band of the Lakota (or Sioux) Nation. (1) He is renowned for both his skills as a warrior and his high spiritual concern for the welfare of his people. He also often seems to stand apart as a mysterious, even mystical, individual. His picture was never taken by a photographer. He never went to Washington, D.C. to meet the "white fathers." He never signed a treaty with the United States government. He never claimed to be a chief or tribal leader. He was ultimately killed in 1877, when he was held captive pursuant to his "surrender" at Camp Robinson in Nebraska. (2) This, too, is shrouded in mystery. (3)

   Near mythic to his own people, he also became an icon of the Plains' Indians to society at large. He was the glorious embodiment of mystery and resistance that met his tragic demise at the end of the trail. Such national icons, especially those minted in romantic stereotypes, often become figures that are expropriated by the dominant society to support advertising and to enhance commercial profit. It is, in part, the quintessential American way.

   Such was the fate (4) of Crazy Horse until his modern day descendants, acting through his Estate, took dramatic legal action to halt such practices, especially in the notorious context of using the name "Crazy Horse" to promote a malt liquor product (5) allegedly named in his honor. (6) This multifaceted legal history involves significant litigation in both tribal and federal court involving both tribal and federal law issues. These diverse forums had varying conceptions of substantive law that were often complementary, but were mostly oppositional in nature. More striking, however, is the significant interplay between modern law, especially in regard to jurisdiction, and traditional Lakota law, reaching all the way back to 1877 for rules of descendancy and inheritability. Modernity and tradition came together in an uneasy and cautious embrace. This essay tracks that unease and caution.

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2. THE NAME CRAZY HORSE AND COMMERCIAL FREE SPEECH

   This modern legal and cultural saga began in 1992, when the Federal Bureau of Alcohol, Tobacco and Firearms (BATF) issued a Certificate of Label Approval (COLA) to the G. Heileman Brewing Company as the bottler and distributor of Crazy Horse Malt Liquor. (7) The certification process includes considerations as to whether the label is "misleading, fraudulent, or obscene." (8) In March of 1992, Hornell introduced Crazy Horse Malt Liquor in fourteen states. (9) Eventually, the liquor was distributed through over 200 wholesalers and 100,000 retailers to thirty-one states. (10)

   The introduction of Crazy Horse Malt Liquor into commercial markets drew sharp criticism both inside and outside of Indian country, especially in South Dakota, the traditional homeland of the Great Sioux Nation. (11) This indignation soon reached Congress. Both (then) South Dakota Senators Larry Pressler and Tom Daschle wrote to Hornell expressing their displeasure. (12)

   These concerns and the alleged failure of Hornell to adequately respond led Congress to consider (and ultimately adopt) remedial legislation. Enacted on October 1, 1992, Section 633 of Public Law 102-393 (13) read as follows:

   Upon the date of enactment of this Act, the Bureau of Alcohol, Tobacco, and Firearms (ATF) shall deny any application for a certificate of label approval, including a certificate of label approval already issued, which authorizes the use of the name Crazy Horse on any distilled spirit, wine, or malt liquor product; Provided, that no funds appropriated under this Act or any other Act shall be expended by ATF for enforcement of this section and regulations thereunder, as it related to malt beverage glass bottles to which labels have been permanently affixed by means of painting and heat treatment, which were ordered on or before September 15, 1992, or which are owned for resale by wholesalers or retailers. (14) A federal lawsuit followed with Hornell Brewing Company seeking declaratory and injunctive relief. (15) Hornell claimed that the statute violated the First Amendment, the equal protection guarantee and due process guarantee of the Fifth Amendment, constituted an unconstitutional bill of attainder, and effectuated a taking of property without just compensation in violation of the Fifth Amendment. (16) On cross motions for summary judgment, the district court granted summary judgment in favor, of the plaintiffs based on its finding that Section 633 of Public Law 102-393 violated the First Amendment. (17)

   The district court's First Amendment analysis considered Section 633 of Public Law 102-393 as an attempt to regulate commercial speech (18) and therefore applied the four prong test drawn from Central Hudson Gas & Electric Corp. v. Public Service Commission: (19)

   First, the expression must be protected by the First Amendment; that is, it must concern lawful activity and not be misleading.... Second, the government must establish a substantial interest.... Third, the regulation must directly advance the governmental interest asserted.... Finally, the regulation must be no more extensive than necessary to serve the interest asserted. (20) In this broad context, the district court made several basic legal and factual determinations. As an initial matter, the court noted that the Crazy Horse label was entitled to First Amendment protection because it was legitimate commercial speech that concerned lawful activity and was not misleading. (21) Despite this general protection of commercial speech, it is not absolute and may be limited if the government has a substantive interest in regulating the commercial speech. Such regulation may not be premised on the mere offensiveness of the speech relative to the name or label of the product. (22)

   The district court recognized a substantial governmental interest in "protecting citizens from the problems associated with alcohol." (23) Given the empirical studies demonstrating particularly harmful effects of alcohol found within Native American society, the court found that "the government's interest in preventing further alcohol abuse and its resultant problems is most certainly substantial." (24)

   Such substantial governmental interest is a necessary but not sufficient condition for placing limits on commercial free speech. After determining that the government had met the substantial interest prong, it continued its inquiry by addressing additional elements, including the requirements that the planned regulation directly advance the government's (substantial) interest and that it be proportional to the interest asserted. (25)

   These more nuanced demands were not met by the government's ban on Crazy Horse Malt Liquor. The direct advancement prong is essentially a means and ends question, one that must be adequately answered by the party seeking to restrict the speech.26 The court found that the asserted nexus between the marketing and sale of Crazy Horse Malt Liquor and its adverse effects on Native Americans lacked empirical confirmation, which made the government's theory "too remote and speculative" to satisfy the third prong. (27)

   The district court also found that the statute did not satisfy the fourth prong's proportionality requirement. (28) While there is usually considerable deference accorded to the government in this area, it is not infinite and in this instance the government's prohibition was not sufficiently limited to reservations or other geographic areas with a highly concentrated Native American population. (29)

3. LITIGATION IN THE ROSEBUD SIOUX TRIBAL COURT

   1. ROSEBUD SIOUX TRIAL COURT

      With the failure of federal legislation to halt the production, advertising, or sale of Crazy Horse Malt Liquor, the descendants of Crazy Horse turned to litigation in the Rosebud Sioux Tribal Court. This litigation was brought in the name of the Estate of Tasunke Witko. (30) Mr. Seth Big Crow, (31) a descendant of Crazy Horse, was appointed by the Rosebud Sioux Tribal Court--pursuant to his application--as the Administrator of Crazy Horse's Estate. (32)

      Mr. Big Crow, on behalf of the Estate, brought an action against Heileman Brewing and Hornell Brewing in the Rosebud Sioux Tribal Court seeking a declaratory judgment, monetary damages, culturally appropriate damages, an accounting, and injunctive relief. (33) The essence of the Estate's claims was that the defendants' actions, as the manufacturers and distributors of Crazy Horse Malt Liquor, invaded the Estate's traditional Lakota right to control the use of the name Crazy Horse and negligently and intentionally inflicted emotional distress on the members of the Estate through its sale and distribution of "Original Crazy Horse Malt Liquor." (34) The Estate also asserted two federal causes of action based on the Indian Arts and Crafts Act (35) and the Lanham Act. (36)

      The defendants made a special appearance and moved to dismiss the complaint for lack of both personal and subject matter jurisdiction. (37) Judge Stanley Whiting, sitting pro tern, ultimately ruled that the tribal court did not possess personal jurisdiction over the defendants and dismissed the complaint filed by the Estate of Crazy Horse. (38)

      1. Personal Jurisdiction

         The trial court's personal jurisdiction analysis turned on its interpretation of the Rosebud Sioux Tribal Law and Order Code's provision on long arm jurisdiction. (39) The trial court noted that the defendants did not transact any business on the Rosebud Sioux Indian Reservation, nor did they own any property there. (40) The trial court therefore focused its attention on whether the defendants committed tortious acts within the Rosebud Sioux Reservation. (41)

         Judge Whiting answered this question in the negative based on his analysis of the "minimum...