Whatever Happened to the Seveloff Fix?

• Publication year: 2015

§ 32 Alaska L. Rev. 31. WHATEVER HAPPENED TO THE SEVELOFF FIX?

Alaska Law Review
Volume 32, No. 1, June 2015
Cited: 32 Alaska L. Rev. 31

WHATEVER HAPPENED TO THE SEVELOFF FIX?

ANDY HARRINGTON ^[*]

ABSTRACT

This Article suggests that the Supreme Court has not deprived Alaska Native Villages of a valid basis for claiming the authority to create and enforce their own tribal alcohol regulations. Every federally recognized Alaskan Native Village is situated in an area over which Congress extended the federal Indian liquor laws in 1873, in an enactment Congress has never repealed; this should logically empower Alaska Native Villages to exercise the same federally-delegated authority within their federal Indian liquor law Indian country as lower-48 tribes have within their reservations or "dependent Indian communities." Since this delegated authority is shared with the states, this postulate does not deprive the State of Alaska of any authority to enforce its own liquor laws; liquor transactions must conform to both state law and applicable tribal law.

INTRODUCTION

"Ways have to be found to provide communities with the power to create and enforce their own tribal alcohol regulations, ones that originate from the will of the people. Tribal authority, however, will not be feasible in light of the [ Venetie] Court decision denying Alaska Natives tribal authority." ^[1]

Do Alaska Native Villages-as federally-recognized tribes-have any authority to enact their own ordinances concerning alcohol within their communities? This question is significant because of the well-documented deleterious effects alcohol abuse has had on Alaska's Native communities. ^[2] There are several respects in which Alaska Native villages might want to exercise alcohol authority beyond relying exclusively on state enforcement of state and local option laws. ^[3]

This article posits that the answer is "yes"; Alaska Native Villages can enact their own rules and impose their own sanctions for violations of those rules. Such ordinances would not supplant, but rather supplement, existing state and local option alcohol laws.

Part I reviews the argument that Alaska Native Villages lack such authority. Part II surveys the federal Indian liquor laws and their reformulation in 1953 away from their somewhat paternalistic origins into a more empowering federal delegation of authority to states and tribes. Part III analyzes how these laws were brought to Alaska, including the 1873 "Seveloff fix" and subsequent developments. Lastly, Part IV explores several implementation issues that could arise if, as this article posits, each federally recognized tribe in Alaska has a valid claim to occupying "Indian country" for purposes of the federal Indian liquor laws, providing a sufficient basis for enactment of tribal alcohol ordinances.

I. THE ARGUMENT THAT ALASKA NATIVE VILLAGES HAVE NO ALCOHOL AUTHORITY

The ostensible barrier to recognizing federally-delegated intoxicant authority in Alaska Native Villages is that they do not occupy "Indian country" as defined in 18 U.S.C. §1151. ^[4] The 1998 United States Supreme Court ruling in Venetie v. State of Alaska ^[5] held that former reservation lands conveyed under the 1971 Alaska Native Claims Settlement Act (ANCSA) ^[6] did not fall within this definition. Because ANCSA had revoked Venetie's reservation, ^[7] and because there was no argument that its lands were an "allotment," ^[8] the sole question was whether it was a "dependent Indian community," a phrase the Court had not interpreted before. It held that "dependent Indian community" lands would have to be set aside by the Federal Government for the use of Indians as Indian land, and under federal superintendence. Notwithstanding conveyance of those lands by the recipient ANCSA Village Corporation to the corresponding governmental tribal council for that village, the Court held that the set-aside and superintendence requirements were not met, so the lands did not qualify as Indian country over which the council could exercise taxation authority.

Post-Venetie, courts have recognized that Alaska Native Villages retain inherent authority with respect to relations involving tribal members even though they do not occupy "Indian country." ^[9] However, the objectors note, this inherent authority framework cannot provide a basis for alcohol authority, because the United States Supreme Court has already stated that "Congress has divested the Indians of any inherent power to regulate in this area," in the 1983 decision in Rice v. Rehner . ^[10]

Tribes in the lower 48 are able to exercise alcohol authority because they are tribes to which Congress has delegated some measure of federal alcohol authority-but statutorily that delegation only has effect within "Indian country." ^[11]

Thus, the objectors posit, Rice v. Rehner took away the tribes' inherent authority, and Venetie took away the "Indian country" within which the tribes' federally-delegated authority might otherwise operate. As a result, there is no basis upon which Alaska Native Villages outside of Indian country can claim any authority over alcohol, whether inherent or federally-delegated.

There may be more than one flaw to this syllogism, but the particular component on which this article focuses starts with the fact that "Indian country" for purposes of the federal Indian liquor laws ("FILL" Indian country) is not the same as "Indian country" for general purposes ("full" Indian country), which is what the Supreme Court was interpreting in Venetie . The Indian commerce clause enables Congress to designate particular lands as "Indian country" for general purposes, or as "Indian country" for purposes solely of the federal Indian liquor laws, or neither, or both. This has been clear since at least 1876:

In view of this changed condition, it would be strange, indeed, if the commercial power, lodged solely with Congress and unrestricted as it is by State lines, did not extend to the exclusion of spirituous liquors intended to corrupt the Indians, not only from existing Indian country, but from that which has ceased to be so, by reason of its cession to the United States. The power to define originally the 'Indian country,' within which the unlicensed introduction and sale of liquors were prohibited, necessarily includes that of enlarging the prohibited boundaries, whenever, in the opinion of Congress, the interests of Indian intercourse and trade will be best subserved. ^[12]

Indeed, the current United States Code contains more than one definition of "Indian country." In 1949, Congress prefaced the definition of "Indian country" in 18 U.S.C. §1151 by adding the clause, "Except as otherwise provided in sections 1154 and 1156 of this title," and those sections are part of the current federal Indian liquor laws. In twin passages in § 1154 and § 1156, Congress specified that "Indian country" for purposes of those laws would be somewhat different, generally narrower than the § 1151 definition (by excluding "fee-patented lands in non-Indian communities or rights-of-way through Indian reservations"), ^[13] but with an exception if there was "a treaty or statute extending the Indian liquor laws thereto." ^[14] Thus, § 1151 defers to § 1154 and § 1156 if "Indian country" is being considered for purposes of the federal Indian liquor laws; but those two statutes in turn defer to a more specific treaty or statute extending the Indian liquor laws to a particular parcel of land if one exists, which can make that parcel "Indian country" for purposes of the federal Indian liquor laws even though it may be fee-patented land in a non-Indian community.

As such, the concept of "Indian country" is not as monolithic as the above Rice v. Rehner /Venetie syllogism assumes it to be. A piece of land might not be "Indian country" for purposes of allowing a tribe to impose a tax as in Venetie, but nevertheless might be a piece of land to which Congress has extended the Indian liquor laws.

It would be entirely feasible, then, for Congress to legislate an extension of the Indian liquor laws to certain areas in Alaska and thus give tribes the same authority over those areas as tribes in the lower 48 have currently.

And indeed Congress already has. The 1949 amendments were not the first occasion on which Congress bifurcated the concept of general Indian country from the concept of Indian country for purposes of Indian liquor laws. Congress did so in 1873, in an Alaska-specific piece of legislation this article refers to as the "Seveloff fix," and it is the backdrop and subsequent history surrounding this enactment which needs to be analyzed.

II. THE FEDERAL INDIAN LIQUOR LAWS OVER TIME

To better understand the Alaska situation, it is necessary to summarize the origins and development of the federal Indian liquor laws.

Starting in colonial times and continuing through the birth of the United States, laws existed to prohibit the conveyance of liquor to Native Americans. ^[15] The first such United States law was enacted in 1802 in response to a verbal plea from an Indian Chief to President Jefferson. ^[16] The most definitive and long-lived of these federal Indian liquor laws were originally enacted as sections 20 and 21 of the 1834 Trade and Intercourse Act, ^[17] the successors of which still remain in the current United States Code. ^[18]

As originally enacted, both sections were limited to operating within "Indian...