21st Amendment in the 21st Century

June 25, 2012

Have you ever tried to buy a bottle of wine on a Sunday morning, or tried to order a drink after last call, only to encounter a puritanesque wall of denial?  If so, you shouldn’t think of yourself as a victim of blue laws, but instead as the most recent participant in a legal dispute stretching back over a century.

In the 1800s, States sought to regulate and restrict the sale of alcohol in various ways.  The Supreme Court repeatedly rejected these bans as violating USCA Const. Art. I s 8, cl. 3, which reads

“[The Congress shall have Power]… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”

This clause has been held many times to prevent a State from regulating commerce across State lines, and in Leisy v. Hardin, 135 U.S. 100, the Court applied that principle to interstate liquor sales, creating a loophole that wasn’t fully closed until the 18th amendment banned liquor entirely.  When prohibition had run its course (a fascinating story in and of itself), instead of returning to the status quo ante, Congress added U.S.C.A. Const. Amend. XXI, Section 2, which reads:

“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

By recognizing the legal force of State laws banning the import of alcohol and spirits, this clause obviated the older Supreme Court holdings rejecting those laws, and a system of local control evolved which is still in place.

All of which makes for a fine history lesson, but it raises the question: who cares?  What’s the value of reading about (or writing about) a legal dispute that was settled in 1933?  The answer is that the dispute isn’t resolved, it’s been litigated on and off ever since, most recently in a suit filed just last February.

Last February, the Oglala Sioux filed a lawsuit against a liquor store just outside their reservation.  Alcohol is banned on the reservation, but many on the reservation are able to obtain it from the defendant store.  The Sioux also named multiple national distributorships as defendants, alleging that they have the capacity to stop selling liquor that they know will eventually be consumed illegally.

After learning of this suit, I was intrigued by the above-quoted language of the 21st amendment.  While the commerce clause specifically applies to Commerce ‘with the Indian Tribes,’ the 21st amendment only has a more oblique reference to the laws of ‘any….possession of the United States.’

As it turns out, there are two federal enabling statutes that specifically give tribes the power to regulate alcohol use, in case the 21st Amendment’s reservation was not clear enough.  18 USCA s 1154 and 1156 specifically ban the sale of liquor in Indian Country.  18 USC A s 1161 provides an exception where tribal law allows such sale.

Whether a tribe can choose to extend these bans outside their reservation remains to be seen.  Either way, the Sioux have chosen the battleground and terms for the next debate over legally mandated abstention.

Research References

To find out whether the courts had ever discussed the 21st amendment as it applied to tribal laws, I ran the following search in ALLFEDS: 21st twenty-first /2 amendment & indian (native /2 american) tribal & alcohol.  I found 32 results.  Of those results, I found that Citizen bank of Potawatomi Indian Tribe of Oklahoma v. Oklahoma Tax Commission, 975 F.2d 1459, gave a good introduction to the Federal-State-Tribal framework of alcohol regulation.

The brief history of liquor regulation above drew heavily from 30 Fordham Urb. L.J. 1849.  For more history and analysis on this issue, try the following descriptive word search on the Law Review and Journals page on WestlawNext: “21st amendment” “commerce clause”

The docket number for the Oglala Sioux suit is 4:12cv03027.  The case is in the District of Nebraska, because that’s where the defendant liquor store is located.