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Native Prohibition in the Federal Courts

Over the course of the nineteenth and early twentieth centuries, Congress enacted several laws restricting the sale of alcohol to Native Americans and the manufacture of intoxicants on tribal lands. In some instances, these laws had the support of tribal leaders hoping to limit the deleterious effect of alcohol on their people. However, many of these statutes also served to impose greater federal control on reservations, expand the notion that Native Americans were “wards” of the federal government and, toward the end of the nineteenth century, exercise a form of moral police power over both Native populations and white commercial actors. As such, Native prohibition laws served both as an important early experiment in national prohibition policy and as an exception to many of the Due Process and Commerce Clause restrictions that Lochner-era courts often placed on federal regulatory power. The somewhat anomalous nature of Native prohibition statutes posed difficulties for courts charged with applying these laws in the context of a complex and frequently shifting law of federal-tribal relations. Focusing on the decades preceding the advent of national prohibition in 1920, this spotlight examines some of the more important cases involving these questions.

Alcohol was an important element of trade between Europeans and Native Americans from an early point in the colonial enterprise, but the trade was frequently problematic. Over the course of the long nineteenth century, alcohol abuse among Native populations increasingly became a drain on tribal cohesion and fed into a nascent racist archetype of the “drunken Indian.” European and American authorities sometimes also used alcohol as a tool in peace and land negotiations, often with negative consequences for tribes. From at least the start of the nineteenth century, several Native leaders called on Congress to ban the sale of alcohol to their people. Restrictions on the sale and consumption of alcohol might ordinarily fall under the aegis of state and local police powers, which facilitated regulations to preserve public health, safety, morality, and general welfare. However, Congress held expansive regulatory authority over commerce with Native tribes under the Constitution’s Indian Commerce Clause. Congress’s motivations for authorizing the regulation of, and later for introducing increasingly draconian punishments for engaging in, the alcohol trade loosely tracked the ebb and flow of federal-Native relations. At times, lawmakers were driven by a desire to maintain order on the borders between tribal and federal jurisdictions and at others by paternalistic attitudes towards both alcohol consumption and Native Americans themselves. The severity and breadth of federal prohibition policy and the enforcement of alcohol regulation varied accordingly. The federal courts’ interpretations of this changing legislative framework often struggled to keep pace with change while reconciling prohibition laws to broader jurisprudential developments.

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In 1802, at the instigation of Miami leader Michikinikwa (“Little Turtle”), Congress authorized the President of the United States to “take such measures . . . as to him may appear expedient to prevent or restrain the vending or distributing of spiritous liquors among all or any of the . . . Indian tribes.” Although the War Department promulgated regulations banning traders from bringing alcohol into tribal lands pursuant to this authorization, these rules were seldom enforced. Indeed, for much of the early nineteenth century, Native tribes were much more successful than the federal government in stopping the spread of alcohol into tribal lands. Some tribes also succeeded in securing more stringent prohibition rules, and more rigorous enforcement, by treaty.

In 1834, Congress passed a criminal prohibition statute more formally outlawing the introduction of alcohol onto tribal lands and setting forth a maximum fine of three hundred dollars for violators. The federal courts heard several prosecutions under this law, although the jurisdictional reach of the statute was a subject of debate for decades. In particular, courts wrestled with which Native-controlled lands were subject to regulation and whether Native Americans could be prosecuted under the law (an 1854 amendment clarified that Native Americans were exempted from prosecution). 

Although Native Americans were not subject to prosecution themselves, their status was often the defining question in prosecutions against white traders. Most prohibition statutes were predicated on the sale of alcohol either within a particular area of land or to the members of particular tribes. But the increasingly fluid legal and political status of many Native Americans could complicate determinations of this kind. The Supreme Court attempted to resolve some of these difficulties in United States v. Holliday (1866). Holliday was a consolidated criminal appeal based on disagreements among trial court judges hearing cases involving the sale of alcohol to Native Americans whose tribal identity was ambiguous. In one of the cases, for example, a white trader was charged with selling alcohol to a member of a group of Michigan Chippewa that had ceased to exist as a formal political entity. The purchaser had also claimed state citizenship under a state constitutional provision granting the privileges and immunities of citizenship to Native Americans who did not belong to a tribe. The defendant argued that, under these circumstances, the purchaser was not a member of a tribe within the meaning of the statute. In lieu of deciding between competing claims regarding the purchaser’s tribal status, the Supreme Court announced that it would defer to executive decisions regarding such matters. Although the federal courts had often made, and would continue to make, determinations about tribal status in other contexts, Holliday seemed to promise greater clarity on the scope of federal Native prohibition laws.

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However, this seemingly clear rule was increasingly muddied by federal laws designed to loosen tribal bonds and “civilize” Native populations. The Dawes Act of 1887 posed particular difficulties. That law authorized the executive branch to subdivide tribal lands and allocate land to the members of tribes, subject to a twenty-five-year government trusteeship over the land. The purpose of the Act was to break up tribal units, assimilate Native Americans into white culture, and encourage them to become farmers. Native Americans who took their land allotments and adopted “civilized” lifestyles were eligible to become U.S. citizens. As in Holliday, it was not always clear whether prohibition laws might apply to commercial activities involving these “civilized” Native Americans. Moreover, since the purpose of the Dawes Act was to break up tribal allegiances and integrate Native Americans into the rest of American society, it was not clear that the Indian Commerce Clause could continue to supply Congress with constitutional authority to impose Native prohibition.

In the aftermath of the Dawes Act, Congress nevertheless passed two new, more stringent prohibition statutes. These laws were motivated in part by the civilizing zeal that had animated the Dawes Act, in part by racist assumptions about Native Americans’ proclivity for alcoholism, and in part by broader concerns about the negative social consequences of alcohol consumption that had already led several states and counties to adopt prohibition laws and would eventually drive the adoption of the Eighteenth Amendment. The first of these new prohibition laws, passed in 1895, forbade anyone—including Native Americans—to “manufacture, sell, give away, or in any manner, or by any means furnish [alcohol] to anyone” within the Indian Territory in modern-day Oklahoma. In addition to a fine, this offense carried a potential prison term of between one month and five years. An 1897 statute imposed a fine and a minimum prison sentence of sixty days (with no maximum sentence) for furnishing alcohol to “any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian a ward of the government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods over whom the Government . . . exercises guardianship.” This provision was targeted directly at Native Americans who had taken allotments under the Dawes Act.

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In Matter of Heff (1905), the Supreme Court struck this second law down as it applied to a Native American who had claimed an allotment and assumed U.S. citizenship. In an opinion by the aptly named Justice David J. Brewer, the Heff Court emphasized that prohibition was fundamentally an exercise of the police power. Ordinarily, Justice Brewer emphasized, the federal government did not have the ability to create such regulations; that power lay with the states. Brewer reasoned that the federal government’s exceptional power to regulate Native Americans’ alcohol consumption derived in part from the Indian Commerce Clause and in part from “the recognized relation between the Government and the Indians[, which] is that of a superior and an inferior, whereby the latter is placed under the care and control of the former.” The Court held, however, that Congress had broken this relationship with Native Americans who had left tribal life and become integrated into the American polity. “[W]hen the United States grants the privileges or citizenship to an Indian, gives to him the benefit of and requires him to be subject to the laws, both civil and criminal, of the State,” Brewer stated, “it places him outside the reach of police regulations on the part of Congress.”

Heff was arguably consistent with other cases from the period, such as United States v. Adair (1908), that imposed sharp limitations on Congress’s power to regulate economic activity for the public good. Even so, the decision continued to recognize that Congress had an unusually broad latitude to craft such regulations regarding Native populations so long as Congress’s guardian/ward relationship had not been broken by assimilation and citizenship. This point was made even more clearly in United States v. Sandoval (1913). Sandoval involved a prosecution under a 1910 amendment to the 1897 prohibition law. This amendment, passed as a condition for New Mexico’s statehood, made it a crime to introduce alcohol into territory controlled by the new states’ Pueblo people. In upholding the law, Justice Willis Van Devanter wrote for a unanimous Court that Congress had rightly continued to exercise a police power over the Pueblo, based in large part on an ethnocentric view of the Pueblo’s cultural inferiority. They were, he claimed, “[a]lways living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetichism, and chiefly governed according to the crude customs inherited from their ancestors.” The Pueblo were, he concluded, “a simple, uninformed and inferior people,” rightly treated as wards of the federal government and subject to a greater degree of regulatory oversight as a result. As a “superior and civilized nation,” Van Devanter reasoned, the United States had to have “the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders.”

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Though this rationale effectively served to distinguish Sandoval from Heff, it arguably contained a strong enough current of racist essentialism that it might just as easily apply to a range of other scenarios. In 1914, for example, the Court upheld a prohibition conviction for the sale of alcohol on land that a Native tribe had ceded to the United States. Heff also appears not to have discouraged federal prosecutors from bringing a large number of criminal prosecutions based on the 1895 and 1897 prohibition laws. Although exact caseload figures are not available, it is clear that alcohol prosecutions occupied a significant portion of the federal judiciary’s energy in states with significant Native populations. By 1900, those convicted of Native-related alcohol offenses accounted for around 5% of all federal prisoners. And, in 1910, U.S. Attorney General George Wickersham unsuccessfully called for the penalties attached to these offenses to be reduced to a misdemeanor level to end the laborious practice of charging defendants by grand jury indictment. Newspaper reports from the 1900s and 1910s also suggest that such prosecutions constituted a significant proportion of the federal criminal caseloads in many western states. One Nevada columnist griped in 1915 that the state’s U.S. district court was kept in business almost exclusively by trying “carloads of whiskey peddlars.”

In United States v. Nice (1916), the Court applied Sandoval’s logic in overturning Heff. Nice involved the prosecution of a trader who had sold alcohol to a Sioux who was under the charge of an Indian Agent (a federal officer authorized to negotiate with and oversee Native tribes). The purchaser had also taken an allotment, however, which appeared to suggest the prohibition law would not apply under Heff. In another opinion penned by Justice Van Devanter, the Nice Court again emphasized that Congress had enhanced police powers in dealing with Native tribes because of “the dependent relation of such tribes to the United States.” This, Van Devanter asserted, “was a continuing power of which Congress could not divest itself. It could be exerted at any time and in various forms during the continuance of the tribal relation.” In contrast to Heff’s holding that Congress’s special regulatory authority over Native people weakened as they assumed citizenship, Van Devanter reasoned that “[c]itizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection.”  

The Supreme Court issued its decision in Nice just a year before Congress began deliberations over what would become the Eighteenth Amendment. Ratified in 1919 and coming into force the following year, that amendment imposed prohibition nationwide until it was repealed by the Twenty-First Amendment in 1933. Though most of the nation agreed that policy had failed by the time it was repealed, prohibition remained the law on Native lands for another twenty years, when Congress finally gave tribes the option whether to enforce a ban on alcohol.

Winston Bowman, Associate Historian
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Further Reading:
Miller, Robert J. and Hazlett, Maril. “The ‘Drunken Indian’: Myth Distilled into Reality Through Federal Indian Policy.” Arizona State Law Review 28, no. 1 (Spring 1996): 223–99. 



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