Alcohol

Alcohol Prohibition And Native Americans

Earlier this month, the New York Times ran an article about Pine Ridge Indian Reservation in South Dakota, detailing how a few liquor stores just outside of the Reservation, across the state border in Whiteclay, Nebraska, profit from rampant alcoholism on Pine Ridge. Alcohol is banned on Pine Ridge, and Whiteclay is the closest location where Reservation residents can purchase alcohol. The Whiteclay stores charge exorbitant rates and move an absurd quantity of alcoholic products, almost all of which end up in the bloodstreams of Pine Ridge residents. One of the Reservation’s tribes has turned to the courts to seek relief from the Whiteclay profiteering. From the article:

In February, the Oglala Sioux filed a federal lawsuit against the stores, and Anheuser-Busch and several other large American brewing companies, accusing them of encouraging the illegal purchase, possession, transport and consumption of alcohol on the reservation. Fetal alcohol syndrome, fatal drunken driving accidents and beer-fueled murders have cast a pall over Pine Ridge for decades.

Reading the tragic story of how alcohol has ravaged Pine Ridge prompted me to wonder about the history of alcohol prohibition and the Native American tribes, and I did a little searching for the historical precedent for Pine Ridge’s situation.

First off, here’s some Pine Ridge regional history that area expert Stew Magnuson wrote nearly three years ago: “History Has Lessons for those Tackling the Whiteclay Issue.” I don’t agree with Magnuson’s interpretation of everything, but the regional context is valuable, in that it shows the historical failure of attempts to solve Pine Ridge’s alcohol problem.

Legally, Pine Ridge’s predicament can pretty directly be traced back to an 1832 law. From 1832 until 1953, a federal law was in effect that prohibited the sale of alcohol to Native Americans. In 1953, the power to regulate alcohol on their land was transfered over to the tribes themselves.

One can read a discussion of the 1832 legislation in an 1892 federal case, United States v. Ellis (51 f. 808). Justice Parker, orally charging the jury, explains what he takes as the internal sources of the law, which he posits emerged from compromises struck during relocation agreements with tribes:

… one of the great objections on the part of these people to being removed from their homes in the older states, where there was a higher civilization surrounding them than there would be out in this then wild country, was that it was a frontier country,— a country that had to be settled by the pioneer,— where police regulations were not so effective as they would be in older states; and that caused them to ask that the government of the United States should pledge them security and protection in their new homes, if they consented to go. Intoxicating liquor was one of the things that they recognized as the greatest evil to them and their people; and that this court takes judicial notice of, because it is a part of public history; one of the greatest evils, I say, because it has swept whole tribes out of existence. There are a few left of the Delaware tribe up in this Indian country. That tribe was at one time one of the most powerful people of that race upon the continent, and they have been swept out of existence to a great extent owing to the use of intoxicants brought to them and given to them in order to steal from them their rights by the white men. There is now left of that powerful tribe of people only about 400. The wise and good men who were the leaders of these Indian people knew the baneful influence of this destructive power of drink, and they asked that the government of the United States should not only say in its treaties that they should be protected,— they and their young men, and their people generally,— but that laws should be enacted making it a penalty upon the part of the white man, or the Indian man, or any other man, to introduce into that country that which would destroy them.

At 809-810.

Obviously, not every circa-1832 Native American supported the notion of precluding themselves from alcohol purchase, but the notion that even 170 years ago, there was internal desire among the tribes to protect themselves from alcohol is interesting. The fact of the matter is that alcohol abuse is high among certain groups of Native Americans, and is a serious issue for those communities. (If you have an hour, Google “Native American alcoholism,” and read some of the discussions around the subject. It’s a spirited and uncomfortable nature vs. nurture debate that remains very active. Decent roundup here.)

In an 1887 case, Pearson v. International Distillery (72 Iowa 348), while discussing their own statewide  prohibition law, the Supreme Court of Iowa uses the 1832 law as a positive example of the good that can be done when state power eliminates autonomy, whether Native or white. (Iowa tried statewide prohibition from 1882-1894.) Justice Beck writes the opinion:

The power to prohibit the sale of intoxicating liquors has been exercised by many states, and traffic therein with Indians has been prohibited by statutes of the United States, and of this and other states. The preservation of order in the Indian tribes, and peace between them and the frontier settlers, the prevention of famine and disease, and the preservation of the very existence of these savages, are the humane objects of these statutes.

The same purpose demands legislation to protect the inebriates among our own countrymen, probably equaling in number all the Indian tribes, from the destructive consequences of the gratification of their appetites for strong drink, which is no less uncontrollable in them than in the Indians. Surely, humanity and patriotism demand that the same protection be extended to this unfortunate class of citizens of the United States which is secured to the savage wards of our government.

Depending on which case you were reading, Ellis or Pearson, you might take the 1832 law as either a protective collaboration with the wise leaders of the tribes, or an wonderful demonstration of race-based paternalism that might also work for white people.

Looking at it from the Ellis internal-desire perspective, the 1953 repeal of the 1832 law strikes one as a tricky move, one that starkly illustrates the heart of a lot of drug regulation debates – How do you appropriately strike the proper balance between Autonomy and State Protection? Given the limited resources, powers and jurisdiction of many tribal councils, if the tribes desired to protect themselves from alcohol, when they received the autonomy of setting their own regulations in 1953, they simultaneously gave up effective enforcement of those regulations by breaking off from federal protection. It clearly posits an uncomfortable choice between two different kinds of freedom – freedom from a destructive substance or freedom from paternalism.

Looking at it from the Pearson simple protection perspective doesn’t make it any easier. There are hundreds of published federal cases discussing what the 1832 ban on “introducing alcohol into Indian country” meant. Some of it is couched in racist language like Pearson‘s, some of it deals with who qualifies as an “Indian,” some of it dives deep into jurisdictional issues, and a lot of it simply tries to nail down exactly what kind of alcohol is banned (see In re McDonough, 49 F. 360 for perhaps the longest legal definition of beer you will ever see, or United States v. Cohn for an extended analogy comparing oleomargarine and malt liquor). What becomes clear sorting through this jurisprudence is that the law was poked and tested repeatedly, and never sat true. Despite case after case acknowledging that the intention of the law was to prevent intoxication, the law still struggled against little nuances, and ways that people, both white and Native, circumnavigated the barrier.

The breakdown of the 1832 law from the Pearson and Ellis perspectives shows the rub of the current Pine Ridge situation – between paternalism, profiteering, and simple human desire to escape through drink, the 1832 law never quite worked. In a similar fashion, Pine Ridge’s ban is currently failing, and has seemingly never been particularly successful, according to Stew Magnuson’s report.

Without making a statement on the societal value of substance prohibition, Pine Ridge’s predicament and the history of alcohol and Native Americans demonstrates that regardless of the noble intent of such prohibitory laws, coming from either the Natives or the white side, we are yet to figure out how to properly implement them. And perhaps that should give us pause as they are re-evaluated and we seek a new path.

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Discussion

5 thoughts on “Alcohol Prohibition And Native Americans

  1. Good article.
    Thanks for linking to my blog. If there are factual errors in my article, I would like to know what they are so I can correct them.
    Here is a more recent posting on the same issue.

    http://stewmagnuson.blogspot.com/2012/02/500-million-whiteclay-lawsuit-and-wide.html

    All the Best,
    Stew Magnuson

    Posted by Stew Magnuson | April 2, 2012, 8:52 am
    • Mr. Magnuson-

      Thanks for finding my blog and reading it. Also, thanks for posting your update blog. The situation in Swett is a interesting twist, if for nothing else than as additional evidence that the problem is never as simple as it seems.

      Apologies for not directly commenting on your blog about the factual errors I perceived. I didn’t comment directly to you because the main factual error I found is trifling for the purposes of your blog. Where you wrote that the prohibition of selling alcohol to Native Americans began in 1834, all my research indicates that began in 1832. Given that these two years have nothing to do with the point of your post and that your post is three years old, it seemed pedantic to point it out to you. However, as a drug law history blog, I had to mention it in linking to your blog for my own posterity/vanity. Apologies, though, for the vagueness in my disclaimer. I should have provided more detail rather than questioning the blog, generally.

      The second “factual error” I perceived involves a more spirited argument that also seemed unnecessary to have via blog comments, and is potentially one of those “facts” that depends on where you’re looking from. You write “Many have forgotten that Native Americans were the only race to have prohibition imposed upon it.”

      Reading this sentence now, I’m realizing I may have taken it too broadly – you could have been speaking exclusively about alcohol. However, I took it as any substance prohibition, and the general purpose of my blog is to illuminate exactly the opposite of that assertion. While they may not have specifically named other races in the same manner that the 1832 alcohol prohibition named Native Americans, most early drug prohibitions involved forcing temperance on other races. For example, opium-smoking prohibitions were an imposition on the practices of Chinese Americans, the earliest marijuana prohibitions were an imposition on the practices Mexican Americans. These prohibitions were intended to target these races for their partaking as a means of ostracizing them. (Incidentally, the prohibition of peyote was also imposed on Native Americans, and the earliest broader alcohol prohibitions often specifically targeted European immigrant groups and their saloons.)

      Man, now that I’m writing all of this out, I’m realizing how much more complicated it is.

      Your point likely still stands, because regardless of the racial motivations of these laws, they were prohibitions that white people shouldered “just the same,” even if that’s a moot point because they didn’t use many of the drugs to begin with (for example, Montana voted to outlaw marijuana with hardly anyone in the legislature even knowing what it was).

      However, as I mention in my article with the Ellis case as an example, even if we restrict it to only alcohol, it is arguable whether the prohibition was fully “imposed” on the Native Americans, or whether there was some Native hand involved in the crafting of the 1832 law. (Knowing what I know about legislation at this time, it seems unlikely that the early tribes had any input, but it’s arguable.)

      In any case, I really can’t thank you for this comment enough. Forced me to do some critical thinking. I am decently sure the 1832 date is correct, but I’ve gone up and re-edited the entry to cut the reference to “facts,” as a gesture to show my regret for the original vagueness.

      Thanks for commenting,

      Mike

      Posted by beitiks | April 2, 2012, 9:32 am
  2. Thanks for your comments. No fact is too small to correct in my book. I have reposted your blog in one of the major Whiteclay Facebook groups.
    Anyone interested in reading further about Whiteclay should take a look at my book, The Death of Raymond Yellow Thunder: And Other True Stories from the Nebraska-Pine Ridge Border Towns. It has the most complete history of the town in print to date, and can also serve as a good case study of a commercial center that caters to a “dry” jurisdiction next door. I’m not shy about plugging it, but no one has to buy it. It is available in many libraries.

    Posted by Stew Magnuson | April 2, 2012, 11:52 am
  3. I found your take on the various laws interesting in your blog. However, I wanted to point out that in an article by Peter C. Mancall, entitled “Men, Women, and Alcohol in Indian Villages in the Great Lakes Region in the Early Republic,” (1995). He talks of a congressional act (The Trade and Intercourse Act) dating all the way back to 1802, during Jefferson’s presidency, which banned the trade of alcohol to Native Americans. He also writes about an extension of this act in 1834 and an 1847 bill that enacted harsher penalties for violating the law. I could not find any primary sources to back this up, though. Maybe you can look into it. Thanks for the blog! It provides me with a lot of relevant information for my upcoming assignment!

    Posted by Morgan Nevarez | May 26, 2012, 3:17 pm
    • Morgan-

      Thanks for the heads-up. To be clear, I did not intend to imply that the 1832 law was the first law that ever regulated the sale of liquor to Native Americans. However, in rereading, I can see where it seems like I was saying that (especially in my response to Mr. Magnuson). I discuss the 1832 law because it carried on until the 1953 swap over to tribal regulation, and it is the prohibition which most directly precedes the current Pine Ridge situation. I also chose it because it was the earliest law that I could find that had some reference to Native input in its crafting (although, admittedly, there may be earlier laws that also had input).

      That being said, I should have mentioned the 1802 Trade and Intercourse act, as it is very relevant. I just ran a quick search on it, just to learn for myself. It is completely imposed from the outside (unlike the current Pine Ridge Ban, which is completely internal), but because of the impossibility of enforcement, its failure follows a remarkably similar trajectory. Check this link out for a quick summary:

      http://books.google.com/books?id=0Nh-5LRYbGsC&pg=PA41&dq=1802+trade+and+intercourse+alcohol+indian&hl=en&sa=X&ei=yWzBT5zYN4aPiALXi9zrBw&ved=0CGkQ6AEwCQ#v=onepage&q=1802%20trade%20and%20intercourse%20alcohol%20indian&f=false

      I wish I had known that book existed before I wrote this post, because of the border parallels with Pine Ridge. Seems like a lot of stuff that would be good to tie back in there. Maybe it can help you in your assignment. (Incidentally, there was a lot of stuff on Google books with that search that may be valuable for you.) Good luck!

      Best,
      Mike

      Posted by beitiks | May 26, 2012, 5:07 pm

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