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.
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.