Tribe at war against alcohol

Indians' ban faces legal challenge from Wash., businesses

April 17, 2000|By David L. Greene | David L. Greene,SUN STAFF

TOPPENISH, Wash. -- The Yakama Nation has for decades been at war against alcoholism, but the binge drinking along bottle-strewn streets, the unshakable addictions and the drunken-driving fatalities seemed impossible to beat.

In desperation, the tribe's governing body passed a resolution last week that would ban the sale and possession of alcohol on the reservation, beginning in September. Now the tribe finds itself in a war of a different sort, facing the possibility of legal challenges from the governor and the owners of 48 businesses that sell alcohol and might have to close.

The business owners -- most of them non-Indians who own land within tribal boundaries -- say the ban can't apply to them, because they have no representation in tribal government. Their establishments are mostly in towns that lie within the reservation, which is almost as big as Delaware.

The dispute could become a crucial test of whether a sovereign Indian tribe can legally make laws applying to non-Indians tougher than laws of the counties and states where they are located.

At a time when many tribes are angering neighbors by introducing gambling to communities, the Yakama case brings an ironic twist. The tribe is flexing its sovereign muscle to rid its land of an indulgence. But the anger from outsiders over their actions seems just as vehement, the legal skirmishes just as intense as if the tribe was opening a casino.

"I know there are suburban bedroom communities in this state that want to be drug- and alcohol-free, or don't want topless bars in their neighborhoods," said Jack Fiander, the tribal council member who spearheaded the ban. "Local and state politicians support them and say, `Right on.' We're doing the same thing and getting a lot of opposition."

The issue has grabbed headlines and generated legal tumult locally for months, since the tribe enacted a hefty alcohol tax last fall to raise money for alcohol-related programs and drive some businesses out. One liquor store was forced to close, but most establishments defied the tariff, which charged 40 cents on every can of beer sold.

The tribe also came in confrontation with Gov. Gary Locke, who visited Toppenish, the largest town on the reservation, to persuade the tribe to suspend the tax until it could be reviewed. When talks with the Yakamas broke down, Locke passed the matter to his attorney general and vowed a court fight to block the tax.

The tribe then abandoned the tax, only to pass the alcohol ban, a move that stunned many in the towns that dot the 1.2-million-acre reservation.

"Any time someone is trying to put me out of business, I take it personally," said Gary Betschart, owner of the Spur Tavern, a 91-year-old pool hall in the small, dusty town of Harrah. Betschart put up no trespassing signs in January, which he said would have given him grounds to sue if authorities tried to visit his bar to impose the tax. The ban, he said, might be harder to fight.

"I have a substantial investment in my business, and I'll lose all of that," he said. "Prohibition laws never worked. We know that. To legislate morality, it never worked."

The Yakama reservation is in an arid valley of farms and orchards, flanked by the upslopes of the Cascade range. Non-Indians own about 20 percent of the land, but dominate incorporated towns -- such as Toppenish, with 7,000 people, Wapato with 3,900 and Harrah with 350 -- where most of the alcohol is sold and there is little evidence that one is on tribal property.

Many reservations around the country are home to non-Indians, and the question of whether tribes can govern them is not new. It is an issue that courts have grappled with, never reaching consensus. The Yakamas point to a 1993 U.S. Court of Appeals case in which the Cheyenne River Sioux in South Dakota were allowed to tax non-Indian businesses that sell alcohol.

Legal experts say the U.S. Supreme Court established an important, yet vague, test in 1981 when it ruled that a Montana tribe could not regulate hunting and fishing by non-Indians. The court said tribes can pass such laws if important tribal interests are at stake or if non-Indians consent to living under Indian law.

Any court decisions on the Yakamas could hinge on whether non-Indians implicitly consented to abiding by their law by opening businesses within tribal borders, said legal experts. Yakama leaders say the standard has been met. And having scores of alcohol businesses, from taverns to convenience stores to a Safeway supermarket, puts members in danger -- making the issue a matter of tribal interest, they say. They say an 1855 treaty, which established the reservation as "free of ardent spirits" and was ratified by the U.S. Senate, gives them further legal backing.

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