Would Yakama ban apply to non-Indians?

This week, the Yakama Indian Nation tribal council will vote on a straightforward proposal to ban possession and sale of alcohol on its reservation.

But the legal questions it raises couldn't be more tangled: Can a tribe regulate non-Indians who run businesses the state says are legal? Could the ban prohibit non-Indians from serving liquor in homes on property they own?

At the center of the legal dilemma is this fact: the Yakamas are a minority on their own land. About 29,000 of the 38,000 people living on their vast Eastern Washington reservation are non-Indians.

The tribe says it has the right to impose regulations on all the land within the reservation, including property owned by non-Indians and in the largely non-Indian towns of Toppenish, Wapato and Harrah.

City and business leaders argue that an Indian tribe can't set rules affecting non-Indians on privately owned land.

"They're looking at controlling the lives of all these people who don't have a say in that (tribal) government," said Jeff Sullivan, Yakima County prosecutor. "They talk about sovereignty of Indian nations. But that sovereignty has been limited."

Legal experts agree the courts have been ambiguous in determining how much jurisdiction an Indian tribe has over privately-held land within a reservation.

"It's a complex area where the court has created more shadows than shed light," said David Getches, a law professor at the University of Colorado.

Treaties signed by tribes and the government designated the reservations exclusively for the use of Indians. But the government then enacted a law that allotted land parcels on reservations to individual tribal members - who subsequently sold them to others, including non-Indians.

On the Yakama reservation, which covers 1.3 million acres stretching from Mount Adams to the Yakima River, the non-Indian communities became towns. And in those towns, taverns, liquor stores and supermarkets selling beer and wine were set up.

While the tribe runs a casino that is alcohol-free, some 50 other businesses, mostly in Toppenish and Wapato, sell alcohol.

The proposed alcohol ban puts those businesses, and its employees, in jeopardy. The plan has already prompted the last two liquor stores with state contracts to move off the reservation, according to Jack Fiander, a member of the Yakama tribal council.

The Yakamas say a ban is necessary to combat the high rate of alcoholism among its members.

The tribe initially moved to tax businesses that sell alcohol. But when Gov. Gary Locke threatened to file a legal challenge to the tax, the tribe's three-member executive council instead proposed the ban on alcohol.

The proposed ban will be considered by the 14-member tribal council when it meets Tuesday. But it is doubtful it will repeal the decision, Fiander said.

State officials are waiting to see what happens, said David Walsh, assistant attorney general. He noted that language for the proposed ban has not yet been drafted.

The tribe hasn't made clear how it plans to enforce the ban.

Past legal cases raise debate about how far such a ban could extend. In 1989, two non-Indians on the reservation each wanted to develop property in a way that adhered to county zoning rules but not to the Yakamas' rules.

The U.S. Supreme Court ruled the tribe had authority only over the property that was surrounded largely by reservation land. The tribe could not regulate the property located in the mostly non-Indian community.

In the early 1980s, the Supreme Court ruled that the Crow Tribe of Montana had no power to regulate hunting and fishing by nontribal members on fee land, land not held in trust within a reservation..

A tribe, the justices wrote, may exercise civil authority over non-Indians on fee lands "when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

But a 1975 case might best defend the tribe's right to ban alcohol. In that case, the Shoshone and Arapahoe tribes revamped their alcohol ordinance, requiring businesses that sell liquor to obtain a tribal liquor license. A license was then denied for a non-Indian couple operating a bar on privately owned land within the Wind River Reservation in Wyoming.

The U.S. Supreme Court said Congress had the authority to regulate alcohol and that it had delegated that authority to Indian tribes.

The Yakamas could argue the government gave them the right to ban alcohol, said Carole Goldberg, a law professor at the University of California, Los Angeles.

But, she said, the tribe must demonstrate that the state regulation of alcohol ". . . is not providing them with the kind of protection their community needs."

Florangela Davila's phone message number is 206-464-2916. Her e-mail address is fdavila@seattletimes.com

(Times reporter Josh Robin contributed to this report)