Distilling on Tribal Lands Is Now Legal in the U.S.

The recent repeal of an early-19th-century federal law creates new business opportunities for Native American spirits producers

Rep. Jaime Herrera Beutler and Chehalis chairman Harry S. Pickernell Sr. at committee hearing for HR 5317.

To anyone who’s been paying attention, the success of the modern craft alcohol movement is no secret. From the latest chic brewery opening down the street to the new distillery producing that small-batch liqueur you just can’t live without, the fruits of entrepreneurial adventures in alcohol are everywhere. But until just a few days ago, one group in the United States was conspicuously left out of the current craft alcohol renaissance: Native Americans.

Under an 1834 federal law enacted during the Andrew Jackson administration, it was illegal for anyone to set up a distillery on tribal land for the purpose of manufacturing “ardent spirits.” Penalties for violating the law included fines and asset forfeiture. This law remained on the books for almost two centuries until Congress and the president, in a rare bipartisan moment, finally repealed it in early December 2018.

The reasons it took so long to relegate this antiquated law to the dustbin of history are far from glamorous but contain the seeds of a quintessentially American story: A law born from an outdated and offensive view toward Native Americans finally gave way to entrepreneurial desire and irrepressible market forces.

In 2016 the Confederated Tribes of the Chehalis Reservation, located in Washington State, opened a restaurant on their land that sold craft beer and distilled spirits. Not satisfied with merely selling products from other producers, however, the Chehalis tribe set about trying to produce their own spirits. They didn’t get far, though, before the Bureau of Indian Affairs pointed them to the 1834 ban.

The law, which stated its official purpose as a desire to “preserve peace on the frontiers,” started as a wholesale prohibition against selling, producing, or even introducing alcohol to Indian reservations. This policy was largely motivated by the myth of the “drunken Indian,” a condescending stereotype suggesting that Native Americans were inherently unable to coexist responsibly with alcohol. As many scholars have documented, this period in American history saw the implementation of a series of laws intended to solve what was often referred to as the Indian problem. Indian reservations were established, and U.S. military personnel were tasked with keeping peace between white settlers and Native Americans.

The Native American alcohol prohibition was part of this patronizing peacekeeping effort. Notably, U.S. soldiers stationed on Indian reservations were specifically exempted from the ban and even provided with government rations of whiskey. This exception swallowed the rule, as soldiers and other white settlers freely traded hooch with the very Native Americans they were supposed to “protect” from the negative effects of alcohol.

When the Eighteenth Amendment went into effect in 1920, the prohibition of alcohol was nationalized in an attempt to ban all Americans from selling or producing booze. But even after the amendment was repealed in 1933, the Native American alcohol ban stayed in place for several more decades. In 1953, Congress reformed the law, ending Native American alcohol prohibition generally. But the ban on distilling alcohol on tribal lands survived. Some tribes have found clever work-arounds, such as placing their distilleries on private lands inside a reservation, but the ban has directly stymied groups like the Chehalis.

Over the past year, the Chehalis, working through their representative, Jaime Herrera Beutler (R-Wash.), introduced a bill to Congress to repeal this outdated ban. As the current chairman of the Chehalis tribe noted in testimony, the current policy of the United States toward Native Americans is to “support tribal self-determination and self-sufficiency,” two goals that are wholly at odds with denying Native Americans the ability to distill their own spirits on their own land. After several months of political machinations, Herrera Beutler’s bill passed both the House and Senate and was recently signed into law by the president.

Linda and Curt Basina.
Linda and Curtis Basina. Photo courtesy of Copper Crow.

“It is right and fair that Indian tribes should be able to pursue the same economic opportunities as nontribal citizens,” says Herrera Beutler. “Therefore, we had to repeal this antiquated law. I’m pleased tribes across the country will now be able to expand into the booming distillery business that brings new jobs and skills training.”

Removing an obstacle preventing Native Americans from distilling is the right thing to do from a freedom and equality perspective, of course, but it also makes economic sense. Native American populations disproportionately struggle with high unemployment, a situation that the craft spirits industry is well suited to help alleviate. The craft spirits boom has created a jobs boom, as employment in the industry has increased by nearly 50 percent in recent years. The Bureau of Labor Statistics estimates that from January 2017 to January 2018, more than 14,000 manufacturing jobs were created by breweries, wineries, and distilleries—the second-highest number of any industry in the entire country.

Photo courtesy of Copper Crow.

There’s evidence of at least some interest among tribes in breaking into the distilling business. Apart from the Chehalis, Copper Crow Distillery in Bayfield, Wisconsin, is owned by Curtis and Linda Basina, both members of the Red Cliff Band of Lake Superior Chippewa. While their distillery is technically located on private land (and thus was not subject to the tribal distilling prohibition), they welcome the repeal of the ban and think it could lead to at least a few more tribes opening distilleries. “My feeling is that there already are a couple of tribes that are interested,” says Curtis Basina, “and I do see some tribes saying here’s an opportunity to create jobs through the sale and manufacture of spirits.”


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C. Jarrett Dieterle is the director of commercial freedom policy and a senior fellow at the R Street Institute. His research and writing focus on regulatory affairs, alcohol policy, occupational licensing, and other commercial freedom issues. He has also worked and written for numerous policy organizations and think tanks, including the Reason Foundation, the Manhattan Institute, and the Washington Legal Foundation.

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