10 F.3d 554 (8th Cir. 1993), 93-1148, City of Timber Lake v. Cheyenne River Sioux Tribe

Docket Nº:93-1148.
Citation:10 F.3d 554
Party Name:CITY OF TIMBER LAKE, a South Dakota municipal corporation; City of Isabel, a South Dakota municipal corporation; City of Dupree, a South Dakota municipal corporation; American Legion Club, Edwin Hodges Post 124, of Dupree; Mickey Hutchinson, doing business as Mickeys Cafe & Lounge, Appellees, v. CHEYENNE RIVER SIOUX TRIBE; Greg J. Bourland, in his
Case Date:November 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 554

10 F.3d 554 (8th Cir. 1993)

CITY OF TIMBER LAKE, a South Dakota municipal corporation;

City of Isabel, a South Dakota municipal corporation; City

of Dupree, a South Dakota municipal corporation; American

Legion Club, Edwin Hodges Post 124, of Dupree; Mickey

Hutchinson, doing business as Mickeys Cafe & Lounge, Appellees,

v.

CHEYENNE RIVER SIOUX TRIBE; Greg J. Bourland, in his

official capacity as Chairman of the Cheyenne River Sioux

Tribe; Marvin Lecompte, in his official capacity as Chief

of Police of the Cheyenne River Sioux Tribe, Appellants.

No. 93-1148.

United States Court of Appeals, Eighth Circuit.

November 29, 1993

Submitted May 12, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Jan. 11, 1994.

Page 555

Mark C. Van Norman and Timothy W. Joranko, Eagle Butte, SD, argued, for appellants.

Timothy M. Engel, Pierre SD, argued, for appellees.

Page 556

Before RICHARD S. ARNOLD, Chief Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

FAGG, Circuit Judge.

In this case, we must decide whether an Indian tribe has authority to regulate liquor sales on land held in fee by non-Indians in non-Indian communities within the boundaries of the tribe's reservation. The appellees, an American Legion Club, a non-Indian individual, and the South Dakota cities of Timber Lake, Isabel, and Dupree, all operate liquor establishments within the Cheyenne River Sioux Reservation on fee-patented lands in the cities. The appellees refused to obtain liquor and business licenses as required by ordinances 48 and 1 of the Cheyenne River Sioux Tribe, and the tribe brought an action in tribal court seeking to compel the appellees' compliance. The Cheyenne River Sioux Tribal Court permanently enjoined the appellees from operating their businesses within the reservation until they comply with the tribe's liquor control ordinance and business license ordinance. Cheyenne River Sioux Tribe v. Isabel City Package Liquor, 18 Indian L.Rep. 6079 (Chy.R.Sx.Tribal Ct. Jan. 8, 1991). The tribe's court of appeals affirmed in an unpublished opinion. Cheyenne River Sioux Tribe v. Dupree American Legion Club, mem. op. and order (Chy.R.Sx.Tribal Ct.App. Apr. 2, 1992).

The appellees then brought this action in federal district court against the tribe, its chairman, and its police chief (collectively the tribe), seeking permanently to enjoin the tribe from enforcing the ordinances against them. Before a trial on the merits of the permanent injunction, the district court issued a preliminary injunction preventing the tribe from enforcing the ordinances against the appellees. The tribe appeals the district court's issuance of the preliminary injunction. We reverse the issuance of the preliminary injunction and remand with instructions.

In deciding a motion for a preliminary injunction, a district court weighs the movant's probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between this harm and the injury that the injunction's issuance would inflict on other interested parties, and the public interest. See Sanborn Mfg. Co. v. Campbell Hausfield/Scott Fetzer Co., 997 F.2d 484, 485-86 (8th Cir.1993); Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 112-14 (8th Cir.1981) (en banc). We reverse the issuance or denial of a preliminary injunction if the issuance or denial is the product of an abuse of discretion or misplaced reliance on an erroneous legal premise. Arkansas Peace Ctr. v. Department of Pollution Control & Ecology, 999 F.2d 1212, 1216 (8th Cir.1993).

The district court decided the appellees showed a likelihood of success on the merits because the tribe might lack authority to impose its liquor ordinance on the appellees as operators of liquor establishments on fee-patented lands in non-Indian communities. The tribe asserts this is an error of law because 18 U.S.C. Sec. 1161 authorizes the tribe to regulate liquor traffic within reservation boundaries, notwithstanding the nature of the community regulated or ownership of the land. If the tribe is correct, the scope of the tribe's delegated authority would be broad enough to allow imposition of not only the liquor ordinance, but also imposition of the business license ordinance on the appellees as operators of liquor establishments.

By passing the law codified as 18 U.S.C. Sec. 1161, Congress "delegated authority to the States as well as to the Indian tribes to regulate the use and distribution of alcoholic beverages in Indian country." Rice v. Rehner, 463 U.S. 713, 715, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983). The relevant part of Sec. 1161 provides:

The provisions of sections 1154, 1156 ... shall not apply ... to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the [governing] tribe....

18 U.S.C. Sec. 1161 (1988). The tribe asserts the applicable definition of Indian country is found in Sec. 1151, which states, "Except as otherwise provided in sections 1154 and 1156 of this title, the term 'Indian country', as

Page 557

used in this chapter, means (a) all land within the limits of any Indian reservation ... notwithstanding the issuance of any patent...." 18 U.S.C. Sec. 1151(a) (1988). The appellees counter that the applicable definition of Indian country is found in 18 U.S.C. Secs. 1154 and 1156, the federal criminal statutes that prohibit the introduction of liquor into Indian country and the possession of alcohol in Indian country. These statutes both state, "The term 'Indian country' as used in this section does not include fee-patented lands in non-Indian communities...." 18 U.S.C. Secs. 1154(c), 1156 (1988). The appellees essentially contend the tribe's authority to regulate liquor within Indian reservations under Sec. 1161 is geographically limited to the reservation areas in which the federal criminal statutes, Secs. 1154 and 1156, apply.

In support of their statutory interpretation, the appellees rely on our decision in United States v. Morgan, 614 F.2d 166, 171 (8th Cir.1980). In that case, non-Indians who operated liquor establishments on fee-patented lands within a reservation appealed a district court order enjoining them from selling liquor until they obtained tribal liquor licenses. Id. at 168-69. We reversed, holding tribal liquor license requirements under Sec. 1161 did not apply to the non-Indians operating liquor establishments on fee-patented lands because the establishments were in non-Indian communities, and thus, not within Indian country as defined in Sec. 1154(c). Id. at 171. We focused on the definition of non-Indian community, and applied Sec. 1154(c)'s definition of Indian country...

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