The Crazy Horse Malt Liquor Case: From Tradition to Modernity and Halfway Back
Pommersheim, Frank, South Dakota Law Review
I. INTRODUCTION AND BACKGROUND
Tasunke Witko, or Crazy Horse as he is known in English, is a revered nineteenth century warrior and spiritual leader of the Oglala Band of the Lakota (or Sioux) Nation. (1) He is renowned for both his skills as a warrior and his high spiritual concern for the welfare of his people. He also often seems to stand apart as a mysterious, even mystical, individual. His picture was never taken by a photographer. He never went to Washington, D.C. to meet the "white fathers." He never signed a treaty with the United States government. He never claimed to be a chief or tribal leader. He was ultimately killed in 1877, when he was held captive pursuant to his "surrender" at Camp Robinson in Nebraska. (2) This, too, is shrouded in mystery. (3)
Near mythic to his own people, he also became an icon of the Plains' Indians to society at large. He was the glorious embodiment of mystery and resistance that met his tragic demise at the end of the trail. Such national icons, especially those minted in romantic stereotypes, often become figures that are expropriated by the dominant society to support advertising and to enhance commercial profit. It is, in part, the quintessential American way.
Such was the fate (4) of Crazy Horse until his modern day descendants, acting through his Estate, took dramatic legal action to halt such practices, especially in the notorious context of using the name "Crazy Horse" to promote a malt liquor product (5) allegedly named in his honor. (6) This multifaceted legal history involves significant litigation in both tribal and federal court involving both tribal and federal law issues. These diverse forums had varying conceptions of substantive law that were often complementary, but were mostly oppositional in nature. More striking, however, is the significant interplay between modern law, especially in regard to jurisdiction, and traditional Lakota law, reaching all the way back to 1877 for rules of descendancy and inheritability. Modernity and tradition came together in an uneasy and cautious embrace. This essay tracks that unease and caution.
II. THE NAME CRAZY HORSE AND COMMERCIAL FREE SPEECH
This modern legal and cultural saga began in 1992, when the Federal Bureau of Alcohol, Tobacco and Firearms (BATF) issued a Certificate of Label Approval (COLA) to the G. Heileman Brewing Company as the bottler and distributor of Crazy Horse Malt Liquor. (7) The certification process includes considerations as to whether the label is "misleading, fraudulent, or obscene." (8) In March of 1992, Hornell introduced Crazy Horse Malt Liquor in fourteen states. (9) Eventually, the liquor was distributed through over 200 wholesalers and 100,000 retailers to thirty-one states. (10)
The introduction of Crazy Horse Malt Liquor into commercial markets drew sharp criticism both inside and outside of Indian country, especially in South Dakota, the traditional homeland of the Great Sioux Nation. (11) This indignation soon reached Congress. Both (then) South Dakota Senators Larry Pressler and Tom Daschle wrote to Hornell expressing their displeasure. (12)
These concerns and the alleged failure of Hornell to adequately respond led Congress to consider (and ultimately adopt) remedial legislation. Enacted on October 1, 1992, Section 633 of Public Law 102-393 (13) read as follows:
Upon the date of enactment of this Act, the Bureau of Alcohol, Tobacco, and Firearms (ATF) shall deny any application for a certificate of label approval, including a certificate of label approval already issued, which authorizes the use of the name Crazy Horse on any distilled spirit, wine, or malt liquor product; Provided, that no funds appropriated under this Act or any other Act shall be expended by ATF for enforcement of this section and regulations thereunder, as it related to malt beverage glass bottles to which labels have been permanently affixed by means of painting and heat treatment, which were ordered on or before September 15, 1992, or which are owned for resale by wholesalers or retailers. …