Whiteclay, Nebraska

The status of Whiteclay's beer stores has been a constant political issue in the region, prompting waves of activism to end the alcohol sales. There is public drunkenness in Whiteclay, and violence is associated with alcohol there and on the reservation.[10] "Tribal police estimate that they issue more than 1,000 DUIs annually on the 2-mile stretch of road between White Clay and Pine Ridge."[12] Victor Clarke, a grocery store owner in the hamlet, notes that numerous places within an hour's drive could supply beer if Whiteclay were shut down. He says, "The state of Nebraska doesn't want Whiteclay to go away because it allows problems to be isolated in this one little place. You hear people in the towns around here saying, 'We don't want these guys in our town.'"[10]

In 2010, the liquor stores paid federal and state excise taxes (included in liquor's sale price) of $413,932, according to the state liquor commission, mostly from sales to residents of the Pine Ridge Indian Reservation.[6] Some activists have supported the legalization of alcohol sales on the reservation so that the tribe can keep the revenues. These would support building a treatment center and founding more programs, and the tribe could directly regulate and control the sales, as other tribes have done. (See discussion below).

A pair of unsolved murders of Lakota men in early 1999 led to protest rallies led by various activist groups, including members of the American Indian Movement (AIM) from Pine Ridge Indian Reservation and Nebraskans for Peace, demanding that Nebraska revoke the liquor licenses of Whiteclay's stores and increase law enforcement in the area. The nearest Nebraska-based law enforcement is the county sheriff's office, based in the county seat of Rushville 22 miles (35 km) to the south. The Sioux tribal law enforcement in Pine Ridge, South Dakota has no jurisdiction in Whiteclay, and the number of tribal police has been reduced by nearly two thirds over the past several years.[10] In the fall of 1999, Native American activists Russell Means and Frank LaMere proposed getting a license to sell beer in Whiteclay, in order to retain some monies to benefit the tribe and build a treatment center on the reservation, but abandoned the project due to disagreement by others of their group.[13]

In 2005, the state of Nebraska and President Cecilia Fire Thunder of the Pine Ridge reservation signed an agreement to allow Oglala tribal officers to enforce Nebraska laws in Whiteclay by deputizing them as Nebraska agents.[14] The OST Tribal Council had approved the agreement in June 2005 in a meeting with Nebraska officials, the State Attorney General Jon Bruning and Congressman Tom Osborne.[15] With lobbying by Nebraska's delegation, Congress earmarked $200,000 over two years to pay for the increased cost of additional tribal police personnel and other costs of OST patrols to be associated with Whiteclay.[16]

But, by May 2007, the tribe had spent no money for this purpose. Fire Thunder was impeached several months before the end of her term in 2006. The political conflict within the tribe appeared to have resulted in its choosing not to implement the agreement; by May 2007, it had hired no new police nor organized to take advantage of the grant.[16] It stood to lose the earmarked money by October 2007.[16]

Tribal activists of the Strong Heart Society have conducted annual blockades since 1999, trying to intercept alcohol and drugs being brought into the reservation.[17] For instance, in June 2006 tribal activists had protested the beer sales by blockading the road to confiscate beer bought in Whiteclay. The blockade was to be held within the reservation boundaries.[18] The activists had lifted the blockade after agreeing to work with Chief of OST Police James Twiss on ways to limit bootlegging. According to Twiss, the roadblock was illegal; however, the police department lacked the money and manpower to do more to interdict bootlegging from Whiteclay to the reservation.[19]

In May 2007, activists discussed another blockade after some bootleggers were successfully prosecuted by the US Attorney for South Dakota. Two women were sentenced in the case.[19] At the same time, it appeared that by the fall of 2007, the OST would lose $200,000 in federal grants that would have enabled it to hire more police and have them deputized by Nebraska to help police Whiteclay and protect their people. Tribal officials did not talk to reporters when questioned about the lack of action. Mark Vasina of Nebraskans for Peace, who had collaborated with the tribe in protests, said that there was internal tribal conflict over the proposed deputization program. He thought the agreement represented a commitment by Nebraska officials to take action but it "shuns the state's responsibility" for the effects of the beer sales.[16] Vasina's documentary about the issues and activism was released in 2008 as The Battle for Whiteclay.

In 2010, the Nebraska legislature passed a law to provide money for increased law enforcement and economic development in Whiteclay; in December 2010, it awarded a $10,000 grant to Sheridan County, to cover the increased costs for its sheriff's office to patrol Whiteclay, 22 miles north of the county seat. There was the potential for funds to be increased in following years.[20]

Protests continued. In 2013, protesters including then-president of the Oglala tribe, Bryan Brewer, and activist Debra White Plume stopped beer trucks from entering the town.[21]

A 2007 survey found that 63% of federally recognized tribes in the lower 48 states have legalized liquor sales on their reservations, enabling them to keep the considerable sales taxes and associated revenue generated, regulate the trade, and directly police and treat their own people in relation to this commodity.[22] Those allowing alcohol sales include all the other reservations in South Dakota, such as the Sicangu Oyate or Brulé Sioux at the Rosebud Indian Reservation to the east.

The Winnebago Tribe of Nebraska is among those that have legalized alcohol sales. As another example, in 2006, the Omaha Nation in northeastern Nebraska started requiring payment of tribal license fees and sales taxes by liquor stores located in towns within its reservation boundaries in order to benefit in the alcohol revenues.[23] James N Hughes III suggests that the Oglala Sioux Tribe at the Pine Ridge Indian Reservation could "regulate, police and profit from the sale of what has been, for 200 years, an irresistible liquid commodity."[24] Rather than supporting white traders, the tribe could keep its money within the reservation and directly control and police the alcohol trade.

In 2010 the beer sales at Whiteclay generated $413,932 in federal and state taxes, according to the state liquor commission.[6] Hughes suggests that a "legalized liquor trade could provide the tribe with its own product upon which to levy tribal taxes and generate much needed revenue to fund healthcare services on Pine Ridge," including building a detoxification facility.[22] In addition, proper taxation strategy by the Pine Ridge Indian Reservation could be used to eliminate Whiteclay's stores from the marketplace and "turn a social poison into an economic boon."[22] The tribe could regulate operations of liquor stores, such as hours, and better police selling to underage consumers.[22] In 2004 the tribe voted down a referendum to legalize alcohol sales, and in 2006 the tribal council voted to maintain the ban on alcohol sales.[22]

In the summer of 2010, Denver American Horse, a teacher of the Lakota language, announced as a candidate for president of the Oglala Sioux Tribe. He proposed changing the reservation rules to permit alcohol sales. According to the journalist Mary Garrigan, he said that the "additional taxes that now go off-reservation could be used to fund much-needed alcohol treatment programs."[25] As reported by Timothy Williams, Milton Bians, a tribal police captain, also supports ending prohibition.[10] "Not to disrespect our elders and grandparents, but we've gone through several generations," he said.[10]

Victor Clarke, the manager of a grocery store in Whiteclay, supports the idea of the tribe's ending its prohibition against alcohol sales. He thinks it would be the "biggest economic boon they could do."[25] The tribe would then have both the benefits and responsibility of alcohol sales.

On February 9, 2012, the Oglala Sioux Tribe filed a federal lawsuit against Whiteclay's liquor stores, as well as national beer distributors and manufacturers, including Anheuser-Busch InBev, Molson Coors Brewing Company, Pabst Brewing Company, and Miller Brewing Company. The lawsuit alleges that the defendants knowingly sold and distributed beer with the intent of consumption on the Pine Ridge Indian Reservation, where alcohol is banned and alcohol-related problems are rampant.[26]

According to the suit:

The illegal sale and trade in alcohol in Whiteclay is open, notorious and well documented by news reports, legislative hearings, movies, public protests and law enforcement activities. All of the above have resulted in the publication of the facts of the illegal trade in alcohol and its devastating effects on the Lakota people, especially its children, both born and unborn.[26]

The OST is seeking $500 million in damages for reimbursement of the "cost of health care, social services and child rehabilitation caused by chronic alcoholism on the reservation, which encompasses some of the nation's most impoverished counties."[26] The tribe is represented in the suit by Tom White, the tribe's Omaha-based attorney.[5] As White said, "In a town of 11 people selling 4.9 million 12-ounce servings of beer, there is no way that alcohol could be legally consumed. It's just impossible."

On February 22, 2012, an amended complaint seeking injunctive relief in the OST's lawsuit was filed in response to public comments made to the Nebraska Radio Network on February 10, 2012, by the Nebraska State Attorney General Jon Bruning, the highest law enforcement officer in the state. According to the amended complaint, it is "not reasonable to expect that in the future the State of Nebraska will enforce its laws regulating the sale of alcohol at Whiteclay."[27] Bruning had said he believed the State of Nebraska should not be involved in the suit; that shutting down the beer stores wasn't the solution; that reservation residents would drive further afield to purchase alcohol, which might lead to increased drunk driving; and that any money recovered in damages by the OST, in this suit or others, might be used to buy alcohol.[27][28]

Federal law (18 U.S.C. § 1161) prohibits the sale and distribution of alcohol on reservations unless allowed by the tribal government. Charles Abourezk, a Rapid City lawyer, said the Whiteclay lawsuit challenges the defendants' "intent to distribute on a dry reservation, contrary to federal and tribal law."[5]

On October 1, 2012, the U.S. District Judge John M. Gerrard dismissed the Oglala Sioux Tribe's lawsuit against the beer stores and associated companies, saying that the federal court did not have jurisdiction over the issue. He dismissed it "without prejudice, meaning the tribe could take its claims to state court."[29] The judge acknowledged that beer sales contributed to problems on the reservation.[29]

As noted, the Nebraska legislature created bills to increase funding for police protection and health services in the area. In February 2012 Nebraska lawmakers were

considering legislation that would allow the state to limit the types of alcohol sold in areas like Whiteclay. The measure would require local authorities to ask the state to designate the area an 'alcohol impact zone.'[26] Under the legislation, the state liquor commission would be authorized to "limit the hours alcohol sellers are open, ban the sale of certain products or impose other restrictions."[26]

The measure was introduced by Nebraska state Senator LeRoy J. Louden of Ellsworth, whose district includes Whiteclay. Sheridan County officials support it.[26]

In April 2017, the three-member Nebraska Liquor Control Commission voted to deny license renewals to the four liquor stores in Whiteclay, citing inadequate law enforcement in the area.[30] The stores were allowed to continue selling beer until the existing licenses expired at midnight April 30, 2017. The store owners appealed the decision to the Nebraska Supreme Court, but their appeal was denied.[31] Since then, the town has cleaned up, with fewer vagrants; however, bootlegging continues on the reservation and many now travel to other Nebraska towns like Rushville.[7]