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SD tribe's lawsuit against beer stores dismissed

Published October 1, 2012 7:46 pm

This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Lincoln, Neb. • A federal judge dismissed an American Indian tribe's lawsuit Monday that blamed beer makers and nearby stores for chronic alcoholism on an impoverished South Dakota reservation, saying the case belonged in state court but gave a subtle nod to the tribe's claims.

The lawsuit was filed by the Oglala Sioux Tribe, which governs the Pine Ridge Indian Reservation, where alcohol is banned. Four beer stores named in the suit sold the equivalent of 4.3 million 12-ounce beer cans last year even though they're in Whiteclay, a Nebraska town with about a dozen residents on the reservation's border.

"There is, in fact, little question that alcohol sold in Whiteclay contributes significantly to tragic conditions on the reservation," U.S. District Judge John M. Gerrard wrote in his ruling. "And it may well be that the defendants could, or should, do more to try to improve those conditions for members of the tribe.

"But that is not the same as saying that a federal court has jurisdiction to order them to do so."

The judge dismissed the case without prejudice, meaning the tribe could take its claims to state court.

The tribe's attorney, Tom White of Omaha, said he had not yet discussed the ruling with his clients or decided how they would proceed, but added: "I would just point out that the judge had ever opportunity, if he wanted to, to say this is a spurious case or it doesn't have legal merit. And he carefully did not. That is significant."

The Connecticut-sized reservation has struggled with alcoholism for generations, despite an alcohol ban in place since 1832. It also spans some of the most impoverished areas in the country.

The tribe filed the lawsuit in February against the four Whiteclay beer stores, as well as regional distributors and four manufacturers: Anheuser-Busch, Molson Coors Brewing Company, MIllerCoors LLC and Pabst Brewing Company.

An attorney for Pabst declined to comment. Messages left with attorneys for the other companies and the four stores weren't immediately returned. Some of the stores' owners have previously said their insurers told them not to speak with the media.

The lawsuit alleges that the stores and beer makers allowed alcohol sales to Pine Ridge residents knowing they would smuggle it onto the reservation to drink or resell. The beer makers supplied the stores with "volumes of beer far in excess of an amount that could be sold in compliance with the laws of the state of Nebraska" and the tribe, the lawsuit alleged.

The vast majority of Whiteclay's beer store customers have no legal place to consume alcohol since it's banned on Pine Ridge, which is just north, and state law prohibits drinking outside the stores. The nearest town that allows alcohol is more than 20 miles south.

The reservation includes South Dakota's Shannon County, which U.S. census statistics place as the third-poorest in the nation. It has a median household income of $27,300 and nearly half of the population falls below federal poverty standards.

One in four children born on the reservation suffers from fetal alcohol syndrome or fetal alcohol spectrum disorder, and the average life expectancy is estimated between 45 and 52 years — the shortest in the Northern Hemisphere except for Haiti, according to a lawsuit. The average American life expectancy is 77.5 years.

Vic Clarke, a Whiteclay grocery store owner who serves as a town spokesman, said Monday that the lawsuit renewed media attention on the town and has triggered a wave of protests from outside groups.

But he said the same focus hasn't come to bars in other nearby towns — including Swett and Oelrichs, S.D., and Gordon, Neb. — that also serve American Indians, noting that a protester last week threw a makeshift stink bomb at one of the town's beer stores. He also suggested that the tribe could legalize alcohol.

Pine Ridge legalized alcohol in 1970 but restored the ban two months later, and an attempt to allow it in 2004 died after a public outcry.