The Legal Battle for Whiteclay

Mark Vasina, NFP President

Twenty-one miles south of the tiny reservation border town of Whiteclay, the Sheridan County Commission held a public hearing in Rushville March 6, on the automatic renewal of Whiteclay’s three off-sale liquor licenses. The hearing was mandated by state law in response to a written protest filed by three Sheridan County residents. Licenses are automatically renewed each year by the Nebraska Liquor Control Commission unless complaints are forwarded by local governing bodies.

Had County Commissioners Lewis Abold, Dan Kling and Vernon Platt acknowledged merit in any of the arguments presented by the concerned residents of Sheridan County and the Pine Ridge Reservation, they could have forwarded the complaint to the Liquor Control Commission for a hearing in Lincoln. Instead they tabled their decision to their next meeting, when they voted unanimously to approve the automatic renewals.

The Rally

Testimony at the hearing, and at the rally which preceded it, highlighted the devastation visited by alcohol upon the adults and children of the Pine Ridge, and called for the responsible application of Nebraska liquor law to ameliorate the problem. Held on the lawn of the Sheridan County Courthouse, the rally was attended by over a dozen Oglala Lakota from the Pine Ridge and an equal number of Nebraskans from across the state.

Russell Means, of Porcupine, S.D., spoke first. He professed little faith that the Sheridan County Board would act responsibly on this most serious matter affecting Indians on the Pine Ridge, since local leaders were unable and unwilling to take the steps necessary to protect their own communities from economic and social decay. He also spoke of growing talk on the Pine Ridge about a blockade at the border to prevent alcohol from entering the reservation from Whiteclay.

Chief Oliver Red Cloud, Treaty Chief of the Oglala Lakota Nation, spoke next about the genocidal-like devastation of alcohol on his people. A direct descendent of Chief Red Cloud, the signer of the treaties between the Sioux Nations and the U.S. government, he also spoke of the claims of the Oglala Lakota to the land on which Whiteclay sits. This 50-square mile parcel of land, known as the Whiteclay Extension, was illegally taken by an executive order of President Theodore Roosevelt in 1904 in contravention of an 1889 act of Congress which established the land as part of the Pine Ridge Reservation. (For more information about this, see: “Is Whiteclay in Nebraska or part of the Pine Ridge Reservation?” in the March 2006 Nebraska Report.)

Duane Martin, Sr., head of the Strong Heart Civil Rights Movement on the Pine Ridge, called for responsible action by all to curb the illegal transport of alcohol onto the reservation.

The last to speak at the rally was Nebraska Winnebago Tribe Member Frank LaMere. He cautioned listeners that the neglect of responsible social policy surrounding the licensing of alcohol dealers was leaving devastating scars on communities across Nebraska and the nation. Whiteclay, he said, has become the poster child for Nebraska’s failure to place the well-being of our children above the unchecked proliferation of liquor licenses.

The Legal Challenge

Thirteen of the 21 people who testified at the hearing opposed the license renewals, echoing the arguments presented in the protest letter:

1. Inadequate existing law enforcement has created a lawless environment in Whiteclay where violations of liquor laws by the licensed dealers are routine. Violations include sales to minors and intoxicated persons, sales on credit, and sales to bootleggers, as well as drinking on the licensed premises of off-sale-only establishments.

2. The sale of alcohol in Nebraska on the border of the Pine Ridge Indian Reservation (where sale and possession of alcohol is prohibited by tribal law) and within walking distance of the reservation’s main population center poses a real and significant threat to public health and safety. The ongoing licensing of alcohol sales in this location is in clear violation of the interests and intent of the people of the Pine Ridge, who, as recently as 2004, have spurned an effort by some to legalize alcohol sales on their reservation.

3. The standard used by the Liquor Control Commission to evaluate automatic license renewals—that a licensee is entitled to renewal of a liquor license if at the time for renewal the licensee meets the requirements which existed at the time the license was initially issued— does not conform with the Commission’s overriding mission to safeguard public health and safety. The Whiteclay licenses were originally issued without the consideration required by law of the adequacy of existing law enforcement and the impact of the licenses on public health and safety.

4. The County Board should acknowledge the defects in the original issuance of the licenses and forward the complaint to the Liquor Control Commission.

Resolution No. 2006-08 of the Sheridan County Board, adopted at the Board’s next meeting on March 13, disregarded all protest arguments and testimony, which were deemed irrelevant, and relied solely on the statement of the Nebraska Supreme Court in Grand Island Latin Club v. Nebraska Liquor Control Commission, 251 Neb. 61, 554 N.W.2d 778 (1996) to approve the license renewals:

A licensee may renew a liquor license provided: (1) the licensee is then qualified to receive a license; (2) the premises for which such renewal license is sought are the same premises designated in the initial license; and (3) the premises are suitable for the sale of alcoholic beverages in accordance with the initially issued license.

The board concluded that, “due to the protesters’ failure to address any of these three issues, the board’s sole remaining option is to approve the renewal of the relevant liquor licenses.” Commission Chair Dan Kling stated, after the vote, “We just follow the law.”

This narrow reading of liquor law may also be embraced by the Liquor Control Commission. Unfortunately, a challenge of this legal status quo by the protesters’ arguments is delayed by the County Board’s decision. State law provides for no direct appeal to the Liquor Control Commission regarding automatic license renewals when they are approved by a local governing body. The Sheridan County Board approval of the Whiteclay renewals blocks the Liquor Control Commission from hearing the protesters’ arguments and supporting evidence in a formal hearing. This protest, however, is merely the first of more to be filed.

Property Rights vs. Public Interest

Racism—in Sheridan County and throughout Nebraska, including public officials —undeniably plays an essential role in the continuation of the atrocity of alcohol sales in Whiteclay. This ugly thinking must and will be continuously exposed and challenged.

But anyone who attends legislative committee hearings on Whiteclay-related bills will conclude that more than racism is at work here. Lobbyists for the liquor, grocery and petroleum-marketing industries have fought, at one time or another, all legislation aimed at correcting the regulatory failure in Whiteclay. Any legislation which would empower the Liquor Control Commission to deny licenses in the interest of public health or safety is vigorously opposed.

What’s at work here? In recent years, Nebraska has witnessed a heady explosion of licenses for new retail outlets for alcohol. This is true for bars, restaurants and package stores. But the proliferation of liquor licenses for grocery stores, drug stores, big box stores, and convenience stores—many attached to gasoline service stations—has led to alcohol sales spanning the city streets and highways of Nebraska; into neighborhoods where alcohol was never historically available for sale. Nebraska can now lay claim to the highest number of liquor licenses per capita among all states in the U.S.

Seen in this light, the dispute over Whiteclay liquor licenses puts much more at risk for numerous industry interests than a few retail licenses in a sparsely populated part of Nebraska far from Omaha and Lincoln. It pits the property interest of existing license-holders against encroachment by the public interest (public health and safety). It threatens the juggernaut of the liquor licensing machine which is viewed as essential for business expansion by corporate operations ranging from gas station franchises to grocery chains and big box stores.

The battle for Whiteclay is in reality a contest between the proponents of unfettered markets and the defenders of responsible regulation. Some clearly view this as a struggle between Business (good) and Regulation (bad). Business interests fear that if new liquor regulation, however moral or sensible, gains a toehold in Nebraska over the Whiteclay issue, the consequences would reverberate throughout the system which licenses and regulates liquor sales. This would be ‘bad’ for the liquor industry in Nebraska. But, more importantly, also ‘bad’ for those businesses which increasingly rely on alcohol sales to maintain or boost profits. Bad for business. Period.

The effort to close the liquor stores will continue on many fronts. Exciting developments are taking shape on the Pine Ridge Reservation (more about this next time). The Sheridan County Board’s decision to approve the automatic license renewals, without so much as an acknowledgement of concern for the children whose lives are affected, has attracted attention across Indian Country and across the nation. (Duane Martin, Sr. spent an all-expenses-paid week at Columbus State University in Columbus, Georgia lecturing about Whiteclay after faculty there read about the Sheridan County hearing on the internet.)

Our strategies must become increasingly sophisticated as we learn more about the legal and institutional roadblocks to change. We will find new ways to challenge our elected officials in the executive and legislative branches to develop wise, caring and non-racist public policy that protects the well-being of our friends and neighbors on the Pine Ridge.

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