Beer vendors in Whiteclay would be forced to discriminate against residents of a neighboring South Dakota American Indian reservation if a judge agrees with a lawsuit accusing the retailers and others of knowingly contributing to the reservation's alcohol-related problems, attorneys said in asking for the lawsuit to be dismissed.
The argument is among several made in motions filed Friday asking a judge to dismiss the $500 million lawsuit filed by the Oglala Sioux Tribe against some of the world's largest beer makers, as well as their distributors and the four beer stores in the reservation border town of Whiteclay.
The lawsuit asks that breweries, retailers and distributors pay damages for health care and law enforcement costs, developmental problems in children and other alcohol-related problems on the Pine Ridge Indian Reservation. The tribe also wants a judge to restrict alcohol sales in Whiteclay.
Lawyers for the beer companies said in court papers that such an order would force Whiteclay's beer stores to discriminate against American Indians from Pine Ridge.
"The absurdity of this request cannot be understated," said Jerald Rauterkus, an attorney for State Line Liquor in Whiteclay. The tribe "is seeking an order from this court that would actually command retail defendants to refuse the sale of their otherwise publicly available goods to members of the Oglala Sioux Tribe who live on the Pine Ridge Indian Reservation based solely on their race and ethnicity."
Alcohol officially is banned on Pine Ridge, a reservation with an estimated 40,000 residents that spans an area about the size of Connecticut. Roughly 5,700 residents live in Pine Ridge village, the reservation's largest town, which sits 2 miles north of Whiteclay.
Whiteclay has a population of 11 people and sold the equivalent of 4.3 million, 12-ounce cans of beer last year. Tribal leaders and activists blame the Whiteclay businesses for chronic alcohol abuse and bootlegging on Pine Ridge.
One in four children born on the reservation suffer 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 the lawsuit. The average American life expectancy is 77.5 years.
The tribe's attorney, Tom White, has said if the lawsuit is allowed to go forward, he also will argue Nebraska officials have failed to enforce their own laws by allowing beer sales that far surpass the amount that legally can be consumed.
Robert Keith, an attorney for the Arrowhead Inn store in Whiteclay, said the lawsuit's claims are "speculative, at best," and argued a ruling in the tribe's favor wouldn't solve its problems.
"How can the plaintiff's alleged injuries be traced specifically to Arrowhead Inn's actions, as opposed to other alcoholic beverage retailers around the Midwest, United States, or members of plaintiff's tribe who potentially produce alcoholic beverages in the privacy of their home?" Keith wrote in court papers.
Randall Goyette, an attorney for the Jumping Eagle Inn store in Whiteclay, said the alcohol problems on Pine Ridge "can only be due to personal conduct.
"The alleged harm cannot occur without several intervening acts of independent individuals: leaving the reservation; purchasing beer; illegally smuggling beer onto the reservation; illegally consuming the beer on the reservation or illegally reselling the beer to others on the reservation for consumption," he said.
Goyette said a ruling in the tribe's favor would create a "paradigm shift" in the way alcohol is sold nationwide.
"Manufacturers would be forced to analyze the sales data of each and every one of its distributors and retailers to ensure that it was not selling too much of a product such that it was exposing itself to possible liability for public nuisance," he said.