The Battle for Whiteclay

Native American AlcoholismTorts Section 6, Professor Jon Hanson

Sheridan County Journal Star

http://www.bbc.co.uk/news/world-us-canada-19795838

Policy Options

Photo by Lyric Cabral

Holistic Approac

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Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

Who are the Players?

Federal– Indian Health Service; Bureau of Indian

Affairs; Department of Justice; Substance Abuse and Mental Health Services Administration; Department of Education

State– Nebraska; South Dakota; Nebraska

Commission on Indian Affairs

Local/Tribal– Municipality of Whiteclay; Sheridan

County; Pine Ridge Indian Reservation; Oglala Sioux Tribal Council; Oglala Sioux tribe

Holistic Approac

h

Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

– Between 2001-05, 11.7% of total deaths among Native Americans and Alaska Natives were alcohol-attributable. (CDC)• 3.3% for general population

– Federal Intervention: The Indian Health Service (IHS). • Over the last decade, IHS has provided

between $130 million and $190 million per year for alcohol/substance abuse programs in tribal communities.

TREATMENT & DETOX PROGRAMS

Holistic Approac

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Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

– Some tribes have experienced rates of violent crime twice, four times, and at times more than 10 times the national average. (BJS) • Laws relating to the sale and consumption of

alcohol need to be enforced.

– Federal Intervention: U.S. Department of Justice• provides approx. $300 million/year to

enhance law enforcement and crime prevention in tribal communities.

LAW ENFORCEMENT

Holistic Approac

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Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

– Native Americans suffer from obesity and type-II diabetes at a rate two to three times more than any other racial or ethnic group. (IHS)

– Federal Intervention: Let’s Move! in Indian Country initiative• Established programs promoting healthy

eating habits and increased physical activity across Indian Country.

FITNESS & HEALTHY LIFESTYLE PROGRAMS

Holistic Approac

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Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

– The dropout rate amongst AI/AN youth is twice the national average, and approximately half of NA students won’t finish high school. (DoED)

– Federal Intervention: White House Initiative on American Indian and Alaska Native Education• Constructing tribal schools and colleges and

providing funding to improve the quality of training and instruction.

EDUCATIONAL OPPORTUNITIES

Holistic Approac

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Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

– Unemployment rate estimated to be approximately 80 percent on Pine Ridge Indian Reservation.• Pine Ridge has a poverty rate of 52.8 percent.

3X national average.

– Federal Intervention: American Recovery and Reinvestment Act• Infused $3 Billion into tribal communities to

improve infrastructure, expand broadband deployment, increase affordable housing, construct renewable energy facilities, fund job training programs, etc.

ECONOMIC DEVELOPMENT

Holistic Approac

h

Treatment & Detox Programs

Law Enforcement

Fitness & Healthy Lifestyle Programs

Educational Opportunities

Economic Growth & Job Opportunities

The IndividualSociety

Who Should Bear the Cost?

Tax & Legalization

Photo by Nicole Bengiveno/The New York Times

• Who bears the cost?– Individuals from the reservation • A particular group of people – those with

alcohol addictions

– Negative social externalities • Crime, violence, family dissolution

• Who captures the benefit of a tax?– Nebraska or the Tribe?– Currently, Nebraska benefits and not the

Reservation

Taxing Alcohol

• According to the Nebraska Liquor Control Commission’s “2011 Year End Statistics” for Whiteclay:– State excise taxes: $124,967 – Federal excise taxes: $233,808

• According to Vice President of the Oglala Sioux Tribal Council, Tom Poor Bear:– Nebraska receives about $400,000 per year from the areas bordering the

Reservation Robyn Wisch, Battling Alcoholism in Whiteclay, KVNO News, July 19, 2012, http://www.kvnonews.com/2012/07/battling-alcoholism-in-whiteclay.

• Nebraska Legislative Bill 1002 (2010)– Draw a 30-mile radius around census-designated areas – Sales tax from those geographical areas economic development, health

care, and law enforcement needs– LB1002 passed, but Legislature rejected tax (became more like an

appropriations bill)• Some critiques of the tax by the senators

– Costly to set up geographic information system – “Poking holes” in the tax base and setting a “bad” precedent

State Sales Tax

• Traditionalist v. Tribal Council • Research on “wet” v. “dry” reservations • Arguments for Legalization

– Brings in money from licensing liquor stores and from the excise tax– Creates a tax base to fund various programs could benefit everyone on

the Reservation– Reduces burden on tribal criminal justice system – Ends bootlegging – Potentially diminishes power of the Whiteclay liquor stores– Potentially increases autonomy and independence of the OST creates

infrastructure and increases control over social policy

• Arguments against Legalization– Might not significantly reduce alcohol consumption – Not changing who bears the cost – Contrary to traditional values– Easier access to alcohol – If people view the tribe as sanctioning alcohol, could encourage new

drinkers

Legalization on the Reservation?

Who Should Bear the Cost?

The Manufacturer

CIVIL CONSPIRACY: “two or more persons acting in concert to accomplish an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.” Ashby v. State, 779 N.W.2d 343, 357 (Neb. 2010).PRODUCTS LIABILITY: manufacturers and retailers knew or had reason to know 1) that the product would be dangerous even when properly used, 2) that the reasonably foreseeable users would not realize the danger, but 3) still failed to provide adequate warning, such that 4) damage has proximately resulted. NUISANCE: -Private: diminished use, enjoyment, and value of of private land due to conduct of intoxicated persons-Public: “an unreasonable interference with a right common to the general public.”

Tort Doctrine SOME POSSIBLE APPROACHES

NOT CLAIMED

WHAT LIABILITY REGIME IS MOST EFFICIENT?

Products Liability AN UPHILL BATTLE

• Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982) (holding that the manufacturer did not have duty to warn consumers of common qualities of alcohol, such as its addictiveness)

• Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690 (Tenn. 1984) (“The dangers of alcohol well known; courts, legislatures, parents, ministers, and temperance organizations and others had long recognized and decried the dangers inherent in alcohol” Id. at 694) .

• Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla. 2001). alcohol-related injuries to be proximately caused by voluntary consumption of alcohol, rather than its sale or manufacture. See Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla. 2001).

Did manufacturers “over promote” or “fail to warn?”

External Situationis

ts

MediaAnalysts

Internal Situationis

ts

Neuroscience, Psychology & Biology of Addiction

• Reward Pathway– VTA -> NAc -> PFC, aCC & amygdala

• Neurobiological bases for behaviors of addiction– Sensitization, Craving, Withdrawal, etc

• Psychology of addition– Peer Pressure, Poverty, Historical Trauma & Family

Stability– Poverty can reshape the brain – Preventative factors (Native Americans): Strong

parental/extended networks, high feelings of social belonging, religiosity

• Biology of alcohol– Unknown whether Native Americans absorb alcohol slower– Possible lack of genes that protect against alcoholism

Products Liability AN UPHILL BATTLE

• Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982) (holding that the manufacturer did not have duty to warn consumers of common qualities of alcohol, such as its addictiveness)

• Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690 (Tenn. 1984) (“The dangers of alcohol well known; courts, legislatures, parents, ministers, and temperance organizations and others had long recognized and decried the dangers inherent in alcohol” Id. at 694)

• Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla. 2001). alcohol-related injuries to be proximately caused by voluntary consumption of alcohol, rather than its sale or manufacture. See Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla. 2001).

CONTROLATTRIBUTION

BAD DISPOSITION

- Pelman v. McDonalds- Tobacco Companies

What do you think?

Photo by Stephanie Woodard

Who should bear the cost of the policies suggested?

1.Society?• More federal funding

2.The Individual?• Taxing alcohol sales

3.The Manufacturer?• Tort Doctrines

Public Nuisance

In shifting the cost to the manufacturer, which Tort Doctrine should be pursued?

Product Liability?

OR

The Battle for Whiteclay

Native American AlcoholismTorts Section 6, Professor Jon Hanson