Can the Oglala Sioux Tribe win a $500 million lawsuit against the world’s largest beer makers?

March 1, 2012

March 1, 2012                   Sarah Krakoff

A $500 million law suit filed by the Oglala Sioux Tribe against some of the world’s largest beer makers, claiming they willfully contributed to destructive alcohol-related problems on the Pine Ridge Indian Reservation in South Dakota, is concise, fact based and tells a compelling story, says CU-Boulder law professor and Indian law expert Sarah Krakoff.

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Can the Oglala Sioux Tribe win a $500 million lawsuit against the world’s largest beer makers?

Feb. 29, 2012                                                Sarah Krakoff

A $500 million law suit filed by the Oglala Sioux Tribe against some of the world’s largest beer makers, claiming they willfully contributed to destructive alcohol-related problems on the Pine Ridge Indian Reservation in South Dakota, is concise, fact based and tells a compelling story, says CU-Boulder law professor and Indian law expert Sarah Krakoff.

CUT 1 “There are a couple of smart strategic things like including the allegations about what the Sioux Tribe has already tried to do.  Every complaint has to allege facts and law in order to support a claim for relief.  But it has to tell a story, too, and you do get a sense of the story of a nation, the Oglala Sioux Tribe, kind of at its wits end.  Like, we’ve tried, we can’t do anything, we have to do something about this town.  And that is compelling.” (:26)

A professor at CU Law, Krakoff is widely published in Indian and natural resources law. She has reviewed the complaint document, which also lists four liquor stores in the Nebraska border town of Whiteclay. It’s a small town of an estimated 12 to 14 people yet in 2010 the stores sold a large amount of beer - the equivalent of nearly 5 million, 12-ounce cans of beer.

CUT 2 “The town of Whiteclay, Nebraska, as is evident even from the news stories about the case, it is well known. It’s sort of notorious. It’s not really a town. It’s one of these, what we think of in Indian country, as border towns. I guess 12 people live there - maybe 12-14 - depending on what figures you see and it’s basically just a bunch of liquor stores.” (:22)

Krakoff says these facts, and others, such as the impact alcohol-related problems have had on the Indian reservation, should bode well for the plaintiffs.

CUT 3 “You could argue, I think that maybe the legal basis for this case is even stronger because what the Oglala Sioux Tribe has alleged is that the sale of alcohol in this little, tiny, no account town violates both Nebraska state law and the Oglala Sioux Tribe’s law. (:20) But if they’re right that they have some initial basis to say that the sale itself violated state law then I think they have a stronger bases for this broader negligence, public health-type negligence claim.” (:33)

Krakoff says this type of lawsuit falls under public health tort litigation similar to suits filed against tobacco companies and firearm manufacturers. The difficult part, says Krakoff, is being able to prove that the beer makers knowingly contributed to alcohol-related problems on the reservation.

CUT 4 “You need to figure why are they potentially responsible. They are, of course, benefiting economically from an untold and hugely disproportionate volume of sales of liquor in this tiny, tiny town. And so I think the argument is: they are benefitting economically; they know or should know that the sales that they’re making to the distributor and retail sellers are apart of this larger tort that is occurring. (:25) They know that it’s because their distributors and retail sellers are contributing in this way of encouraging the violation of these various laws.” (:35)

Arguments for the defendants in the case will most likely follow similar defense arguments in the tobacco lawsuits, says Krakoff.

In those suits tobacco companies simply said they couldn’t be held responsible if someone willingly places himself or herself in a position in which they are negatively affected by alcohol.

CUT 5 “It’s going to come down to causation arguments. They’re going to say we’re complying with all laws that apply to us with the sale of liquor. We have a valid liquor license. We just sell it. (:11) We’re not the cause of these high rates of alcoholism, of the illegal trafficking on the reservation, that’s the fault of the people who legally buy the alcohol from us. (:19) Even if, you could argue, we may have had some inkling, it doesn’t rise to the level of violating any legal duty under negligence law.” (:31)

Krakoff believes the defendants will first try to knock out some of the claims with a motion to dismiss or move to have the case dismissed. But she doesn’t believe it will be dismissed and that it will take some time for the suit to work its way through litigation.

CUT 6 “So assuming that doesn’t happen, that a complaint is just immediately dismissed out of hand, then I think this will go on for quite a while with more facts coming out through the discovery process and then we’ll have a better idea of exactly what the defendants approach is going to be.” (:14)

Krakoff’s guess is the defendants will try to prevent as much discovery as they can because the more facts that come out for the Tribe. Because, Krakoff says, it’s factually a sympathetic case even if legally we don’t know how strong it is.

In addition to the suit, on Feb. 22, the lawyer for the tribe asked the judge to restrict alcohol sales in Whiteclay. The tribe's attorney says Nebraska officials have failed to enforce their own laws by allowing beer sales that far surpass the amount that can legally be consumed in the area.

 

-CU-

 

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