Friday, February 10, 2012

Let Me See If I Understand This Correctly

Article here about Ocalala Indian Tribe suing A-B, Miller, et al for selling beer near their reservation.

The facts are these: Ocalala Indian Reservation, in South Dakota is a dry reservation. Yet, despite the ban of alcohol on the reservation, alcohol (namely beer) is destroying the Tribe. According to health reports the reservation has the lowest expectancy of anywhere in North America except Haiti. One in four children born on the reservation has fetal alcohol syndrome or fetal alcohol spectrum disorder. The reservation comprises the third poorest county in the United States with a median household income of only $27,300. The reservation has been dry since 1832. Yet, liquor stores near the reservation have been selling alcohol (beer) far in excess of a reasonably proportional amount for the community in which they reside.

In other words, the only conclusion is that people are coming from the dry reservation to purchase alcohol, and take it back to the dry reservation. Therefore, the stores are knowingly serving people from the dry reservation. And, by extension, A-B, Miller, Coors, et al should have known that beer was going to the dry reservation in violation of reservation law because their distributors were selling beer to the stores in quantities far in excess to the number of people in the non-dry communities.

What do you think?

I think it would set a very dangerous precedent. Moreover, it leads to absurd results. Could the US sue the Netherlands for allowing American tourists to smoke weed? It's illegal here and the Dutch know it is illegal here, yet they allow American tourists to take part in an activity that they know is illegal in their home country. Can the US sue Canada because the drinking age there is lower and 19-year olds from Detroit go to Canada and drink, then come back to the US.

How could the remedy (sale of alcohol to someone from a dry community/reservation) possibly be enforced? How far away do you have to be? And, can you not sell to anyone from any dry community, or just dry communities that are nearby that you know are dry? Moreover, how are the distributors to know that their product is going someplace where it shouldn't be? All the distributor is doing is fulfilling orders for a store that is legally permitted to purchase their product. Can distributors be sued for supplying Colt 45 and other malt liquors or cheap alcohol to urban communities where consumption is far in excess of a regional average?

On the other hand, these groups are taking part and actively encouraging the downfall of a blighted community. In light of successful tobacco lawsuits, is this really that different? We have known health damages to a community and active marketing and distribution to the community suffering under the health condition. The tobacco companies were liable for their failure to warn of the health problems caused by their product and their active marketing to those to whom consumption was illegal (in their case minors, in this case citizens of a dry reservation).

1 comment:

  1. It's an interesting case, certainly. And as much as it's tempting to take the libertarian-slash-personal responsibility position, the case is more complex than that. This isn't like Milwaukee, where alcohol users and abusers live side-by-side and it's logistically impossible for a business owner to separate the two, short of not serving the already intoxicated.

    The scale of what's going on is staggering. Saying the amount involved is "far in excess to the number of people in the non-dry communities" is an understatement. This tiny border town of 12 people, with no legal establishments or Nebraska neighbors for miles, is selling 15,000 barrels a year. And it's more than just individuals coming across the border to pick up an illicit six-pack. Organized smuggling and moonshining are rampant.

    The tribe isn't going to get half a billion dollars. But you're the lawyer -- it is so much of a stretch to say that any reasonable person in the distribution chain should've realized there's rampant violation of the 22nd amendment going on here?


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