LINKS
2017-09-06 / Top News

The Fight for Whiteclay

By Kimberly Greager
Native Sun News Today
Correspondent

LINCOLN, Neb. – The fight for Whiteclay has moved to the state capital as the fate of the four beer stores lies in the hands of the Nebraska Supreme Court.

On Tuesday, August 29 the court heard oral arguments in the Kozal vs. Nebraska Liquor Control Commission case. Each side was given an unprecedented 20 minutes for their oral arguments, twice the amount of time that is normally given, indicating the importance of this case.

Arguments of jurisdiction came from both sides, with Dave Domina, the attorney representing the four Sheridan County protestants and parties of record in the case, arguing that the District Court did not have jurisdiction to overturn the Nebraska Liquor Control Commission’s denial of the four licenses. Andrew Snyder, the attorney representing the four beer stores, argued that the Nebraska Liquor Control Commission didn’t have jurisdiction to deny the licenses in the first place.


Bryan Brewer testifies before the Nebraska Liquor Control Commission in Rushville on January 5th. 
Photo by Kimberly Greager Bryan Brewer testifies before the Nebraska Liquor Control Commission in Rushville on January 5th. Photo by Kimberly Greager Domina argued that his clients met all the requirements needed to protest the beer store license renewals, which are that there is at least 3 people protesting (4 people are named as parties of record in this case, although there were originally 13), that they are residents of Sheridan County, that they submitted their protest in writing and in a timely manner.

Domina said his clients met all of those requirements, which in and of itself gave the Nebraska Liquor Control Commission the authority and jurisdiction to hold hearings regarding the Whiteclay beer stores. Domina went on to say that the beer store owners failed to do any of the things required under the Administrative Procedures Act when they sought review of the Commission’s decision. According the APA, applicants for renewal must do five things: Name the Commission, Serve the Attorney General, Name the parties of record, Serve the parties of record, and Get the Agency record to the district court where it can be reviewed. “The beer stores are 0-5,” Domina said, “None of those things appear in the record. No summonses to the Attorney General and no service, no naming of the citizens and no service, no record before the Agency when the District Court decided this case on its merits without that record.”

Attorney General Smith spoke after Domina, arguing two points on why the District Curt did not have jurisdiction to overturn the Commission’s decision to deny the licenses. “As far as the Nebraska Liquor Control Commission is concerned, we were not served with a summons and we were not served with a copy of the petition, which is required for subject matter jurisdiction. The second reason the court did not have jurisdiction is because the plaintiff beer stores did not name the citizen protestants as parties of record.”

Smith went on to list reasons he believes the Nebraska Liquor Control Commission had the legal authority to do what it did, which include the Commissions’ broadened statutory authority to regulate the sale of liquor, the Liquor Control Act’s stated legislative policy of promoting health, safety, public welfare and encouraging temperance in the consumption of alcohol by sound control, a statute that provides the Commission “may at any time” require a licensee to submit an application, a statute that says a retail license “may be” automatically renewed which he pointed out does not say “shall be”, and the most important statute Smith cited was 53- 135.02 which says that the statutory renewal privilege “shall not be construed as a vested right which shall in any case prevent the Commission from decreasing the number of licenses to be issued within its jurisdiction.”

Snyder spoke next, arguing that the Nebraska Liquor Control Commission didn’t have jurisdiction to deny the renewal of the liquor licenses to the store owners in the first place and that the renewals should have been automatic. Three factors must be considered when a liquor license is to be renewed – is the licensee still qualified to hold the license, is the license being maintained in the same place, and is the premise suitable for the sale for alcohol. Snyder said that the Nebraska Liquor Control Commission lacked jurisdiction and that automatic renewals should have happened since his clients met all three of those requirements.

One judge asked Snyder if automatic renewals of licenses without the authority to hold hearings to investigate alleged problems or changes in circumstance would essentially strip the Nebraska Liquor Control Commission of its authority and purpose. Snyder replied by saying that automatic renewals have always happened in the past and the court should uphold the reversal of the Commissions denial made by Lancaster County District Judge Andrew Jacobsen on April 27th, who overturned the Nebraska Liquor Control Commission’s April 19th decision to deny the stores their license renewals.

To anyone who has spent any time in Whiteclay, Nebraska, Snyder’s argument that the premise is suitable for the sale of alcohol, or in other words that conditions have not changed or gotten worse since the last renewal of the licenses, seems absurd at best. In 2016, Sherry Wounded Foot was brutally beaten in Whiteclay and died as a result of her injures. That case is still unsolved, and sadly it is just the most recent unsolved murder in the small unincorporated town. The 1998 murders of Wally Black Elk and Ron Hard Heart remain unsolved as well. These murders have remained unsolved, and for the most part, uninvestigated, and these are just the crimes that have been acknowledged by authorities. Countless other crimes have occurred in and because of Whiteclay and have gone unreported or cannot be acknowledged by law enforcement because of lack of proof, from assault to prostitution to bribery to bootlegging and everything in between. The towns unincorporated status makes it impossible to pass any city laws or ordinances, rendering it a haven for lawlessness. Hardly a place that should qualify as suitable for the sale for alcohol.

Bryan Brewer testifies before the Nebraska Liquor Control Commission in Rushville on January 5th.

Wounded Foot’s murder prompted a surge of outcry and action, including the hearing which Senator Patty Pansing Brooks initiated in October of 2016 with her resolution to examine Whiteclay issues. It was during this hearing that Sheridan County Commissioner Jack Andersen told members of the Legislature's General Affairs Committee "we absolutely do not" have enough law enforcement resources for proper policing in Whiteclay. Andersen’s comment led to the hearings held in January and April by the Nebraska Liquor Control Commission to determine whether or not there was adequate law enforcement presence in Whiteclay.

Owners of the Whiteclay beer stores listen to testimony at the January 5th Nebraska Liquor Control Commission hearing in Rushville.

Supporters of the beer store owners argue that the beer stores are legitimate businesses who aren’t breaking any laws and should be allowed to continue with their livelihoods. Alan Jacobsen, a Lincoln business man and a member of the Fix Whiteclay group out of Lincoln, disagrees. He says of the beer stores as businesses, “They are not legitimate to me; not when you take advantage of other people… .we all take the Hippocratic oath to ‘intentionally do no one wrong,’ that’s not just for doctors and people who pass out prescriptions. That is for every business owner as an ethics standard. Just because you have a license and a legal product, you still have a responsibility of how you dispense that product.”

Frank LaMere of Winnebago has dedicated decades of his life to closing the beer stores in Whiteclay. When asked for his response on recent happenings LaMere said, “"I have been privileged to work with many Native and non-Native people since the late 1990's elevating the discussion of Whiteclay, NE. We have told whoever would listen about the complicity by the State of NE who ignored the illegalities, the death, and the destruction there and how they did so under the "color of law." We never went away. Those of us who stayed engaged with NE officials were resolute and righteously indignant. It has paid off! We have given voice to those who have none at Whiteclay and it has caused great changes in the attitudes of NE officials and indeed the people of the state! Good has come from our work."

The Nebraska Supreme Court is expected to take up to six weeks to make their ruling on the case.

(Contact Kimberly Greager at kim@kimlathe.com)

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