Court hears Whiteclay case

An attorney for a Rushville man seeking a license to sell liquor near the Pine Ridge Indian Reservation urged the Nebraska Supreme Court on Friday to affirm a lower court judge’s approval of the application.

By Butch Mabin / LINCOLN JOURNAL STAR

For years, activists have argued the beer stores of Whiteclay should be shut down or better regulated.

There’s something wrong, they say, when three stores in a Nebraska town of 14 people sell four million cans of beer each year to tribal members of the nearby dry Pine Ridge Indian Reservation.

On Friday, a Rushville man’s plan to reopen a fourth was before the Nebraska Supreme Court.

Jason Schwarting’s attorney urged the Supreme Court to affirm a lower court judge’s approval of his client’s liquor license application.

Attorney Andrew Snyder told the court the Nebraska Liquor Commission’s earlier denial of the license was  unfair.

Lancaster County District Judge Jeffre Cheuvront reversed the commission’s decision in 2004.

“The commission didn’t look at the evidence,” he said.

Milissa Johnson-Wiles, an assistant Nebraska attorney general, told the court the denial was based partly on Schwarting’s violation of commission rules while he worked as a clerk at the Arrowhead Inn.

The Arrowhead, owned by Schwarting’s family since the early 1980s, is in Whiteclay, across the South Dakota border from the reservation.

Johnson-Wiles said Schwarting in 2001 sold alcohol to a customer on credit. On an earlier occasion, she said, he sold alcohol to an intoxicated customer.

She said the commission determined the violations “do reflect on his fitness” to hold a license.

Critics have charged the Whiteclay stores regularly flout liquor laws by selling to intoxicated or underage men and women. They also claim a link between those practices and the number of accidental deaths and unsolved homicides near the village over several decades.

Jason Schwarting’s father, Donald Schwarting, lost his liquor license to run the Arrowhead because of a 2003 felony conviction for selling cars without a license.

The younger Schwarting applied for a license with the commission in 2004. The commission rejected the application because of Jason Schwarting’s liquor violations and because it suspected the elder Schwarting had a secret ownership arrangement in the business.

In reversing the decision later that year, Cheuvront said Jason Schwarting presented competent evidence he would abide by state liquor laws.

The judge also said the commission had no evidence of a secret ownership arrangement involving his father.

On Friday, Johnson-Wiles said the state would no longer pursue the ownership claim. She said there was no evidence in the record to support it.

But she insisted the commission reached the right decision about Jason Schwarting’s fitness to hold the license.

Judge John Gerrard suggested to Johnson-Wiles the commission record contained evidence to support both denial and approval.

Johnson-Wiles agreed, but said the commission — not Cheuvront — was in the best position to make judgements about Jason Schwarting’s fitness to have the license.

“There was no real competent evidence to support the district court decision,” she said.

Snyder, responding to a question from Chief Justice John V. Hendry, said his client has admitted he violated the liquor law.

“It was a mistake,” he said. “It’s something he regrets.”

A seemingly skeptical Judge William M. Connolly asked Snyder if he believed Cheuvront had “competent evidence” that Jason Schwarting should get the license.

The judge said the only evidence in the record about his fitness was Schwarting’s statement to the commission he would abide by liquor rules and the fact he took training courses.

“Is that competent evidence?” Connolly asked.

Snyder answered yes. He questioned how the commission could deny Schwarting a license because of two violations, when license-holders lose licenses after four.

“There’s a different standard for applicants than for” people who already have licenses, he said.

The court will rule later on the case.

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