A brief legal history of Whiteclay alcohol sales

Published in the April 2009 issue of NEBRASKA REPORT
Reprinted from the June 30, 2008 issue of COUNTERPUNCH

White Clay, Nebraska, is a tiny village—population 14—in the northwest corner of Nebraska. Despite its size, however, it boasts four liquor stores to serve its customers, most of whom come from the Pine Ridge Indian Reservation just across the border in southwest South Dakota.

White Clay’s liquor stores are there to accommodate the Reservation’s alcoholics, primarily because the Oglala Sioux Tribe has made illegal the sale or possession of liquor on the Reservation. A small amount of the beer, wine and whiskey sold to Indians is consumed in White Clay itself, with most of it being transported back to Pine Ridge by bootleggers, who then sell it to alcoholics living on the Reservation.

The story of White Clay whiskey peddlers selling alcoholic beverages to the Indians is only a continuation of one that began back in the 1800s.

In the 1850s, the U.S. Army tried, without success, to tame the Indian Tribes who objected—violently—to white settlers disturbing their lands in the Dakotas, Wyoming and Montana. When the U.S. Army found it could not defeat the Indians, the government decided to negotiate a treaty with them. The resulting 1858 “Ft. Laramie Treaty” signed by the U.S. government and the Sioux Indians set aside the western part of South Dakota as the “Great Sioux Reservation,” promising that the Indians would no longer be bothered by white settlers, who were cluttering up the Indians’ land on their way to the West Coast. The Treaty also provided part of Wyoming and Montana as exclusive hunting grounds for the Indian Tribes in that area.

Not long after the Pine Ridge Agency, housing the Oglala Sioux Tribe, was established prior to 1882, white-owned stores began springing up on the Nebraska side of the border, selling guns, ammunition and, more importantly, whiskey. Valentine McGillicuddy, the U.S. government’s agent in Pine Ridge at that time, described the white squatters as “undesirables,” who “will endeavor to settle on the land” near Big White Clay Creek. McGillicuddy at that time suggested to the Chester Arthur Administration the establishment of a 50-square-mile buffer zone along the Nebraska border as the only way to keep the undesirable whites—and their whiskey—away from the Indians.

It was a historical preview of what is happening today at White Clay. McGillicuddy then described to his superiors the destruction caused by the Indians’ easy access to whiskey in White Clay, Nebraska.

He related the story of an interpreter who fell off his horse while drunk, breaking his neck, as well as several instances of deaths resulting from drunken brawls, including the killing of an Indian named “Gray Eyes” and the wounding of his wife in April of 1880. Secretary of the Interior Kirkwood agreed with McGillicuddy ‘s assessment of the situation, and, in January of 1882, he convinced President Chester A. Arthur to sign an Executive Order withdrawing sale of alcohol to the public in a five-by-ten-mile strip of land, situated just across the Dakota border in Nebraska, adding it to the Great Sioux Reservation.

McGillicuddy was able to report to his superiors that after establishment of the new Reservation boundary, there had been little or no trouble involving intoxicating liquor.

In 1889, Congress enacted new legislation, which included a proviso that mirrored President Arthur’s Executive Order, holding that the 50-square-mile tract was to be reserved, “only so long as it may be needed for the use and protection of the Indians receiving rations and annuities at the Pine Ridge Agency.”

But, almost immediately, pressure by white settlers again began to build for a return of the reserved land to the public domain. The buffer zone continued until 1904, when President Theodore Roosevelt was convinced by his Commissioner of Indian Affairs, William A. Jones, that the lands should be returned to the public domain, opening it for white settlement. Acceding to the request, President Roosevelt signed an Executive Order on January 25, 1904, which purported to accomplish what the white settlers wanted. Significantly, the 1904 Executive Order contained no findings by the president, nor did it contain any recitation that the tract was no longer needed for the “protection of the Indians receiving rations and annuities at the Pine Ridge Agency.” Although these omissions made the Executive Order illegal, no one noticed it, which resulted in the tract being opened for settlement, and removed from the Tribe’s jurisdiction.

The need for protection of the Pine Ridge Indians from the liquor peddlers in Nebraska still exists today, to which the grisly modern statistics of highway deaths, spousal and child abuse, crimes of theft and murder, and rampant alcoholism graphically attest. In these modern times, drunken killings still persist, as well as thievery of items sold to the liquor stores in exchange for alcohol, along with spousal and child abuse, all of which are directly attributable to the alcoholism enabled by the White Clay liquor stores. It is legacy of shame that no one in authority wants to put an end to. Despite an ongoing campaign by Nebraskans for Peace, as well as by activist Indians, State of Nebraska officials seem to believe that there’s nothing wrong with a small village of 14 people being allowed to have four liquor stores that sell millions of dollars worth of alcoholic beverages each year to Indian alcoholics.

President Roosevelt’s illegal Executive Order can be overruled by any current president signing another Order, which would transfer jurisdiction over the buffer zone back to the Oglala Sioux Tribe. Under U.S. Supreme Court law, the Oglala Sioux Tribe would then have only regulatory jurisdiction over whiskey sales in White Clay, but not criminal jurisdiction over non-Indians residing within the buffer zone.

During Bill Clinton’s last year in office, I tried to get him to sign such an Executive Order, overruling that of President Roosevelt’s. It was reported to me by his staff that there were a number of meetings held on the question between the Interior Department, the Justice Department and the White House Counsel’s office, but with no ultimate result. Eventually, after I tried calling Vice President Gore to see what he could do on this matter, a member of the White House staff called me back and said that President Clinton would not sign such an Order because he did not want to set a bad precedent. That was about the same time he was busy selling pardons in his last days in office. I thought about the response back then by Clinton’s staff during the 2008 Democratic primary campaign in South Dakota, when Bill, Hillary and Chelsea were practically living on the South Dakota Indian Reservations, promising to do great things for the Indians if elected.

After George W. Bush was sworn into office in 2001, I called Vice President Cheney, asking him to recommend that the president overrule President Roosevelt’s 1904 Order. Saying he didn’t understand the legalities, he referred me to the White House Counsel, a lawyer named Albert Gonzales. After sending Mr. Gonzales all the historical information and legal research I had collected, and asking that the Executive Order be overturned by President Bush, Mr. Gonzales wrote that he did not want to take away the land from the non-Indians who now owned it. I wrote back, telling him he had misunderstood the law, which states that no land would be transferred, but only jurisdiction would go to the Oglala Sioux Tribe, which already has in place a ban on Reservation liquor sales. It would be a repeat of the 50-square-mile buffer zone that prevented liquor sales to Indians over a century ago. Beyond that, I explained, the Tribe would not have criminal jurisdiction over non-Indians, only regulatory jurisdiction over the liquor licenses. Mr. Gonzales never bothered to respond.

Nebraskans for Peace is still campaigning. The group has just completed a film on the White Clay issue, which they hope will help draw attention to the immorality of the situation. Indian activists, including Russell Means, have tried establishing checkpoints at the border to stop the flow of beer and wine, but they get little cooperation from the Tribal police, and none from Nebraska authorities.

I attribute the politicians’ lack of interest in the Indians’ problems with whiskey peddlers in White Clay to the Indians’ lack of money. I have no doubt that, if the Tribe and its member Indians were rich and powerful, there would be presidents, senators and congressmen knocking at their door, wanting to do something for them.

But, obviously, it is poverty that is keeping the Indians poor … and exploited.

Born and raised on what was then the Rosebud Indian Reservation in South Dakota, Jim Abourezk served in the U.S. Senate from 1973-79, where he chaired the Senate Select Committee on Indian Affairs. Now a practicing attorney in Sioux Falls, Abourezk has long been interested in the hideous situation at Whiteclay (which he refers to by its original name of “White Clay”). The article above originally appeared in a June 2008 issue of Counterpunch newsletter—a bi-weekly newsletter co-edited by Alexander Cockburn.

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5 Responses to “A brief legal history of Whiteclay alcohol sales”

  1. K Williams Says:

    I am wondering why this is being blamed on non-Indians? Granted, I haven’t seen the film, but I have read about this issue over the years. Everyone makes personal choices in their lives and this country as a whole, has allowed people to “shift the blame” of their poor choices onto someone or something else. Alcohol consumption is a choice! After awhile, it becomes a habit, a bad habit for some. It’s popular (and easy) to call it a disease, but it all starts with that individual’s first CHOICE. Even if your wish is granted, that won’t stop the rampent alcohol use and abuse on the reservation. It’s like anything else – supply and demand. It will be your peddlers who reap the benefits. The alcoholics will go where the booze is, no matter where it is. Why stop someone from making an honest living? That’s what a free market economy is all about.

  2. Christian Mom Says:

    I agree with K. People have free will to destroy their own lives, if they choose to. I am well aware of the “evils” of alcohol in the hands of an alcoholic – I have several in the family. However, as AA says – an alcoholic isn’t going to change until they want to change. Alcoholics are quite adept at feeding their addiction and are more than willing to make or steal moonshine, drink cough syrup, mouthwash, etc. to get their fix.
    I’ve seen an old man who was court ordered to take a medicine that would make him violently sick if he drank alcohol. He would just keep drinking and being violently sick until he worked the medicine out of his system and was able to get drunk. He would steal mouthwash, cough syrup and even drank some crazy kerosene concoction to get that drunk feeling. If someone would have told him he could get that drunk feeling by asphyxiation, he probably would have hung himself. You can’t outlaw mouthwash, cough syrup, kerosene and rope because an old man is bound and determined to get high.
    Now, if you want to make a big push to offer an AA or other similar program that is on the reservation, customized for Native Americans, helping Native Americans to run it – well then, I’m all in favor. I’ll bake cookies and help make coffee for the meetings. The key is to address the sickness, the root of the problem.

  3. Structured Settlements Says:

    It would be tough to deny access to a legal product even if it is in the name of protection. I would rather see the resources devoted to helping the few with a drinking problem get well.

  4. Daniel Says:

    First of all Whiteclay doesn’t sell whiskey. They only sell beer. And not everybody on the reservation who drinks beer has all these problems that Mr. Abourezk and all the other anti-Whiteclay crusaders are complaining about. I hate it that I don’t have the right to drink beer in my own home because it is illegal on our resevation. And ofcourse White clay sells so much beer because it is the closest place to get it. If there were only 4 beer stores in lets say Rapid City those 4 stores would also sell millions cans of cans a beer every year also. Outlawing beer sales in Whiteclay would only force the drinkers to drive further to other places were they could get alcohol, increasing the amount of drinking and driving. Alcohol is a big problem here on the rez but the biggest problem is desperation. Mr. Abourezk, with his connections in Washigton D.C., would do more good trying to work towards bringing better jobs and housing to the reservation.

  5. admin Says:

    Please link to this site. If you need copies of the DVD please let me know where to send
    them. Frank LaMere and I would love to visit Boston. Mark

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