Native American Alcoholism, Torts Section 6. Professor Jon Hanson.

1. Native American Alcoholism
Torts Section 6, Professor Jon Hanson

5. Sheridan County Journal Star

7. Photo by Lyric Cabral
Policy Options

8. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

9. Who are the Players?
Federal
– Indian Health Service; Bureau of Indian
Affairs; Department of Justice; Substance
Abuse and Mental Health Services
Administration; Department of Education
State
– Nebraska; South Dakota; Nebraska
Commission on Indian Affairs
Local/Tribal
– Municipality of Whiteclay; Sheridan
County; Pine Ridge Indian Reservation;
Oglala Sioux Tribal Council; Oglala Sioux
tribe

10. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

11. TREATMENT & DETOX PROGRAMS
– Between 2001-05, 11.7% of total deaths among
Native Americans and Alaska Natives were
alcohol-attributable. (CDC)
• 3.3% for general population
– Federal Intervention: The Indian Health Service
(IHS).
• Over the last decade, IHS has provided between $130
million and $190 million per year for alcohol/substance
abuse programs in tribal communities.

12. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

13. LAW ENFORCEMENT
– Some tribes have experienced rates of violent
crime twice, four times, and at times more than
10 times the national average. (BJS)
• Laws relating to the sale and consumption of alcohol
need to be enforced.
– Federal Intervention: U.S. Department of Justice
• provides approx. $300 million/year to enhance law
enforcement and crime prevention in tribal
communities.

14. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

15. FITNESS & HEALTHY LIFESTYLE PROGRAMS
– Native Americans suffer from obesity and type-II
diabetes at a rate two to three times more than
any other racial or ethnic group. (IHS)
– Federal Intervention: Let’s Move! in Indian
Country initiative
• Established programs promoting healthy eating habits
and increased physical activity across Indian Country.

16. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

17. EDUCATIONAL OPPORTUNITIES
– The dropout rate amongst AI/AN youth is twice
the national average, and approximately half of
NA students won’t finish high school. (DoED)
– Federal Intervention: White House Initiative on
American Indian and Alaska Native Education
• Constructing tribal schools and colleges and providing
funding to improve the quality of training and
instruction.

18. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

19. ECONOMIC DEVELOPMENT
– Unemployment rate estimated to be
approximately 80 percent on Pine Ridge Indian
Reservation.
• Pine Ridge has a poverty rate of 52.8 percent. 3X
national average.
– Federal Intervention: American Recovery and
Reinvestment Act
• Infused $3 Billion into tribal communities to improve
infrastructure, expand broadband deployment,
increase affordable housing, construct renewable
energy facilities, fund job training programs, etc.

20. Treatment & Detox
Programs
Law Economic Growth &
Enforcement Job Opportunities
Holistic
Approach
Fitness & Healthy Educational
Lifestyle Programs Opportunities

21. Who Should Bear the Cost?
Society
The Individual

22. Photo by Nicole Bengiveno/The New York Times
Tax & Legalization

23. Taxing Alcohol
• Who bears the cost?
– Individuals from the reservation
• A particular group of people – those with alcohol
addictions
– Negative social externalities
• Crime, violence, family dissolution
• Who captures the benefit of a tax?
– Nebraska or the Tribe?
– Currently, Nebraska benefits and not the
Reservation

24. State Sales Tax
• According to the Nebraska Liquor Control Commission’s “2011 Year End
Statistics” for Whiteclay:
– State excise taxes: $124,967
– Federal excise taxes: $233,808
• According to Vice President of the Oglala Sioux Tribal Council, Tom Poor
Bear:
– Nebraska receives about $400,000 per year from the areas bordering the
Reservation Robyn Wisch, Battling Alcoholism in Whiteclay, KVNO News, July
19, 2012, http://www.kvnonews.com/2012/07/battling-alcoholism-in-
whiteclay.
• Nebraska Legislative Bill 1002 (2010)
– Draw a 30-mile radius around census-designated areas
– Sales tax from those geographical areas  economic development, health
care, and law enforcement needs
– LB1002 passed, but Legislature rejected tax (became more like an
appropriations bill)
• Some critiques of the tax by the senators
– Costly to set up geographic information system
– “Poking holes” in the tax base and setting a “bad” precedent

25. Legalization on the Reservation?
• Traditionalist v. Tribal Council
• Research on “wet” v. “dry” reservations
• Arguments for Legalization
– Brings in money from licensing liquor stores and from the excise tax
– Creates a tax base to fund various programs  could benefit everyone on the
Reservation
– Reduces burden on tribal criminal justice system
– Ends bootlegging
– Potentially diminishes power of the Whiteclay liquor stores
– Potentially increases autonomy and independence of the OST  creates
infrastructure and increases control over social policy
• Arguments against Legalization
– Might not significantly reduce alcohol consumption
– Not changing who bears the cost
– Contrary to traditional values
– Easier access to alcohol
– If people view the tribe as sanctioning alcohol, could encourage new drinkers

26. Who Should Bear the
Cost?
The Manufacturer

27. Tort Doctrine
SOME POSSIBLE APPROACHES
CIVIL CONSPIRACY: “two or more persons acting in concert to accomplish an unlawful
or oppressive object, or a lawful object by unlawful or oppressive means.” Ashby v.
State, 779 N.W.2d 343, 357 (Neb. 2010).
PRODUCTS LIABILITY: manufacturers and retailers knew or had reason to
know 1) that the product would be dangerous even when properly used, 2) NOT
that the reasonably foreseeable users would not realize the danger, but 3) still CLAIMED
failed to provide adequate warning, such that 4) damage has proximately
resulted.
NUISANCE:
-Private: diminished use, enjoyment, and value of of private land due to conduct of
intoxicated persons
-Public: “an unreasonable interference with a right common to the general public.”
WHAT LIABILITY REGIME IS
MOST EFFICIENT?

28. Products Liability Did manufacturers “over
AN UPHILL BATTLE promote” or “fail to warn?”
• Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982) (holding External
that the manufacturer did not have duty to warn consumers Situationists
of common qualities of alcohol, such as its addictiveness)
• Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690 (Tenn.
1984) (“The dangers of alcohol well known; courts,
legislatures, parents, ministers, and temperance Media
organizations and others had long recognized and decried Analysts
the dangers inherent in alcohol” Id. at 694) .
• Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla.
2001). alcohol-related injuries to be proximately caused by Internal
voluntary consumption of alcohol, rather than its sale or Situationists
manufacture. See Bruner v. Anheuser-Busch, Inc., 153 F. Supp.
2d 1358 (S.D. Fla. 2001).

29. Neuroscience, Psychology & Biology of Addiction
• Reward Pathway
– VTA -> NAc -> PFC, aCC & amygdala
• Neurobiological bases for behaviors of addiction
– Sensitization, Craving, Withdrawal, etc
• Psychology of addition
– Peer Pressure, Poverty, Historical Trauma & Family Stability
– Poverty can reshape the brain
– Preventative factors (Native Americans): Strong
parental/extended networks, high feelings of social belonging,
religiosity
• Biology of alcohol
– Unknown whether Native Americans absorb alcohol slower
– Possible lack of genes that protect against alcoholism

30. Products Liability - Pelman v. McDonalds
- Tobacco Companies
AN UPHILL BATTLE
• Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982) (holding
that the manufacturer did not have duty to warn consumers of
common qualities of alcohol, such as its addictiveness)
• Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690 (Tenn.
1984) (“The dangers of alcohol well known; courts, legislatures,
parents, ministers, and temperance organizations and others
had long recognized and decried the dangers inherent in
alcohol” Id. at 694)
• Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d 1358 (S.D. Fla.
2001). alcohol-related injuries to be proximately caused by
voluntary consumption of alcohol, rather than its sale or
manufacture. See Bruner v. Anheuser-Busch, Inc., 153 F. Supp. 2d
1358 (S.D. Fla. 2001).

31. What do you think?
Photo by Stephanie Woodard

32. Who should bear the cost of the
policies suggested?
1. Society?
• More federal funding
2. The Individual?
• Taxing alcohol sales
3. The Manufacturer?
• Tort Doctrines

33. In shifting the cost to the manufacturer,
which Tort Doctrine should be pursued?
Public Nuisance
OR
Product Liability?

34. Native American Alcoholism
Torts Section 6, Professor Jon Hanson