Poor Bear v. Nesbitt
| Decision Date | 29 January 2004 |
| Docket Number | No. 8:03CV261.,8:03CV261. |
| Citation | 300 F.Supp.2d 904 |
| Parties | Thomas R. POOR BEAR, Plaintiff, v. Tom NESBITT, in his official capacity as Superintendent of the Nebraska State Patrol, Terry E. Robbins, in his official capacity as Sheriff of Sheridan County, Nebraska, Robert Logsdon, in his official capacity as Chairman of the Nebraska Liquor Commission, Richard Coyne, in his official capacity as a member of the Nebraska Liquor Commission, Rhonda Flower, in her official capacity as a member of the Nebraska Liquor Commission, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Bruce G. Mason, Nebraska Advocacy Services, Lincoln, NE, for Plaintiff.
Melanie J. Whittamore-Mantzios, Wolfe, Snowden Law Firm, Jennifer Tomka, Attorney General's Office, Lincoln, NE, for Defendants.
Terri M. Weeks, Boucher Law Firm, Lincoln, NE, for Terry E. Robbins, In his official Capacity as Sheriff of Sheridan County, Nebraska.
This is an action brought pursuant to 42 U.S.C. § 1983 against the Superintendent of the Nebraska State Patrol, the Sheriff of Sheridan County, Nebraska, and three members of the Nebraska Liquor Control Commission, all in their official capacities. The plaintiff, Thomas R. Poor Bear, alleges that his civil rights were violated on June 26, 1999, and July 3, 1999, when the defendants restricted his ability to participate in prayer marches with other Lakota Native Americans from the Pine Ridge Reservation in South Dakota to the city of Whiteclay, Nebraska. Poor Bear requests declaratory and injunctive relief and damages related to the defendants' alleged pattern, practice, custom, and policy of depriving him of his constitutional rights to free speech, assembly, association, and to petition the government; free exercise of his Lakota religious practices; travel between states; protection from harm; and equal enforcement of criminal and regulatory laws, in violation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.
Poor Bear also claims that President Theodore Roosevelt's January 25, 1904, Executive Order withdrawing a 50-square-mile piece of land known as the Whiteclay Extension from the Pine Ridge Reservation and placing the land in the public domain constituted an unconstitutional taking without just compensation in violation of the Fifth Amendment. Finally, Poor Bear alleges that the State of Nebraska has been unjustly enriched with sales tax income from the sale of alcohol in the Whiteclay Extension, and the defendants "as agents of the State of Nebraska in association with those owners and operators of the liquor stores in the Whiteclay Extension have misappropriated and converted to their own use the value of the land which belonged to the Plaintiff and the Lakota for their communal protection." (Filing 1, Complaint ¶ 60.)
The defendants have filed motions to dismiss (filings 19 & 22) the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6). I shall grant the defendants' motions.
Holden Farms, Inc. v. Hog Slat, Inc., 347 F.3d 1055, 1059 (8th Cir.2003). Therefore, the facts for purposes of considering the defendants' motions to dismiss are those alleged in Poor Bear's complaint (filing 1).
Plaintiff Poor Bear is an Ogalala Lakota residing in the Pine Ridge Reservation. Defendant Tom Nesbitt is the Superintendent of the Nebraska State Patrol and is charged with overall responsibility for the formulation, implementation, and supervision of policies, practices, and procedures of the Patrol, including policies governing crowd control, political dissent, and political protest. Defendant Terry Robbins is the Sheriff of Sheridan County, Nebraska, who is responsible for the formulation and implementation of policies, practices, and procedures of the Sheriff's Department in Sheridan County, including the unincorporated village of Whiteclay and Highway 87. Defendants Robert Logsdon, Richard Coyne, and Rhonda Flower are members of the Nebraska Liquor Control Commission who are charged with the powers and duties set forth in the Nebraska Liquor Control Act, Neb.Rev.Stat. Ann. §§ 53-101 to 53-1,122 (LexisNexis 2002).
In 1882, President Chester Arthur, by Executive Order, removed a 50-square-mile piece of land from the public domain of Nebraska and added it to the adjacent Pine Ridge Reservation in order to create a "no sale of alcohol buffer zone" in response to the instability that had been created by 19th century "whiskey ranches" along what is now Highway 87 in Sheridan County, Nebraska. According to Poor Bear's complaint, the sole purpose of these "whiskey ranches" was to "trade in whiskey and to exploit the Lakota's known susceptibility toward alcohol abuse, misuse, and addiction." (Filing 1, Complaint ¶ 14.)
Congress subsequently recognized and ratified this buffer zone (the "Whiteclay Extension") in various acts, one of which allegedly provided that the Whiteclay Extension could only be removed from the Pine Ridge Reservation upon a specific finding that it was not needed for the use and protection of the Lakota on the Reservation. Poor Bear alleges that in 1904, President Roosevelt removed the Whiteclay Extension from its protected status and placed it back into the public domain without making a finding that the Extension was no longer needed for the use and protection of the Lakota. According to the complaint, "alcohol exploitation" returned to the Whiteclay Extension within one year of President Roosevelt's action, where it continues today in the unincorporated village of Whiteclay, Nebraska. Whiteclay is located in Sheridan County, Nebraska, along Highway 87 and consists of a convenience store, auto parts store, salvage yard, and four packaged liquor stores. The complaint alleges that Whiteclay's liquor stores sell "millions of cans of beer to the Lakota who travel by foot or vehicle, the short distance down Highway 87 from the dry ... [r]eservation where the sale of alcohol is prohibited." (Filing 1, Complaint ¶ 13.)
Poor Bear's complaint states that over 50 unsolved murders have occurred on the Pine Ridge Reservation since the mid-1970s, and six "unattended deaths" have occurred in Whiteclay within the past five years. One of these unsolved murders is that of the plaintiff's brother, who was found with another murdered Lakota man on June 8, 1999, in a roadside ditch along Highway 87, a few hundred yards north of Whiteclay and within walking distance of the Pine Ridge Reservation.
On June 26, 1999, plaintiff Poor Bear and other American Indian Movement leaders organized and conducted a prayer service in memory of the murdered Lakota men. During the service, more than 2,000 Lakota walked down Highway 87 from the Pine Ridge Reservation to just north of Whiteclay where the two murdered Lakota men were found. During the service, the participants prayed and engaged in the traditional Lakota religious practices of burning tobacco and sage.
The Lakota marchers then proceeded into Whiteclay to "petition the governmental authorities for the capture and prosecution of the murderers of [the two Lakota men]." (Filing 1, Complaint ¶ 26.) According to Poor Bear's complaint, "a disturbance ensued and certain acts of vandalism by the intoxicated individuals" who had been drinking outside Whiteclay's liquor stores occurred, thereby denying the plaintiff and other prayer marchers the "opportunity to present their petitions to the governmental authorities." (Filing 1, Complaint ¶ 26.)
Prior to the June 26 march, the plaintiff and other tribal leaders had requested that defendant Robbins and the Sheridan County Sheriff's Department protect the Lakota marchers from intoxicated individuals outside Whiteclay's liquor stores who could cause "trouble or disrupt[ ] the religious and political purposes of the march." (Filing 1, Complaint ¶ 25.) Poor Bear alleges that defendants Robbins and Nesbitt failed to so protect the Lakota marchers; knew and tolerated the custom and practice of individuals drinking alcohol outside Whiteclay's liquor stores in violation of Nebraska law; and that the defendants' failure to protect the plaintiff and the Lakota marchers and enforce Nebraska law deprived the plaintiff of his constitutional rights.
After the June 26, 1999, prayer march, defendant Nesbitt directed his Nebraska State Patrol officers to blockade Highway 87 to prevent plaintiff and other Lakota from traveling on the highway. Shortly thereafter, Highway 87 reopened and plaintiff Poor Bear and hundreds of Lakota held a prayer service on July 3, 1999, on the Pine Ridge Reservation, after which they walked on Highway 87 to the site where the murdered Lakota men were found. As Poor Bear and the marchers then approached Whiteclay, "they were met by a sizeable force of Nebraska State Patrol Officers in riot gear with SWAT teams, snipers with automatic weapons on rooftops, attack dogs in reserve and a helicopter hovering overhead directed by the Defendant Nesbitt and the Sheridan County Sheriff's Department deputies directed by Defendant Robbins." (Filing 1, Complaint ¶ 28.)
Despite the fact that at no time on July 3, 1999, did Poor Bear or the other marchers engage or threaten any act of violence, Nebraska State Patrol officers and Sheridan County Sheriff's deputies — as directed by Nesbitt and Robbins — threatened Poor Bear and the other march participants with arrest if they crossed the "arbitrary yellow line" the officers had placed across Highway 87. (Filing 1, Complaint ¶ 29.) Poor Bear and eight other leaders of the prayer march continued to "peacefully walk into the cordon of State Patrol...
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