Tribal Immunity in Dram-Shop Actions

09.18.19

Written by Lauren R. Myers

           Tribes need to consider potential exposure to liability in dram-shop actions filed by people who are injured by patrons leaving tribal casinos. The general rule is that an Indian tribe will only be subject to suit “where Congress has authorized the suit or the tribe has waited sovereign immunity.”[1] Only when a tribe’s governing body “explicitly waives its tribal immunity by resolution or ordinance” may that tribe be subject to suit in a Court of Indian Offenses.[2] The tribe must unequivocally express a waiver of tribal sovereign immunity, it cannot be implied.[3] Because a tribe must expressly waive its sovereign immunity, the majority view of courts (including tribal courts) across the country is tribes are immune from liability in dram shop lawsuits filed against their casino entities.[4]

            Oklahoma follows the majority view. In 2013, the Oklahoma Supreme Court issued its decision in Sheffer v. Buffalo Run Casino, PTE. [5] DSDA partner Stuart Campbell represented Buffalo Run Casino.  In Sheffer, the court found that the defendant, Peoria Tribe of Indians of Oklahoma, the owner and operator of the Buffalo Run Casino, was immune from dram-shop liability in state courts.[6] The court overruled Bittle v. Bahe, a 2008 case holding tribes did not enjoy sovereign immunity in dram-shop actions.[7] The Bittle court held tribes did not enjoy sovereign immunity in dram-shop actions for two reasons. First, the court said the Supreme Court issued a decision holding that Congress abrogated immunity “in the area of alcoholic beverage laws.”[8] Second, , the tribe “waived its sovereign immunity when it applied for and received a [liquor] license from the State of Oklahoma.”[9] However, in Sheffer, the court noted that until Oklahoma made granting a liquor license to tribal casinos conditional upon an express waiver of the tribe’s sovereign immunity in dram-shop actions, the tribe would continue to enjoy liability from these actions.[10]

           Even though Oklahoma is within the majority view, cases from other jurisdictions may hint at a swing in the pendulum of case law in this area.

           In Ex parte Poarch Band of Creek Indians, the plaintiffs were injured in a car accident caused by an intoxicated individual driving after leaving a casino.[11] The plaintiffs sued the Poarch Band of Creek Indians (“Tribe”) and its gaming entity (“Casino”) in a dram-shop action.[12] The state court denied the Tribe and Casino’s motions for summary judgment holding the court had jurisdiction over the dram-shop claim.[13] Both the Tribe and Casino petitioned for a writ of mandamus to the Supreme Court of Alabama.[14] The Supreme Court of Alabama denied the petition.[15]

            While the court issued no opinion, Chief Justice Moore penned a special concurring opinion explaining why he believed the state trial court should and could maintain jurisdiction over the dram-shop action. Justice Moore noted that the plaintiffs could file the dram-shop action against the Tribe in tribal court.[16] He recognized that the Tribe could assert its sovereign immunity as a defense in the tribal court, leaving the plaintiff with no avenues for redress against the Tribe or Casino.[17] The Tribe did provide a waiver of sovereign immunity in the Tribe’s Tort Claims Act.[18] Moore noted that this waiver was extremely narrow, only applying to “an individual [Casino] patron” and not third-party claims of parties, like the plaintiffs, who were not Casino patrons.[19] Further, Justice Moore stated that by purchasing dram-shop insurance as a prerequisite to obtaining a state liquor license, the Tribe and Casino “expressly agreed in writing to be ‘financially responsible’ … for serving alcohol to any apparently intoxicated person.”[20] He ultimately believed that “[t]he doctrine of tribal immunity [was] intended … to shield Indian tribes from exploitation by outsiders” and thought it inherently unjust for the tribes to use it as “a sword . . . to victimize outsiders.”[21]

            More recently, the Alabama Supreme Court, in another case, Harrison v. PCI Gaming Authority, 251 So. 3d 24, 33 (Ala. 2017) held that the doctrine of tribal sovereign immunity did not apply to a tort action brought under the Dram Shop Act by a vehicle passenger's mother against Indian tribe that operated the casino. The mother asserted that life-ending injuries to the passenger had allegedly been caused by negligent or wanton serving of alcohol to a visibly intoxicated patron, the vehicle's driver; there had been no opportunity to bargain for a waiver of immunity and there was no other avenue for relief.[22]

           The third case, Westbrook v. Mashantucket Pequot Gaming Enter., reflects a tribal court perspective on the dram-shop issue.[23] The tribal court held it had jurisdiction over the dram-shop action brought by the plaintiffs.[24] The court noted defendant, Mashantucket Pequot Tribe (“Tribe”), had expressly waived its sovereign immunity to dram-shop actions in its Tribal Dram Shop Act (the “Act”).[25] The tribal court noted this was a very limited waiver of the Tribe’s sovereign immunity because the Act provided that “there ‘shall be no separate cause of action’ other than the dram-shop action involving the distribution of alcohol.”[26]

           Although the holdings in both Ex parte Poarch Band of Creek Indians and Westbrook are similar, it is for vastly different reasons. The Westbrook case reflects a tribe taking the initiative to expressly waive its sovereign immunity in narrow circumstances involving dram-shop actions. On the other hand, Ex Parte Poarch Band of Creek Indians, closely resembles Bittle, both in rationale and outcome. Both suggest that a tribe should be subject to a state’s dram-shop laws because they chose to submit to the state’s alcohol licensing requirements. Ex Parte Poarch takes the analysis one step further and suggests that state courts have jurisdiction over these actions for primarily public policy concerns that victims/plaintiffs will have no other avenues of redress.

            While tribes in Oklahoma currently enjoy sovereign immunity from dram-shop actions, these recent cases show a willingness of at least one state and one tribal court to hold casinos accountable. In 2014, the Oklahoma Alcoholic Beverage Laws Enforcement (“ABLE”) Commission started to research a rule change that would require tribes to waive sovereign immunity to dram-shop actions as a condition to obtaining a state liquor license .[27] It is unclear whether the ABLE Commission has the authority to make the rule change, but it is likely a change of this magnitude would end up in court.[28] Currently, the ABLE Commission takes proactive steps in trying to prevent alcohol related accidents caused by intoxicated drivers leaving casino properties. ABLE holds training courses to instruct and better inform casino staff about the major risks and harms of drunken driving as well as underage drinking.[29]

            Though there is no recent news indicating this rule would ever be enacted, ABLE’s actions along with the recent minority view decisions should put Tribes on notice that some jurisdictions, including Oklahoma, may one day change their views on sovereign immunity in dram shop actions.

            One step Tribes may consider in preempting another court challenge to their sovereign immunity is enacting their own tribe-specific Dram Shop Act. This would allow the Tribe to maintain jurisdiction over these lawsuits while also providing victims with an avenue for potential recovery of damages.

 


Doerner, Saunders, Daniel & Anderson, LLP provides this content for informational purposes only. It is not intended to provide legal or other professional advice nor does the transmission of this information create an attorney-client relationship between any attorney of the Firm and the reader. If you seek legal advice or assistance, please consult with a competent attorney familiar with the applicable laws. If you wish to initiate possible representation by an attorney with this Firm, please call the attorney of your choice. You will be advised of our processes to avoid conflicts of interest and requirements of our letter of engagement prior to the commencement of representation.


 

[1] Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).

[2] 25 C.F.R. § 11.118(d).

[3] Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, ¶ 41, 315 P.3d 359, 370, reh'g denied (Dec. 2, 2013)

[4] See, Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224, 1226 (11th Cir. 2012); Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 726 (9th Cir. 2008) (tribal corporation operating as an arm of the tribe enjoys same sovereign immunity as tribe from dram-shop action absent express waiver of sovereign immunity); Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, 315 P.3d 359 (holding Oklahoma courts were not “courts of competent jurisdiction” to hear tribal dram shop actions and tribes therefore are immune from these actions); Foxworthy v. Puyallup Tribe of Indians Ass'n, 169 P.3d 53 (Wash. Ct. App. 2007), cert. granted, 164 Wash.2d 1019, 95 P.3d 89 (2008) (Holding defendant tribe had not waived its sovereign immunity to private actions in state court, therefore state court did not have subject matter jurisdiction over the tribe); Filer v. Tohono O ‘Odham Nation Gaming Enterprise, 129 P.3d 78 (Ariz. 2006), cert. denied, 2006 Ariz. LEXIS 117, 2006 WL 465841 (2006) (same); Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854 (Tex. Ct. App. 1997) (“Even if it were possible to construe a private suit under the Act as an enforcement action by the state, we could not conclude that tribal sovereign immunity would be waived because federal courts have not resolved whether actions for money damages brought to enforce alcohol-related laws fall within the waiver of immunity described by the United States Supreme Court in Rice v. Rehner”).

[5] 2013 OK 77, 315 P.3d 359.

[6] Id. at ¶ 50, 315 P.3d at 373.

[7] Id. at ¶ 50, 315 P.3d at 373; see, Bittle v. Bahe, 2008 OK 10, 192 P.3d 810.

[8] Bittle v. Bahe, 2008 OK 10, ¶ 53, 192 P.3d 810, 827 (citing Rice v. Rehner, 43 U.S. 713 (1983)); see also, 18 U.S.C. § 1161.

[9] Id.

[10] Id. at ¶ 49, 315 P.3d at 372-73.

[11] 155 So. 3d. 224, 225 (Ala. 2014).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 227.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 229.

[21] Id. at 230.

[22] Harrison v. PCI Gaming Authority, 251 So. 3d 24, 33 (Ala. 2017); see also 1 Ala. Pers. Inj. & Torts § 3:25 (2019 ed.).

[23] 2010 Mashantucket Trib. LEXIS 5 (Mashantucket Pequot Trib. Ct. 2010).

[24] Id. at *6.

[25] Id.

[26] Id. at *9 (citing 17 M.P.T.L. ch. 1, § 40(b))).

[27] Tesina Jackson, ABLE Commission looks at tribal immunity rule change (Feb. 11, 2014, 8:12 AM), http://www.cherokeephoenix.org/Article/index/7989.

[28] Id.

[29] Id.

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