As Trent noted, the Oklahoma Supreme Court held 7-2 that dram shop actions filed against tribal casino operations are not barred by tribal sovereign immunity in Bittle v. Bahe. This decision conflicts with decisions of other state courts, including those of Arizona (Filer v. Tohono O’odham Nation), Texas (Holguin v. Ysleta del Sur Pueblo), and Washington (Foxworthy v. Puyallup). And, as we know by reading Rule 10 of the United States Supreme Court rules, the Supreme Court is predisposed toward hearing cases in which there is a split of lower court authority involving an important federal question.
This may be a troubling development, though perhaps not as a result of this case. If the tribe refuses to petition the Supreme Court for certiorari, then this case will be over. Moreover, even if the tribe petitions, the Court might let this one go because of lower court outcome isn’t troublesome to the Court.
However, given the split in authority, another case may come up that might attract the Court’s attention. That case might be the Foxworthy case out of Washington state. The tribe won at the appellate court level, but the plaintiff is petitioning to the Washington Supreme Court (here’s the Petition). If that Court denies review, or affirms, then the plaintiff might petition to the U.S. Supreme Court. Then, unless there is some sort of unusual procedural and factual wrinkle, the Court might be inclined to grant certiorari to resolve the split in state court authority.
There might be another reason the Court will decline cert. in this and future cases. One of the concurring judges (Watt, J.) wrote:
I express no opinion as to whether liability may ultimately lie against the Tribe under the facts presented. Nevertheless, I agree with the majority’s determination that the Tribe effectively waived any right to the shield of sovereign immunity by the casino’s agreement to be bound by state law. I also recognize that, generally, the issue of tribal sovereign immunity is established by federal law. In reaching the decision today, this Court has considered federal precedent. However, once the casino waived its sovereign immunity by agreeing to be bound by Oklahoma law, state law became the measure by which the cause was to be governed. Therefore, the determination that the Tribe is subject to suit in Oklahoma courts rests squarely within Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. [note] Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).
This seems to be an attempt to persuade the Court to let this one go in the event the tribe petitions for cert. I’m not sure how persuasive this is, given that tribal sovereign immunity is a distinctly federal common law creature and that the majority opinion relied so heavily on Rice v. Rehner and 18 U.S.C. 1161.
Now none of this might be “important” to the Supreme Court either.
Turtle Talk 
Our state [Washington] supreme court just punted on whether to review the Foxworthy decision, deciding to hold over their decision until a September 4, 2008, en banc conference. This split is not going to get resolved anytime soon because the Oklahoma Supreme Court has before it a motion to reconsider its decision in Bittle. It’s my understanding that if reconsideration is denied, the Absentee Shawnee Tribe will petition to the U.S. Supreme Court.
Keep in mind that this is the same path C&L took up to the US Supreme Court.
Nice piece Matthew. The 6/18/09 decision by the federal district court for the western district of Oklahoma had caught my eye. The Absentee Shawnee Tribe brought suit there and the federal district court basically affirmed the Oklahoma Supreme Court’s decision and reading of Rice v. Rehner. I don’t think that decision even mentioned any issues about the tribe’s gaming compact binding the tribe to state law; it just discussed Rehner.