Okla Supreme Ct Holds that 18 USC 1161 Waives Tribal Immunity from Suit

trentcrable

The question is whether Congress abrogated tribal immunity from suits for “dram shop” liability when it enacted 18 USC 1161. Plaintiffs in several states have argued that it did, relying on the statute and the Supreme Court’s opinion in Rice v. Rehner. Until yesterday, no appellate court had agreed with that argument. The appeals courts of Arizona, Texas, and Washington have all found that 1161 does not amount to Congressional abrogation of tribal immunity, and that a tribe does not waive its immunity by getting a state issued liquor license. The plaintiff in the Washington case has petitioned the State Supreme Court for review–that petition is still pending.

I think the argument fails regardless of what the state’s laws say, but what makes this even more disturbing is that Oklahoma’s “dram shop” laws don’t even provide for a 3rd party suit as a method of regulation. In some states the liquor laws specifically provide for 3rd party suits as a means of enforcement, others, including Oklahoma, do not. What the Oklahoma court found was that 1161 abrogated tribal immunity from private tort suits based on a negligence theory simply because a violation of a liquor regulation was alleged.

When the Washington case was first on appeal there was a small push for an amicus effort–it didn’t get any support. We later revived that effort, earned some support, and got an amicus brief filed, but there was little interest. It seemed people assumed it was a slam dunk, that there was no issue. I got a lot of “Where’s the express waiver? There isn’t one. Case closed.” While the Washington Court of Appeals ruled in favor of the Tribe, it wasn’t a given. And with an issue as serious as sovereign immunity on the line we shouldn’t ever assume it’s going to be easy. This is a blow to tribal sovereignty. This is dangerous ground. We should be paying attention.

The Oklahoma court’s opinion is available here.

A news article discussing the case can be found here.

Our previous posts about the similar case in Washington State can be found here.