dram shop actions

Law.Com on Dram Shop Action against Mohegan Sun

Matthew L.M. Fletcher1 Comment

Despite what this article states, this case is far from “novel” — there are numerous opinions all holding that tribes retain immunity, except a lone outlier — Oklahoma — which can be (perhaps) distinguished on the basis that that state’s gaming compacts purportedly waive immunity.

Another thing not emphasized by this opinion — the plaintiff has remedies in tribal court (!).

From Law.com:

In what could become a first-in-the-nation test, a young Waterford, Conn., woman injured by a drunk driver is challenging the sovereignty of Connecticut’s Mohegan American Indian tribe. She is arguing the tribe should be liable in state courts if it lets patrons get so dangerously drunk that they then injure or kill other people.

Currently, the Mohegan and Mashantucket Pequot tribes are immune from being sued in state court for ordinary negligence matters, including so-called “dram shop act” violations. Those violations can cost a bar up to $250,000 if patrons are permitted to get too intoxicated and harm others.

Special tribal courts handle basic civil matters arising on lands controlled by the Mohegan and the Mashantucket Pequot tribes, both of which operate large casinos in southeastern Connecticut. The tribes claim immunity from negligence suits in state courts as a feature of their status as federally recognized sovereign Indian nations. Continue reading →

Supreme Court Denies Cert in Indian Law Cases Today

Matthew L.M. Fletcher2 Comments

The Supreme Court denied cert in two petitions captioned Cook v. Avi Casino Enterprises (Nos. 08-929, 08-930). It’s on page 4 of this order list.

This is good news for Indian Country (and for my student writing a paper on this subject — you reading this, J.?). There is a split of authority on the question of whether tribal business enterprises are immune from suit in a state law dram shop action, as we have discussed before. But I’m guessing the Court thinks it’s either unimportant or too much a state law question, since each state has its own version of dram shop laws and applies its own understanding of tribal sovereign immunity. But who knows….

Cook v. Avi Casino Enters. — Trouble?

Matthew L.M. Fletcher5 Comments

The Cook v. Avi Casino Enterprises cert petition has a reasonable chance of being granted. There are a bunch of factors that support the petitioners, and a bunch that don’t.

The case involves dram shop actions against tribal casinos. I’d bet the wide majority of tribal casinos waive sovereign immunity in tribal court for these kinds of actions, but the Cook case and others usually involve a claim brought in state courts, where tribes have not waived their immunity. Interestingly, other than one Oklahoma case, all of the state (and now federal) courts have found that tribal sovereign immunity precludes these actions. Our discussion of the Oklahoma case, and at least three other state cases is here.

So there is a split of authority, but it’s not between federal circuits, which decreases the chance for review somewhat. And there is a Supreme Court case, Rice v. Rehner, a preemption case that held that there is little or no tradition of tribal sovereignty in the context of alchoholic beverage transactions. The petitioners are asking the Court to expand that holding to strike down sovereign immunity in state courts.

On the other hand, the petitioners are asking for a second chance at the pot, likely because they refused to bring a claim in tribal court. In short, these petitioners, who came onto the reservation on their own accord and conducted business with an Indian tribe, want the right to make a state court claim, and want that right to trump the available tribal court venue. Moreover, the Supreme Court might not be terribly interested in another tribal sovereign immunity case, especially since the state court cases are all decided based on state law, interestingly enough. Yes, it’s true, state courts also recognize tribal sovereign immunity.

This is an important question for gaming tribes, many of which have priced and acquired insurance to cover dram shop actions on the basis that these cases would be decided in tribal courts.

Finally, there is a decent argument that the tribal-state gaming compact relationship would be undermined by a decision eliminating or reducing tribal immunity in this context. Increasing the cost for tribes of doing business hurts state revenue sharing. One hopes the states recognize that.

Split in State Court Authority on Whether Casino Dram Shop Actions are Barred by Tribal Sovereign Immunity

Matthew L.M. Fletcher4 Comments

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.

Continue reading →

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

trentcrable2 Comments

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.

Continue reading →