Furry v. Miccosukee Tribe

1. Does Justice Brandeis’ opinion in Turner v. United States, 248 U.S. 354 (1919) support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), be revised and discarded, at least in the context of tribal alcoholic beverage commercial activities?

2. Do Title 18 U.S.C. § 1161 and Rice v. Rehner, 463 U.S. 713 (1983), exclude tribal alcoholic beverage endeavors from sovereign immunity protection?

3. Does tribal sovereign immunity preclude a suit against an Indian Tribe which has obtained a state liquor license and has operated an alcoholic beverage facility pursuant to that liquor license and in the process has violated state law subjecting a license holder to liability?

Lower court materials here.

Briefs in Furry v. Miccosukee Tribe

July 2, 2012Matthew L.M. Fletcher1 Comment

Here:

Furry Opening Brief

Miccosukee Brief

Furry Reply

Opinion here: CA11 Opinion

11th Circuit Affirms Tribal Immunity from State Law Dram Shop Actions

July 2, 2012July 2, 2012Matthew L.M. Fletcher

Here is the opinion. Briefs later, hopefully.

An excerpt:

Furry instead relies on the one state court decision that has gone the other way, Bittle v. Bahe, 192 P.3d 810 (Okla. 2008), where the Oklahoma Supreme Court, over strong dissent, held that § 1161, read together with Rehner, abrogated tribal immunity from any suit based on state laws related to alcohol, including private tort suits. See id. at 823. Notwithstanding the admonition of the United States Supreme Court in Kiowa Tribe that “[t]here is a difference between the right to demand compliance with state laws [26] and the means available to enforce them,” 523 U.S. at 755, the Oklahoma Supreme Court determined that private tort actions to enforce compliance with state liquor laws were permissible because the “state law remedy to recover money damages furthers the legitimate objectives of the state’s liquor laws,” Bittle, 192 P.3d at 823. Although the Oklahoma Supreme Court’s analysis does not bind this Court in any way, we also find it unpersuasive and inconsistent with precedents from this Court and the United States Supreme Court, which have established that congressional abrogation of tribal immunity must be express and unequivocal. Cf. Bittle, 192 P.3d at 829, 833 (Kauger, J., dissenting) (observing that the majority opinion “ignores controlling precedents” and that “[i]t takes a great leap of jurisprudence to determine that Rice v. Rehner is dispositive of the issue of sovereign immunity as it relates to private dram shop actions”).