Rice v. Rehner

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.

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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.

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Foxworthy Case in WA COA — Dram Shop Actions and Tribal Immunity — Wash SCt Petition

Matthew L.M. Fletcher2 Comments

The Plaintiff has petitioned the State Supreme Court for review.

I don’t have a copy of the Plaintiff’s new petition (assuming there is one), but the petition she filed in October of 2006 is posted in the first message in this thread. The Tribe’s Answer to the Petition for Review (filed in mid-December) is available here.

Our previous posts with lower court materials are here and here.

Foxworthy Case in WA COA — Dram Shop Actions and Tribal Immunity — Updated

Matthew L.M. Fletcher

The Washington Court of Appeals recently decided Foxworthy v. Puyallup Tribe of Indians, a dram shop tort claim against a tribal business enterprise. The Court held that the Puyallup tribe hadn’t waived its immunity in state court.

The opinion is here.

The plaintiff’s brief is here: Foxworthy Opening Brief

The tribe’s response is here: Puyallup Response Brief

The plaintiff’s reply is here: Foxworthy Reply Brief

Wash. Court of Appeals — Dram Shop Actions and Tribal Sovereign Immunity

Matthew L.M. Fletcher1 Comment

The Washington Court of Appeals recently decided Foxworthy v. Puyallup Tribe of Indians, a dram shop tort claim against a tribal business enterprise. The Court held that the Puyallup tribe hadn’t waived its immunity in state court.

The opinion was out, but is missing online at the moment. When I get a nice, clean pdf I’ll put it up. It is on Westlaw, etc.

The plaintiff’s brief is here: Foxworthy Opening Brief

The tribe’s response is here: Puyallup Response Brief

The plaintiff’s reply is here: Foxworthy Reply Brief