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Oklahoma Supreme Court Opens Tribe to Private Dram Shop Action February 8, 2008

Posted by rezjudicata in State Courts.
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Bittle v. Bahe, 2008 OK 10 (Okla. Feb 5, 2008)

Issue(s): Tribal Sovereignty > Alcohol Regulation >> Rice v. Rehner; Tribal Sovereign Immunity > Congressional Abrogation >> 18 USC 1161 >>> Private Causes of Action; Tribal Sovereign Immunity > Waiver >> Licensing Agreements

Federal law (18 USC § 1161) permits liquor sales in Indian Country as long as the transactions comply with state and tribal laws. An intoxicated driver struck and injured Bittle. Bittle alleged that the Absentee Shawnee Tribe’s casino served the driver alcohol and sued the Tribe under Oklahoma’s common-law dram shop jurisprudence. The Tribe agreed to observe Oklahoma laws in order to obtain the casino’s liquor license from the state. Does § 1161 abrogate the Tribe’s immunity? If not, did the Tribe waive immunity in the licensing agreement?

7-2, the Oklahoma Supreme Court affirmatively answered both questions. First, the Court interpreted and applied the Supreme Court decision Rice v. Rehner. Rehner held that §1161 delegated alcohol regulation to the states and tribes. The case also noted that tribes lacked a tradition of sovereignty in the field of alcohol regulation. Because immunity springs from sovereignty, the Court reasoned that Rehner supports its conclusion that the state has adjudicatory authority over Bittle’s private action.

Instead of finding that the Supreme Court has never upheld private actions against tribes for liquor law violations, the Oklahoma court said it could find no authority that barred private suits. Having resorted to tautology to set aside tribal sovereign immunity precedent, the Court returned to Rehner. The Tribe argued that the State might be able to bring an action in state court to enforce state liquor laws against the Tribe. But §1161 did not totally eradicate immunity in alcohol cases. The Court countered that, under Rehner, Congress did not need to expressly authorize state adjudicatory authority (or expressly abrogate immunity). Hence, “laws of a State” under §1161 granted the state legislative, executive, and adjudicatory power. And this grant subjected the Tribe to private dram shop suits. Through Rehner, the Court found that the Tribe had no immunity to abrogate, but Congress implicitly abrogated it anyway.

In dicta, the Court also considered whether the Tribe had waived immunity. Under its alcohol licensing agreement, the Tribe agreed to abide by Oklahoma law. Because the agreement did not limit enforcement to State actions, the Court held that this clause waived immunity.

Justice Kauger issued a strong dissent. Highlighting the majority’s “tortured” analysis, the dissent found no clear abrogation or waiver of immunity in private dram shop actions. The dissent also pointed out that the majority’s conclusion contradicted several other state courts who had addressed the issue.

[The majority analysis in this case was indeed “tortured.” It was difficult to summarize the case in an objective, logical fashion because of the Court’s illogical leaps of legal faith. Preliminary criticism of this case can be found here and here.]

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