Bittle v. Bahe

• Decision Date: 05 February 2008
• Docket Number: No. 103,716.,103,716.
• Citation: 2008 OK 10,192 P.3d 810
• Parties: Shatona BITTLE, individually, Plaintiff/Appellant, v. Valentine BAHE and Val Tsosie, Defendants, The Absentee Shawnee Tribe of Oklahoma and Thunderbird Entertainment Center, Inc., Defendants/Appellees.
• Court: Oklahoma Supreme Court

192 P.3d 810

2008 OK 10

Shatona BITTLE, individually, Plaintiff/Appellant, v. Valentine BAHE and Val Tsosie, Defendants, The Absentee Shawnee Tribe of Oklahoma and Thunderbird Entertainment Center, Inc., Defendants/Appellees.

No. 103,716.

Supreme Court of Oklahoma.

February 5, 2008.

Rehearing Denied September 11, 2008.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. NO. 3

¶ 0 Plaintiff filed an action in the district court in Pottawatomie County to recover damages for personal injury suffered in a motor vehicle collision. Plaintiff alleged that the collision occurred when the motor vehicle owned by defendant Tsosie and driven by defendant Bahe crossed the center line and collided head-on into plaintiff's motor vehicle. Plaintiff alleged that defendant Thunderbird Entertainment Center, Inc., operates Thunderbird casino and is licensed by the state to serve liquor by the drink at the casino. Plaintiff alleged that the personnel at the casino served alcoholic beverages to defendant Bahe, a casino patron who was obviously intoxicated, and that defendant Thunderbird Entertainment Center, Inc., has dram shop liability for plaintiff's damages. Plaintiff alleged that defendant The Absentee Shawnee Tribe of Oklahoma owns the casino and has dram shop liability for plaintiff's damages. The Absentee Shawnee Tribe of Oklahoma and Thunderbird Entertainment Center, Inc., appeared specially and jointly moved to quash service of process and to dismiss them as defendants based on the doctrine of tribal sovereign immunity from suit in state court. The district court, the Honorable Douglas Combs, presiding, sustained the motion to quash and entered a dismissal order. Plaintiff appealed. The Court of Civil Appeals affirmed the dismissal. We previously granted plaintiff/appellant's petition for certiorari review.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISMISSAL ORDER OF THE DISTRICT COURT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.

Gary B. Homsey, Jeffrey M. Cooper, Kevin E. Hill, Homsey, Cooper, Hill & Associates, Oklahoma City, OK, for appellant.

Robert T. Goolsby, Jeremy Z. Carter, Jennifer A. Bruner, Goolsby, Olson & Proctor, Oklahoma City, OK, for appellees.

TAYLOR, J.

¶ 1 This is an appeal from a dismissal of plaintiff's action alleging dram shop liability against an Indian tribe and its casino. The district court ruled that the doctrine of tribal sovereign immunity prevents the state court from exercising jurisdiction over this private tort action against the Indian tribe. Based upon the evidentiary material in the appellate record, we find the Indian tribe and its casino have not established that they are shielded by the doctrine of tribal sovereign immunity from the exercise of state court jurisdiction in this case.

I. The Proceedings Below

¶ 2 Shatona Bittle, plaintiff/appellant (plaintiff), filed an action in state district court to recover damages for personal injury she suffered in an automobile collision. The amended petition named as defendants Valentine Bahe, an individual; Val Tsosie, an individual; The Absentee Shawnee Tribe of Oklahoma (Tribe); and Thunderbird Entertainment Center, Inc.

¶ 3 Plaintiff alleged that at 7:15 a.m. on April 30, 2004, she was driving westbound on Highway 9 when a vehicle driven by Bahe crossed the center line and collided head-on into plaintiff's vehicle. Bahe died at the scene of the collision, and plaintiff suffered multiple injuries. Plaintiff alleged that Tsosie owned the vehicle driven by Bahe, that Tsosie and Bahe had been at the Tribe's casino prior to the collision, that Bahe was intoxicated and served excessive alcoholic beverages at the casino, and that Tsosie was noticeably intoxicated at the scene of the collision. Plaintiff further alleged that the Tribe and the casino have dram shop liability for her personal injury damages.

¶ 4 It is undisputed that the Tribe is a federally recognized Indian tribe.¹ The Tribe asserted that Thunderbird Entertainment Center, Inc., a corporate economic enterprise created by the Tribe under its ordinances,² owns and operates a casino. It is undisputed that the State of Oklahoma issued a mixed beverage license in the name of Thunderbird Entertainment Center, Inc. (Thunderbird casino) to serve liquor by the drink at the casino. The Tribe and Thunderbird casino appeared specially and jointly moved the district court to quash the summons and dismiss them as parties defendant on the basis of tribal sovereign immunity from suit in state court. Plaintiff responded that tribal sovereign immunity does not extend to the area of liquor regulation, but if it does, the Tribe waived its immunity.

¶ 5 The district court found that neither the Tribe's ordinance nor Thunderbird casino's application for a state mixed beverage license clearly waives tribal immunity. The court concluded that neither the Oklahoma statutes nor the common law allows a private person to enforce violations of 37 O.S.2001, § 537 against the Tribe or Thunderbird casino and dismissed the action against the Tribe and Thunderbird casino. Plaintiff appealed.

¶ 6 The Court of Civil Appeals concluded that by enacting 18 U.S.C. § 1161,³ Congress did not clearly and expressly authorize suits against Indian tribes for violations of state alcoholic beverage laws and did not clearly and expressly waive tribal sovereign immunity from suit in state courts. The Court of Civil Appeals also concluded that the Tribe's ordinance agreeing to comply with state alcoholic beverage laws did not clearly and expressly waive its tribal immunity. The Court of Civil Appeals affirmed the dismissal.

¶ 7 We previously granted plaintiff's petition for certiorari review. We vacate the opinion of the Court of Civil Appeals, reverse the district court's dismissal, and remand the case to the district court for further proceedings.

II. The Parties' Arguments

¶ 8 In support of its motion to quash in the trial court, the Tribe contended that Oklahoma's courts lack subject matter jurisdiction and in personam jurisdiction in this case because the Tribe is a sovereign nation not subject to judicial attack absent authorization from Congress or an express waiver from the Tribe, citing Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), and Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991).⁴ Manufacturing Technologies ruled that the Kiowa tribe was immune from suit in state court on its contract whether the contract involved governmental or commercial activities and whether the contract was made on or off a reservation because 1) tribal immunity is a matter of federal law and is not subject to diminution by the states and 2) as a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived immunity.

¶ 9 The Tribe argued that 18 U.S.C. § 1161 authorizes a state to control the sale and distribution of alcoholic beverages within its borders through the licensing regulations, citing Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), but the statute is ambiguous as to the extent of the state's power of enforcement against a sovereign Indian nation and that the statute cannot be interpreted as authorizing a common law negligence action for dram shop liability against the Tribe. Rice v. Rehner decided that 1) a tribal member who operated a retail outlet inside the reservation had to comply with California liquor licensing requirements because there is no tradition of sovereign immunity that favors the Indians in the area of alcoholic beverage regulation, 2) Congress, in § 1161, delegated authority to the states and the Indian tribes to regulate alcoholic beverages, and 3) the activity in which Rehner wanted to engage might have substantial impact beyond the reservation.

¶ 10 Defending against the motion to quash, plaintiff relied on Rice v. Rehner for the proposition that there is no tradition of tribal sovereignty to regulate alcoholic beverages and that 18 U.S.C. § 1161 requires the states to regulate the possession and use of alcoholic beverages in Indian country. Plaintiff asserted the Tribe violated its duty under 37 O.S.2001, § 537(A)(2) to refrain from serving alcoholic beverages to an already intoxicated person and the breach of this duty resulted in the automobile collision and plaintiff's injuries for which Oklahoma law provides a negligence remedy under Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, and Copeland v. Tela Corp., 1999 OK 81, 996 P.2d 931. Brigance and Copeland recognized that relief from a breach of the duty in § 537(A)(2) may be sought in a common law negligence action.

¶ 11 Plaintiff argued that concurrent federal and state jurisdiction over alcoholic beverages in Indian country is justified by the state's unquestionable interests in liquor traffic within its borders particularly where, as here, the alcoholic beverage transactions in Indian country impact the state outside of Indian country. Plaintiff also argued that the Tribe and Thunderbird casino consented to suit in state court when the Tribe adopted an ordinance that tribal licensees shall comply with state law⁵ and when Thunderbird casino agreed to comply with state law so it could secure a state license to serve alcoholic beverages for on-premises consumption at the casino.

¶ 12 On certiorari, plaintiff asserts that the Tribe is a sophisticated entity that engages in business and commerce and hires attorneys and other individuals with knowledge of state law to secure proper licenses to conduct business in this state and that the Tribe was fully aware it was agreeing to comply with state law and be sued in state court. Plaintiff argues that the Tribe is bound by the alcoholic beverage laws of Oklahoma, including Oklahoma's common law dram shop liability rule.

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