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
Feb. 5, 2008
Rehearing Denied Sept. 11, 2008
2008 OK 10 | 192 P.3d 810
TAYLOR, J.
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
¶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
¶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
¶6 The Court of Civil Appeals concluded that by enacting
¶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 feder-
¶9 The Tribe argued that
¶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
¶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.
¶13 Opposing certiorari review, the Tribe contends that waiver of tribal sovereign immunity is a question of law to be decided by the court under established rules that a waiver cannot be implied, it must be unequivocal, and it must be strictly construed and that nothing less than a clearly expressed waiver will satisfy the rules. The
III. The Standard of Review
¶14 This appeal from a summary disposition order is treated as an appeal from summary judgment.
IV. The Tradition of Tribal Sovereign Immunity in Rice v. Rehner
¶15 We begin with an overview of the notion of Indian tribal sovereignty and the doctrine of tribal sovereign immunity. Tribal sovereignty and tribal sovereign immunity are rooted in the founding of our nation when the government of the United States assumed a protectorate relationship with the Indians and the dependent Indian tribe or nation retained its original natural right of self-government over members of the tribe within Indian country by consent of the dominant sovereign nation of the United States. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542, 8 L.Ed. 483 (1832). Early on, Congress set aside reservations for the dependent Indian tribes.6 The reservation tribes were viewed as distinct political communities with the inherent right to self-governance as a quasi-sovereign independent of the several sovereign states and in need of protection from state interference. Worcester, 31 U.S. at 551. By the late 19th Century, Congress changed to an allotment policy to assimilate the Indians as citizens of the United States, County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 254, 112 S.Ct. 683, 686, 116 L.Ed.2d 687 (1992), and then abandoned allotments, returning to a policy of tribal self-governance and retaining a policy of assimilation. Indian Reorganization Act,
¶17 With this historical perspective of the doctrine of tribal sovereign immunity, we turn to Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983). Rehner was a tribal member and a federally-licensed Indian trader who operated a general store on the Pala Reservation in San Diego, California. The Pala Tribe had an ordinance permitting the sale of liquor on the reservation as authorized by
¶18 In deciding whether sales of liquor inside the reservation were subject to California regulation under
This historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country is justified by the relevant state interests involved .... The State has an unquestionable interest in the liquor traffic that occurs within its borders .... “A state‘s regulatory interest will be particularly substantial if the State can point to off-reservation effects that necessitate State intervention.”
There can be no doubt that Congress has divested the Indians of any inherent power to regulate in this area. In the area of liquor regulation, we find no “congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.” With respect to the regulation of liquor transactions, as opposed to the state income taxation involved in McClanahan, Indians cannot be said to “possess the usual accouterments of tribal self-government.”
The court below erred in thinking that there was some single notion of tribal sovereignty that served to direct any preemption analysis involving Indians. Because we find that there is no tradition of sovereign immunity that favors the Indians in this respect, and because we must consider that the activity in which Rehner seeks to engage potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case.
Rice v. Rehner, 463 U.S. at 723-725, 103 S.Ct. at 3298-3299 (citations and footnotes omitted and bold added).
¶20 Turning to the federal statute,
It is clear then that Congress viewed
§ 1161 as abolishing federal prohibition, and as legalizing Indian liquor transactions as long as those transactions conformed both with tribal ordinance and state law. It is also clear that Congress contemplated that its absolute but not exclusive power to regulate Indian liquor transactions would be delegated to the tribes themselves, and to the States, which historically shared concurrent jurisdiction with the federal government in this area. Early administrative practice and our prior decision in United States v. Mazurie, supra [419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)], confirm this understanding of§ 1161 .
463 U.S. at 727, 103 S.Ct. at 3300-3301.
¶21 In light of the clear congression-al intent, Rice v. Rehner refused to read
We conclude that
463 U.S. at 733-734, 103 S.Ct. at 3303-3304 (footnote omitted).
¶22 We are confident that application of the doctrine of tribal sovereign immunity in this case would indeed make the Tribe a “super citizen” that can trade in heavily-regulated alcoholic beverages, free from all but self-imposed regulation. Although the specific concern in Rice v. Rehner was whether the reservation retail outlet had to have a state license to sell liquor, we think it is the authority to be followed in the instant matter. Rice v. Rehner very clearly ruled that Indians did not have the inherent attributes of sovereignty to regulate in the area of alcoholic beverages. It is the sovereignty that gives rise to the immunity from private suit in order to protect the dignity of the sovereign.10 Rice v. Rehner concluded that the Indians there had no tribal immunity from state alcoholic beverage law. Accordingly, Rice v. Rehner supports the exercise of this state‘s adjudicatory power over this private suit.
V. Tribal Immunity from Suit in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.
¶23 Rice v. Rehner did not definitively decide that a private person may sue an Indian tribe in state court for violating the state alcoholic beverage laws. While this state has a strong interest in ensuring that its citizens have judicial remedies available to redress wrongs, any finding of state court jurisdiction must be consistent with the authoritative decisions concerning the right to maintain a suit by or against an Indian or Indian tribe in state, federal or tribal court.
¶24 Two early decisions that have been cited several times as the authority for the principle that an Indian tribe is subject to suit only where Congress has authorized the suit or the Indian tribe has waived its immunity are Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919), and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), stripped these two early decisions of
¶25 The landmark case holding Indians are immune from suit in state court is Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). In Williams, an Indian trader who operated a general store on the Navajo Indian Reservation in Arizona filed suit in state court to collect for goods sold on credit to reservation Indians. The Arizona Supreme Court decided that the state courts had jurisdiction over civil suits by non-Indians against Indians even though the action arose on an Indian reservation. Williams viewed the collection suit in state court against tribal members as undermining the authority of the tribal courts over reservation affairs and found it would infringe upon the right of reservation Indians to make their own laws and be ruled by them. Williams held that under the circumstances, suit in state court must be expressly authorized by Congress. 358 U.S. at 219-220, 79 S.Ct. at 270.
¶26 Manufacturing Technologies relied on Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), for the doctrine of tribal immunity from suit. In Martinez, a tribal member sued the tribe in federal court challenging the tribe‘s refusal to enroll children of a female member who married outside the tribe as a violation of equal protection under the Indian Civil Rights Act.
¶27 Manufacturing Technologies also relied on Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 890, 106 S.Ct. 2305, 2312-2313, 90 L.Ed.2d 881 (1986), for the doctrine of tribal immunity from suit. In Three Affiliated Tribes, the Indian tribe filed suit in state district court for negligence and breach of a contract for the construction of an on-reservation water system, and the defendant moved to dismiss because the tribe had not consented to state court jurisdiction. The North Dakota Supreme Court decided the state legislature had disclaimed jurisdiction over Indians and Indian tribes. The United States Supreme Court found that the Indian tribe had no other effective means of securing relief for civil wrongs because even if the tribal court had jurisdiction to adjudicate the controversy, it would be unable to enforce its judgment; and that there is a strong federal interest in ensuring that all citizens have access to the courts. Three Affiliated Tribes established that an Indian tribe may file suit in state district court without the necessity of a broad waiver of immunity from suit in state court.
¶28 More recently, the United States Supreme Court considered whether tribal courts have jurisdiction over non-members’ tort claims. In Nevada v. Hicks, 533 U.S. 353, 366, 121 S.Ct. 2304, 2324, 150 L.Ed.2d 398 (2001), state and state officers sought a declaratory judgment in the federal district court that the tribal court lacked jurisdiction over a tort action alleging a
¶29 In Manufacturing Technologies, the tribe executed a promissory note to buy stock in a commercial enterprise. The note contained a clause that it did not subject or limit the sovereign rights of the tribe. When the tribe defaulted on the note, Manufacturing Technologies sued in state court. Manufacturing Technologies determined that 1) tribal immunity is a matter of federal law and is not subject to diminution by the states; 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; and 3) Congress has not dispensed with or limited the rule of tribal immunity from suit. Manufacturing Technologies ruled: “Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Congress has not abrogated this immunity, nor has petitioner waived it, so the immunity governs this case.” 523 U.S. at 760, 118 S.Ct. at 1705.
¶30 In the instant matter, the Tribe argued that the ruling in Manufacturing Technologies bars the state court from exercising jurisdiction over it. Manufacturing Technologies does not apply here. This case does not involve a contract nor does it affect the Tribe‘s membership or the Tribe‘s right to govern its members. This case does not interfere with the Tribe‘s internal affairs or tribal government that barred the exercise of adjudicatory power in Williams v. Lee and Santa Clara Pueblo v. Martinez. Here, we have a tort action alleging the Tribe allowed excessive amounts of alcoholic beverages to be served to an intoxicated patron at the Tribe‘s casino and did nothing to prevent the intoxicated patron from leaving the casino, driving on the public roads and highways while intoxicated, and causing injury. As in Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, there is a strong federal interest in ensuring all citizens have access to courts. And, as recognized in Nevada v. Hicks, there is an historical and constitutional assumption of state court jurisdiction concurrent with the federal courts under our system of dual sovereignty. In our study of the Indian law jurisprudence, we have found no authoritative decision supporting the doctrine of tribal immunity from suit by a nonmember alleging violation of state alcoholic beverage laws.
VI. 18 U.S.C. § 1161
¶31 While Rice v. Rehner rejected the notion of tribal sovereignty to regulate alcoholic beverages, Manufacturing Technologies mechanically applied the notion of tribal sovereignty to bar state court jurisdiction over contracts. In deciding whether
¶32 Undoubtedly,
In view of the broad authority of the states over the liquor traffic, and the established right to prohibit or regulate the sale of intoxicating liquors, we are unable to discover that there has been a deprivation of property rights in the legislation in question in violation of due process of law secured by the Fourteenth Amendment.
¶33 The Twenty-first Amendment14 to the Constitution of the United States gives states considerable regulatory power not strictly limited to importing and transporting intoxicating liquors. California Retail Liquor Dealers Ass‘n v. Midcal Aluminum, Inc., 445 U.S. 97, 107, 100 S.Ct. 937, 944, 63 L.Ed.2d 233 (1980). Each state holds great powers over the importation and transportation of intoxicating liquors, State Bd. of Equalization of California v. Young‘s Market Co., 299 U.S. 59, 63-64, 57 S.Ct. 77, 78-79, 81 L.Ed. 38 (1936), with wide latitude in regulation of intoxicating liquors, Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1256, 16 L.Ed.2d 336 (1966). Other constitutional provisions may limit the exercise of the state‘s police power in regulating intoxicating liquor pursuant to the Twenty-first Amendment. State liquor laws cannot violate the Equal Protection Clause, Craig v. Boren, 429 U.S. 190, 204-209, 97 S.Ct. 451, 460-463, 50 L.Ed.2d 397 (1976), the Due Process Clause, Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515 (1971), the Export-Import Clause, Department of Revenue v. James Beam Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964), or the Commerce Clause, Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 331-332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964).
¶34 There is no bright line between the states’ virtually unfettered power over the distribution and sale of intoxicating liquors and Congress’ commerce power in situations where the state regulation of intoxicating liquor prevents enforcement of a federal law, such as antitrust laws. California Retail Liquor Dealers Assoc‘n v. Midcal Aluminum, Inc., 445 U.S. at 110, 100 S.Ct. at 946. The competing state and federal interests must be reconciled. Id. Even so, there can be no doubt that when Congress enacted
¶35 The Tribe argued that a private person may not sue the Tribe under the state liquor laws because a private person may not exercise the state‘s police power. This position, of course, fails to recognize that police power is exercised when the legislature enacts a law that restricts the behavior of a tavern keeper and when it enacts a law allowing a tavern keeper‘s property to be taken to cover the costs of damages suffered by innocent third parties, as explained in Eiger v. Garrity. Neither the filing of a suit in court alleging dram shop liability nor the maintaining of the suit involves police power15 and the Tribe cites no authority otherwise. The Tribe acknowledged that
¶36 Rice v. Rehner read
¶37 Consistent with Rice v. Rehner, we reject the Tribe‘s argument that
¶38 Here, the state statute imposes a duty on a mixed beverage license holder not to serve alcohol beverages to an intoxicated person and our extant jurisprudence recognizes the right of an individual injured by the breach of that statutory duty to maintain a negligence action against the dram shop. This state law remedy is consistent with Eiger v. Garrity. It is consistent with federal principles that those for whom a statutory duty is imposed are entitled to recover damage caused by the breach of the statutory duty and that the denial of a remedy is the exception rather than the rule. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374-375, n. 52 & 53, 102 S.Ct. 1825, 1837, n. 52 & 53, 72 L.Ed.2d 182 (1982). This state law remedy to recover money damages furthers the legitimate objectives of the state‘s liquor laws. We reject the Tribe‘s argument that dram shop liability should be excluded from the words “laws of the State” in
VII. The Oklahoma Alcoholic Beverage Control Act and Dram Shop Liability
¶39 The Oklahoma Alcoholic Beverage Control Act,
¶40 Included in the litany of statutorily-prohibited acts is the prohibition against selling, delivering, or knowingly furnishing “alcoholic beverages to an intoxicated person,” id. at
¶41 Brigance abolished the common law non-liability of dram shops, finding a duty imposed by statute and common law principles upon commercial vendors to exercise reasonable care in serving alcoholic beverages to their customers. 725 P.2d at 304. Brigance adopted a rule of dram shop liability grounded in common law negligence:
We hold that public policy is better served by holding that the common law principles of negligence are applicable where a commercial vendor for on the premises consumption is shown to have sold or furnished intoxicating beverages to a person who was noticeably intoxicated from which a jury could determine such conduct creates an unreasonable risk of harm to others who may be injured by the person‘s impaired ability to operate a motor vehicle.
Id. at 305 (footnote omitted). Here, the merits of plaintiff‘s negligence action are not before us. Plaintiff will have an opportunity to prove the elements of common law negligence under Brigance before the trial court on remand.
¶42 Brigance relied heavily on the analysis and reasoning of the New Jersey Supreme Court in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). The New Jersey court viewed dram shop liability as compelling obedience to the statutory obligations imposed on license holders:
But we are convinced that recognition of the plaintiff‘s claim will afford a fairer measure of justice to innocent third parties whose injuries are brought about by the unlawful and negligent sale of alcoholic
beverages to minors and intoxicated persons, will strengthen and give greater force to the enlightened statutory and regulatory precautions against such sales and their frightening consequences, and will not place any unjustifiable burdens upon defendants who can always discharge their civil responsibilities by the exercise of due care... Liquor licensees, who operate their businesses by way of privilege rather than as of right, have long been under strict obligation not to serve minors or intoxicated persons and if, as is likely, the result we have reached in the conscientious exercise of our traditional judicial function substantially increases their diligence in honoring that obligation then the public interest will indeed be very well served.
Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 10 (1959).
¶43 Congress enacted a similar prohibition on dram shops for the District of Columbia. The District of Columbia Court of Appeals, in Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., explained:
Congress in 1934 clearly was aware of the public safety hazards associated with alcohol abuse and incorporated safety concerns as an integral part of its comprehensive scheme to regulate the sale and use of alcohol in the nation‘s capitol. Senator Sheppard, who supported Prohibition, and opposed the legislation regulating the reintroduction of alcohol in the District of Columbia, was certain that among the many evils associated with the substance was that it “multiplies the hazards on our streets and highways, imperiling the lives of motorists, pedestrians, and little children.” 78 Cong.Rec. 698 (1934).... Congress understood that it was regulating a dangerous substance, and that the potential for injury and accident associated with intoxication is amplified when the intoxicated person is placed at the controls of a mechanical device, particularly one involved in transportation. When, as alleged in this case, an intoxicated customer who has been served liquor in violation of the Alcoholic Beverage Control Act crashes his car shortly after departing from defendant‘s establishment, injuring third parties, we believe that a harm has occurred which § 25-121(b) was designed to prevent and that the doctrine of negligence per se should apply. Our view is not mitigated by the proposition that public safety may have been only a partial purpose of the legislation.... Liquor control laws frequently have multiple purposes ... and our courts have held that “a liberal and reasonable construction shall be given these statutes in view of their remedial objects and purposes so as to effect the[se purposes]....”
534 A.2d 1268, 1275-1276 (D.C.1987), appeal after remand and reversed and remanded on other grounds by, 699 A.2d 348 (D.C.1997) (footnote noting that since 1934 the evidence has mounted of the hazards associated with drinking and driving omitted); Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (D.C. 2000).
¶44 Congress enacted a regulatory scheme for the District of Columbia much like the regulatory schemes enacted by state legislatures. Congress and state legislatures prohibited commercial vendors from serving intoxicating beverages to intoxicated persons. Today, under congressional regulation as well as under state regulation, barrooms and taverns have civil liability for damages caused by knowingly furnishing alcoholic beverages to noticeably intoxicated persons. As the New Jersey Court explained in Rappaport v. Nichols, dram shop liability strengthens the statutes regulating alcoholic beverages and, as enunciated in Brigance, also strengthens the underlying public policy to protect the welfare, health, peace, temperance, and safety of the people of the state.
¶45 In summary, the Oklahoma Alcoholic Beverage Control Act is a comprehensive statutory scheme to regulate alcoholic beverages within this state enacted by the Legislature through the exercise of its police power and taxation power. The Act provides for enforcement through the exercise of the executive power of specific state agencies and through the exercise of the judicial power over cognizable controversies, criminal and civil. Accordingly, the Oklahoma Alcoholic Beverage Act subjects holders of licenses
VIII. Waiver of Tribal Sovereign Immunity
¶46 If the Tribe has any immunity from judicial enforcement of the alcoholic beverage laws, which we have found that it does not as discussed above, then we consider whether the Tribe has waived its tribal sovereign immunity. The doctrine of tribal sovereign immunity may extend to tribal enterprises sometimes termed corporations.19
¶47 Waiver for a federally-recognized tribe to be sued must be unequivocal. C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418, 121 S.Ct. 1589, 1594, 149 L.Ed.2d 623 (2001). However, an effective waiver does not require specific or magic words. 532 U.S. at 422, 121 S.Ct. at 1595-1596. In the licensing application, Thunderbird casino agreed to be bound by the laws of the State of Oklahoma. The Tribe concedes that the State can regulate the alcoholic beverage transactions at Thunderbird casino pursuant to the state‘s police power but it argues that the state‘s police power cannot be delegated to a private individual for regulating its liquor laws.
¶48 Under
¶49 One of the laws to which Thunderbird casino agreed to be bound is
¶50 Another statutory enforcement mechanism is criminal prosecution. Section 538(G) makes it a felony to knowingly sell,
furnish, or give an alcoholic beverage to an intoxicated person. Other provisions of § 538 attach criminal penalties for violations of other state liquor laws. It follows from the Tribe‘s position that Thunderbird casino agreed to be subject to the ABLE Commission‘s enforcement of Oklahoma‘s liquor laws because such enforcement mechanisms are found in the Act. They have also agreed to be subject to the criminal penalties found in the Act. By agreeing to be bound by the Act‘s enforcement mechanisms, Thunderbird casino waived any objection to the subject matter jurisdiction of the state courts since the criminal penalties are enforceable only in Oklahoma state courts under § 538.
¶51 Civil action for damages is yet another means to assure compliance with § 537(A)(2). As discussed earlier, Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, ruled that a commercial vendor could be held liable in a private cause of action for failing to exercise reasonable care in selling or furnishing alcoholic beverages to an intoxicated person who subsequently injures a third party. Brigance is a part of Oklahoma‘s law, although the Tribe argued that dram shop liability is not statutory and not a part of the State‘s police power. We reject this argument for two reasons. First, Thunderbird casino did not agree to limited enforcement of the alcoholic beverage statutes. Second, a common law negligence action based on violation of Oklahoma‘s alcoholic beverage statutes is no less a part of this state‘s regulation of alcoholic beverages for the health, welfare and safety of the public than is license revocation with appeal to the state district court.
¶52 As the Tribe acknowledges, Thunderbird casino‘s agreement to be bound by state law constitutes a waiver of any immunity to the subject matter jurisdiction of the Oklahoma courts when the state initiates a proceeding alleging that Thunderbird casino violated the alcoholic beverage statutes. Thunderbird casino‘s subjugation of tribal immunity was not limited to enforcement by the state through the regulatory processes and criminal processes. There is nothing in Thunderbird casino‘s agreement to be bound by the laws of this state which limits the state‘s enforcement mechanisms, and we will not find a limitation that is not there.
¶53 In 1986, Brigance recognized dram shop liability sounding in tort for the negligent serving of alcoholic beverages to an intoxicated person. Since 1986, the alcoholic beverage statutes have been amended several times, particularly sections 537, 528, and 538.21 None of the amendments undermine Brigance. The common law negligence remedy to recover for dram shop liability is no less a part of Oklahoma‘s law than is the administrative and criminal adjudicatory processes established by the Legislature to assure the public safety under the Act. We find that the distinction placed by the Tribe on Oklahoma‘s methods of promoting its public policies is unconvincing. Thunderbird casino agreed to be bound by the laws of this state and thereby waived any immunity it may have had to suit in the Oklahoma courts including a common law negligence action for dram shop liability.
IX. Conclusion
¶54 Rice v. Rehner concluded that there is no tradition of tribal sovereign immunity in the area of alcoholic beverage regulation and that Congress, in
¶55 The Tribe, doing business under the name of Thunderbird Entertainment Center, Inc., owns and operates a casino. It chose to also become an alcohol vendor at its casino. It applied for and obtained a state license to sell liquor by the drink at the casino under the laws of the State of Oklahoma. Okla-
OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISMISSAL ORDER OF THE DISTRICT COURT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS.
WINCHESTER, C.J., and HARGRAVE, OPALA, TAYLOR, COLBERT, and REIF, JJ., concur.
WATT, J., (by separate writing) concurs specially.
EDMONDSON, V.C.J., and KAUGER, J., (by separate writing) dissent.
WATT, J. concurring specially.
¶1 I express no opinion as to whether liability may ultimately lie against the Tribe under the facts presented. Nevertheless, I agree with the majority‘s determination that the Tribe effectively waived any right to the shield of sovereign immunity by the casino‘s agreement to be bound by state law. I also recognize that, generally, the issue of tribal sovereign immunity is established by federal law. In reaching the decision today, this Court has considered federal precedent. However, once the casino waived its sovereign immunity by agreeing to be bound by Oklahoma law, state law became the measure by which the cause was to be governed. Therefore, the determination that the Tribe is subject to suit in Oklahoma courts rests squarely within Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision.1
KAUGER, J., with whom EDMONDSON, V.C.J., joins dissenting.
¶1 Someday, the determinative issue will be whether sovereign immunity bars a private civil dram shop action brought against a Tribe and its gaming enterprise by a person injured in an automobile accident after being struck by a driver who allegedly became intoxicated at the tribal casino. Answering the question at this stage in the litigation appears premature because the only evidence in the record is that the driver of the automobile which struck the plaintiff was not at the casino prior to the accident.
¶2 The majority ignores the holding in Kiowa Tribe of Okla. v. Mfg. Techs., 523 U.S. 751, 754-55, 760, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), that there is difference between the right to demand compliance with state law and the means available to enforce it. Nevertheless, because it feels compelled to issue an advisory opinion assuming that the Tribe or gaming enterprise is involved in this fact scenario and that it implicitly waived sovereign immunity,1 a less complicated anal-
Notes
FACTS
¶3 On April 30, 2004, the plaintiff/appellant Shatona Bittle (Bittle) was driving westbound on State Highway 9 in Pottawatomie County, Oklahoma. The defendant/appellant Valentine Bahe (Bahe), driving a vehicle owned by his passenger Val Tsosie (Tsosie), was traveling eastbound on Highway 9 when he crossed the center line and collided with Bittle. Bahe died at the scene of the collision and Bittle suffered multiple injuries.
¶4 On December 7, 2005, Bittle sued Bahe, Tsosie, and the Absentee Shawnee Tribe, Inc., doing business as Thunderbird Entertainment Center and Thunderbird Wild West Casino (gaming enterprise/casino) for personal injuries resulting from the accident. She alleged that employees of either the Tribe and/or the gaming enterprise served an excessive amount of alcohol to Bahe in violation of state liquor laws,
¶5 On January 3, 2006, the Tribe filed a Special Entry of Appearance, a Motion to Quash Summons, and Motion to Dismiss. The Tribe argued that: 1) the Absentee Shawnee Tribe is not a corporate entity,3 but rather a sovereign nation not subject to suit in Oklahoma State Courts absent Congressional authorization or an express waiver of sovereign immunity; 2) the gaming enterprises were not properly-named defendants; and 3) the plaintiff, on December 8, 2005, filed an identical suit in tribal court and could not proceed simultaneously in both courts. Before the trial court held a hearing, the parties agreed that the plaintiff could amend her petition, and an amended petition was filed on February 2, 2006, re-naming the Tribe and Thunderbird Entertainment Center as defendants.4
¶6 After a hearing on the matter, the trial court on August 1, 2006, entered an order of dismissal, finding that the case should be dismissed because the court lacked subject matter jurisdiction over the controversy. Concerning the gaming enterprise, the court determined that it had not clearly or expressly waived sovereign immunity by applying for and accepting a state license to sell and distribute alcoholic beverages in accordance
¶7 On September 7, 2006, the trial court amended the order to provide that it was a final order and that there was no just reason for delay for its immediate appeal. Bittle appealed and the Court of Civil Appeals affirmed, holding that the Tribe and the gaming enterprise were immune from suit. Bittle filed a petition for certiorari on April 11, 2007, and we granted certiorari on June 4, 2007.
¶8 NEITHER CONGRESS NOR THE UNITED STATES SUPREME COURT HAS CLEARLY DETERMINED THAT THE DOCTRINE OF SOVEREIGN IMMUNITY HAS BEEN WAIVED OR IS INAPPLICABLE TO PRIVATE DRAM SHOP ACTIONS.
¶9 Neither party disputes the State‘s ability to regulate the sale of alcoholic beverages by either a tribe or gaming enterprise. Both parties agree that Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), is dispositive of this issue, but they differ strongly on its application. The Tribe argues that: 1) a private cause of action for the illegal sale of alcohol to an already intoxicated person does not exist against a Tribe or gaming enterprise; and 2) even if it did exist,
sovereign immunity precludes state court jurisdiction over the action. Bittle contends that: 1) dram shop liability exists and is applicable to the Tribe and gaming enterprise; and 2) sovereign immunity is inapplicable altogether, but even if it were not, both the Tribe and gaming enterprise waived it.
a. Dram Shop Liability.
¶10 Sovereign immunity notwithstanding, this Court has not expressly determined that a dram shop action may be maintained against a tribe or gaming enterprise. However, in Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, ¶¶ 15-17, 725 P.2d 300, we abrogated the common law rule that a tavern owner could not be held liable for furnishing alcoholic beverages to one who, after becoming intoxicated, injured either himself or another.
¶11 Brigance determined that a commercial vendor for on-the-premises consumption is under a duty, imposed both by statute8 and common law principles, to exercise reasonable care in selling or furnishing alcoholic beverages to persons who by previous intoxication may lack full capacity or self-control to operate a motor vehicle and who, therefore, could subsequently injure a third party. The injured party may summon a commercial vendor who breaches that duty into court in a common law negligence action to recover for injury caused by breach of that duty. Brigance, supra at ¶ 17.
¶12 We have since expanded Brigance.9 In Tomlinson v. Love‘s Country Stores, Inc., 1993 OK 83, ¶ 18, 854 P.2d 910, a convenience
¶13 The next year in Mansfield v. Circle K Corp., 1994 OK 80, ¶ 13, 877 P.2d 1130, after a minor illegally purchased beer at a convenience store, the minor got drunk and injured himself by jumping into a shallow swimming pool. The Court held that: 1) a commercial vendor is prohibited by statute from selling beer to minors; 2) the vendor‘s statutory duty not to sell beer to a minor is not limited to on-the-premises consumption; and 3) if the minor is injured after consuming the beer purchased from the vendor, the minor may have a cause of action against the vendor. In Busby v. Quail Creek Golf & Country Club, 1994 OK 63, ¶ 12, 885 P.2d 1326, we extended Mansfield to on-the-premises consumption when a minor was injured when she fell off a balcony at a country club party after she had been served there.
¶14 Finally, in Copeland v. Tela Corp., 1999 OK 81, ¶ 10, 996 P.2d 931, the Court determined that a pedestrian struck by an intoxicated driver who was a customer of a bar where the customer had been drinking alcoholic beverages could bring an negligence action against the commercial vendor. Neither the Tribe nor the casino offer a persuasive reason as to why Brigance and its progeny would not extend to them when either is acting as a commercial vendor providing alcohol to patrons.10 However, the question remains as to whether sovereign immunity would preclude an action from being brought in state district court.
b. The State may regulate the sale of alcoholic beverages by either a tribe or gaming enterprise, but tribal sovereign immunity, whether asserted by a tribe or gaming enterprise, precludes a private dram shop action from being brought in state court.
¶15 Pursuant to
(a) Whoever sells, gives away, disposes of, exchanges, or barters any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, except for scientific, sacramental, medicinal or mechanical purposes, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and whoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined under this title or imprisoned not more than one year, or both; and, for each subsequent offense, be fined under this title or imprisoned not more than five
years, or both....12
An exception to criminal liability is found in
The provisions of sections 1154, 1156, 3113, 3488, and 3669, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior and published in the Federal Register.
In Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), the United States Supreme Court addressed the meaning of
¶16 Rice involved a tribal member and federally-licensed Indian trader who operated a general store on the Pala Reservation in San Diego, California. The Pala Tribe had adopted an ordinance permitting the sale of liquor on the reservation pursuant to
¶17 The United State Supreme Court determined that
¶18 Admittedly, the Supreme Court utilized broad language when discussing a state‘s interest in regulating and licensing liquor:
Rehner‘s distribution of liquor has a significant impact beyond the limits of the Pala Reservation. The State has an unquestionable interest in the liquor traffic that occurs within it borders, and this interest
is independent of the authority conferred on the States by the Twenty-first Amendment. (citation omitted). Liquor sold by Rehner to other Pala tribal members or to non-members can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the State does not wish to possess alcoholic beverages, or to possess them through a distribution network over which the State has no control. This particular “spillover” effect is qualitatively different from any “spillover” effects of income taxes or taxes on cigarettes. “A State‘s regulatory interest will be particularly substantial if the State can points to off-reservation effects that necessitate State intervention.” (citation omitted.).
There can be no doubt that Congress has divested the Indians of any inherent power to regulate in this area. In the area of liquor regulation, we find no “congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.” (citation omitted). With respect to the regulation of liquor transactions, as opposed to the state income taxation involved in McClanahan, Indians cannot be said to “possess the usual accouterments of tribal self-government.” (citation omitted).... Because we find that there is no tradition of sovereign immunity that favors the Indians in this respect, and because we must consider that the activity in which Rehner seeks to engage potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case.
Rice v. Rehner, 463 U.S. 713, 724, 103 S.Ct. 3291, 3298, 77 L.Ed.2d 961.
While this language is very broad, it was written in the context of the regulation and licensing of liquor, not in the context of whether sovereign immunity could extend to a private party lawsuit against a tribe or gaming enterprise. It 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.
¶19 I am not alone in my concern. Four appellate courts have addressed the precise issue we are faced with today and have unanimously concluded that Rice v. Rehner does not extend to private dram shop actions. In Foxworthy v. Puyallup Tribe of Indians Association, 141 Wash.App. 221, 169 P.3d 53 (2007), the Washington Court of Appeals addressed whether the state court had jurisdiction over an action brought by an injured motorist who was involved in a collision with an intoxicated driver. The driver had been served alcohol by the Emerald Queen Casino, owned and operated by the Puyallup Tribe on tribal land.
¶20 The injured driver sued the Tribe alleging dram shop liability. The Tribe filed a motion to dismiss, asserting lack of subject matter jurisdiction because of sovereign immunity from the private lawsuit in state court. The trial court granted the motion and the injured driver appealed. The driver argued that Congress, by enacting
¶21 Foxworthy discussed Rice v. Rehner and concluded that the state could regulate alcohol under
Moreover, Foxworthy disregards Rehner‘s narrow holding, which by its own language
limits waiver of tribal sovereignty to the states’ regulation of alcohol licensing and distribution. Rehner does not expand such waiver to private lawsuits. We conclude, therefore, that the narrow waiver of tribal sovereignty immunity in Rehner does not apply here to establish waiver of tribal sovereign immunity from private tort lawsuits in state court based on Dram Shop violations.
Foxworthy v. Puyallup, supra at ¶ 25.
¶22 Regarding arguments that immunity was inconsistent with public policy or unfair because the plaintiff‘s ability to recover damages depends upon the fortuitous circumstance that the intoxicated driver was served from a tribal casino instead of a non-Indian establishment off of the reservation, the Foxworthy Court said:
Regardless of whether the current state of dram shop case law tolerates inequities, to date, Congress has not implemented a change or acted to abrogate tribal sovereign immunity in private dram-shop-related tort actions such as Foxworthy‘s. We hold, therefore, that tribal sovereign immunity remains intact and that the Kiowa Tribe holding supports, rather than undermines, the trial court‘s dismissal of Foxworthy‘s complaint.
Foxworthy v. Puyallup, supra at ¶ 37.
¶23 Appellate Courts in Arizona and Texas have reached the same conclusion in Filer v. Tohono O‘Odham Nation Gaming, 212 Ariz. 167, 129 P.3d 78 (App.2006), review denied Sept. 26, 2006, and Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843 (Tex.App.-El Paso 1997), review denied June 5, 1998. In Filer, an injured motorist sued a tribal casino that had served excessive amounts of alcohol to a motorist who then caused an accident that injured Filer and killed his wife. In affirming the trial court‘s dismissal of the Filers’ negligence action against the tribe that owned and ran the casino, the court determined that: 1)
¶24 Similarly, in Holguin, the victim‘s family brought a private dram shop action against a tribe that had served alcohol to an intoxicated driver who left the tribal casino and later collided with and killed Hoguin. The Texas Court recognized that under Rice v. Rehner, the tribe was subject to state alcohol licensing and permitting requirements, but noted the difference between state regulation of alcohol and a state‘s ability to collect monetary damages. The court held that waiver of sovereign immunity for one did not indicate a waiver for the other. Finally, the court determined that
¶25 Finally, our own Court of Civil Appeals in this cause reached the same result as the other appellate courts. It recognized that
¶26 While I realize that these appellate court opinions are not binding or precedential in our Court, I find their reasoning more persuasive than the majority opinion because they follow the traditional legal analysis of the United States Supreme Court. The Supreme Court may choose to extend Rice. It may determine that Rice allows such an action, but it will do so by following precedent within the framework of its procedure rather than by ignoring it. The long line of cases from the United States Supreme Court all stand on the fundamental foundation that for Congress to waive sovereign immunity it must be “unequivocally” express for that purpose, and for a tribe to relinquish its immunity, a tribe‘s waiver must be express, in writing and “clear.” C & L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418, 121 S.Ct. 1589, 1594, 149 L.E.2d 623 (2001); Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Business has learned this lesson, sometimes painfully, that the absence of the magic words renders contracts unenforceable, while the inclusion of the magic sentence imposes legal responsibility.
¶27 Consequently, I would hold that Congress did not clearly and expressly abrogate tribal immunity from private, state-court, dram-shop litigation when it required tribal compliance with state liquor laws, nor has the United States Supreme Court made such a determination. Until Congress or the United States Supreme Court makes a change in the current law or until the State of Oklahoma begins conditioning the grant-ing of a liquor license to a tribe or gaming enterprise on an express waiver of sovereign immunity for private dram shop actions, much like people have learned to do in private contracts, the Tribe and gaming enterprise are entitled to assert sovereign immunity.
c. Waiver of Sovereign Immunity May Not be Implied.
¶28 The majority concludes that sovereign immunity is inapplicable to these proceed-
¶29 The majority acknowledges that waiver of sovereign immunity for a federally recognized Tribe to be sued must be unequivocal.14 Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.15 Thus, suits against Indian tribes are barred absent a clear waiver by the tribe or congressional abrogation.16 A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.17
¶30 In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), the United States Supreme Court noted that an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. Kiowa involved a tribe which, through a promissory note, agreed to pay Manufacturing Technologies $285,000 plus interest. The note contained no waiver of immunity. When the tribe defaulted, Manufacturing Technologies sued in state court and the United States Supreme
¶31 In Kiowa, the Court noted that to date, it had sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred. Nor had it drawn a distinction between governmental and commercial activities of a tribe. When asked to confine sovereign immunity to reservations or to noncommercial activities, the Court declined to draw such a distinction and deferred the role to Congress through explicit legislation. Because Congress had not abrogated immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation, and because the tribe did not waive it, immunity governed the cause.
¶32 The majority opinion does not discuss previous ways in which a waiver has been determined to be “express” by a tribe. Nor does it cite to any authority in which a tribe has been held to have waived immunity simply by applying for and receiving a required state license of any kind. Yet, the majority determines that because this Tribe authorized a tribal corporation to apply for an alcoholic beverage license, both the Tribe and the gaming enterprise implicitly waived immunity from tort liability based on an alleged violation of the regulations. This reasoning is inconsistent with Kiowa‘s determination that a waiver of immunity must be through express Congressional legislation or done expressly by a tribe.
¶33 Federal Courts have rejected the argument that a tribe, by agreeing to comply with federal law, could somehow have implicitly waived sovereign immunity. For instance, in Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581, 584 (8th Cir.1998), the plaintiff alleged that the tribe fired him on the basis of race in violation of federal civil rights statutes. The tribe asserted sovereign immunity. The plaintiff argued that because the tribe‘s housing authority received federal financial assistance from the Department of Housing and Urban Development and agreed to comply with federal civil rights laws, it waived sovereign immunity. The Court rejected this argument hold-ing that the taking of federal funds, even when accompanied by an agreement not to discriminate in violation of federal laws, does not necessarily effect a waiver of tribal sovereign immunity for suits brought under those laws.
¶34 The Dillon Court noted that there was no provision in the regulations which mandated a waiver of sovereign immunity when a tribal housing authority entered into an agreement with HUD. Because the Authority did not explicitly waive its sovereign immunity, the court lacked jurisdiction to hear the dispute.
¶35 The same reasoning was applied by the 11th Circuit in Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1288 (11th Cir. 2001), when it determined that even if a tribal Chief did have authority to waive immunity under tribal law, there was no evidence he did so. The Chief entered into contracts for federal financial assistance in which he promised the tribe would not discriminate in violation of federal civil rights laws. The court held this was merely a promise not to discriminate, but it in no way constituted an express and unequivocal waiver of sovereign immunity and consent to be sued in federal court. There was no voluntary waiver of immunity.
¶36 The same rationale seems fairly applicable to a tribe or tribal enterprise agreeing to comply with State law when it applies for and receives a liquor license without a state mandate of a waiver of sovereign immunity for private party tort claims as a condition for the license. Public policy can be protected without a tortured construction of the law. If tribes or their gaming enterprises choose to do business in the form of alcohol sales, they can sign an express waiver of immunity. There is no “express” waiver merely by a tribe‘s authorization of the sale of alcohol on tribal land pursuant to federal law or its gaming enterprise‘s agreement to comply with state law when it obtains its liquor license. Accepting the license is nothing more than a promise to comply with state liquor laws, not a voluntary waiver of sovereign immunity for private party lawsuits. The majority‘s conclusion is inconsistent with
CONCLUSION
¶37 While Congress and the United States Supreme Court have determined that a state may regulate and license alcoholic beverages on Indian land, neither has addressed the waiver of tribal sovereignty immunity from private dramshop actions in a state court. Accordingly, I must dissent until a change in the current law is made or until the State of Oklahoma begins conditioning the granting of a liquor license to a tribe or gaming enterprise on an express waiver of sovereign immunity for private dram shop actions much like parties have learned to do in private contracts.