Bittle v. Bahe

2008 OK 10, 192 P.3d 810, 2008 Okla. LEXIS 10, 2008 WL 314902

• Court: Supreme Court of Oklahoma
• Decided: February 5, 2008
• Docket: 103,716
• Status: Published

Opinions

TAYLOR, J.

11 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

T2 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.

13 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 Tso-sie owned the vehicle driven by Bahe, that Tsosie and Babe 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.

T4 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 easino. 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.

15 The district court found that neither the Tribe's ordinanee 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 0.8.2001, § 537 against the Tribe or Thunderbird casino and dismissed the action against the Tribe and Thunderbird casino. Plaintiff appealed.

T6 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.

T7 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

1 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.

T9 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 enforeement 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 8) the activity in which Reh-ner wanted to engage might have substantial impact beyond the reservation.

110 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 0.$.2001, § 587(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 § 587(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 law ⁵ 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.

I 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.

1 18 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 Tribe submits, without argument, that congressional authorization of suit "is not at issue." The arguments in the trial court, however, unmistakably raise the question: Did Congress authorize the exercise of state court jurisdiction over Indians and Indian tribes when it enacted 18 U.S.C. § 11617

III. The Standard of Review

T14 This appeal from a summary disposition order is treated as an appeal from summary judgment. Okla.Sup.Ct.R. 1.36, 12 O.S.2001, ch. 15, app. 1. A summary judgment is reviewed by a de novo standard. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In deciding whether the state district court may exercise jurisdiction over this controversy, we address two basic issues: 1) whether 18 U.S.C. § 1161 authorizes the state courts to exercise jurisdiction over disputes alleging the Tribe's alcoholic beverage transactions did not conform to state law, and 2) if not, whether the Tribe's corporate economic enterprise waived tribal immunity when it secured an Oklahoma license to serve liquor by the drink at Thunderbird casino. These issues present questions of law to be reviewed de novo, without deference to the lower courts. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 P.2d 1081.

IV. The Tradition of Tribal Sovereign Immunity in Rice v. Rehner

115 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 19%" 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, 25 U.S.C. §§ 461-476; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973). The 1934 Indian Reorganization Act authorized Indian tribes to organize. It was designed to encourage tribal enterprises to enter the commercial world on equal footing with other businesses. 411 U.S. at 157, 93 S.Ct. at 1275. Congress excluded Oklahoma Indians from the chartering provisions of the Indian Reorganization Act but granted them the rights and privileges allowed other recognized Indian tribes under the Act.⁷

116 In view of the obligation of this Nation to protect the interests of the dependent Indian people, ambiguities in applicable treaties, agreements, or statutes are construed in favor of the Indian people. Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943). In settling the tension between the right of the quasi-sovereign Indian tribes to govern their members in Indian country and the right of the sovereign states to govern all residents within their borders where Congress has not expressly authorized the state action, the tradition of tribal sovereignty is a backdrop for preemption analysis but not the determinative factor, McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), and the doctrine of tribal sovereign immunity tests the state action for interference with the right of the self-governance but is not an absolute rule. Williams v. Lege, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). In preemption analysis, the federal/tribal interests and the state interests are balanced within the specific context of the controversy to determine if federal law operates to preempt state law. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). The tribal interests are confined to the Indian tribe's internal affairs and tribal self-government consistent with the tribe's dependent status because an Indian tribe's retained inherent sovereign power is no greater than the tribe's dependent status and does not extend to activities involving non-members absent express congressional delegation of power. Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).

1 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 U.S.C. § 1161.⁸ Rehner asked California for an exemption from its license requirement to sell liquor for off-premises consumption. California denied the request and Rehner sought declaratory judgment in the federal district court. The district court decided that § 1161 required Rehner to have the state license and dismissed Rehner's petition.

118 In deciding whether sales of liquor inside the reservation were subject to California regulation under § 1161, Rice v. Reh-mer recognized that federal statutes have been consistently construed to reserve the Indian tribe's right to self-government and also recognized the recent trend toward a preemption analysis to determine whether a state could regulate activity within an Indian reservation. With obedience to the Indian law jurisprudence from Worcester v. Georgia in 1832 to Montana v. United States in 1981, Rice v. Rehner approached the preemption analysis upon the following precepts: 1) the goal of preemption analysis is to determine the congressional plan; 2) in preemption analysis, the tradition of tribal sovereignty is a backdrop against which the federal statute must be read; 3) tribal sovereignty, as a backdrop, informs the preemption analysis but does not determine preemption; 4) in preemption analysis, the role of tribal sovereignty varies with the traditions that accommodate the interests of the tribe and the federal government on the one hand and the state on the other; 5) if tradition has recognized a tribal sovereign immunity in favor of the Indians, then state law will be preempted unless Congress expressly provides otherwise; and 6) if there is no tradition of tribal sovereign immunity in favor of the Indians, preemption analysis may accord less weight to the backdrop of tribal sovereignty.

T19 Rice v. Rehner found that tradition had not recognized an inherent sovereign right of Indians or Indian tribes to regulate liquor. Rather, the tradition, since early colonial times, had been a complete prohibition against liquor in Indian country which is still in place subject to suspension conditioned on compliance with state law and tribal ordinance. Rice v. Rehner recognized the state and federal concurrent jurisdiction over alcoholic beverages in Indian country and no tradition of tribal sovereignty with respect to alcoholic beverages:

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).

T20 Turning to the federal statute, 18 U.S.C. § 1161, Rice v. Rehner reviewed the legislative history and found congressional intent 1) to remove the discriminatory federal prohibition against intoxicating liquor in Indian country, 2) to have state laws of their own foree govern tribal liquor transactions, and 3) to require Indians to comply with state liquor laws in every regard. 463 U.S. at 726-727, 103 S.Ct. at 3299-3300. Rice v. Rehner mentioned that in official and unofficial reports to the House of Representatives, the Department of Interior stated that the "federal prohibition would be lifted only if liquor 'transactions are in conformity with the ordinances of the tribe concerned and are not contrary to State law.'" 463 U.S. at 727, 103 S.Ct. at 3300. Congress, however, did not use the Department's language "not contrary to state law," instead Congress used the language "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." Rice v. Rehner referred to a 1954 administrative opinion of the Solicitor of the Interior assuming that § 1161 would result in state prosecutions and noted the Department of Interior changed its opinion in 1971. 463 U.S. at 730, n. 13, 103 S.Ct. at 3301, n. 13. The Rice v. Rehner dissent relied on the 1971 opinion that the intent of § 1161 was merely to require the use of state liquor laws as the standard of measurement to define lawful and unlawful activity on the reservation. Rejecting the 1971 opinion, Rice v. Rehner said:

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.

468 U.S. at 727, 103 S.Ct. at 3300-3301.

¶21 In light of the clear congressional intent, Rice v. Rehner refused to read § 1161 in para materia with Public Law 280, 28 U.S.C. § 1860(a).⁹ Based on the language of the statute itself and its legislative history, Rice v. Rehner concluded that Congress authorized, rather than preempted, state regulation over Indian liquor transactions.

We conclude that § 1161 was intended to remove federal discrimination that resulted from the imposition of liquor prohibition on Native Americans. Congress was well aware that the Indians never enjoyed a tradition of tribal self-government insofar as liquor transactions were concerned. Congress was also aware that the states exercised concurrent authority insofar as prohibiting liquor transactions was concerned. By enacting § 1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be ereated by the absence of the discriminatory federal prohibition. Congress did not intend to make tribal members "super citizens" who could trade in a traditionally regulated substance free from all but self-imposed regulations. See [Rehner v. Rice] 678 F.2d [1340] at 1352 [ (C.A.9 1982) ] (Goodwin, J., dissenting). Rather, we believe that in enacting § 1161, Congress intended to recognize that Native Americans are not "weak and defenseless," and are capable of making personal decisions about alcohol consumption without special assistance from the Federal Government. Application of the state licensing scheme does not "impair a right granted or reserved by federal law." Kake Village, supra, 369 U.S., at 75, 82 S.Ct., at 571. On the contrary, such application of state law is "specifically authorized by ... Congress ... and [does] not interfere with federal poli-cles concerning the reservations." Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 687, n. 3, 85 S.Ct. 1242, 1243, n. 3, 14 L.Ed.2d 165 (1965).

468 U.S. at 733-734, 108 S.Ct. at 3303-3304(footnote omitted).

122 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 lHieense 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.

123 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.

124 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 (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 their authoritative value in this regard. The majority opinion in Manufacturing Technologies discredited Turner as authority for the doctrine of tribal sovereign immunity, while the dissenting opinion discredited U.S.F. & G. as authority for the doctrine.

125 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 cireumstances, 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 Martines, 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. 25 U.S.C. § 1302(8). Martinez found that tribal forums were available to vindicate Indian civil rights and that subjecting a dispute that arose on the reservation among reservation Indians to a forum other than the one they had established for themselves would interfere with tribal autonomy and self-government. Considering the Indian Civil Rights Act against a backdrop of tribal sovereignty, Martinez refused to find that the Indian Civil Rights Act implied a federal remedy other than by writ of habeas corpus.

127 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.

1128 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, 386, 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 42 U.S.C. § 1983 claim against state officers Nevada v. Hicks held that the tribal court did not have jurisdiction to adjudicate tort claims arising out of the state officials' execution of process on reservation land searching for evidence of an off-reservation crime. In so holding, Nevada v. Hicks recognized that there is an historical and constitutional assumption of state court jurisdiction concurrent with the federal courts under our system of dual sovereignty, that state court jurisdiction is general and plenary, and that tribal court jurisdiction cannot be general jurisdiction because a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction.

129 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

131 While Rice v. Rehner rejected the notion of tribal sovereignty to regulate aleo-holic beverages, Manufacturing Technologies mechanically applied the notion of tribal sovereignty to bar state court jurisdiction over contracts. In deciding whether 18 U.S.C. § 1161¹¹ permits a private person to maintain a suit in state court alleging dram shop liability against an Indian tribe, we must avoid doing violence to Rice v. Rehner and Manufacturing Technologies. We must decide whether the words "laws of the State"¹² in 18 U.S.C. § 1161 authorize the exercise of state court jurisdiction over the Tribe for alleged violation of the state aleo-holic beverage statutes.

132 Undoubtedly, § 1161 decriminalized liquor transactions in Indian country and opened Indian country to state laws governing alcoholic beverages. When Congress enacted § 1161, state law governed activities involving alcoholic beverages. Craig v. Boren, 429 U.S. 190, 205, 97 S.Ct. 451, 461, 50 L.Ed.2d 397 (1976). Early on, Congress left liquor regulation to the states¹³ and the United States Supreme Court upheld state court remedies provided to third parties aggrieved by tavern keepers furnishing alcoholic beverages. Eiger v. Garrity, 246 U.S. 97, 38 S.Ct. 298, 62 L.Ed. 596 (1918). Eiger v. Garrity upheld an Illinois statute that subjected the premises of a dram shop to a lien for damages recovered by the wife against the tavern owner who furnished the husband intoxicating liquor. In so ruling, Eiger v. Garrity said:

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.

$83 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).

134 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 § 1161, it was well aware of the breadth of the state's authority over alcoholic beverages, which involved the states' adjudicatory authority as well as its legislative authority.

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 power ¹⁵ and the Tribe cites no authority otherwise. The Tribe acknowledged that § 1161 might allow the state to bring an action in state court against the Tribe to enforce the state liquor laws, even though it urged a private party cannot. With this acknowledgment, the Tribe tacitly concedes that Congress intended the Tribe to be subject to state court jurisdiction when it enacted § 1161.

1 36 Rice v. Rehner read § 1161 as a delegation of authority over aleoholic beverages in Indian country to the states to exercise their police power to protect the congressional decision in favor of the states and as a delegation of congressional licensing authority to the Indian tribes. 463 U.S. at 731, 103 S.Ct. at 3301-3302. Rice v. Rehner rejected an argument that United States v. Mazurie, 419 U.S. 544, 547-548, 95 S.Ct. 710, 713, 42 L.Ed.2d 706 (1975), recognized Indian tribes possessed independent authority over liquor transactions and state laws are generally not applicable to Indians in Indian country unless expressly provided by Congress. Rice v. Rehner said "because of the lack of a tradition of self-government in the area of liquor regulation it is not necessary that Congress indicate expressly that the state has jurisdiction...." 463 U.S. at 731, 103 S.Ct. at 3302.

187 Consistent with Rice v. Rehner, we reject the Tribe's argument that § 1161 does not authorize the state courts to exercise jurisdiction over the Tribe because the statute does not expressly state, in plain and precise words, that an Indian tribe shall be subject to state court jurisdiction. The words "laws of the State" in § 1161 are comprehensive and under Rice v. Rehner, include state authority over aleoholic beverages whether it is legislative, executive, or adjudicative in nature.

188 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 exeluded from the words "laws of the State" in § 1161.

VII The Oklahoma Alcoholic Beverage Control Act and Dram Shop Liability

139 The Oklahoma Alcoholic Beverage Control Act, 37 O.S.2001, §§ 501, et. seq., is a comprehensive statutory scheme to regulate alcoholic beverages "for the protection of the welfare, health, peace, temperance and safety of the people of the state." 37 O.S.2001, § 503(A). The regulatory scheme requires that any person must obtain a license from the Alcoholic Beverage Law Enforcement Commission (ABLE Commission) before engaging in virtually any aspect of the alcoholic beverage industry, including brewing, distilling, importing, transporting, delivering, storing, selling or furnishing alcoholic beverages in this state.¹⁶ 37 O.S.2001, § 518; Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, 1988 OK 117, ¶ 2, 764 P.2d 172, 175. The regulatory scheme provides the right to an administrative hearing, 37 O.S.2001, § 530, with appeal to the state courts, id. at § 531, before a license may be denied, suspended or revoked, id. at § 528. The regulatory scheme specifies acts that a licensee may do, id. at § 521; specifies acts that a licensee may not do,¹⁷ id. at § 587; and declares various prohibited acts to be crimes and specifies criminal penalties.¹⁸ Id. at § 588. The regulatory scheme also imposes an excise tax on aleoholic beverages, id. at § 558, as a direct tax on the ultimate retail consumer, id. at § 562, and a gross receipts tax directly on holders of mixed beverage licenses. Id. at § 576.

¶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 § 537(A)(2), a violation of which is declared to be a felony subject to monetary fine between $500.00 and $1,000.00 and/or imprisonment for no longer than one year. Id. at § 588(G). Extant jurisprudence also holds that § 587(A)(2) imposes a duty upon a license holder to refrain from furnishing alcoholic beverages to intoxicated persons and that a license holder who furnishes alcoholic beverages to an intoxicated person may be summoned into state district court in a common law negligence action to recover for injury caused by the breach of that duty. Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300; Copeland v. Tela Corp., 1999 OK 81, 996 P.2d 931.

141 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 cere-ates 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 plaintiffs 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.

142 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 plaintiffs 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 licensee, 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 19834 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 aleohol 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 1984 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).

1] 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 lability 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.

T 45 In summary, the Oklahoma Alcoholic Beverage Control Act is a comprehensive 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 issued pursuant to that Act to the criminal and civil jurisdiction of the state courts.

VIII. Waiver of Tribal Sovereign Immunity

146 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

147 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.

€148 Under 18 U.S.C. § 1161, the Tribe and Thunderbird casino must comply with state laws to avoid federal criminal sanctions for serving liquor by the drink at the casino in Indian country.²⁰ As required by state law, Liza Frazier, the president of Thunderbird casino, applied for a mixed beverage license. In the application, Frazier averred that 1) she had read and understood Oklahoma laws and regulations regarding the license she was seeking, 2) she would continue to familiarize herself with such laws, and 3) she would not violate any of the laws of the United States, the State of Oklahoma, or applicable municipal ordinances.

T 49 One of the laws to which Thunderbird casino agreed to be bound is 37 O.S.2001, § 537(A)(2). Section 537(A)(2) prohibits a person from selling, delivering, or knowingly furnishing "alcoholic beverages to an intoxicated person...." Oklahoma law provides for enforcement of section 537(A)(2) as well as other of its alcoholic beverage regulations. As previously discussed, revocation is one statutory mechanism for enforcement of § 537(A)(2), id. at § 528(C)(1), with the right of appeal to the district court from an unfavorable administrative decision. Id. at §§ 530-531. Thunderbird casino acknowledged that the ABLE Commission can regulate their conduct pursuant to the police power of the state because it agreed to be bound by the Oklahoma Beverage Control Act (the Act). Id. at §§ 501-599.

1 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.

1 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.

152 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.

T53 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 lability is no less a part of Oklahoma's law than is the administrative and eriminal 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 pub-lie 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

1 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 18 U.S.C. § 1161, authorized the states and the Indian tribes to regulate alcoholic beverages. While Rice v. Rehner teaches there is no tribal immunity from suit to be abrogated, § 1161 abrogates any tribal immunity from suit in the area of aleoholie beverage laws. Manufacturing Technologies recognized that tribal sovereign immunity is a matter of federal law, and under the above federal law, the Tribe has no sovereign tribal immunity from plaintiff's negligence action.

T55 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. Oklahoma's alcoholic beverage laws protect the public, as in this case, the public traveling along the busy highways. Many tribal casinos are located on or near our busy highways. The nexus between the serving of liquor by the drink at the casinos and the traveling public compels us to reject the Tribe's claim of legal irresponsibility for serving liquor to obviously intoxicated casino patrons. Like any other state-licensed commercial vendor operating a bar and serving alcoholic beverages for consumption on the premises, the Tribe is subject to the criminal and civil jurisdiction of the state courts and may be hailed into state court to answer allegations that it furnished alcoholic beverages to a noticeably intoxicated customer.

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.

1 . In its motion to quash the summons, the Tribe asserted it was incorporated under the laws of the State of Oklahoma in 1973 and that corporation was dissolved in 1974. The Tribe did not produce evidence showing its present organization. On remand, the Tribe will have an opportunity to prove its organization. We note that the organization of Oklahoma Indian tribes is governed by the Oklahoma Indian Welfare Act, 25 U.S.C. §§ 501-510, originally enacted in 1936. Section 503 authorizes the Secretary of the Interior to issue a charter to a recognized tribe or band of Indians residing in Oklahoma conveying in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights and privileges secured to an organized Indian tribe under the 1934 Indian Reorganization Act, 25 U.S.C. § 461 et seq. Section 504 authorizes ten or more Indians residing in close proximity to form a cooperative association for the purpose of credit administration, production, marketing, consumers' protection or land management, and those matters not covered by the federal act, regulations or charters, would be governed by the laws of Oklahoma. Section 505 provides that the cooperative association could sue or be sued in any court, state or federal, in Oklahoma, having jurisdiction of the cause of action.

2 . The Tribe does not advise us of the federal authority, such as the Indian Self-Determination Act, 25 U.S.C. §§ 450 et seq., the Indian Financing Act, 25 U.S.C. §§ 1452, et seq., or some other federal statute, under which it created Thunderbird Entertainment Center, Inc., if any. The Tribe's ordinances under which it created the . corporation are not in the appellate record. The by-laws of tribal corporations often include a "sue and be sued" clause. See Klammer v. Lower Sioux Convenience Store, 535 NW.2d 379, 383 (Minn.App.1995). The Tribe's ordinances posted on the internet at http://www.ntjrc.org/ccfo lder/absentee_shawnee_tribalcodemenu.htm, . which are not in this record, provide that the tribal corporations may sue and be sued.

The appellate record does contain a report by an Alcoholic Beverage Law Enforcement agent indicating that Thunderbird Entertainment Center, Inc. is nothing more than a business name under which the Tribe operates the casino. The agent reported that Thunderbird casino's operations manager advised that the corporation does not exist, never existed, and is a fraud, and that the Tribe desired to have a mixed beverage license issued in the name of the Tribe. The Tribe asserts that its immunity extends to its corporation. For purposes of this appeal from a summary dismissal, we shall treat Thunderbird casino as an arm of the Tribe. On remand, the Tribe will have an opportunity to prove that it created Thunderbird Entertainment Center, Inc. as a distinct and separate entity and that the casino is not an arm of the Tribe for purposes of dram shop liability.

3 . 18 U.S.C. § 1161 reads:

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.

(Bold added.)

Section 1154 prohibits the furnishing of intoxicating liquor in Indian country and provides criminal penalties. Section 1156, with limited exceptions, prohibits the possession of intoxicating liquor in Indian country and provides criminal penalties. Sections 3113, 3488, and 3669 address forfeiture and destruction of intoxicating liquor illegally in Indian country and conveyances which are used to introduce or attempt to introduce liquor into Indian country and makes possession of intoxicating liquor in Indian country prima facie evidence of unlawful introduction of such intoxicants. Indian country is defined in 18 U.S.C. § 1151 as including lands and rights-of-way within an Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished.

4 . The Potawatomi case did not analyze the doctrine of immunity from suit in state court, and we do not find it especially helpful in this case. The substantive issue in Potawatomi was whether the state's tax law reached into Indian country to tax cigarettes sold by the tribe. Potawatomi ruled that the state may tax the cigarettes sold to the non-member purchasers in Indian country and that the tribe is obligated to collect the state taxes and remit the same to the state under Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), and Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980).

In the Potawatomi case, the Tax Commission issued an assessment to collect delinquent state taxes from the tribe, a $2.7 million assessment, which, according to the Tax Commission, the tribe failed to collect from the consumer/user taxpayers when they purchased cigarettes at a tribal convenience store. The tribe filed suit in the federal district court to enjoin the enforcement of the tax assessment, and the Tax Commission filed a counterclaim for a money judgment on its tax assessment. The tribe moved to dismiss the counterclaim as barred by the doctrine of tribal sovereign immunity, and the Tax Commission responded that the tribe waived its immunity to suit in federal court by seeking an injunction. Potawatomi ruled that the tribe did not waive its immunity from suit in federal court by seeking injunctive relief and that Congress has never authorized suits against Indian tribes to collect state taxes. Although the Potawatomi decision did not discuss the legal incidence of the tax, the state's tax assessment in Potawatomi placed the consumer/user's tax burden squarely on the tribe, hence the need for congressional authorization. See Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995) Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005).

5 . The appellate record includes a six-page document entitled "THE ABSENTEE SHAWNEE TRIBE OF OKLAHOMA ALCOHOL REGULATIONS." It appears the regulations apply to the sale and distribution of liquor and beer for off-premises consumption because regulation 1-08-03 prohibits an operator from allowing "any person to open or consume liquor on his or her premises or any premises adjacent thereto in his or her control." There is no tribal ordinance or regulation in the appellate record whereby the Tribe approved of the sale of liquor for on-premises consumption within the Tribe's Indian country. Under 18 U.S.C. § 1161, it appears that the Tribe must adopt such an ordinance to conform to state law allowing local option for liquor by the drink, Okla. Const., art. 28, § 4, and that such an ordinance must be certified by the Secretary of the Interior and published in the Federal Registry. We searched the Federal Registry for such an ordinance but found only the Tribe's regulations approving the sale of intoxicating beverages for off-premises consumption at 58 FR. 14298-1 (Mar. 16, 1993).

6 . The Commerce Clause, United States Constitution, Art. 1, § 8, cl. 3, provides that "Congress shall have Power to ... regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes...."

7 . Section 473 of the Indian Reorganization Act excludes specifically named Indian tribes in Oklahoma, including the Shawnee tribe, from §§ 464, 467, 476, 477, and 478 (section 476 provides for the organization of Indian tribes). Legislative history indicates that Oklahoma Indians were excluded because of the assimilation progress and to avoid any potential encouragement of returning to reservations. Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 (D.C.Cir.1988). Two years later, in 1936, Congress provided for organization of Oklahoma Indians as discussed in footnote 1, supra.

In Oklahoma Tax Commission v. United States, 319 U.S. 598, 603, 63 S.Ct. 1284, 1286, 87 L.Ed. 1612 (1943), the United States Supreme Court recognized that Congress treated Oklahoma Indians differently. McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 171, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973), also recognized the difference:

[The Indian sovereignty doctrine, with its concomitant jurisdictional limit on the reach of state law ... has not been rigidly applied in cases where Indians have left the reservation and become assimilated into the general community. See, e.g., Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943).

Before McClanahan, Williams v. Lee, 358 U.S. 217, 221, n. 6, 79 S.Ct. 269, 271, n. 6, 3 L.Ed.2d 251 (1959), noted a "series of statutes granting extensive jurisdiction over Oklahoma Indians to state courts." Also, Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), recognized the difference in Oklahoma's enabling legislation from that of nine western reservation states.

8 . The text of 18 U.S.C. § 1161 is set out in footnote 3, supra.

9 . Public Law 280 allowed states to extend state court jurisdiction over Indian country. Oklahoma is considered a disclaimer state that had to take formal steps to remove its constitutional prohibition against exercising jurisdiction over Indian country. See State ex rel. May v. Seneca-Cayuga Tribe of Oklahoma, 1985 OK 54, 711 P.2d 77.

10 . Immunity from private suit is central to sovereign dignity. Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).

11 . The text of 18 U.S.C. § 1161 is set forth in footnote 3.

12 . Recent congressional enactments provide that "state law"" includes state statutes, regulations, and principles and rules having the force of law, 27 U.S.C. § 214(11), and "state law" includes all laws, decisions, rules, regulations, or other state action having the effect of law of any state. 29 U.S.C. § 1191.

13 . The Wilson Act, 27 U.S.C. § 121, a 1890 act of Congress, subjected intoxicating liquor transported into a state to the operation and effect of the laws of the state enacted in the exercise of its police powers to the same extent as if the intoxicating liquor was produced in the state. Craig v. Boren, 429 U.S. at 205, n. 18, 97 S.Ct. at 461, n. 18. The Webb-Kenyon Act, a 1913 act of Congress, prohibited the shipment of intoxicating liquor from one state to another for use in the other state in violation of any law of the other state. Id. 429 U.S. at 205, n. 19, 97 S.Ct. at 461, n. 19.

In re Heff 197 U.S. 488, 507, 25 S.Ct. 506, 511, 49 L.Ed. 848 (1905), explained:

In this Republic there is a dual system of government, national and state. Each within its own domain is supreme, and one of the chief functions of this court is to preserve the balance between them, protecting each in the powers it possesses, and preventing trespass thereon by the other. The general police power is reserved to the states, subject, however, to the limitation that in its exercise the state may not trespass upon the rights and powers vested in the general government. The regulation of the sale of intoxicating liquors is one of the most common and significant exercises of the police power. And so far as it is an exercise of the police power it is within the domain of state jurisdiction. It is true the national government exacts licenses as a condition of the sale of intoxicating liquors, but that is solely for the purpose of revenue, and is no attempted exercise of police power.

14 . Possession of intoxicating liquor was prohibited in 1919 when the Eighteenth Amendment was ratified, and the Eighteenth Amendment was repealed in 1933 when the Twenty-first Amendment was ratified. Similar to the broad language in the Webb-Kenyon Act, Section 2 of the Twenty-first Amendment prohibits the transportation of intoxicating liquors into a state in violation of the state laws.

The pertinent part of the Twenty-first Amendment to the Constitution of the United States reads:

SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

SECTION 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

15 . The states' police power embraces the protection of lives and property for the public health and welfare, the maintenance of good order for public safety, and the preservation of good morals. Patterson v. State of Kentucky, 97 U.S. 501, 7 Otto 501, 24 L.Ed. 1115 (1878). The foundation of the states' police power is the control and regulation of private interests for the public good. In the control and regulation of alcoholic beverages, the states' police power is strengthened by the broad sweep of the 218 Amendment to the U.S. Const. Oklahoma Alcoholic Bev. Control Bd. v. Heublein Wines, Internat., 1977 OK 136, ¶ 19, 566 P.2d 1158, 1162, citing California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

16 . Article 28 of the Oklahoma Constitution sets forth the scheme for regulating alcoholic beverages. Article 28, § 5, Okla. Const., makes it unlawful for a licensee to sell or furnish alcoholic beverages to a person who is intoxicated.

17 . The regulatory scheme includes numerous other prohibitions, such as, no public officer or employee may engage in an alcoholic beverage business, 37 O.S.2001, § 511A; no advertising, id. at § 516; no liquor retail business within proximity of school or church, id. at § 518.3; and no demonstration of explicit sexual acts at a dram shop. Id. at § 537.2.

18 . Other criminal penalties are imposed throughout the statutory scheme and other means of enforcement are spelled out including search and seizure of alcoholic beverages by warrant and forfeiture by state court order. Id. at § 539.

19 . The United States Supreme Court has not formulated a test to determine when a tribe's immunity extends to a tribal enterprise such as Thunderbird casino, Some courts find that Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., supra., supports a rule that tribal immunity extends to tribal enterprises "incorporated" under tribal ordinances. See Wright v. Colville Tribal Enterprise Corp., 159 Wash.2d 108, 147 P.3d 1275, 1278 (2006). We do not think that Manufacturing Technologies supports such a rule. Manufacturing Technologies teaches that the nature and the location of the activity of the Indian tribe at issue in a suit is not relevant to determining whether a tribe is immune from suit, but it did not address whether the tribal entity enjoyed the same immunity.

In Inyo County, Calif. v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, 538 U.S. 701, 705 n. 1, 123 S.Ct. 1887, 1890, 155 L.Ed.2d 933 (2003), the United States Supreme Court first utilized the "arm" of the tribe language in referring to a tribal "corporation" but it did not address whether such a "corporation" would share in the tribe's immunity or the criteria for a tribal "corporation" to be an arm of the tribe.

20 . As discussed earlier in this opinion, 18 U.S.C. § 1161 exempts from federal criminal sanctions acts or transactions involving liquor if done in compliance with state laws and tribal ordinances. The United States Supreme Court has stated: "It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided." California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987) (addressing the application of Public Law 280 to allow enforcement of state law to bingo and card club on reservation). We note again, there is no evidence in this record which establishes that Thunderbird casino is located in Indian country.

21 . Some of the amendments were made in the following session laws: 1988 Okla.Sess.Laws, ch. 237; 1989 Okla.Sess.Laws, ch. 3; 1991 Okla.Sess.Laws, chs. 280 and 335; 1994 Okla.Sess.Laws, ch. 361; and 1997 Oka.Sess.Laws, chs. 133 and 364.