FILED BY CLERK FEB 28 2006 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO
GARY FILER, a widower, on his own ) 2 CA-CV 2005-0129 behalf, and also separately for and on ) DEPARTMENT A behalf of all surviving statutory wrongful ) death beneficiaries of BARBARA ) OPINION LINEHAN, deceased, including ) ALEXANDRA FILER, surviving ) daughter, and LINEHAN FILER, ) surviving daughter, ) ) Plaintiff/Appellant, ) ) v. ) ) TOHONO O’ODHAM NATION ) GAMING ENTERPRISE, dba DESERT ) DIAMOND CASINO; and EUGENE ) ROSE, liquor license holder for the ) TOHONO O’ODHAM NATION ) GAMING ENTERPRISE dba DESERT ) DIAMOND CASINO, ) ) Defendants/Appellees. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C2004-5666
Honorable Deborah Bernini, Judge
AFFIRMED
Goldberg & Osborne By David J. Diamond and D. Greg Sakall Tucson Attorneys for Plaintiff/Appellant Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis GilBride Phoenix
and
Daniel J. Quigley Tucson Attorneys for Defendants/Appellees
P E L A N D E R, Chief Judge.
¶1 Plaintiff/appellant Gary Filer filed this personal injury and wrongful death
action in superior court against the Tohono O’odham Gaming Enterprise (“Gaming
Enterprise”), doing business as Desert Diamond Casino, and several of its employees. On
the Gaming Enterprise’s motion, the trial court dismissed the action, ruling it “lack[ed]
jurisdiction to hear the matter” because the Gaming Enterprise “ha[d] not waived its
sovereign immunity.” On appeal, Filer argues the court erred because no tribal sovereign
immunity exists against a dram shop action filed pursuant to A.R.S. § 4-311.1 Although we
find the issue a close one, we affirm.
BACKGROUND
¶2 The Gaming Enterprise’s motion to dismiss, and presumably the trial court’s
order of dismissal, were grounded on Rules 12(b)(1), (2), and (6), Ariz. R. Civ. P., 16
1 Under A.R.S. § 4-311(A), a liquor licensee in Arizona can be held civilly liable if it “sold spirituous liquor . . . to a purchaser who was obviously intoxicated” and the purchaser’s consumption of the liquor “was a proximate cause of the injury, death or property damage.” See generally Callender v. MCO Props., 180 Ariz. 435, 885 P.2d 123 (App. 1994).
2 A.R.S., Pt. 1. Therefore, “we accept as true the allegations in plaintiff’s complaint.”
Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419,
424, 909 P.2d 486, 491 (App. 1995); see also Fid. Sec. Life Ins. Co. v. State of Ariz., Dep’t
of Ins., 191 Ariz. 222, ¶ 4, 954 P.2d 580, 582 (1998) (in reviewing trial court’s dismissal
of complaint on ground of immunity, “we assume as true the facts alleged in the
complaint”); Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986)
(same).2
¶3 In his complaint, Filer alleged that, in July 2004, Gaming Enterprise
employees had “furnished excessive quantities of alcoholic beverages to Douglas Michael
Levitski while he was at the Desert Diamond Casino,” in violation of § 4-311. Filer further
alleged Levitski had then driven his vehicle onto Interstate 10, traveling westbound in the
eastbound lanes, where it collided with Filer’s vehicle, injuring him and killing his wife. In
October 2004, Filer brought this action, alleging claims for wrongful death, negligence, and
statutory dram-shop liability against the Gaming Enterprise, the individual who held its
liquor license, and fictitiously named Casino employees who had served alcohol to Levitski.
2 This is not a case in which “the existence of immunity turns on disputed factual issues,” and, therefore, there is no need for a trier to “determine[] the facts [before] the court then determines whether those facts are sufficient to establish immunity.” Chamberlain, 151 Ariz. at 554, 729 P.2d at 908; see also Bonner v. Minico, Inc., 159 Ariz. 246, 253-54, 766 P.2d 598, 605-06 (1988); Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991).
3 ¶4 The Gaming Enterprise moved to dismiss the action against all defendants
based on sovereign immunity. In a signed minute entry, the trial court granted the motion,
dismissing the action without prejudice, on that basis.3 We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and 12-2101(B). See Focal Point, Inc. v. Court of Appeals, 149
Ariz. 128, 129-30, 717 P.2d 432, 433-34 (1986) (minute entry disposing of case appealable
if written, signed by a judge, and filed with clerk of court); State v. Birmingham, 96 Ariz.
109, 111, 392 P.2d 775, 776 (1969) (“The word ‘order’ is synonymous with the words
‘judgment’ and ‘decree’ [for purposes of §12-2101].”).
DISCUSSION
I. Tribal Immunity
¶5 As noted above, the trial court found that “the tribe has not waived its
sovereign immunity for purposes of the Plaintiff’s lawsuit,” thus implicitly ruling that the
Gaming Enterprise and its employees were protected by such immunity. Filer argues “the
trial court err[ed] when it found that the Gaming Enterprise . . . was vested with tribal
sovereign immunity and, thus, not subject to suit for a statutory dram shop action in an
Arizona state court.” We review de novo the question whether the doctrine of sovereign
immunity applies to divest the Arizona courts of jurisdiction over Filer’s claims. Linneen
v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir. 2002); see also Mitchell v.
3 Presumably the trial court dismissed the case without prejudice so that Filer could re-file his action in the Tohono O’odham Nation’s tribal court, which he then did. That action apparently is pending.
4 Gamble, 207 Ariz. 364, ¶ 6, 86 P.3d 944, 947 (App. 2004) (order dismissing case for lack
of subject matter jurisdiction reviewed de novo).
¶6 Filer first contends that, “[b]ecause the claims raised . . . involve the service
of alcohol . . . pursuant to an Arizona Liquor License . . . , tribal sovereign immunity cannot
defeat the jurisdiction of an Arizona state court to hear this lawsuit.” The parties do not
dispute that the Gaming Enterprise, as a subordinate economic enterprise of the Tohono
O’odham Nation, is entitled to the same immunity as the Nation. See generally Dixon v.
Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). They also agree on the well-
settled principle that “tribal immunity is a matter of federal law and is not subject to
diminution by the States.” Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 756, 118 S. Ct.
1700, 1703, 140 L. Ed. 2d 981, 986 (1998). And, sovereign immunity bars lawsuits against
Indian tribes in state court “absent a clear waiver by the tribe or congressional abrogation.”
Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111
S. Ct. 905, 909, 112 L. Ed. 2d 1112, 1119 (1991). “Arizona courts have also recognized
the doctrine of tribal sovereign immunity.” Val/Del, Inc. v. Superior Court, 145 Ariz. 558,
560, 703 P.2d 502, 504 (App. 1985).
¶7 As Filer correctly points out, “Congress authorized state regulation of liquor
transactions by enacting 18 U.S.C. § 1161.” Enacted in 1953, that section provides that the
federal prohibition of liquor on tribal lands
shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country
5 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.
¶8 In Rice v. Rehner, 463 U.S. 713, 103 S. Ct. 3291, 77 L. Ed. 2d 961 (1983),
the Supreme Court addressed that statute and the states’ ability to regulate liquor on tribal
land.4 The Court found that Indian tribes lacked “a tradition of self-government in the area
of liquor regulation” and that, “[b]y 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 created by the absence of the discriminatory federal prohibition [of alcohol on Indian
lands].” Rice, 463 U.S. at 731, 733, 103 S. Ct. at 3302, 3303, 77 L. Ed. 2d at 978, 979.
Thus, the Court held, the states could “regulate the use and distribution of alcoholic
beverages in Indian country” by requiring a state liquor license. Rice, 463 U.S. at 715, 103
S. Ct. at 3293-94, 77 L. Ed. 2d at 967.
¶9 The Tohono O’odham Nation has adopted its own Alcoholic Beverages
Licensing and Control Regulations. A person violates those regulations by failing “to
comply with the law of the State of Arizona applicable under 18 U.S.C. § 1161.” Filer thus
argues, apparently without disagreement, that “the Gaming Enterprise must comply with
4 As the Court stated in Rice, “[t]he question presented by [that] case [was] whether the State of California may require a federally licensed Indian trader, who operates a general store on an Indian reservation, to obtain a state liquor license in order to sell liquor for off- premises consumption.” 463 U.S. at 715, 103 S. Ct. at 3293, 77 L. Ed. 2d at 967.
6 Arizona’s licensing and regulatory system pursuant to 18 U.S.C. § 1161.” We agree that,
under § 1161 and Rice, the Nation and the Gaming Enterprise are subject to alcohol
regulation by the state, at least as to Arizona’s liquor-licensing requirements. But the
question remains whether that also means tribal sovereign immunity is inapplicable to any
statutory actions involving alcohol, as Filer broadly asserts, so that the Gaming Enterprise
may be liable for damages in a civil dram shop action.
¶10 In addressing that difficult issue of first impression in this state, we must first
determine if Arizona’s prohibition against a liquor licensee’s serving alcohol to an obviously
intoxicated person, see A.R.S. §§ 4-244(14), 4-311, constitutes regulation by the state under
the Supreme Court’s interpretation of § 1161 in Rice. If so, we must then determine if such
regulation can be enforced by a private lawsuit against a tribal entity in state court absent
a waiver of immunity. And, if not, we must decide whether the Gaming Enterprise or
Congress has expressly waived the Gaming Enterprise’s immunity from suit in state court.
See Okla. Tax Comm’n, 498 U.S. at 509, 111 S. Ct. at 909, 112 L. Ed. 2d at 1119.
¶11 As Filer points out, “[t]here is no controlling law in Arizona” addressing these
questions. The Texas Court of Appeals, however, addressed them in Holguin v. Ysleta Del
Sur Pueblo, 954 S.W.2d 843 (Tex. App. 1997).5 The court there ultimately held that tribal
5 Filer also cites Schram v. Ohar, No. 114403, 1998 WL 811393 (Conn. Super. Ct. Nov. 16, 1998), an unpublished Connecticut trial court decision that supports him. The Gaming Enterprise responds by citing another unpublished decision, Greenidge v. Volvo Car Finance, Inc., No. X04CV 960119475S, 2000 WL 1281541 (Conn. Super. Ct., Aug. 25, 2000), that rejects Schram and supports the Gaming Enterprise. “Rule 28(c), Ariz. R.
7 Civ. App. P., 17B A.R.S., prohibits the citation of . . . unpublished decisions of any court.” Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, n.6, 77 P.3d 444, 448 n.6 (App. 2003). We therefore give the Connecticut decisions no consideration. See Walden Books Co. v. Ariz. Dep’t of
8 sovereign immunity applied, had not been waived, and therefore barred “a private suit
brought under the Texas Dram Shop Act.”6 Id. at 854. Before so holding, however, the
court in Holguin concluded that the Texas dram shop act was a legitimate exercise of the
state’s regulatory power over alcohol and that the tribe was subject to enforcement of the
act by license and permit revocation. Id. at 853-54. Similarly, as explained below, we find
that § 4-311 falls within the scope of permissible liquor regulation by the State of Arizona.7
¶12 Section 4-311 is part of a regulatory scheme set forth in Title 4 of Arizona
Revised Statutes. Although § 4-311 is not included within that title’s chapter 2, entitled
“Regulations and Prohibitions,” A.R.S. §§ 4-201 to 4-261, it nonetheless falls within Title
4’s broad title of “Alcoholic Beverages.” A.R.S. §§ 4-101 to 4-312. And, § 4-244(14), part
of the “Regulations and Prohibitions,” makes it unlawful to serve spirituous liquor to
someone who is “obviously intoxicated”—a basis for the civil action provided in § 4-311.
Additionally, a plaintiff who files a dram shop action pursuant to § 4-311 is statutorily
required to “file a copy of the complaint with the department [of liquor licenses and control]
Revenue, 198 Ariz. 584, ¶ 22, 12 P.3d 809, 814 (App. 2000), quoting Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377 n.3, 701 P.2d 1182, 1185 n.3 (1985). 6 The Texas dram shop statute, Tex. (Alco. Bev.) Code Ann. § 2.02 (West 2005), is very similar to A.R.S. § 4-311. 7 Because the issue is not squarely before us, we do not address the means available to the State of Arizona to enforce its dram shop statute against the Gaming Enterprise. See Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376, 1378 (App. 1985) (“The court is not empowered to decide . . . abstract propositions.”).
9 within ten days after filing the complaint.” A.R.S. § 4-302(A). That notice requirement
suggests the statutory dram shop action is an integral part of the state’s alcohol regulatory
scheme.
¶13 As did the Holguin court in analyzing the Texas statute, 954 S.W.2d at 853,
we find further support for this conclusion in Eiger v. Garrity, 246 U.S. 97, 38 S. Ct. 298,
62 L. Ed. 596 (1918). In that case, the Supreme Court ruled that an Illinois dram shop act
fell “[u]nder [the state’s] broad power over the liquor traffic, and the right to pass legislation
to prevent its evils.” Id. at 102, 38 S. Ct. at 300, 62 L. Ed. at 599. The Arizona Supreme
Court has stated, “[T]he police power is inalienable and cannot be surrendered or delegated,
by affirmative action, by inaction, by contract, or otherwise.” Indus. Comm’n v. Navajo
County, 64 Ariz. 172, 180, 167 P.2d 113, 117 (1946). But the exercise of police power to
which Eiger refers is the creation of the statutory cause of action in the first instance—an
action taken by the state, not by a private party. See Holguin, 954 S.W.2d at 854
(“hold[ing] that a statutory dram shop law that confers standing upon private individuals to
sue for damages caused by violations of the state’s alcoholic beverage code falls within the
exercise of the state’s police power”). Therefore, a private dram shop action pursuant to § 4-
311 arguably does not constitute an exercise of the state’s police power at all but, rather,
merely a means of enforcing the statute.
¶14 Even if that is so, however, we agree with the trial court that Filer cannot
maintain this action in state court. “There is a difference between the right to demand
10 compliance with state laws and the means available to enforce them.” Kiowa Tribe, 523
U.S. at 755, 118 S. Ct. at 1703, 140 L. Ed. 2d at 985. That distinction is recognized by the
Ninth Circuit Court of Appeals, which has held that, although the state had “authority to
regulate or tax tribal liquor sales,” “the state’s counterclaim for taxes due [was] barred by
sovereign immunity.” Squaxin Island Tribe v. State of Wash., 781 F.2d 715, 719, 723 (9th
Cir. 1986); cf. Okla. Tax Comm’n, 498 U.S. at 512-14, 111 S. Ct. at 910-12, 112 L. Ed. 2d
at 1122-23 (state had authority to tax sale of cigarettes to nonmembers, but sovereign
immunity barred state from suing tribe to collect taxes owed); Rice, 463 U.S. at 720 n.7, 103
S. Ct. at 3296 n.7, 77 L. Ed. 2d at 971 n.7 (recognizing states’ power to tax various on-
reservation activities).
¶15 Thus, a state’s power to regulate certain tribal activities and its ability to bring
a lawsuit against a tribe in state or federal court are not necessarily coextensive. That is to
say, sovereign immunity may bar the latter but not the former. And a private suit, even if
deemed a valid exercise of the state’s regulatory power, is subject to the same limitations.
As the Gaming Enterprise argues, “[i]f a state cannot directly enforce its alcohol laws against
a tribe in a civil suit in federal court, then a private party certainly cannot prosecute a suit
for monetary damages against a tribe in state court.” See Holguin, 954 S.W.2d at 854 (“[A]
private cause of action created by the Texas Dram Shop Act does not constitute
‘enforcement’ of an alcohol-related law that falls within the waiver of tribal immunity.”).
11 ¶16 Citing Dixon v. Picopa Construction Co., 160 Ariz. 251, 772 P.2d 1104
(1989), Filer also argues “extending tribal sovereign immunity to the Gaming Enterprise .
. . is contrary to the federal policies underlying the immunity doctrine,” particularly because
the Gaming Enterprise carried liability insurance and, therefore, immunity “would not foster
the policy of seeking to protect tribal assets.”8 In Dixon, our supreme court noted the
following federal policies underlying the immunity doctrine: “[p]rotection of tribal assets,
preservation of tribal cultural autonomy, preservation of tribal self-determination, and
promotion of commercial dealings between Indians and non-Indians.” Id. at 258, 772 P.2d
at 1111.
¶17 Filer argues “tribal cultural autonomy and self-determination are not hindered
by an Arizona state court exercising jurisdiction over this case” because “it appears that the
Gaming Enterprise was organized for purely commercial reasons.” But the Gaming
Enterprise’s charter, to which Filer cites, states that the purpose of the Enterprise is, inter
alia, “to achieve economic self-sufficiency” and to provide gaming within the Nation that is
conducted with “honesty and integrity.” On this record, we cannot say those purposes are
“purely commercial,” as Filer urges.
8 As does the Gaming Enterprise, we question the applicability of Dixon’s policy discussion in this context. Dixon addressed whether the defendant construction company, Picopa, was a subordinate economic organization of the tribe, not whether tribal immunity barred a particular cause of action. The court held “Picopa [was] not a subordinate economic organization . . . and hence may not assert the Community’s tribal immunity.” 160 Ariz. at 259, 772 P.2d at 1112. This case presents no such issues. Nonetheless, the language of Dixon’s dicta is sufficiently broad to merit discussion here.
12 ¶18 Additionally, unlike in Dixon, Filer has not established that the Gaming
Enterprise’s corporate charter “exonerates the [Nation] from corporate liability.” Id.
Absent such an exoneration, we cannot give the Gaming Enterprise’s corporate insurance
the same weight the Dixon court gave to Picopa’s corporate liability insurance. Id. We
simply have no basis for concluding that exposing the Gaming Enterprise to statutory dram
shop actions would not affect tribal assets in some way. In contrast to Dixon, an
examination of federal policies here does not clearly dictate against applying tribal sovereign
immunity in this context.
¶19 As noted above, tribal immunity generally exists unless expressly abrogated
by Congress or waived by the tribe. Okla. Tax Comm’n, 498 U.S. at 509, 111 S. Ct. at 909,
112 L. Ed. 2d at 1119. A Congressional waiver of tribal immunity must be unequivocal and
explicit. Val/Del, 145 Ariz. at 560, 703 P.2d at 504; cf. Lane v. Pena, 518 U.S. 187, 192,
116 S. Ct. 2092, 2096, 135 L. Ed. 2d 486, 492 (1996). Section 1161, 18 U.S.C., however,
does not even mention tribal immunity, much less waive it for private dram shop actions.
¶20 This leaves the question whether the Gaming Enterprise waived its immunity
against such actions. Although the tribe may have impliedly waived its immunity by
applying for and obtaining an Arizona liquor license, thus subjecting itself to applicable state
law, including § 4-311, that waiver was neither clear nor express. See Okla. Tax Comm’n,
498 U.S. at 509, 111 S. Ct. at 909, 112 L. Ed. 2d at 1119 (“Suits against Indian tribes are
. . . barred by sovereign immunity absent a clear waiver by the tribe.”); see also C & L
13 Enters. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418, 121 S. Ct. 1589,
1594, 149 L. Ed. 2d 623, 631 (2001); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58,
98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106, 115 (1978). And, Filer concedes that, “[f]or the
purposes of this appeal, it is undisputed that the Gaming Enterprise and its employees have
not waived their tribal sovereign immunity, if such immunity exists.”
¶21 At oral argument in this court, Filer emphasized that he does not argue his
action in state court is permissible based on any theory of waiver of sovereign immunity.
Rather, relying on Rice, he argues state court jurisdiction exists because sovereign immunity
simply is inapplicable when any matter involving alcohol regulation on Indian land is at
issue. As Filer correctly points out, the Court in Rice stated that “tradition simply has not
recognized a sovereign immunity or inherent authority in favor of liquor regulation by
Indians.” 463 U.S. at 722, 103 S. Ct. at 3297, 77 L. Ed. 2d at 972. The Court noted that,
in enacting § 1161, “Congress was well aware that the Indians never enjoyed a tradition of
tribal self-government insofar as liquor transactions were concerned.” Id. at 733, 103 S. Ct.
at 3303, 77 L. Ed. 2d at 979. And, the Court stated, “[b]ecause 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.” Id. at 725, 103 S. Ct. at 3299, 77 L. Ed. 2d at 973-74.
14 ¶22 That broad language, however, must be viewed in context. Rice involved an
action for declaratory relief by a trader and store owner, who sought an exemption from
California liquor-license requirements. Id. at 715-16, 103 S. Ct. at 3294, 77 L. Ed. 2d at
967. The Court undertook a federal preemption analysis with “the tradition of Indian
sovereignty as a ‘backdrop.’” Id. at 719, 103 S. Ct. at 3295, 77 L. Ed. 2d at 969, quoting
McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172, 93 S. Ct. 1257, 1262, 36 L.
Ed. 2d 129, 136 (1973). The tribe was not a party to the case, and its sovereign immunity
was not at issue. Moreover, California was not asserting state court jurisdiction over the
tribe but, rather, merely sought regulatory authority over the issuance and administration of
liquor licenses. And the Court merely held that California could require a federally licensed
Indian trader, who operated a store on the reservation, to obtain a state liquor license in
order to sell alcohol for off-premises consumption. Id. at 715-16, 733-34, 103 S. Ct. at
3293-94, 3303-04, 77 L. Ed. 2d at 967-68, 978-79.
¶23 The Court in Rice certainly did not hold that California, let alone a private
citizen, could sue the tribe in state court, despite a claim of sovereign immunity, if the action
had some connection to the state’s regulation of alcohol. That issue simply was not raised,
addressed, or decided in that case. In short, contrary to Filer’s assertion at oral argument,
the Court did not hold or even imply that “all bets are off” when it comes to alcohol-related
actions. We therefore conclude the trial court correctly ruled that Arizona courts lack
15 jurisdiction to entertain or adjudicate a private statutory dram shop action against the
Gaming Enterprise.
¶24 This conclusion, we hasten to add, may be unsatisfactory to some and arguably
is divorced from the realities of the modern world, in which on-reservation Indian gaming
and alcohol sales have become commonplace. As the Court observed in Rice, “distribution
of liquor has a significant impact beyond the limits of [a] [r]eservation,” “[t]he State has an
unquestionable interest in the liquor traffic that occurs within its borders,” and “‘[a] State’s
regulatory interest will be particularly substantial if the State can point to off-reservation
effects that necessitate State intervention.’” 463 U.S. at 724, 103 S. Ct. at 3298, 77
L. Ed. 2d at 973, quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 336, 103
S. Ct. 2378, 2388, 76 L. Ed. 2d 611, 622 (1983). In addition, although it upheld a claim
of sovereign immunity in the Kiowa Tribe case, the Supreme Court there aptly remarked:
There are reasons to doubt the wisdom of perpetuating the [tribal immunity] doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. That is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. . . . In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.
523 U.S. at 758, 118 S. Ct. at 1704, 140 L. Ed. 2d at 987 (citations omitted).
16 ¶25 As the Court in Kiowa Tribe further stated, “[t]hese considerations might
suggest a need to abrogate tribal immunity, at least as an overarching rule.” Id. at 758, 118
S. Ct. at 1705, 140 L. Ed. 2d at 987. But, noting that “Congress is in a position to weigh
and accommodate the competing policy concerns and reliance interests” in determining
whether to limit or alter the scope of tribal immunity, the Court “decline[d] to revisit [its]
case law and [chose] to defer to Congress.” Id. at 759-60, 118 S. Ct. at 1705, 140 L. Ed. 2d
at 988. This court, of course, has no greater or different authority.
II. Employees’ Immunity
¶26 Filer contends that, “[e]ven if tribal sovereign immunity does exist for the
Gaming Enterprise, it does not apply to individual employees.” Relying on Westfall v.
Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), he argues sovereign
immunity does not extend to the tribal employees unless they not only acted within the
scope of their duties but also engaged in discretionary conduct. And, he maintains the
actions of the casino employees who over-served alcohol to Levitski “do not rise to the level
of discretionary conduct to which tribal sovereign immunity should attach.”
¶27 As the Gaming Enterprise points out, however, the Ninth Circuit has not
applied the Westfall rule to tribal immunity. See Linneen v. Gila River Indian Cmty., 276
F.3d 489, 492 (9th Cir. 2002), cert. denied, 536 U.S. 939, 122 S. Ct. 2620, 153 L. Ed. 2d
804 (2002); Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271
(9th Cir. 1991); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir. 1983),
17 cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984). Rather, that court
has recognized and applied sovereign immunity to tribal employees as long as their alleged
misconduct occurred while they were acting in their official capacity and within the scope
of their authority. Linneen, 276 F.3d at 492; Snow, 709 F.2d at 1321.
¶28 Filer cites several out-of-state and lower federal-court cases for the contrary
conclusion,9 but they represent a distinct minority view. See Linneen, 276 F.3d 489;
Imperial Granite, 940 F.2d 1269; Snow, 709 F.2d 1319; Frazier v. Turning Stone Casino,
254 F. Supp. 2d 295, 307 (N.D.N.Y. 2003); Bassett v. Mashantucket Pequot Museum &
Research Ctr. Inc., 221 F. Supp. 2d 271, 278 (D. Conn. 2002); Romanella v. Hayward,
933 F. Supp. 163, 167 (D. Conn. 1996), aff’d, 114 F.3d 15 (2d Cir. 1997). Because the
Ninth Circuit’s cases on this point are consistent and well reasoned, we will follow them.
Cf. Weatherford v. State, 206 Ariz. 529, ¶¶ 8-9, 81 P.3d 320, 323-24 (2003) (state courts
should follow federal circuit court on federal questions where reasonably possible).
¶29 Accordingly, we need only determine whether the individual defendants were
“‘acting in their official capacity and within the scope of their authority’” as tribal employees
when they served alcohol to Levitski. See Linneen, 276 F.3d at 492, quoting United States
v. Oregon, 657 F.2d 1009, 1013 n.8 (9th Cir. 1981). There is no indication they were not,
9 Baugus v. Brunson, 890 F. Supp. 908 (E.D. Cal. 1995); Turner v. Martire, 99 Cal. Rptr. 2d 587 (Cal. Ct. App. 2000); Otterson v. House, 544 N.W.2d 64 (Minn. Ct. App. 1996).
18 and Filer does not so argue. Therefore, the immunity doctrine protects the individual tribal-
employee defendants in this case.10 See Linneen, 276 F.3d at 492.
DISPOSITION
¶30 The trial court’s order of dismissal is affirmed.
____________________________________ JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________ JOSEPH W. HOWARD, Presiding Judge
____________________________________ PHILIP G. ESPINOSA, Judge
10 In a footnote in his reply brief, Filer argues that defendant Eugene Rose, in whose name the Gaming Enterprise’s liquor license is held, “can arguably be held liable under Ariz. Rev. Stat. § 4-311 for the overservice of Mr. Levitski which resulted in the injuries and damages sustained by Mr. Filer.” Additionally, he does not cite any authority for that proposition and, therefore, the argument is waived. See Ariz. R. Civ. App. P. 13(a)(6), 17B A.R.S.; see also Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992) (issues raised for first time in reply brief are waived).