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Filer v. Tohono O’odham Nation Gaming Enter - 3/2/2006

Arizona Court of Appeals Division Two Holds That, Though It Finds The Issue A “Close One,” Tribal Sovereign Immunity Bars Dram Shop Suits Under A.R.S. § 4-311 In Arizona State Courts.


Gary Filer filed suit against the Tohono O’odham Nation Gaming Enterprise, doing business as Desert Diamond Casino, and several of its employees, in Arizona state court. Filer alleged that the casino served Douglas Michael Leviski excessive amounts of alcohol, which ultimately caused Leviski to crash his automobile into Filer’s automobile. The collision injured Filer and killed his wife. He sued the casino under Arizona’s dram shop liability statute. A.R.S. § 4-311. The trial court dismissed the action because tribal sovereign immunity barred the suit in state court.

Division Two of the Arizona Court of Appeals affirmed. It concluded that the state had power, through congressional action, to regulate tribal liquor licensees’ serving of alcohol to intoxicated patrons. See 18 U.S.C. § 1161; A.R.S. §§ 4-244(14), 4-311. The court held, however, that the valid regulation cannot be enforced through private suit in state court in the absence of a tribal waiver of immunity. It noted that the state’s ability to regulate and its means to enforce regulations are not coextensive. On the record before it, the court concluded that the federal policies underlying the immunity doctrine, such as tribal autonomy and preservation of tribal assets, were not offended by applying tribal immunity. See Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104 (1989). Citing Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) and Rice v. Rehner, 463 U.S. 713 (1983), the court did note that the issue was a “close one,” and it questioned the propriety of the immunity doctrine in modern commerce. Nevertheless, because it was undisputed that the tribe had not waived its immunity, the court affirmed the trial court’s dismissal of Filer’s suit.

The court applied the same immunity to the individual employees of the casino. It noted that, at least in Arizona and the Ninth Circuit, sovereign immunity applies “to tribal employees as long as their misconduct occurred while they were acting in their official capacity and within the scope of their authority.” See Linneen v. Gila River Indian Cmty., 276 F.3d 489 (9th Cir. 2002); Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983). There was nothing in the record that suggested that the bartenders or other employees were not acting within their official capacity and scope of authority. Consequently, the employees enjoyed the same immunity.

Chief Judge Pelander authored the unanimous opinion.

Posted On: 3/2/2006