Harrison v. PCI Gaming Auth.

251 So.3d 24

Amada HARRISON, as Administrator of the Estate of Benjamin C. Harrison, deceased

v.PCI GAMING AUTHORITY d/b/a Creek Entertainment Center, et al.

1130168

Supreme Court of Alabama.

September 29, 2017

R. Graham Esdale, Jr., and Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and Kasie M. Braswell and D. Brian Murphy of Braswell Murphy, LLC, Mobile, for appellant.

Charles A. Dauphin of Dauphin Paris, LLC, Birmingham, for appellees.

Thomas A. Woodall of Sirote & Permutt, P.C., Birmingham; and Elliott A. Milhollin and Gregory A. Smith of Hobbs, Straus, Dean & Walker, LLP, Washington, D.C., for amici curiae United South and Eastern Tribes, Inc., and National Congress of American Indians, in support of the appellees.

PER CURIAM.

The Court today decides three appeals involving similar issues of Indian tribal immunity and subject-matter jurisdiction in relation to claims of wrongful conduct by the Poarch Band of Creek Indians ("the Tribe") and business entities wholly owned by the Tribe. See Rape v. Poarch Band of Creek Indians, 250 So.3d 547 (Ala. 2017), and Wilkes v. PCI Gaming Authority, [Ms. 1151312, September 29, 2017] ––– So.3d –––– (Ala. 2017). In the present case, Amada Harrison appeals the Escambia Circuit Court's dismissal, based on the doctrine of tribal immunity, of her complaint alleging that PCI Gaming Authority d/b/a Creek Entertainment Center; Wind Creek Casino and Hotel ("Wind Creek"); Creek Indian Enterprises, LLC; and the Tribe (hereinafter referred to collectively as "the tribal defendants") were responsible for the death of her son Benjamin.

Benjamin was injured during the early morning hours of March 1, 2013, when, as a passenger, he was involved in an automobile accident following a high-speed police chase on a portion of a county roadway that traverses land held by the Tribe in Escambia County.¹ The driver of the vehicle in which Benjamin was a passenger, Roil Hadley, had consumed alcohol while he was a patron at Wind Creek during the evening of February 28, 2013, and the early morning hours of March 1, 2013.

On May 16, 2013, Harrison, as mother and next friend of Benjamin, sued the tribal defendants and two individuals, Lee Fountain and Kaweta Coon (hereinafter referred to collectively as "the defendants").² The complaint alleged that the tribal defendants were responsible for negligently or wantonly serving alcohol to Hadley despite his being visibly intoxicated and asserted, among other claims, claims against the tribal defendants under Alabama's Dram Shop Act, § 6–5–71, Ala. Code 1975.

On June 21, 2013, the defendants filed a motion to dismiss the complaint. In their motion, the defendants argued that they were protected from liability by the doctrine of tribal sovereign immunity, that the circuit court lacked subject-matter jurisdiction because the Tribe's court possessed exclusive jurisdiction over Harrison's claims, and that Harrison's claims against Fountain and Coon were due to be dismissed for failing to state a cause of action against them. On October 7, 2013, the circuit court granted the motion to dismiss as to the tribal defendants "based on the sovereign immunity of these defendants"; it denied the motion as to Fountain and Coon. On October 16, 2013, the circuit court certified its judgment of dismissal as final pursuant to Rule 54(b), Ala. R. Civ. P., and stayed the case as to Fountain and Coon. Harrison appealed.

While this appeal was pending, Benjamin died as a result of the injuries he sustained in the accident. Subsequently, Harrison filed a suggestion of death and a motion to substitute Harrison, as the administrator of Benjamin's estate, as the proper party in this action.

Standard of Review

"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

" ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’

" 878 So.2d at 1148–49."

Hall v. Environmental Litig. Grp., P.C., 157 So.3d 876, 879 (Ala. 2014).

Discussion

The three appeals concerning the Tribe and/or its related entities that this Court decides today present two intertwined issues: (i) the adjudicative jurisdiction, or what is usually referred to simply as the "subject-matter jurisdiction," of the tribal and state courts over this dispute and (ii) the alleged sovereign immunity of the tribal defendants. Both issues are grounded in the same fundamental principles regarding the nature of sovereignty and in corollary notions as to the reach of a sovereign's adjudicative authority and the extent of its immunity, as discussed in our opinion issued today in another of the three appeals. See Rape, 250 So.3d at 553–55 (Part III.B.). Unlike the trial court in Rape, the circuit court in this case issued an opinion stating a reason for its decision to dismiss the plaintiff's complaint: sovereign immunity. We therefore turn first to that issue.

Meaningful United States Supreme Court jurisprudence regarding tribal "sovereign immunity" dates back only 20 to 30 years, specifically to the 1991 case of 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), and to the 1998 case of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

Three earlier cases are sometimes referenced as seminal, the earliest of these being Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), but the Court's opinion, written by Chief Justice Marshall, did not address the issue of immunity. To the contrary, the case held that the Indian tribes were not the equivalent of foreign nations (and therefore could not sue in federal court under the constitutional provision authorizing "foreign states" to access federal courts under certain circumstances). See Cherokee Nation, 30 U.S. (5 Pet.) at 18–19.

Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919), is more commonly referred to as the seminal case recognizing tribal sovereign immunity. But the case simply did not do this. Instead, it made clear that the tribe avoided liability in that case because it actually had been dissolved, Turner, 248 U.S. at 358, and because the law recognized no cause of action against the tribe for failing to prevent some tribal members from vandalizing the property of other tribal members. The only mention of "immunity" was to explain what was not the reason for its decision.

The last of the three earlier cases sometimes mistakenly referenced as providing the foundation for tribal immunity is the 1940 case of United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (" U.S.F. & G."). U.S.F. & G., however, provides no substantive discussion of the issue. Sovereign immunity is merely assumed, with no reference to any Supreme Court precedent other than bare citations to Cherokee and Turner. See 309 U.S. at 512–13 and notes 10 and 1. The case involved a contract claim by a mining company on a contract it had negotiated with a representative of the tribes.³

In Oklahoma Tax Commission, the Supreme Court did suggest that the doctrine of tribal sovereign immunity was "originally enunciated" in Turner, before noting that it has been reiterated in other cases. 498 U.S. at 510. Again, however, the Court's opinion offers no substantive rationale for the doctrine or its genesis. For the first time, however, the Court in Oklahoma Tax Commission did offer a rationale for persisting in the doctrine. The Court explained that it was unwilling to alter or abandon the doctrine because, in the years since the Court had previously referenced it, Congress had not acted to alter or eliminate it. Still, the Court acknowledged that

"Oklahoma ... urges this Court to construe more narrowly, or abandon entirely, the doctrine of tribal sovereign immunity.... At the very least, Oklahoma proposes that the Court modify [ U.S.F. & G. ], because trib al business activities such as cigarette sales are now so detached from traditional tribal interests that the tribal-sovereignty doctrine no longer makes sense in this context. The sovereignty doctrine, it maintains, should be limited to the tribal courts and the internal affairs of tribal government, because no purpose is served by insulating tribal business ventures from the authority of the States to administer their laws."

498 U.S. at 510 (emphasis added). The Court declined Oklahoma's invitation, again based solely on the "Congressional-inaction" rationale.⁴

This brings us to 1998 and the Court's decision in Kiowa Tribe of Oklahoma. In the same mode as previous decisions, Kiowa upheld the doctrine of tribal immunity, focusing on the inaction of Congress. In so doing, however, the Court's opinion was unique in its own self-criticism and self-doubt, both as to the propriety of the result being achieved and how its jurisprudence had come to that point.

The majority opinion in Kiowa starts with a confession as to the weakness of the precedents upon which it relied, noting that those precedents "rest on early cases that assumed immunity without extensive reasoning." 523 U.S. at 753. The majority in Kiowa candidly conceded that the doctrine of tribal immunity "developed almost by accident," 523 U.S. at 756 (emphasis added). As the Court explained:

"The doctrine is said by some of our own opinions to rest on the Court's opinion in Turner v. United States, 248 U.S. 354 (1919). See, e.g., [Oklahoma

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