IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

GARY FILER, a widower, on his own

behalf, and also separately for and on

behalf of all surviving statutory wrongful

death beneficiaries of BARBARA

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. )

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) 2 CA-CV 2005-0129

DEPARTMENT A

O P I N I O N

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

FEB 28 2006 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO1 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 Jones, Skelton & Hochuli, P.L.C.

By Eileen Dennis GilBride

and

Daniel J. Quigley Phoenix

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 (“Ga ming

Enterprise”), doing business as Desert Diamond Casino, and several of its employees. On

the Gaming Ent erprise’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., 162 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.” C hamberlain

, 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 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 im munity, “we assume as true the facts alleged in the

compl aint”); Chamberlain v. Mathis

, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986)

(same). 2

¶3 In his complain t, 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.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 cou rt, which he then did. That

action apparently is pending.

4 ¶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,

dismi ssing 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). S ee 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’ i s 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

tria l 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 actio n 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. Gil a River Indian Cmty. , 276 F.3d 489, 492 (9th Cir. 2002); s ee also Mitchell v.5

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 subo rdinate economic enterprise of the Tohono

O’odham Nation, is entitled to the same immunity as the Nation. S ee generally Dixon v.

Picopa Constr. Co. , 160 Ariz. 251, 772 P.2d 1104 (1989). They also agree on the wellsettled principle that “tribal immunity is a matter of federal law and is not subject to

diminution by the States.” K iowa 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 Trib e , 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.” V al/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 tr a nsaction within any area of Indian country4 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 offpremises consumption.” 463 U.S. at 715, 103 S. Ct. at 3293, 77 L. Ed. 2d at 967.

6 provided such act or transaction is in conformity both with the

laws of the State i n 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” a nd 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. R ice

, 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 comp ly with5 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 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

regulati on 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 H olguin v. Ysleta Del

Sur Pueblo

, 954 S.W.2d 843 (Tex. App. 1997). 5 The court there ultimately held that tribalCiv. 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

8Revenue

, 198 Ariz. 584, ¶ 22, 12 P.3d 809, 814 (App. 2000), q uoting 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. S ee

Contempo-Tempe Mobile Home Owners Ass’n v. Steinert , 144 Ariz. 227, 229, 696 P.2d

1376, 1378 (App. 1985) (“The court i s not empowered to decide . . . abstract

propositions.”).

9 sovereign immunity applied, had not been waived, and therefore barred “a private suit

brought under the Texas Dram Shop Act.” 6 I d

. 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. I d

. 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 a nd 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 w ho 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]10

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.” I ndus. 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, no t by a private party. S ee 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 agre e with the trial court that Filer cannot

maintain this action in state court. “There is a difference between the right to demand11

compliance with state laws and the means available to enforce them.” K iowa 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.” S quaxin 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 onreservation 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.” S ee Holguin

, 954 S.W.2d at 854 (“[A]

private cau se 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.”).8 As does the Gaming Enterprise, we question the appli cability of D ixon ’s policy

discussion in this context. D ixon 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 Commu nity’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 ¶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,

preserv ation of tribal cultural autonomy, preservation of tribal self-determination, and

promotion of commercial dealings between Indians and non-Indians.” I d. 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.13

¶18 Additionally, unlike in Dixon

, Filer h a s not established that the Gaming

Enterprise’s corporate charter “exonerates the [Nation] from corporate liability.” I d.

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. O kla. 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. S ee 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 w aiver by the tribe.”); s ee also C & L14

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 emphasiz ed that he does not argue his

a ction 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 involvin g 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 sovereig

n 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.” I d

. 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 w hich 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 973-74.15

¶22 That broad language, however, must be viewed in context. Rice involved an

action for declaratory relief by a trader a nd 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, t o 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 lack16

jurisdiction to entertain or adjudicate a private statutory d ram 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 R ice

, “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 immuni ty extends beyond what is needed to safeguard

tribal self-governance. That is evident when tribes take part in

the Nation’s commer c e. 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).17

¶25 As the Court in Kiowa Tribe furthe r stated, “[t]hese considerations might

suggest a need to abrogate tribal immunity, at least as an overarching rule.” I d

. 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.” I d

. 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 File r contends that, “[e]ven if tribal sovereign immunity does exist for the

Gaming Enterprise, it does not apply to indiv idual employees.” Relying on W estfall v.

Erwin

, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), he argues sovere ign

i mmunity does not extend to the tribal employees unless they not only acted within the

scope of their duties but also engaged in discretiona ry 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 Gamin g 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),9 Bau gus v. Brunson , 890 F. Supp. 908 (E.D. Cal. 1995); T urner v. Martire

, 99

Cal. Rptr. 2d 587 (Cal. Ct. App. 2000); Otterson v. House

, 544 N.W.2d 64 (Minn. Ct. App.

1996).

18 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. S ee 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,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. S ee 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).

19 and Filer does not so argue. Therefore, the immunity doctrine protects the individual tribalemployee 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