Amada Harrison, as Administrator of the Estate of Benjamin C. Harrison, deceased
PCI Gaming Authority d/b/a Creek Entertainment Center, et al.
from Escambia Circuit Court (CV-13-900081)
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, [Ms. 1111250, September 29, 2017] ___
So.3d ___ (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.
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. 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,
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"). 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.
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.
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.
"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
"'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).
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, ___ So.3d at ___
(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.
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 (1991), and to the 1998 case of
Kiowa Tribe of Oklahoma v. Manufacturing Technologies,
Inc., 523 U.S. 751 (1998).
earlier cases are sometimes referenced as seminal, the
earliest of these being Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (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.
v. United States, 248 U.S. 354 (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.
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 (1940)
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 11. The case involved a contract claim by a
mining company on a contract it had negotiated with a
representative of the tribes.
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
tribal 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
498 U.S. at 510 (emphasis added). The Court declined
Oklahoma's invitation, again based solely on the
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.
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 ...