Hoover v. Kiowa Tribe of Oklahoma

• Decision Date: 29 June 1999
• Docket Number: No. 87,139.,87,139.
• Citation: 1999 OK 61,986 P.2d 516
• Parties: Robert M. HOOVER, Jr., Appellee, v. The KIOWA TRIBE OF OKLAHOMA, Appellant.
• Court: Oklahoma Supreme Court

986 P.2d 516

1999 OK 61

Robert M. HOOVER, Jr., Appellee, v. The KIOWA TRIBE OF OKLAHOMA, Appellant.

No. 87,139.

Supreme Court of Oklahoma.

June 29, 1999.

William J. Robinson, Oklahoma City, Oklahoma, for Appellee and Cross-Appellant.

R. Brown Wallace, Oklahoma City, Oklahoma, Appellant and Cross-Appellee.

SUMMERS, C.J.:

¶ 1 This Court issued an opinion in this case on April 13, 1998. Consistent with an earlier opinion resolving a contractual dispute between the same parties in favor of the Plaintiff/Hoover and against the Defendant/Tribe, that earlier case being known as Hoover v. Kiowa Tribe of Oklahoma, 909 P.2d 59 (Okla.1995),cert. denied, 517 U.S. 1188, 116 S.Ct. 1675, 134 L.Ed.2d 779 (1996), (hereinafter Hoover I) we affirmed summary judgment in favor of Hoover on a promissory note. Although in the first case the Tribe's petition for certiorari was denied by the United States Supreme Court, in this second case it was granted. We prematurely issued the mandate in this case prior to the U.S. Supreme Court notifying us of certiorari being granted by that Court. We hereby recall the mandate as erroneously issued.

¶ 2 On October 8, 1998 the Clerk of the Supreme Court of the United States mailed to the Clerk of this Court a file-stamped copy of the following order with respect to this case, or Hoover II.

The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Oklahoma for further consideration in light of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

Upon reconsideration we overrule our earlier opinion and remand to the trial court.

¶ 3 The case arose out of an action in state court, initiated by Hoover against the Kiowa Tribe for default on a note. In the first action the trial court dismissed the action on the basis of tribal sovereign immunity. This Court reversed, holding that state courts have jurisdiction over Indian Tribes in contract disputes where the contract was executed outside of Indian country between a tribe and a non-Indian. Hoover I, supra. On remand to the trial court after this Court's opinion in Hoover I, the trial court granted summary judgment to Hoover on his promissory note. The Tribe appealed, and we retained the case.

¶ 4 In the second opinion, Hoover v. Kiowa Tribe of Oklahoma, 1998 OK 23, 957 P.2d 81 (Okla.1998)(hereinafter Hoover II), this Court added detail to its earlier reasoning in Hoover I. The Court analyzed certain historical events in Oklahoma, including the adoption of the Organic Act of 1890, 26 Stat.81 the Enabling Act, 34 Stat. 267 and the Oklahoma Constitution, which, the Court concluded, supported its decision in Hoover I that Oklahoma courts have jurisdiction over litigation against Indian tribes. Again affirming the state court's authority over this contract dispute, the Court concluded the "the legal status of the Tribe in its contractual relationship with Hoover to be that of a private party and subject to the jurisdiction of this state." Id. at 96. It is Hoover II that is before us now on remand from the United States Supreme Court.

¶ 5 After Hoover II was decided by us the United States Supreme Court decided Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), granting certiorari to review an unpublished Oklahoma Court of Civil Appeals opinion that had relied on Hoover I in holding against the Tribe. The Supreme Court there revisited the concept of Indian tribal immunity from suit. With facts nearly identical to the facts in the case at bar, an obligee brought suit in state court to recover on a promissory note executed by the Tribe. The Tribe moved to dismiss based on tribal sovereign immunity from suit. There the U.S. Supreme Court held that "[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Id. at 1702. The Court further noted that thus far, no distinction has been drawn as to whether the activity is commercial or governmental. Id. "[T]ribal immunity is a matter of federal law and is not subject to diminution by the States." Id. at 1702. "As sovereigns or quasi-sovereigns, the Indian nations enjoyed immunity `from judicial attack' absent consent to be sued." Id. at 1703, quoting United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940).

¶ 6 This recent U.S. Supreme Court decision dictates that this Court's earlier opinion in Hoover II be overruled.¹ We so hold. The U.S. Supreme Court has in this case vacated the judgment of the District Court which we, by our opinion in Hoover II, had previously affirmed. On remand from the U.S. Supreme Court we in turn remand the cause to the District Court of Oklahoma County with instructions to enter judgment for the Tribe.

¶ 7 SUMMERS, C.J., LAVENDER, KAUGER, JJ. — concur.

¶ 8 SIMMS, WATT, JJ. — concur in deference to stare decisis.

¶ 9 HARGRAVE, V.C.J., HODGES, OPALA, WILSON, JJ. — dissent.

ALMA WILSON, J., with whom HARGRAVE, V.C.J., and HODGES and OPALA, JJ., join, dissenting:

¶ 1 The only question presented by the United States Supreme Court's remand to this Court is whether the appellant is entitled to relief under the opinion promulgated in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (Manufacturing).

Consideration of our opinion herein, Hoover v. The Kiowa Tribe of Oklahoma, 1998 OK 23, 957 P.2d 81 (Hoover), in light of Manufacturing, convinces me that no relief is warranted. Accordingly, I respectfully dissent.

¶ 2 Preliminarily, I am compelled to address two statements in today's opinion that are unmistakably erroneous. First, our mandate in this cause was neither prematurely nor erroneously issued. Our opinion herein was filed with the Clerk of this Court on March 17, 1998, and rehearing was not sought.² Consequently the mandate issued on April 17, 1998, within the orderly process established by this Court's rules.³

¶ 3 This Court has a long-standing tradition of staying the effectiveness of its mandate where review is sought in the United States Supreme Court.⁴ Under Rule 1.16,⁵ the party seeking review in the United States Supreme Court has a duty to ask this Court to suspend effectiveness of mandate. Even after the filing in the United States Supreme Court, no motion to suspend the effectiveness of the mandate was filed herein. Consequently, our mandate has been in effect since it properly issued.

¶ 4 The receipt, on June 19, 1998, of a letter from the Clerk of the United States Supreme Court dated June 16, 1998, advising that a petition for writ of certiorari was filed, did not render our mandate premature nor error.⁶ Notwithstanding, an effective mandate may be recalled upon a proper motion.⁷ No motion to recall mandate has been filed and this Court has no vehicle for recalling our duly issued and effective mandate.

¶ 5 Second, the United States Supreme Court has not "in this case vacated the judgment of the District Court." The United States Supreme Court issued its discretionary order,⁸ granting certiorari, vacating this Court's judgment, and remanding the cause to this Court.⁹ The GVR order is not premised upon a determination that a grant of certiorari and eventual reversal are probable,¹⁰ nor does it imply disapproval of this Court's opinion.¹¹ Instead, the GVR order issued to give this Court the opportunity to review this cause in light of the intervening development of the United States Supreme Court's opinion in Manufacturing.¹²

¶ 6 The principle established in Manufacturing is that, as a matter of federal law, an Indian tribe is subject to suit on its contracts only where Congress authorizes the suit or the tribe waives its tribal immunity. Our judgment in Hoover rests upon congressional acts authorizing the exercise of judicial jurisdiction over Oklahoma Indian tribes and our Hoover opinion noted evidence whereby the Kiowa Tribe of Oklahoma (Tribe) agreed to be subject to the rights and remedies provided in the Uniform Commercial Code (UCC). Accordingly, I am convinced that the GVR order does not command today's summary reversal.¹³

¶ 7 Although the Tribe is not entitled to any relief under its contract with Hoover, it is appropriate to briefly explain why the Manufacturing opinion does not alter the legal basis of our Hoover opinion. The Hoover opinion analyzed congressional acts leading to Oklahoma statehood against a backdrop of the congressional policy of assimilation of the Indians¹⁴ and found congressional authority for suits against Oklahoma Indian tribes in Oklahoma courts.¹⁵Manufacturing did not consider these early congressional acts. The Hoover opinion also reviewed subsequent federal law, including the Indian Reorganization Act of 1934,¹⁶ the Oklahoma Indian Welfare Act of 1936,¹⁷ and Oklahoma Tax Commission v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943),¹⁸ which were not considered in Manufacturing. The Manufacturing opinion does not change the congressional underpinnings of the Hoover opinion.

¶ 8 The tribal immunity doctrine enunciated in Manufacturing explicitly recognizes that an Indian tribe may consent to suit ex contractu. In the security agreement in this case, the Tribe agreed that Hoover's rights and remedies are governed by the UCC. In accordance with the UCC, Hoover brought this suit on the note and security agreement against the Tribe. Accordingly, today's outcome should be determined by the express terms of the parties' agreement.¹⁹ ¶ 9 The majority opinion is correct that Hoover's contract claims arose out of the Tribe's Business Committee's agreements to buy stock issued by Clinton-Sherman Aviation, Inc., nearly identical to the facts surrounding the contract claim in Manufacturing. The contract claims,...