FIRST NATIONAL BANK IN ALTUS v. Kiowa, 913 P.2d 299

FIRST NATIONAL BANK IN ALTUS v. Kiowa

913 P.2d 299

Okla.

1996

Check Treatment

*1 receiving paycheck, ability earn a lost Ms formerly income he portion of the

in return a informs him

received, company insurance Ms additionally reduce that аmount

that it will should receive it he what estimates ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that until security, can live on and he

social security ben- eventually Ms social receives

he at all.

efit, to such a benefit if he is entitled company presents the the insurancе

Then allowing him to continue

insured a document benefit, he full to wMeh

to receive his entitled, agrees repay if he

thought he was lump when company in a sum

the insurance from social lump Ms sum benefit

he receives such an

security. unfair to characterize It is decline “agreement.”

arrangement as so. do GRANT- PREVIOUSLY

CERTIORARI AP- THE OF OF COURT

ED. OPINION OF JUDGMENT VACATED.

PEALS AFFIRMED.

THE TRIAL COURT OPALA SUMMERS, JJ., concur. HARGRAVE

WATT, JJ., dissent. ALTUS, IN BANK

FIRST NATIONAL association, banking

a national

Appellant, Fletcher, McMahan, Demse M. Darnel E. KIOWA, AND ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍APACHE COMANCHE P.C., McMahan, Ivester, Braddock, Duffy, & LAND USE INTERTRIBAL Altus, Appеllant. for COMMITTEE, Appellee. Feldman, O’Connor, Cavanagh, M. Glenn Anderson, Westover, Killingsworth & Besh- Rabón, Rabón, Phoenix, ears, P.A., Wolf Bob Rabón, Hugo, 5, 1996. HARGRAVE, Justice. a con- us is whether question before engaged in a tribal

tract between activity outside Indian *2 Bank; may agreed provide and a non-Indian be enforced in state In additional financing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court. Our recent decision in Hoovеr v. to enable the Intertribal Commit- Oklahoma, Kiowa Tribe 909 P.2d 59 financing sewing tee to restructure the (Okla.1995), dispositive of the issue. In operation. Accordingly, the Intertribаl Com- that case we held that on a promissory mittee executed four notes total- executed of Indian $865,000.00. between ling an Indian tribe and a non-Indian was еn The Intertribal Committee defaulted on forceable in state court. petition the loans and Bank a in filed Kiowa, Apache The Comanche tribes alleging that the Intertribal Committee formed Intertribal Land Use Committee repay approxi- had borrowed and failed to (“Intertribal Committee”), which was mately $560,034.45, intеrest, plus by adopted governing bodies of the three judgment against the Intertribal Committee. participating tribes in 1966. Three members The individual tribes were not named as designated each tribe were to serve for defendants. The Intertribal Committee filed period replaced an indefinite until relieved or jurisdiction a mоtion to dismiss for lack of by succeeding general organiza- council or upon based immunity. tribal The by adopted representa- tion the tribe. The trial cоurt dismissed the action for lack of authority tives were vested with the of their jurisdiction and denied Bank’s motion to re- particular general tribal councils to enter on appealed. consider. Bank leases, easements, permits, its behalf into During pendency appeal, transactions, except аnd other the sale there- opinion handed down our in Hoover v. Kiowa of, relating commonly to tribal lands owned Oklahoma, (Okla.1995). Tribe by the three tribes to the extent that The issue Hoover was whether a contract general act, council of each tribe could so between an Indian tribe and a non-Indian any by action taken the Intertribal Commit- was enforceable state court when the con- tee had to be concurred at least two of tract was еxecuted outside of Indian representatives three members of the We held that it was. separate each tribe. Hoover, tribe, In represented the Kiowa (Bank) The First National Bank in Altus suit, by individuals named in the executed a money loaned to the Intertribal Committee promissory $142,- note favor of Hoover for dressmaking operation use their 500.00, pledging 5,000 security as shares of Altus, Oklahoma. The first loans were made common stock of Clinton-Sherman Aviation. $100,000 $175,000. in 1990 for allegedly any The tribe failed to make petition Bank’s states that the contracts were agreed payments, proper so after notice to entered into at the bank’s offices. The Inter- tribe, public Hoover sold the stock at represented tribal Committee Thereafter, auction. Hoover sued the tribe body corporate, that it duly organized, was and named individuals Oklahoma state validly existing, good standing and in under court. The tribe moved to dismiss for lack of constitutions, thе tribal resolutions and stat- jurisdiction, based on tribal immu- utes of the Comanche and nity. The trial court dismissed the suit. We tribes, promissory and that the *3 reservation, Organized Village Kake citing among things, fishing ty, concerning other of 60, 562, levies, and, L.Ed.2d 82 7 Egan, rights, 369 U.S. S.Ct. ad valorem tax Okla v. (1962). Na Tax Commission v. Chickasaw 573 homa —tion, -, 2214, 115 132 U.S. S.Ct. Tribe, v. and Fox Recently, in Lewis Sac (1995), uрholding 400 the state’s L.Ed.2d 503, said: P.2d 509 we 896 power who to tax income of tribal members federalism, system of a state’s our “Under Indian earn their live outside but the with that of soverеignty is concurrent employment from in Indian wages subject only to limita- government, Supremacy the Clause.” imposed tions Tribe, supra, disposi- Hoover v. Kiowa оmitted) (citation presented according- question and tive of the involving dispute ly, be- hold that the trial court erred case In that plaintiffs dismissing the cause. Indian аnd a state-created tween Housing that Authority, we reiterated Indian AND REMANDED. REVERSED authority and thus courts have inherent state adjudicate presumptively competеnt to are WILSON, C.J., ALMA arising under laws of the United claims WATT, OPALA and held that Oklahoma contract We States. JJ., concur. law, conveyancing than tribal rather dispute. of the governed settlement KAUGER, by separate dissents said: SUMMERS, J., joins. opin. which sum, are “In whenever Indian interests Chief with whom Vice Justice controversy, in a a state court tendеred Justice, SUMMERS, joins dissenting: preliminary inquiry into the must make rights sought to be settled. nature of the It majority opinion. from the I dissent Only litigation explicitly with- which is directly Court contradicts United States infringes by Congress or that which drawn recent Appeals of for the Tenth Circuit’s self-government upon tribal stands Hanson, and Fox Nation v. decision Sac permissible of state-court the boundaries (10th Cir.1995) 1061, which 1065 47 F.3d cognizance.” 896 P.2d at 508. sovereign immunity can- a tribe’s holds that engagement bar, from the tribe’s case at makes similar nоt be inferred activity; an and that without citing Apache Tribe v. in commercial arguments, Mescalero 145, 1267, immunity, a Jones, 411 36 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍waiver U.S. 93 S.Ct. (1973) if the from court —even Puyallup Tribe v. tribе is immune 114 L.Ed.2d 1725, Game, 392, activity is a com- conducted Dept. 391 88 S.Ct. U.S. (1968); of the Village a committee and occurs off Organized mission or 20 L.Ed.2d 689 562, 60, 7 Egan, tribe’s reservation.1 v. 369 U.S. 82 S.Ct. Kake Tacha, writing majority 1112 A waiver of sover Judge for the eign immunity implied must be 47 F.3d ‘cannot be but Court in Sac and Fox Nation v. 1061, (10th Cir.1995) expressed.’ unequivocally v. Tes that: United States 1065 said “ 392, 399, 948, 953-54, tan, S.Ct. 424 U.S. 96 lоng recognized as have ‘Indian tribes been (1976) (quoting v. States 47 L.Ed.2d 114 United possessing the common-law 1503, 1, 4, 1501, King, powers.’ traditionally enjoyed by sovereign (1969)).... Martinez, [T]he extra-territorial L.Ed.2d v. Clara Pueblo Santa strip of these transactions does nature right immuni- to assert against are Nation Thus suits Indian tribes waiver, explicit iy.... an the Nation Without a clear the tribe or barred 'absent waiver even if the abrogation.' from suit state court congressional Tax is immune activity occurring suit results from commercial Band Potawatomi Comm. Citizen 905, 909, the Nation's reservation.” off Fox Nation The Sae and Sac

and Fox Industrial up of a

which was made five-member board

of directors. the Commission default- When

ed on a contract with the United States

Army, former several Commission’s

employees sued board of directors pay. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍back cоurt board sovereign immunity

asserted from the state Here, proceedings. Co-

manche tribes formed Inter-

tribal Land Use Committee which consisted three members each tribe. This

tripartite virtually commission is identical to

the Sac and Fox Industrial the Sae Fox

Nation.

I would overrule Hoover v. Kiowa and follow teach-

ing of Sac and Fox Nation v. (10th Cir.1995).

F.3d A contract engaged

between a tribal com- activity

mercial outside Indian and a

non-Indian be enforced

court without an waiver of tribe’s

sovereign immunity.

QUAIL CREEK GOLF AND COUNTRY

CLUB, Appellant, COMMISSION, TAX

OKLAHOMA notes reversed, holding juris- that state court had executed the Intertribal Committee were diction. We said: authorized, duly executed and delivered “It is settled that absent the Committee and were enforceable in ac- cоntrary, juris- law to the state courts have respective cordance with their terms under diction over the merits of a tribal federal, law, “except tribal and as arising defense to claims under state laws. enforceability may by bankruptcy, be limited Graham, Oklahoma Tax Commission v. insolvency, reorganization or othеr af- laws fecting rights the enforcement of creditors generally.” Bank opinion also obtained an legal from the Intertribal Committee’s coun- noted that it is сlear that state laws containing Indians, language. applied sel the same be on even reserva- (1962), Washington, Tulee application would interferе such tions unless (1942), impair a 86 L.Ed. 1115 self-government or reservation with Corp., by federal v. Gibson-Zahniser Oil right granted or reserved Shaw authority 575, 48 even L.Ed. Indians is These over any sovereign over not on the issue activities cases dealt with of tribal more extensive