*1 ¶ HARGRAVE, V.C.J., in part, concurs part.

dissents J., WATT, dissents.

1999 OK 61 Jr., HOOVER, Appellee,

Robert M. OKLAHOMA,

The KIOWA TRIBE OF

Appellant. 87,139.

No.

Supreme Court of Oklahoma.

June Robinson, City,

William J. Oklahoma Okla- homa, for Appellee Cross-Appellant. Wallace, City, R. Brown OMa- homa, Appellant Cross-Appellee. SUMMERS, C.J.: 1 This Court case on 1998. Consistent with an opinion resolving earlier a contractual dis- *2 Oklahoma, including in parties in historical events the favor of pute between the same adoption Organic Act of against the Defen- Plaintiff/Hoover Act, being Enabling dani/Tribe, as Stat.81 Stat. 267 and earlier case known that Constitution, which, Oklahoma, Tribe Court Hoover Kiowa v. concluded, denied, in (Okla.1995), supported I cert. 517 U.S. its decision Hoover P.2d 59 1675, 134 jurisdiction 1188, 116 that Oklahoma have L.Ed.2d courts over S.Ct. I) (hereinafter Again litigation Indian tribes. we affirmed af- Hoover authority promissory firming court’s over judgment of Hoover on state this in favor dispute, in first case the Tribe’s contract the Court concluded the Although note. legal by “the the Tribe in its petition was denied status of contractu- for certiorari Court, relationship in al Hoover to be Supreme this second with that of United States subject jurisdiction prematurely to the granted. We case was prior state.” at 96. It is Hoover II in case the U.S. of this Id. that the mandate this notifying us from the Supreme us certiorari be is before now on remand United Court Supreme ing granted by hereby We recall States Court. Court. issued, erroneously the mandate as ¶ 5 II was After Hoover decided Clerk of the On October by Supreme us the Court de Supreme of the United States mailed Court cided Kiowa v. Tribe Oklahoma Manufac file-stamped copy to the of this Court Clerk Inc., turing Technologies, 523 U.S. respect with following order to this (1998), granting S.Ct. case, or Hoover II. unpublished certiorari Okla a writ of petition The certiorari Appeals opinion homa had Court of Civil granted. judgment is The vacated holding against relied on I in Hoover Supreme case is remanded Court Tribe. The there Court revisited further in Oklahoma for consideration concept immunity of Indian Kiowa Tribe Oklahoma nearly With identical to the facts Manufac suit. facts turing Technologies, bar, obligee brought in the case at suit in 981(1998). 1700, 140 state court recover on a note by The executed the Tribe. Tribe moved to Upon overrule we our earlier reconsideration sovereign immunity dismiss based on tribal trial remand to the court. from suit. There the U.S. Court arose out of an action The case held that a matter of federal “[a]s court, Hoover state initiated subject Indian tribe to suit Kiowa for default on note. In the Tribe Congress the suit or the has authorized first trial court dismissed the ac- action the immunity.” Id. at 1702. has waived its The tion on the of tribal immuni- basis far, thus no Court further noted that distinc reversed, ty. holding that state This Court been to whether the tion has drawn as activi jurisdiction courts have over Indian Tribes ty governmental. Id. is commercial or disputes where the contract was ex- contract “[Tjribal immunity is a matter of federal country ecuted between a outside of to diminution and is I, supra. Hoover tribe and a non-Indian. sovereigns Id. at 1702. “As States.” the trial court after this On remand to enjoyed quasi-sovereigns, the Indian nations I, the opinion in Hoover trial court judicial ‘from attack’ absent con granted summary judgment to his Hoover on 1703, quoting sent to be sued.” Id. at appealed, note. Fidelity Guaranty & States United States we the case. retained Co., L.Ed. ¶4 opinion, In the second Hoover v. Kiowa Tribe (Okla.1998)(hereinafter II), 6 This recent P.2d 81 Hoover this to its dictates that Court’s earlier this Court added detail earlier reason decision analyzed opinion in II overruled.1 so ing in We Hoover I. The Court certain argument from suit this trans- dissenting opinion’s Tribe waived its Accordingly, I respectfully hold. The Court has is warranted. case vacated the of the District dissent. we, II, in Hoover Preliminarily, compelled I am to ad- previously had affirmed. On remand from today’s opinion dress two statements

the U.S. Court we turn remand unmistakably First, erroneous. our man- the cause to the District Court of Oklahoma *3 prematurely in this cause date was neither County judgment with instructions to enter erroneously opinion nor herein issued. Our for the Tribe. was filed with the Clerk of this Court on rehearing March and was not SUMMERS, C.J., LAVENDER, sought.1 Consequently the mandate issued KAUGER, JJ. —concur. orderly process on within the by established this Court’s rules.2 SIMMS, WATT, in JJ. —concur deference to stare decisis. long-standing This Court has a tradi- staying tion of the effectiveness of its man- V.C.J., HODGES, HARGRAVE, sought date where review is in the United WILSON, OPALA, JJ. —dissent. Supreme 1.16,4 States Court.3 Rule Under in party seeking WILSON, J., ALMA with whom Supreme duty to States Court has a ask this HARGRAVE, V.C.J., and and HODGES suspend Court effectiveness of mandate. OPALA, JJ., join, dissenting: filing Even after the United States only question presented Court, Supreme suspend no motion to Supreme United States Court’s remand to effectiveness mandate filed herein. appellant this Court is whether the is entitled Consequently, our mandate has been ef- opinion promulgated to relief under the properly fect since issued. Kiowa Oklahoma v. Tribe of ¶4 Technologies, receipt, on June of a (1998) (Manufactur from the letter Clerk of the United States herein, ing). opinion 16,1998, of Supreme Consideration our Court dated advising June filed, Hoover v. The Kiowa petition Tribe that a for writ of certiorari was of (Hoover), premature 1998 OK P.2d 81 of render did not our mandate nor Manufacturing, convinces me that no relief Notwithstanding, error.5 an effective man- clearly upon appeal. action is in error. Both the note conclusion of the matter on The man- (7) which the is founded and days suit the attendant secu- date be issued seven after the rity agreement provide: filing denying of an order certiorari or rehear- Supreme expiration "Nothing (note)(agreement) subjects this Court or of time or sovereign rights petition petition limits the of the Kiowa Tribe to file for certiorari or for rehearing, disposition any timely of Oklahoma.” filed post-decisional motion. mandate is No petition rehearing 1. No under Rule for was filed actions, upon original questions conclusion of ch.15, Okla.Sup.Ct.R.,12 O.S.Supp.1998, 1.13. courts, disciplinary certified bar app.l. matters, original proceedings or on initiative petitions. or referendum 2. Mandate is the official communication of the party contemplates filing peti- aIf of a appellate judgment to the tribunal. inferior tion for writ of certiorari in Baum, -, Davis v. Court, party may file a motion to Issuance of mandate is Rule 1.16. suspend the effectiveness of mandate. The Okla.Sup.Ct.R., O.S.Supp.1998, ch.15,app.l. suspended effectiveness of the mandate be expiration order of this until Application Capitol Improvement Oklahoma petition dispo- time to file the or notice final Authority, 964 P.2d dis- the United senting by Opala, sition States Court. J. 4. Rule 1.16 reads: 5.The letter from the Clerk the United States every appeal petition Court did not with or interfere our man- to review tribunal, stayed Whether order of a district court or date. our mandate is sus- pended responsibility peti- be remained the mandate will issued to the lower court or tribunal on order of the Chief Justice tioner. subject suit upon proper motion.6 Indian tribe is on its contracts be recalled date Congress authorizes suit been filed No motion to recall mandate has. immunity. the tribe its tribal waives Our recalling this Court has no vehicle upon congressional in Hoover rests duly issued mandate. and effective authorizing judicial juris- the exercise acts ¶5 Second, the United States diction over Oklahoma Indian tribes and our judg “in this case vacated the Court has whereby noted evidence (Tribe) of the District United Kiowa ment Court.” provid- remedies issued its discretion States (UCC). ined Commercial Uniform Code order,7 certiorari, ary granting vacating this Accordingly, I am convinced that the GVR judgment, remanding the cause today’s order does not command not prem order is Court.8 The GVR reversal.12 grant upon a determination that ised *4 ¶ Although 7 the Tribe is entitled to probab and reversal not certiorari eventual any relief under its contract with it le,9 disapproval it imply nor does of this appropriate briefly why explain to the Instead, opinion.10 the GVR order Court’s opinion does not alter the give opportunity to the to issued this Court legal opinion. of our Hoover The basis light intervening this cause in of the opinion analyzed congressional Hoover acts development States United leading against a statehood opinion in Manufacturing.11 backdrop congressional policy as- of principle established similation the Indians13 con- of and found Manufac- law, that, gressional authority federal an for suits turing is a matter of Okla- Chater, 168, Ordinarily not be unless v. 116 S.Ct. mandate will recalled Lawrence 607, 555, through citing or it was issued inadvertence mistake at 133 L.Ed.2d at Heckler v. casualty; Lopez, failure to recall will cause unavoidable 77 463 (1983), explained: where mandate issues in violation of this through Court's rules will be deemed (B)ecause premised GVR orders are on matters upon proper appli inadvertence or mistake and that we to believe below have reason the court Nickle, cation, Thompson it will be recalled. v. consider, they fully did and not because re- OK -, 239 P. 649. 1925 consideration, quire only further the standard deciding apply GVR is order, certiorari, we whether to (G)ranting discretionary 7. The than Act somewhat more liberal standard, the All Writs (Vjacating judgment, (R)emanding and for fur granted consideration, under which relief is integral part ther is an of grant showing and of certiorari of Court's administration probable.... eventual reversal are appro GVR order its certiorari docket. The intervening development may priate case, appropriate 10. The GVR order is where the Unit- of a affect the ultimate outcome over "uncertain, ed States Court is without fifty years, past use has been extended to its plenary analysis, legal undertaking a im- wide-range developments. of intervening Law Chater, 604, development pact ... the lower of new which rence v. 516 U.S. S.Ct. consider,” 606, 545, opportunity to Law- court has had no 133 L.Ed.2d The GVR 174, 610, Chater, originated special rence v. U.S. at S.Ct. at practice to show deference system 133 L.Ed.2d at 559. state law state courts in our of feder alism, ex rel. R. for instance: Missouri Wabash Commission, 126, Co. v. Public Service practice 11. The virtues of the GVR include (1927), L.Ed. 575 Missouri resources, flagging conservation of Court was vacated and the may fully issues that not have been considered the state court de case remanded so could courts, the lower the lower and the assistance of statute; intervening effect state cide the and, Chater, insight. v. U.S. at court’s Lawrence Cott, Van State Tax Commission v. 306 U.S. at 133 L.Ed.2d at 554. 83 L.Ed. 950 approach the Utah deferential allowed be a alterna- GVR order deferential basis its Court to reconsider the tive to reversal cases light intervening rested in Chater, Id., plenary merit review. Lawrence supreme opinion. States Lawrence v. Cha at 516 U.S. 116 S.Ct. at ter, U.S. at S.Ct. at dissenting opinion L.Ed.2d at Justice Scalia. ¶ ¶ 18-20, P.2d at OK 23 at 88-89, analysis congres- of a Part V. This 8. 28 U.S.C. 2106. homa Indian tribes in Oklahoma courts.14 8 The tribal doctrine enunci- Manufacturing did .not consider these early- Manufacturing explicitly ated in recognizes acts. The Hoover congressional also consent to suit ex that an Indian tribe subsequent including reviewed federal contractu. security agreement In in this 1934,15 Reorganization the Indian Act of case, that Hoover’s 1936,16 Oklahoma Indian Welfare Act of and remedies are UCC. Oklahoma Tax Commission v. United UCC, brought accordance with the Hoover States, 87 L.Ed. this suit on the note and (1943),17- which were not considered Accordingly, today’s the Tribe. out- Manufacturing. Manufacturing opin- express come should determined change congressional ion does not under- of the pinnings opinion. parties’ agreement.18 terms of the See, policy body corporate sional of assimilation is not novel. under the laws of the State Corp., Shaw right G ibson—Zahniser Oil participate in the re- (1928), observing 72 L.Ed. 709 volving enjoy any right fund credit and to purpose legislation the ultimate privilege organized secured to an give independence govern was to Indians tribe.” 25 U.S.C. 503. It authorized ten or hence, responsi mental control and the status of residing proximity more Indians in close owners; property ble citizens and and determin purpose form an association for the of credit that tax would be inconsistent with administration, production, marketing, con- assumption responsibility citizenship. protection management, sumers’ or land act, “those matters not covered the federal *5 81, 1) 14. Hoover considered: 26 Stat. the Okla- regulations or charters would be Organic extending jurisdiction homa Act of 1890 § the laws of Oklahoma.” U.S.C. Territory of the courts in Oklahoma over Indian And, provided that an association could sue inhabitants, except controversies between.mem- court, federal, any or be sued in state or sustaining bers of the same tribe while Oklahoma, having jurisdiction of the cause of relations, ¶¶ 15-17, 1998 OK 23 at 957 P.2d at action. 25 U.S.C. 505. 86-88, IV; 2) 137, dissolving Part 34 Stat. authorizing tribes and suit the United Hoover, ¶ 29, 1998 OK at 957 P.2d at 92- dependent States on behalf of the Choctaw and 93. Oklahoma Tax Commission v. United States Chickasaw tribes in the federal court in Indian observed that Oklahoma Indian tribes had no ¶ 6, 84, Territory, 1998 OK 23 at 957 P.2d at n. autonomy effective tribal and retained rem 10; and, 3) 267, Enabling 34 Stat. the Oklahoma nants of tribal and noted that the Act, 1286, together amending with 36 Stat. Oklahoma Indian Welfare Act has made some Act, Enabling transferring causes in progress governments. in restoration of tribal the territorial courts wherein Manufacturing did not consider the Act. Never was a to the federal courts in the State of theless, if the Tribe’s Business Committee is an Oklahoma, such as suits Indian tribes in 504, any association under then cloak of im States, the name of the United and all other munity has been cast off and the Tribe has the causes in the territorial courts to the Oklahoma enterprise. status of a commercial This regard parties state courts without to language is so because of the sue-and-be-sued 21-25, matter. 1998 OK 23 at & & 957 P.2d at Frank, § 505. 89-91, U.S. Part VI. Loeffler v. Sue- language liberally and-be-sued is construed to ¶¶ 21-25, 1998 OK 23 at 957 P.2d at appropriate include the natural and 92, 64, incidents of discussing seq. §§ n. 25 U.S.C. et Id., legal proceedings. specific and its exclusion of Oklahoma Indian S.Ct. at 1969. tribes therefrom. 1998 OK 23 at P.2d n. my Gungoll Exploration 18. In dissent to Carl E. 65, reads: Oklahoma, Joint Venture v. The Kiowa Tribe of urged 975 P.2d I that the Act, The Oklahoma Indian Welfare 49 Stat. cause be remanded so the court of first instance seq., §§ codified at 25 U.S.C. et assign meaning provisions. could However, to the contract provided any federally recognized meaning language because the in a residing organize in Oklahoma could for contract is a matter of Lewis v. Sac and Fox adopt its common welfare and a constitution OK by-laws. 896 P.2d Secretary It authorized the denied,516 cert. incorporation the Interior to issue a charter of any organized assign group, such this Court should now when ratified mean majority, "may convey a vote of the which to the contracts sued herein. To do so incorporated group, on addition. to this remand from the United States powers may properly which appropri- vested in a Court would be efficient and These with each other.22 them consistent majority opinion is correct govern contract claims arose out cardinal rules of contract Hoover’s agreements to 3,1990, executed a Business Committee’s case. On Tribe’s Avia- security Clinton-Sherman buy agreement stock and a promissory note nearly facts sur- tion, Inc., identical of the same contemporaneously part as rounding the contract claim the intended Manufactur- Hoover and transaction with claims, however, are not ing. The contract deter- parties should be bargain between Manufacturing Technologies’ claim identical. expressed in both documents.23 mined as document, promissory single on based 1) that: noted 11 Our note,19 claim is based on Hoover’s whereas security agree- note documents, and a note two provided “that ment included a clause security agreement. ‘subjects limits the nothing evidentiary significant dif- legally presents ”24; rights of Oklahoma’ of the Kiowa Tribe this ease and between ference Manufactur- 2) security agreement also included ing. expressly provided, part “in a clause which legal force of the secu- To avoid the Remedies, may ... the ‘Lender VII. majority opinion takes rity agreement, rights and remedies any and all exercise only upon this suit is based position Code of provided in the Commercial Uniform position This is con- promissory note.20 Lender locat- state which the agreement of rules that the trary to contract ed_”’25 sovereign-rights clause ex- expressed determined as parties is to be preserve the Tribe’s presses an intent executed writings contemporaneously in all This is so because power self-governance. transaction;21 and that part of the sovereignty relate to attributes of tribal read as a whole so as agreement should be necessary self-government and ter- provisions render all the give effect to Homes, Guaranty In- Inc. v. American jurisprudence recogniz- extant federal Sunrizon ate under contracts, Corp., vestment regulate Allied-Bruce ing that states Dobson, Companies, Inc. v. *6 Terminix 265, 834, 843, 753 130 L.Ed.2d 115 S.Ct. Hutton, Lehman v. Shearson 22. Mastrobuono interpretation of contracts is and that 1212, 1219, 52, 63-64, U.S. 514 ordinarily question Volt a of state law. (1995); Informa- Couch Hendrick L.Ed.2d 76 Pierce Sciences, Trustees Leland Inc. v. Board tion Freede, OK Baysinger & Green son 468, 474, University, 489 U.S. Junior O.S.1991, 906; Stanford 157. and 15 (1989). 1248, 1253, L.Ed.2d 488 applicable of contract construc- rules 23. Other part I of the Manu are set forth in 19. The facts parties at the time intent of the tion are that the facturing opinion, agreement they controls entered into the 981: contract; meaning intent is to be of the written entity Indus- a tribal called the Kiowa instrument; the clear gathered the entire from buy agreed Development Commission trial parties explicit language what the evidences Manufacturing Technologies respondent intended; parties illegality are free to absent Avia- Clinton-Sherman certain stock tion, and,when fit; bargained- they bargain see the then-Chairman Inc. On may writing, agreement a court neither is in signed a Committee of the Tribe’s Business party a nor a new contract to benefit make of the Tribe.... note in the name existing Bank and Founders rewrite the one. specify governing law. In a The note does P.2d 1355. Upsher, Trust Co. v. Governing paragraph entitled "Waivers "Nothing provide: in this Note Law” it does 8,¶ P.2d at n. 23 at rights sovereign subjects or limits sovereign-rights clause in Hoover’s 11. The App.14. Oklahoma.” Kiowa Tribe of security agreement is the note and defaulted; respondent sued on the sovereign-rights clause in Manufac- as the same court; and the Tribe moved to note in state Technologies’ promissory Man- turing note. The relying part jurisdiction, lack of dismiss for sovereign- ufacturing observed that immunity sovereign from suit.... on its (Emphasis paragraph entitled “Waiv- was in a clause added.) governing Governing but no law Law" ers and specified. n. infra. See majority opinion at n. 1. 20. The n. 957 P.2d at OK 23 at Corporation, States v. Winstar clause, management.26 immunity ritorial The remedies 13 The federal law tribal doc- hand, explicitly recognizes trine expresses on the that an intent that may waive its to suit and no agreement may enforced prohibits an Indian tribe from under This is so because Oklahoma’s UCC. contractually agreeing ato limited waiver of “(w)hen provides that Oklahoma’s UCC its from suit.29 The remedies security agree- debtor is default under a clearly expresses clause Tribe’s consent ment, a secured ... reduce his provided promis- to suit as in the UCC. The judgment, claim to foreclose or otherwise sory security herein, agreement note and security by any enforce the interest available Tribe, proscribe executed on behalf of the judicial procedure.” relief under Manufacturing and this Court provisions sovereign-rights should so hold. clause remedies clause do not facial- analysis of federal law in Hoo- ly ambiguity. Any clash to create latent contrary ver is not ambiguity assumption im- created principled and there is no reason to munity from suit attribute of tribal opinion. overrule our Hoover The Tribe negate cannot be resolved to agreed to be sued under the Oklahoma Uni- promise expressed solemn in the remedies form Commercial Code and it is not entitled clause. This is so because no Manufacturing. Accordingly, to relief under power agreement is limited the tribe’s standing duly we should leave mandated pay damages debt to be sued for supplemental opin- pay failure to the debt.28 The remedies remand, ion on this GVR we should affirm clause in the is a clear the district court in favor of Hoo- expression default the Tribe ver. specified be sued as in the UCC. It is condu- reading. gen- cive to no other From a most reading togeth-

erous of the remedies clause clause,

er sovereign-rights with the intent gleaned

can be

its contract with Hoover be enforced limiting right

under the UCC without its

immunity from suit under some other law. Tribe, Apache Authority Merrion v. Jicarilla Corporation Feeney, Trans-Hudson 894, 901, 71 L.Ed.2d 21. *7 Rights (1990), gen recognizing attributable to tribal a waiver of erally case-by-case determined on a basis. Pu Eleventh Amendment when the over Tribe, yallup whelming statutory implication Department Inc. v. Game leaves no room Wash ington, other reasonable construction and con (1977), cluding qualified drat a venue statute considered whether a tribe had sov more Here, and, ereign right general regulate fishing; overwhelming impli statute. Santa Martinez, specific Clara cation is that the more Pueblo v. UCC remedies scope general preserva clause limits the considered whether the Further, sovereign right sovereign rights. tribe had a tion of to determine its mem the remedies unequivocal bership contrary expression clause is an equal protec to constitutional safeguards. tion Tribe’s contracts enforced un high der the federal law's standard that a waiver government's sovereign immunity of the federal UCC, O.S.1981, 9-501, 27. Oklahoma's reco- unequivocally expressed scope must be O.S.1991, 9-501, dified at 12 strictly of the waiver must be construed in favor sovereign. Department Army Corporation, 28. United.States v. Winstar Fox, Inc., Blue at 2457. (1999). Also, Library 142 L.Ed.2d 718 Con Shaw, gress v. Hutton, Mastrobuono v. Shearson Lehman strictly confining 1212, recogniz- scope statutory 115 S.Ct. at language die that the United parties may applica- contract to limit the States shall be liable "die same aas strong congressional tion policy; person.” Port