IN THE MATTER OF THE DEATH OF TAYLOR

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IN THE MATTER OF THE DEATH OF TAYLOR

2015 OK CIV APP 11

343 P.3d 219

Case Number: 112225

Decided: 09/26/2014

Mandate Issued: 01/30/2015

DIVISION II

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

Cite as: 2015 OK CIV APP 11, 343 P.3d 219

WELLS FARGO BANK, NATIONAL ASSOCIATION,

Plaintiff/Appellee,

v.

APACHE TRIBE OF OKLAHOMA, Defendant/Appellant.

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY,

OKLAHOMA

HONORABLE BILL GRAVES, TRIAL JUDGE

AFFIRMED IN PART, REVERSED IN PART,

AND

REMANDED FOR FURTHER PROCEEDINGS

Jon E. Brightmire, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Tulsa,

Oklahoma, for Defendant/Appellant

Patrick M. Ryan, Phillip G. Whaley, RYAN

WHALEY COLDIRON SHANDY PLLC, Oklahoma City, Oklahoma, and Jerome A. Miranowski,

Michael M. Krauss, FAEGRE BAKER DANIELS LLP, Minneapolis, Minnesota, for

Plaintiff/Appellee

JOHN F. FISCHER, PRESIDING JUDGE:

¶1 This case arises from Wells Fargo Bank's efforts to collect the balance of

a $4,365,000 loan to the Apache Tribe of Oklahoma. The Tribe appeals various

rulings of the district court in these consolidated appeals. 1 Principally, the Tribe

challenges the district court's Judgment confirming an arbitration award in

favor of the Bank, arguing it did not waive sovereign immunity or consent to be

sued in Oklahoma district court. We find that there was a valid and express

waiver of the Tribe's sovereign immunity, that the Tribe's agreement to

arbitrate this dispute with the Bank is enforceable and that the arbitrator did

not exceed his authority in awarding the Bank the unpaid balance of its loan.

Therefore, the district court's Judgment confirming that portion of the

arbitration award is affirmed as are the subsequent orders issued in aid of the

Bank's effort to collect its Judgment. 2

BACKGROUND

¶2 The Apache Tribe of Oklahoma is a federally recognized Indian tribe. The

Tribe adopted a Constitution in 1972. Pursuant to Article II of that

Constitution, the members of the Tribe who are at least eighteen years of age

constitute the General Council and the General Council is the "supreme governing

body" of the Tribe. 3 The Business Committee of the Apache Tribe of

Oklahoma was established by the tribal council pursuant to authority granted in

Article V of the Tribe's Constitution: "There shall be a business committee

which shall consist of the officers as provided in Article IV and two (2)

members." On August 26, 1972, the tribal council passed Resolution 73-1

delegating the Tribe's "full and complete authority to the Business Committee to

transact any and all business related to the tribe involving matters such as

tribal land, tribal budget and any other matters relating to government programs

and the Bureau of Indian Affairs. . . ." On September 10, 1977, the tribal

council passed Resolution 78-7 to "go on record similar to Resolution 73-1 to

delegate authority to transact business related to the Apache Tribe of Oklahoma"

to the Business Committee.

¶3 On May 9, 2006, the Tribe opened its Silver Buffalo Casino in Anadarko,

Oklahoma. In August of 2007, members of the Business Committee and Wells Fargo

Bank discussed a possible loan in the amount of $4,365,000. The loan proceeds

were intended to be used by the Tribe to pay off existing debt, expand and

remodel the Casino and to acquire land. On June 23, 2008, the Business

Committee, by a vote of 3 to 0, adopted Resolution 06-23-08 approving the

financing transaction with the Bank and the documents necessary to complete the

loan transaction. The Resolution contained an express waiver of the Tribe's

sovereign immunity. Also on June 23, 2008, the Business Committee signed a loan

agreement, promissory note, security agreement and related documents (Loan

Agreement) with the Bank to complete the loan transaction. The Loan Agreement

included a waiver of the Tribe's sovereign immunity with respect to the loan

transaction, an agreement to arbitrate disputes with the Bank and a choice of

law provision designating Oklahoma law for the construction and enforcement of

the Loan Agreement.

¶4 Paragraph 11.19 of the Loan Agreement titled "Governing Law," provides, in

part:

(a) This Agreement and the Loan Documents shall be governed by, construed

and enforced in accordance with, the internal law of the State of Oklahoma .

. . . The [Tribe] . . . consents to the application of Oklahoma civil law to

the construction, interpretation and enforcement of this Agreement and the

other Loan Documents, and to the application of Oklahoma civil law to the

procedural aspects of any suit, action or proceeding relating thereto,

including, but not limited to, legal process, execution of judgments,

enforcement of any arbitration award and other legal remedies . . .

.

¶5 Paragraph 11.24 of the Loan Agreement provides, in part:

(a) Arbitration . Upon the demand of any party , any Dispute . . .

shall be resolved by binding arbitration in accordance with the terms of

this Agreement. A "Dispute" means any action, dispute, claim, or controversy

of any kind, whether in contract or tort, statutory or common law, legal or

equitable, now existing or hereafter arising under or in connection with, or

in any way pertaining to any of the Loan Documents. . . .

(b) Governing Rules . Arbitration proceedings shall be administered

by the American Arbitration Association ("AAA") or such other administrator

as the parties shall mutually agree upon in accordance with the AAA

Commercial Arbitration Rules. All Disputes submitted to arbitration shall be

resolved in accordance with the Federal Arbitration Act. . . . Judgment upon

any award rendered in an arbitration may be entered in any court having

jurisdiction . . . .

¶6 Paragraph 11.27 of the Loan Agreement is titled: "WAIVER OF SOVEREIGN

IMMUNITY; CONSENT TO JURISDICTION, and provides, in part:

(A) THE [TRIBE] HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS SOVEREIGN

IMMUNITY (AND ANY DEFENSE BASED THEREON) FROM ANY SUIT, ACTION, OR

PROCEEDING (INCLUDING AN ARBITRATION PROCEEDING) OR FROM ANY LEGAL PROCESS

(WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT

IN AID OF EXECUTION, EXECUTION, EXERCISE OF CONTEMPT POWERS, OR OTHERWISE)

IN ANY FORUM, WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS

AND THE TRANSACTIONS CONTEMPLATED HEREBY. . . .

(B) THE [TRIBE] HEREBY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION

OF THE COURTS OF THE STATE OF OKLAHOMA . . . .

. . . .

(D) IN THE EVENT A SUIT IS COMMENCED ON THIS AGREEMEMNT . . . (INCLUDING

FOR THE ENFORCEMENT OF AN ARBITRATION AWARD), THE [TRIBE] COVENANTS THAT IT

WILL NOT DISPUTE THE JURISDICTION OF THE COURTS OF THE STATE OF OKLAHOMA . .

. . (emphasis in original).

¶7 After consummation of the loan transaction and transfer of the loan

proceeds, the Tribe failed to make the interest payment due on the loan for

August of 2010. 4 The Bank filed its request for arbitration on

September 28, 2010, alleging the Tribe had breached the loan agreement. The

parties selected an arbitrator and on May 23, 2011, after five days of trial,

the arbitrator entered an award in favor of the Bank in the amount of

$2,751,160.20 (Arbitration Award). The Bank filed this action in the district

court on May 24, 2011. The district court confirmed the arbitration award and

entered judgment in favor of the Bank on November 15, 2011.

¶8 On March 19, 2012, the Bank obtained a temporary restraining order

prohibiting the transfer of casino funds, other than winnings, until further

order of the district court, and the matter was set for hearing on the Bank's

motion to require the Tribe to turn over casino funds in satisfaction of the

Bank's Judgment. On March 27, 2012, the district court denied the Tribe's motion

to vacate the March 19 order. On April 3, 2012, the district court granted the

Bank's pending motion and ordered the Tribe to turn over $130,000 "from casinos'

money" to counsel for the Bank.

¶9 Four orders have been appealed and are consolidated for review in this

case:

1. November 15, 2011, Order and Judgment Confirming Arbitration Award,

case number 110,194 (Judgment);

2. March 19, 2012, Order Granting Temporary Restraining Order

(Injunction 5 ) and March 27, 2012, Order Denying Apache Tribe

of Oklahoma's Motion to Vacate March 19 Order Granting Temporary Restraining

Order (March 27 Order), case number 110,548; and

3. April 3, 2012, Order Compelling the Turnover of Cash Held at the

Silver Buffalo and Golden Eagle Casinos (Turnover Order), case number

110,648.

Oral argument was held in this Court with respect to the Tribe's appeal in

case no. 110,194 on August 13, 2013.

STANDARD OF REVIEW

¶10 In confirming the Bank's arbitration award, the district court

determined, as did the arbitrator, that the parties agreed to arbitrate any

dispute regarding the Loan Agreement. The district court's "first task" in

ruling on that issue "is to determine whether the parties agreed to arbitrate

that dispute." Wilkinson v. Dean Witter Reynolds, Inc. , 1997 OK 20, ¶ 9, 933 P.2d 878, 880, citing

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614,

626, 106 S. Ct. 3346, 3353 (1985). That determination is generally governed by

principles of state contract law. First Options of Chicago Inc., v.

Kaplan , 514 U.S. 938, 944, 115 S. Ct. 1920, 1924 (1995); Rogers v. Dell

Computer Corporation , 2005 OK

51, ¶ 14, 138 P.3d 826, 830.

We review the district court's legal decisions regarding the existence of an

agreement to arbitrate de novo and accept its findings of fact that are

not clearly erroneous. Kaplan , 514 U.S. at 947-49, 115 S. Ct. at

1923.

¶11 However, to the extent the parties have agreed to arbitrate their

disputes, judicial review of the substance of the arbitration award is

constrained. A court "will set [an arbitrator's] decision aside only in very

unusual circumstances." Kaplan , 514 U.S. at 942, 115 S. Ct. at 1923

(citing Title 9 U.S.C. § 10 (2002)). As pertinent to the Tribe's appeal, the

arbitration award may be vacated if "the arbitrators exceeded their powers." 9

U.S.C. § 10(a)(4) (2002). 6

¶12 The Tribe's appeal of the district court's post-Judgment orders raises

only issues of law. "Questions of law are reviewed de novo . De

novo review of a lower court's legal ruling is plenary, independent and

nondeferential." Lierly v. Tidewater Petroleum Corp. , 2006 OK 47, ¶ 16, 139 P.3d 897, 903.

ANALYSIS

¶13 The Tribe has limited its appeal of the Judgment confirming the

Arbitration Award to two issues: 1. Did the Business Committee have authority to

waive the Tribe's sovereign immunity and sign the Loan Agreement? 2. If so, did

the assignment of Casino revenues to secure repayment of the loan convert the

Loan Agreement into a void management agreement? With respect to the first

issue, it is undisputed that the Loan Agreement contains an arbitration

agreement, which covers the disputed issues in this case and that the Loan

Agreement was signed by the Chairman of the Business Committee. However, the

Tribe argues that the Chairman did not have authority to sign the Loan

Agreement, at least to the extent that the document contained a waiver of

sovereign immunity or an agreement to arbitrate any disputes with the Bank.

Therefore, the determination of whether the parties agreed to arbitrate this

dispute, arbitrability, depends on whether the Chairman had the authority to

sign the Loan Agreement. The arbitrator found that the Chairman had the

requisite authority and that the arbitration agreement was enforceable against

the Tribe. However, we must first determine who, court or arbitrator, decides

that issue by determining whether the parties agreed to submit the issue of

arbitrability to arbitration. Kaplan , 514 U.S. at 942, 115 S. Ct. at

1923.

I. Arbitrability of the Tribe's Jurisdictional Claim

¶14 Ordinarily, and unless the parties have clearly agreed that the

arbitrator is to decide that issue of arbitrability , the court will decide

whether an agreement to arbitrate exists and, if so, whether the parties have

agreed to any limitation on the issues they have agreed to arbitrate using

standard principles of state contract construction law. Kaplan , 514 U.S.

at 944, 115 S. Ct. at 1924. As previously described, paragraph 11.24 of the Loan

Agreement contains an agreement to resolve any dispute regarding the Loan

Agreement by binding arbitration in accordance with the Federal Arbitration

Act. 7

¶15 The Bank argues that the parties agreed that the arbitrator would decide

the initial issue of arbitrability and that Oklahoma courts are, therefore,

bound by the arbitrator's determination that the Tribe waived sovereign immunity

and agreed to arbitrate this dispute: "The parties agreed the [arbitrator] would

resolve both questions of jurisdiction and of the Loan Agreement's existence and

validity." (Appellee's Answer Brief, p. 8). The Bank bases this argument on

paragraph 11.24(b) of the Loan Agreement which provides, in part: "Arbitration

proceedings shall be administered by the American Arbitration Association

("AAA") or such other administrator as the parties shall mutually agree upon in

accordance with the AAA Commercial Arbitration Rules." The Bank notes that the

Commercial Arbitration Rules of the AAA provide that the arbitrator has the

power to "rule on his or her own jurisdiction." The Bank cites numerous cases

from various jurisdictions holding that an arbitrator decides the question of

arbitrability including jurisdiction if the arbitration contract incorporates

the rules of the AAA. We find these cases distinguishable.

¶16 For example, in Qualcomm Inc. v. Nokia Corp. , 466 F.3d 1366 (Fed.

Cir. 2006), the arbitration agreement provided: "Any dispute . . . shall be

settled by arbitration in accordance with the arbitration rules of the American

Arbitration Association." Id . at 1368. Noting that Article 15 of those

rules authorized arbitrators to rule on their own jurisdiction, the

Qualcomm court held that the parties had agreed to arbitrate the issue of

arbitrability. In contrast, the arbitration provision in the Loan Agreement here

does not incorporate the substantive rules of the AAA except with respect to the

process of selecting an administrator other than the AAA should that be

necessary. The relevant provision in the Loan Agreement merely provides that any

arbitration proceeding will be " administered by the American Arbitration

Association." We find a clear distinction between an agreement to use the AAA's

staff and procedures for the selection of arbitrators in the administration of

an arbitration proceeding, for example, and an agreement regarding the scope of

the arbitrator's authority and what substantive issues the arbitrator will be

authorized to decide.

¶17 Further, if the Bank's construction of paragraph 11.24(b) is correct, the

lengthy definition of the "Dispute" the parties agree to arbitrate contained in

paragraph 11.24(a) of the Loan Agreement is essentially unnecessary because the

AAA Commercial Rules provide that the arbitrator can decide any claim or

counterclaim unless the opposing party objects to the arbitrability of that

claim. More importantly, although the definition of "Dispute" in the Loan

Agreement is broad, there is no express reference to the issue of the

arbitrator's jurisdiction in the list of the matters the parties are agreeing to

arbitrate. This omission is more striking in light of the long-standing and

clear federal law on this issue. "Unless the parties clearly and unmistakably

provide otherwise, the question of whether the parties agreed to arbitrate is to

be decided by the court, not the arbitrator." AT&T Techs., Inc. v.

Commc'ns Workers of Am. , 475 U.S. 643, 649, 106 S. Ct. 1415, 1418 (1986).

"Courts should not assume that the parties agreed to arbitrate arbitrability

unless there is 'clea[r] and unmistakabl[e]' evidence that they did so."

Kaplan , 514 U.S. at 944, 115 S. Ct. at 1924. As the Kaplan Court

observed, "[a] party often might not focus upon" who decides arbitrability.

Consequently:

courts might hesitate to interpret silence or ambiguity on the "who

should decide arbitrability" point as giving the arbitrators that power, for

doing so might too often force unwilling parties to arbitrate a matter they

reasonably would have thought a judge, not an arbitrator, would

decide.

Id. at 945, 115 S. Ct. at 1925. That principle is particularly

relevant when one party to the arbitration agreement is an Indian tribe. "[T]o

relinquish its immunity, a tribe's waiver must be 'clear.'" C&L Enters.,

Inc. v. Citizens Band Potawatomi Indian Tribe of Oklahoma , 532 U.S. 411,

418, 121 S. Ct. 1589, 1594 (2001). We find that the determination of the

arbitrability issue by reference to rules incorporated into but not expressly

stated in the arbitration provision fails to waive with the "requisite clarity"

the Apache Tribe's sovereign immunity. Id.

¶18 Consequently, we do not find the Bank's argument that the parties agreed

the arbitrator would decide arbitrability to be persuasive. Therefore, the

arbitrator's decision that the arbitration provision in the Loan Agreement

constitutes a valid waiver of the Tribe's sovereign immunity exceeded the

arbitrator's authority and is not binding on the parties or this Court.

See 9 U.S.C. § 10(a)(4) (2002) (judicial review of an arbitration award

determines whether an arbitrator exceeded his power). This Court will determine

whether the Business Committee of the Apache Tribe was authorized to, and, if

so, did waive the Tribe's sovereign immunity and agree to arbitrate disputes

concerning the loan transaction with the Bank.

II. Waiver of Sovereign Immunity

¶19 The foundational law dispositive of the sovereign immunity issue is well

settled.

Indian tribes are "distinct, independent political communities, retaining

their original natural rights" in matters of local self-government. Although

no longer "possessed of the full attributes of sovereignty," they remain a

"separate people, with the power of regulating their internal and social

relations."

Santa Clara Pueblo v. Martinez , 436 U.S. 49, 55, 98 S. Ct. 1670, 1675

(1978) (internal citations omitted); Worcester v. Georgia , 31 U.S. (6

Pet.) 515 (1832). "Indian tribes have long been recognized as possessing the

common-law immunity from suit traditionally enjoyed by sovereign powers."

Santa Clara Pueblo , 436 U.S. at 58, 98 S. Ct. at 1677 (citing Turner

v. United States , 248 U.S. 354, 358, 39 S. Ct. 109, 110 (1919)); United

States v. United States Fid. & Guar. Co ., 309 U.S. 506, 512-13, 60 S.

Ct. 653, 656 (1940); Puyallup Tribe, Inc. v. Washington Dep't of Game ,

433 U.S. 165, 172-173, 97 S. Ct. 2616, 2620-21 (1977). "As 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." Kiowa Tribe of Oklahoma v.

Manufacturing Techs., Inc. , 523 U.S. 751, 754, 118 S. Ct. 1700, 1702

(1998). 8 There

is no Congressional authorization for the Bank's suit in this case. This case is

determined by whether the Tribe voluntarily waived its sovereign immunity. That

determination depends on whether the Business Committee had authority to sign

the Loan Agreement because the Loan Agreement contains a clear and effective

waiver of immunity. Determining the Business Committee's authority requires

construction of the Apache Constitution and the two General Council Resolutions

authorizing the Business Committee to conduct business on behalf of the Tribe. 9

¶20 The first issue we must resolve, however, is what law to apply when

construing those documents. We have found no controlling authority directly

responsive to that issue. In "appropriate cases," common law rules of contract

construction are applied to interpret agreements between Indian tribes and

non-Indian entities. C&L Enters. , 532 U.S. at 423, 121 S. Ct. at 1596

(state arbitration act applies where the parties agreed to arbitrate disputes,

their contract contained a choice-of-law clause providing state law governed the

contract and authority to sign the contract was not an issue). However, we do

not find it would be "appropriate" to apply Oklahoma law in the interpretation

of the Tribe's documents even considering the choice-of-law provision in

paragraph 11.19 of the Loan Agreement. The Tribe's agreement to application of

Oklahoma law and its canons of construction in that provision is limited to

"construction, interpretation" of the Loan Agreement. Further, we note that

"standard principles of statutory construction do not have their usual force in

cases involving Indian law." Montana v. Blackfeet Tribe of Indians , 471

U.S. 759, 766, 105 S. Ct. 2399, 2403 (1985).

¶21 We also decline to apply state agency law to determine internal tribal

matters including the authority of the Business Committee and its members when

purporting to waive the Tribe's immunity, in the absence of the Tribe's or the

Committee's agreement to do so. Accord Stillaguamish Tribe of Indians v.

Pilchuck Group II, L.L.C ., No. C10-995RAJ, 2011 WL 4001088 (W.D.Wash. Sept.

2, 2011) (unpublished)(state law has no bearing on who has authority to waive

tribe's immunity). But cf ., Rush Creek Solutions, Inc., v. Ute

Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004) (where tribal

constitution was silent as to the method of waiving sovereign immunity and CFO

was authorized to sign contracts, Indian tribe was bound by waiver in contract

signed by CFO pursuant to state law principle of apparent authority). Rush

Creek, in our view, impermissibly finds a waiver (1) through application of

state law to internal tribal matters without showing the tribe agreed state law

would apply, and (2) as a result of conduct imputed to the tribe without showing

the tribe authorized, consented to, adopted or ratified that conduct. As a

result, the Rush Creek Court posits tribal immunity as a matter of state

law in conflict with United States Supreme Court authority. "[T]ribal immunity

is a matter of federal law and is not subject to diminution by the States."

Kiowa Tribe of Oklahoma, 523 U.S. at 756, 118 S. Ct. 1703. Rush

Creek is also distinguishable with respect to the procedure for waiver of

tribal immunity. The Colorado appellate court found the tribe's Constitution was

silent as to the manner in which immunity could be waived. Here, that is not an

issue. The General Council's constitutional authority to waive the Tribe's

immunity from suit or delegate that power to the Business Committee is not an

issue in this case as discussed post. In this jurisdiction, the rule is

settled: if an Indian tribe has specified the manner in which its immunity can

be waived, "tribal law controls the way sovereign immunity can be waived by the

Tribe." Dilliner v. Seneca-Cayuga Tribe, 2011 OK 61, ¶ 18, 258 P.3d 516, 520. This rule

requires an affirmative act compliant with tribal law and procedure that clearly

justifies the constitutional exercise of state court jurisdiction. C&L

Enters. , 532 U.S. at 418, 121 S. Ct. at 1594.

¶22 Therefore, in the absence of an agreement to apply Oklahoma law, we

conclude that interpretation of the Apache Constitution, the 1973 and 1978

Resolutions and the determination of whether the General Council delegated

authority to the Business Committee to waive sovereign immunity is a matter of

Apache Tribal law. "Courts have looked to tribal law in determining

jurisdiction." Dilliner , 2011

OK 61, ¶ 13, 258 P.3d at 519. We also reach this conclusion "in light of

traditional notions of Indian sovereignty and the congressional goal of Indian

self-government, including its 'overriding goal' of encouraging tribal

self-sufficiency and economic development." California v. Cabazon Band of

Mission Indians , 480 U.S. 202, 216, 107 S. Ct. 1083, 1092 (1987). Finally,

we recognize that the "sovereignty retained by tribes includes 'the power of

regulating their internal and social relations,'" including "the power to make

their own substantive law in internal matters." New Mexico v. Mescalero

Apache Tribe , 462 U.S. 324, 332, 103 S. Ct. 2378, 2385 (1983).

¶23 Nonetheless, we have not been provided any Apache statutes, ordinances or

case law that could be used to derive rules of construction applicable to the

Tribe's documents in order to determine whether the Business Committee was

delegated authority to waive the Tribe's immunity from suit in this case. In its

Petition for Rehearing, the Tribe argues the appropriate rules of construction

are stated in MM&A Productions, LLC v. Yavapai-Apache Nation, 316

P.3d 1248, 1251-52 (Ariz. Ct. App. 2014):

. . . waivers of sovereign immunity are strictly construed in favor of

the sovereign . Ramey Constr. Co. v. Apache Tribe of Mescalero

Reservation , 673 F.2d 315, 320 (10th Cir.1982). The United States

Supreme Court has articulated repeatedly that a waiver of sovereign immunity

'''cannot be implied but must be unequivocally expressed.'" Santa Clara

Pueblo v. Martinez , 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106

(1978), quoting United States v. Testan , 424 U.S. 392, 399, 96 S.Ct.

948, 47 L.Ed.2d 114 (1976). In other words, the waiver must "expressly

indicate[ ] the [tribe]'s consent" to suit. Pan Am. Co ., 884 F.2d at

418.

We are not persuaded. First, Ramey Construction involved a suit by a

contractor against a tribe for the balance due on a construction contract. The

contractor argued Congress had waived the tribe's immunity in and the court had

jurisdiction pursuant to the Indian Civil Rights Act, 25 U.S.C. §§ 1301 to 1341,

because the tribe's refusal to pay the balance was a denial of equal protection,

due process and access to the courts. As the Ramey Construction Court

correctly noted, Santa Clara Pueblo v. Martinez , 436 U.S. 49, 98 S.Ct.

1670 (1978) resolved the contractor's claim: "suits against the tribe under the

ICRA are barred by its sovereign immunity from suit." Id ., 436 U.S. at

59, 98 S. Ct. 1677. Ramey Construction and Santa Clara Pueblo

dealt with Congressional waivers of sovereign immunity, an issue distinct from

the tribal waiver at issue in this case. Like the United States Court of Appeals

for the Seventh Circuit, we "doubt whether there really is a requirement that

a tribe's waiver of its sovereign immunity be explicit, especially since

the harder it is for the tribe to waive its sovereign immunity the harder it is

for it to make advantageous business transactions." Sokaogon Gaming

Enterprise Corp. v. Tushie-Montgomery Associates, Inc., 86 F.3d 656 (7th

Cir. 1996) (emphasis added)(agreement to arbitrate disputes constituted a clear

waiver of tribal sovereign immunity). The Tribe has failed to demonstrate the

applicability of the Santa Clara Pueblo rule applied in Ramsey

Construction for Congressional waivers to the tribal waiver at issue in this

case.

¶24 Second, the viability of Pan American Co. v. Sycuan Band of Mission

Indians , 884 F.2d 416 (9th Cir.1989), the third case relied on by the

MM&A Court is, at best, questionable. That case concerned whether a

tribe waived immunity from suit by agreeing to an arbitration clause. The Pan

Am Court reasoned: " Santa Clara Pueblo commands that waiver may only

be found if the clause unequivocally and expressly indicates the Band's consent

to waive its sovereign immunity." Pan American , 848 F.2d at 418.

As previously discussed, Santa Clara Pueblo established the rule for

determining when Congress has waived a tribe's immunity from suit. Where

voluntary waiver by an Indian tribe is the issue, the applicable rule is stated

in C&L Enterprises : "[T]o relinquish its immunity, a tribe's waiver

must be 'clear,'" contrasting the "similar" but apparently not identical

"unequivocally expressed" rule required by Santa Clara Pueblo for

Congressional waivers. C&L Enters. , 532 U.S. at 418, 121 S. Ct. at

1594. 10

And, unlike the Pan Am Court, the C&L Enterprises Court found

the tribe waived its immunity from suit with the "requisite clarity" when it

signed a contract that included an agreement to arbitrate disputes. Id .

Not only was C&L Enterprises decided twelve years after Pan

Am, but also the C&L Enterprises Court granted certiorari in that

case to specifically resolve the conflict between the Ninth Circuit view as

stated in Pan Am and the view of "several state and federal courts."

Id ., 532 U.S. at 417-418, 121 S. Ct. at 1594. In our view, the holding in

Pan Am has been abrogated. Therefore, we find no basis for the

MM&A Court's conclusion that to be effective, a waiver of sovereign

immunity must unequivocally express a tribe's consent to suit. However, we need

not decide whether there is any real distinction between the Santa Clara

Pueblo "unequivocally expressed" rule and the C&L Enterprises

"clear waiver" rule. 11 "No case has ever held" that an Indian tribe must

use the words "sovereign immunity" to effect an explicit waiver of that

immunity. C&L Enters., 532 U.S. at 420, 121 S. Ct. at 1595, citing

this "cogent observation" in Sokaogon , 86 F.3d at 660, with approval.

¶25 Third, we agree with the MM&A Court that there is a difference

between delegation of tribal authority to waive sovereign immunity and the

actual waiver of that immunity. The standard applicable in each circumstance is

the precise issue we must resolve in this case. We do not agree, however, with

the MM&A Court's resolution of that issue:

Express authorization and express language are two distinct but related

issues, and requiring an express delegation of a tribe's authority to waive

its immunity is a logical and consistent application of the overarching

principle encompassing both issues: that the tribe itself must expressly

consent to a waiver of its immunity. See Santa Clara Pueblo , 436 U.S.

at 58, 98 S.Ct. 1670; Pan Am. Co ., 884 F.2d at 418. To hold otherwise

would result in waivers that could not be traced to any explicit action by a

tribe.

MM&A , 316 P.3d at 1253. For the reasons previously stated,

Santa Clara Pueblo does not require this result. And, we decline to adopt

the view urged by the Tribe: "the General Council must expressly state in the

authorizing resolutions that the Business Committee has the authority to waive

the Tribe's sovereign immunity." Although C&L Enterprises and similar

cases have established the law with respect to determining when a tribe has

waived its immunity from suit, only by implication do those cases address the

law applicable for determining whether one tribal entity has delegated authority

to waive the tribe's immunity to another tribal entity. 12 In our view, C&L

Enterprises sets the outer limits of the "delegation law" and stands for the

proposition that if state court jurisdiction can be predicated on a "clear

waiver" of tribal immunity, no more is required to determine that the entity

executing that waiver was delegated the authority to do so. And, just as no case

has held that the words "sovereign immunity" must be used by a tribe to

effectuate a waiver of immunity, no controlling authority has required the use

of specific language before one tribal entity can effectively delegate authority

to waive sovereign immunity to another tribal entity.

¶26 That conclusion still leaves us to determine what law to apply when

deciding whether a purported delegation of authority to waive immunity has been

sufficiently "clear." Although not controlling, we find some guidance on this

point in federal law regarding the interpretation of treaties between Indian

tribes and the federal government. "[W]e interpret Indian treaties to give

effect to the terms as the Indians themselves would have understood them."

Minnesota v. Mille Lacs Band of Chippewa Indians , 526 U.S. 172, 196, 119

S. Ct. 1187, 1201 (1999). "[T]his Court has often held that treaties with the

Indians must be interpreted as they would have understood them." Choctaw

Nation v. Oklahoma , 397 U.S. 620, 631, 90 S. Ct. 1328, 1334 (1970). In

addition, the United States Supreme Court has determined that a "natural

reading" of the treaty language can aid in the interpretation of the document.

Id . at 634, 90 S. Ct. at 1336. Consequently, we will interpret the

Tribe's Constitution and Resolutions as the Tribe appears to have understood

those documents. 13

¶27 The Constitution of the Apache Tribe of Oklahoma was first adopted on

February 5, 1972, and the applicable document was last amended on June 20, 1987.

Article III of the Tribe's Constitution states that the "supreme governing body

of the Apache Tribe of Oklahoma shall be the [General] Council." Although no

specific provision of the Apache Constitution authorizes it to do so, it is

clear that the General Council has authority to waive the Tribe's immunity from

suit. See e.g., Kiowa Tribe of Oklahoma , 523 U.S. at 760, 118 S. Ct. at

1705 (inherent in a sovereign's immunity from suit is the power to waive that

immunity). Further, the record in this case establishes that the Tribe has, on

occasion, exercised its power to waive that immunity. The Apache Tribe conducts

gaming operations in Oklahoma. To do so, the Tribe was required to enter into a

Tribal Gaming Compact with the State of Oklahoma. 3A O.S.2011 § 262. The form of that

contract is specified by statute and required the Tribe to waive sovereign

immunity, subject to certain limitations, with respect to tort claims and prize

claims against the Tribe and also required the Tribe to agree to waive sovereign

immunity and arbitrate any disputes with the State of Oklahoma concerning the

Compact. 3A O.S.2011 § 281;

Sheffer v. Buffalo Run Casino, PTE, Inc. , 2013 OK 77, 315 P.3d 359. Not only does the

General Council have authority to waive the Tribe's immunity but also it may

delegate that authority to another tribal entity even in the absence of any

specific Constitutional provision to do so. "[T]he General Council may, by

appropriate resolutions, delegate to the Business Committee the authority to

waive sovereign immunity on behalf of the Tribe." (Tribe's Petition for

Rehearing, p. 1). As stated, the fundamental issue in this case is whether the

General Council delegated authority to waive the Tribe's sovereign immunity to

the Apache Business Committee.

¶28 Article V of the Apache Constitution authorizes the establishment of a

business committee and provides:

This committee shall have such powers as may be delegated to it by

appropriate resolution of the General Council, and, within such delegated

authority, may transact business and otherwise speak or act on behalf of the

tribe in all matters on which the tribe is empowered to act now or in the

future.

Pursuant to this constitutional authority, the General Council established

the Apache Tribal Business Committee and adopted two Resolutions defining the

authority of that Committee. On August 26, 1972, the General Council passed

Resolution 73-1 by a vote of 52 to 0, providing:

WHEREAS, It has now come to the attention of the tribe to delegate more

authority to the Apache Tribal Business Committee.

NOW THEREFORE BE IT RESOLVED: That the tribe does hereby go on record to

delegate its full and complete authority to the Business Committee to

transact any and all business related to the tribe involving matters such as

tribal land, tribal budget and any other matters relating to government

programs and the Bureau of Indian Affairs. . . .

On September 10, 1977, the General Council passed Resolution 78-7 by a vote

of 32 to 0. That resolution provides:

WHEREAS, The General Council of the Apache Tribe recognizes the need for

the Business Committee to have some authority, and needs this authority

without the necessity of calling a General Council to act on business for

the tribe. According to Article V of the Apache Constitution of the Apache

Tribe of Oklahoma and,

WHEREAS, the Apache Tribe of Oklahoma does hereby go on record similar to

Resolution 73-1 to delegate authority to transact business related to the

Apache Tribe of Oklahoma

NOW THEREFORE BE IT RESOLVED that this foregoing Resolution will go on

record for the Business Committee.

These three provisions constitute the documentation of the Business

Committee's delegated authority in this record. Pursuant to this authority, the

Business Committee adopted Resolution 06-23-08 by a vote of three to zero on

June 23, 2008. 14 That Resolution approved the loan transaction with

the Bank, adopted the form of the Loan Agreement containing the waiver of Tribal

sovereign immunity, consent to jurisdiction in Oklahoma state and federal courts

and arbitration provision contained therein. The 2008 Resolution also authorized

the Chairman of the Business Committee to execute the Loan Agreement. The

Chairman signed the Loan Agreement with the Bank the same day.

¶29 The Tribe raises essentially two arguments in support of its contention

that the Business Committee did not have authority to waive Tribal sovereign

immunity. First, the Tribe relies on the obvious absence of any specific

reference to "sovereign immunity" in either Resolution 73-1 or Resolution 78-7.

The Tribe contends that authority to "transact business" does not include

authority to waive sovereign immunity. Therefore, the Tribe concludes, absent

specific authorization to waive sovereign immunity by the General Council, the

Tribe cannot be sued in Oklahoma state courts. As previously discussed, "[n]o

case has ever held" that an Indian tribe must use the words "sovereign immunity"

to effect an explicit waiver of that immunity. C&L Enters. , 532 U.S.

at 420-21, 121 S. Ct. at 1595. We will not be the first.

¶30 Second, the Tribe's argument misses the point. The question is not

whether the General Council signed some document agreeing the Business Committee

could waive sovereign immunity in conjunction with the Bank's loan. The question

is whether the General Council authorized the Business Committee to waive the

Tribe's sovereign immunity when necessary to "transact business." As previously

discussed, the Apache Constitution authorizes the General Council to establish a

business committee to "transact business and otherwise speak or act on behalf of

the tribe in all matters on which the tribe is empowered to act now or in the

future." We have previously established that one such "matter" is the General

Council's authority to delegate the power to waive sovereign immunity to the

Business Committee. The General Council may also define the limits of the

business committee's authority by "appropriate resolution." In this case, the

General Council did so through Resolution 73-1 and Resolution 78-7. 15 Therefore,

interpretation of these resolutions determines whether the General Council

delegated authority to the Business Committee to waive the Tribe's sovereign

immunity.

¶31 The Tribe argues that the language of Resolution 73-1 delegating the

Tribe's "full and complete authority to the Business Committee to transact any

and all business" is limited to matters involving only "tribal land, tribal

budget and any other matters relating to government programs and the Bureau of

Indian Affairs." Because the Apache Constitution only authorizes the Business

Committee to operate "within [its] delegated authority," the Tribe concludes

that this grant of authority does not extend to matters outside those areas,

including authority to borrow money to finance casino operations. We are willing

to assume that Resolution 73-1 is as limited as the Tribe contends. It must

follow, however, from a "natural reading" of Resolution 78-7 that the second

resolution expanded the Business Committee's original limited authority.

Resolution 78-7 contains a delegation of authority to transact business "similar

to Resolution 73-1" but omits the restriction to tribal lands, tribal budgets

and matters relating to government programs and the Bureau of Indian Affairs:

"the Apache Tribe of Oklahoma does hereby go on record similar to Resolution

73-1 to delegate authority to transact business related to the Apache Tribe of

Oklahoma." The only qualification in Resolution 78-7 is that the business must

be "related" to the Tribe. Because the subject matter of the two resolutions is

clearly related and Resolution 78-7 specifically refers to Resolution 73-1, we

find it reasonable to construe them together. And, from the language of

Resolution 78-7, this is how members of the Tribe appear to have understood the

relationship of the two resolutions. From the plain language of these two

Resolutions, we conclude that the General Council delegated "its full and

complete authority to the Business Committee to transact any and all business"

on behalf of the Tribe including authority to waive the Tribe's sovereign

immunity. 16

¶32 Dilliner , analyzing an apparently identical constitutional

provision, reached the same result. In that case, the tribal constitution also

contained a provision granting the business committee "the power to transact

business and to speak or act on behalf of the Tribe in all matters in which the

Tribe is empowered to act." Dilliner, 2011 OK 61, ¶ 2, 258 P.3d at 517.

Based on that authority, the Supreme Court held that the business committee had

authority to waive the tribe's sovereign immunity. Dilliner , however, is

distinguishable in one respect. In that case, the business committee adopted

by-law and resolution provisions prohibiting any single member of the committee

from acting on behalf of the committee and requiring the committee's consent by

resolution to any waiver of sovereign immunity. The committee authorized the

tribe's chief to sign employment contracts but because the committee did not

also consent to a waiver of the tribe's immunity, the waiver provisions in those

contracts were not effective and the tribe was immune from suit by the

employees. Here, the Business Committee has not adopted any similar provision

nor is there anything in the record limiting the Business Committee's authority

to waive the Tribe's sovereign immunity or specifying the procedure by which

that waiver must be accomplished.

¶33 This conclusion is supported by the evidence in the record reflecting how

the Tribe understood the authority delegated to the Business Committee pursuant

to these two Resolutions. As previously discussed, and as the language of the

Tribe's Constitution confirms, part of the Tribe's "full and complete authority"

is the authority to waive sovereign immunity as well as the authority to

delegate the authority to waive sovereign immunity to the Apache Business

Committee. We are convinced from a review of the relevant documents in this

record that Tribal officials and members of the Apache Tribe understood

Resolutions 73-1 and 78-7 as delegating authority to the Business Committee to

waive the Tribe's sovereign immunity when necessary to "transact business." 17

¶34 First, the members of the Business Committee who are also members of the

Tribe certainly understood that they had the authority to waive the Tribe's

sovereign immunity. Cf ., Native Am. Distrib. v. Seneca-Cayuga Tobacco

Co ., 546 F.3d 1288, 1293 (10th Cir.2008), relying on belief of tribal

business committee in establishing tribal entity to determine waiver of

sovereign immunity. Resolution 06-23-08 notes that the Business Committee is

vested with authority to negotiate and contract with private entities pursuant

to Resolutions 73-1 and 78-7, and goes on to specifically approve the waiver of

sovereign immunity expressed in the Loan Agreement. That Resolution is signed by

the Chairman and Vice-Chairman. The Chairman and Vice-Chairman of the Business

Committee are, pursuant to Articles IV and V of the Apache Constitution, also

the Chairman and Vice-Chairman of the Apache Tribe. In addition, a Borrower's

Opinion was issued on June 23, 2008, by the Tribe's legal counsel in conjunction

with, and as a condition to, the Bank's loan. That document states, in part,

that the Business Committee has the "full power to bind" the Tribe with respect

to the Loan Agreement and has authorized the Chairman of the Business Committee

to execute the Loan Agreement; that with respect to the Loan Agreement

transaction, the Tribe has waived its sovereign immunity, consented to binding

arbitration and to the jurisdiction of the courts of the State of Oklahoma, and

that "all necessary tribal action required under the tribal law . . . has been

taken by the [Tribe] with respect to the foregoing." Finally, a letter also

dated June 23, 2008, from legal counsel for the Apache Gaming Commission states

that the Business Committee is "authorized to transact business and exercise its

powers as an Indian tribe and has approved" the Loan Agreement and that other

than Business Committee Resolution 06-23-08, which was "duly approved and

obtained," no Tribal approval, consent or authorization was necessary to

effectuate the transaction contemplated by the Loan Agreement. 18

¶35 Second, we note that the Arbitrator also found that pursuant to the

authority granted in Resolutions 73-1 and 78-7, the Apache Business Committee

"has repeatedly and routinely entered into contracts on behalf of the Tribe and

waived the Tribe's sovereign immunity from suit." For the reasons stated in Part

I of this Opinion, we have not relied on this finding in determining the

jurisdiction of the Oklahoma courts. However, the record contains evidence of

four transactions that support the Arbitrator's finding. In May of 2006, the

Business Committee adopted a resolution approving agreements with Eagle Visions

Gaming Group of Oklahoma, Inc., a Florida corporation, for the development,

construction and financing of the Silver Buffalo Casino. A limited waiver of

sovereign immunity was included in that resolution. In September of 2007, the

Business Committee adopted a resolution selecting Icon Builders as the

contractor for a sports bar at the Silver Buffalo Casino and authorizing the

execution of a contract between the Tribe and Icon. That contract contained an

arbitration agreement, consent to jurisdiction in federal court or "the state

court of Caddo County" for the enforcement of any arbitration award and a

limited waiver of sovereign immunity to the extent necessary to enforce "the

arbitrator's decision." In November of 2007, the Business Committee adopted a

resolution approving a loan to purchase property for the construction of a

gaming facility. The resolution contained a waiver of sovereign immunity with

respect to the loan transaction, agreement to arbitrate disputes, and a consent

to be sued in federal court or, if jurisdiction was lacking, in the general

jurisdiction courts of the State of Oklahoma to enforce any arbitration award or

judgment confirming that award. In December of 2007, the Business Committee

adopted a resolution approving a financial services agreement with KAGD, LLC.

That resolution and the related document also contain a limited waiver of

sovereign immunity. Each of the 2007 resolutions references Resolutions 73-1 and

78-7 as the authority for the Business Committee's action. The 2006 resolution

states that the Business Committee is acting "pursuant to its delegated

authorities under the Constitution of the Apache Tribe of Oklahoma."

¶36 Therefore, pursuant to Resolutions 73-1 and 78-7, we find that the

General Council delegated "its full and complete authority to the Business

Committee to transact any and all business" including the authority to waive the

Tribe's sovereign immunity when necessary to transact that business. It is

undisputed that the Loan Agreement contains an express waiver of the Tribe's

sovereign immunity and consent to be sued in the courts of Oklahoma which fully

satisfy all requirements of federal law. Consequently, the district court and

this Court have jurisdiction over the Tribe in this case.

III. Appellate Review of the Arbitration Award

¶37 The Tribe's second assignment of error regarding the confirmation of the

arbitration award argues that the assignment of Casino revenues in the Loan

Agreement converts that instrument into a management contract that must be

approved by the National Indian Gaming Commission. Because there was no such

approval, the Tribe argues the Loan Agreement violates the Indian Gaming

Regulatory Act and is, therefore, void ab initio as is any purported

waiver of sovereign immunity and consent to arbitration contained therein. This

issue was litigated in the arbitration proceeding and the Arbitrator found that

the "pledge of gross revenues does not make the Loan Agreement a management

contract." The Arbitrator also concluded as a matter of law that the Loan

Agreement was not void. The Arbitrator held, therefore, that the Bank was

entitled to enforce the terms of the Loan Agreement which included the right to

compel arbitration and enforce any arbitration award in Oklahoma or federal

court.

¶38 The Tribe's argument concerns the validity of the Loan Agreement, not

just the validity of the arbitration agreement. The Tribe argues that Oklahoma

courts, not the Arbitrator, must decide that issue because it determines whether

the Oklahoma courts have jurisdiction. However, the authority supporting the

Tribe's argument has now been abrogated. See Nitro-Lift Techs.,

L.L.C. , 133 S. Ct. 500 (2012). "[U]nless the challenge is to the arbitration

clause itself, the issue of the contract's validity is considered by the

arbitrator in the first instance." Buckeye Check Cashing, Inc. v.

Cardegna , 546 U.S. 440, 445-46, 126 S. Ct. 1204, 1209 (2006).

¶39 As discussed in Part I of this Opinion, our review of the Arbitrator's

decision that the Loan Agreement is not a void management contract is limited by

the Federal Arbitration Act:

(a) In any of the following cases the United States court in and for the

district wherein the award was made may make an order vacating the award

upon the application of any party to the arbitration--

. . . .

(4)

where the arbitrators exceeded their powers, or so imperfectly executed them

that a mutual, final, and definite award upon the subject matter submitted

was not made.

9 U.S.C. § 10 (2002).

In either of the following cases the United States court in and for the

district wherein the award was made may make an order modifying or

correcting the award upon the application of any party to the

arbitration--

. . . .

(b) Where the arbitrators have awarded upon a

matter not submitted to them, unless it is a matter not affecting the merits

of the decision upon the matter submitted.

9 U.S.C. § 11 (1947). Sections 10 and 11 provide the "exclusive regimes" for

judicial review of an arbitration award provided by the Federal Arbitration Act.

Hall Street Assocs., L.L.C. v. Mattel, Inc. , 552 U.S. 576, 590, 128 S.

Ct. 1396, 1406 (2008). Determining whether the Arbitrator exceeded his authority

in deciding that the Loan Agreement was valid in this case is determined by

whether the parties agreed to arbitrate the "management contract" issue.

Paragraph 11.24(a) of the Loan Agreement defining the matters the parties agreed

to arbitrate includes "any action, dispute, claim or controversy of any kind . .

. now existing or hereafter arising under or in connection with, or in any way

pertaining to, any of the Loan Documents. . . ." Consequently, and unlike the

issue of jurisdiction, the parties agreed to arbitrate whether the Loan

Agreement was void because it was an unapproved management agreement. Because

the arbitrator did not exceed his authority in deciding that issue, his decision

will not be set aside. Kaplan , 514 U.S. at 942, 115 S. Ct. at 1923.

IV. Post-Arbitration Orders

¶40 In addition to the Judgment confirming the Arbitration Award, the

district court entered three orders which the Tribe has appealed: the March 19,

2012, Injunction, the March 27, 2012, Order and the April 3, 2012, Turnover

Order. These orders were entered in aid of the Bank's efforts, begun in January

of 2012, to collect its Judgment. For example, on January 10, 2012, the district

court entered orders directed to four individuals including the manager of the

Tribe's casinos to appear and answer as to the assets of the casinos. Those

orders were entered pursuant to Oklahoma's enforcement of judgment statutes.

At any time after a final judgment, order, or decree is filed, on

application of the judgment creditor, a judge of the court in which the

final judgment, order, or decree was rendered shall order the judgment

debtor to appear before the judge . . . at a time and place specified in the

order, to answer concerning the judgment debtor's

property.

12 O.S.2011 § 842(A). During

its collection efforts, the Bank learned that a certain amount of cash generated

from casino operations was stored in casino vaults. On March 19, 2012, the Bank

filed two motions, Plaintiff's Verified Ex Parte Petition for a Temporary

Restraining Order ( Ex Parte Motion), and Plaintiff's Motion for an Order

Compelling the Turnover of Cash (Turnover Motion). The district court granted

the Bank's Ex Parte Motion, entered the March 19 Injunction restraining

the Tribe's use of casino funds.

¶41 On March 27, 2012, the Tribe filed its Motion to Vacate March 19 Order

Granting Temporary Restraining Order. After a hearing in the district court held

on March 27, the Tribe's motion to vacate was denied. On March 29, the Tribe

filed its petition in error appealing the March 19 Injunction and the March 27

denial of its motion to vacate. The Bank's Turnover Motion was heard on April 3,

2012. At the conclusion of that hearing, the district court entered the Turnover

Order. The Tribe filed its appeal of the Turnover Order on May 4, 2012.

¶42 The Tribe's objections to the three post-Judgment orders can be

summarized as follows: (1) the district court did not have subject matter

jurisdiction to enter the March 19 Injunction or the April 3 Turnover Order

because the property affected is located on Tribal land, (2) the Tribe's March

29 appeal of the March 27 Order denying its motion to vacate deprived the

district court of jurisdiction to enter the April 3 Turnover Order, (3) the

March 19 Injunction violates Rules 5 and 13(B) of the district court, is void

because it was entered without the statutorily required notice and fails to show

the requisite irreparable harm, and (4) the March 19 Injunction and the April 3

Turnover Order are preempted by the Indian Gaming Regulatory Act.

A. Subject Matter Jurisdiction

¶43 The March 19 Injunction temporarily prohibited the manager of the Tribe's

casinos from using casino cash for any purpose other than to pay winnings to

casino customers until the Bank's Turnover Motion could be heard. The Turnover

Order directed the Tribe to deliver $130,000 to counsel for the Bank. The Tribe

argues that the district court lacked subject matter jurisdiction to enter these

orders because the casinos are located on Tribal land. The Tribe contends that

there is a difference between consenting to the jurisdiction of a state court

and that court's power to exercise jurisdiction over property located on Tribal

land. The Tribe notes that when Oklahoma was admitted to the Union, the

inhabitants of the State disclaimed "all right and title in or to . . . all

lands lying within said limits owned or held by any Indian, tribe, or nation . .

. ." Oklahoma Enabling Act, 34 Stat. 267-278 § 3 (1906). This disclaimer is

confirmed in Article I, § 3 of the Oklahoma Constitution: "The people inhabiting

the State do agree and declare that they forever disclaim all right and title in

or to any unappropriated public lands lying within the boundaries thereof, and

to all lands lying within said limits owned or held by any Indian, tribe, or

nation . . . ."

¶44 The Tribe cites cases recognizing that state courts do not have

"jurisdiction over Indian tribes and tribal members in Indian country . . . in

the absence of express authorization by treaty or by Congress" or waiver of

sovereign immunity by the tribe. Waltrip v. Osage Million Dollar Elm

Casino , 2012 OK 65, ¶ 19,

n.7, 290 P.3d 741, 747, n.7. The

Tribe concludes that even if it waived sovereign immunity, it did not consent to

Oklahoma court jurisdiction over its property located on tribal land, citing

In re Prairie Island Dakota Sioux , 21 F.3d 302, 305 (8th Cir. 1994) ("[a]

waiver of sovereign immunity cannot extend a court's subject matter

jurisdiction.").

¶45 The Tribe's argument fails for two reasons. First, the Constitutional

disclaimer to any right and title to land owned by the Tribe is not a disclaimer

to any interest to the proceeds of gaming operations conducted on that land to

the extent that revenue was generated from nonmembers of the Tribe. Cf. ,

Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma ,

498 U.S. 505, 111 S. Ct. 905 (1991) (state may tax sales of cigarettes on tribal

land to nontribal members).

¶46 Second, the Tribe's argument fails to account for the possibility, as

occurred in this case, that an Indian tribe may voluntarily relinquish title to

its property wherever that property might be located. The Bank's ability to

collect its Judgment in this case does not depend on an agreement with the Tribe

creating jurisdiction in Oklahoma courts that otherwise did not exist, as was

the case in the Prairie Island Dakota Sioux case. The district courts of

Oklahoma have virtually unlimited subject matter jurisdiction. "The District

Court shall have unlimited original jurisdiction of all justiciable matters,

except as otherwise provided in this Article. . . ." Okla. Const. art. VII, §

7(a). That jurisdiction includes jurisdiction to enforce judgments rendered by

the district court. "At any time after judgment, any property of the judgment

debtor . . . unless by law expressly excluded from being reached by creditors

shall be subject to the payment of such judgment, by action, or as hereinafter

provided." 12 O.S.2011 § 841.

"The ultimate purpose of [Oklahoma's enforcement of judgment statutes, 12 O.S.2011 §§ 841 through 862] is

to effect the application of a judgment debtor's property to a judgment."

Ramco Operating Co. v. Gassett , 1995 OK 8, ¶ 12, 890 P.2d 941, 944. Consequently, the

Tribe's waiver of sovereign immunity, choice of Oklahoma law and consent to

enforcement of the arbitration award in the courts of Oklahoma did not create

any subject matter jurisdiction the district court did not already have; it

merely provided the Bank a judicial forum for the enforcement of its Judgment

the Bank would not have had absent the Tribe's consent.

¶47 As noted by the United States Supreme Court in C&L

Enterprises , 532 U.S. at 420, 114 S. Ct. at 1595, interpreting almost

identical arbitration and choice of law provisions, the "regime to which the

Tribe subscribed includes entry of judgment upon an arbitration award" in any

court of competent jurisdiction including the district courts of Oklahoma.

Id. As in C&L Enterprises , the Tribe agreed in paragraph

11.24(b) of the Loan Agreement that: "Judgment upon any award rendered in an

arbitration may be entered in any court having jurisdiction . . . ." But unlike

the Potawatomi Tribe in C&L Enterprises , in this case the Tribe also

specifically agreed that the district court was one of those courts:

THE [TRIBE] HEREBY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF

THE COURTS OF THE STATE OF OKLAHOMA . . . .

and IN THE EVENT A SUIT IS

COMMENCED ON THIS AGREEMENT . . . (INCLUDING FOR THE ENFORCEMENT OF AN

ARBITRATION AWARD), THE [TRIBE] COVENANTS THAT IT WILL NOT DISPUTE THE

JURISDICTION OF THE COURTS OF THE STATE OF OKLAHOMA . . .

.

Paragraphs 11.27(B) and 11.27(D) (emphasis in original). We find the Tribe's

argument that the district court did not have subject matter jurisdiction to

enter the March 19 Injunction and April 3 Turnover Order unpersuasive.

B. Appellate Jurisdiction

¶48 The Tribe also challenges the district court's jurisdiction to enter the

April 3 Turnover Order contending its March 29 appeal of the March 19 Injunction

and March 27 Order denying the Tribe's motion to vacate deprived the district

court of jurisdiction because its petition in error vested exclusive

jurisdiction of the case in the Supreme Court, citing 12 O.S.2011 § 990.1: "When a

petition in error is timely filed, the Supreme Court shall have jurisdiction of

the entire action that is the subject of the appeal." The Tribe's argument is

too narrowly focused.

¶49 For example, the Judgment confirming the Bank's arbitration award was

filed on November 15, 2011. The Tribe's petition in error appealing that

Judgment was filed December 13, 2011. Following the Tribe's argument, the

district court lost jurisdiction of the case at that point. However, the Tribe's

argument ignores the fact that even after an appeal is filed, the district court

retains jurisdiction for some purposes including jurisdiction to decide the

Tribe's motion to vacate 19 and jurisdiction to "take action with respect to

any issue collateral to a pending appeal." See Supreme Court Rule

1.37(a)(3) and (7). One matter collateral to the Tribe's March 29 appeal was the

Bank's effort to enforce its Judgment. Grand River Dam Auth. v. Eaton , 1990 OK 133, ¶ 13, 803 P.2d 705, 709 (during appeal,

successful party may enforce a judgment by execution, and collect its award,

unless the defeated party secures payment of the judgment by deposit of money or

an undertaking). The Tribe did not seek to stay enforcement of the Bank's

Judgment pursuant to 12 O.S.2011 §

990.4. Consequently, the Bank was free to pursue collection of its Judgment

despite the Tribe's appeal. Cf. , Lawrence v. Cleveland County Home

Loan Auth. , 1981 OK 28, ¶¶ 4

& 6, 626 P.2d 314, 316 (appeal

moot where appellant failed to stay the judgment appealed "by judicially

approved stay process" and the transaction challenged on appeal had been

completed).

C. The Notice Argument

¶50 As previously discussed, the district court issued an injunction on March

19, 2012, restraining the Tribe, its casinos and the casino manager from using

casino cash for any purpose other than the payment of winnings to casino

customers. The Tribe contends the injunction was issued pursuant to Title 12 O.S.2011 § 1384.1. 20 The Tribe

argues the Injunction was issued without the required statutory notice and in

violation of the Rules of the district court prohibiting ex parte

communications with the assigned judge and notice to the opposing side prior to

entry of a temporary restraining order. The Tribe also argues on appeal that the

Bank's collection action is one for money only and, therefore, that the Bank

failed to show the irreparable harm necessary for the issuance of an injunction,

citing section 1384.1(B)(1). This latter argument was not presented in the

Tribe's motion for new trial and will not be considered for the reasons

previously stated in Part IV (B) of this Opinion.

¶51 We find unpersuasive the Tribe's argument that the March 19 Injunction is

void because it was issued without notice to the Tribe. Although styled as a

temporary restraining order, the district court's March 19 Injunction is not a

temporary restraining order. "The meaning and effect of an instrument filed in

court depends on its contents and substance rather than on the form or title

given it by the author." Whitehorse v. Johnson , 2007 OK 11, ¶ 8, n.13, 156 P.3d 41, 45, n.13. As the Bank

points out, a section 1384.1 temporary restraining order is a precursor to a

section 1382 temporary injunction. A temporary injunction is one issued "during

the litigation." 12 O.S.2011 §

1382. The March 19 Injunction was issued after Judgment had been

entered.

¶52 Further, the March 19 Injunction was entered pursuant to Title 12 O.S.2011 § 842(A):

At any time after a final judgment, order, or decree is filed, on

application of the judgment creditor, a judge of the court in which the

final judgment, order, or decree was rendered shall order the judgment

debtor to appear before the judge . . . to answer concerning the judgment

debtor's property. The judge may, by order, enjoin the judgment debtor from

alienating, concealing, or encumbering any of the judgment debtor's

nonexempt property pending the hearing and further order of the court. . .

.

Section 1384.1 does not apply to "proceedings brought pursuant to special

statutes that provide alternate procedures for the obtaining of temporary

restraining orders or temporary injunctions." 12 O.S.2011 § 1384.1(E). There is no

prohibition in section 842(A) against the entry of an injunction preserving a

judgment debtor's assets without prior notice to the party enjoined.

¶53 Finally, the district court issued the four January 2012 orders to appear

and answer as to the Tribe's assets previously described. Those orders were

issued pursuant to section 842(A) as well, and contained the same injunction

prohibiting the alienation, concealment or encumbrance of casino assets

contained in the March 19 Injunction, yet the Tribe did not object to or appeal

those orders. As authorized by section 842(A), the district court's March 19

Injunction ordered the Tribe not to use casino cash for any purpose other than

the payment of winnings until the hearing on the Bank's Turnover Motion. That

hearing was scheduled for the following day but, at the Tribe's request, was not

held until April 3, 2012. The Tribe has failed to cite any legal authority

supporting its argument that it was entitled to notice prior to the issuance of

the March 19 Injunction.

D. The Preemption Argument

¶54 Finally, the Tribe argues that the district court did not have

jurisdiction to enter the March 19 Injunction and April 3 Turnover Order because

the court's authority to do so has been preempted by the Indian Gaming

Regulatory Act, 25 U.S.C. §§ 2701 to 2721 (1988). The Tribe's preemption

argument can be summarized as follows: (1) Pursuant to the IGRA, 25 U.S.C. §

2701(5) (1988), the Tribe has the "exclusive right to regulate gaming activity"

on Tribal land; (2) The IGRA was intended by Congress to completely preempt

state law in this area; (3) The March 19 Injunction and April 3 Turnover Order

interfere with the Tribe's regulation of its gaming activity. (4) The IGRA

preempts the March 19 Injunction and April 3 Turnover Order. 21

¶55 The federal preemption doctrine is derived from the Supremacy Clause of

the United States Constitution. Felder v. Casey , 487 U.S. 131, 138, 1108

S. Ct. 2302, 2307 (1988). When employed, the doctrine will restrain the

enforcement of a state common law, statute or regulation. Cipollone v.

Liggett Group, Inc. , 505 U.S. 504, 522, 112 S. Ct. 2608, 2620 (1992).

Preemption is either expressed in federal legislation or implied from

Congressional intent. Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm'n , 461 U.S. 190, 203-04, 103 S. Ct. 1713, 1722

(1983). There is no express preemption of state law in the language of the IGRA.

Therefore, the Tribe's preemption argument depends on whether preemption can be

implied from the IGRA. Implied preemption is of two types, field preemption or

conflict/obstacle preemption. Gade v. National Solid Wastes Mgmt. Ass'n ,

505 U.S. 88, 98, 112 S. Ct. 2374, 2383 (1992). The "ultimate purpose" in any

preemption analysis is to determine whether state regulation is inconsistent

with a federal law. Id . Consequently, the focus of the Tribe's argument

is not just the March 19 Injunction or the April 3 Turnover Order but also the

Oklahoma law pursuant to which the district court was authorized to issue those

orders. As previously discussed, the March 19 and April 3 orders were issued

pursuant to Oklahoma's enforcement of judgment statutes, 12 O.S.2011 §§ 841 through 862.

¶56 No United States Supreme Court decision has addressed the preemptive

effect of the IGRA. That Court has, however, decided cases involving other

federal statutes that provide the analytical framework for resolving the tribe's

preemption argument. These cases teach that the language of the federal statute

is critical to the analysis. See Gade , 505 U.S. at 98, 112 S. Ct.

at 2383 (state licensing and training law that directly, substantially, and

specifically regulates occupational safety and health is an occupational safety

and health standard within the meaning of the Occupational Health and Safety Act

and is preempted); Cipollone , 505 U.S. at 522, 112 S. Ct. at 2620

(Federal Cigarette Labeling and Advertising Act preempted state law failure to

warn claims but not breach of warranty claims); Bates v. Dow Agrosciences

LLC ., 544 U.S. 431, 125 S. Ct. 1788 (2005) (for state law to be preempted by

the Federal Insecticide, Fungicide, and Rodenticide Act it must require

"labeling or packaging" that is "in addition to or different from" the federal

Act because that is the statutorily defined province of the FIFRA).

¶57 Although the IGRA has not been addressed by the United States Supreme

Court, it has been the subject of decisions from federal Circuit Courts of

Appeal. The Tribe cites Gaming Corporation of America v. Dorsey &

Whitney , 88 F.3d 536 (8th Cir. 1996), for the proposition that the IGRA was

intended to "completely preempt state law" in the field of the "governance of

Tribal gaming activities." Id . at 544 (state law claims against law firm

representing tribe during its gaming license process were preempted). The Tribe

also relies on United Keetoowah Band of Cherokee Indians v. State of Oklahoma

ex rel. Moss , 927 F.2d 1170, 1181 (10th Cir. 1991) (holding the IGRA bars

federal courts from enjoining Indian bingo games through application of state

criminal law because "Congress has clearly occupied the regulatory field on

Indian gaming."). These decisions are thorough, well-reasoned and persuasive. We

conclude, as did the Eighth and Tenth Circuit Courts of Appeal, that the IGRA

preempts the field in the regulation of "gaming activity." 25 U.S.C. § 2701(5)

(1988).

¶58 However, field preemption does not bar all state laws. Even though state

laws that have a "direct and substantial effect" on the federal scheme are

preempted, state laws of general applicability are not normally preempted.

Gade , 505 U.S. at 107, 112 S. Ct. at 2387. See also ,

Gaming Corp. of America , 88 F.3d at 550:

Those causes of action which would interfere with the [Tribe's] ability

to govern gaming should fall within the scope of IGRA's preemption of state

law. . . .

Potentially valid claims under state law are those which would not

interfere with the nation's governance of gaming.

The March 19 Injunction and the Turnover order were issued pursuant to

Oklahoma's enforcement of judgment statutes. Those statutes are generally

applicable regardless of the subject matter of the litigation in which the

judgment was entered. Consequently, for the Tribe to prevail it must demonstrate

that those statutes regulate the Tribe's gaming activity.

¶59 We are aided in our determination of this issue by federal decisions

involving the IGRA and other state laws of general application. See

Mashantucket Pequot Tribe v. Town of Ledyard , 722 F.3d 457 (2nd Cir.

2013) (state personal property tax on slot machines owned by non-Indians but

leased to Indian tribe not preempted by IGRA even though tribe agreed to

reimburse non-Indian lessor for the tax); Barona Band of Mission Indians v.

Yee , 528 F.3d 1184 (9th Cir. 2008) (IGRA does not preempt state sales tax on

construction materials purchased by non-Indians from non-Indians even though

used to construct tribal gaming facility and tribe agreed to reimburse

contractor for any state sales tax); Casino Res. Corp. v. Harrah's Entm't,

Inc. , 243 F.3d 435 (8th Cir. 2001) (IGRA does not preempt state common law

breach of contract suit by non-Indian co-developer of tribal casino against

other non-Indian co-developer that terminated negotiations with tribe);

Confederated Tribes of Siletz Indians of Oregon v. State of Oregon , 143

F.3d 481 (9th Cir. 1998) (preemption analysis unnecessary to determine impact on

tribe's gaming activity of state investigative report because tribal/state

gaming compact provided for the application of state law and pursuant to state

open records law, investigative report was a public record).

¶60 In addition to these IGRA cases, we find particularly instructive the

basis on which the Plurality in Cipollone found state law breach of

warranty claims were not preempted by the cigarette labeling act.

A manufacturer's liability for breach of an express warranty derives

from, and is measured by, the terms of that warranty. Accordingly, the

"requirement[s]" imposed by an express warranty claim are not "imposed under

State law," but rather imposed by the warrantor. . . . While the general

duty not to breach warranties arises under state law, the particular

"requirement . . . based on smoking and health ... with respect to the

advertising or promotion [of] cigarettes" in an express warranty claim

arises from the manufacturer's statements in its advertisements. In short, a

common-law remedy for a contractual commitment voluntarily undertaken should

not be regarded as a "requirement . . . imposed under State law " within the

meaning of § 5(b) [of the cigarette labeling act].

Cipollone , 505 U.S at 525-26, 112 S. Ct. at 2622. The Court elaborated

on this analysis in footnote twenty-four: "common understanding dictates that a

contractual requirement, although only enforceable under state law, is not

'imposed' by the State, but rather is 'imposed' by the contracting party upon

itself." Id ., 505 U.S. at 526, n.24, 112 S. Ct. at 2622, n.24. This view

was later adopted by the Supreme Court: "a cause of action on an express

warranty asks only that a manufacturer make good on the contractual commitment

that it voluntarily undertook by placing that warranty on its product."

Bates , 544 U.S. at 444, 125 S. Ct. at 1788. Here, we also deal with a

contractual provision voluntarily undertaken by the Tribe to submit to the laws

of the State of Oklahoma for the enforcement and collection of any judgment

entered on an arbitration award. As the Casino Resource court correctly

noted: "Not every contract that is merely peripherally associated with tribal

gaming is subject to IGRA's constraints." Casino Resource , 243 F.3d at

439. The fact that the purpose of this contract was to obtain a loan to fund the

Tribe's gaming operation does not change our conclusion. "Extending IGRA to

preempt any commercial activity remotely related to Indian gaming-employment

contracts, food service contracts, innkeeper codes-stretches the statute beyond

its stated purpose." Barona Band of Mission Indians , 528 F.3d at 1193.

Further, we find nothing inconsistent with Oklahoma's general enforcement of

judgment statutes and the Federal Indian policy stated in the IGRA of promoting

"tribal economic development, tribal self-sufficiency, and strong tribal

government." 25 U.S.C. § 2701(4) (1988). 22 In short, the transaction resulting

in the Loan Agreement is simply not in the "field" regulated by the IGRA.

Consequently, the Tribe's preemption argument fails.

CONCLUSION

¶61 Pursuant to its constitutional authority, the General Council of the

Apache Tribe of Oklahoma established a Business Committee and delegated to that

Committee the Tribe's full and complete authority to transact business on behalf

of the Tribe, including authority to waive the Tribe's sovereign immunity and

consent to arbitration. The Business Committee was authorized to execute the

Loan Agreement with Wells Fargo Bank. The Loan Agreement contains a clear and

express limited waiver of the Tribe's sovereign immunity, a consent to arbitrate

disputes and an agreement that any arbitration award can be reduced to judgment

and enforced in the courts of Oklahoma. The Loan Agreement is enforceable

against the Tribe. The Judgment of the district court confirming the arbitration

award in favor of Wells Fargo Bank is affirmed except to the extent that the

Judgment confirms the arbitrator's decision that the Loan Agreement contains a

valid waiver of the Tribe's sovereign immunity. That portion of the Judgment is

reversed. The district court's March 19, 2012 Order Granting Temporary

Restraining Order, March 27, 2012 Order Denying Apache Tribe of Oklahoma's

Motion to Vacate March 19 Order Granting Temporary Restraining Order, and April

3, 2012 Order Compelling the Turnover of Cash Held at the Silver Buffalo and

Golden Eagle Casinos are affirmed, and this case is remanded for further

proceedings.

¶62 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS .

BARNES, V.C.J., and WISEMAN, J., concur.

FOOTNOTES

1

Although Judge Graves issued the Judgment confirming the arbitration award,

Judge Croy issued the subsequent orders appealed.

2 This

Opinion was originally issued on December 31, 2013. We granted rehearing at the

Tribe's request to address supplemental authorities relied on by the

Tribe.

3

Although the Tribe's Constitution refers to a "tribal council," the Tribe's

documents in this record refer to a "general council" rather than the tribal

council. It was established at oral argument that the terms are used

interchangeably and describe the same entity, the "supreme governing body of the

Apache Tribe of Oklahoma." We will refer to the Tribe's governing body as the

General Council.

4 A more

detailed statement of the parties' transactions and the litigation history of

this dispute is contained in the Arbitration Award.

5

Although titled as a temporary restraining order, for the reasons stated in Part

IV (C) of this Opinion, the March 19 Order is an injunction entered pursuant to

12 O.S.2011 § 842(A), not a

temporary restraining order.

6 We

apply federal law in this instance for the reasons stated in Part III of this

Opinion.

7 The

Tribe argues that the Bank waived its right to rely on the Federal Arbitration

Act by moving to confirm its arbitration award in Oklahoma district court

pursuant to the Oklahoma Arbitration Act. The Tribe contends, therefore, that

the Oklahoma Uniform Arbitration Act controls. The Loan Agreement does state

that it "shall be governed by, construed and enforced in accordance with, the

internal law of the State of Oklahoma." However, the arbitration provision

provides: "All Disputes submitted to arbitration shall be resolved in accordance

with the Federal Arbitration Act . . . notwithstanding any conflicting choice of

law provision in any of the Loan Documents." After the Nitro-Lift

Technologies, L.L.C. v. Howard , 133 S. Ct. 500 (2012), decision, we find no

difference in the scope of judicial review regardless of which arbitration act

is applied and the parties were unable to point to any difference at oral

argument. Cf ., Rogers , 2005 OK 51, ¶ 15, 138 P.3d 826, 830: "In Oklahoma

state courts, the [Oklahoma Uniform Arbitration Act] determines how proceedings

on an application to compel arbitration shall be conducted so long as the OUAA

does not frustrate the purposes underlying the [Federal Arbitration Act]."

Therefore, as the parties agreed in the Loan Agreement, we will apply the

Federal Arbitration Act and federal decisions interpreting that Act.

8

See Kiowa Tribe of Oklahoma , 523 U.S. at 756-60, 118 S. Ct. at

1703-05, explaining the origins of the tribal sovereign immunity

doctrine.

9 We note

that the record in this case is more fully developed regarding the authority of

the Business Committee than was the record in First Nat'l Bank and Trust v.

Maynahonah , 2013 OK CIV APP

101, 313 P.3d

1044.

10

Like Kiowa , this case arises out of the breach of a commercial,

off-reservation contract by a federally recognized Indian Tribe. The petitioning

contractor, C & L, does not contend that Congress has abrogated tribal

immunity in this setting. The question presented is whether the Tribe has waived

its immunity.

To abrogate tribal immunity, Congress must "unequivocally" express that

purpose. Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58, 98 S.Ct. 1670,

56 L.Ed.2d 106 (1978) (citing United States v. Testan , 424 U.S. 392, 399,

96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Similarly, to relinquish its immunity, a

tribe's waiver must be "clear." Oklahoma Tax Comm'n v. Citizen Band

Potawatomi Tribe of Okla. , 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d

1112 (1991). We are satisfied that the Tribe in this case has waived, with the

requisite clarity, immunity from the suit C & L brought to enforce its

arbitration award.

C&L Enters. , 532 U.S. at 418, 121 S. Ct. at 1594.

11 To

the extent there is a difference, the more restrictive Santa Clara Pueblo

rule could be interpreted to foreclose waivers based on conduct intended by a

tribe to waive its immunity from suit or, if not specifically intended, waiver

of immunity would be the unavoidable consequence of that conduct. Litigation

conduct, for example, including voluntarily invoking state or federal court

jurisdiction in lieu of tribal court alternatives, might require waiver of

tribal immunity even in the absence of an unequivocal expression to do

so.

12

C&L Enterprises declined to specifically address the tribe's belated

argument that the tribal officials who signed the contract containing the waiver

of immunity did not have authority to do so. C&L Enters. , 532 U.S. at

423, n.6, 121 S. Ct. 1597, n.6.

13 In

its Petition for Rehearing, the Tribe criticizes this approach and argues for a

strict construction against waiver and a resolution of all ambiguities in favor

of the Tribe without regard to the Tribe's understanding of its internal

documents. Pushed to its logical conclusion, this argument would result in a

construction that produced a litigation victory avoiding commercial liability

although every tribal member and tribal official believed the tribe had waived

its immunity from suit for the transaction. We have found only two cases that

seem to acknowledge this approach, Kiowa Tribe of Oklahoma, Inc. , 523

U.S. at 758, 118 S. Ct. at 1704 ("At one time, the doctrine of tribal immunity

from suit might have been thought necessary to protect nascent tribal

governments from encroachments by States"), and Sokaogon , 86 F.3d at 659

("the only purpose that a requirement of a clear statement could serve would be

the admittedly, perhaps archaically, paternalistic purpose of protecting the

tribe against being tricked by a contractor into surrendering a valuable right

for insufficient consideration.") We have found no case in which a court has

engaged in a particular construction to protect the tribe from "itself."

MM&A , 316 P.3d at 1253.

14 The

record contains what appear to be minutes of the annual meeting of the General

Council held on June 21, 2008, and purporting to recall and remove the Chairman

and Vice-Chairman of the Business Committee, two of the signatories to this

Resolution. However, the record also contains letters from the Department of the

Interior dated as late as October 22, 2008, recognizing the Chairman and

Vice-Chairman as members of the Business Committee elected at a May 10, 2008,

election. Article VII, Section 2 of the Apache Constitution provides that

members of the Business Committee "shall serve until their successors are

elected and certified." There is no evidence in this record of any election

between the May 10, 2008, election and the June 23, 2008, execution of the Loan

Agreement, and the Tribe does not contend that the Chairman and Vice-Chairman

were not members of the Business Committee on June 23, 2008 or that they were

not authorized to act on behalf of the Committee on that date.

15 We

recognize that these Resolutions and the general authority to transact business

granted therein have been interpreted as not authorizing the Business Committee

to cede Tribal jurisdiction to the Court of Indian Offenses with respect to

internal tribal government disputes. See Apache Election Board, et al.

v. Alonzo Chaleph, et al. and the Honorable Phil Lujan , CIV-06-A05P filed

November 16, 2007, in the Court of Indian Appeals for the Apache Tribe of

Oklahoma. We also find nothing in Resolutions 73-1 or 78-7 granting the Business

Committee any authority over internal tribal government disputes. However, the

Tribe's transactions with the Bank did not, at least initially, involve internal

tribal government disputes.

16 The

"plain language" construction of these documents is consistent with the manner

of interpretation utilized by the United States Department of Interior to

interpret the Tribe's Constitution and was adopted by the United States District

Court for the Western District of Oklahoma in Carattini v. Salazar , 2010

WL 4568876, (W.D. Okla. November 3, 2010). Further, we are not persuaded by the

Tribe's argument that there is a difference between authority to "transact

business" and authority to "speak or act on behalf of the tribe in all matters

on which the tribe is empowered to act now or in the future." These two phrases

are joined by the conjunctive coordinate conjunction, "and." "Conjunctive

conjunctions bring elements together. They have an additive function." Michael

Strumpf and Auriel Douglas, The Grammar Bible 239 (Henry Holt and

Company, 3rd ed. 2004). Consequently, within its delegated authority the

Business Committee may transact business and speak or act on behalf of

the Tribe unless specifically provided otherwise.

17 The

Tribe correctly notes that prior to execution of the Loan Agreement, a lawyer

representing the Bank in this transaction expressed concern that approval of the

General Council would be necessary because of the "lack of specificity" in

Resolutions 73-1 and 78-7 regarding the Business Committee's authority to waive

the Tribe's sovereign immunity. Although this opinion may reflect how the Bank

understood these two resolutions, it does not provide any assistance in

determining how members of the Tribe understood these Resolutions.

18 The

Tribe argues that these opinions are irrelevant citing Federal Crop Ins.

Corp. v. Merrill , 332 U.S. 380, 68 S. Ct. 1 (1947) and Native American

Distributing v. Seneca-Cayuga Tobacco Co. , 546 F.3d 1288 (10th Cir. 2008)

for the proposition that a tribal official's mistaken belief regarding the scope

of authority is not binding on the tribe. We recognize that "[i]t is a corollary

to immunity from suit . . . that this immunity cannot be waived by officials."

United States v. United States Fidelity & Guaranty Co. et al., 309

U.S. 506, 513, 60 S. Ct. 653, 657 (1940). However, these two documents are not

cited as acts constituting an unauthorized waiver of immunity by tribal

officials but as evidence that the two lawyers representing the Tribe's entities

in this specific transaction held the legal opinion that the Business Committee

was authorized by the Tribe to sign the Loan Agreement and waive the Tribe's

immunity to the extent stated therein.

19

Although styled as a motion to vacate, we are required to treat the motion as

the substance of the motion dictates. Knell v. Burnes , 1982 OK 35, ¶ 4, 645 P.2d 471, 473. The Tribe's motion

asked the district court to reconsider its March 19 Injunction and, therefore,

is properly treated as a motion for new trial filed pursuant to 12 O.S.2011 §§ 651 and 653. "A

motion seeking reconsideration, re-examination, rehearing or vacation of a

[decision by the court], which is filed within 10 days of the day such decision

was rendered, may be regarded as the functional equivalent of a new trial

motion, no matter what its title." Horizons, Inc. v. Keo Leasing Co. , 1984 OK 24, ¶ 4, 681 P.2d 757, 759.

20

Title 12 O.S.2011 § 1384.1:

A. No temporary injunction shall be issued without notice to the adverse

party.

B. A temporary restraining order may be granted without written or oral

notice to the adverse party or the attorney for the adverse party only if:

1. it clearly appears from specific facts shown by affidavit or by the

verified petition that immediate and irreparable injury, loss, or damage will

result to the applicant before the adverse party or the attorney for the adverse

party can be heard in opposition; or

2. the attorney for the applicant certifies to the court in writing the

efforts, if any, which have been made to give the notice and the reasons

supporting the claim that notice should not be required; and the court

determines that the efforts of the applicant to give notice, if any, were

reasonable under the circumstances.

C. Every temporary restraining order granted without notice:

1. shall be endorsed with the date and hour of issuance;

2. shall be filed in the office of the court clerk and entered of record;

and

3. shall define the injury and state why it is irreparable and why the order

was granted without notice.

D. If a temporary restraining order is granted without notice, the motion for

a temporary injunction shall be set down for hearing at the earliest possible

time and takes precedence of all matters except older matters of the same

character. When the motion comes on for hearing the party who obtained the

temporary restraining order shall proceed with the application for a temporary

injunction and, if the party does not do so, the court shall dissolve the

temporary restraining order. On two (2) days' notice to the party who obtained

the temporary restraining order without notice or on such shorter notice to that

party as the court may prescribe, the adverse party may appear and move its

dissolution, modification, or require the posting of an undertaking, and in that

event the court shall proceed to hear and determine the motion as expeditiously

as the ends of justice require.

E. This section shall not apply to temporary restraining orders in actions

for a divorce, alimony without a divorce, separate maintenance, an annulment,

custody, or similar matters, guardianship or juvenile proceedings, or to

proceedings brought pursuant to special statutes that provide alternate

procedures for the obtaining of temporary restraining orders or temporary

injunctions.

21

This "traditional preemption" argument is distinct from the comparable doctrine

from which the Tribe's sovereignty is derived. Barona Band of Mission Indians

v. Yee , 528 F.3d 1184, 1188-89 (9th Cir. 2008). The issue of preemption of

state law by the doctrine of tribal sovereignty is addressed in Part II of this

Opinion. Because we conclude that the Tribe intentionally and unequivocally

waived its sovereign immunity when it signed the Loan Agreement, we are not

required to undertake the balancing of interests analysis set forth in White

Mountain Apache Tribe v. Bracker , 448 U.S. 136, 100 S. Ct. 2578 (1980) to

determine whether Oklahoma's enforcement of judgment statutes are preempted by

the doctrine of tribal sovereign immunity. Cf. , Sheffer v. Buffalo Run

Casino, PTE, Inc. , 2013 OK

77, 315 P.3d 359 (absent a

waiver of sovereign immunity tribe not subject to state dram-shop

law).

22 The

Tribe's argument leads to an unsustainable conclusion: tribal economic

development can only be fostered by laws that allow a tribe to borrow money for

its economic enterprises without requiring the tribe to repay that

debt.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Supreme Court Cases

Cite Name Level

1956 OK 239, 302 P.2d 117, COUCH v. INTERNATIONAL BHD. OF TEAMSTERS, ETC. Discussed

2003 OK 70, 76 P.3d 653, IN THE MATTER OF THE DEATH OF BRYAN Discussed at Length

2004 OK 66, 95 P.3d 1087, PATTERSON v. SUE ESTELL TRUCKING CO. Discussed

2012 OK 96, 295 P.3d 1107, WILLIAMS COMPANIES, INC. v. DUNKELGOD Discussed

2013 OK 95, 318 P.3d 1105, CATTLEMEN'S STEAKHOUSE, INC. v. WALDENVILLE Discussed

2014 OK 30, 328 P.3d 1190, GRAHAM PUBLIC SCHOOLS v. PRIDDY Discussed

2014 OK 65, PEOPLELINK, LLC. v. BEAR Cited

1981 OK 108, 634 P.2d 723, Falcon Drilling Co. v. Thompson Discussed at Length

Title 58. Probate Procedure

Cite Name Level

58 O.S. 240, Determination of Heirs, Devisees and Legatees under Certain Circumstances Cited

Title 85. Workers' Compensation

Cite Name Level

85 O.S. 308, Definitions Discussed at Length

85 O.S. 315, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Cited

85 O.S. 337, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Discussed at Length

85 O.S. 340, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Cited

85 O.S. 3, Repealed by Laws 2011, SB 878, c. 318, § 87 Cited

85 O.S. 3.1, Repealed by Laws 2011, SB 878, c. 318, § 87 Discussed at Length

Title 85A. Workers' Compensation

Cite Name Level

85A O.S. 400, Dissolution of the Workers' Compensation Court Cited