Aircraft Equipment Co. v. Kiowa Tribe of Oklahoma

*452ALMA WILSON, J.,

with whom OPALA, J., joins, dissenting:

¶ 1 Remand of this cause to the district court for entry of judgment in favor of The Kiowa Tribe of Oklahoma is inappropriate and premature. Accordingly, I must respectfully dissent.

¶ 2 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 1705, 140 L.Ed.2d 981 (1998), recognized that tribal immunity is an unsound doctrine,1 but declined to revisit the case law.2 Manufacturing Technologies rejected the request that the doctrine of tribal immunity be confined to on-reservation, noncommercial activities3 and pronounced an expansion of its rule of tribal immunity to include commercial activities off the reservation:

“Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Congress has not abrogated this immunity, nor has petitioner waived it, so immunity governs this case.”

Manufacturing Technologies, 118 S.Ct. at 1705.

¶ 3 This is an equitable cause, Oklahoma County District Court case No. CJ-94-2522, brought to enforce the summary judgment affirmed in Aircraft Equipment Company v. The Kiowa Tribe of Oklahoma, 1996 OK 81, 921 P.2d 359 (Aircraft I). Aircraft I was an appeal out of Oklahoma District Court case No. CJ-92-10176. There is a subsequent appeal out of that same district court case, appeal No. 85,272 which is a pending appeal from a post-judgment garnishment order. Preliminary to dismissal of this cause,4 appeal No. 85,272 should be considered by this Court. Therein this Court can determine whether the-law-of-the-case operates as a manifest injustice5 and whether to remand the cause for further consideration of the issue of waiver of tribal immunity.6 Only *453then, would it be appropriate to consider whether the district court has the equitable power7 to enforce the judgment rendered in Aircraft I. Because appeal No. 85,975 is a pending related appeal from an order allowing disinterested stakeholders to interplead funds, out of the same equitable cause in Oklahoma County District Court, No. CJ-94-2522, I would make it a companion to this appeal and hold both appeals in abeyance pending our disposition of appeal No. 85,272.

¶ 4 Even though the authority of a decision is not lessened by its failure to give grounds for its decision,81 would give Manufacturing Technologies no more than the strictest of application. In each of the appeals pending before this Court that are affected by Manufacturing Technologies, I would resist any ruling that may spill outside the confínes of the specific appeal.

. The Manufacturing Technologies opinion describes tribal immunity as a doctrine developed by accident, by passing reference in such opinions as Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed., 291 (1919); explains that it was reiterated with little analysis in opinions such as Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977); and characterizes tribal immunity as "at best, an assumption of immunity for the sake of argument, not a reasoned statement of doctrine." Id., 118 S.Ct. at 1704.

. Notwithstanding the majority opinion’s view that the United States Supreme Court revisited the concept of tribal immunity, that Court said, "... we decline to revisit our case law and choose to defer to Congress.” Manufacturing Technologies, 118 S.Ct. at 1705.

. The Supreme Court said the respondent did not ask the Court to repudiate the doctrine outright. Rather, the respondent asked that the doctrine be confined to reservation and noncommercial activities. The Supreme Court "declined to draw this distinction in this case.” Manufacturing Technologies, 118 S.Ct. at 1705.

. Although this Court stayed the effect of its mandate in this appeal in July, 1997, the United States Supreme Court has not reached below this Court and vacated the district court judgment, as the majority says. On writ of certiorari to the Supreme Court of Oklahoma, the United States Supreme Court vacated the judgment of the Supreme Court of Oklahoma and remanded the case to this Court for further consideration in light of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

. The settled-law-of-the-case doctrine operates to bar relitigation of issues which are finally settled by an appellate opinion, Barnett v. Barnett, 1996 OK 60, 917 P.2d 473, 477, and will not be reversed on subsequent appeal unless the court is satisfied that the failure to reverse will result in manifest injustice. Gay v. Hartford Underwriters Insurance Company, 1995 OK 97, 904 P.2d 83, 88.

. The summary judgment evidence in appeal No. 82,505, published at 1996 OK 81, 921 P.2d 359, established that the agreement between the Tribe and Aircraft Equipment is contained in two documents, the promissory note and the security agreement. This evidence is similar to the summary judgment evidence in appeal No. 87,031, Carl E. Gungoll Exploration v. Kiowa Tribe of Oklahoma, 1998 OK 128, 975 P.2d 442 as explained in my contemporaneous dissenting opinion therein. Unlike the single document, the note, considered in Manufacturing Technologies, the security agreement in this case does specify a governing law and the remedies available under that law. As in Manufacturing Technologies, Aircraft Equipment's promissory note has a paragraph entitled "Waivers and Governing Law,” which does not specify a governing law. Different from Manufacturing Technologies, Aircraft Equipment’s evidence includes a security agree*453ment that specifies it is governed by Oklahoma law. By executing the security agreement, the Tribe agreed that Oklahoma’s Uniform Commercial Code, 12A O.S.1991, §§ 1-101 etseq., would govern the bargain between the Tribe and Aircraft Equipment, even though it also reserved its sovereign rights.

Where the language of a security agreement is unambiguous, the intent of the parties is a question of law; but where the language of a security agreement is ambiguous, the intent of the parties is a question of fact for the jury to decide. In re Yeary, 55 F.3d 504 (10th Cir.1995). The security agreement in this case unambiguously provides that Aircraft Equipment may exercise any and all rights and remedies provided by Oklahoma’s UCC. The reservation of sovereign rights, however, could be viewed as creating ambiguity regarding the remedies, thus creating a fact question which should be determined in the trial court.

. If the agreement between Aircraft Equipment and the Kiowa Tribe is governed by Oklahoma’s Uniform Commercial Code, then the state court may have power over this equity suit. At 12 O.S.1991, § 1-201, the UCC defines action to include a suit in equity.

. Fidelity & Deposit Co. v. U.S., 187 U.S. 315, 23 S.Ct. 120, 47 L.Ed. 194 (1902).