Newspaper article THE JOURNAL RECORD

State Supreme Court Reconsiders Kiowa Tribe Lawsuit

Newspaper article THE JOURNAL RECORD

State Supreme Court Reconsiders Kiowa Tribe Lawsuit

Article excerpt

The following are summaries of recently filed local and 10th Circuit opinions compiled by Oklahoma City attorney John Gatliff. State Supreme Court

For the week ended Dec. 22 State of Oklahoma, ex rel. Oklahoma Bar Association vs. George W. Butner, No. SCBD No. 4317. 1998 OK 132. Butner was charged with improperly contacting a represented person and conduct prejudicial to the administration of justice. The allegations arose out of another attorney's failure to file a divorce petition in 1980 and events occurring upon discovery of the failure in 1996. See, State of Oklahoma, ex rel. Oklahoma Bar Association vs. Lee Stilwell, No. SCBD No. 4314. 1998 OK 120 (complaint dismissed). The Supreme Court found no evidence of improper communication between Stilwell and Butner, or that Butner represented Stilwell's interests in dealing with the represented person. Butner had no attorney-client relationship with the represented person. Butner's statement to a third attorney, retained by the represented person, that Stilwell had "godly powers" was inappropriate but not intended for an improper purpose. Butner had insufficient information to establish that the party was a represented person. The Bar failed to establish the charges by clear and convincing evidence. Respondent exonerated. Aircraft Equipment vs. Kiowa Tribe of Oklahoma, et al., No. 86,184. 1998 OK 126. Considered on remand from the U.S. Supreme Court. Under the rule in Kiowa Tribe of Oklahoma vs. Manufacturing Technologies, 118 S.Ct. 1700 (1998), Indian tribes are subject to suit only where Congress has authorized suits or the tribe has waived its tribal immunity. Therefore, Oklahoma's courts do not have authority to enforce a money judgment against the tribe. Enforcement could result in diminution of tribal immunity. The Oklahoma Supreme Court's prior decision in the case is overruled. Dissent contends that a subsequent pending appeal should be considered by the court to determine whether the settled- law-of-the-case operates as a manifest injustice and whether to remand for further consideration of tribal immunity waiver issue. Carl E. Gungoll Exploration Joint Venture vs. Kiowa Tribe of Oklahoma, et al., No. 87,031 and J.B.J. Investment vs. Kiowa Tribe of Oklahoma, et al., No. 87,032. 1998 OK 128. Promissory notes without an express waiver of the tribal sovereign immunity defense may not be enforced by summary judgment in state court. Tribal immunity applies under federal law without distinction to the location or nature of the tribe's activities. An express waiver can protect a contracting party's right to litigate against the tribe on the contract in state court. Reversed. Dissent argues that the tribe's appeal should be dismissed for lack of an appealable order, and that a fact question remains as to whether the tribe waived its immunity. Nancy Martin vs. Bill Johnson, Donald Hoover, and Independent School District No. 24, No. 87,994. 1998 OK 127. Although an interlocutory partial dismissal order issued prior to judgment is not appealable, orders anterior to the judgment may be reviewed on appeal from the judgment. Award of sanctions based on plaintiffs' motion seeking leave to amend her petition to reassert a claim dismissed with prejudice was improper because the plaintiff could reasonably conclude dismissal was due to a pleading defect, entitling her under statute to amend. Rule prohibiting the court from holding an agent of a principal liable for interfering with a contract between the principal and a third party applies only if the agent acts in good faith and in the interest of the employer. When a party fails to appear at a deposition, a dismissal sanction must be based upon failure to obey and order compelling the person to attend the deposition. Reversed. Linda J. Burch vs. Allstate Insurance, No. 88,546. 1998 OK 129. If automobile liability and uninsured motorist (UM) coverage are provided by the same carrier, the uninsured's tort claim is barred by a statute of limitations, and the insured has not affirmatively destroyed the insurer's subrogation rights, then the UM carrier is directly and primarily liable to its insured by the entire loss up to the UM policy limits. …

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