First Bank & Trust v. Maynahonah , 313 P.3d 1044 ( 2013 )

THORNBRUGH, J.

(sitting by designation), dissenting.

I respectfully dissent. The disputed funds were interplead specifically so that they would be held under the protection of the force of law of the sovereign state of Oklahoma. The tribal appellants neither objected nor sought to remove the matter to federal court, where they were involved in a dispute involving some of the same issues surrounding authority to assert control on behalf of the Tribe. Indeed, there is a strong case to be made that, at the time of the interpleader, it was uncertain as to which group would ultimately prevail in the ongoing leadership struggle within the Tribe itself.

12 Against this backdrop of uncertainty the Maynahonah group seemed quite content to allow the Oklahoma district court to enter an order directing the Bank to pay the funds into court in order to protect the funds until such time as the Tribe could sort out who had the right to control the account. The Maynahonah group then took full advantage of the power of the Oklahoma court to distribute the interplead funds in an order that the group agreed to in form and in content. Having secured the funds as a result of the exercise of the sovereign power of the State of Oklahoma, the Tribe now repudiates the right of the court to manage the funds in the first instance.

13 I dissent from any notion that the Tribe may now assert sovereign immunity to defeat the authority of the Oklahoma district court to enter an order awarding statutory costs and attorneys fees associated with a state interpleader action to which the tribe did not object. I would hold the Tribe waived any claim it may have had to sovereign immunity under the cireumstances of this case. I would invoke the maxim volenti non fit injuria: He who consents cannot receive an injury.

4 I make no comment as to whether the fee awarded the Bank was proper or equitable since I am unable to reach this question given the decision of the majority.