Oklahoma lawmakers may discuss revoking Gov. Kevin Stitt's authority to negotiate tribal gaming matters
A dispute over four Oklahoma gaming compacts may be near legal resolution in a Washington, D.C. federal court, but the case may have a significant impact on the relationship between the state legislature and the governor around tribal relationships going forward.
Background and ruling
In 2020, Gov. Kevin Stitt unilaterally entered into compacts with the United Keetoowah Band of Cherokee Indians, Kialegee Tribal Town, the Comanche Nation and the Otoe-Missouria Tribe.
The compacts allowed forms of gaming not allowed in the2004 Model Gaming Compact that outlines agreed upon games allowed in tribal casinos in the state and the fees the tribes will pay to the state of Oklahoma in exchange. The disputed compacts would have also allowed the United Keetoowah Band, Kialegee Tribal Town, Comanche Nation and Otoe-Missouria Tribe to set up gaming facilities outside their reservation boundaries.
Though Judge Timothy Kelly of United States District Court for the District of Columbia has yet to make a final ruling in the case, Oklahoma Speaker of the House Charles McCall said he believes it’s a legally settled matter that the compacts aren’t valid.
In late November, Judge Kelly upheld the decision of the Oklahoma Supreme Court, saying the compacts aren’t legal and the U.S. Department of the Interior had the obligation to determine the validity of the contested agreements before allowing them to go into effect. Kelly went even further in his November 23, 2022 ruling, saying the Department of Interior should have investigated the compacts further because they had received a letter on May 5, 2020, from then-Attorney General Mike Hunter saying the agreements between the four tribes and Stitt violated the Indian Gaming and Regulatory Act.
He argued in the letter to Interior Secretary David Bernhart that because the Governor lacks the authority to unilaterally enter into agreements because of Oklahoma’s constitutional structure.
But the Stitt administration persisted. On November 11, 2022, they filed for summary judgment in the case saying the agreements are ‘valid as a matter of law’ because the Department of Interior allowed them to go into effect without comment.
The November 23 rulings were procedural and did not address the merits of the case.
“We are encouraged by the points made by the judge concerning the legal obligations of both the Governor and the Department of Interior and that the rule of law will be upheld," wrote Morgan, Chairman of the Oklahoma Indian Gaming Association, in a statement to KOSU.
KOSU contacted the Governor’s office to ask for a response to the ruling, but as of this story’s publication, no one had responded. The Oklahoma Attorney General's office said they had no comment on the issue.
"This isn't a fight between tribes," said Stephen Greetham, who is outside counsel for the Chickasaw Nation.
"The failure of states agreements should leave those tribes rights under the model compact intact. This is a fight within the state government as to who has what power and how its own processes work. It's time for us to go back to common sense on that," Greetham told KOSU.
Oklahoma Legislature may take action
In an interview, Oklahoma Speaker of the House Charles McCall told KOSU the issue is settled, and legislators may discuss revoking the Governor’s authority to negotiate gaming matters on behalf of the state.
"The legislature-only the legislature ultimately holds the authority. And we can grant authority to the executive branch, and we can revoke authority to the executive branch through our lawmaking process," McCall told KOSU.
Lawmakers created a fund for lawsuits between the state and tribal nations, but in pressing this lawsuit, Stitt went around the legislature and hired outside counsel. McCall and other lawmakers have told KOSU they don’t know where Stitt is getting the funds to pursue the validity of the compacts.
"I think we are exactly where we thought we were," said McCall. "I think that's what the outcome of this most recent lawsuit was that the governor initiated without briefing the legislature on."
The relationship between the state legislature and Stitt surrounding tribal relations has been rocky as the Governor has pursued legal action around gaming compacts, hunting and fishing compacts and criminal jurisdiction
But McCall says the Oklahoma Constitution is clear that the legislative branch, not the Governor, has exclusive authority over these matters.
"The courts have repeatedly said it is a power enumerated to the legislative branches of the state government in Oklahoma," said McCall.
Since KOSU reported in October that Stitt was again pursuing the legal validation of the compacts in dispute, KOSU has received records from Oklahoma Management and Enterprise Services showing law firm Troutman and Pepper has already received close to $17,000 for the most recent filings.
McCall said the source of that money will be part of the discussion lawmakers have before the legislative session convenes Feb. 6, 2023.
The plaintiff tribes in the case (Cherokee Nation, Chickasaw Nation, Choctaw Nation and Citizen Potawatomi Nation) allege that both the Comanche Nation and Otoe-Missouria Tribe are currently conducting class III gaming under the disputed compact in five locations in Oklahoma, "creating illegal competition in the “gaming market in which the Plaintiff Nations compete.”
It's unclear what will happen to those gaming operations if a federal judge issues a ruling asking them to stop.
It is possible that it would be the responsibility of a state agency to enforce the cessation of operations.
The four plaintiff tribes are seeking summary judgment in the case with the hope the disputed compacts will be invalidated. Stitt and the Department of Interior are seeking to have the case dismissed, which would allow the compacts to stay in effect.
In the November 23 ruling, Judge Kelly did dismiss the case against the United Keetoowah Band of Cherokee Indians and Kialegee Tribal Town because neither tribe has operational gaming. However, the suit against the Comanche Nation and Otoe-Missouria Tribe will continue.
The Plaintiff tribes could also just wait. Oklahoma will swear in a new attorney general in January — Gentner Drummond, who campaigned on his good relationship with tribal nations.