Fact-checking Oklahoma Gov. Stitt's statements about tribal compact negotiations
Gov. Kevin Stitt is suing state legislative leaders over their handling of financial agreements with tribal governments. KOSU took a deep dive into some of the statements Stitt made when he announced that lawsuit.
The state legislature approved a set of compacts — agreements with tribal governments about taxes and other financial matters on reservation lands. Stitt vetoed those compacts and attempted to negotiate his own set of agreements with the tribes. This week, the legislature has overturned Stitt’s vetoes to enact the compacts agreed upon by state and tribal lawmakers.
Now, Stitt is suing Senate Pro Tem Greg Treat and Speaker of the House Charles McCall, asking the Oklahoma Supreme Court to determine who has the authority to negotiate tribal compacts. When he announced that suit on Monday, Stitt laid out his woes about the negotiations and his fears about what expanded tribal sovereignty could mean for the state.
Some of Stitt’s statements were accurate, but others were factually murky. Still others were misleadingly irrelevant to the issue of tribal compacts. KOSU gathered statements from state officials, tribal leaders and legal experts to clarify.
Who has the authority to negotiate compacts?
This is the central question in Stitt’s petition to the Oklahoma Supreme Court in his new lawsuit against Treat and McCall.
However, this isn’t the first time Stitt has asked the State’s highest court to determine an answer to the compact disputes. For several years now, Oklahoma’s legislative leadership and Stitt have been arguing about this same fundamental question.
In 2020 both Oklahoma Senate Pro Tempore Greg Treat and Speaker of the House Charles McCall filed a lawsuit against Stitt when he entered into compacts with a handful of tribes without the legislature’s consent. McCall said back then that state-tribal gaming was intended to be handled “jointly, by both the legislative and executive branches of the State of Oklahoma.” McCall added that like many other matters, the legislative branch sets the policy and the executive executes it. In August 2020, Stitt had petitioned the Oklahoma Supreme Court to rehear the case about those compacts, but it was denied.
Here’s part of the opinion on the Treat v. Stitt case from 2020: “The limited question presented to the Oklahoma Supreme Court was whether Governor Stitt had the authority to bind the State with respect to the new tribal gaming compacts with the Comanche Nation and Otoe-Missouria Tribes. To this, the Supreme Court held he did not.”
In 2021, the state’s highest court also added this: “The Oklahoma Supreme Court determined these new compacts were also not valid: for the new compacts to be valid under Oklahoma law, the Executive branch must have negotiated the new compacts within the statutory bounds of the Model Tribal Gaming Compact (Model Compact) or obtained the approval of the Joint Committee on State-Tribal Relations.”
Treat told KOSU he believes the governor is not alone in charge of compacting with tribal nations ahead of the veto overrides of the tobacco and vehicle registration compacts about negotiating powers. He also spoke to what he thinks the Governor’s strategy is.
“The only reason the governor has any authority in negotiating these compacts is through legislative action that granted him that so already. And so the granter of that authority could also revoke that authority,” he said.
Now in 2023, following the House and Senate’s veto overrides of tribal compacts, Stitt is asking this question of the Oklahoma Supreme Court:
"We need the courts to tell us. Does the governor have the authority to negotiate the compacts or does the legislature have the authority to negotiate the compacts?"
Stitt talked a lot about tribal nations’ goals in their compacts with the state, including an apparent goal to turn Eastern Oklahoma into reservation land.
"Actually, 7% of our state is already in trust. So when a tribe buys a piece of land, they petition the Department of Interior and they put it in a trust,” Stitt said. “Then it comes off our tax rolls. We don't get paid property tax on it. But with this new language, what they're hoping to do is turn 42% of our state into a reservation."
The U.S. Supreme Court determined roughly 42% of Eastern Oklahoma is reservation land in the McGirt v. Oklahoma ruling. It is true that tribal nations can buy land and have the U.S. Department of the Interior place the land into trust. It is, however, a long and complicated process and does not happen overnight.
Tribes must submit an application with the Bureau of Indian Affairs, and have a lot of legal requirements and tests they must meet. Land in trust is more valuable to tribes. Tribal nations can build more housing for citizens, negotiate the leases for energy development and build businesses more easily on trust land. The Department of the Interior acknowledges the negative effect the allotment act had on tribal nations and says that allowing land to be placed into trust is one way to remedy it.
Osage Nation went through an arduous process to re-acquire some of its land and put it in trust in 2016 from media mogul Ted Turner.
There is a big difference between reservation land and land placed into trust: not all reservation land contains trust land and therefore is not immune from taxation, unlike trust land which is. According to the Department of the Interior, approximately 56 million acres of land are held in trust for tribes.
"One government does not tax another," said Matthew Morgan, who is chairman of the Oklahoma Indian Gaming Association and an attorney. "State government cannot tax the United States government for that."
Morgan says it's disingenuous to say the state is losing money on land.
"That's like saying we don't pay taxes on Yellowstone or Tinker Air Force base," Morgan commented.
Morgan said Sitt is still trying to fight the McGirt decision when he says that tribes are trying to make 42% of the state a reservation.
"After the McGirt decision, in some of its cases that came out since then on reservation statuses, about 40 to 43% of Oklahoma is Indian Country, under the federal definition of Indian Country," Morgan said. "It's been decided. He doesn't agree with it and I think he continues to try to create chaos around that."
Stitt points to the case of Alicia Stroble as another point of contention
Alicia Stroble is a Muscogee Citizen who asked the Oklahoma Tax Commission for back taxes from 2017-2019. Stroble lived within the Muscogee Nation boundaries and worked for a tribal entity, making her eligible to not pay state taxes. She initially won her case but then the ruling was reversed and is now before the Oklahoma Supreme Court.
Tribal citizens are already exempt from state taxes in certain situations under the “Indian Country" exemption.
Stitt said she creates problems, though, for local governments in Oklahoma.
“So what that means is you can have a doctor in Tulsa that doesn't pay taxes and then a single mom of another race having to pay taxes,” he said. “And yet we all go to Jenks High School, our kids go to Jenks High School, and we'd all drive on the same roads. We can't have a state where 10% of the population based on race doesn't follow the same rules everybody else does.”
Tribal citizens are a political class. Not a racial group. This is the foundation of Indian law.
However, there is strong precedent for tribal citizens like Stroble to make a case that they don’t need to pay local taxes.
- In the 1973 case McClanahan v. Arizona Tax Commission, the Supreme Court ruled that, "absent express congressional authorization, a State could not subject a tribal member living on a reservation whose income was derived from reservation sources to a state income tax."
- In the 1993 case Oklahoma Tax Commission v. Sac and Fox Nation, the Court ruled in favor of the tribal nation, as they sought relief on state income tax and motor vehicle excise and registration fees on behalf of citizens who work and reside within tribal jurisdiction. The Court held, "Absent explicit congressional direction to the contrary, it must be presumed that a State does not have jurisdiction to tax tribal members who live and work in Indian country."
Stitt says that the Turnpike Authority has had issues charging turnpike travelers with tribal license plates.
“Since we instituted PlatePay—that's where they read your license plates—we have lost $4.7 million that we can't read tribal license plates,” Stitt said. “They're not in our system. That means they're driving on our turnpikes without paying the the toll that everybody else does.”
The Oklahoma Turnpike Authority confirmed that Stitt’s statement is true. But those lost funds aren’t the result of compact negotiations — they’re a problem with the new cashless tolling system on Oklahoma’s turnpikes. The state has been transitioning its turnpikes to PlatePay since 2021. The system scans license plates and looks up registration information so the OTA can send the driver a bill.
But OTA Deputy Director Joe Echelle confirmed that for some license plates, the state doesn’t have access to that registration information. Even if drivers with those tags use the turnpikes as directed, their toll bills can’t be sent or paid. That issue has occurred for plates from 33 tribes, as well as temporary tags, out-of-country tags and some out-of-state tags.
All-in-all, vehicles with tribal plates took nearly $4.6 million in unbilled turnpike trips between May 15 and mid-July, according to Echelle and the OTA’s records. The highest-owing driver took 128 turnpike trips in that time and owes nearly $700.
Cherokee Nation Principal Chief Chuck Hoskin Jr. said the tribe isn’t responsible for PlatePlay’s problems with its license plates.
“At no time did anyone from [the state] contact us with concerns about Cherokee Nation tags as it transitioned to a new ‘PlatePay’ system,” Hoskin said in a statement. “If there are any problems accessing Cherokee Nation tag information the state government’s agencies are the source of the problems, and the source of potential solutions.”
Echelle confirmed that the new cashless tolling system is responsible for the problem, not the tribes. He also said the compact negotiations have not affected the OTA’s operations.
“The issue that exists is not necessarily the tribal plate,” Echelle said. “It's not the tribe that's issuing the license plate. It's our moving to this open road tolling thing that's causing it.”
Some tribes, like the Chickasaw and Choctaw nations, issue their tribal plates through the state’s Service Oklahoma system; those vehicles don’t encounter problems with the PlatePay system. Nor do drivers with tribal tags who use the PIKEPASS preloaded payment system.
The OTA has implemented an online pay option, which allows turnpike travelers to register a tribal tag so PlatePay will work. According to a handout the OTA gave to lawmakers, tribal nations could agree to share registration information in an arrangement similar to the one Oklahoma has with most U.S. states. Echelle said the OTA is beginning to work directly with tribes to develop a process for sharing registration information.
Stitt says he’s been trying to negotiate his compacts with tribes since May, but tribal leaders have refused to work with him.
“I have been negotiating and put this in front of them for the last two months at the same financial terms as they had last year,” Stitt siad. “They've refused to sign it. So they have gone around the governor.”
Oklahoma City-based attorney William Norman represented some of the tribal nations Stitt addressed in his letter. He said that with 39 tribes in the state, it’s not accurate to paint all the negotiations with a broad brush.
Norman said the tribes have shown over the past few decades that they’re willing to compromise on disputes to avoid expensive litigation. But after Stitt sent out his compacts, some of that willingness to negotiate dried up.
“As Oklahomans are, sometimes it's more polite just to not say anything than it is to have a conversation about what you've received,” Norman said. “So I think he experienced some of that in terms of maybe a lack of response.”
During Monday’s press conference, Stitt repeatedly expressed both a desire to negotiate and an unwillingness to compromise on the compacts. “I will not give an inch,” he said. “I will not change the language on my compact.”
“There is a space in which we could have a conversation, and it's just the environment that we're in currently has not allowed for a reasonable one,” Norman said.