Who gets to represent Oklahoma in court?
It's among the latest questions in an ongoing battle between Attorney General Gentner Drummond and Gov. Kevin Stitt.
The Oklahoma Supreme Court will choose who has the authority to represent the state in Cherokee Nation, et al vs. The U.S. Department of Interior, a federal case considering the legality of certain gaming compacts Stitt signed with four tribal nations in 2020.
After Drummond interjected himself as the state’s proper representative in the case over Stitt last summer, the presiding judge couldn’t decide which elected official that should be based on available Oklahoma statute.
District Judge Timothy J. Kelly gave the order for the Oklahoma Supreme Court to take a stance on the matter.
“In the Court's view, [Oklahoma’s] statutory scheme alone provides no established and controlling law that resolves the dispute,” Kelly writes. “Nor is there any established and controlling case law interpreting these statutes that clears things up.”
Mike McBride is an attorney for the Comanche Nation in the case. He says whatever the state Supreme Court decides, it could have a broad effect beyond the current litigation.
“It is an unresolved question about who can represent the state's interests, and so it could increase the power of either the governor or the Attorney General,” McBride said.
He said there is a role for the governor in negotiating compacts with tribes in state statute, but it’s important to remember the parameters of those negotiations were set by the legislature – and voters – in 2004 when State Question 712 passed and established a model for what tribal gaming compacts should look like.
If the Supreme Court chooses Stitt to represent the state, it’s more likely he and future governors will get to negotiate compacts his way. If Drummond takes his place in federal court, it could give the Attorney General the power to intervene in litigation on behalf of the State at his discretion.
Stitt has criticized the model compacting deal as unfair to the state since he first took office in 2019, and has pushed to renegotiate with tribal nations over tobacco, gaming, car tags and other issues. The way he sees it, state statute gives him the authority to do that on his own.
The legislature and Attorney General disagree. That’s why lawmakers filed two lawsuits against Stitt in 2020 over the matter. And just last year, Senate Pro Tem Greg Treat called on Drummond to intervene in the federal case to resolve the compact dispute.
Drummond, whose relationship with the governor is increasingly tense amid disagreements over the efficacy of the first state-funded religious charter school in the country and whether the governor can double up Secretary appointments with state agency directors, didn’t hesitate to act. He is of the mind Stitt broke state law when he entered agreements with tribal nations outside the parameters of the 2004 statutes.
Decisions like this can take months, and while the federal case will pause in the interim, McBride said recent decisions by the state’s highest court may help speed up the process.
That includes an April 2 opinion on one of those 2020 cases, giving the legislature purview of compact negotiations over the governor.
