OKLAHOMA CITY (KFOR) – The fight regarding the legality of two new tribal gaming compacts in the state has taken a new turn.
In April, Gov. Kevin Stitt announced that the state had reached new deals with the Otoe-Missouria and Comanche tribes. The compacts call for lower exclusivity fees, and allow sports betting and new casinos closer to larger cities.
Immediately, tribal attorneys were split over the legality of the compacts. Since sports betting is not legal in Oklahoma, they say it cannot be used as a bargaining chip without being passed by the Legislature.
“Tribes can do what is legal in the state so if those games aren’t legal in the state, that poses a threshold problem,” said Kirke Kickingbird, tribal law attorney.
Lawmakers at the Oklahoma State Capitol also expressed concerns about the legality of the move.
In late April, Stitt told lawmakers that he received “numerous, exceptional legal opinions throughout this process” regarding the legal status of the compacts.
However, Oklahoma Attorney General Mike Hunter said the governor lacks the authority to enter into and bind the state to compacts with Native American tribes that authorize gaming activities that are prohibited by state law.
Last month, the U.S. Department of the Interior announced that it approved the compacts, meaning they are legal in Oklahoma.
It was a decision not taken lightly by Hunter.
“The Department of the Interior’s thoughtless and irresponsible inaction on the compacts doesn’t change our conclusion that the governor lacks the authority to enter into compacts that include activities not legal in Oklahoma. The tribes cannot begin operating under the terms of these compacts until the many questions that remain pending before the Oklahoma Supreme Court are resolved. I am deeply disappointed in Interior Secretary Bernhardt’s abdication of his responsibility to all of Oklahoma’s Native American sovereigns, not just two.”
Oklahoma Attorney General Mike Hunter
Although the Department of the Interior issued its ruling, state lawmakers said the fight wasn’t over.
Senate Pro Tempore Greg Treat and House Speaker Charles McCall sued Gov. Stitt because they say he doesn’t have the authority to agree to those compacts.
“Petitioners ask this court to declare the Governor’s actions unauthorized by law and the agreements void,” Attorney Cara Rodriguez said during oral arguments in front of the Oklahoma Supreme Court.
The lawsuit argued that not only does Stitt not have the power to make compacts on his own, without approval from the Legislature, but the agreements include forms of gambling that are not legal in Oklahoma.
Stitt’s attorney argued that not only does the governor have that power, but he’s that only one that does.
“The governor is the only actor vested with the authority to enter into gaming compacts with Indian tribes in Oklahoma,” Attorney Phillip Whaley said.
The lawsuit contended that the governor can negotiate compacts on behalf of the state, but negotiating is not the same as agreeing to a deal.
“Nothing prevents the governor from going to a tribe and talking, and reaching maybe even a tentative agreement,” State Solicitor General Mithun Mansinghani told KFOR. “But he can not bind the state compacts, contrary to enacted public policy of the state.”
Now, the state’s highest court has issued a ruling.
On Tuesday, the Oklahoma Supreme Court ruled in favor of state lawmakers, agreeing that Gov. Stitt lacks the authority to agree to the compacts.
“The limited question before this Court is 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. We hold he did not,” the Court wrote. “This question implicates the core notion of our constitutional structure: separation of powers. The legislative branch sets the public policy of the State by enacting law not in conflict with the Constitution. The Governor has a role in setting that policy through his function in the legislative process, but the Governor’s primary role is in the faithful execution of the law.”
The Court ruled that the governor can negotiate tribal gaming compacts but he must negotiate within the bounds of the State-Tribal Gaming Act. Since the compacts approved certain types of gaming that are considered illegal in Oklahoma, the compacts are prohibited by the law.
The Oklahoma Indian Gaming Association says Tuesday’s ruling fits with its argument against the compacts from the beginning.
“We appreciate the speed with which the Oklahoma Supreme Court acted on the Pro Tem and Speaker’s petition in this important matter. Today’s decision confirms what the tribes have been saying since Governor Stitt first launched his go-it-alone drive to rewrite our compacts. We believe firmly that the state-tribal relationship works best when we each act within the roles we have under the law,” said Matthew L. Morgan, chairman of the association.
Attorney General Hunter released the following statement:
“The Supreme Court affirmed what my office has opined, and the pro tem of the Senate and the speaker of the House of Representatives have argued all along, the governor lacks the authority to enter into and bind the state to compacts with Indian tribes that authorize gaming activity prohibited by state law. We applaud today’s ruling and appreciate the court for carefully looking at this and coming to an apt conclusion. We hope this settles and advances the resolution of gaming compact negotiations.”
In response to the ruling, Senate President Pro Tempore Greg Treat and House Speaker Charles McCall released the following statements:
“This ruling confirms what we have maintained all along: There are parameters defined by statute that must be followed in the negotiation of and entering into tribal gaming compacts. This has always been about preserving the separation of powers among the legislative, judicial and executive branches of government. When one branch of government acts outside of its authority, the other branches must take steps to restore the balance of power. This is a victory for the rule of law and preserves the foundational principle of checks and balances upon which our government is based,” said Treat.
“We appreciate the court’s quick decision and look forward to all parties proceeding in a mutually beneficial manner for Oklahoma and all sovereign tribal nations. From the start, this was about separation of powers, and the Supreme Court affirmed as much with a decisive ruling. Oklahoma and its tribal nations can move forward from this together as partners, as we have done for decades with great success,” said McCall.
Comanche Nation Chairman William Nelson, Sr. issued the following statement:
“Our compact is legal under federal law and is a matter of our tribal sovereignty. We intend to continue operating under the terms of the compact outside of offering games not currently authorized by state law. Our compact is legal and we are prepared to legally invoke the compact’s severability clause if necessary,”
Otoe-Missouria Tribe Chairman John R. Shotton issued the following statement in response to the Oklahoma Supreme Court ruling.
“The Oklahoma Supreme Court doesn’t have jurisdiction to invalidate our compact when state and federal law dictates that our compact is legal. We have said all along we do not plan to offer house-banked card and table games and event wagering until they are authorized by state law. Indeed, this condition was part of the compact, and it was unfortunately overlooked by the Court. We will continue to operate under the remaining terms of our compact pursuant to the severability clause of the compact, and we will refrain from operating any game that is not authorized under state law.”
“The Supreme Court decision highlights an apparent conflict between the federal law and our state laws. Oklahoma must address the entire gaming framework to ensure that all federally recognized Tribes can legally game and enjoy all the privileges conferred by IGRA. Together with the McGirt decision, it’s clear that the State has significant work to do – in partnership with the Tribes – to resolve these matters. I look forward to doing the hard work for the benefit of all Oklahomans, and to ensure a sustainable future for our State.” -Governor Kevin Stitt
Oklahoma Governor Kevin Stitt