On July 28, U.S. District Judge Timothy DeGiusti ruled in favor of nine Oklahoma-based tribes on whether model gaming compacts automatically renewed on Jan. 1, 2020. Oklahoma Gov. Kevin Stitt contended that the compacts did not automatically renew.

“Today’s ruling confirms what we have always maintained: our gaming compact automatically renewed, based on the state’s actions as they are clearly defined in the original compact,” said Citizen Potawatomi Nation Tribal Chairman John “Rocky” Barrett. “The Citizen Potawatomi Nation has become the economic driver of our region, due in large part to our gaming operations. This legal victory for our Nation and the people of Oklahoma means we can continue to provide the jobs and services so valuable to Oklahomans and our Tribal citizens.”

Oklahoma State Supreme Court Justices rule against Gov. Stitt’s overreach.

The Chickasaw, Choctaw and Cherokee nations filed a lawsuit on Dec. 31, 2019, in dispute of the governor’s claims. They were soon joined by six other tribal nations, including CPN. The tribes cited a provision in the compacts approved by Oklahoma voters in 2004 that allowed for the automatic renewal of the compacts upon government action sanctioning horse racing tracks’ gaming licenses.

“A great deal of time and money have been wasted on this needless litigation with the State. Our hope is for a new relationship with Governor Stitt in which mutual respect and the honoring of agreements becomes the norm. I am grateful that the rule of law has prevailed,” Barrett said.

The tribes’ argument centered on the Oklahoma Horse Racing Commission’s years-long practice of annual licensure of gaming operations at Oklahoma racetracks, including two such licenses in October 2019 for The Cherokee Nation’s Will Rogers Downs and the Chickasaw Nation’s Remington Park. Both racetracks have offered Class III electronic gaming for 15 years. The governor’s argument ­— that these gaming licenses issued by the state board did not amount to state government actions authorizing gaming — failed to convince the federal court judge.

Judge DiGiusti wrote, “The … critical question is whether the Compacts automatically renewed … because the conditions of the renewal provision were met: Were ‘organization licensees or others … authorized to conduct electronic gaming in any form other than pari-mutuel wagering on live horse racing pursuant to any governmental action of the state … following the effective date of this Compact’?

“It is undisputed that organization licensees (horse racetracks) have been authorized, and are currently authorized, to conduct electronic gaming as well as betting on live horse racing. The disputed issue is whether this authorization was ‘pursuant to any governmental action of the (S)tate’ taken after the effective dates of the Compacts.”

The governor has not indicated if he would appeal to a higher court at the time of print. He did, however, issue a broad, hyperbolic statement apparently intended to sow fear of tribal governments and their legal status as fellow governments in Oklahoma.

“The federal court determined that the 2004 Gaming Compact auto-renewed for 15 years because of an action taken by an agency’s unelected board to reissue licenses for gaming at horse racing tracks,” the governor’s statement read. “This decision, coupled with the recent U.S. Supreme Court ruling on McGirt, means Oklahomans have important questions to face regarding our future. Among other things, we will need to explore the challenges of who will pay taxes and who won’t, of how we will guarantee a competitive marketplace, and of how the State will fund core public services into the next generation. In short, we face a question of constitutional proportions about what it means to be the state of Oklahoma and how we regulate and oversee all business in our state.”

Oklahoma Supreme Court rules for State AG and Legislature against governor

Just a week prior to the federal court ruling, the governor’s position was further eroded by the state’s highest court. The Oklahoma State Supreme Court ruled that Stitt overstepped his authority by signing gaming compacts with the Otoe-Missouria Tribe and Comanche Nation this spring.

The litigants opposing the governor were Republican Speaker of the House Charles McCall, Republican Senate Pro Tempore Greg Treat and Republican State Attorney General Mike Hunter. As prescribed in the state constitution, the court reaffirmed that the governor has the right to negotiate on behalf of the state on tribal gaming compacts, but he cannot bind the state to compacts that violate or purport to change existing state law and policy. Representatives in the state legislature elected by Oklahomans must approve new gaming opportunities and any other changes to state law or policy. Oklahoma law currently prohibits sports betting and house-banked card and table games, meaning the executive branch was not legally allowed to sign these specific compacts.

“The Supreme Court affirmed what my office has opined, and the pro tempore of the Senate and the speaker of the House of Representatives have argued all along,” Attorney General Hunter said. “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 hope this settles and advances the resolution of gaming compact negotiations.”

Stitt has asked for a rehearing of the case.

Troubling agreements

Those compacts, and later ones signed between the governor and the United Keetoowah Band of Cherokee Indians and Kialegee Tribal Town, have been a cause of concern for many of Oklahoma’s gaming tribes. In addition to the issues ruled out by the Oklahoma Supreme Court, these agreements shatter the jurisdictional boundaries that have long governed where tribal gaming sites can operate. In fact, the latter’s poses a direct infringement upon the Citizen Potawatomi Nation’s jurisdiction alongside two other nearby tribal nations.

Though based in Wetumka, a town nearly 70 miles away from CPN’s westernmost jurisdictional boundaries, the KTT’s compact with Gov. Stitt allows it to establish a gaming site on the lands of either CPN, the Iowa Tribe of Oklahoma or the Kickapoo Tribe of Oklahoma.

These compacts face a similar legal challenge in the Oklahoma State Supreme Court by state Republican legislative leadership, and the Court should issue a decision soon.

Department of Interior

The Department of Interior took no action on the Comanche and Otoe-Missouria Tribe compacts negotiated by Stitt, subsequently making the compacts “deemed approved” to the extent they do not violate state or federal law.

The Cherokee Nation, Chickasaw Nation, Choctaw Nation and Citizen Potawatomi Nation have filed a lawsuit against the Department of Interior, the governor, and the Comanche and Otoe-Missouria tribes regarding the unlawful gaming agreements. Lawyers representing the four tribal nations issued the following statement:

“Four Tribes today initiated a lawsuit to declare the Comanche Nation’s and Otoe-Missouria Tribe’s gaming agreements invalid for purposes of Federal law. While the Oklahoma Supreme Court has declared those agreements invalid under Oklahoma law, their validity under Federal law must also be addressed to avoid damage to the integrity of the Indian Gaming Regulatory Act, a statute that provides the bedrock to a significant portion of Oklahoma’s economy. The Tribes filed this suit to protect the IGRA’s established framework and the Tribal operations conducted under it.”

Just as it did with the Otoe-Missouria and Comanche agreements, the Department of Interior took no action on the gaming compacts submitted by the governor, the UKB and KTT. The latter’s agreement appears to allow for the violation of either the CPN’s, Kickapoo’s or Iowa tribes’ jurisdictions, depending on what eastern OKC-metro area community the KTT government attempts to establish a new casino in. Communities like Choctaw, Jones, Harrah and Newalla may be forced to host this new off-jurisdiction KTT gaming entity if the lawsuit filed against the DOI fails.