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Governor loses in court, federal judge still to determine auto-renewal

The question of whether the Oklahoma Model Gaming Compacts auto-renewed on Jan. 1, 2020, may be decided soon by U.S. Western District Court Chief Judge Timothy DeGiusti. Governor Kevin Stitt’s attorneys recently requested that the federal court rule whether he had authority under state law to unilaterally negotiate, authorize and administer gaming compacts with tribes. On June 15, Judge DeGiusti declined to tell Governor Stitt whether he had unilateral authority to compact with two Oklahoma tribes. The court made it clear the current case in front of the Western District court is about whether the compacts have renewed.

The dispute began in July 2019 when Governor Stitt published an opinion piece in Oklahoma newspapers stating that the agreements between the state and tribes would terminate on Jan. 1, 2020. In that same letter, Stitt suggested that tribes would need to begin paying what he deemed their “fair-market” contribution in gaming exclusivity fees.

Attorneys for both sides filed motions for summary judgement on June 12, 2020, as ordered by Judge DeGiusti. All parties have filed their responses to the motions, and the court is positioned to make a ruling.

“It has been nearly a year since Governor Stitt began the dispute over the compact auto-renewal by publishing an opinion piece in the newspaper instead of meeting with tribal leaders,” said Citizen Potawatomi Nation Tribal Chairman John “Rocky” Barrett. “We continue to stand with the other plaintiffs in this case and maintain our position that the Nation’s compact automatically renewed on Jan. 1, 2020, for a 15-year term.”

Citizen Potawatomi Nation and other Oklahoma tribes assert that the compacts automatically renewed for a 15-year term, in part due to the many actions of the State to authorize racetracks and others to conduct electronic gaming. Stitt has argued that the authorization for Class III gaming at horse racing tracks occurred before the effective date of the compacts.

“This is the ‘pencils down’ moment for the lawyers. Barring some additional order from Judge DeGiusti, our court advocacy closes today, and the matter will be submitted for the judge’s deliberation and decision,” said Stephen Greetham, senior counsel for Chickasaw Nation.

During mediation and court proceedings, Stitt negotiated and signed compacts with the Otoe-Missouria and Comanche Nations, who were parties to the lawsuit against the governor until the week of the compacts’ announcement. These two compacts contained controversial provisions that would authorize the tribes to conduct sports betting and construct three casinos in counties outside their traditional jurisdictions.

Oklahoma Attorney General Mike Hunter said that the compacts are not authorized by the state Tribal Gaming Act.

“The governor has the authority to negotiate with tribes on behalf of the state,” Hunter said. “However, the only gaming activities authorized by the act may be the subject of a tribal gaming compact.”

Those compacts were “deemed approved” by the U.S. Department of Interior, drawing further criticism from 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,” Hunter said, referring to sports betting and other forms of gambling currently illegal under state law.

“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 (David) Bernhardt’s abdication of his responsibility to all of Oklahoma’s Native American sovereigns, not just two,” Hunter said.

The compacts were published in the Federal Register on June 29, 2020.

Further complicating the governor’s efforts to undermine the vast majority of Oklahoma’s gaming tribes, state legislative leaders have now weighed in to echo the attorney general’s opinion that Stitt has overstepped his authority. On June 5, Oklahoma Speaker of the House Charles McCall and President Pro Tempore Greg Treat filed an action in the Oklahoma Supreme Court. The two highest-ranking legislative leaders asked the court to “void” the governor’s compacts with the Comanche Nation and Otoe-Missouria Tribe.

According to an article in The Oklahoman by Randy Ellis, they described the governor’s actions as a “unilateral power grab” and as “serious dereliction” of the governor’s duty under the Oklahoma Constitution.