Attorneys for Oklahoma Governor Kevin Stitt recently filed a request for a rehearing by the state Supreme in regard to the court’s July 21 decision in a tribal gaming compact case. In that decision, the high court ruled Stitt’s compacts with the Comanche Nation and Otoe-Missouria Tribe were invalid because they included sports betting and house-banked card games, which are prohibited under Oklahoma law.
The governor’s attorneys said they want the high court to clarify whether portions of the compacts that do not conflict with state law remain valid, and whether the governor has the authority to continue to enter into cooperative agreements with sovereign tribes.
In their rehearing request, the attorneys wrote, “The governor does not seek here to revisit the court’s ultimate holding, but rather to clarify the extent of the holding as it relates to portions of the compacts at issue not inconsistent with the State Tribal Gaming Act and his duty and obligation to negotiate and enter into tribal gaming compacts, as well as other kinds of cooperative agreements.”
The governor’s attorneys say the words contained in the compacts indicate that it was the intent of the governor and tribes that if any portion of the compacts were deemed invalid, those portions could be removed and the other terms of the compact would remain effective.
The attorneys also pointed out the compacts only authorized event wagering—sports betting—”to the extent such wagers are authorized by law.” Or, in other words, “the compacts alone did not ‘authorize’ event wagering as stated in the state Supreme Court’) opinion,” Stitt’s attorneys stated.
Stitt’s attorneys also noted observers are interpreting the court’s ruling to mean he “has no authority to negotiate and enter into cooperative agreements at all, including gaming compacts, or that he has no such authority unless such compact is expressly authorized or approved by legislation passed by the legislature.” The attorneys said Stitt considers those interpretations to be “erroneous and improper.”
The lawsuit regarding the Comanche Nation and Otoe-Missouria Tribe compacts was filed by Oklahoma House Speaker Charles McCall and state Senate President Pro Tem Greg Treat, who successfully argued that Stitt exceeded his authority by asserting powers that were reserved for the legislature.
More recently, McCall and Treat filed another lawsuit asking the high court to void the gaming compacts Stitt authorized with the Keetoowah Band and Kialegee Tribal Town. Those compacts do not include sports betting or house-banked card games. But McCall and Treat contend Stitt again violated the separation of powers between the legislative and executive branches of government by overstepping his authority in other numerous ways.
For example, the lawmakers said through the compacts, Stitt sought to override the legislature’s authority over appropriations, as well as establish himself as the only individual who can resolve compact disputes, which is by statute the state attorney general’s role.
Stitt’s attorneys argued the governor acted within the scope of his authority and claim the legislators’ lawsuit is “the latest in a series of efforts to wrest away the executive authority of the governor to negotiate and enter into compacts with Indian tribes and improperly vest such power solely in the legislative branch.”
Meanwhile, the Wichita and Affiliated Tribes asked Chief Judge Timothy D. DeGiusti, who recently ruled the state’s 15-year tribal gaming compacts automatically renewed on January 1, to declare the tribe no longer is legally required to pay the state exclusivity fees.
The Wichita and Affiliated Tribes contend the state violated exclusivity provisions in the compact by authorizing mobile internet gaming through state lottery-sponsored second-chance promotions and expanding hours of gaming operations at horseracing facilities, among others.
Tribal attorney William Norman said the tribes are not trying to avoid making payments, but they want a judicial declaration that the exclusivity provision has been violated by the state in order to protect the tribes’ ability to continue generating revenue for education and health care, he said.
Tribes paid the state $148 million in exclusivity fees in 2019. Revenue sharing payments this year are expected to be much lower due to closures caused by Covid-19.
