Gov. Stitt to not appeal U.S. District Court’s ruling in favor of tribes on gaming compacts renewal

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Gov. Stitt holds a news conference about compact negotiations.

OKLAHOMA CITY (KFOR) – Gov. Kevin Stitt will not appeal the U.S. District Court’s ruling in favor of Native American tribes, that the gaming compacts automatically renewed this past January.

The United States District Court for the Western District of Oklahoma agreed with Oklahoma tribes, ruling on July 28 that the original compacts automatically renewed on Jan. 1.

“For these reasons, the Court finds that Plaintiffs’ and Intervenors’ Compacts with the State of Oklahoma automatically renewed for an additional 15-year term on January 1, 2020, by operation of the unambiguous terms of Part 15(B),” the ruling stated.

Stitt issued the following statement Friday on his decision to not appeal the ruling:

“The U.S. District Court has ruled the Model Tribal Gaming Compacts automatically renewed for another 15 years. While I have chosen not to appeal this decision, I believe that the people of Oklahoma will demand a fair deal that benefits all 4 million Oklahomans.

Our state is facing unprecedented uncertainty as a result of the U.S. Supreme Court ruling in McGirt v. Oklahoma. Therefore, it is essential for state and tribal leaders to join together to resolve the challenges this ruling presents for Oklahomans and their businesses.

For Oklahoma to become a Top Ten state, we must work together to find solutions that respect the unique relationship between the State of Oklahoma and its tribal citizens, and that provide certainty and fairness for all Oklahomans.

Our state agencies regularly cooperate with the tribes on matters involving public safety, health care, human services, transportation, education, the environment, energy and many other areas. I hope this can continue, as together we are “One Oklahoma.”

I look forward to working with our Congressional delegation, state officials and Oklahoma’s tribal nations to create an environment of fairness, clarity and unity that serves all 4 million Oklahomans.”

GOV. KEVIN STITT

The original compacts – agreements that establish the rules to govern the conduct of Class III gaming activities – were established as a 15-year deal between the state and 35 tribes in Oklahoma.

Gov. Stitt holds a news conference about compact negotiations.
Gov. Stitt holds a news conference about compact negotiations.

Stitt asserted in July 2019 that the compacts’ expiration meant new deals had to be made, and that the compacts would not automatically renew if a new deal was not reached by the expiration date. He also said that new compacts needed to be reviewed and negotiated instead of automatically renewing the existing compacts.

Stitt said in an Op-Ed published in Tulsa World that most other state-tribal compacts “provide for exclusivity fees to the state of 20% to 25%.”

Oklahoma tribes generate $4.5 billion each year from casino-style gaming. Of that revenue, the state takes anywhere from 4 to 10 percent in exclusivity fees.

Native American tribes have paid the state more than $140 million a year in gaming exclusivity fees, according to officials.

Stitt sent the 35 tribal leaders a letter in July 2019, saying that the compacts needed to be renegotiated.

Tribal leaders responded by asserting that the compacts would automatically renew on Jan. 1 and stay in place for another 15 years if a new deal was not reached.

“Unlike contracts, compacts are solemn agreements between two sovereigns that remain in force until both parties agree otherwise,” said Chickasaw Governor Bill Anoatubby.

Tribal attorneys cited Part 15 B of the original compact as validation of the automatic renewal.

Photo provided by Oklahoma Indian Gaming Association

Part 15 B. states, “This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others are 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 or court order following the effective date of this Compact, the Compact shall automatically renew for successive additional fifteen-year terms.”

The tribes took their case to the United States District Court for the Western District of Oklahoma, which ultimately agreed that the compacts automatically renewed.

The District Court’s decision is not the only blow Stitt has taken from the courts regarding the compacts.

Other court woes for Stitt

Stitt signed new compacts with the Comanche and the Otoe-Missouria tribes in April, outside of the original compacts.

The U.S. Department of the Interior announced in June that it approved Stitt’s new compacts with the Comanche and the Otoe-Missouria tribes, deeming them legal in Oklahoma.

Two state leaders, however, took exception.

Senate Pro Tempore Greg Treat and House Speaker Charles McCall sued Gov. Stitt, asserting that he did not have the authority to agree to the compacts and that the agreements included a form of gambling not legal in the state.

House Speaker McCall with Senate Pro Tem Schultz in the background.
House Speaker McCall

Stitt’s attorney, Phillip Whaley, said Stitt did have the power to enter into the new compacts and that he’s the only Oklahoma official who possessed such power.

The Oklahoma Supreme Court sided with Treat and McCall, ruling in July that Stitt did not have 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 high court also said that while the governor can negotiate tribal gaming compacts, he must do so within the bounds of the State-Tribal Gaming Act. The court said the compacts are prohibited because they allowed gaming that was considered illegal in Oklahoma.

Stitt sought a rehearing, seeking clarification on whether the area of the compacts with the two tribes that allowed sports betting could be severed from the rest of the compact.

The Oklahoma Supreme Court, on Sept. 15, denied Stitt’s request for a rehearing.

Oklahoma Indian Gaming Association Chairman Matthew Morgan released the following statement regarding the Supreme Court’s rejection of Stitt’s request:

“The Oklahoma Supreme Court denied Gov. Stitt’s request for a rehearing of the petition filed by the Pro Tem and Speaker, after declaring the agreements Gov. Kevin Stitt entered into with the Otoe-Missouria Tribe and Comanche Nation were invalid and unlawful. This denial of a rehearing further underscores that Governor Stitt’s go-it-alone approach is not legal nor helpful in moving state-tribal relationships forward.”

Matthew Morgan, Oklahoma Indian Gaming Association Chairman

Stitt continued to pursue new compacts

Unfavorable rulings from state and federal courts did not deter Stitt in pursuing new compacts. On Aug. 20, he announced that the Department of Interior approved gaming compacts that the state entered into with the Kialegee Tribal Town (KTT) and the United Keetoowah Band of Cherokee Indians (UKB). 

Those new compacts double the current fee rate on Class III games, from 6 percent in the 2004 Model Gaming Compact to as high as 13 percent, and strengthens gaming compact transparency, setting the stage for additional revenue for public education in the near future and strengthening State-Tribal relationships through individual negotiations.

KFOR sent an email to Stitt’s office on Tuesday, Sept. 15, asking why the governor established new compacts with the Kialegee Tribal Town and the United Keetoowah Band of Cherokee Indians tribes after the Supreme Court deemed his compacts with the Comanche Nation and Otoe-Missouria Tribes invalid. We also asked for Stitt’s response to the Supreme Court denying his rehearing request.

Stitt’s officer never provided KFOR a response.

The governor’s office has not provided an update on whether Stitt will continue to pursue the compacts with the Kialegee Tribal Town and the United Keetoowah Band of Cherokee Indians tribes in light of his decision to not appeal the U.S. District Court’s ruling.

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