Oklahoma Gov. Stitt resurrects gaming compact fight with tribes, hires new outside legal counsel

In a discover despatched to Timothy J. Kelly, a decide within the United States District Court for the District of Columbia dated October 11, 2022, the attorneys retained by the governor cite the Oklahoma v. Castro-Huerta ruling as a purpose for eager to dismiss a 2020 lawsuit by Citizen Potawatomi Nation, Cherokee Nation, Choctaw Nation and Chickasaw Nation. The 4 tribes have been looking for to cease gaming compacts Stitt signed with 4 different tribes.

The compacts the Governor signed with the Otoe-Missouria Tribe, Comanche Nation, United Keetoowah Band of the Cherokees and Kialegee Tribal Town have been controversial from the start.

The agreements have been signed within the months after nearly all of tribes in Oklahoma believed the Model Gaming Compact between the state of Oklahoma and the tribes had robotically renewed.

“Moving forward, the state will continue to negotiate with individual tribes, leaving behind the one-size-fits-all approach to the model gaming compacts,” Stitt stated at a press convention on April 21, 2020, the day he signed compacts with the Otoe-Missouria and Comanche Nation.

Then-Oklahoma Attorney General Mike Hunter despatched a letter to the United States Department of Interior on May 5, 2020, saying Stitt didn’t have the authority below the Indian Gaming Regulatory Act to enter into the compacts. In his message to the Department, Hunter stated permitting the new compacts to enter impact would injury the connection between the state and the tribes.

“Moreover, for all tribes in Oklahoma, approval of these agreements as gaming compacts will only cause greater confusion and uncertainty about how state-tribal relations should be appropriately conducted,” Hunter stated.

Oklahoma Senate Pro Tempore Greg Treat and Speaker of the House Charles McCall filed a lawsuit in opposition to Stitt in 2020 questioning the Governor’s authority to signal the compacts with out the legislature’s consent. The Oklahoma Supreme Court dominated of their favor saying the compacts the Governor signed weren’t legitimate.

“Regarding state-tribal gaming law, the records of the Legislature and the law itself clearly show state-tribal gaming was always intended to be handled jointly, by both the legislative and executive branches of the State of Oklahoma. On this matter and many others, the legislative branch sets the policy and the executive branch executes the policy. The policy the Legislature has set at this time does not grant the executive the authority to unilaterally enter into the type of agreements signed yesterday,” wrote McCall in a letter to Stitt dated April 22, 2020.

In August 2020, Stitt petitioned the Oklahoma Supreme Court to rehear the case. That request was later denied.

The matter remained dormant for greater than a 12 months as tensions continued between the Governor and tribal nations over numerous points — prison jurisdiction in Indian Country, looking and fishing compacts and taxation.

In a transfer that seems to have been accomplished in secret, Stitt has retained Washington D.C. based mostly regulation corporations Sullivan and Cromwell, and Troutman, Pepper, Hamilton and Sanders.

Counsel despatched a message to Judge Timothy J. Kelly filed in United States District Court for the District of Columbia courtroom earlier this month to argue the compacts are legitimate and to inform the courtroom they intend to file a movement to dismiss the case in opposition to the agreements that had been introduced by Citizen Potawatomi Nation, Cherokee Nation, Choctaw Nation and Chickasaw Nation.

The message to the Court learn:

“On June 29, 2022, the Supreme Court issued its decision in Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022), holding that Oklahoma has jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. In the wake of that groundbreaking decision, the Governor has conducted a review of pending litigation involving Oklahoma Tribes and the State. As a result of that review, Governor Stitt has retained the undersigned and now intends to assert the defense that [the complaint] fails to state a claim upon which relief can be granted. . . . As grounds for seeking that relief, the Governor expects to make additional arguments concerning the validity of the compacts at issue that the parties have not yet fully presented. In particular, the Governor will explain why . . . the underlying compacts are valid as a matter of law.”

“It’s unclear how the argument of Castro-Huerta would apply to a ruling on gaming through the Oklahoma Supreme Court,” stated Stephen Greetham, Outside Counsel for Chickasaw Nation. “He’s [Stitt] using Castro-Huerta like a magic wand.”

When KOSU contacted state legislative leaders to ask in the event that they have been aware of the Governor’s resolution to rent outside counsel to revive the gaming compacts, neither of them knew something about it.

“The Governor did not inform this office of the decision or reasoning behind it,” stated House Speaker Charles McCall (R-Atoka).

And a spokesperson for Pro Tempore Greg Treat, (R-Edmond) advised KOSU, “The governor has not made the Pro Tem’s office aware.”

KOSU reached out to Stitt’s workplace through electronic mail twice — on Oct. 14 and Oct. 21 — asking for a touch upon this story however acquired no response.

Tribal nations concerned within the lawsuit have been additionally unaware of Stitt’s intention to have their lawsuit dismissed.

“This is another example of the Governor spending taxpayer dollars unnecessarily,” said Sara Hill, Cherokee Nation Attorney General. “The Oklahoma Supreme Court made it clear that the compacts he’s defending were void a long time ago. I cannot understand why more taxpayer dollars should be used to prop up the actions of the Governor when he won’t even accept the judgment of the state’s own courts.”

Matthew Morgan, Executive Director of the Oklahoma Indian Gaming Association, stated he was additionally stunned by Stitt’s transfer to rent outside counsel.

William Norman is an legal professional based mostly in Washington D.C., and his follow recurrently offers with tribal gaming compacts. Norman advised KOSU that despite the fact that the U.S. Department of the Interior allowed the compacts in query to enter impact by not taking official motion, that does not imply they’re legal.

The Indian Gaming Regulatory Act (IGRA) was handed by Congress in 1988 to create financial alternatives for tribal nations. IGRA defines rules and the position of the Department of the Interior for gaming. Norman stated IGRA preempts state regulation on the subject of defining relationships between states and tribes with regard to gaming in Indian Country.

“So even though the clock ran [out] on the determination to be made by the Department of Interior, those are only valid to the degree that they’re otherwise valid,” stated Norman.

Depending on the place the cash to retain the attorneys got here from, Stitt might not have had the authority to spend it on outside counsel below HB2951, which he signed into regulation in 2021.

The regulation created a revolving fund for litigation between the state and the tribes, however it requires all expenditures be authorized by a joint committee of the Governor, Speaker of the House and Senate President Pro Tempore.

At the time of publication for this story, the state of Oklahoma had not offered the contracts outlining the fee retaining the attorneys for this case, however different attorneys we talked to stated the speed is probably going between $800 and $1,200 per hour.

In Oklahoma v. Castro-Huerta, the state of Oklahoma spent $1.4 million with outside firm Weiss, Rifkind, Wharton & Garrison. That was double the unique estimate.

There are 130 tribal gaming operations within the state operated by 35 tribes. They are ruled by the Model Gaming Compact, which Stitt doesn’t acknowledge.

The compact was approved by Oklahoma voters in 2004 in an effort to save lots of the state’s horse racing business. It allowed compacted tribes to function new gaming machines and card video games. Previously, all gaming operations within the state needed to be based mostly on bingo.

Compacted tribes comply with pay the state 12 p.c of income from casinos, and that cash is devoted to Oklahoma’s schooling system.

Because of the language within the 2004 compact, Stitt and tribal leaders disagreed whether or not or not the Model Gaming Compact robotically renewed for one more 15-year time period on January 1, 2020.

In July 2020, U.S. District Court Judge Timothy De Guisti sided with the tribes and stated the mannequin gaming compact had renewed January 1, 2020, ending a months lengthy legal dispute between Oklahoma and tribal nations.

The Governor wished to renegotiate the settlement for a higher share of tribal gaming income. The tribes declined, pointing to their contributions to state infrastructure and group investments over and above the compacted cash devoted to schooling.

July 8, 2019 — Stitt writes an opinion piece within the Tulsa World saying that the mannequin gaming compact signed in 2004 would not robotically renew on Jan. 1, 2020. Tribes disagree and filed a federal lawsuit.

January 1, 2020 — Tribal gaming in Oklahoma continues regardless of Stitt claiming that casinos within the state can be working illegally.

April 21, 2020 — Stitt indicators two new gaming compacts with the Otoe-Missouria and the Comanche Nation regardless of the continued lawsuit in opposition to his workplace.

June 9, 2020 — U.S. Department of Interior takes no motion on gaming compacts signed by Otoe-Missouria and Comanche Nation. Compacts go into effect by default.

June 25, 2020 — Lawsuit filed in opposition to Stitt in Oklahoma Supreme Court over Otoe-Missouria and Comanche Nation compacts.

July 2, 2020 — Stitt indicators two additional compacts with United Keetoowah Band Of Cherokee Indians and the Kialegee Tribal Town.

July 21, 2020 — Oklahoma Supreme Court rules that compacts Stitt signed between Comanche Nation and Otoe-Missouria have been invalid.

July 28, 2020 — A U.S. District Court judge rules in opposition to Stitt within the dispute over the mannequin gaming compacts-saying they robotically renewed on Jan. 1, 2020.

August 10, 2020 — Cherokee Nation, Citizen Potawatomi Nation, Chickasaw Nation and Choctaw Nation file a federal lawsuit against new gaming compacts.

August 20, 2020 — U.S. Department of Interior takes no motion on gaming compacts signed by Kialegee Tribal Town and United Keetoowah Band. Compacts go into effect by default.

January 26, 2021 — Oklahoma Supreme Court rules that compacts between Kialegee Tribal Town and United Keetoowah Band are additionally unlawful.