Approved: US Department of Interior deems individual tribal gaming compacts legal

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OKLAHOMA CITY (KFOR) – The fight regarding the legality of two new tribal gaming compacts in the state has taken a new turn.

In April, Gov. Kevin Stitt announced that the state had reached new deals with the Otoe-Missouria and Comanche tribes. The compacts call for lower exclusivity fees, and allow sports betting and new casinos closer to larger cities.

Immediately, tribal attorneys were split over the legality of the compacts. Since sports betting is not legal in Oklahoma, they say it cannot be used as a bargaining chip without being passed by the Legislature.

“Tribes can do what is legal in the state so if those games aren’t legal in the state, that poses a threshold problem,” said Kirke Kickingbird, tribal law attorney.

Lawmakers at the Oklahoma State Capitol also expressed concerns about the legality of the move.

In late April, Stitt told lawmakers that he received “numerous, exceptional legal opinions throughout this process” regarding the legal status of the compacts.

However, Oklahoma Attorney General Mike Hunter said the governor lacks the authority to enter into and bind the state to compacts with Native American tribes that authorize gaming activities that are prohibited by state law.

In addition to the opinion, Hunter sent a letter to Secretary of the Interior David Berhardt, where Hunter asked him to reject the agreements because they are not authorized by the Indian Gaming Regulatory Act.

“Because the Governor lacks authority to ‘enter into’ the agreements he has sent to you, those agreements fail to meet the requirements of IGRA to constitute a valid gaming compact under federal law,” Attorney General Hunter writes. “How a state enters into a gaming compact with a tribe, including whether the Governor may do so unilaterally in contravention of state statute, is a core concern of the state’s constitutional structure and is therefore a matter of state law.”

Gambling

On Monday, the U.S. Department of the Interior announced that it approved the compacts, meaning they are legal in Oklahoma.

“Today’s approval of our compact with the state of Oklahoma will allow us to welcome in a new, modern era of tribal gaming to the benefit of both our people and the state of Oklahoma,” said Otoe-Missouria Tribe Chairman John R. Shotton. “This compact will help us further diversify our economy, bring in new revenue for services for our people and will allow us to double down on our community engagement in both our existing rural communities and future expansion opportunities. This compact is what is best for our tribal members and we appreciate the Department of the Interior for approving the compact today.”

“This compact represents the best of the Comanche people – being a good neighbor, reciprocating back to our people and the communities in which we live; honoring the past while looking ahead to a brighter future for all,” said Comanche Nation Chairman William Nelson, Sr. “We have known since we reached this agreement with the governor of Oklahoma that our compact is legal and are pleased that the U.S. Department of the Interior has agreed. This compact will have a positive generational impact on our Nation and Oklahoma. It will modernize gaming in Oklahoma and makes clear that tribal sovereignty is paramount in Oklahoma and nationally. This is what the Oklahoma citizens envisioned back in 2004 when they voted unanimously that the gaming industry would be beneficial for the state, tribes, nations and townships.”

Officials say the compact gives both tribes the opportunity to build new, state-of-the-art casinos and expand their footprints into historically-significant land for both tribes.

“I am extremely pleased to learn that these new compacts have been deemed approved by the federal government,” said Gov. Kevin Stitt. “I appreciate and respect the thoughtful leadership of Chairman Shotton and Chairman Nelson who worked hard to secure fair terms for their citizens, and whose contributions throughout the negotiations ensured a more level playing field and modernized gaming market in Oklahoma. With these new gaming compacts, Oklahoma is ushering in a new era of prosperity, opportunity, and partnership for the state and the Tribes.”

The tribes can begin operating under the terms in the compacts once they are published in the Federal Register.

Attorney General Hunter released the following statement:

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

Both the Otoe-Missouria Tribe and Comanche Nation will be able to break ground on state-of-the-art casinos closer to major cities, pay lower fees, and facilitate sports betting.

“It’s an extremely exciting time for our tribe and we have a bright future moving ahead,” Chairman of the Otoe-Missouria Tribe John Shotton tells KFOR. “We’ve taken some hits and some aggression toward us, but I feel good.”

However, sports betting is against Oklahoma law, causing the tribes to be in the middle of an ongoing legal battle. 

“We are confident this will be worked out in the future because Oklahoma wants sports betting,” Shotton said. 

Other tribes across the state calling Monday’s approval a “gut punch.”

Chickasaw nation, who sued the governor months ago along with Cherokee and Choctaw Nations over their ongoing dispute for renewal, posted Monday:

 “On Sunday, June 7, the 45-day period for the Department of the Interior to announce a decision on Governor Stitt’s proposed gaming agreements came and went, and the Department chose to do nothing. This signals it is washing its hands of the matter.
The expiration of this review period will allow the agreements to take effect but only to the extent they don’t violate Federal law. The risk of the agreements’ illegality remains with Governor Stitt and the two signing Tribes, and since several Federal law defects have already been publicly documented, more litigation is likely. Meanwhile, Oklahoma’s legislative leadership has already sued Governor Stitt to challenge his State law authority to bind Oklahoma to his new agreements. So it’s safe to say Federal inaction won’t settle these roiled waters.
In short, the Department has left matters to Oklahoma and the Tribes to figure out here locally. We’ll get it done, but we are not there yet.”

Stephen Greetham, senior counsel for Chickasaw Nation

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