Oklahoma attorney general: Governor cannot enter into tribal compacts and authorize illegal gaming activity

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OKLAHOMA CITY (KFOR) – State leaders continue to battle it out over the legality of Governor Kevin Stitt signing two new tribal gaming compacts with individual tribes.

Last month Gov. 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.

Shortly after the announcement, Oklahoma Attorney General Mike Hunter told KFOR that the pacts, especially regarding sports betting, were not authorized under the State Tribal Gaming Act.

“The agreements signed today between the governor, the Otoe-Missouria Tribe and the Comanche Nation are not authorized by the state Tribal Gaming Act, Title 3A, Section 261 et. sec. The governor has the authority to negotiate compacts with the tribes on behalf of the state. However, only gaming activities authorized by the act may be the subject of a tribal gaming compact. Sports betting is not a prescribed ‘covered game’ under the act.”

ATTORNEY GENERAL MIKE HUNTER

At the same time, tribal attorneys were also 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 a letter to Gov. Stitt, lawmakers said the compacts were “unauthorized by law and void without action by the Oklahoma Legislature.” It went on to say that the actions are a “unilateral attempt… to make legal that which is not legal… and to exercise power that belongs solely to the legislative branch.”

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

“As your letter correctly notes, ‘the Oklahoma Constitution vests the Governor with power to ‘conduct intercourse and business with the other states and the United States.’ Contrary to the position expressed in your letter, this constitutional authority vests solely in the Office of the Governor. And while the power is exercised via statute, it is unquestionably the case that ‘any requirement that individual agreements or compacts negotiated by the Governor on behalf of the State with other sovereigns, such as Indian tribes, be approved by the Legislature would violate the principles of separation of powers.’ Oklahoma Attorney General Op. No. 2004 OK AG 27 (Aug. 26, 2004) Accordingly, the statements and conclusions drawn in the letter are legally infirm,” he wrote.

On Tuesday, Oklahoma Attorney General Mike Hunter issued an official opinion on the compacts after being contacted by legislative leaders.

Hunter says that the governor lacks 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.”

Attorney General Hunter adds that Oklahoma deeply values its relationship with tribal nations, and approval of these agreements stands to harm those relationships.

“They are an integral part of our community, history, culture, economy, and way of life,” Attorney General Hunter continues. “Their importance demands the respect of knowing that, when state officials make promises to Indian tribes, those officials have the authority to bind the State to such agreements.

To do otherwise undermines the credibility and honor of the State when engaging in these sensitive inter-sovereign relations. Unfortunately, I fear the agreements sent recently to you by the Governor will only have the effect of damaging the relationship between the State and these two 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.”

Oklahoma Attorney General Mike Hunter

Comanche Nation Chairman William Nelson, Sr. and Otoe-Missouria Tribe Chairman John R. Shotton issued the following statement regarding Attorney General Mike Hunter’s opinion on the legality of the new tribal gaming compacts: 

“Our compacts are legal and were negotiated in good faith. The political fight between the governor and the attorney general over sports betting is not our concern and does not impact the legality of the compacts. We look forward to approval of the compacts, which are good for our tribal members, our local communities and the state as a whole.”

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