Two gambling compacts Gov. Kevin Stitt recently signed with Oklahoma Indian tribes go beyond the governor’s authority, Attorney General Mike Hunter ruled last week.
Because official opinions of the attorney general — including this one — have the effect of law, that would seem to end the discussion on Stitt’s deals with the Otoe-Missouria Tribe and the Comanche Nation.
The governor could challenge Hunter’s finding in court, but that would take time and not bring his bigger gambling conflict with tribes any closer to resolution. He also could try to get Hunter’s ruling overturned by the Legislature, but that’s an even bigger long shot.
In his finding, Hunter says that state law limits potential tribal gambling compacts within a “model compact.” The model was approved by state voters in 2004 and subsequently revised by the Legislature.
Stitt’s recent Otoe-Missouria and Comanches agreements would authorize forms of gambling that are not allowed within the model compact, including house-banked card games, house-banked table games and some forms of event wagering such as betting on sports, Hunter says.
“The new compacts also deviate from the model compact in that they have different exclusivity fee rates, different processes for adding new games, a different dispute resolution clause and different audit and compliance provisions, among many other differences,” Hunter’s opinion says. “Unlike the model compacts, the new compacts purport to vest all state authority related to the compacts with the governor alone.”
Hunter also wrote to U.S. Secretary of the Interior David Bernhardt, urging him to set aside the agreement as invalid. The Interior Department has to sign off on any gambling compacts signed by tribes.
Stitt is becoming increasingly isolated in his long struggle with the state’s resident Indian nations over the future of gambling at tribal casinos and the state’s share of the winnings.
Under the model compact, gambling tribes pay the state fees ranging from 4% to 10% of their revenues on Class III gambling. That brought the state nearly $150 million last year, although the number will certainly be down this year because the casinos have been dark for weeks because of the COVID-19 pandemic. The governor has been trying to leverage a better deal for the state, but so far he’s only won political heartache and what must be a growing sense of loneliness.
Other than the Otoe-Missouria and the Comanche, the state’s gambling tribes have maintained a united front. The tribes are suing Stitt and have mounted an effective public relations effort to portray themselves as Oklahoma businesses that aren’t going anywhere and emphasizing how they use their share of gambling revenue to help the people of the state, including people who aren’t Native Americans.
Speaker of the House Charles McCall and the Democratic leaders of both chambers of the Legislature have already said they think the tribes are right (and Stitt is wrong) on a critical issue — whether the state’s 2004 gambling agreements with tribes lapsed at the end of 2020. If the model compacts automatically renewed on New Year’s Day, Stitt’s argument for a new deal is obviously weakened. Senate President Pro Tem Greg Treat has said he doesn’t know if the agreement automatically renewed or not, but that the issue should be decided through arbitration.
Stitt once had Hunter working as his lead negotiator on the thorny issue, but then he pushed him aside for an out-of-state law firm. Now Hunter has undercut Stitt’s only progress on the issue so far this year.
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Thanks to actions taken by the Oklahoma Legislature in the past two years and emergency powers that resulted from the global COVID-19 pandemic, Kevin Stitt has broader authority than any governor in Oklahoma history. His party has an unbeatable majority in both chambers of the Legislature, and, until recently, he’s had more money in the state treasury than ever before.
Being the most powerful governor in state history is an enviable position, but it’s not the same as being all-powerful, and the frustration Stitt must be feeling over the Indian gaming issue these days won’t be his only trouble moving forward if he doesn’t figure out how to use charm and cooperation along with all that authority, political clout and money.