OKLAHOMA CITY — Attorneys for the state’s legislative leaders, the Office of the Attorney General and Gov. Kevin Stitt made their case Wednesday before an Oklahoma Supreme Court referee as to who has what authority when it comes to gaming compacts.
“This is an intra-sovereign fight,” attorney Cara Rodriguez said. “That is something that we contend needs to be decided by the highest court of our state.”
Rodriguez’s clients, state House Speaker Charles Mc- Call (R-Atoka) and Senate President Pro Tempore Greg Treat (R-Oklahoma City), maintain Gov. Stitt overstepped his authority by signing compacts with the Otoe-Missouria Tribe and Comanche Nation that included terms not explicitly covered by the Oklahoma Tribal Gaming Act without consulting the legislature.
However, as Gov. Stitt’s attorney, Philip Whaley pointed out, the two compacts were deemed approved by the Department of Interior in early June and published in the Federal Register on June 29.
“There’s nothing relating to this action that can undo the fact that these compacts have been approved under federal law,” he said. “They are effective federal compacts. Regardless of what this court does, it can’t undo that. Perhaps a federal court could.”
At the end of Wednesday’s 90-minute session, Oklahoma Supreme Court referee Ann Hadrava said she could not provide a timeline for if, or when, the justices would consider the case. As of Tuesday, the Oklahoma Supreme Court has not announced whether it will hear the case.
On the same day that attorneys presented their arguments to Hadrava, Gov. Stitt and leaders with two eastern Oklahoma tribes signed new gaming compacts that are contingent upon new land being placed into trust acquisitions in the Oklahoma City metropolitan area.
The United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town signed a 15-year agreement Wednesday that would allow each tribe to open up a single property outside of its jurisdictional area.
The UKB has not operated any gaming properties since its Tahlequah casino closed in 2013. As written, its compact is limited to a single facility in Logan County and does not allow for any Class III gaming at the shuttered Keetoowah Cherokee Casino property.
Headquartered in Wetumka, the Kialegee Tribal Town’s compact is specifically for a single property in Oklahoma County east of Choctaw Road. The tribe previously tried to open a casino in Broken Arrow, but was denied a gaming license by the National Indian Gaming Commission.
Section 20 of the Indian Gaming Regulatory Act includes provisions for tribes to take land into trust outside of their jurisdictional area if certain conditions are met, including approval from state officials.
For the Kialegees, that state approval is contingent upon signing an agreement with another tribe by June 30, 2021, to jointly manage the casino. Additionally, the tribe has to submit its application to the federal government for consideration under IGRA by June 30, 2023.
The UKB must submit its land into trust application to the federal government by July 1, 2024, in order for the state to stay on board with the proposed Logan County property.
The UKB compact sets an exclusivity fee sliding scale on revenue from Class III machines, ranging from 12 to 15 percent.
For Kialegees, the exclusivity fee is set at 12 percent for the first two years their casino is open, then the sliding scale is implemented for the rest of the compact’s duration.
Additionally, both tribes would pay an 18 percent exclusivity fee on revenue from non-house banked table and card games, such as roulette, craps, poker or blackjack.
By comparison, the exclusivity fees in the model state-tribal gaming compact signed in 2004 max out at 10 percent.
Under the terms of the Indian Gaming Regulatory Act, the compact must be approved by the Department of Interior before it can take effect.
If no formal action is taken within 45 days, as was the case with the Otoe-Missouria and Comanche compacts, it is deemed approved, but will not take effect until it is formally published in the Federal Register.