Despite pending litigation, two new tribal compacts approved


Compact Action Monday Afternoon 

  • Two gaming compacts approve by the governors office Monday afternoon.

OKLAHOMA CITY — Despite pending litigation and objections from both Oklahoma’s attorney general and legislative leaders, all signs point to two new tribal gaming compacts taking effect soon.

On Monday afternoon, Gov. Kevin Stitt’s office announced that the gaming compacts signed in April with the Comanche Nation and Otoe-Missouria Tribe were deemed approved by the Department of Interior.

Under the terms of the Indian Gaming Regulatory Act, a compact that is “deemed approved” is one that the Secretary of Interior has not formally acted on one way or the other by the 45-day deadline laid out in law. Such a compact is considered legal only to the extent it does not violate the Indian Gaming Regulatory Act.

Oklahoma Attorney General Mike Hunter, leaders of both the Oklahoma House of Representatives and Senate, as well as officials from other Oklahoma gaming tribes all lodged objections to the compacts, claiming different provisions violated the Indian Gaming Regulatory Act.   

Under the terms of the new agreements, both tribes would pay an exclusivity fee starting at 4.5 percent on revenue generated by Class III games at their existing casinos. If additional casinos are opened, then the exclusivity fee increases to 6 percent. That is on top of the annual oversight fee ranging from $25,000 to $250,000, depending on how much revenue is generated.

The Otoe-Missouria and Comanche compacts include provisions allowing sports betting at two brick and mortar locations and online sports betting. That revenue would be subject to an additional 1.1 percent fee and any sports betting vendors brought on board by either tribe would be subject to approval by the state first.

Neither are currently allowed under Oklahoma law and the legislature was not consulted during negotiations, prompting Hunter to issue a formal opinion in May that the compacts are invalid and in violation of the Indian Gaming Regulatory Act.

Drawing objections from other tribes is language in the new compacts that gives the governor’s endorsement for the Otoe-Missouria Tribe and Comanche Nation to open up new facilities in specific counties that are outside of their jurisdictional areas in exchange for higher exclusivity fees. 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.

Among the specific carveouts for Oklahoma tribes in that section is documentation that the land is either within the tribe’s historical boundaries or is contiguous to land already in trust for that tribe.

The Comanche Nation’s compact allows for one new facility each in Grady, Cleveland and Love counties, while the Otoe-Missouria’s compact would allow for one new casino each in Logan, Payne and Noble counties.  

As of the close of business Monday, the approval notice has not appeared in the Federal Register. Until that notice is published, the compacts’ new terms can not take effect. The agreements are also missing from the list of approved compacts listed on the website for the Department of Interior’s Office of Indian Gaming as of Monday.

Meanwhile, litigation is still pending in the Western District of Oklahoma between the governor and nine tribes over the status of the model state-tribal gaming compact.

Tribes involved in the lawsuit include the Cherokee, Choctaw, Chickasaw, Muscogee (Creek), Seminole, Citizen Potawatomi and Delaware nations; the Quapaw Tribe and Wichita and Affiliated Tribes.

Thanks to the ongoing pandemic, the deadline for court-ordered mediation in the matter was extended. Responses to dueling motions for summary judgment are due Friday.  

Additionally, Stitt’s attorneys have formally requested Judge Timothy DeGuisti put mediation on hold and decide whether he can legally unilaterally sign off on new or amended compacts offering Class III games currently not allowed under state law.   

On Thursday, state Speaker of the House Charles McCall (R-Atoka) and President pro Tempore Greg Treat (R-Oklahoma City) filed a motion with the Oklahoma Supreme Court, asking it to assume jurisdiction on the question of whether Gov. Stitt overstepped his authority.

In a joint press statement, the two men said they had no choice but to file.

“Federal judges decide matters of federal law, not matters of state law, and at issue is a matter of state law. Asking federal judges to decide a matter of state law is a dangerous intrusion into states’ rights.”

An Oklahoma Supreme Court referee is scheduled to hear the matter on July 1.

In a written statement issued Monday afternoon, Comanche Nation Chairman William Nelson lauded the federal government’s decision – or lack thereof – to uphold the new compact.

“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,” he said. “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.”