Tribes claim Gov. Kevin Stitt unwittingly renewed tribal gaming compacts
Gov. Kevin Stitt unwittingly triggered the automatic renewal of the state's tribal gaming compacts last December — at the same time he was publicly arguing that the 15-year agreements were about to expire, Wichita and Affiliated Tribes contend in a federal court document filed late Friday.
A spokeswoman for Stitt responded Saturday the governor and his staff remain confident that the renewal provision was never triggered.
The Wichita and Affiliated Tribes consist of the Wichita, Keechi, Waco and Tawakoni tribes. They contend Stitt undermined his own legal position and triggered the renewal provision for all gaming tribes by signing extension agreements with two tribes — the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town.
Those agreements "purported" to extend the "expiration date" of the two tribes' compacts from Jan. 1 to Aug. 31, the Wichita Tribe said.
The tribes contend that under the terms of their compacts, the compacts automatically renew if "organization licensees or others are authorized to conduct electronic gaming in any form" at the time the compacts come up for renewal.
By signing the extension agreement with two tribes, Stitt triggered compact renewal for all, the tribes reasoned.
"In other words, Governor Stitt, personally and purporting to act on behalf of the State, authorized the operation of electronic gaming in Oklahoma in any form on and after January 1, 2020, thereby nullifying any assertion against renewal for all compacting tribes," the tribes argued in their court filing.
Baylee Lakey, the governor's communications director, said the governor and his staff view the extensions differently.
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“All procedures concerning the two 8-month extensions were followed," Lakey said in a prepared statement. "We remain confident that the State has taken no action that triggers automatic renewal."The Wichita and Affiliated Tribes contend that Stitt's action in extending the gaming compacts is just one of 12 ways the state has triggered the automatic renewal provision of the tribal gaming compacts.
They claim the state has also triggered the renewal provision by — among other things — issuing racetrack gaming operator licenses, licensing lottery retailers to engage in electronic gaming, authorizing mobile internet gaming, authorizing liquor stores to become lottery retailers and by passing a new law authorizing the use of dice and roulette wheels at tribal casinos.
Stitt disputes those claims.
The tribes' accusation that Stitt's actions undercut his own legal position comes at a particularly difficult time, with Stitt and the tribes preparing to begin federal court-ordered mediation.
Oklahoma City Federal Court Judge Timothy DeGiusti appointed former Federal Court Judge Layn Phillips on Friday to serve as a mediator in the case.
Three tribes, the Cherokee, Chickasaw and Choctaw Nations, filed a lawsuit against Stitt on New Year's Eve, asking Chief Judge DeGiusti to rule that their gaming compacts automatically renewed on Jan. 1. Several other tribes have since joined the lawsuit.
Lakey said she believes statements made by some of the tribes in their motions to intervene in the case reveal divisions within their ranks.
"It is clear from Friday’s filings that Oklahoma’s tribes are not united, as some have expressed concerns that their interests won’t be sufficiently represented by the three big tribes,” she said.
Lakey specifically pointed to motions to intervene filed by the Ponca Tribe of Indians of Oklahoma and the Seminole Nation.
The Ponca Tribe stated in its court filings that it does not currently have any gaming operations in the state, but is building a multimillion-dollar casino that is slated to open this spring.
"To the extent this litigation, or its attendant mediation, impacts renegotiations of the terms of the MTGC (Model Tribal Gaming Compact), the Ponca Tribe respectfully submits that the other tribal Plaintiffs, all with well-established facilities and practices, do not and cannot represent the unique and delicate position of the Ponca Tribe," attorneys for the tribe wrote. "The threat of potential economic injury which could ensue from this litigation would be disastrous for the Ponca Tribe."
The Seminole Nation said it was important for it to be allowed to participate in the case because mediation was about to take place.
"In mediation proceedings, confidentiality will prevent the Nation from ascertaining how its rights are being defended," the Seminole Nation's attorneys said. "The non-public nature of the upcoming mediation therefore substantially heightens the need for the Nation's participation."
Stitt has asked the judge to rule that the tribes' gaming compacts expired on Jan. 1 and that their continued operation of Las Vegas-style Class III slot machines since that date has been illegal.
Both sides are seeking to obtain the upper hand as they prepare for negotiations over exclusivity fees that the tribes pay the state in exchange for having limited gaming competition.
The governor wants the state's tribes to renegotiate the gaming compacts and pay the state higher exclusivity rates than the 4-6% graduated rates that they have been paying on Class III slot machines and 10% that they have been paying on certain table games.
The state has received about $1.5 billion in exclusivity fees from tribes since 2006, including about $148 million in fiscal year 2019, alone.