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OK AG: Governor lacked authority to strike tribal compacts


Oklahoma Attorney General Mike Hunter has issued an official opinion stating that Governor Kevin Stitt lacks authority to agree compacts with Indian gaming tribes that authorize gaming activity, namely sports betting, prohibited by state law.

Hunter, who first questioned the validity of the new compacts with the Otoe-Missouria Tribe and the Comanche Nation late in April, has therefore asked Secretary of the Interior David Berhardt to reject the agreements. The Interior Department must ratify the compacts before they can come into force.

The new compacts aimed to allow each tribe to significantly expand the range of Class III games they could offer, including betting on a range of sports. However, the State-Tribal Gaming Act only allows state officials to agree compacts for products not prohibited under state law. 

That act specifically prohibits the operation of slot machines, house-banked card games, house-banked table games involving dice or roulette wheels and “games where winners are determined by the outcome of a sporting contest”. 

This, Hunter explained, means that not only do the compacts deviate from the State-Tribal Gaming Act, but they also fail to comply with the Indian Gaming Regulatory Act. The federal act only permits compacts to be brokered by those with the authority to enter into such an agreement.

“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,” Hunter told Berhardt. 

“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.”

The official opinion was issued following requests from the Oklahoma House and Senate leadership. The Oklahoma Indian Gaming Association (OIGA) has already attacked the new compacts, claiming they amounted to an erroneous claim of “unilateral state authority”.

The AG added that Oklahoma’s tribal nations are an “integral part” of the state’s community, history, culture economy and way of life.

“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,” Hunter said.

“To do otherwise undermines the credibility and honor of the State when engaging in these sensitive inter-sovereign relations.”

He warned that Stitt’s agreements would only serve to damage the relationship between the state and the 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.”

The AG’s opinion looks set to further strain the relationship between Stitt and the tribes, with that relationship already fraught as a result of the Governor’s claim that tribal compacts did not automatically renew under existing terms from January this year. 

After the tribes sued the state, a judge has set a May 31 deadline for a compromise to be reached.