Posted: Jan 03, 2020 2:49 PMUpdated: Jan 03, 2020 3:04 PM

Model Gaming Compact Dispute: Tribes Sue, Governor Defends

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Tom Davis

Governor Kevin Stitt is praising two tribes, the Kialegee Tribal Town (“Tribe”) and United Keetoowah Band of Cherokee Indians, for entering into an eight-month extension with the State of Oklahoma on the Model Gaming Compact while responding to the other tribe's and their federal lawsuit in the dispute.

Gov. Stitt says, “I am disappointed that a number of Oklahoma tribes, led by the Chickasaw, Cherokee, and Choctaw Nations, did not accept the State’s offer on Oct. 28 for a three-person arbitration panel to resolve our dispute outside of court. This was a capstone action to their numerous refusals to meet with the State and begin negotiations on the Model Gaming Compact to ensure a win-win for all parties by the end of this year. I was elected to represent all 4 million Oklahomans, and I will continue to be laser focused on an outcome that achieves a fair deal and is in the best interest of the state and its citizens.”

Stitt says the gaming compacts were entered into by the State of Oklahoma and 35 tribes beginning in 2005. Between July 3 – July 8, 2019, Governor Stitt requested that tribal leaders work with the State to renegotiate terms in the gaming compacts—"within 180 days of the expiration of this Compact or any renewal thereof,” as set forth in Part 15.B of the compacts. 

According to the Governor, the State of Oklahoma made four official requests for tribal leaders to come together to discuss and negotiate the terms of the gaming compacts. All requests were turned down by the tribes. The State then proposed arbitration to resolve the legal dispute regarding the compacts’ expiration date. This offer was categorically rejected. On Dec. 18, 2019, Governor Stitt offered to extend the compacts for eight months to permit the parties time to negotiate in good faith. This offer was also turned down. The tribes have now filed a lawsuit after repeatedly being offered all avenues available to resolve the matter without litigation. The timeline of events is available by clicking here.

Video: Governor Stitt Persents His Case

The Cherokee, Chickasaw and Choctaw Nations filed a Federal lawsuit on New Year's Eve 2019 to bring an end to the uncertainty over Tribal gaming operations. The suit names Governor Stitt in his official capacity and seeks a judicial declaration that the gaming compacts renew in accord with their express terms, effective January 1, 2020.

The Nations provided a copy of the Federal complaint to Governor Stitt, along with a letter explaining their reasons for filing it. Counsel for the Nations, former United States Circuit Judge Robert Henry, provided a companion letter and copy of the complaint to Oklahoma Attorney General Mike Hunter.

Audio: Cherokee Chief Chuck Hoskin Jr  Defends the Actions and Describes the Lawsuit

The tribes maintain that while revenue-share rates have generated significant public interest, the Nations’ lawsuit does not address those matters. It instead calls for the court to declare the legal effect of the compact’s Part 15.B., which states—

This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others are authorized to conduct electronic gaming in any form other than pari-mutuel wagering on live horse racing pursuant to any governmental action of the state or court order following the effective date of this Compact, the Compact shall automatically renew for successive additional fifteen-year terms.

(Emphasis added.) As the Nations emphasized in their letter to Governor Stitt, “the dispute—like the lawsuit—is about renewal, not rates.”

The Nations have publicly offered statements and analyses that support their position on renewal, including a legal opinion from former Solicitor General of the United States Seth Waxman that concluded:

The renewal provision in the Tribes’ gaming compacts with Oklahoma is not ambiguous. Under that provision’s plain language, the compacts will renew automatically when they expire on January 1, because the provision’s sole condition precedent for automatic renewal is unquestionably satisfied. Each of the contrary arguments I have seen to date simply cannot be squared with fundamental principles of contract interpretation.

Without offering support or analysis for his position, Governor Stitt has repeatedly and publicly rejected renewal, instead choosing to criticize Tribes for not working on a new compact with him and insisting the current compacts terminate and falsely declaring Tribal gaming unlawful in 2020.

Meanwhile, Oklahoma Governor Kevin Stitt on Friday, January 2, 2020 announced he has hired the Perkins Coie law firm to assist in the Model Gaming Compact negotiations and defending the lawsuit.

From a statement released Friday by Oklahoma Governor Kevin Stitt:

“With Perkins Coie, the State of Oklahoma is well positioned to work towards a compact that protects core public services and advances the future of our great state, its four million residents, and gaming tribes. Perkins Coie will also respond to and address the Chickasaw, Cherokee, and Choctaw Nations’ federal lawsuit filed on New Year’s Eve. The legal experts at Perkins Coie have successfully represented other states in Indian law controversies, to include the State of New Mexico’s compact dispute in 2015,” said Gov. Kevin Stitt.

Although the Governor remains focused on negotiating stronger compacts, the Chickasaw, Cherokee, and Choctaw Nations sued the State through the Governor on New Year’s Eve, alleging that his statements that the Model Gaming Compact would expire on January 1, 2020 violated federal law and that the compact automatically renews. Perkins Coie will assist in defending against that suit, in addition to providing counsel regarding compact negotiations. 

The firm has extensive litigation experience, including successfully challenging federal regulations invoked by a gaming tribe to circumvent IGRA’s compact requirement on behalf of the State of New Mexico in 2015. While that litigation was pending, Perkins Coie assisted the State in negotiating a new gaming compact with five other tribes whose compacts were also set to expire that year. Since that time, a dozen other New Mexico tribes opted into the new gaming compact."

Matthew L. Morgan, chairman of the Oklahoma Indian Gaming Association, made the following statement:

“The Tribes remain firmly united on the automatic renewal of the compacts. We have communicated our position to Governor Stitt on numerous occasions in hopes of finding a practical path forward benefitting both the State and Tribes. That said, as leaders of sovereign nations, the Tribal leaders must honor the compacts and will continue to do so on January 1, 2020, as they’ve done the past 15 years. Tribal leaders have the right as well as the responsibility to protect their citizens. Tribal leaders applaud the action taken today by the Cherokee, Choctaw and Chickasaw Nations to seek certainty on the matter of automatic renew through the Federal court.”


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