Saying he wants to “end the continued waste of state resources in this matter,” Attorney General Gentner Drummond has asked the Oklahoma Legislature to grant him authority to take over the state’s representation in a three-year-old legal dispute between Gov. Kevin Stitt and tribal nations regarding casino gaming compacts.
The Republican Caucus for the Oklahoma House of Representatives is reportedly supportive, but House Speaker Charles McCall’s letter in response stopped short of making a “formal” request as sought by Drummond. Meanwhile, members of the Senate GOP Caucus are said to be reviewing the AG’s proposal.
Drummond wrote a letter last month to Senate President Greg Treat (R-OKC) and House Speaker Charles McCall (R-Atoka) seeking formal permission for his office to assume the defense of Oklahoma’s interests in a lawsuit filed against Stitt and the U.S. Department of the Interior by four tribes: the Cherokee, the Chickasaw, the Choctaw and the Citizen Potawatomi nations.
The four tribes argue that Stitt violated the law by not receiving approval from the Oklahoma Legislature before signing new casino gaming compacts in 2020 with four other tribes: the Comanche Nation, the Otoe-Missouria, the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town.
“You are painfully aware that the state of Oklahoma has been embroiled in a legal controversy for over three years following Gov. J. Kevin Stitt’s unilateral action of negotiating illegal tribal gaming compacts with four tribal communities in Oklahoma,” Drummond wrote. “As determined by our Supreme Court, Gov. Stitt’s actions are in violation of Oklahoma law, and his attempts to seek federal bureaucratic authorization of those compacts resulted in a federal lawsuit (…) which Gov. Stitt is currently defending in his official capacity (using the services of several Washington, D.C. and New York City law firms).”
Drummond then bolded the reason for his memo, which comes as legislative leaders are attempting to override a pair of Stitt vetoes and temporarily extend state-tribal compacts on tobacco taxation and motor vehicle registration.
“The purpose of this letter is to humbly invite the Legislature’s entreaty that this office assume the defense of Oklahoma’s interests in the Cherokee Nation lawsuit and bring it to an expeditious end,” he wrote.
The governor’s office, meanwhile, says Drummond is not the governor’s attorney and has no legal standing in the case.
“The lawsuit filed by the larger tribes lists Gov. Stitt as a defendant alongside the tribes with whom he negotiated and the Department of Interior,” Abegail Cave, the governor’s communications director, said in a statement. “The attorney general has no legal right to represent the governor in this matter. Gentner Drummond is not Kevin Stitt’s lawyer.”
The governor’s office also appeared to question Drummond’s allegiance.
“Attorney General Drummond’s job is to protect the people of Oklahoma, but if history is any indication, he will likely put the state’s interests aside and allow the people of Oklahoma and the smaller tribes be steamrolled by the larger ones who have a stranglehold on the gaming market,” Cave said.
The Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations filed a lawsuit Aug. 30, 2020, in U.S. District Court for the District of Columbia seeking a court-ordered declaration that Stitt did not validly enter into the Comanche Nation and the Otoe-Missouria Tribe gaming compacts under the Indian Gaming Regulatory Act, and that the secretary of the U.S. Department of the Interior violated IGRA and the Administrative Procedure Act when he took no action and effectively approved the deals.
The plaintiffs amended their complaint a month later to include the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. In the most recent development in the case, a D.C. federal judge in November 2022 removed the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town from the lawsuit, saying the Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations can’t claim that an illegal-competition injury is imminent because those two tribes still have hurdles to clear before offering conventional casino games such as blackjack and slot machines. The Cherokee Nation has long sought to prevent the UKB from operating casinos.
McCall: AG has ‘unilateral authority to take over the litigation’
The Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations filed their suit in August 2020 seeking to replicate two rulings issued in 2020 and 2021 by the Oklahoma Supreme Court, which dismissed the four gaming compacts after finding they were illegally negotiated without approval from the state Legislature.
Drummond wrote Treat and McCall on June 16 seeking permission to take over the federal lawsuit “and bring it to an expeditious end.”
Daniel Seitz, communications director of the 81-member Oklahoma House Republican Caucus and for McCall, said members of the caucus discussed Drummond’s request recently.
“They think that the AG has the power to do this, and if he thinks it’s the right thing to do, then he should move forward with it,” Seitz said. “And that’s where the caucus is sitting.”
McCall wrote a letter on June 26 to Drummond agreeing that he has “the unilateral authority to take over the litigation.”
“If you, as the attorney general, deem it in the best interest of the state of Oklahoma for you to intercede in this litigation then I and the citizens would expect you to do so, and the House will not interfere with that decision,” McCall wrote.
But McCall’s letter did not include the “formal” request specified in Title 74, Section 18b(A)(3), which Drummond referenced in his letter.
Members of the Senate Republican Caucus are reviewing Drummond’s letter and looking at their options, said Alex Gerszewski, Treat’s communications director. Republicans outnumber Democrats 39 to 8, after Friday’s resignation of Sen. John Michael Montgomery (R-Lawton) who is leaving to be president and CEO of the Lawton-Fort Still Chamber of Commerce.
Cave said the governor negotiated his new compacts in good faith with the four tribes to ensure they had access to the opportunities that the gaming industry has provided to the plaintiffs.
“These compacts are a good deal for the smaller tribes and for Oklahoma, raising the cap from 6 percent up to 18 percent of revenue from certain gaming activity going to the state,” she said in a statement. “His authority to negotiate these contracts is backed up by state law. Unfortunately, the attorney general seems to be more interested protecting the monopoly the larger tribes have on the gaming industry and enabling those who want to take advantage of the people of Oklahoma.”
Beyond the Cherokee Nation’s dispute with the UKB over the smaller tribe’s pursuit of casino gaming, the Comanche Nation has attempted to argue in front of the U.S. Supreme Court that the federal government has improperly approved Chickasaw Nation casinos that encroach on the territories — and economic opportunities — of the Comanche and other smaller tribes.
Phil Bacharach, Drummond’s communications director, said the attorney general wrote to legislative leaders after seeing how the governor had exceeded his authority in striking new compacts with the four tribes that were not disapproved by the Department of the Interior.
Bacharach said Stitt’s position has cost the state needlessly by securing the services of three private law firms. He said the attorney general’s office has requested a summary of invoices from the governor’s office but has yet to receive it.
“Attorney General Drummond believes the best course of action in this matter is to work with the Legislature to leverage its authority in combination with the authority of the attorney general’s office,” Bacharach said in a statement. “If and when the Legislature agrees to act, the attorney general will take over the case and uphold Oklahoma law while saving taxpayers untold amounts of legal fees.”
In early 2020, Stitt entered into revised gaming compacts with the Otoe-Missouri Tribe, the Comanche Nation, the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town without legislative approval. In his letter, Drummond reminded legislative leaders that the Legislature also did not authorize the governor to take that action and that Stitt has hired out-of-state attorneys in the matter.
“In entering these agreements, Gov. Stitt acted outside his powers under the Oklahoma Constitution and in contravention of Oklahoma law,” Drummond wrote. “Nevertheless, despite knowing that he lacked authority to enter the gaming compacts, Gov. Stitt sought to have the Department of the Interior approve them.
“There is no legal doubt that Gov. Stitt’s actions violated the separation of powers.”
Drummond cited an opinion issued by then-Attorney General Mike Hunter that the governor lacked legal authority to enter into the gaming compacts with the Otoe-Missouria Tribe and the Comanche Nation.
The Oklahoma Supreme Court in 2020 issued a ruling confirming that opinion, and in 2021 the Oklahoma Supreme Court similarly ruled that Stitt’s compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town were invalid, despite advancing past federal review.
“Nevertheless, even with clear guidance issued by this office and Oklahoma’s highest court, Gov. Stitt has continued to attempt to undermine Oklahoma law by suggesting the supremacy of a federal bureaucracy, effectively attempting to eviscerate our Tenth Amendment rights,” Drummond wrote. “Therefore, I believe it is in the best interest of the state of Oklahoma for this office to take over the defense of the Cherokee Nation lawsuit.”
Background on compact court cases
The Oklahoma Supreme Court ruled on Jan. 26, 2021, that the governor went outside the bounds of his authority and invalidated compacts made with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town.
“The executive branch’s action in entering into the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town — containing different terms than the Model Gaming Compact and without approval from the Joint Committee (on State-Tribal Relations) — disrupts the proper balance between the executive and legislative branches,” the court said.
The Oklahoma Supreme Court ruled July 21, 2020, that Stitt didn’t have the power to renegotiate the Comanche and Otoe-Missouria gambling compacts to allow sports betting and certain games, including house-banked card games in which the gambling establishment has a stake. In voiding the compacts, justices said the governor “exceeded his authority” when he entered into the compacts with the two tribes because he failed to seek permission from the Legislature to allow for the added sports wagering and card games.
Also, in July 2020 an Oklahoma federal judge ruled that Oklahoma’s state-tribal gaming compacts have renewed automatically for the next 15 years and are not subject to renegotiation on the governor’s part. Oklahoma’s gaming tribes sued the state in December 2019 in opposition to the governor’s contention that the compacts with more than 30 tribes expired at the end of 2019, as he sought to redraft the deals to gain the state a higher percentage of revenue-sharing from tribe-operated casinos. But U.S. District Judge Timothy D. DeGiusti said the tribes, which include the Cherokee, Chickasaw and Choctaw nations, automatically had their own agreements renewed.
(Clarification: This article was updated at 1 p.m. Friday, July 7, to clarify descriptions of McCall’s response to Drummond.)