By Kellie Matherly
On Nov. 14, Oklahoma Governor Kevin Stitt held a press conference to reaffirm his belief that the state’s tribal gaming compact will expire at the end of December, a position that could lead to a legal clash with Oklahoma tribal nations. In 2004, the state approached tribal leaders with a proposal for expanding gaming over time in exchange for the exclusive right to operate casinos in Oklahoma. Upon approval from the Department of the Interior, the compact went into effect early in 2005.
During the press conference, Stitt repeatedly focused on the opening words of the first sentence of the compact which state, “This compact shall have a term which will expire on January 1, 2020.” Tribal leaders maintain, however, that the existing gaming compact language allows for automatic renewal if certain factors are triggered. Legal advisors for the tribes are confident that these auto-renewal factors are in place.
In response to the governor’s message, Stephen Greetham, Senior Attorney for the Chickasaw Nation, pointed out that the governor did not mention the auto-renewal. “The most immediate question the state has never been able to answer for us is how do they make sense of the clause in there that says, ‘Shall automatically renew’.” According to Greetham, the state was trying to save the horse racing industry in 2004 when the compact was originally written, which led to the language in the compact indicating that the agreement would automatically renew as long as electronic gaming is conducted at horse tracks.
In August, at least 30 tribal leaders signed a resolution pledging to maintain a unified stance on the gaming compact. Without acknowledgment of the automatic renewal provision, there will be no negotiation of new exclusivity rates. Communications between the governor’s office and tribal leaders broke down in October when Attorney General Mike Hunter failed to recognize the automatic renewal provision of the compact officially.
The current gaming compact does allow for the renegotiation of certain terms, including the percentage tribes pay to Oklahoma for the exclusive right to operate casinos. Stitt claims the tribes pay 4%-6%, an amount considerably lower than tribes in Connecticut, New York, and Florida who pay up to 25%. When asked what he considered to be a fair deal with the tribes, Stitt indicated he would start at 25%.
In a response to Governor Stitt’s press conference, Matt Morgan, Chairman of the Oklahoma Indian Gaming Association took issue with these figures. According to Morgan, the three states Governor Stitt chose as examples are the only three currently paying more than Oklahoma tribes. “95% of compacts fall at our rate or below,” Morgan said. “I do want to clarify, our maximum rate is 10%, not six…We’re well within the norms of paying in exclusivity with the rest of the country,” he added. Morgan also pointed out that there are far fewer tribes operating gaming in Stitt’s examples, and most do not have compacts with their state.
In addition, Morgan says the governor has failed to offer anything of value to the tribes in exchange for higher fees. Under the Indian Gaming Regulatory Act of 1988, there has to be a “concession of beneficial value.” According to Morgan, the IGRA prevents tribes from paying more unless the state offers more, which has not happened yet. “We live up to our side of the bargain; we continually have met our responsibility; we’ve exceeded our projections and we feel like it’s a good deal for tribes and the state,” Morgan continued.
Governor Stitt claimed in his press conference that the tribes’ refusal to work with him on this issue will cause “extreme uncertainty if we don’t have a new compact before Jan. 1, 2020,” but Morgan calls this line of reasoning a false narrative. Greetham also responded to the governor’s mention of uncertainty. “The only uncertainty is that which [the governor] is trying to put over a negotiation table as a leverage play. That’s unfortunate. Tribal leaders deserve better than that. Oklahoma deserves better than that,” said Greetham.
According to Morgan, Greetham, and tribal leadership, the tribes will continue to operate as usual on January 1, 2020. “[The governor] would have to go to court, and he would have to get some type of order to shut the casinos down. Barring that, we’re just going to continue to operate, and we’re going to continue remitting our revenue sharing payments to the state, and we’re going to continue to grow as we’ve been doing for the past fifteen years,” Greetham added.
“I think there’s plenty of opportunity to move forward, but Governor Stitt needs to be able to come to the table after reading the entire document and talk to tribes on a government to government basis,” said Morgan.