Cherokee Nation, Chickasaw Nation, and Choctaw Nation File Federal Lawsuit Against Oklahoma Governor J. Kevin Stitt

To
NIGA Member Tribes
From

Ernest L. Stevens, Jr., Chairman
Jason C. Giles, Executive Director
Danielle Her Many Horses, Deputy Director/ General Counsel

re
Cherokee Nation, Chickasaw Nation, and Choctaw Nation File Federal Lawsuit Against Oklahoma Governor J. Kevin Stitt
Date
January 8th, 2020

Following a lengthy and public dispute over the terms of Tribal-State Gaming compacts, three Oklahoma Tribes – the Cherokee, Chickasaw, and Choctaw Nations, collectively filed a federal suit in the United States District Court for the Western District of Oklahoma on Tuesday, December 31, 2019. Through the complaint, which lists only one defendant, J. Kevin Stitt, in his official capacity as Governor of Oklahoma, the three Tribal Nations are seeking a declaratory judgment of the legal effect of the “shall automatically renew” clause of Part 15.B. of the model Tribal-State Gaming compacts (“Compacts”) signed by all three Nations, and an order affirming the Compacts’ automatic renewal.
The contested provision, Part 15.B. of the Compacts, in its entirety, reads as follows:
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; provided that, within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact.

Importantly, the Plaintiffs highlight that this federal suit is only centered around the “shall automatically renew” clause of Part 15.B. of the Compacts. In its complaint, the Tribes argue that the plain language of the Compacts necessitates automatic renewal because the State has authorized electronic gaming at state-regulated horse racetracks on January 1, 2020. Consequently, the Nations maintain that because the only condition precedent to automatic renewal has been met, there can be no question that the terms of the Compacts automatically renew for a period of fifteen years. This position on the interpretation of the Compacts was also supported by former Solicitor General of the United States, Seth Waxman, in a formal legal opinion letter.
Governor Stitt has been actively and publicly opposed to the Plaintiffs’ “automatic renewal” reading of the Compacts. Governor Stitt claims that the Compacts should be renegotiated and Tribes should have to bear a greater burden in terms of exclusivity rates that are paid to the State through gaming revenue. As set forth in the Complaint, Governor Stitt has stated publicly that, “(i) the ‘shall automatically renew’ clause ‘doesn’t even pass the smell test’; (ii) the Tribes’ conduct of Class III gaming will be illegal as of January 1, 2020; and (iii) ‘extreme uncertainty’ hangs over the Tribes’ ongoing gaming activities.”
In response, the three Plaintiff-Nations state that these declarations by the Governor “are contrary to Federal law and directly interfere with the Tribes’ Federal rights to conduct gaming under their renewing Compacts.” Further, the Governor’s “attempt to compel the Tribes to abandon their Federal law rights to the Compact[s’] automatic renewal by manufacturing ‘uncertainty’ about the lawfulness of continued Tribal gaming operations” constitutes an “intrusion on Tribal sovereignty that injures the Tribes’ rights under Federal law.” Finally, the Cherokee, Chickasaw, and Choctaw Nations argue that the “necessary predicate for the renegotiation” of the Compacts’ “revenue-sharing provisions, rates, or the ‘substantial exclusivity’ in gaming rights” is the continuing effect of the Compact. Without the renewal of the Compacts, any such renegotiations of those matters “would be meaningless.”
During the Mid-Year meeting of the National Indian Gaming Association, the Board of Directors passed resolution 01-MOH-BOD-9-16-19, “To Support the Sovereign Nations and Tribes in Their Compacting with the State of Oklahoma” We will continue to monitor this lawsuit and update our member Tribes as the lawsuit progresses. Please contact Danielle Her Many Horses with any questions or concerns regarding this alert at dhermanyhorses@indiangaming.org.

  • Complaint, ¶ 4 (“The single goal of this lawsuit is to hold the State to its word by declaring plainly the legal effect of the compact’s ‘shall automatically renew’ clause.).
    Id. ¶¶ 3, 54 (“ On October 17, 2019, the [State} Commission issued licenses for the conduct of electronic gaming at the state-regulated Remington Park and Will Rogers Downs for the calendar year beginning January 1, 2020.).
    Id. ¶ 58.
    Id. ¶ 7.
    Id. ¶ 5.
    Id. ¶¶ 6, 62.
    Id. ¶ 2.
    Id.*