Question Submitted by Treat, 050520 OKAG, 2020 OK AG 8

Docket Nº:2020 OK AG 8
Party Name:Question Submitted by: The Honorable Greg Treat, President Pro Tempore, Oklahoma State Senate; The Honorable Charles McCall, Speaker, Oklahoma House of Representatives
Case Date:May 05, 2020
Court:Oklahoma Attorney General Opinions

2020 OK AG 8

Question Submitted by: The Honorable Greg Treat, President Pro Tempore, Oklahoma State Senate; The Honorable Charles McCall, Speaker, Oklahoma House of Representatives

No. 2020 OK AG 8

Oklahoma Attorney General Opinions

May 5, 2020



¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

What authority does the Governor have to enter into new compacts with tribes which contain gaming activities that are expressly prohibited by Oklahoma Statute?



A. The State-Tribal Gaming Act.

¶1 In 2004, the Legislature referred State Question 712 to the people, who approved the measure in a referendum that enacted the State-Tribal Gaming Act ("the Act"). See 2004 Okla. Sess. Laws ch. 316 (codified at 3A O.S.2011 & Supp.2019, §§ 261 et seq.). Although the terms of the tribal gaming compacts were initially formulated in discussions between the Governor and Tribal Nations in Oklahoma, it was through this exercise of legislative power that the State offered a model tribal gaming compact to all federally-recognized Indian tribes in the state. 3A O.S.Supp.2019, § 280. If that offer was accepted by a Tribe, "[n]o further action by the Governor or the state is required before the compact can take effect," though approval by the Secretary of the Interior is still necessary under federal law. Id. The Act offers the model compact on behalf of the State "through the concurrence of the Governor after considering the executive prerogatives of that office and the power to negotiate the terms of a compact between the state and a tribe, and by means of the execution of the State-Tribal Gaming Act, and with the concurrence of the State Legislature through the enactment of the State-Tribal Gaming Act." Id. The Act further provides that "[n]o tribe shall be required to agree to terms different than the terms set forth in the Model Tribal Gaming Compact." Id.

¶2 Oklahoma law for over a century has generally prohibited gambling, but under the Act "the conducting of and the participation in any game authorized by the model compact... are lawful when played pursuant to a compact," notwithstanding the criminal laws prohibiting gambling found in Title 21, Sections 941 through 988. Id.; see also id. § 262(A) (providing same exception to criminal prohibitions for "gaming in accordance with the provisions of this act or the model compact set forth in Section 281"). But the Act "is game-specific and shall not be construed to allow the operation of any other form of gaming unless specifically allowed by this act," and the "act shall not permit the operation of slot machines, house-banked card games, house-banked table games involving dice or roulette wheels, or games where winners are determined by the outcome of a sports contest." Id. § 262(H).

¶3 The model compact sets out numerous parameters for tribal gaming, including standards and regulations for conducting games, independent game testing, mechanisms to ensure oversight and compliance with the compact's terms such as monitoring, recordkeeping and auditing, permitted locations for gaming facilities, licensing for gaming facility employees and vendors, and dispute resolution. Id. § 281. The model compact also acknowledges that it "provides tribes with substantial exclusivity" in conducting gaming in Oklahoma that is otherwise subject to criminal prohibition and, in consideration for that exclusivity, provides for the payment of fees by the Tribe to the State from a share of gaming revenues. Id. § 281, Part 11. The model compact states the following as the "authority to execute" the compact on behalf of the State: "as an enactment of the people of Oklahoma, [the compact] is deemed approved by the State of Oklahoma." Id. § 281, Part 16.

¶4 Like the rest of the Act, the model compact allows compacting tribes to conduct "covered game[s]" only in conformity with the compact. Id. § 281, Part 4(A). This includes specifically enumerated games as well as games "approved by state legislation for use by any person or entity" or "approved by amendment of the State-Tribal Gaming Act." Id. § 281, Part 3(5). 1 In 2018 the Legislature amended the Act to include additional covered games (specifically, non-house-banked table games) that a Tribe could conduct if a Tribe elects to accept the offer, agrees to a written supplement to an existing compact, and receives approval of the supplement by the Secretary of the Interior. Id. § 280.1. Again, gaming played pursuant to such a compact supplement is not subject to Oklahoma's general criminal prohibitions on gambling. Id. § 280.1(G). 2

B. Recent developments related to Oklahoma tribal gaming compacts.

¶5 Many Tribes accepted the State's offer of the model compact, but recently a dispute between the Governor and many of those Tribes has arisen about whether those compacts are still in force after January 1, 2020 pursuant to Part 15(B) of the model compact. See 2020 OK AG 3, ¶¶ 2-6. Because it is currently the subject of active litigation in federal court, this Opinion takes no position on the issues raised in that dispute. See id. ¶ 6 (citing Cherokee Nation et al. v. Stitt, No. CIV-19-1198 (W.D. Okla.)).

¶6 In the midst of this litigation, the Governor of Oklahoma and two of the litigating tribes (the Comanche Nation and the Otoe-Missouria Tribe) reached an agreement on new gaming compacts. 3 These compacts do not conform to the model compact set forth in the Act. For example, the new compacts include covered games not included in the model compacts or authorized by the Act, such as house-banked card games, house-banked table games, and event wagering. Event wagering is defined in Part 2 of these new compacts as "the placing of a wager on the outcome of a Sport event, including E-Sports, or any other events, to the extent such wagers are authorized by law," excepting intercollegiate sports involving either schools or events within the state. The new compacts also deviate from the model compact in that they have different exclusivity fee rates, different processes for adding new games, a different dispute resolution clause, and different audit and compliance provisions, among many other differences. Unlike the model compacts, the new compacts purport to vest all state authority related to the compacts with the Governor alone.

¶7 The question you ask is whether the Governor has authority to unilaterally bind the State to these new gaming compacts that purport to authorize gaming activity prohibited by state law.



A. The Governor's authority to negotiate compacts with Indian tribes

¶8 Your question implicates core notions of our constitutional structure: both the separation of powers between...

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