Patrick B. McGuigan, The City Sentinel
In the May print edition of The City Sentinel newspaper, I crafted a rather cautious defense of the gaming compact Oklahoma Governor Kevin Stitt forged with the Comanche Nation and the Otoe-Missouria Tribe. It was also posted online.
Forgive me: I was wrong to be cautious, although my intentions were right.
A combination of principle (after reading and re-reading the governor’s defense of his actions) and pragmatism leads me now to say: It is past time – make that long past time – to get gaming in Oklahoma out from under the control of one tribal nation.
Last month, the state’s chief executive transformed the conversation about Oklahoma’s tribal nations and relations with the state government.
For a long time, it has been like this: Whatever the powerful Chickasaw Nation says, goes – especially if they are in agreement with the other big players (read: Cherokee, Choctaw and, to some extent, Creek).
The Chickasaw leadership is a master at getting their way in every close call (and some not so close) when the Bureau of Indian Affairs is involved. You see, the Chickasaw think it is just fine for the federal government to have the leading role in decision-making – so long as the Chickasaw win every discussion, every argument and every decision.
That was certainly the case when it came to a disagreement over land along the Red River. The Comanche already had plans for a nice casino location (it would have been the best of their comparatively modest holdings).
The Chickasaw got the BIA to agree to green light their project in the same location. No notice, no consultation and no decency when the secretive BIA approval was in place for days before anyone knew about it, and before it was publicly promulgated by the Feds.
Whether or not that situation had anything to do with his motivations, credit Stitt for honoring the rights and options of smaller tribal nations to forge their own future, and, in the process, get a better deal for Oklahoma taxpayers.
An 11-page memorandum by Stitt’s general counsel laid out the governor’s case for guiding and managing compact negotiations. Briefly stated, Oklahoma governors have authority (make that sole authority) to negotiate and carry out gaming compacts. The state constitution makes this clear, and a 2004 A.G. opinion (crafted by one of Hunter’s predecessors) makes it even clearer.
To believe otherwise would (quoting that earlier opinion) “result in a vehicle ‘by which the executive department is being subjected to the coercive influence of the legislative department’.”
Either the Legislature is in charge, or the governor is in charge in this area. Plain text indicates it is the governor. To believe they can both be in charge would violate separation of powers.
But don’t get too excited. The not-so-little secret is that, in the end, the “Ultimate Sovereign” in negotiations between states and tribes is … the federal government. But even there, parties are supposed to follow a process.
Let me do more than whisper it: Many years ago, the Chickasaw got exempted from processes they want meticulously to apply to everyone else.
The argument over sports betting is important to the Comanche and to the Otoe-Missouria, but it is essential to remember that it was the powers-that-were (including the Chickasaw and other big tribal players) who opened that possibility when they strong-armed approval of ball and dice a couple of years back.
Oklahoma Attorney General Mike Hunter (is he running for a higher office in 2022?) did not not like the governor’s accord with the Comanche and Otoe-Missouria even one little bit.
He made that clear with an edict last week, about four months after his December 17 decision to stop representing the state of Oklahoma in compact negotiations with the tribes.
The fact that legislative leaders agree with Hunter is unfortunate, but that does not lessen the force of the governor’s arguments.
When all this is over, there will still be tribal-run gaming in Oklahoma.
The question is will benefits remain mostly in the hands of a few, or will there be a more diverse mix?
To sum up: After a second reading (and then a third, and then a fourth), it turns out that the governor and his general counsel have a point.
Make that two or three points.
Actually, there’s more than that.
The best way to put it is in plain English, without excessive resort to the language of lawyers.
In the matter at hand, Governor Stitt is right.
His critics are wrong. His allies need to say so.
So, I just said it.