Government , Legal

Mediation talks to begin in tribal gaming compact dispute with state

OKLAHOMA CITY — With 14 tribes now suing Gov. Kevin Stitt, the fate of Oklahoma’s gaming compact may be decided by a mediator rather than a judge.

On Feb. 14, Judge Timothy DeGuisti with the Western District of Oklahoma appointed Layn Phillips as a mediator in a lawsuit over the status of Oklahoma’s model state-tribal gaming compact with the understanding that most, if not all, of the talks to be completed by March 31.

A former U.S. Attorney, Phillips is a former federal judge who served on both the 10th Circuit Court of Appeals and the Western District of Oklahoma. The University of Tulsa alumnus now leads an arbitration and mediation firm based out of Corona del Mar, California.

The appointment came on the same day as the deadline for tribes to officially join litigation against the governor.

Within the span of a week, the Quapaw Nation, Delaware Nation, the Wichita and Affiliated Tribes, the Seminole Nation of Oklahoma, the Comanche Nation, the Otoe-Missouria Tribe of Indians, Ponca Tribe, the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town all joined the lawsuit initially filed by the Cherokee, Chickasaw and Choctaw nations on New Year’s Eve over whether the state’s gaming compact has expired.  

Of the 14 tribes in the lawsuit, 11 have at least one casino with Class III gaming. The Ponca Tribe, headquartered in White Eagle, has a casino under construction along I-35 near Perry.

Neither the Kialegee Tribal Town nor the United Keetoowah Band of Cherokee Indians, the two tribes who signed a compact extension offered by Gov. Stitt in late 2019, currently operate a casino. The former attempted twice to open a casino in Broken Arrow despite objections from the National Indian Gaming Commission and the Muscogee (Creek) Nation.

The latter previously had a casino in Tahlequah that has been closed since August 2013 but has expressed interest in opening a new facility in Enid under the Indian Gaming Regulatory Act’s two-part determination provisions for land in trust acquisitions outside of traditional reservation boundaries.

President Terri Parton with the Wichita and Affiliated Tribes said her tribe had to get involved not only to defend its compact rights, but those of other tribes that could not act quickly enough to join the lawsuit. The Anadarko-based tribe has about 3,300 citizens and operates two casinos in Caddo County.

In their filing, attorneys for the Wichitas maintain that the state already triggered the automatic renewal clauses a dozen times, including the continued existence of the Oklahoma Lottery Commission’s mobile application and Gov. Stitt’s decision to sign compact extensions with the Kialegee Tribal Town and United Keetoowah Band. Under the terms of the model state-tribal gaming compact, if electronic gaming is still allowed in any form within Oklahoma, the compact automatically renews.

“The extension agreement makes clear that all other provisions of the compact shall remain in force and full effect, which includes a signatory tribe’s right to conduct electronic gaming,” attorney William Norman wrote. “In other words, Governor Stitt, personally and purporting to act on behalf of the state, authorized the operation of electronic gaming in Oklahoma in any form on and after January 1, 2020, thus nullifying any assertion against compact renewal for all compacting tribes.”

Under the terms of Judge DeGuisti’s order, neither Gov. Stitt nor any of the involved tribes are allowed to publicly discuss the mediation process without going through the court first. That gag order specifically prompted at least one tribe to get involved, despite not having any casinos at the moment.

“The (United Keetoowah) Band has a significant interest in this case,” Attorney General Klint Cowan wrote. “The outcome of this litigation … could directly impact the sovereign rights of the band under federal law. Intervention is also important here because the case is about to enter mediation. In mediation proceedings, confidentiality will prevent the Band from ascertaining how its rights are being defended. The non-public nature of the upcoming mediation therefore substantially heightens the need for the Band’s participation.”