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Attorney General Mike Hunter made his opinion on Oklahoma sports betting official: the governor cannot contradict state gaming law in tribal compacts.
The request for an opinion from the AG’s office came from the heads of both legislative chambers, Speaker of the House Charles McCall and Senate President Pro Tempore Greg Treat.
Hunter originally condemned the renegotiated compacts for the Comanche Nation and Otoe-Missouria Tribe the same day Gov. Kevin Stitt announced them two weeks ago.
McCall and Treat then responded to Stitt a day later, saying they agreed with Hunter’s reaction:
“The inclusion of sports betting is one of a number of flaws found in our preliminary review of the documents signed yesterday,” the letter reads. “… We are disappointed Oklahoma’s executive branch made a promise it could not legally keep under current law. Sovereign nations deserve promises Oklahoma can keep.”
Hunter’s opinion states “the governor lacks authority to enter into and bind the state to compacts with Indian tribes that authorize gaming activity prohibited by state law.”
Gambling isn’t legal in Oklahoma except through Indian gaming compacts authorized through the State-Tribal Gaming Act.
But that act specifically outlaws sports betting (called event wagering in the compacts) and the table games authorized in the compacts. Hunter pointed out in his opinion.
From the Act:
…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.
The compacts, therefore, do not conform to the act. That means Stitt cannot enter into them on behalf of the state, Hunter said.
Because Stitt lacks the authority to enter them, the compacts don’t meet the requirements of the Indian Gaming Regulatory Act, he added.
Hunter also noted that the act exempts participation in gaming, as well as offering it. So while it’s illegal to gamble, it’s legal to take part if the gambling is covered by the act.
That means if a tribe decided to offer Oklahoma sports betting, the state could prosecute anyone placing a bet.
Sovereign immunity would keep the state from prosecuting a tribe for offering anything illegal.
The compacts include language that suggests expected confrontation over authorizing Oklahoma sports betting. They feature a section that basically says the state’s opinion on sports betting doesn’t matter:
“For the avoidance of doubt, even if it should be found that the State’s conduct of Event Wagering is in violation of the State’s obligations, if any, under compacts with other Oklahoma tribes, such a finding shall have no effect on the Tribe’s right to engage in Event Wagering.”
The state agreed to let the tribes offer event wagering on basically any sport, including esports betting. The compacts ban betting on Oklahoma colleges and college sports played within the state.
Sports betting would be taxed at “1.10% of the Patron’s Event Wagering transaction total, to be assessed in addition to the transaction total and calculated on a per wager basis.” Betting would only be allowed at two of their tribal casinos. An additional five non-tribal locations could come at a later date, the compacts said.
Along with his official opinion, Hunter also wrote to the Department of the Interior to deny the compacts.
The department should reject the compacts “out of deference to determinations of state law made by the legal officials in the state,” he wrote.
Hunter fears the compacts submitted to the federal government will damage the relationship between the state and the two tribes. Approving those compacts will lead to greater confusion for all tribes and uncertainty about conducting state-tribal relations, he added.
Oklahoma Indian Gaming Association Executive Director Sheila Morago expressed her concern over the compacts during the SBC Digital Summit.
“Whether or not those are going to be ultimately agreed upon by the feds is a question that’s out there,” Morago said. “… There is a lot of stuff packed into those agreements that would give anybody on any side a little bit of a pause.”
Morago never directly addressed any of the details, including the clause that authorizes event wagering. But something about the situation is clearly out of the ordinary, according to her comments.
“I don’t know if I can say it out loud,” Morago said when asked for her opinion on the compacts. “It’s been interesting. If nothing else, it has kept us a little bit on our toes the last few weeks.”
The renegotiated compacts may have come as a bit of a surprise in Oklahoma given the Comanche Nation and the Otoe-Missouria Tribe were involved in a lawsuit against Stitt.
Last year, Stitt said the state’s gaming tribes had to renegotiate their compacts as they would expire Jan. 1. Most of the tribes disagreed and wound up suing, including the Comanche and Otoe-Missouria.
But the two dropped out of the suit and considered the new compacts as settlement. Maybe it’s not that surprising that those two continued negotiations, though. Neither tribe signed off on a letter sent by OIGA last year disputing Stitt’s expiration claims.
The two gaming tribes also agreed to new exclusivity fees and received permission to build new casinos.