Spoiler alert: both sides of the Oklahoma Supreme Court case that could decide the legality of sports betting think they’re right.
Wednesday marked the first oral presentations in the Supreme Court over whether Gov. Kevin Stitt had the right to authorize issues like sports betting in tribal compacts that are illegal under state law.
Senate President Pro Tempore Greg Treat and House Speaker Charles McCall brought the suit. The first hearing concerned an application to assume original jurisdiction and bring the case before the court.
There’s no timeline on the next step, which is Referee Ann Hadrava writing her non-binding recommendation to the court.
Oklahoma sports betting background
Let’s recap how we got here since it’s not the typical route most states take toward legal sports betting.
Stitt negotiated and signed two compacts with the Otoe-Missouria Tribe and the Comanche Nation. Those compacts included authorizations for games that are not currently allowed under state law, including house-banked games and legal Oklahoma sports betting.
That quickly led to disagreements by Attorney General Mike Hunter, Treat and McCall. Hunter formally penned an opinion at the request of Treat and McCall that said Stitt lacked the authority to approve the compacts himself.
But the compacts were tacitly approved without action by the Department of the Interior in early June. They then went into effect Monday after they were published in the Federal Register.
So technically, sports betting is legal in Oklahoma. – for now, at least.
Lawyer: issue is separation of powers, not OK sports betting
Cara Rodriguez, representing Treat and McCall, made it clear the case isn’t about what’s actually in the compact. This is a suit over the separation of powers, she said.
“This is a family dispute, an intra-sovereign fight over the contours of power as between the executive and legislative branches,” she said. “That is something, we contend, absolutely needs to be decided by the highest court of our state.”
Stitt cannot claim any independent constitutional authority to conduct business with the tribes, Rodriguez argued. And even if he did, that doesn’t give him the power of a legislative branch to bind the state to new laws, she said.
How’s it done then?
The only way to authorize compacts in Oklahoma is through the Model Tribal Gaming Act or through the Joint Committee on State-Tribal Relations, she added.
Oklahoma Solicitor General Mithun Mansinghani, representing the attorney general’s office, agreed with Rodriguez.
“What was the point of the State-Tribal Gaming Act if the governor could have just well done it unilaterally in 2004?” he said. “I’m not sure why, in the respondent’s view, we went through the entire process to carefully decide whether we as a state should enter into gaming compacts and what the precise limits of those compacts would be in a referendum if the governor could have just changed the entire landscape of the state with the stroke of a pen.”
‘Dozens of compacts’ not authorized those ways
Stitt’s attorney Phillip Whaley noted the law calling for authorization of compacts through the Joint Committee doesn’t specify gaming compacts. That means there are dozens of compacts in the state that have been authorized through other measures, he said.
He also argues Treat knows there’s no need for legislative approval of gaming compacts. Treat introduced SB 1326 in 2016 that would have required two-thirds of the Senate to approve a gaming compact.
“The legislature isn’t involved in the process,” Treat said at the time, according to Whaley. “We have abdicated that responsibility by not requiring legislator ratification.”