McALESTER, Oklahoma – Oklahoma’s Attorney General said Thursday that Gov. Kevin Stitt failed the state when he vetoed tribal compacts, but the state’s Legislature acted within the scope of statute and the constitution by overriding that veto.
The Oklahoma Supreme Court heard oral arguments Thursday in a lawsuit filed by Stitt against Senate Pro Tem Greg Treat, R-Oklahoma City, and Speaker Charles McCall, R-Atoka.
Stitt is asking the court to rule if the Legislature had the authority to override his vetoes and extend tribal compacts, and maintains the Oklahoma Constitution and statutes give him the sole authority to negotiate, enter, or extend compacts. Those compacts detail revenue-sharing between the state and tribes for casino operations, tobacco sales, fishing and hunting licenses, tribal vehicle tags, and more.
AG Gentner Drummond told justices state statutes do not give Stitt “exclusive authority to negotiate under the constitution.”
“The authority of the Legislature shall extend to all rightful subjects of legislation and as a result, there is no restriction on the legislature’s authorization of extending the compacts when the governor failed,” Drummond told justices.
Stitt’s general counsel, Trevor Pemberton, argued if the court does not accept the case or rules in the Legislature’s favor, the ruling “would be a significant blurring of powers.”
“That anybody might believe that this would be a more collaborative approach, something that’s actually good. I think, frankly, that would be naive. It would instead be an entirely different form of government – one that hasn’t been sanctioned by our constitution,” Pemberton said.
Pemberton said the lawsuit is asking the court to set aside House Bill 1005X and Senate Bill 26 “as being clearly, palpably, and plainly inconsistent with the Constitution.”
Both the Oklahoma House and Senate voted to override HB 1005X and SB 26X in July. HB 1005X dealt with motor vehicle compacts between Oklahoma and tribal nations with SB 26X dealing with tobacco compacts.
Stitt vetoed both bills in May, claiming they were not in the state’s best interest and violated state law, and said the bills amount “to a circumvention of the executive’s authority to negotiate compacts.”
The governor argues language defining “Indian County” needs to be changed in the current compacts following the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which says Congress never “disestablished” the reservation status of the Muscogee (Creek) Nation.
The Oklahoma Court of Criminal Appeals has since applied the ruling to the Choctaw, Cherokee, Chickasaw, Seminole, Quapaw and the Ottawa and Peoria Nations in eastern Oklahoma.
The governor claims he has made attempts to negotiate new compacts with tribal nations, offering a two-year extension at the current split of 50%, with the only change being language. Stitt wants to alter the language to state the compacts would only apply to lands owned by a tribal nation or held in trust by the federal government, or in a restricted title by tribal members, and argues if it’s not changed, all of eastern Oklahoma would be reservation lands.
Stitt believes the language in the current compacts could allow tribes to purchase new stores and sell tobacco across eastern Oklahoma, and still be eligible to apply for the 50% split of tax revenue.
“I think the reality is, what he was seeking was a compacting fix to satisfy his disgust with McGirt,” Drummond said. “He was wanting the tribes to waive sovereignty in certain areas that they were unwilling to, because the U.S. Supreme Court has said otherwise.”
Drummond said Stitt’s playing hardball would have cost the state $58 million “and untold future if the Legislature does not act when a governor fails the state – and this governor failed the state.”
Pemberton said the figures being thrown out were “not objective fact.”
“But regardless, they have absolutely no relevance in the legal analysis before this court, which is simply, did the Legislature engage in an executive function?” Pemberton said. “And they did, and they used unlawful process in order to do so.”
The Oklahoma Supreme Court will now rule whether the court has original jurisdiction in the case, meaning the court will decide if it has the authority to hear and decide a case for the first time before any appellate review occurs.
If the court assumes original jurisdiction, a ruling in the case will be made sometime in 2024.