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Attorney certain tribal gaming compact will be renewed

 The Journal Record | August 15, 2019

OKLAHOMA CITY – An attorney who was involved in negotiating the compact that has provided a legal framework for tribal governmental gaming operations in Oklahoma for 15 years said Thursday he has no doubt that the compact will renew in January.

“We were pretty alarmed that anyone would seriously take an alternative view,” attorney William Norman said in an email to The Journal Record.

Norman, a partner in the law firm of Hobbs, Straus, Dean & Walker, was a lead negotiator along with former Oklahoma Treasurer Scott Meacham and others in working out details of the 2004 compact that preceded investments in gaming operations by 34 tribal nations in the state.

In early July, Gov. Kevin Stitt indicated in a letter printed in the Tulsa World newspaper that he felt the time was right to negotiate a new compact.

“By any measure,” the governor wrote, “Oklahoma’s tribal gaming industry and its economic impact on our state have been a huge success. … The agreements between the state and the tribes giving them exclusivity to the gaming industry are, however, terminating as of Jan. 1, 2020, and it is imperative that we come to terms on new compacts prior to the end of the year.”

That assertion that the compact would terminate was met with resistance by a number of tribal leaders.

Earlier this week, Stitt followed up with another letter to tribal leaders indicating that the issue of whether or not the 2004 compact is subject to terminate should be “tabled” and efforts should be placed instead on coming up with a new “shared vision” of gaming in Oklahoma. The governor wrote of his firm commitment to maintaining the “economic engine” that gaming has become for tribes and for the state as a whole, but also to ensuring that the state “appropriately benefits” from the legal framework that has provided tribes with exclusive gaming rights in the state. He said he had designated Oklahoma Attorney General Mike Hunter to lead discussions on behalf of the state. Designees from each chamber of the Legislature also would be included and he asked that tribes similarly designate representatives.

“Moreover, I believe it would be helpful to progress in these discussions if the State and the Tribes can agree to retain a mediator to facilitate the talks,” he wrote.

On Thursday, Cherokee Nation Principal Chief Chuck Hoskin Jr., Chickasaw Nation Gov. Bill Anoatubby, Choctaw Nation Chief Gary Batton, Muscogee (Creek) Nation Principal Chief James R. Floyd and Seminole Nation Chief Greg P. Chilcoat issued a statement:

“We are carefully reviewing Governor Stitt’s letter. In the meantime, we appreciate Governor Stitt’s recognition of the importance of our intergovernmental relationship and the Tribes’ contributions to Oklahoma. We welcome the inclusion of the Oklahoma Attorney General and legislative leadership into the conversation. While his latest communication is warmer in tone, we still have concerns and will formally respond in due course. As always, we believe we are stronger working together than we are apart.”

In his letter, Stitt suggested a Sept. 3 date for the start of talks that could address terms of fees remitted to the state by tribes in exchange for having exclusivity in investing in gaming operations.

“If by ‘putting aside the issue of renewal’ the governor is acknowledging that the compact does renew, we welcome it,” Norman wrote, “and, I think the Tribes would love to have additional government-to-government dialogue with Governor Stitt to further educate him on the important role Tribes and tribal gaming play in terms of jobs, health care, infrastructure, and education for all Oklahomans. Oklahoma and the Tribes already have a shared vision of gaming in Oklahoma – it is the compact approved by the State Legislature and the voters of Oklahoma by nearly 60%.  No one can rationally argue with the results: double the original forecast in payments to the State, stability in the gaming market leading to investment, construction, and all the other benefits recent studies have been reporting.”

Norman said the 2004 compact permits for either party – the state or tribes – to request to renegotiate exclusivity fees within 180 days of a compact term. He cast doubt, however, on whether agreement on new fee terms could be reached without a series of lengthy, complex negotiations.

“Stranger things have happened, but multiple sovereign governments considering something as important as exclusivity fees will take time. Each compact tribe has a right to have its chosen representatives at the table.

“Tribes have undertaken all of the risk, made all of the investment, operated, regulated, and overseen the tribal gaming industry, and have paid the state more than twice what the state ever expected,” Norman continued. “Frankly, there are very good arguments for the fees to be reduced.”

Matthew Morgan, chairman of the Oklahoma Indian Gaming Association, said Thursday that he believes it will be difficult for any renegotiation of exclusivity fees to be launched unless Stitt acknowledges first that the 2004 compact would remain legally valid beyond 2020. Offering to “table” the issue of whether the compact would automatically renew leaves a “dark cloud that hinders the ability of tribes to forecast” what to expect next from the state, he said.

“I think that issue is paramount for him to address before any discussion can take place,” Morgan said. “If he is willing to step back from that position, I think tribal leaders would be in favor of upholding their end of the compact, that they would be more open to having that conversation (about exclusivity fees).”

Morgan added that leaders in tribal governments have had a good relationship with Hunter and would likely welcome his input in any talks.

“I think they would welcome his input as well as that of the Legislature,” he said.

As for introducing a mediator into the discussion, Morgan said that might be interpreted as an indication that there’s a dispute that needs to be resolved, and he said he is not convinced that would be productive.

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