Tribes discuss “critical moment in Oklahoma’s Indian gaming industry”
Oklahoma City (May 22, 2020) — The Comanche Nation and Otoe-Missouria Tribe said today their compacts are legal, are similar to many other previously-approved gaming compacts and assert their tribal sovereignty in a way that will benefit their people and the state.
The tribes released a legal memo today in response to recent tribal opposition letters. In the letter, which was sent to Secretary of the Interior David Bernhardt, both tribal Chairmen counter the arguments recently released by the Chickasaw Nation, the Quapaw Nation and the Wichita & Affiliated Tribes. The memo also calls attention to the fact that each feature of the agreements has been part of previously approved compacts over the last several decades.
“The complaints from our fellow tribes have no legitimate legal basis, as the compacts are legal, were negotiated in good faith and should be approved,” said Otoe-Missouria Tribe Chairman John R. Shotton. “These compacts are the product of the most fundamental aspects of tribal sovereignty.”
In the memo, the Comanche Nation and Otoe-Missouria Tribe outline the reasons the compacts are legal and should be approved by the U.S. Department of the Interior.
The compacts were validly formed
As noted in an earlier memo responding to the attorney general’s opinion, the governor of Oklahoma has the authority to enter into these tribal gaming agreements without approval from the other branches of government. According to the new memo, the Chickasaw letter to Sec. Bernhardt places undue emphasis on the role of the legislative branch and attorney general in the tribal-state compact approval process. Regardless of former processes in Oklahoma, this new compact was formed validly under the authority that rests with the governor.
In fact, the memo states, the Supreme Court of Oklahoma has explicitly recognized that the governor “has been and continues to be the party responsible for negotiating compacts with the sovereign nations of this state.”
The compacts include the meaningful concessions from the state required for federal approval
When determining compact approval, the Department takes into consideration whether an agreement provides the tribe with substantial economic benefits, as well as if the state offers a meaningful concession for the sharing of revenue. Opposition currently claims the Comanche Nation and Otoe-Missouria compacts allow for unlawful taxation on the basis there is no meaningful concession in exchange.
In reality, the compacts reduce the revenue-share payments both tribes would make to the state, while continuing to offer everything it offered in the previous compact. When comparing the tribes’ current revenue-sharing payments to the amount they would pay under the compacts, the memo says the savings for the tribes are significant, allowing them to put additional funds toward important tribal programs.
The compacts do not erode tribal sovereignty
In its letter, the Quapaw Nation listed several features of the compacts that, in their view, “erode tribal sovereignty.” However, the memo outlines that in addition to the compacts not eroding tribal sovereignty in the slightest, all of the features have either been approved in prior compacts or do not affect any change in the tribes’ existing obligations.
“Every sovereign tribe has the right to enter into intergovernmental negotiations with the State, and every sovereign tribe has the right to choose what is best for its tribal members,” the memo reads. “We were faced with a fairly simple decision: (A) continue litigation against the state and thus remain in our current compacts; or (B) engage in good-faith negotiations with the state in an attempt to secure better opportunities to improve the well-being of our tribal members. We chose the latter option.”
The concurrence given in the compacts is lawful and follows precedent
Through Section 20 of the Indian Gaming Regulatory Act, there is a two-part process for tribes to have new lands taken into trust for gaming eligibility. The compacts include a concurrence from the governor that lands in six counties (three for each tribe) can be taken into trust pursuant to this process. The two-part determination would also require approval at the federal level.
The Chickasaw, Wichita and Quapaw all take particular grievance with this section of the agreement but, according to the memo, this two-part determination process is entirely separate from the compact approval. That is, federal approval of the compacts does not automatically result in new lands becoming eligible for gaming. This aspect of the compacts should therefore not be a consideration in the legality of the compacts. Furthermore, similar compacts including such provisions have been approved by the Department of the Interior.
Approval of the compacts would not be a breach of the trust responsibility
Finally, the Chickasaw Nation argues the approval of the compacts would be a breach of the Department’s trust responsibility, as other tribes may have lands in the development counties. However, the memo outlines both the Comanche Nation and Otoe-Missouria Tribe also have deep historical connection with these lands, and again reassures that the compacts alone do not make lands in those counties eligible for gaming. The tribes will need to follow the Section 20 process to obtain final approval of any planned land acquisitions.
“Our compact is legal and we look forward to approval from the Department of the Interior,” said Comanche Nation Chairman William Nelson, Sr.
The Department of the Interior has 45 days to review and approve both the Comanche Nation and Otoe-Missouria Tribe compacts and is expected to make a ruling on or before June 8.
About the Comanche Nation
The Comanche Nation is located in Southwest Oklahoma, with headquarters located right outside of Lawton. The tribe currently has approximately 17,000 enrolled tribal members with 7,000 residing in the tribal jurisdictional area around the Lawton, Ft. Sill, and surrounding counties. In the late 1600’s and early 1700’s the tribe migrated from their Shoshone kinsmen onto the northern Plains, ultimately relocating in Oklahoma. For more information about The Comanche Nation, visit https://www.comanchenation.com
About The Otoe-Missouria Tribe
The Otoe-Missouria Tribe is located in North Central Oklahoma in Red Rock. There are currently 3,288 members enrolled in the tribe with 2,242 living in Oklahoma. The tribe was relocated to Oklahoma in 1881 from its first reservation on the border of Nebraska and Kansas. For more information about the Otoe-Missouria Tribe, visit https://www.omtribe.org/.