Following the April 21 signing of new gaming compacts between the State of Oklahoma and the Comanche Nation and Otoe-Missouria Tribes, turmoil has followed.

In recent weeks, the Chickasaw Nation, the Quapaw Nation and the Wichita & Affiliated Tribes have issued memos directed to David Bernhardt, Secretary of the Interior, contesting the legality of those compacts and in support of Attorney General Mike Hunter’s contention that the compacts are invalid.

On Friday, the Comanche Nation and Otoe-Missouria Tribe issued a statement regarding their response to the tribes’ complaints sent to Bernhardt. The tribes assert the legality of their compacts as being 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 Friday in response to recent tribal opposition letters. In the letter, Comanche Nation Chariman William Nelson Sr. and Otoe-Missouria Chairman John R. Shotton offered counterarguments that “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,” Shotton said. “These compacts are the product of the most fundamental aspects of tribal sovereignty.”

The memo from the Comanche Nation and Otoe-Missouria Tribe outline their reasoning for why the compacts are legal and should be approved by the U.S. Department of the Interior.

The tribes argue:

•The compacts were validly formed due to the governor of Oklahoma having 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 Bernhardt placed 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. They also argue the State Supreme Court 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.

According to the memo, the opposition claims the Comanche Nation and Otoe-Missouria compacts allow for unlawful taxation on the basis there is no meaningful concession in exchange.

The two tribes claim 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 don’t erode tribal sovereignty.

In its letter, the Quapaw Nation listed several features of the compacts that, in their view, “erode tribal sovereignty.” However, the response memo outlines that in addition to the compacts not eroding tribal sovereignty, all of the features have either been approved in prior compacts or do not affect any change in the tribes’ existing obligations.

The Comanche Nation and Otoe-Missouria Tribe argue that they were faced with a decision to continue litigation with the State and remain in the current compacts, or engage in good-faith negotiations with the State in attempt to secure better opportunities for the tribes and their citizens’ well-beings.

•Lawful concurrence in the compacts and follow 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) that can be taken into trust as part of the process. The two-part determination would also require approval at the federal level.

The two tribes claim the “Chickasaw, Wichita and Quapaw all take particular grievance with this section of the agreement” but, according to the memo. The two-part determination process is an entirely separate entity from the compact approval. Federal approval of the compacts does not automatically result in new lands becoming eligible for gaming.

They argue this aspect of the compacts should not be a consideration in the legality of the compacts, and that similar compacts including similar/same provisions have been approved by the Department of the Interior.

•Breach of trust responsibility would not be breached through the new compacts.

The Chickasaw Nation argued the approval of the compacts would be a breach of the Department’s trust responsibility since other tribes may have lands in the development counties.

The rebuttal memo outlines both the Comanche Nation and Otoe-Missouria Tribe also have deep historical connection with these lands, and offered reassurances that the compacts alone do not make lands in those counties eligible for gaming. The tribes will need to follow the established 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,” Nelson said.

The compacts are within the 45 days of consideration by the Department of the Interior. A ruling is expected on or before June 8.

Written by Scott Rains:

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