NCAI stands with tribes in high-profile gaming dispute in Oklahoma
Tuesday, February 18, 2020
By Acee Agoyo
The National Congress of American Indians is throwing its weight behind tribes in Oklahoma as they deal with one of the greatest threats to their sovereignty.
Speaking to reporters following the State of Indian Nations last week, NCAI President Fawn Sharp said an ongoing dispute over gaming rights strikes at the heart of the organization's 76-year-old history. She called on officials in Oklahoma to respect the government-to-government agreements -- also known as compacts -- signed with tribes.
"We're sovereignty based," Sharp said in Washington, D.C., last Monday. "It's our core mission."
"So any time any tribal nation is confronted with another sovereign who thinks they have the ability to
carelessly, recklessly and disrespectfully disregard that relationship, to take unilateral action to undermine treaties, to undermine agreements that we have and and to be a direct threat to tribal sovereignty," Sharp continued, "they may be thinking they are dealing with one tribal nation, but they are dealing with all of Indian Country."
"We stand with those tribes who are facing a direct threat and annihilation to their sovereignty through this compact dispute," Sharp said of a controversy that has consumed Oklahoma's political, legal and media circles for much of the past year.
National Congress of American Indians President Fawn Sharp, center, talks with Jackson Brossy of the Native CDFI Network and Rep. Deb Haaland (D-New Mexico) following the State of Indian Nations in Washington, D.C., on February 10, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)
The compact dispute in fact originated from an unlikely source. Shortly after taking office as only the second Native American governor in Oklahoma's history, Kevin Stitt -- who is a citizen of the Cherokee Nation -- called on tribes to fork over a greater share of their gaming revenues to the state.
Stitt, a Republican, faced immediate push-back from nearly every single tribe in the state, including his own. Cherokee leaders have been among the most vocal in opposing the demand, which was followed by threats to shut down their gaming facilities and to open the state to non-Indian forms of gaming.
"During the last fiscal year, our gaming operations sent $18 million in revenue directly to the state, bringing the total of the last eight years to $116 million," Cherokee Chief Chuck Hoskin, Jr. said in an opinion published on Indianz.Com.
"And that’s just one tribe," Hoskin continued. "Oklahoma has richly benefited from the gaming revenues of all our tribes.
The Cherokee Nation
owns and operates the Hard Rock Hotel & Casino Tulsa in Tulsa, Oklahoma.
Photo: Anadisgoi
The benefits have indeed been great. Since 2005 -- after the first Class III gaming compacts were signed -- tribes have shared more than $1.28 billion with the state, according to the Oklahoma Gaming Compliance Unit's most recent report.
“So far, since the compacts were first approved in 2005 the tribes and the state have had a mutually productive relationship, and I hope that continues,” Chairman John Berrey of the Quapaw Nation said last Tuesday.
Despite the show of unity in Indian Country, Stitt is digging in. With tribal leaders in attendance -- some of them looking visibly upset -- the governor repeated his demands during the State of the State address earlier this month, throwing in his on nod to "sovereignty" in the process,
"As Governor, I remain supportive of the sovereignty of the state of Oklahoma and our right – and your duty as the Legislature – to oversee all industries operating in the state," Stitt asserted on February 3.
"I also remain confident the state and Oklahoma’s tribes can hammer out a compromise that is a win-win for all four million Oklahomans, and we can accomplish this without putting public education in the crosshairs," Stitt said, in reference to the fact that a significant portion -- but not all -- of tribal gaming revenues are directed to public education.
Since 2004, tribes have
paid $1.28 billion to the state of Oklahoma in exclusivity fees. Tribes set a
record in fiscal year 2018, paying nearly $138.6 million to the state, an
increase of 3.48 percent from the prior fiscal year. Source: Oklahoma
Gaming Compliance Unit Annual Report, Fiscal Year 2018
The dispute is looking increasingly like one that will be resolved in court instead of the negotiating table. On the last day of 2019, just a day before Stitt said tribal gaming facilities would be operating illegally, the Cherokee Nation, the Chickasaw Nation and the Choctaw Nation filed a lawsuit to protect their gaming rights.
Together, the three tribes represent the largest segment of the gaming market in the state. But they aren't alone in seeking protection in the legal sphere -- the Citizen Potawatomi Nation, the Comanche Nation, the Delaware Nation, the Muscogee (Creek) Nation, the Otoe-Missouria Tribe, the Ponca Tribe, the Seminole Nation and the Wichita and Affiliated Tribes have since been granted permission to join the case.
"The tribal nations, the state of Oklahoma, and the United States government have had a long history of broken promises and we are not dwelling on it," Muscogee Chief David W. Hill said in his State of the Nation address on January 24. "We cannot change history, but by working together we can build a brighter future."
Hill added: "We will continue to work with the state of Oklahoma, but the Muscogee (Creek) Nation will not be controlled or intimidated by Oklahoma’s inability to practice sound fiscal management or dishonest attempts to rectify this failure by interrupting our lawful government activities.."
"The state must provide a fair and equitable partnership and mutual trust with the tribal nations that have provided so much to Oklahoma and its citizens," Hill said.
And on Friday, the Quapaw Nation was granted permission to intervene. Chairman Berrey said going to court presented a clear path toward resolving the impasse.
“This litigation allows both the tribes and the state to seek a resolution to some of the key compact negotiations issues in a neutral, judicial forum,” said Berrey. “Our leadership team has been very supportive of the parties’ working toward a resolution in a constructive and businesslike manner, and we think this litigation could be helpful to all of the participants.”
“This is not a simple process because of the large number of governments involved,” Berrey added, noting that the federal government -- which plays a significant role in reviewing and approving tribal gaming compacts -- is also impacted by the dispute. “I think we all believe we can get to a mutually acceptable resolution. But it will take some work and a lot of listening.”
As additional tribes joining the lawsuit, and on the same day as the State of Indian Nations, the federal judge handling the case ordered the parties into mediation. Four days later, Layn R. Phillips, himself a former federal judge, was appointed as the mediator. Phillips founded a private firm that specializes in alternative dispute resolution.
With the process moving forward, Kevin Allis, a citizen of the Forest County Potawatomi Community who serves as Chief Executive Officer of the National Congress of American Indians, believes the tribes will ultimately prevail.
"The tribes are going to win this one because they are on the right side of the fence on this," Allis said last Monday.
