Federal case on hold to allow state court to answer questions

Mar. 23—A federal court will ask the Oklahoma Supreme Court to certify a question regarding the attorney general's authority to take over and assume control of litigation involving the state before a federal case can move forward.

Oklahoma Attorney General Gentner Drummond filed paperwork in July 2023, requesting his office take over the state's interest in the case of Cherokee Nation, et al. v. U.S. Department of the Interior, et al. filed in the U.S. District Court for the District of Columbia.

Attorneys for Stitt, from New York-based Sullivan and Cromwell LLP, argue Drummond does not have the authority to take the case away from the governor.

"The Governor's and Attorney General's views regarding the proper defense of the State's interests are at odds—the former attempts to thwart established Oklahoma law by relying on Federal bureaucracy, while the latter seeks to uphold State law," attorneys for the AG's office wrote in their motion. "Resolution of this dispute between the Governor and Attorney General is certainly one of 'public importance' in which Oklahoma has a 'substantial interest.'"

Stitt's attorneys argue Drummond has no standing to file the motion and calls the request "a political slideshow."

"The Governor has been litigating this case with his chosen counsel and without the Attorney General's involvement for more than two years," Stitt's attorneys wrote. "The Attorney General has no authority under Oklahoma law to now hijack the Governor's defense given the Governor's express statutory authority and the fact that it is the Governor, not the Attorney General, who holds the 'Supreme Executive power.'"

U.S. District Judge Timothy J. Kelly wrote in his opinion the court "finds that there is no established and controlling law about whether, under these Oklahoma statutes and the Oklahoma Constitution, Attorney General Drummond may take and assume control of the defense of the state's interests in this case over the objection of Governor Stitt, and the Court is genuinely uncertain about whether he may do so."

"The decision over who has the ultimate authority to represent Oklahoma's interests in this case goes to the very core of its sovereignty," Kelly wrote. "Moreover, that interest is heightened given the differing views of Governor Stitt and Attorney General Drummond on the merits."

Both sides will have 14 days to file any objections or edits before the certification order is sent to the Oklahoma Supreme Court. The case was stayed pending resolution of the certified question of law.

The case began after leaders from the Oklahoma Legislature filed a lawsuit against Stitt in 2020 over four gaming compacts the governor had signed with the Comanche Nation, the Otoe-Missouria, United Keetoowah Band of Cherokee Indians, and the Kialegee Tribal Town. The two state legislative leaders argued the compacts were invalid because they were not approved by the Legislature.

The compacts between state and tribe settle the question of how much revenue the tribes share with the state. Stitt has been demanding a larger cut of the profits, while tribal leaders argue the original pacts allow them, not the governor, to change the terms. Compacts cover such issues as fishing and hunting licenses, but the key deal involves casino revenues.

Judges with the Oklahoma Supreme Court ruled in both cases the compacts negotiated by Stitt were not valid under state law. However, the compacts were submitted to the U.S. Department of the Interior and were approved at the federal level after no action was taken within a 90-day waiting period.

Following the ruling, the Cherokee, Chickasaw, Choctaw and Citizen Potawatomi Nations filed a federal lawsuit against the compacts, with Stitt hiring Washington, D.C-based law firm Sullivan and Cromwell to represent him in his official capacity. The lawsuit asks the federal court to invalidate the Interior Department's tacit approval of the compacts — assumed because no action was taken within a 90-day time period — and claims the agreement was made illegally made under Oklahoma law.