In compact dispute, Stitt hires law firm with a history of taking on tribes

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Jena MacLean is a partner for Perkins Coie who leads the firm’s Native American law and policy practice. PROVIDED/Perkins Coie
Weeks before he said tribal casinos in Oklahoma would be operating illegally, Gov. Kevin Stitt hired a law firm with a reputation for aggressively representing states against tribal nations.

“The legal experts at Perkins Coie have successfully represented other states in Indian law controversies, to include the State of New Mexico’s compact dispute in 2015,” Stitt said Friday when he announced the firm, which his office signed an agreement with on Dec. 18.

For months, Stitt has argued the state’s casino gaming compact with more than 30 tribes would expire on Jan. 1, 2020.

Tribal leaders disputed that claim and said casinos would continue to operate in the new year without needing to renegotiate with the governor.

But it was the Choctaw, Cherokee and Chickasaw tribes that initiated a move to federal court when it filed a lawsuit against Stitt on Dec. 31 seeking a declaratory judgement on the compact’s auto renew language.

“We were not planning on filing first and quite honestly we thought we would go into the new year and see what the governor did,” said Stephen Greetham, senior counsel to the Chickasaw Nation.

“But his statements in December made clear he was dug in. We understood his comments … as threats against our vendors and our patrons.”

Last month, Stitt said vendors doing business with tribal casinos would also be operating illegally on Jan. 1.

“That’s absolutely a possibility,” said Stitt, when asked if he would take action against casino vendors.

Greetham said Stitt’s comments made some vendors nervous, which prompted the three tribes to file the lawsuit.

Stitt’s contract with Perkins Coie caps expenses at $300,000, according to a legal service agreement.

The agreement includes billable hours paid to three Perkins Coie attorneys and a legal assistant, including $750 an hour to Jena MacLean, a partner who leads the firm’s Native American law and policy practice.

Stitt’s office said Perkins Coie would defend the governor in court and help in any negotiations over a new compact, which Stitt would like to see include higher fees than the current 4 percent to 10 percent.

“We intentionally selected a contract based on an hourly rate for assistance in compact negotiations,” said Donelle Harder, a senior policy adviser for Stitt. “The Chickasaw, Cherokee, and Choctaw Nations chose to escalate the issue by filing suit in federal court, but the more quickly we resolve the dispute about compact expiration, the less cost there will be to the state.”

Harder said the attorney fees would be paid through the Gaming Compliance Unit in the Office of Management and Enterprise Services (OMES).

Perkins Coie is the second law firm hired by the state concerning gaming compacts.

Kevin Stitt listens to a question following a Governor candidate forum at First United Methodist Church in Tulsa on Wednesday, Oct. 3, 2018. DYLAN GOFORTH/The Frontier

Attorney General Mike Hunter hired the Michigan-based law firm Dykema Gossett PLLC to help negotiate with the tribes last year, a contract that could cost the state as much as $250,000.

Last month, Stitt announced he was taking over the lead in negotiating a new compact.

Weeks before the end of the year, Stitt offered to sign a compact extension with tribes in order to renegotiate higher fees, an offer rejected outside of two small tribes who have no casinos in the state.

In announcing the hiring of Perkins Coie, Stitt pointed to the firm’s work in New Mexico in 2015 when it successfully defended the state in a tribal gaming compact dispute.

While a different situation than the current gaming dispute in Oklahoma, Perkins Coie won a case for the state of New Mexico that resulted in a tribe paying more gaming fees.

“If a jurisdiction wants to fight an Indian Tribe, they hire Perkins Coie, LLC,” Washington State Sen. John McCoy, a citizen of the Tulalip Tribes, told Indian Country Today in 2018.

McCoy made the comment in response to the Trump administration nominating Eric Miller, a former Perkins Coie attorney, to the U.S. 9th Circuit Court of Appeals.

The state of Oklahoma received nearly $140 million in gaming fees last fiscal year, with most going to the Education Reform Revolving Fund, along with some to the Department of Mental Health and Substance Abuse Services.

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Ben Felder

Based in Oklahoma City, Ben Felder joined The Frontier in 2019 and covers education and politics. He previously covered education and government as an investigative reporter at The Oklahoman before becoming the newspaper’s news director. Felder can be reached at ben@readfrontier.com. Follow him on Twitter @benfelder_okc
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