564 P.3d 58
Okla.2025Background
- Multiple Oklahoma tribes challenged tribal-gaming compacts negotiated by Governor Stitt, asserting the compacts violate Oklahoma law and were unlawfully approved by the U.S. Department of the Interior under the Indian Gaming Regulatory Act (IGRA).
- The Governor was sued in federal court and retained private counsel under his statutory authority to defend the state's interests.
- Over two years into the litigation, the Oklahoma Attorney General attempted to assume control of the state's defense, citing statutory authority under Title 74, Section 18b.
- The dispute centers on which executive officer—the Governor or Attorney General—holds the ultimate statutory and constitutional authority to direct litigation in high-profile cases involving the state's interests.
- A certified question was sent from the U.S. District Court in D.C. to the Oklahoma Supreme Court to resolve whether, under Oklahoma law, the Attorney General could take over the Governor's defense in such cases over the Governor's objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Attorney General can assume control of the state's defense in litigation over the Governor's objection (where the Governor exercised his statutory right to employ counsel). | Tribes/Plaintiffs: Attorney General has broad statutory power to control state litigation and should take over defense, especially where interests align with state law. | Governor: As Chief Magistrate with "Supreme Executive power," Governor holds ultimate authority to direct state litigation, including choosing counsel, and Attorney General's statutory power is subordinate in such context. | No, the Attorney General may not take control over the Governor's objection when the Governor has lawfully retained his own counsel. |
| Scope of the Attorney General's independent authority to appear in cases involving state interests. | Tribes/Plaintiffs: AG should have independent standing to represent the state, especially if Governor's stance conflicts with established law. | Attorney General: Requests from other state officials (e.g., legislative leaders) support his authority to appear or assume control. | AG may appear ex officio to present his views, but not assume control of the Governor’s defense absent consent or statutory mandate. |
| Whether letters from legislative leaders authorize the AG to take over the defense. | AG: Support letters from Speaker of the House and Senate President Pro Tem amount to legislative request authorizing AG to appear. | Governor: Letters from legislative leaders don't constitute the entire Legislature’s position or satisfy statutory requirements. | Such letters do not confer additional authority; AG not authorized by Legislature absent formal action. |
| Whether the Governor's advocacy for compacts previously found invalid by the state court is inconsistent with state law. | AG: Governor's defense of invalid compacts conflicts with state law, justifying AG intervention. | Governor: Federal case concerns independent federal IGRA issues; state law determinations do not preclude defense in federal court. | No requirement for Governor to abandon defense; federal court must resolve federal IGRA issues. |
Key Cases Cited
- Treat v. Stitt, 473 P.3d 43 (Okla. 2020) (Oklahoma Supreme Court held some tribal-gaming compacts signed by the Governor were invalid under state law)
- Treat v. Stitt, 481 P.3d 240 (Okla. 2021) (Invalidated additional compacts for procedural/statutory reasons)
- State v. Huston, 97 P. 982 (Okla. 1908) (Governor’s authority to bring suit in state’s name is rooted in the Constitution)
- State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813 (Okla. 1973) (AG has dominion over cases absent explicit legislative or constitutional contrary authority)
- State ex rel. Howard v. Oklahoma Corp. Comm’n, 614 P.2d 45 (Okla. 1980) (Governmental entity's right to defend includes right to counsel of its choice)
- Vandelay Ent., LLC v. Fallin, 343 P.3d 1273 (Okla. 2014) (Use of "supreme executive power" vests full executive authority in the Governor)