OKLAHOMA INDIAN GAMING ASSOCIATION 4 NE 10th Street Oklahoma City, OK 73103 oiga.org

October 15, 2019

Oklahoma Indian Gaming Association is officially transmitting this letter in response to Attorney General Hunter, on the behalf of the 30 Tribal Nations who have drafted and signed it.

Sincerely,

Matthew L. Morgan, Esq. Chairman, Oklahoma Indian Gaming Association

October 15, 2019 Attorney General Mike Hunter Office of the Oklahoma Attorney General 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 Dear Attorney General Hunter: Thank you for your letter dated October 3, in which you said “the issue of how the gaming compacts are renewed must be resolved.” As we have stated, we understand our compacts as automatically renewing. However, the apparent impasse on this issue continues to bar any hope for what may otherwise be a productive intergovernmental discussion.

We accordingly invoke Part 12.1 of our compacts with the goal of seeking an amicable and voluntary resolution, if possible. This letter is notice that the Tribes intend to secure the proper interpretation of Part 15.B of our compacts. You will find accompanying this notice a summary analysis of that provision, annotated to include key relevant facts.

Due to logistical constraints, it will be impossible for us to join you on Oct. 17. However, we invite you to meet with us on the afternoon of Oct. 28 in Shawnee so that you can lay out the State’s position and we can determine, first, whether there truly is a dispute and, second, what is our best path forward. The Oklahoma Indian Gaming Association is coordinating a meeting for that date and will reach out to your office with details.

Sincerely,

The Undersigned Tribes

PRIVILEGED AND CONFIDENTIAL COMMON INTEREST, ATTORNEY-CLIENT COMMUNICATION, ATTORNEY WORKPRODUCT

DO NOT DISCLOSE Compact Part 12.1 (annotated) In the event that either party to this Compact believes that the other party has failed to comply with any requirement of this Compact, or in the event of any dispute hereunder, including, but not limited to, a dispute over the proper interpretation of the terms and conditions of this Compact, the following procedures may be invoked:

1. The goal of the parties shall be to resolve all disputes amicably and voluntarily whenever possible. A party asserting noncompliance or seeking an interpretation of this Compact first shall serve written notice on the other party. The notice shall identify the specific Compact provision alleged to have been violated or in dispute and shall specify in detail the asserting partys [sic] contention and any factual basis for the claim. Representatives of the tribe and state shall meet within thirty (30) days of receipt of notice in an effort to resolve the dispute;

2. Subject to the limitation set forth in paragraph 3 of this Part, either party may refer a dispute arising under this Compact to arbitration under the rules of the American Arbitration Association (AAA), subject to enforcement or pursuant to review as provided by paragraph 3 of this Part by a federal district court. The remedies available through arbitration are limited to enforcement of the provisions of this Compact. The parties consent to the jurisdiction of such arbitration forum and court for such limited purposes and no other, and each waives immunity with respect thereto. One arbitrator shall be chosen by the parties from a list of qualified arbitrators to be provided by the AAA. If the parties cannot agree on an arbitrator, then the arbitrator shall be named by the AAA. The expenses of arbitration shall be borne equally by the parties. A party asserting noncompliance or seeking an interpretation of this Compact under this section shall be deemed to have certified that to the best of the partys [sic] knowledge, information, and belief formed after reasonable inquiry, the claim of noncompliance or the request for interpretation of this Compact is warranted and made in good faith and not for any improper purpose, such as to harass or to cause unnecessary delay or the needless incurring of the cost of resolving the dispute. If the dispute is found to have been initiated in violation of this Part, the Arbitrator, upon request or upon his or her own initiative, shall impose upon the violating party an appropriate sanction, which may include an award to the other party of its reasonable expenses incurred in having to participate in the arbitration; and

3. Notwithstanding any provision of law, either party to the Compact may bring an action against the other in a federal district court for the de novo review of any arbitration award under paragraph 2 of this Part. The decision of the court shall be subject to appeal. Each of the parties hereto waives immunity and consents to suit therein for such limited purposes, and agrees not to raise the Eleventh Amendment to the United States Constitution or comparable defense to the validity of such waiver. Nothing herein shall be construed to authorize a money judgment other than for damages for failure to comply with an arbitration decision requiring the payment of monies.

Compact Part 15.B. (annotated) This compact shall have a term which will expire on January 1, 2020, and at that time, if—

(1) organization licensees1 or others2 (2) are authorized to conduct electronic gaming in any form other than pari-mutuel wagering

on live horse racing3 (3) pursuant to any—

a. governmental action of the state4 or b. court order5

(4) following the effective date of this compact6,

the compact shall automatically renew for successive additional fifteen-year terms.

1 “Organization licensees” are entities licensed by the Oklahoma Horse Racing Commission to conduct electronic gaming pursuant to the State-Tribal Gaming Act. Presently, there are two: (i) Global Gaming Solutions, operating Remington Park; and (ii) Cherokee Nation Businesses, operating Will Rogers Downs. 2 The compact does not define “others,” but in context, it should be understood as anyone other than “organization licensees.” 3 Note expansive scope—i.e., “any form other than . . .” (emphasis added). Some argue renewal requires approval of some form of electronic gaming that was not authorized as of the effective date of the compact. This argument is not supported by the compact’s text. Moreover, it would seem to posit as prerequisite to renewal some action by the Oklahoma Legislature that would breach State’s exclusivity obligation. 4 Note expansive scope—i.e., “any governmental action of the state . . .” (emphasis added). See comment at n.3. As a general matter, “governmental action of the state” would appear to include the following: (i) annual electronic gaming license renewals for Remington Park and Will Rogers Downs (2005-2018), with 2020 race year operations obtaining preliminary approvals on Aug. 22, 2019, and final approvals likely as soon as Oct. 17, 2019; (ii) promulgation of regulations governing issuance of race track electronic gaming licenses (2005, 2006, 2008, 2009, and 2013); and (iii) Governor Fallin’s March 3, 2017, concurrence in Shawnee trust acquisition two-part determination; (iv) H.B. 1836, enacted into law Apr. 26, 2017 (authorizing expanded hours for organization licensee electronic gaming operation). 5 As a general matter, “Court order” would appear to include Iowa Tribe v. Oklahoma, Civ. No. 1379 (W. Dist. Okla., Apr. 18, 2016) (entering judgment and order on arbitral award authorizing Oklahoma Tribe to engage in the international play of on-line gaming as “covered game” under its gaming compact with Oklahoma). 6 Each compact has its own “effective date,” as determined by reference to Part 15.A: (i) Tribal execution of the model compact; (ii) DOI Sec’y’s approval of same, with publication of same in the Federal Register; and (iii) Tribal payment of the “start-up assessment” due pursuant to Part 11.C. The first four compacts went into effect in early 2005, and the most recent was sometime after June 2018).

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