[00:00:00] Speaker 01:
Wichita and Affiliated Tribes versus STIT 23-6041.

[00:00:08] Speaker 01:
Council for Appellant, if you would make your appearance and proceed, please.

[00:00:12] Speaker 04:
Thank you, Your Honor.

[00:00:13] Speaker 04:
My name is William Norman.

[00:00:14] Speaker 04:
Council for Wichita and Affiliated Tribes with me at the table is Jonathan Sutton.

[00:00:21] Speaker 04:
This dispute involves the interpretation of a gaming compact provision regarding revenue sharing and penalties.

[00:00:28] Speaker 04:
Namely, the tribe tried to conduct certain games without the state expanding non-tribal gaming in exchange for payments to the state.

[00:00:38] Speaker 02:
Is the issue here only whether the tribes will continue to make payments or have to make payments to the state?

[00:00:45] Speaker 02:
Is that the only issue?

[00:00:47] Speaker 04:
Well, there's that issue, and then there's the question of a declaratory judgment with regard to whether Part 11E of the Compact has been violated as well.

[00:00:56] Speaker 02:
All right, a declaratory judgment.

[00:00:59] Speaker 02:
The only thing that has a monetary impact to it is the tribe's payments to the state.

[00:01:06] Speaker 04:
That is correct.

[00:01:09] Speaker 02:
And tell me again, would the declaratory judgment, if successful, have an economic impact on the state?

[00:01:17] Speaker 04:
Not immediately, but it would give the tribe tools to use in order to

[00:01:22] Speaker 04:
address the violation which in 11E is determined to be so important and stated as so important to the tribes and acknowledged as such.

[00:01:31] Speaker 04:
That particular provision provides for a ministerial duty for the state to receive, to collect 50% of adjusted net revenues that are increased based upon a violation.

[00:01:46] Speaker 02:
So it would force this, it would essentially, even though it's not an injunction,

[00:01:51] Speaker 02:
It would force the state to start to collect those extra revenues.

[00:01:58] Speaker 04:
The state has contractually obligated to do that.

[00:02:01] Speaker 02:
And to pass them on.

[00:02:03] Speaker 02:
That is correct.

[00:02:05] Speaker 02:
They would never be state funds.

[00:02:07] Speaker 02:
Those are pass-through funds.

[00:02:09] Speaker 04:
That is correct.

[00:02:09] Speaker 04:
It would just be the redirecting of funds from parties that are engaged in machine games that have been

[00:02:15] Speaker 04:
unlawfully allowed in violation of the compact, post-compact.

[00:02:20] Speaker 03:
Why is that not functionally damages?

[00:02:22] Speaker 03:
Why isn't the state immune from your claim for declaratory relief in the form of damages or however you framed it?

[00:02:32] Speaker 04:
Well, they're not damages with respect to the state because the state would never have those in their treasury.

[00:02:38] Speaker 04:
Essentially, they're performing a ministerial function on behalf of the tribes.

[00:02:42] Speaker 04:
as a result of their agreement not to allow for expanded gaming within the state.

[00:02:49] Speaker 01:
But the district court took a contrary view.

[00:02:51] Speaker 01:
And as far as I can tell, you didn't really challenge that in any meaningful way on appeal in the brief.

[00:03:01] Speaker 04:
Well, the district court's view, as we understood it, was to say that they view 11E the same way they treated 11A.

[00:03:09] Speaker 04:
And their interpretation of 11A

[00:03:13] Speaker 04:
we contend is out of context, although they have indicated that the tribe has used the wrong context to interpret 11A.

[00:03:22] Speaker 04:
The district court in its order indicated that 11E would be disposed of for the same reason as 11A.

[00:03:31] Speaker 01:
There was specific language in the district court order that said that essentially this could be construed as damages.

[00:03:43] Speaker 01:
that even if the state waived sovereign immunity for purposes of participation in this litigation, it did not waive sovereign immunity for purposes of the assessment of damages, and it perceived the 11E argument as damages.

[00:04:00] Speaker 01:
Am I wrong about that?

[00:04:02] Speaker 01:
And if that is what, in essence, and I can pull it up if I need to, if in essence that is what the district court argues, I don't see any argument grappling with that in your brief.

[00:04:14] Speaker 04:
So there are two things that we argued in our brief.

[00:04:17] Speaker 04:
One was that it is a declaratory judgment, and therefore there is no issue about sovereign immunity, because we alleged that we were seeking a declaratory judgment for the duration of the period of violation.

[00:04:33] Speaker 04:
Secondly, with respect to waiver, there is no waiver, of course, for an ex parte young

[00:04:41] Speaker 04:
And so there would be no waiver there.

[00:04:44] Speaker 01:
And why isn't there a waiver for an ex parte young allegation?

[00:04:48] Speaker 01:
If you didn't make the argument before the district court, why isn't that waived?

[00:04:54] Speaker 04:
Well, we did make the argument before the district court that there was no waiver of sovereign immunity.

[00:05:00] Speaker 01:
That's not the same as making an ex parte young argument.

[00:05:03] Speaker 01:
You need to articulate a theory in order to preserve it.

[00:05:06] Speaker 01:
Did you articulate that theory?

[00:05:08] Speaker 04:
So our allegation is that the governor, by signing the three laws, which we indicate are violations of 11E, and allow for a declaration on 11E, that triggered those violations.

[00:05:25] Speaker 04:
We're not contending that it is a legislative immunity issue.

[00:05:29] Speaker 04:
We're not contending that those laws are

[00:05:34] Speaker 04:
violative of anything, it should be struck down.

[00:05:37] Speaker 04:
We're just indicating that his signature on those laws prompted and triggered a review of the contract, which is the compact, and the promises made to the tribes therein.

[00:05:48] Speaker 01:
And perhaps you answered my question, and I missed it, but there are two specific things that I asked you.

[00:05:53] Speaker 01:
One, did you argue specifically ex parte Young before the district court?

[00:05:59] Speaker 01:
And two, have on appeal, have you

[00:06:02] Speaker 01:
meaningfully challenge the district court's reasoning that sovereign immunity may be waived for litigation conduct, but it was not waived for an assessment of damages, and this is damages.

[00:06:16] Speaker 04:
Well, I would contend, Your Honor, that we did.

[00:06:18] Speaker 04:
And of course, we're focused on 11A and, as I mentioned before, the district court's treatment of 11E consistent with 11A.

[00:06:28] Speaker 01:
OK, with all due respect, we did what?

[00:06:31] Speaker 01:
As it relates to ex parte young, where in the district court did you raise that theory?

[00:06:37] Speaker 04:
I can't speak to that specifically right now, Your Honor.

[00:06:40] Speaker 01:
All right, then let's try the appellate brief.

[00:06:42] Speaker 01:
Where on appeal have you made an argument that grapples with the district court's rationale that there may be a waiver of sovereign immunity by virtue of litigation conduct, but that doesn't waive sovereign immunity for an assessment of damages?

[00:06:57] Speaker 01:
Where is that argument grappled with?

[00:06:59] Speaker 01:
And that was the theory the district court articulated below.

[00:07:03] Speaker 04:
Well, perhaps we understood that indicating that we were not seeking money damages and that this is an ongoing violation, including current and prospective, we did not need to get into the issue of the waiver of money damages.

[00:07:19] Speaker 01:
And so are you saying you didn't do it?

[00:07:22] Speaker 04:
I can't say for certain that we didn't.

[00:07:24] Speaker 04:
I would have to check the record again.

[00:07:26] Speaker 01:
All right.

[00:07:33] Speaker 04:
So with respect to our argument, we've laid out and indicated that there are three laws that were passed by the state of Oklahoma, each of which violates the promise that the state made in Part 11A of the Compact, the exclusivity provision.

[00:07:55] Speaker 03:
Council, is the tribe's position that the Compact is unambiguous or ambiguous?

[00:08:02] Speaker 04:
We contend that it is unambiguous.

[00:08:04] Speaker 04:
We contend that a correct reading of the first sentence and understanding the purpose of it renders the second sentence unambiguous as well.

[00:08:16] Speaker 03:
So how are we to receive your reliance on extrinsic evidence on appeal?

[00:08:24] Speaker 04:
Well, if you were to determine that it is not unambiguous, we would submit that those extraneous materials would be supportive of the need to send the case back to the district court for additional findings associated with that ambiguity.

[00:08:43] Speaker 02:
Both sides said it was unambiguous.

[00:08:47] Speaker 02:
And occasionally we say, yeah, this seems to be ironic that both would say it's unambiguous.

[00:08:52] Speaker 02:
come to opposite conclusions.

[00:08:54] Speaker 02:
But I think there's a fairly strong argument here that it might be ambiguous.

[00:09:05] Speaker 02:
And yet nobody challenges that.

[00:09:08] Speaker 02:
Could we, on our own say, even though that, whether it's ambiguous or not, has not been directly presented by a challenge, we conclude it is, and therefore remand?

[00:09:19] Speaker 04:
We believe, in fact, you could.

[00:09:20] Speaker 04:
But we also believe that because we're appealing the grant of summary judgment to the state, that inferences are to be viewed in our favor.

[00:09:29] Speaker 04:
And the determination of whether the law was applied properly is de novo, of course.

[00:09:37] Speaker 02:
Would there be additional evidence available?

[00:09:40] Speaker 02:
I mean, have you suggested what other evidence you might present as to the meaning of

[00:09:47] Speaker 02:
additional expansion of gambling rights to the casinos?

[00:09:54] Speaker 04:
Well, in the record, there are letters from Governor Brad Henry.

[00:09:59] Speaker 04:
There is a letter from the Department of Interior who reviewed the submission of the compact at the time.

[00:10:06] Speaker 04:
We believe without

[00:10:08] Speaker 04:
If we reach the point where you determine that it is ambiguous, we believe there are a number of witnesses that we could call and information that we could present that would clarify that.

[00:10:23] Speaker 04:
And the reason we say that this is not ambiguous is because if you understand that this is a compact under the Indie Gaming Regulatory Act, it's a specific purpose for its existence,

[00:10:37] Speaker 04:
that the federal law specifically says that states cannot tax tribes and that there is a two-part determination that has been developed by the Department of Interior with regard to whether or not a payment to the state is a tax or not, whether there has been a meaningful concession by the state and whether there's a substantial economic benefit to the tribe.

[00:11:00] Speaker 04:
That first sentence of 11A speaks specifically to that.

[00:11:05] Speaker 04:
Every party that was negotiating this agreement in the document itself made clear this was going to be submitted to the Department of Interior where they would do an analysis to determine whether or not these payments authorized by 11A would be permissible.

[00:11:20] Speaker 04:
And so without reconstructing the first sentence,

[00:11:24] Speaker 04:
as the district court has done, and giving meaning to every word there, you have two parts to that first sentence.

[00:11:31] Speaker 04:
The first one is a meaningful concession, the substantial exclusivity that the tribes are supposed to be entitled to receive under this compact.

[00:11:40] Speaker 04:
And the second one is a substantial economic benefit, which is specifically identified as the opportunity to play covered games.

[00:11:49] Speaker 04:
So when you get into the second sentence and it says,

[00:11:53] Speaker 04:
in consideration thereof.

[00:11:56] Speaker 04:
That's a specific reference to both parties speaking to the Department of Interior and saying, we believe we have met the two-part determination that you will consider when this is submitted back to you for approval of these payments, which is part of a determination of whether to approve or not the compact.

[00:12:16] Speaker 03:
And that you contend is unambiguous.

[00:12:18] Speaker 04:
That is unambiguous.

[00:12:19] Speaker 04:
And there's a letter from the Department of Interior in the record approving

[00:12:24] Speaker 04:
the tribe's compact, which in great length says they've approved over 200 compacts, they review them carefully, and they review them carefully applying that specific test to payments.

[00:12:36] Speaker 01:
Well, going to Judge Rosman's question, though, I mean, if we take the premise of both parties, apparently the operating premise that this compact is unambiguous, 11A is unambiguous,

[00:12:48] Speaker 01:
All of this other stuff, why is that even appropriate to consider?

[00:12:52] Speaker 01:
I mean, generally when a court undertakes analysis of an unambiguous passage or determines whether it is unambiguous, it looks at the language itself.

[00:13:03] Speaker 01:
I mean, the language itself, its context within the broader document, the compact, those sorts of things.

[00:13:09] Speaker 01:
It doesn't look at letters from Brad Henry.

[00:13:12] Speaker 01:
I mean, so why would we do that now?

[00:13:15] Speaker 01:
I mean, if you're,

[00:13:17] Speaker 01:
contention out the gate is that this contract is unambiguous, why shouldn't we just take it straight up on the language and determine whether it's unambiguous or not?

[00:13:28] Speaker 04:
Well, to be clear, maybe I misunderstood the question, but I think I was asked whether if this was determined to be ambiguous, what would we submit?

[00:13:38] Speaker 04:
Are there things that we could submit at the district court?

[00:13:40] Speaker 04:
And so I was answering that question.

[00:13:42] Speaker 01:
Okay.

[00:13:42] Speaker 01:
Well, please answer my question now.

[00:13:44] Speaker 01:
My question now is,

[00:13:45] Speaker 01:
If the contract is unambiguous, all of this other stuff, including the letter from Brad Henry, it is not within the scope of the analysis, is it?

[00:13:55] Speaker 04:
It is not if it's unambiguous.

[00:13:57] Speaker 04:
And we say that it is not ambiguous, because if you give reading to every word in 11A, and you understand even within the framework of the compact itself, where it refers several times to the document being submitted to the Department of Interior,

[00:14:13] Speaker 04:
And if you recognize that the genesis of compacts like this and the goal associated with them is the Indian Gaming Regulatory Act, it's very clear what the purpose is here.

[00:14:25] Speaker 04:
And the purpose is to protect tribes, to protect their revenue so that they can be applied to their tribal governments, build strong tribal government, build their communities.

[00:14:35] Speaker 04:
The direction that the district court took with this and the direction that the state

[00:14:40] Speaker 04:
requests that you take with this, flips that on its head, it leaves to the tribes, not casino style gaming, a limited subset of gaming.

[00:14:52] Speaker 04:
We don't have house bank card games, we don't have

[00:14:55] Speaker 04:
Vegas-style slot machines.

[00:14:57] Speaker 04:
We don't have sports betting.

[00:14:59] Speaker 04:
This is not Las Vegas-style gaming.

[00:15:00] Speaker 04:
It is a subset.

[00:15:02] Speaker 04:
And the district court would leave us in the position where the tribes have a small subset of gaming that they can play.

[00:15:12] Speaker 04:
And the state's in the position that they can enact any gaming that they prefer and have it not violate the provision of 11-8.

[00:15:20] Speaker 04:
and still have the tribes paying to the state.

[00:15:25] Speaker 01:
And let me understand.

[00:15:28] Speaker 01:
I know you took issue with the district court's statement that essentially what's at issue here in this language about additional electronic gaming was covered games.

[00:15:41] Speaker 01:
That's correct.

[00:15:42] Speaker 01:
OK.

[00:15:42] Speaker 01:
Well, and took issue with that based in part on what the first sentence said.

[00:15:48] Speaker 01:
So help me to understand.

[00:15:51] Speaker 01:
This language, it says the compact provides tribes with substantial exclusivity.

[00:15:57] Speaker 01:
Are you saying that that in itself is separate from what comes later where it says consistent with the goals, you can have gaming with respect to covered games?

[00:16:08] Speaker 01:
Those are two separate

[00:16:11] Speaker 01:
Thanks.

[00:16:11] Speaker 04:
That is correct, Your Honor.

[00:16:12] Speaker 04:
And if you look at the grammar associated with it, the punctuation associated, we have an and that separates.

[00:16:20] Speaker 01:
I'm looking at it.

[00:16:22] Speaker 01:
So your point would be the first part is essentially a broader grant of substantial exclusivity.

[00:16:28] Speaker 04:
That is correct.

[00:16:29] Speaker 04:
And the payments to the state cannot be authorized without the Department of Interior finding that there was a meaningful

[00:16:37] Speaker 04:
And the meaningful concession here is substantial exclusivity.

[00:16:41] Speaker 04:
Where is substantial exclusivity laid out?

[00:16:45] Speaker 04:
It's in the second sentence of 11A, which says, so long as the state does not, after this compact, expand gaming, and it's to two groups, organizational licensees who originally were not permitted to operate table games.

[00:17:03] Speaker 04:
And so that first prong speaks to them and table games.

[00:17:07] Speaker 04:
The second prong, which is any additional electronic or machine gaming, speaks to the organizational licensees and anybody else.

[00:17:14] Speaker 01:
Let me ask you briefly.

[00:17:18] Speaker 01:
HB 1836, which relates to the expansion of hours of horse racetracks, I didn't really see an argument there in your brief addressing that.

[00:17:29] Speaker 04:
Well, our argument goes to the issue that any additional electronic gaming, and I believe we did make this argument, any additional electronic gaming is not the equivalent of new games.

[00:17:42] Speaker 04:
And this, again, is from the construct of the Indian Gaming Regulatory Act, the federal law.

[00:17:48] Speaker 04:
It's not the Indian Games Regulatory Act.

[00:17:50] Speaker 04:
It sets up three different standards for games.

[00:17:53] Speaker 04:
Class 1 gaming, which has a number of games.

[00:17:57] Speaker 01:
And I apologize.

[00:17:58] Speaker 01:
Let me try to narrow the focus of the question.

[00:18:00] Speaker 01:
The question is, the allegation, as I understand it, is by expanding the hours of horse racetracks, they violated this compact.

[00:18:10] Speaker 01:
And what the state did, and the district court rejected such a contention.

[00:18:15] Speaker 01:
What I'm saying is I didn't really see your argument on appeal as engaging with that rejection.

[00:18:25] Speaker 01:
Am I wrong?

[00:18:26] Speaker 04:
Again, I cannot speak to a specific page number, but I believe we made that point.

[00:18:31] Speaker 04:
The confusion may lie in the district court's analysis, where they looked only with respect to horse racing to the specific organizational licensee language in the second sentence.

[00:18:45] Speaker 04:
Horse racing is also subject to any additional electronic or machine gaming limitation as well.

[00:18:52] Speaker 04:
So additional hours is additional gaming.

[00:18:55] Speaker 03:
The district court didn't get there, though.

[00:18:58] Speaker 04:
No, they did not.

[00:19:00] Speaker 04:
They stopped at organizational licensee language thinking that that was the only thing speaking to that particular issue.

[00:19:06] Speaker 01:
All right.

[00:19:07] Speaker 04:
And we disagree with that.

[00:19:09] Speaker 01:
OK.

[00:19:10] Speaker 01:
I understand.

[00:19:11] Speaker 01:
Thank you, counsel.

[00:19:12] Speaker 01:
We'll hear from the other side now.

[00:19:14] Speaker 01:
Thank you.

[00:19:15] Speaker 01:
was quite liberal with your opposing counsel on time.

[00:19:23] Speaker 01:
We don't need to make it up, but we will take into consideration the same liberal approach.

[00:19:29] Speaker 01:
Please proceed, make your appearance, and proceed, counsel.

[00:19:32] Speaker 00:
Thank you, your honor, and may it please the court.

[00:19:36] Speaker 00:
My name is Gary Gaskins.

[00:19:38] Speaker 00:
I, along with my co-counsel, Kyle Peppler, represent the Oklahoma Governor J. Kevin Stitt.

[00:19:45] Speaker 00:
Before diving into the merits, there are threshold issues of Article III standing and jurisdiction that need to be addressed.

[00:19:54] Speaker 00:
First, there is no Article III standing by the tribe to sue the governor consistent with ex parte young.

[00:20:02] Speaker 00:
Thus, there is no subject matter jurisdiction over this dispute.

[00:20:07] Speaker 00:
Specifically, there is no casual connection between the governor's responsibilities and any injury that the tribe may suffer.

[00:20:15] Speaker 02:
The governor, I mean, you said, well, the governor doesn't manage casinos, but to me that was not the issue.

[00:20:25] Speaker 02:
The issue is, did the government, did the governor have administrative responsibilities over this compact?

[00:20:33] Speaker 02:
And the answer I assume would be yes.

[00:20:34] Speaker 00:
He does not.

[00:20:35] Speaker 00:
Who does?

[00:20:37] Speaker 00:
Under Oklahoma law, specifically Oklahoma Title 74, Section 1223,

[00:20:44] Speaker 00:
the Oklahoma State Bureau of Investigation, and not the governor, is expressly identified as, quote, the agency responsible on behalf of the state for monitoring and oversight for compacts related to Indian games.

[00:21:01] Speaker 02:
What's the government branch again?

[00:21:04] Speaker 00:
That's the Oklahoma State Bureau of Investigation, also known as the OSPI.

[00:21:08] Speaker 00:
Oklahoma Bureau of Investigation?

[00:21:10] Speaker 00:
Yeah, similar to the Oklahoma's version of the FBI.

[00:21:14] Speaker 00:
And in that OSBI, there is a gaming compliance unit as part of that.

[00:21:21] Speaker 02:
But was that, I mean, it's odd to give kind of a supervisory responsibility to the FBI or the equivalent of an FBI.

[00:21:30] Speaker 02:
You would give them jurisdiction over individual offenses there if somebody individually broke some law.

[00:21:38] Speaker 02:
But it would be odd to think that you would give them administrative oversight.

[00:21:43] Speaker 00:
Sure.

[00:21:43] Speaker 00:
And the second part is, is there's another agency that's discussed in the compact.

[00:21:48] Speaker 00:
And that's in part three, section 25.

[00:21:51] Speaker 00:
There is a defined term for, quote, state compliance agency.

[00:21:56] Speaker 00:
And the state compliance agency is defined as meaning the state agency that has authority to carry out the state's oversight responsibilities under this compact, which shall be the Office of State Finance

[00:22:12] Speaker 00:
or a successor agency.

[00:22:15] Speaker 00:
And in 2012, Oklahoma changes its law to make the Office of Management and Enterprise Services, also known as OMES, as the successor agency to the Oklahoma Office of State Finance.

[00:22:29] Speaker 02:
Office of Management and State Services?

[00:22:34] Speaker 00:
Office of Management and Enterprise Services.

[00:22:37] Speaker 03:
So if we agree with you that the governor himself is not a proper party, why isn't the state a proper party?

[00:22:44] Speaker 00:
Well, because the only way that we can even get there is to go through ex parte young.

[00:22:49] Speaker 00:
The state has sovereign immunity.

[00:22:52] Speaker 00:
And the only way that they can have this sort of declaratory judgment that they're seeking would be to have a declaratory judgment against the state officer that is in charge of

[00:23:04] Speaker 00:
of administering whatever that they are complaining about.

[00:23:07] Speaker 03:
What about the litigation behavior of the state's lawyers?

[00:23:11] Speaker 03:
I mean, your answer read, Oklahoma constitutes the real party in interest.

[00:23:16] Speaker 03:
And the answer was filed by governor's counsel, not the AG's office.

[00:23:21] Speaker 03:
But I thought in Oklahoma, any lawyer authorized to represent the state can waive the state's immunity.

[00:23:27] Speaker 00:
Sure.

[00:23:27] Speaker 00:
I think that there's two different tax.

[00:23:30] Speaker 00:
Ex parte Yung has

[00:23:32] Speaker 00:
two elements to it.

[00:23:33] Speaker 00:
You've got the Article III standing issue, and then you also have this constitutional defense of sovereign immunity.

[00:23:43] Speaker 00:
And I think what we're focused on here is the Article III standing, as we're talking right now.

[00:23:48] Speaker 00:
And Article III standing is a prerequisite to subject matter jurisdiction, and that can never be waived.

[00:23:55] Speaker 01:
And if we're talking about declaratory relief and the question of whether the state

[00:24:00] Speaker 01:
is a party, if you sue Governor Stitt in his official capacity and he represents the state, and if a declaratory relief, if the test is the declaratory relief has the capacity to affect the actions of the defendants, why wouldn't the declaratory relief here have the capacity to affect the actions of the defendants?

[00:24:26] Speaker 01:
I'm not talking about injunctive relief.

[00:24:28] Speaker 01:
I'm not talking about whether that's on the table.

[00:24:30] Speaker 01:
I'm talking about declaratory relief only.

[00:24:33] Speaker 01:
Why isn't it enough that any declaratory relief here could have the capacity to affect the actions of Oklahoma state officials?

[00:24:43] Speaker 00:
Well, I would point out that this court in the Henderson v. AFSCME Council 18 case that's cited in our brief from 2021

[00:24:53] Speaker 00:
And then the Bishop v. Oklahoma case that's cited in the Hendrickson case, even though that's an unpublished decision, those cases both involved governors that were sued.

[00:25:04] Speaker 00:
And this court held that there was no Article III standing to sue the governors in those situations.

[00:25:13] Speaker 01:
And I thought in those, certainly in Bishop, I thought we were talking about injunctive relief.

[00:25:20] Speaker 00:
Well, a declaration that the state must take some sort of action.

[00:25:25] Speaker 00:
No, no, no, no.

[00:25:26] Speaker 01:
What I understand to be at play here is a declaration that what the state has done violates this compact.

[00:25:34] Speaker 00:
So under Ex parte Young, though, Ex parte Young, the court can only grant prospectively.

[00:25:41] Speaker 00:
But I think the district court pointed that out in its order.

[00:25:44] Speaker 01:
That's right.

[00:25:45] Speaker 01:
But Ex parte Young, as I generally conceive of it, relates to

[00:25:50] Speaker 01:
having that state official who act to control the violation, the ongoing violation of federal law.

[00:25:59] Speaker 01:
As I said, I'm not talking about adjunctive relief here.

[00:26:03] Speaker 01:
I'm talking about whether they have the capacity to say that there has been a violation here, okay?

[00:26:11] Speaker 01:
I'm making a declaratory statement that there is, you know, it's an ongoing violation.

[00:26:15] Speaker 01:
There's a violation of the compact.

[00:26:17] Speaker 01:
And that's it.

[00:26:18] Speaker 01:
And so the point is,

[00:26:19] Speaker 01:
If you're judging whether that is a viable claim, in other words, whether it meets case or controversy standards, isn't it enough that it has the capacity to cause state officials to conform their conduct to the declaration?

[00:26:38] Speaker 00:
I still believe under Article 3 standing, you have to name the official that is responsible.

[00:26:44] Speaker 00:
There's not an actual case or controversy.

[00:26:47] Speaker 01:
Why in this instance?

[00:26:50] Speaker 01:
Is the governor involved in the negotiation of the compact?

[00:26:56] Speaker 00:
Under the statute, it said that the governor was, I think, currently in Oklahoma.

[00:27:01] Speaker 00:
I think the legislature has taken over that responsibility from the governor.

[00:27:06] Speaker 00:
So he is referenced in the compact as being someone that was part of the negotiations.

[00:27:12] Speaker 01:
Okay.

[00:27:12] Speaker 01:
All right.

[00:27:13] Speaker 01:
So you have this compact that the governor has his fingerprints on in some way.

[00:27:17] Speaker 01:
The question would be,

[00:27:19] Speaker 01:
if there is a declaration and that declaration runs to the state of Oklahoma, okay?

[00:27:24] Speaker 01:
The point I'm making is why isn't the governor, if he's sued in his official capacity, the equivalent of the state of Oklahoma?

[00:27:31] Speaker 00:
I think that that's the situation in every one of these ex parte young cases.

[00:27:35] Speaker 00:
Every time you sue in their official capacity, it's the equivalent of suing the state.

[00:27:40] Speaker 00:
And the state has suffered immunity from suit.

[00:27:44] Speaker 01:
Experts at Young, you sue the state official because the state official has the capacity to act on the ongoing violation of federal law, right?

[00:27:54] Speaker 00:
Correct.

[00:27:54] Speaker 01:
Okay.

[00:27:55] Speaker 01:
Well, in this instance, why isn't suing Governor Stitt in his official capacity?

[00:28:06] Speaker 01:
You have a sovereign immunity issue, but you're here.

[00:28:09] Speaker 01:
So the question is, I mean, I think the result is that as a

[00:28:13] Speaker 01:
by virtue of participating in this litigation, you've waived any sovereign immunity as it relates to being in this case, which is different than, as the district court pointed out, different than the question of whether you accept damages liability.

[00:28:28] Speaker 01:
But why isn't the fact that you're standing here now a notion that the state of Oklahoma could be bound by a declaratory judgment telling its officers to do something?

[00:28:42] Speaker 00:
I would disagree on the sovereign immunity.

[00:28:44] Speaker 00:
The only sovereign immunity that has been waived was the original claim where there was a dispute as to whether these compacts were automatically renewed.

[00:28:56] Speaker 00:
This is a separate claim that was only brought by the Wichita tribe.

[00:29:00] Speaker 00:
At no point has the state ever waived sovereign immunity.

[00:29:03] Speaker 02:
But the governor in this case has been arguing for some interpretive advice from the court.

[00:29:12] Speaker 02:
and has been seeking some affirmative relief.

[00:29:15] Speaker 00:
Right.

[00:29:16] Speaker 00:
From the very beginning, the governor has, in his motion for summary judgment, he has pointed out that he is not the proper party for the Wichita and affiliated tribes to suit.

[00:29:28] Speaker 00:
That has been preserved from the beginning.

[00:29:30] Speaker 03:
So how are we supposed to understand the governor's answer that reads Oklahoma is the real party in interest and Oklahoma law

[00:29:40] Speaker 03:
74 Oklahoma statute, section six, that says, Oklahoma law empowers the governor to employ counsel to protect the rights or interests of the state, so on and so forth, in any proceeding in which the state is interested or a party.

[00:29:55] Speaker 03:
So your lawyers, the governor's lawyers for the state, participated.

[00:29:59] Speaker 03:
And putting those pieces together, it seems that the state has now, wait, what am I missing?

[00:30:09] Speaker 00:
Well, I think what is being missed is that there's nothing that the governor himself can do to remedy this situation.

[00:30:19] Speaker 00:
So there's not a case in controversy as it relates to the governor.

[00:30:22] Speaker 03:
But if the governor is out, is the state just out automatically?

[00:30:25] Speaker 03:
Isn't the state a proper defendant, even if the governor is not a proper defendant?

[00:30:29] Speaker 00:
The state enjoys sovereign immunity, which it has not waived, and the state has raised sovereign immunity in its motion for summary judgment.

[00:30:36] Speaker 00:
And again, I think the

[00:30:38] Speaker 00:
the declaration would only be for some sort of prospective relief, which would be what would be required under Ex Parte Young.

[00:30:47] Speaker 02:
But that is, in fact, what we're talking about, prospective Ex Parte Young relief.

[00:30:55] Speaker 00:
So from what I've heard today, I guess, first of all, we've got two parties.

[00:31:01] Speaker 00:
We've got two entities.

[00:31:03] Speaker 00:
You've got the Lottery Commission, which is a state entity, right?

[00:31:06] Speaker 00:
So they want to get a declaration that

[00:31:09] Speaker 00:
the lottery by, you know, spending lottery in some form or fashion owes the tribe liquidated damages, right?

[00:31:17] Speaker 00:
So the state of Oklahoma through the lottery commission would be entitled to sovereign.

[00:31:21] Speaker 02:
They have not sued the lottery.

[00:31:23] Speaker 02:
Right.

[00:31:23] Speaker 02:
Well, what they are wanting a declaration is that the state has an obligation to collect money from the lottery.

[00:31:31] Speaker 02:
So they're trying to get the state to

[00:31:34] Speaker 02:
affirmatively do something, but not a monetary response.

[00:31:37] Speaker 00:
But the lottery is the state of Oklahoma.

[00:31:39] Speaker 00:
The Oklahoma Lottery Commission is an instrumentality of the state of Oklahoma.

[00:31:43] Speaker 00:
So, I mean, that is the instrumentality.

[00:31:46] Speaker 02:
And the governor, then, the governor, though, has no administrative responsibility over the lottery at all, you said?

[00:31:53] Speaker 00:
Correct.

[00:31:53] Speaker 00:
His only limited responsibility would be to, I think he had appoint five of the seven individuals on the Lottery Commission.

[00:32:04] Speaker 00:
Those are still subject to Senate confirmation, so it's not him that would be the one that would be acting.

[00:32:08] Speaker 02:
Does he have any power to remove them or to instruct them to do something?

[00:32:12] Speaker 00:
I believe he may have the power to remove them, but he would then have to get someone that would follow his guidance that would also be confirmed by the Senate.

[00:32:23] Speaker 00:
So I don't think that he would actually have control of them.

[00:32:26] Speaker 00:
You would still have to get this by the Oklahoma Senate.

[00:32:29] Speaker 01:
Help me with this sort of fundamental issue here.

[00:32:32] Speaker 01:
It seems to me when I conceive of ex parte young, what I conceive of is a situation where, yes, you could have a standing problem if you sued an official who did not have authority to essentially rectify an ongoing violation of federal law as it relates to, I seek injunctive relief.

[00:32:55] Speaker 01:
I want you to do something about this.

[00:32:58] Speaker 01:
And therefore, if I sue the wrong person, obviously that person doesn't have the ability to fix it.

[00:33:05] Speaker 01:
Why isn't it the case that the governor, when sued in his official capacity, is the state of Oklahoma?

[00:33:17] Speaker 01:
And I'm not talking about injunctive relief.

[00:33:19] Speaker 01:
If the declaration says,

[00:33:22] Speaker 01:
that the state of Oklahoma has been committing an ongoing violation of federal law by virtue of, or the compact, by virtue of violating this compact, by virtue of its practices in extending these additional, you know, the provisions that are at issue here.

[00:33:39] Speaker 01:
Why isn't that, they're a basis for standing because, and why isn't that a case or controversy?

[00:33:46] Speaker 01:
Because such a declaration has the power to conform

[00:33:52] Speaker 01:
the conduct of the defendants.

[00:33:53] Speaker 01:
And I'm not saying that the governor himself can rectify it.

[00:34:00] Speaker 01:
I am saying that the state of Oklahoma officers can rectify it based upon a declaration.

[00:34:07] Speaker 01:
They wouldn't have an injunction requiring them to do X, Y, and Z, but based upon the declaration, they could rectify it.

[00:34:13] Speaker 00:
I think if we were to accept that premise, then I think the Hendrickson case

[00:34:21] Speaker 00:
would have to be overruled.

[00:34:22] Speaker 00:
I think the Bishop v. Oklahoma case would have to be overruled.

[00:34:25] Speaker 01:
There was injunctive relief in Bishop v. Oklahoma.

[00:34:28] Speaker 01:
They wanted somebody to do something.

[00:34:31] Speaker 00:
Right.

[00:34:32] Speaker 00:
But I guess the declaration would only be, would have a force of effect by, it would function be enjoining the state from enforcing the Defense of Marriage Act.

[00:34:44] Speaker 00:
It would be declaring that that's unconstitutional.

[00:34:47] Speaker 00:
I think that that would be

[00:34:49] Speaker 00:
Yeah, the court's premise would overrule Hendrickson and Bishop and say that you can just sue any sort of state official regardless of their connection to the controversy.

[00:35:04] Speaker 00:
And because when you sue a state official, it's automatically the same as suing the state, that there would be no limits of that.

[00:35:14] Speaker 00:
Postulate what would happen.

[00:35:17] Speaker 02:
We said that we're going to grant a declaratory explanation of this compact.

[00:35:26] Speaker 02:
And it's going to say that under the facts that have been found, the state of Oklahoma has the obligation to require the casinos to make additional payments that they would then remit to the tribe.

[00:35:43] Speaker 02:
If that happened, what?

[00:35:45] Speaker 02:
assumed that was now a legal declaration.

[00:35:48] Speaker 02:
What would Oklahoma do with that?

[00:35:49] Speaker 02:
What would Oklahoma be legally obligated to do?

[00:35:52] Speaker 00:
Sure.

[00:35:53] Speaker 00:
Well, I think the only two casinos we're talking about, I guess, are casinos that are racetracks that are owned by other tracks.

[00:36:00] Speaker 02:
Yeah.

[00:36:00] Speaker 00:
Within the 50 miles or whatever that race is.

[00:36:02] Speaker 00:
Right.

[00:36:02] Speaker 00:
And there are no racetracks within 50 miles of the subject casino.

[00:36:08] Speaker 00:
But let's even assume that there was one within the casino.

[00:36:10] Speaker 02:
But the casinos can bet on racetracks now, on racing.

[00:36:14] Speaker 00:
I think that's not an issue before the court today.

[00:36:18] Speaker 00:
I think the issue here is the expansion of the hours at the casinos at the horse racetracks.

[00:36:24] Speaker 02:
OK, all right.

[00:36:25] Speaker 00:
So it's not the racetracks, but it's the casinos, what they would do here.

[00:36:28] Speaker 00:
And those casinos are owned by Indian tribes themselves.

[00:36:33] Speaker 00:
The state would have another sovereign immunity problem in addition to what we've already identified.

[00:36:40] Speaker 00:
We would not be able to go to the Chickasaw that own the casino or own the racetrack in Oklahoma City.

[00:36:48] Speaker 00:
We would have no method to recover anything from them.

[00:36:51] Speaker 00:
The Cherokees own the racetrack in Tulsa.

[00:36:54] Speaker 00:
We wouldn't have any mechanism to get money damages against them.

[00:36:58] Speaker 01:
Well, as I'm sorry.

[00:37:00] Speaker 02:
Well, no, I mean, that presents a whole new

[00:37:03] Speaker 02:
issue, I want to hear what Chief Judge Holmes has to ask.

[00:37:08] Speaker 02:
So I'm going to just let you go ahead.

[00:37:10] Speaker 02:
But I mean, I'm just mulling that one over.

[00:37:13] Speaker 02:
I don't find that a very reposable answer.

[00:37:17] Speaker 01:
What I understood this line of questioning of Judge Ebel to get to is 11E.

[00:37:23] Speaker 01:
What I'm talking about is let's play out the same scenario as it relates to 11A.

[00:37:28] Speaker 01:
If we were to issue a declaration saying that

[00:37:33] Speaker 01:
These three things that Oklahoma has done, you know, SQ 792, I think it is, or yeah, 792, all of these three provisions, if one or one, at least one of them, okay, but maybe all three are violative, well, they constitute additional electronic or machine gaming, that would be the declaration.

[00:38:00] Speaker 01:
They constitute additional electronic machine gaming.

[00:38:05] Speaker 01:
We don't enjoin anybody to do anything.

[00:38:07] Speaker 01:
We just say, that's what it is, and you go forward, state of Oklahoma, and address that.

[00:38:15] Speaker 01:
Why couldn't we do that?

[00:38:16] Speaker 01:
Because it's clear that Oklahoma officers would then know

[00:38:21] Speaker 01:
And there would be a federal declaration that what they did in these three provisions constitute additional electronic gaming.

[00:38:29] Speaker 01:
Presumably, this tribe would turn around since that decision was issued and say, well, you need to act accordingly.

[00:38:36] Speaker 01:
But we wouldn't have enjoined them.

[00:38:38] Speaker 01:
That would be an effect of the declaration.

[00:38:43] Speaker 02:
It might have to be followed up with the tribe bringing a second suit.

[00:38:46] Speaker 02:
Exactly.

[00:38:47] Speaker 02:
But it would be a

[00:38:49] Speaker 02:
it would have a legal effect, it would establish a legal precedent or a foundation for a second suit, it would look very different had we not made that declaration.

[00:38:59] Speaker 01:
That sounds to be as if that's an advisory opinion.

[00:39:02] Speaker 01:
And that's what I want to get to.

[00:39:04] Speaker 01:
I mean, a case called Jordan versus Sosa, I know it because I wrote it, explicitly talks about the notion that what makes a declaration not an advisory opinion is it because it has

[00:39:18] Speaker 01:
the ability to impact the conduct of the defendant.

[00:39:22] Speaker 01:
Okay, it has the ability.

[00:39:24] Speaker 01:
And if you take a logical, and maybe I'm wrong, that's why I'm asking you for your help.

[00:39:30] Speaker 01:
If you do two logical steps here, and you say, Governor Stitt is Oklahoma.

[00:39:37] Speaker 01:
Second, we issue a declaration that has the capacity to affect

[00:39:44] Speaker 01:
the conduct of Oklahoma officers.

[00:39:48] Speaker 01:
Note, Governor Stitt is Oklahoma.

[00:39:51] Speaker 01:
Why isn't that not a declaratory, I mean, an advisory opinion?

[00:39:56] Speaker 01:
Because consistent with what Judge Yipa was saying, yeah, maybe there'll be a second suit, but Oklahoma would have been on notice, the defendants, that what they're doing and what has been done, and therefore what continues to go on, is additional electronic gaming.

[00:40:15] Speaker 00:
I think one of the problems we have, as we sit here today, is the tribe didn't make those arguments.

[00:40:22] Speaker 00:
So I think as the court, the part of questioning, those arguments were not made.

[00:40:26] Speaker 01:
Yeah, but these are jurisdiction arguments which you're quick to bring to us, and therefore we have an independent obligation to deal with.

[00:40:32] Speaker 00:
And I would point out that there was one claim that the tribe did not appeal, and that was related to the governor's continuing violation of the compacts.

[00:40:41] Speaker 00:
And the district court there did weigh those factors.

[00:40:44] Speaker 00:
that the court just mentioned and declined to grant a declaratory judgment.

[00:40:50] Speaker 00:
So that was not even, that was not something that was brought to the district court's attention.

[00:40:55] Speaker 00:
There was no discussion of those factors.

[00:40:58] Speaker 00:
The tribe, which would have the burden of showing this court that there is subject matter jurisdiction, did not bring those issues to the court's attention.

[00:41:10] Speaker 00:
Now, I'm happy to answer any questions of the merits.

[00:41:13] Speaker 00:
I know we've only talked about subject matter jurisdiction, and I'm way over my time.

[00:41:16] Speaker 01:
I was looking to my colleagues.

[00:41:18] Speaker 01:
I don't feel compelled to hear anything on the merits unless anyone has a question.

[00:41:24] Speaker 01:
All right.

[00:41:24] Speaker 01:
Thank you.

[00:41:25] Speaker 01:
Case is submitted.