APRIL 2025 | 33 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. time the Oklahoma Constitution was adopted” against legislative diminishment.25 The ability to employ special counsel is one such preserved power, existing even in the absence of explicit statutory authorization.26 By employing special counsel, the governor can fulfill their constitutional duty to ensure the laws of the state are faithfully executed even when, in the judgment of the governor, the officials typically responsible for their enforcement fail to faithfully perform their duties.27 While the governor’s litigation powers have existed since statehood,28 the attorney general’s authority in this realm is a relatively recent development. At the time the constitution was adopted, the attorney general was limited to only representing the state in appeals before the Supreme Court or the Court of Criminal Appeals.29 Although the attorney general could initiate trial court-level suits with the governor’s approval, this authorization merely granted the attorney general “concurrent” rather than “exclusive” power and did not operate “to relieve or to disqualify or to take away” the powers of other relevant officials.30 This concurrent authority was altered in 1939 when the Legislature revised the attorney general’s statutory responsibilities.31 Along with designating the attorney general the “chief law officer” of the state for the first time,32 the 1939 amendments empowered the attorney general to “take and assume control” over any litigation involving the state.33 This preclusive authority conferred upon the attorney general “complete dominion over every litigation” involving the state absent “explicit legislative or constitutional expression to the contrary.”34 However, as with the pre-1939 practice, this preclusive authority still required prior authorization from the governor.35 It was not until 1995 that the attorney general gained the statutory power to initiate a lawsuit – or to assume control over an existing one – on their own motion. CHEROKEE NATION V. UNITED STATES DEPARTMENT OF THE INTERIOR The Supreme Court resolved the conflict between the governor’s special counsel powers and the attorney general’s post-1995 statutory authority in Cherokee Nation v. United States Department of the Interior.36 In Cherokee Nation, the governor executed compacts with four tribal governments that purported to permit the compacting tribes to engage in casino operations in Oklahoma.37 Other tribal governments sued the governor in federal court to block the implementation of such compacts.38 The governor appointed special counsel to defend the lawfulness of his actions, but the attorney general, citing his post1995 statutory authority, attempted to oust such special counsel with a view toward confessing error on the part of the governor. The governor objected, arguing his “supreme executive power” prohibited the attorney general from excluding the governor’s involvement in the case. In light of these competing claims, the federal court certified the question of each officer’s authority to represent the state to the state Supreme Court for resolution.39 A unanimous Supreme Court ruled in favor of the governor. The court determined the governor’s “supreme executive power” is “more than a mere verbal adornment.”40 Instead, this investiture “clearly contemplates a hierarchy” within the state’s executive branch “with the Governor at the top.”41 As the “highest in authority” in the executive branch,42 the governor has the “final say” on the enforcement of state law.43 Accordingly, the attorney general’s post-1995 statutory authority cannot “override the Governor’s constitutional role,” with the executive branch’s hierarchy mandating such authority be “subordinate” to the governor’s constitutional prerogative to employ special counsel.44 Although the attorney general is typically responsible for managing state litigation, the governor “has the right to represent the State’s interests” in litigation if their own views contradict those of the attorney general.45 This allows the governor to “concurrently” advocate for the state alongside – or in opposition to – the attorney general and, in so doing, fulfill their constitutional duty to ensure the law is faithfully executed.46 The governor’s unique role as the head of the executive branch, however, does not “nullify the Attorney General’s authority.”47 Instead, both officials “may act independently” to simultaneously “represent such segments of the State’s interest not represented by the [other].”48 CONCLUSION The power-sharing arrangement between the governor and the attorney general recognized in Cherokee Nation aligns with Oklahoma’s founding fathers’ intention to divide governmental power to better secure liberty. While it might be more efficient for one official alone to speak for
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