The move comes after Attorney General Gentner Drummond interceded in the case of a Choctaw citizen cited for hunting without a state license on the Choctaw Nation's reservation. Drummond vowed to drop similar cases, blaming Stitt for not his unwillingness to compact with tribes on wildlife management.
In a news release, Stitt blasted Drummond and announced Russ Cochran will take on prosecutorial duties against tribal members who hunt or fish without state licenses. He's the former Assistant District Attorney for Lincoln and Pottawattamie Counties and former General Counsel for the Oklahoma Bureau of Narcotics.
"State and federal courts have been clear. The State of Oklahoma can prosecute Indians who commit non-major crimes in our state," Stitt said in a statement. "I will not stand by and allow lawless Drummond to undermine district attorneys who are prosecuting crimes and keeping Oklahomans safe."
Stitt said Cochran would prosecute Indigenous people hunting without a license issued by Oklahoma's Department of Wildlife Conservation (ODWC).
How did we get here?
The ODWC announced in October its game wardens would be ticketing tribal citizens who hunt or fish on reservations without state permits.
At the time, ODWC spokesperson Micah Holmes said the department sought to provide clarification in light of two recent court decisions involving jurisdiction in Indian Country: Stroble v. Oklahoma Tax Commission and Stitt v. Tulsa.
The Stroble case asked whether Muscogee Nation citizen, employee and resident Alicia Stroble was exempt from state income tax. Ultimately, the Oklahoma Supreme Court determined that only tribe-owned trust land meets the legal definition of "Indian Country," not entire reservations.
The U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma affirmed tribes have jurisdiction to prosecute tribal citizens for major crimes on reservations.
In October, Holmes said hunting and fishing without a license isn't under the Major Crimes Act, so McGirt doesn't necessarily apply. He said Stroble seemed more relevant.
"If you don't have a hunting or fishing license, that's a misdemeanor," Holmes said. "It's not a major crime. It's not a felony. It is just a state issued citation."
He said tribal citizens need state-issued hunting and fishing licenses if they plan to hunt or fish outside of trust land, even if they do so within reservation boundaries.
Drummond's office took a different tack.
In addition to dismissing the case involving the Choctaw hunter, he also issued a letter to the state's wildlife agency, instructing game wardens to cease ticketing tribal citizens on reservations.
In early November, Drummond wrote an e-mail to Oklahoma Department of Wildlife Conservation Director Wade Free, calling the directive's reliance on Stroble "misguided."
"Succinctly, your assertions are incorrect," he wrote.
Drummond said the Stroble decision only declined to apply McGirt to tax immunities, and "the Oklahoma Supreme Court does not rule on matters of criminal jurisdiction."
He also noted that each of the Five Tribes has a wildlife code specifically developed not to conflict with the state's. The Five Tribes also have a wildlife management agreement that allows each nation's citizens to hunt and fish on all five reservations.
"Aside from an apparent misreading of the Oklahoma Supreme Court's Stroble ruling, it is unclear what has occurred that necessitated an aggressive shift in ODWC's law enforcement policy," Drummond wrote.
Cochran appointed as special prosecutor, following a different appointee's resignation
Cherokee Nation citizen and tribal judge Robert Gifford said it makes sense for Stitt to appoint a retired career prosecutor like Cochran.
"He knows what he's doing, is very experienced and highly respected," Gifford said. "He'd be the the number one candidate for such a position to be appointed by the governor, because the governor can't appoint a [district attorney]…He has to appoint an individual who's no longer under the authority of the attorney general."
Court documents show Stitt initially chose District Attorney Melissa Handke as special prosecutor, appointing her on Nov. 7. She turned down the job five days later, saying she wanted to keep her role as DA for five counties in southern Oklahoma.
Cochran doesn't have an ongoing role under the attorney general, freeing him up to act as special prosecutor. But Gifford said special prosecutors are normally appointed when the standard prosecutor can't participate due to a conflict of interest. Since Drummond is lawfully tasked with overseeing these cases, it's unclear how Cochran's authority will overlap with his.
"The question will be, can a special prosecutor do criminal cases in an Oklahoma court, in which the lead prosecutor in this state is the attorney general?" Gifford said. "I would imagine that the attorney general will probably challenge it."
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