Attorney General Gentner Drummond gave ODWC until 5 p.m. Monday to rescind policies targeting tribal members hunting and fishing without state licenses on reservations, as well as related pending citations. If department officials don't act, he said, litigation is inevitable. This was all addressed to the state agency's director, Wade Free, in a letter sent on Nov. 13.
To discuss Drummond's letter, the commissioners of ODWC gathered in Oklahoma City on Monday morning to decide whether to enter an executive session; however, they were unable to do so due to a lack of a statutory provision on the agenda.
No official decisions were made during the meeting, but some commissioners expressed frustration.
"Our wardens should avoid making arrests or confiscating property from tribal members until we have been able to secure outside counsel to advise us on these matters," District Seven Commissioner Rich Holder said. "I'm not suggesting that tickets should not be issued for violations; they should. I'm suggesting that arrest and property confiscation should be avoided until we have received further legal counsel."
District One Commissioner, Jess Kane, fired questions at Niki Batt, who is the Chief of Legal Counsel Division and provides representation to state agencies, including ODWC. He interrogated her, questioning whether her representation is a conflict of interest.
"I have always represented the department," Batt said. "I think most of you know me, and I have stated that in the event that litigation does come about, there would be a screening in place, and I would not be in any way involved in any litigation."
Kane disagreed. He suggested her inability to effectively communicate with the department is a clear indication she should not represent them. He read a transcription from a voicemail that she left for Free on Sunday night, warning him that the agenda needed to be updated with the appropriate statutory provision for an executive session to occur.
"If we can't get straight advice out of the Attorney General's office, I don't know how any of us can expect to move forward without effective legal counsel, because it's all in jeopardy," Kane said.
However, not all commissioners wish to seek counsel outside of the attorney general's office.
"As a lawyer, I think we ought to follow our lawyer's advice, which is the Attorney General's advice," Commissioner of District Six, John Zelbst said. " I read the Stroble opinion. I don't think it applies to us in this situation, but the court's going to have to decide that. But I think that we're making a big mistake when we don't follow our lawyer's advice."
He's referencing a recent Oklahoma Supreme Court decision, which 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.
In October, ODWC announced because of the Stroble decision, combined with the absence of tribal hunting compacts, the state would cite hunters who only carried a tribal license.
It is unclear if Drummond will grant the commission an extension to comply. However, Kane argued that commissioners need more time to figure out how to move forward, and he said he wants that time to be spent with a new attorney.
"If the attorney general wants an answer to his questions…we have to have an attorney help us do that," Kane said. "The deadlines that the attorney general made up out of whole cloth were not designed to give us time to respond effectively. They were given when we had no meeting scheduled. They were given when we clearly do not have legal counsel."
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