Can Oklahoma enforce its hunting and fishing laws against tribal members who are hunting or fishing on the Cherokee, Chickasaw, or Choctaw reservations? What about tribal members hunting on a reservation other than their own?

Plain-English summary

After the U.S. Supreme Court's 2020 McGirt v. Oklahoma decision and the subsequent Oklahoma Court of Criminal Appeals decisions confirming that the Cherokee, Chickasaw, and Choctaw reservations were never disestablished, an obvious question arose: Can Oklahoma's hunting and fishing laws still be enforced against tribal citizens who hunt or fish on those reservations?

Representative Chris Kannady asked Attorney General Drummond. The AG's answer, in plain terms:

1. No, Oklahoma cannot enforce the Wildlife Code against tribal citizens hunting or fishing on their own Nation's reservation. Federal law preempts state authority. The U.S. Supreme Court's White Mountain Apache Tribe v. Bracker (1980) and New Mexico v. Mescalero Apache Tribe (1983) framework controls. The Cherokee, Chickasaw, and Choctaw Nations have enacted comprehensive wildlife codes with licensing requirements, seasons, bag limits, and enforcement, and they have entered into deputization agreements with the Oklahoma Department of Wildlife Conservation to enforce those tribal codes. That comprehensive tribal regulation, plus federal trust obligations and the historical treaties (Dancing Rabbit Creek, Doaksville, New Echota), tips the Bracker balance against state jurisdiction.

2. No, Oklahoma cannot enforce the Wildlife Code against citizens of other Five Tribes who are hunting or fishing on a Cherokee, Chickasaw, or Choctaw reservation under the 2024 Five Tribes Wildlife Management Reciprocity Agreement. The Reciprocity Agreement subjects those visiting tribal citizens to the host Nation's wildlife code, so the same comprehensive-tribal-regulation analysis applies. The Agreement strengthens, rather than weakens, the case for federal preemption.

3. Stroble v. Oklahoma Tax Commission (2025) and City of Tulsa v. O'Brien (2024) do not authorize state Wildlife Code enforcement against tribal citizens on reservation. Stroble addressed only state civil tax jurisdiction in a per curiam opinion that did not analyze federal preemption principles. O'Brien applied a Bracker balancing test that, here, comes out in favor of preemption.

The opinion does not address state authority over (a) non-Indians (the State retains that authority because Oliphant bars tribal jurisdiction over non-Indians), (b) tribal citizens not party to the Five Tribes Reciprocity Agreement, or (c) any person hunting or fishing on land owned by the State of Oklahoma within reservation boundaries. The AG also explicitly counters a public misimpression: nothing in this opinion permits illegal practices like spotlighting, which the tribal codes themselves ban.

The AG also took the unusual step of issuing this opinion despite related pending litigation (Cherokee Nation v. Free, N.D. Okla. 2025), explaining that hunting season was underway, the legal framework was already settled, and immediate guidance reduced state liability exposure.

What this means for you

If you are an enrolled member of the Cherokee, Chickasaw, or Choctaw Nation hunting or fishing on your own Nation's reservation

You are subject to your Nation's wildlife code, not Oklahoma's. The state cannot prosecute you for hunting or fishing under tribal authority. Comply with your Nation's licensing, seasons, bag limits, and other requirements. State game wardens cross-deputized to enforce tribal law can still cite you under tribal law and you can still face tribal court enforcement.

You also remain subject to federal wildlife laws like the Migratory Bird Treaty Act and the Endangered Species Act, which the AG opinion does not address.

If you are a citizen of one of the other Five Tribes (Cherokee, Chickasaw, Choctaw, Muscogee Creek, or Seminole) hunting on a Cherokee, Chickasaw, or Choctaw reservation under the 2024 Reciprocity Agreement

The same protection applies. Oklahoma cannot enforce its Wildlife Code against you, but the host Nation's wildlife code does apply. Make sure you are properly licensed under the Reciprocity Agreement and the host Nation's rules.

If you are an enrolled member of a tribe not party to the Five Tribes Reciprocity Agreement

The opinion does not address your situation. Independent legal analysis would be needed. As a starting point: a Bracker balancing analysis would still apply, but your situation might differ if there is no comprehensive cross-tribal regulatory framework analogous to the Reciprocity Agreement.

If you are not a tribal citizen

Oklahoma's Wildlife Code applies to you on reservation lands. Tribes generally cannot exercise criminal jurisdiction over non-Indians (per Oliphant), and the State retains regulatory authority over non-Indians within in-state reservation boundaries. Get your Oklahoma hunting or fishing license; comply with state seasons and bag limits.

If you are an Oklahoma game warden or an ODWC employee

Do not enforce the Wildlife Code against tribal citizens hunting on their own reservation or against Five Tribe citizens hunting under the Reciprocity Agreement on another Five Tribe's reservation. Continued enforcement could expose Oklahoma to civil rights liability. Coordinate with the relevant tribal wildlife department for any enforcement action involving a tribal citizen on reservation land.

The cross-deputization agreements between ODWC and the Nations let you enforce tribal codes against tribal citizens. Use that mechanism. State law continues to apply to non-Indians on reservation lands.

If you find a tribal citizen hunting or fishing on land within reservation boundaries that is owned by the State of Oklahoma (e.g., a state park or wildlife management area), the analysis differs. Footnote 2 of the opinion notes that "[t]he State's interests are likely sufficiently strong on its own land to permit enforcement of the Wildlife Code against any person hunting or fishing there, including Indians."

If you operate a commercial hunting or fishing business

Your business model needs to account for the dual-jurisdictional reality. Tribal citizens you guide on reservation lands are subject to tribal codes; non-Indian clients are subject to state law. If your operation is on reservation land, coordinate with the relevant tribe's wildlife department on permitting, fees, and any commercial-use restrictions.

If you advise the Oklahoma Department of Wildlife Conservation

The opinion is binding on state officials. ODWC should:
- Update field-officer training to reflect the preemption analysis.
- Reaffirm and operationalize the cross-deputization agreements with the Cherokee, Chickasaw, and Choctaw Nations.
- Ensure data-sharing arrangements with tribal wildlife departments continue for population management.
- Develop clear written guidance distinguishing between tribal-citizen and non-tribal-citizen enforcement scenarios.

If you are an Oklahoma legislator

This opinion is not policy; it is the AG's reading of federal preemption law. The Oklahoma Legislature cannot override federal law by statute. If members are concerned about wildlife management on reservation lands, the productive paths are (a) supporting tribal-state cooperation through the existing deputization framework, (b) seeking a congressional fix if a substantive policy issue is identified, or (c) supporting federal litigation to test the AG's preemption analysis. Direct legislation purporting to authorize state jurisdiction over tribal citizens on reservation land would not change the federal law.

If you are a tribal wildlife department official

Continue your enforcement under your Nation's code. The cross-deputization agreements with ODWC let state game wardens cite tribal citizens under tribal law. The opinion confirms your primary jurisdiction. Continue data sharing with ODWC where useful for joint conservation goals.

Common questions

Q: Does this opinion overrule the Oklahoma Wildlife Code?
A: No. The Code remains in force. The opinion concludes that federal law preempts the Code's application in specific circumstances: tribal citizens hunting on their own reservation or under the Five Tribes Reciprocity Agreement on another tribe's reservation. The Code applies fully to non-Indians on reservation lands, to tribal citizens off-reservation, and (per footnote 2) to anyone hunting on state-owned land within reservation boundaries.

Q: Can a tribal citizen still be cited for poaching, spotlighting, or other illegal hunting?
A: Yes, by the tribe under tribal code. The opinion explicitly notes (in footnote 3) that the Cherokee, Chickasaw, and Choctaw codes ban practices like spotlighting and headlighting and provide for enforcement. The Wildlife Code's substantive standards are largely tracked by the tribal codes; what changes is who enforces them and in which court system.

Q: What is the Five Tribes Wildlife Management Reciprocity Agreement?
A: A July 11, 2024 mutual-recognition agreement among the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations. It allows a member of one signatory Nation to hunt or fish on another signatory Nation's reservation, subject to the host Nation's wildlife code.

Q: Does this opinion mean tribal citizens can hunt without a license?
A: No. They need a license under the relevant tribal code (their own Nation's, or the host Nation's under the Reciprocity Agreement).

Q: What about hunting on land owned in fee by non-Indians within reservation boundaries?
A: The opinion explains that fee status does not change reservation status under 18 U.S.C. § 1151(a). What matters is whether the tribe has a comprehensive regulatory framework, which the Cherokee, Chickasaw, and Choctaw do. Tribal citizens hunting on fee land within the reservation are still subject to tribal regulation, and state Wildlife Code enforcement against them is preempted.

Q: What if I am hunting on state-owned land within a reservation?
A: Per footnote 2, the State's interests are likely sufficient to permit Wildlife Code enforcement on state-owned land, even against tribal citizens. The opinion does not formally decide that question, but signals the conclusion.

Q: What did Stroble v. Oklahoma Tax Commission decide?
A: Stroble, 2025 OK 48, held that Oklahoma can collect state income tax from a tribal citizen who lives within reservation boundaries. The AG distinguished it as a per curiam decision limited to civil tax jurisdiction that did not analyze federal preemption principles applicable to wildlife regulation.

Q: What did City of Tulsa v. O'Brien decide?
A: O'Brien, 2024 OK CR 31, applied the Bracker balancing test to conclude that Tulsa could prosecute certain misdemeanors against tribal citizens on reservation land. The AG concluded that for wildlife regulation specifically, the Bracker balance comes out the other way because of the comprehensive tribal regulatory framework Mescalero requires.

Q: Is this opinion binding on tribal courts?
A: No. AG opinions bind state and local officials. Tribal courts make their own decisions on matters of tribal law. But the opinion's preemption analysis would be relevant if a state-court prosecution against a tribal citizen were challenged.

Background and statutory framework

The federal-Indian-law backdrop:

• Federal trust relationship. The United States has a trust obligation to protect tribal sovereignty and self-government (Seminole Nation v. United States, 316 U.S. 286).
• Reservation status confirmed. McGirt v. Oklahoma, 591 U.S. 894 (2020), and subsequent decisions confirmed that Congress never disestablished the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole reservations. State ex rel. Matloff v. Wallace, 2021 OK CR 21, "reaffirm[ed] recognition of the Cherokee, Choctaw, and Chickasaw Reservations."
• Indian country definition. 18 U.S.C. § 1151(a) defines "Indian country" as "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent." Fee land within reservation boundaries remains Indian country.
• Tribal jurisdiction. 25 U.S.C. § 1301(2) recognizes tribal criminal jurisdiction over all Indians within tribal territory.

The state-jurisdiction backdrop:

• General rule. Per Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), Indian country is part of the State, not separate from it, and the State has presumptive jurisdiction unless preempted.
• Preemption frameworks. State jurisdiction can be preempted (a) under ordinary federal law principles, or (b) when state jurisdiction infringes on tribal self-government (the Bracker balancing test).
• Bracker balancing. Requires a particularized inquiry into the nature of state, federal, and tribal interests at stake.

The wildlife-specific framework:

• Mescalero. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), held that state hunting and fishing laws were preempted on the Mescalero reservation, where the Tribe had developed a comprehensive wildlife management program with federal support. The Court emphasized that concurrent state jurisdiction would "effectively nullify the Tribe's authority to control hunting and fishing on the reservation."
• Puyallup standard. Puyallup Tribe v. Dep't of Game, 391 U.S. 392 (1968), allows state regulation only "in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." The State must show some additional regulatory function beyond what the tribe already provides.

The tribal-regulation factual record:

• The Cherokee, Chickasaw, and Choctaw Nations have enacted comprehensive wildlife codes with licensing, seasons, bag limits, and penalties (Cherokee Nation Tribal Code tit. 29; Chickasaw Nation Code tit. 11; Choctaw Nation Fish, Game & Animals Code tit. 110).
• The Nations have signed cross-deputization agreements with ODWC (Cherokee 2020, Chickasaw 2021, Choctaw 2021) authorizing state game wardens to enforce tribal codes in tribal court.
• ODWC includes Choctaw Nation harvest data in its big-game reporting, demonstrating the cooperative framework.
• The Five Tribes Wildlife Management Reciprocity Agreement (July 11, 2024) creates uniform requirements across the signatory Nations.

The opinion concludes that this regulatory record satisfies Mescalero's comprehensive-program standard and that the Bracker balance favors preemption.

Citations and references

Federal statutes:
- 18 U.S.C. § 1151 (Indian country definition)
- 25 U.S.C. § 1301 (Tribal jurisdiction)

Oklahoma statutes:
- 29 O.S. (Wildlife Conservation Code)

Tribal codes:
- Cherokee Nation Tribal Code, tit. 29
- Chickasaw Nation Code, tit. 11; Chickasaw Nation Wildlife Regulations
- Choctaw Nation Fish, Game & Animals Code, tit. 110

Treaties:
- Treaty of Dancing Rabbit Creek, 7 Stat. 333 (1830)
- Treaty of Doaksville, 11 Stat. 573 (1837)
- Treaty of New Echota, 7 Stat. 478 (1835)

Cases:
- McGirt v. Oklahoma, 591 U.S. 894 (2020)
- New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)
- White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)
- Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022)
- Stroble v. Okla. Tax Comm'n, 2025 OK 48
- City of Tulsa v. O'Brien, 2024 OK CR 31
- State ex rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686
- Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)

Five Tribes agreement:
- Five Tribes Wildlife Management Reciprocity Agreement (July 11, 2024)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2025/19.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2025/AG%20Opinion%202025-19.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL
STATE OF OKLAHOMA
ATTORNEY GENERAL OPINION
2025-19

The Honorable Chris Kannady
Oklahoma House of Representatives, District 91
2300 N. Lincoln Boulevard, Room 240
Oklahoma City, OK 73105-4885

December 18, 2025

Dear Representative Kannady:

This office has received your request for an Attorney General Opinion in which you ask, in effect, the following questions:

1. Does federal law preempt application of the Oklahoma Wildlife Code, title 29 of the Oklahoma statutes, to Indians hunting and fishing on the Cherokee, Chickasaw, or Choctaw Nations' reservations?
2. Does Stroble v. Oklahoma Tax Commission, and/or City of Tulsa v. O'Brien, authorize enforcing the Wildlife Code against Indians hunting or fishing on the Nations' reservations?

A note on timing: This office is aware of pending litigation, Cherokee Nation v. Free, No. 4:25-cv-00630-CVE-JFJ (N.D. Okla. Nov. 18, 2025), concerning the issues addressed herein. While this office typically declines to issue opinions when related litigation is pending, the circumstances here warrant an exception. First, the applicable legal framework under New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), is well-established. Second, hunting season is currently underway. Tribal citizens should not be deprived of their long-held rights while litigation proceeds and Oklahoma and tribal wildlife departments need clear guidance on these issues as a matter of law. Third, providing guidance now reduces the State's potential liability exposure. A factual record developed by a court is unlikely to compel a different conclusion on the legal questions presented.

As used in this Opinion, the following definitions apply:

"Indians" is as defined in 25 U.S.C. § 1301(4), i.e., "any person who would be subject to the jurisdiction of the United States as an Indian under [18 U.S.C. § 1153] if that person were to commit an offense listed in that section in Indian country to which that section applies."

"Member Indian" refers to an Indian hunting or fishing on the reservation of the Nation in which that person is enrolled.

"Five Tribe Nonmember Indian" refers to an Indian enrolled in one of the Five Tribes (Cherokee, Chickasaw, Choctaw, Muscogee (Creek), or Seminole Nations) who hunts or fishes on the reservation of another Five Tribes pursuant to the Five Tribes Wildlife Management Reciprocity Agreement.

I. SUMMARY

The supremacy of federal law dictates that it preempts application of the Oklahoma Wildlife Conservation Code, title 29 of the Oklahoma statutes (the "Wildlife Code"), to Member Indians and Five Tribe Nonmember Indians hunting and fishing on the Nations' reservations. Under White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and Mescalero, 462 U.S. 324, the Wildlife Code does not apply to Member Indians or to Five Tribe Nonmember Indians hunting on the Nations' reservations.

In response to your specific questions:

First, federal law bars application of the Wildlife Code to Member Indians and Five Tribe Nonmember Indians hunting and fishing on the three Nations' reservations. Under Mescalero, state wildlife regulation is preempted where tribes have developed comprehensive wildlife management programs. The Nations have enacted comprehensive wildlife codes that establish licensing requirements, seasons, bag limits, and enforcement mechanisms. The Nations' licensing departments are charged with enforcing the codes by issuing or revoking licenses, tracking harvest data, and providing education. Federal law further reinforces tribal authority through statutes recognizing the inherent power of Indian tribes to exercise jurisdiction over all Indians within their territories. 25 U.S.C. § 1301(2).

Second, neither Stroble v. Oklahoma Tax Commission, 2025 OK 48, nor City of Tulsa v. O'Brien, 2024 OK CR 31, authorizes Wildlife Code enforcement against Indians on reservations. Stroble addresses only state civil tax jurisdiction and makes no real effort to analyze the federal preemption principles that govern whether state law applies here. And under O'Brien's required Bracker balancing test, tribal and federal interests heavily outweigh any state interest, prohibiting Wildlife Code enforcement against Indians on reservations. Finally, seminal Supreme Court cases addressing the powers of tribes and states to regulate hunting have never suggested that the state has authority to regulate hunting and fishing by Indians on their own reservations. Indeed, New Mexico acknowledged in Mescalero that it did not have jurisdiction over Indians hunting or fishing on their own reservations. As to Member Indians, no Bracker balancing is required: it is clear that the state does not have authority to enforce the Wildlife Code on a Member Indian who seeks to harvest game on the land the federal government promised to his or her tribe.

II. BACKGROUND

The United States has a special trust relationship with Indian Tribes, under which the federal government is obligated to protect and assure tribal sovereignty and self-government, and to protect tribal lands, culture, and well-being. See Seminole Nation v. United States, 316 U.S. 286, 296–97 (1942); 25 U.S.C. § 3601. The United States established reservations for the Choctaw, Chickasaw, and Cherokee Nations through a series of treaties negotiated during the nineteenth century. In McGirt v. Oklahoma, 591 U.S. 894 (2020), and subsequent decisions, the Supreme Court and the Oklahoma Court of Criminal Appeals confirmed that Congress never disestablished these reservations and that they remain Indian Country today.

These reservations present a unique situation. Unlike many reservations where most residents are tribal members, the Cherokee, Chickasaw, and Choctaw reservations encompass large portions of eastern and southeastern Oklahoma, where non-Indians constitute the vast majority of the population. Much of the land within these reservation boundaries is owned in fee by non-Indians, and the areas include major population centers.

This demographic reality affects the allocation of regulatory authority. Under Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978), tribes lack criminal jurisdiction over non-Indians absent specific congressional authorization. Accordingly, absent express congressional action to the contrary, the State necessarily retains authority to regulate non-Indians within these in-state reservation boundaries, including with respect to hunting and fishing. The question presented here, however, concerns the State's authority over Indians in Indian Country.

III. DISCUSSION

This Opinion is limited in scope: It addresses only Indians, including Five Tribe Nonmember Indians, hunting and fishing in Indian country on lands covered by the Five Tribes Wildlife Management Reciprocity Agreement. It does not apply to the question of state or tribal jurisdiction over (1) non-Indians; (2) Indians who are not members of the tribes party to the Five Tribes Wildlife Management Reciprocity Agreement; or (3) Indians hunting or fishing on state-owned property within Indian Country.

A. Neither Stroble nor Montana Govern This Analysis.

You have asked for an analysis of Stroble, 2025 OK 48. But Stroble is inapposite because it addresses civil tax jurisdiction in a per curiam opinion declining to extend McGirt beyond criminal jurisdiction. It does not grapple with the key question here: whether federal law preempts state enforcement of hunting regulations over Indians on land the federal government promised them or on land where another tribe has invited them to hunt.

Similarly, Montana does not govern in resolving these questions. In Montana, the Supreme Court addressed the sources and scope of an Indian tribe's power to regulate hunting and fishing by non-Indians on lands within its reservation owned in fee simple by non-Indians. The Court held that although a tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe, the tribe has no power to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.

Montana addressed tribal regulatory authority while this Opinion concerns state prosecutorial authority. These are distinct inquiries.

B. Federal Law Preempts Application of the Wildlife Code to Indians on the Nations' Reservations.

Generally, Oklahoma's sovereignty does not stop at reservation borders. In Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), the Court explained that "the Constitution allows a State to exercise jurisdiction in Indian country. Indian country is part of the State, not separate from the State. To be sure, under this Court's precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country."

Nevertheless, state jurisdiction in Indian Country may be preempted in two ways: (1) under ordinary principles of federal law, or (2) when state jurisdiction unlawfully infringes on tribal self-government.

In O'Brien, 2024 OK CR 31, the Oklahoma Court of Criminal Appeals applied this framework, holding that state prosecution of Indians in Indian Country requires case-specific Bracker analysis to determine whether it would impermissibly interfere with tribal self-government.

The Supreme Court's decision in Mescalero, 462 U.S. 324, provides the framework for applying Bracker balancing where the state seeks to enforce its hunting laws over Indians in Indian Territory. There, the Supreme Court addressed whether New Mexico could enforce its hunting and fishing laws on the Mescalero Apache reservation, where the Tribe had, with the assistance of the federal government, established a comprehensive scheme for managing the fish and wildlife resources on its reservation. The Court held that state law was preempted under Bracker balancing, which requires a particularized inquiry into the nature of the state, federal, and tribal interests at stake.

The Court emphasized that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation, as it would empower the State to wholly supplant tribal regulations.

1. Tribal and Federal Interests.

Tribal interests weigh heavily in the balance. The Nations possess the right "to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 (1959). They retain "the power of regulating their internal and social relations." The Nations have exercised these rights through comprehensive wildlife codes establishing licensing requirements, seasons, and bag limits. The Oklahoma Department of Wildlife Conservation ("ODWC") and the tribes have collaborated, including by sharing information. The Nations also maintain cross-deputization agreements with ODWC, allowing state game wardens to enforce tribal codes in tribal court, further demonstrating the cooperative framework that already exists.

The Nations have also exercised their inherent sovereign authority by entering into the Five Tribes Wildlife Management Reciprocity Agreement, executed among the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations on July 11, 2024, which establishes a mutual recognition framework demonstrating the Nations' capacity and commitment to coordinated wildlife management across reservation boundaries.

The Nations' treaties with the United States, including the Treaty of Dancing Rabbit Creek (1830), the Chickasaw Treaty of 1837, and the Treaty of New Echota (1835), granted the Nations jurisdiction over their reservations and their citizens therein. While these treaties do not expressly mention hunting and fishing, the Tenth Circuit has recognized such rights as part of the larger rights of possession inherent in reservation status. N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 748 (10th Cir. 1987).

2. State Interests.

Under Puyallup Tribe v. Dep't of Game, 391 U.S. 392, 398 (1968), and its progeny, states may regulate on-reservation hunting and fishing only "in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." The State cannot satisfy this standard by asserting a general interest in wildlife management; it must demonstrate additional functions or services performed by the State but not the Nations.

Here, no state regulatory function or service justifies concurrent jurisdiction over Indians already subject to comprehensive tribal regulation. The Nations' comprehensive wildlife codes already address the same conservation objectives the State pursues, leaving no gap for state regulation to fill. Any financial interest the State might have is "simply insufficient to justify the assertion of concurrent jurisdiction."

A question might arise whether the preemption analysis changes because much of the land within the Cherokee, Chickasaw, and Choctaw reservations is owned in fee by non-Indians rather than held in trust for the tribes. It does not. Federal law expressly provides that land within reservation boundaries remains Indian Country notwithstanding the issuance of any patent. 18 U.S.C. § 1151(a).

Accordingly, under Bracker and Mescalero, federal law preempts application of the Wildlife Code to Member Indians and Five Tribe Nonmember Indians hunting and fishing on the Nations' reservations.

C. The Reciprocity Agreement Does Not Alter This Analysis.

The Five Tribes Wildlife Management Reciprocity Agreement strengthens rather than weakens the case for preemption. Indians hunting or fishing on a Nation's reservation pursuant to a license from another signatory Nation remain subject to comprehensive tribal regulation, they must comply with the host Nation's wildlife code. The host Nation retains authority to enforce that code against Five Tribe Nonmember Indians. The Agreement thus ensures that all Indians hunting or fishing under its terms do so within the framework of tribal regulation, setting forth a comprehensive approach for conserving natural resources.

It is, therefore, the official Opinion of the Attorney General that:

1. Federal law preempts application of the Oklahoma Wildlife Code to hunting and fishing on the Cherokee, Chickasaw, and Choctaw Nations' reservations by (a) Member Indians hunting on their own Nation's reservation and (b) Five Tribe Nonmember Indians hunting on a Nation's reservation pursuant to the Five Tribes Wildlife Management Reciprocity Agreement.

2. Stroble and O'Brien do not compel a different conclusion.

GENTNER DRUMMOND
ATTORNEY GENERAL

GARRY M. GASKINS, II
SOLICITOR GENERAL

BRADLEY CLARK
GENERAL COUNSEL