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Tribal hunting rights case before US Supreme Court

Crow hunters kill elk in Wyoming

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WASHINGTON — It has been four years since Clayvin Herrera, a game warden for the Crow Tribe of Montana, along with several other tribal members, crossed a fence line into Wyoming, leaving the Crow Reservation, in pursuit of elk. Although none of the hunters had a license to hunt in Wyoming, and the state’s elk hunting season was closed, three bull elk were shot, and the meat hauled back across the border onto the Crow Reservation.

Subsequently, pictures posted on Facebook, and DNA tests conducted against the Wyoming elk herd, after investigators confiscated one of the elk heads from Herrera, compelled Wyoming to charge Herrera with two hunting misdemeanors under their state law. Found guilty in 2016 by the Sheridan circuit court, Herrera was ordered to pay $8,080, received a suspended jail sentence and had his hunting privileges suspended for three years.

Herrera’s pro bono defense team was never allowed to argue 1868 treaty stipulations permitting him to hunt off reservation, and across state lines, meaning he cannot, as a tribal member, have any hunting “privileges,” but has treaty-established hunting rights. These treaty-established rights are compensation for lands and resources taken from the Crow people, not privileges awarded to a Wyoming state resident.

The case was appealed through state courts, and lost on appeal, based on the rulings of an earlier 1995 case, Crow tribe of Indians v Repsis, which held that the creation of Wyoming and the Bighorn National Forest, abrogated treaty stipulated hunting rights “on the unoccupied lands of the United States,” because these creations constituted occupation.

Last January, the United States Supreme Court (SCOTUS) issued a CVSG, or call for views of the solicitor general, object being to find out what the federal government thinks of the case, or, since solicitor general Noel Francisco is a Trump appointee, what the Trump Administration thinks of the case. In a move that surprised many, Francisco submitted a 27- page Department of Justice brief supporting tribal hunting rights, and asserting Wyoming was in the wrong.

“The 1868 treaty did not provide for the termination of the tribe’s hunting right upon the admission of a state. Nor was that right repealed by Wyoming’s statehood act,” Francisco wrote.

Matthew Fletcher, an expert on Indian Law, on the Turtle Talk internet site, pointed out that favorable briefs from the U.S. solicitor general’s office can actually hurt a tribe’s chances of prevailing when the United States Supreme (SCOTUS) court hears a case, and the highest court in the land has agreed to hear this case sometime this fall, just one of 80 cases chosen out of 7,000.

Wyoming’s lower court must now send up the case record for SCOTUS review. Herrera’s legal team and the Wyoming attorney general will write briefs outlining their positions.

Last October, Herrera’s legal team wrote: “As this very case makes clear, whether petitioner’s family has food on the table during unforgiving Montana winters depends on his ability to exercise the off-reservation hunting rights long ago granted to his tribe.”

This is perhaps a weak argument, given that treaty established hunting rights apply regardless of whether the tribal member is wealthy or destitute. Herrera need not establish need or hardship to validate his right to hunt where the treaty has determined he has the right to hunt.

At the core of this dispute is tribal sovereignty, and at the core of the sovereignty issue is whether state law ever trumps treaty rights. An important point made in Francisco’s DOJ brief is that the twenty-year-old Repsis decision was wrongly decided, that treaty rights are “irreconcilable” with state rights. It follows, then, that the Wyoming court decisions are invalid, since they are based on the wrongly decided Repsis decision.

Francisco goes on the make the critical point upon which the outcome of this case may hinge. He quotes language form the 1999 Supreme Court decision which upheld the off-reservation treaty rights of the Mille Lacs Band of Ojibwe: “The treaty must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians.”

“Any ambiguities resolved in favor of the Indians,” so, at issue, is whether the changing reality around the Crow tribe, the establishment of the State of Wyoming, and the Big Horn National Forest, constitute ambiguity as determined in 1999 by the Court. Logically, it follows, were these not ambiguities, it would not have required so many rulings and appeals, all the way up to SCOTUS.

It has been asserted by the media that tribes across the country are closely following this ruling, that they are keenly aware of the profound long-term impact it could have on tribal treaty rights and sovereignty. However, past tribal inaction may indicate the reality is otherwise. Tribes could have filed amicus briefs, like the kind the ACLU just filed on behalf of Herrera, or got involved before the unfavorable decisions that Wyoming used as rationale for ruling against Herrera. Concerted tribal efforts could have funded legal teams with the skill and resources to battle these cases long-term, but much of tribal reaction appears to be after-the-fact, and would bely that they follow such matters to the depth they assert, or that the media prints as fact.

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at

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