By Kristen Czaban
The Sheridan Press
Via Wyoming News Exchange
SHERIDAN – The U.S. Supreme Court Monday issued its opinion on Herrera v. Wyoming, affirming that the Crow Tribe’s hunting rights under the 1868 Treaty of Fort Laramie remain valid.
The 5-4 decision vacates the judgement of Wyoming’s 4th Judicial District and remands the case back to the court for further proceedings.
Following three judicial rulings, the U.S. Supreme Court accepted review of the case against Clayvin Herrera, who allegedly killed elk on public land out of season in January 2014 in Sheridan County.
The court heard oral arguments in the case in January. Herrera’s hunt began on the Crow Reservation in Montana but ended roughly one mile south of the Montana-Wyoming state line, putting the killed elk on public land managed by the Bighorn National Forest. Herrera does not dispute that he and his hunting party killed three elk. He does, though, argue the illegality of their doing so.
Herrera’s lawyers have argued that when he shot the elk, he did so under the authority of a treaty agreed to in 1868 by the U.S. and representatives of the Crow. The treaty grants hunting rights to Crow tribal members, who “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” Herrera and his lawyers contend that those rights still exist. The state argued the Bighorn National Forest is not “unoccupied” and the treaty was considered void after Wyoming became a state.
The court’s opinion, written by Associate Justice Sonia Sotomayor and joined by Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elana Kagan and Neil M. Gorsuch, states the treaty rights of the Crow Tribe did not expire when Wyoming became a state in 1890.
“The treaty itself defines the circumstances in which the right will expire,” the opinion states. “Statehood is not one of them.”
In addition, the opinion states Bighorn National Forest did not become categorically “occupied” when the national forest was created.
“Given the tie between the term ‘unoccupied’ and a lack of non-Indian settlement, it is clear that President Cleveland’s proclamation creating Bighorn National Forest did not ‘occupy’ that area within the treaty’s meaning,” the opinion reads. “To the contrary, the President ‘reserved’ the lands ‘from entry or settlement. …It anything this reservation made Bighorn National Forest more hospitable, not less, to the Crow Tribe’s exercise of the 1868 Treaty right.”
Despite the U.S. Supreme Court’s ruling, though, it does limit its decision. First, the court indicates that the decision does not categorically define the Bighorn National Forest as “occupied,” but doesn’t state that all areas within the forest are unoccupied. On remand, the decision states, the state may argue “that the specific site where Herrera hunted elk was used in such a way that it was ‘occupied’ within the meaning of the 1868 Treaty.
In addition, the opinion states that the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation.”
“On remand, the State may press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation.”
Already Monday morning, responses to the opinion were shared by organizations throughout the country.
“This ruling is a huge win for Clayvin Herrera, the Crow Tribe and tribes across the country that entered into treaties with the federal government,” said Lillian Alvernaz, Indigenous Justice Legal Fellow with the ACLU of Montana, in a released statement. “On a practical level, this means that members of the Crow Tribe can continue to hunt on unoccupied lands like the Bighorn National Forest to provide sustenance for their families and children. This is especially important for the well-being and health of the Tribe because access to healthy food on the reservation is limited.
“More broadly, through this decision, the Supreme Court held the federal government accountable to its treaty obligations and affirmed tribal sovereignty,” Alvernaz continued. “Throughout the history of colonization, tribes have upheld their end of treaties while the federal government has consistently fallen short of its obligations. We’re hopeful that this ruling marks a new day, one where the federal government lives up to its treaty obligations and recommits to the important principles of tribal sovereignty and self-determination of tribes in the United States.”
Officials from Bighorn National Forest and local offices of Wyoming Game and Fish Department refused to comment Monday morning.