Clayvin Herrera

Clayvin Herrera was cited in 2015 for poaching elk south of the Crow Reservation in Wyoming. Although convicted of poaching in April, Herrera's attorney has appealed the decision.

Gazette Staff

A Wyoming district court judge has upheld the 2016 conviction of a Crow tribal member who was charged with shooting a bull elk out of season in the Bighorn National Forest in 2014.

Clayvin Herrera had appealed the decision by a Sheridan, Wyoming, jury for which he was ordered to serve one year of unsupervised probation, to pay $8,080 in fines and court costs and had his hunting rights suspended for three years.

Kyle Anne Gray, Herrera’s Billings attorney, has subsequently petitioned the Wyoming Supreme Court to review the lower courts’ decisions, acquit Herrera and dismiss all charges.

First trial

Gray had initially argued that the Laramie Treaty of 1868 allowed Herrera to hunt on “unoccupied lands of the United States” off the reservation — in this case the Bighorn National Forest. That argument was quashed by the circuit court judge in the initial trial who decided that the issue of treaty rights had already been decided in a similar 1995 10th Circuit Court case: Crow Tribe of Indians v. Repsis.

In the Repsis case, a Wyoming district court ruled that the treaty was intended to be “temporary in nature and it was no longer valid,” according to court documents. “The Repsis court found that ‘the Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union. Therefore the tribe and its members are subject to Wyoming’s game laws…”

The circuit court judge also did not allow Gray to argue that a subsequent U.S. Supreme Court decision in a 1999 case — Minnesota v. Mille Lacs Band of Chippewa Indians — had reversed and rejected the Repsis case.

Without the treaty right defense, Gray had to argue that Herrera was still on the reservation when he shot the elk, a point successfully countered by state officials during testimony.

Appeal

In the appeal of the jury decision to Judge Fenn, Gray’s attempt to say the issues in the Repsis and Herrera cases were different enough to merit consideration in the initial trial was shot down. Fenn also ruled against Gray’s argument that the later Mille Lacs decision overturned the Repsis court’s ruling.

“Rather, it affirmed the concept that a court interpreting a treaty must determine if the rights reserved in the treaty were intended to be perpetual or if they were intended to expire upon the happening of a ‘clearly contemplated event’” such as occupation of the land, Fenn wrote in his decision. “Mille Lacs did not change the fundamental legal principles applicable to the interpretation of treaties.”

Fenn went on to say that even if the Repsis case was decided on an “erroneous application of the law,” the Crow Tribe’s treaty rights “cannot be disputed in the present action” because the issue was already adjudicated.

Second appeal

So now Gray has petitioned Wyoming’s highest court to consider her arguments.

“Wyoming cannot continue to exist in a time bubble separate and apart from its sister states” by giving precedent to a century-old case instead of a more current Supreme Court ruling, Gray wrote in her petition for review.

“If Herrera had shot the elk in a national forest in Montana, his federal treaty-rights would have been honored, just as similar treaty-hunting rights are honored in the other states of this single nation,” the petition continued.

Gray also argued that a treaty can only be broken by Congress, which has not been done in the instance of the Crow treaty.

If after 40 days the Wyoming Supreme Court has not accepted Gray’s petition for review it is considered denied.

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Montana Untamed Editor

Montana Untamed editor for the Billings Gazette.