A Crow tribal hunter has asked the U.S. Supreme Court to review his treaty rights case.

Clayvin Herrera was found guilty by a Wyoming jury in Sheridan Circuit Court in April 2016 of illegally killing an elk out of season in the Bighorn National Forest in January 2014. He was fined and ordered to pay costs of $8,080, received a suspended jail sentence and had his hunting privileges suspended for three years.

Herrera’s attorney, Kyle Gray of Billings, had argued that her client’s hunting rights were guaranteed by the 1868 Treaty of Fort Laramie, which allowed the Crow Tribe to hunt on unoccupied federal lands. The court refused to hear that argument, saying the issue had already been settled in a previous case.

Since then, Herrera’s attorneys have pushed the case up the ladder of appeals, most recently rejected by the Wyoming Supreme Court on June 16. On Oct. 5, Herrera’s legal team petitioned the U.S. Supreme Court to hear the case.

The odds are not in Herrera’s favor. The high court hears only about 1 percent of the cases submitted for review, according to professor Robert J. Miller, an Indian law expert at the Sandra Day O’Conner School of Law at Arizona State University. He also said there is no particular timeline for when the court might decide.

“It could take months to say yes or no,” he said.

Tribal rights

The central theme of Herrera’s argument is that a more recent high court decision concerning tribal treaty rights and state rights — the 1999 Minnesota v. Mille Lacs Band (of Chippewa Indians) — has created a conflict in the courts.

“The (Wyoming court’s) decision … ignores this (U.S. Supreme) Court’s precedents, badly misconstrues the Tribe’s 1868 Treaty, and creates a clear split with federal and state courts, all while imperiling the ability of Tribe members to provide for their families as they — and other Native Americans, pursuant to similar treaties — have done for over a century,” Herrera’s attorneys argued in their writ to the U.S. Supreme Court. “Only this Court can correct this injustice, resolve the unsettled case law, and reaffirm the federal treaty-based rights that the Tribe and other Native Americans have long enjoyed.”

Miller said the 1999 Mille Lacs ruling by the high court “kind of shocked everyone in the Indian law world,” sort of revising the much-earlier 1896 case known as Ward v. Race Horse.

Wyoming history

Ward v. Race Horse is an interesting case in Wyoming for a couple of reasons. The case arose after a shootout between Bannock Indians from Idaho and whites living in the Jackson Hole area. The Bannocks were on their way to visit Shoshone relatives on Wyoming’s Wind River Reservation when they stopped to shoot some elk to eat, according to an article by Lori Van Pelt on the WyoHistory.org website. That prompted the shootout in which one Bannock was killed, another was injured and a child went missing.

Weeks later, Wyoming enacted a new law regulating hunting in the state, aimed at restricting Indian rights granted in their treaties. Wyoming and federal Indian officials challenged the law and won, but the case was appealed to the U.S. Supreme Court.

Arguing for the state was Willis Van Deventer, the same attorney who represented the vigilante group of well-to-do ranchers and hired gunmen who invaded Johnson County in 1892. None of the vigilantes were convicted. Yet that group was bent on killing several individuals on a list who the ranchers claimed were responsible for rampant cattle rustling. When Johnson County locals rallied, a shootout started and eventually the U.S. Army intervened.

Van Pelt writes that Van Deventer’s interest in taking the Ward v. Race Horse case was political. “He indicated in a letter to Sen. (Francis) Warren that his interest in the case was political because he hoped a positive outcome would help the administration of Gov. W.A. Richards and the efforts of Republicans throughout the state in that election year of 1896,” she wrote.

Van Deventer went on to win the case before the high court in a 7-1 decision, and Warren later assisted Van Deventer to gain a Washington, D.C., appointment, a judgeship in the 8th Circuit Court of Appeals and in 1910 an appointment to the U.S. Supreme Court, Wyoming’s first and only resident to ever serve on the court.

Confusing rulings

Miller said the 1999 Mille Lacs ruling in part overruled Ward v. Race Horse without explicitly saying so, although Wyoming attorneys successfully argued in Herrera’s case that wasn’t so. In essence, Miller said, the high court said over 100 years the law had changed significantly and, while states can regulate wildlife for conservation purposes, that doesn’t restrict tribal treaty rights.

With so much turnover in the Supreme Court since that 1999 ruling, Miller said the justices may want to review Herrera’s case. The issues raised go to the heart of many states’ arguments about state’s right versus tribal rights, Miller said. But even if the Supreme Court were to hear the case, he said it only reverses about 40 percent of the cases it takes.

Herrera’s attorneys argued that, “If the Tribe’s federal treaty rights are to be the ‘supreme Law of the Land’ no more, and a state can criminally prosecute and convict a Tribe member for engaging in what the plain language of the treaty expressly protects, all based on reasoning that other courts have repudiated, then at least this Court should be the one to make that determination. In all events, the need for this Court’s review is plain.”

Herrera’s attorneys also state that by not reviewing this case, the Supreme Court leaves its Ninth and Eighth Circuit Courts in disagreement. While the Ninth Circuit court has upheld tribal hunting rights on unoccupied federal lands, the Eighth Circuit Court has said that those tribal rights were revoked when states were created.

“That the two circuits with the vast majority of national forestland disagree on this issue is reason enough to” review the Herrera case, his attorneys argued.

The writ later argued, “This case therefore cries out for this Court’s review, and this is an ideal vehicle to resolve the exceptionally important federal question it presents. In short, this Court need only answer the clean legal question of whether the 1868 Treaty has been abrogated or not.”

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