Supreme Court Crow Tribe Hunting

Attorney Kyle Ann Gray, left, Clayvin Herrera, and attorney Frederick Liu pose for pictures on the steps of the Supreme Court, Jan. 8, 2019, in Washington, the day the U.S. Supreme heard arguments in a case in which Clayvin Herrera, a Crow tribal member and former tribal game warden from Montana, is asserting his right under a 150-year-old treaty with the U.S. government to hunt elk in the Bighorn National Forest in Wyoming.

The United States is obligated to fulfill its 1868 treaty that promised the Crow Tribe the right to hunt on land that is now the Bighorn National Forest in northern Wyoming, the U.S. Supreme Court ruled this week. The ruling is a victory for Native American rights, but its practical results are yet to be determined.

The friend of the court brief filed in support of the Crow by ACLU of Montana and seven experts in public health, history and Crow culture concluded:

"The Second Treaty of Fort Laramie, now celebrating its sesquicentennial, has been a boon for the United States, which received peace in the aftermath of the Civil War along with 30 million acres of Crow territory, a small part of which became what is now the Bighorn National Forest. Wyoming seeks to deprive the Crow Tribe of its rights under that federal treaty. That is wrong. The Crow Tribe should be allowed to continue subsistence hunting in the forest lands it ceded away. Notwithstanding the (Wyoming court and 1896 U.S. Supreme Court decisions) there is no basis in precedent, policy, or common sense for depriving the Tribe of its essential treaty rights."

Five of the nine U.S. Supreme Court justices basically agreed with that this week.

The High Court sent the case, Herrera v. Wyoming back to Wyoming state court in Sheridan for consideration of two key questions:

  • Can Wyoming justify limits on Crow hunting to conserve wildlife? Other states have negotiated agreements with Native American tribes on treaty fishing rights for wildlife conservation.
  • Is the place in the national forest where Crow Tribe member Clayvin Herrera shot a bull elk "occupied" under the terms of the treaty. The Fort Laramie treaty says the Crow can hunt only on "unoccupied lands" the tribe ceded to the United States in 1868.

Legal experts had varied interpretations on the Herrera decision setting precedent that would affect other tribes or other public land. Gregory Ablavsky, an associate professor of law at Stanford Law School, posted on SCOTUSBlog: "For Indian country more broadly, the court’s specific reasoning is less significant than its tone. The court’s repeated emphasis that treaty terms must be interpreted 'in the sense in which they would naturally be understood by the Indians' reiterates a long-standing Indian law principle that recent Supreme Court decisions have sometimes honored in the breach. Perhaps most notably, Justice Neil Gorsuch’s willingness to break with the other conservative justices and join the court’s more liberal wing — hinted at in earlier Indian law decisions — may signal an emerging coalition in favor of the rights of Native nations."

The Herrera decision is "unlikely to have much precedential value elsewhere" because the treaty language at issue is limited to a few tribes, Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, wrote in an email to The Gazette.

"In other areas of the country, the tribes and state have cooperatively worked out how those treaty rights can be exercised," Monte Mills, University of Montana law professor, told The Gazette.

The state and the tribe must abide by the treaty. It will be best for both tribal and non-tribal hunters if a clear, commonsense agreement can be negotiated to uphold Crow rights while protecting elk and other wild game populations on "unoccupied" forest land.

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