The May 20 U.S. Supreme Court opinion affirming Crow Tribe treaty hunting rights in Wyoming has reverberated into Montana.
Following the ruling, Montana Fish, Wildlife & Parks’ legal counsel and chief of law enforcement issued a May 22 memo to wardens advising them to not cite Crow Tribe members who violate state hunting laws in the Custer Gallatin National Forest east of the Yellowstone River.
The vast mountain region, which extends from Gardiner to the Wyoming border and includes the Absaroka, Pryor and Beartooth mountain ranges in addition to the Absaroka-Beartooth Wilderness, was also part of the tribe’s treaty area when the Fort Laramie document was signed in 1868.
Wyoming had argued that its Bighorn National Forest, where Crow tribal member Clayvin Herrera was cited for poaching a bull elk in 2014, was considered occupied territory since it had been designated a national forest. The high court disagreed in its 5-4 ruling, but it’s up to a Wyoming District Court to define exactly what occupied means. Some areas of the forest may carry that designation, but not the entire forest, the justices reasoned.
The state court must also figure out how to define conservation necessity, another point the state had argued for not allowing Crow tribal members the right to exercise their hunting rights in the state.
Becky Dockter, FWP’s chief legal counsel, said her agency issued the memo in consultation with the state Attorney General's office “in order to not raise any more issues,” similar to what the Herrera case has already brought to attention, until there’s a better understanding of the impact of the Supreme Court’s decision.
“How it effects into the future we can’t say,” she said.
FWP has held no discussions with Crow tribal officials yet, Dockter added.
The memo does not open the Montana forest to Crow tribal hunting, Dockter said, rather tribal members would not be cited for violations of Montana hunting regulations — such as hunting during a closed season, unlawful possession, hunting without a license, or failure to tag — because that now falls under a treaty rights issue and the tribe’s regulatory system. Tribal members could still be cited for safety violations like trespassing, or shooting from a roadway or vehicle, Dockter added.
Even prior to the Herrera decision Montana had honored treaty right hunters on public federal lands, specifically the Confederated Salish Kootenai Tribes.
"Court cases defined that for us a long time ago," said Tom McDonald, the Fish, Wildlife, Recreation & Conservation Office division manager for the CSKT.
For male wildlife species like deer and elk, tribal hunters can shoot a bull or buck any time of the year without even purchasing a tag, he explained. For restricted species like moose or bighorn sheep there are tag drawings for tribal members, and bighorns are hunted only on the reservation. Seasons for female wildlife species run from Sept. 1 to Jan. 31, McDonald said.
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"A lot of it is not sport hunting, it's subsistence hunting," he said.
"Overhunting is not an issue."
Few CSKT members hunt black bears, none hunt grizzlies or cat species like mountain lions or bobcats. The tribe has about 7,000 members. As many as 900 may apply for special licenses.
In addition, Montana acknowledges the rights of several tribes to hunt Yellowstone bison in the winter when they leave the park, including CSKT, Blackfeet, Nez Perce and Umatilla, Shoshone-Bannock tribal members.
Those hunts along the northern border near Gardiner have raised some residents’ concerns about gut piles that attract predators, unsafe shooting, bison wounding and unethical hunting with animals facing a barrage of bullets when they exit the park.
Montana does not regulate the tribal hunters but coordinates with tribal game officers and law enforcement in an attempt to ensure everyone’s safety.
Still to come
When the Wyoming case will be settled is uncertain. Depending on how the Sheridan County District Court rules, the case could still be appealed up the ladder and end up before the U.S. Supreme Court again, some court watchers have suggested.
Until then, Wyoming Gov. Mark Gordon issued a statement that said in part, "Until these remaining issues are resolved, the State of Wyoming will continue to regulate the take of game animals in the Bighorn National Forest to ensure equal hunting opportunities for all.”
McDonald said fears that Crow hunters will decimate Wyoming's elk herds are unfounded.
"They all frown on waste of meat, that's taboo," he said.
With a limited population, who can only eat so much meat, and with some tribal members raising beef or with access to the tribe's bison herd, McDonald said there's a limit to what tribal members will hunt, as well as who will hunt.
Also, just like across the greater U.S. population, hunting among native people has declined, he said.
"I wouldn't expect much change."