Although a U.S. Supreme Court ruling on Crow elk hunter Clayvin Herrera appears to be a win for the Montana tribe by affirming its 1868 treaty rights, his attorneys aren’t taking a victory lap yet.
“We are gratified that the Supreme Court held that the treaty hunting right guaranteed to the Crow Tribe and Mr. Herrera was not abrogated by Wyoming’s admission to the Union or the creation of the Bighorn National Forest,” Steven Small, an attorney with the Billings law firm Holland and Hart, wrote in an email.
The law firm’s attorney Kyle Ann Gray represented Herrera when, as a tribal game warden in 2014, he was cited for illegally killing a bull elk in Wyoming’s Bighorn National Forest. Herrera is being advised by his attorneys to remain silent.
That’s because the high court remanded the case back to Sheridan County District Court to work out two issues. So what the ruling may mean for Wyoming’s elk, elk hunters and other tribes with treaty rights in the state is still open to interpretation, argument or settlement negotiations.
One issue that Wyoming could address is why the state thinks conservation regulations are necessary to regulate Crow tribal hunting in the state.
“The state would have to demonstrate that there is a conservation necessity to preserve the species,” in this case elk, said Monte Mills, a University of Montana law professor who filed a brief arguing in favor of Herrera’s case.
Other lawsuits in the Northwest have dealt with limiting tribal take of salmon citing conservation necessity, Mills said.
“It’s really been limited what the states can do,” he added. “The tribes can’t pursue the last steelhead into the net. That’s a high bar for the state to meet.”
The other issue the state of Wyoming can address is the definition of what areas of the Bighorn National Forest, where Herrera killed the contested bull elk, are considered “occupied” and therefore not open to Crow hunts under their Fort Laramie treaty rights.
The state had argued that the entire forest was occupied. The U.S. Supreme Court disagreed but wrote in its 5-4 opinion, “On remand, 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 other areas of the country the tribes and state have cooperatively worked out how those treaty rights can be exercised,” Mills said.
So defining where Crow hunters could pursue game might be negotiated between the sovereign tribe and the state.
Dwayne Meadows, executive director of the Wyoming Wildlife Federation, said his group is reserving judgement on how the high court’s ruling might affect the state’s elk populations or elk hunters.
“At this point it’s hard to be concerned because there are so many steps yet to go,” he said, and it could take years more in court.
“We’re going to have to wait and see how it’s defined,” Meadows said.
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Wyoming Attorney General Bridget Hill said she would not comment on pending litigation. But 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.
"With the remand, my administration will stand up for a system that preserves the decades of conservation work that has built a strong wildlife population in the Bighorns, and we will work to find solutions for all those who hunt."
The U.S. Supreme Court decision is not likely to apply to other tribes in the state, such as the Shoshone-Bannock, according to one legal scholar.
“Today’s opinion is best thought about as the resolution of a narrow dispute over treaty language between the Supreme Court (in 1896 and 1999), the Tenth Circuit (in 1995), and the Wyoming Supreme Court (this case, in 2017),” Matthew Fletcher, professor of Law and director of the Indigenous Law and Policy Center at Michigan State University, wrote in an email. “Since the treaty language at issue is limited to only a few tribes, it is unlikely to have much precedential value elsewhere.”
But the American Civil Liberties Union, which filed a brief in favor of Herrera, sees the court’s decision as a win for Indian Country on a broader scale and the second one for tribes and treaty rights from this Supreme Court. The other ruling in March favored the Yakama Nation of Indians in a dispute with Washington state over fuel taxes and referenced the tribe’s 1855 treaty.
“It’s hard not to count this as a win,” said Lillian Alvernaz, Indigenous Justice Legal Fellow with the ACLU of Montana. “The arguments seemed pretty clear, but it’s always scary” when the Supreme Court considers Indian law.
“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,” Alvernaz said in a statement. “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,” she added. “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.”
While some Wyoming hunters may be imagining the worst following the ruling, on the Crow Reservation professor Timothy McCleary of Little Big Horn College said social media was blowing up with celebration of the high court's decision.
"It's pretty exciting," he said. "I wasn't particularly surprised."
McCleary was one of the signatories to a friend of court brief filed in Herrera's case before the Supreme Court.
He said a previous court ruling that found in favor of Wyoming over the Crow Tribe had left some tribal members feeling wronged. Now the issue will be how Wyoming handles the issue of conservation and occupation, he said.
"Wyoming can't take away the hunting right, it's there," he said.
"We're all human beings, it's just a matter of figuring out how to work together."