Court tells Wyoming to try again

On Monday, the U.S. Supreme Court got every state’s attention when it remanded a case back to a state court regarding tribal hunting rights.

In Herrera v. Wyoming, the Supreme Court ruled 5-4 that an 1868 treaty between the Crow tribe and the federal government honors the Crow tribe’s right to hunt in unoccupied lands of the United States.

Justice Sonia Sotomayor wrote the majority opinion. Ruth Bader Ginsburg, Elena Kagan, Neil Gorsuch and Stephen Breyer concurred.

In 2013, Clayvin Herrera and other Crow tribesmen followed a herd of elk from Montana into Wyoming. They killed three elk, posted photos on social media and took the elk back to their reservation in Montana.

In 2014, a jury in a Wyoming state court convicted Herrera of hunting without a hunting license and being an accessory to the same.

Herrera appealed to a federal district court, saying that the 1868 Fort Laramie Treaty guaranteed him the right to hunt regardless of state boundaries. The federal court ruled that the hunting rights granted by the Fort Laramie Treaty expired when Wyoming became a state.

In the Fort Laramie Treaty, the federal government gave the Crows the right to hunt on the “unoccupied” lands of the United States “so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.”

“Unoccupied” is the key word.

Wyoming argued that all lands within its borders became occupied in 1890 when Wyoming became a state.

The Supreme Court ruled that the hunting rights guaranteed by the Fort Laramie Treaty did not expire upon Wyoming’s statehood, and that Wyoming’s definition of “occupied” was faulty.

For starters, the Supreme Court said that the Wyoming Statehood Act does not show that Congress “clearly expressed” an intent to end the 1868 treaty’s hunting right. There is also no evidence in the treaty that Congress intended the hunting right to expire at statehood, or that the Crow tribe would have accepted an expiration date.

The Supreme Court also rejected Wyoming’s argument that, even if statehood did not abrogate the Fort Laramie Treaty’s hunting right, the right does not apply to the Bighorn National Forest, which became “categorically occupied” when it was created in 1897.

Citing Washington v. Washington State Commercial Passenger Fishing Vessel, the Court said the tribe would clearly have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians.

“That interpretation follows from several cues in the treaty’s text,” the Court said. “For example, the treaty made the hunting right contingent on peace ‘among the whites and Indians on the borders of the hunting districts,’ thus contrasting the unoccupied hunting districts with areas of white settlement.”

However, the Supreme Court also said that, even though the Bighorn National Forest did not become “categorically occupied” upon statehood, it is not categorically unoccupied, either.

On remand, the Supreme Court instructed the state to prove whether the exact place where Herrera and his friends killed their elk is “occupied” based on precedent definitions.

Conservationists fear that unregulated hunting rights will lead to decimation of game populations. Nathaniel Taylor, director of Indian Affairs, also submitted that concern to the record in 1867 while negotiating the Fort Laramie Treaty.

In the original trial, the state court decided that Wyoming could regulate the exercise of the 1868 treaty right “in the interest of conservation.” This is also a central tenet of Amendment 88 to the Arkansas Constitution, which guarantees a right to hunt, fish and trap in Arkansas.

The federal court did not address that issue, nor did the Supreme Court. On remand, the Supreme Court encouraged Wyoming to “press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation. We do not pass on the viability of those arguments today.”

Every state wildlife management agency hopes Wyoming gets it right in the doover.