Published on:

Can A Crow Hunt Elk In Wyoming? One Member Of The Crow Tribe Asks The Supreme Court

Buffalo_Hunt-300x209On July 10, 1890, Wyoming’s statehood was granted and it became the 44th state of the U.S.Decades and decades later, in January 2014, Clayvin Herrera of the Crow Tribe of Indians pursued a pack of elk outside his tribe’s reservation in Montana , and was led into Wyoming’s Bighorn National Forest. This hunt led to him being fined, receiving a suspended jail sentence, and having his hunting privileges suspended for three years.

When the decision was upheld by a state appellate court and then passed over by the Wyoming Supreme Court, Herrera asked the Supreme Court for review. The question at issue was, when Wyoming became a state, did the Crow Tribe members’ right to hunt outside the bounds of their state lines cease to exist? Herrera contended that his rights under an 1868 treaty between the tribe and federal government weren’t cut off when Wyoming achieved statehood, because, as the court came to find, the Wyoming Statehood Act did not negate the Crow Tribe’s hunting rights nor did the 1868 treaty expire at that time. Herrera also argued that the creation of the Bighorn National Forest actually reinforced the Tribe’s hunting rights by prohibiting settlement on that land. Understandably, Herrera expressed concern that his tribe was not the only one affected by the Wyoming court’s ruling.

The State of Wyoming argued that Herrera’s conviction should stand because Wyoming becoming a state abolished his tribe’s off-reservation hunting rights.

The Supreme Court requested the government’s view on the case, and the solicitor general urged the Supreme Court to grant the petition to hear the case, saying that the tribe’s hunting rights weren’t lost through the creation of Bighorn National Forest. And so, the Supreme Court agreed to hear the case on June 28.

On Monday, May 20, 2019, in the case of Clayvin Herrera, Petitioner v. Wyoming, the U.S. Supreme Court threw out Herrara’s conviction by a 5-4 vote, ruling that the tribe’s treaty right to hunt did not end when Wyoming became a state and indicating to Wyoming that a 1999 Supreme Court case involving the Mille Lacs Band of Chippewa Indians in Minnesota rejected a previous Supreme Court ruling from 1896 Supreme Court decision in Ward v. Race Horse, which said that treaty rights could essentially be “extinguished at statehood.” While Herrera’s claims are almost identical to a 1995 Tenth Circuit Case involving his tribe, Crow Tribe of Indians v. Repsis, the Supreme Court’s rejection of Race Horse, according to Herrera, permitted him to relitigate the validity of his hunting rights.

The court found that under the Supreme Court’s 1896 ruling in Ward v. Race Horse, “there simply is no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act,…nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so.”

Justice Alito, in his dissent, wrote that the majority failed to take into account one of the reasons for the lower court’s decision, which is that Bighorn National Forest is not unoccupied land, and argued that this meant the Crow Tribe does not have the right to hunt there because the Repsis holding was still binding on Herrera and the tribe. The majority opinion, however, in its rejection of the holding in Race stated that “the mere creation of a national forest does not render land occupied for purposes of federal treaty rights with Indians,” and that the Supreme Court’s ruling in the Mille Lacs case “justified an exception” that allows Herrera to argue for his hunting rights despite Repsis.

Herrera and his counsel feel that this victory has broad applicability to other tribes and their right to hunt. Justice Alito, however, wrote that “unfortunately, the track that the majority has chosen is no solution because today’s decision will not prevent the Wyoming courts on remand in this case or in future cases presenting the same issue from holding that the Repsis judgement binds all members of the Crow Tribe who hunt within Bighorn National Forest. Nonetheless, Alvin Not Afraid Jr., Crow Tribe of Indians Chairman, said in a statement that “our right to hunt in the Big Horn Mountains…was important to our ancestors, is important to us today, and will be important to our children and their children. We look forward to seeing the State of Wyoming finally respect our 1868 Treaty Rights.”