Articles Posted in Hunting Rights of Native Americans

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The amount of land the federal government officially recognized as Native American land under tribal jurisdiction changed in the blink of an eye from 55 million acres (just 2% of all land in the United States) to 75 million acres. On July 9, 2020, the Supreme Court of the United States issued an incredible win in McGirt v. Oklahoma to Native Americans whose land has been continuously diminished over the last two hundred years.

As Justice Gorsuch recognized, this case quickly became two-fold. The issue of the case centered around a man named Jimcy McGirt; the case appeared before the Court as Mr. McGirt appealed a criminal conviction from the Oklahoma state courts. The case quickly transformed into something much greater: Who owns the large portion of land in northeastern Oklahoma? The United States or the Creek Nation? As the Court decided, the land belongs (and has belonged) to the Creek Nation since 1832.

This issue first appeared in Murphy v. Royal in 2017. 876 F.3d 896 (10th Cir. 2017). There, a man named Murphy was accused of killing another man in Oklahoma. He was tried and convicted in the Oklahoma state courts and was sentenced to death. Id. at 904-05. Though it proceeded through a complicated appeal, it ended up in the Tenth Circuit Court of Appeals discussing one issue: did the Oklahoma state courts have jurisdiction over the case? Id. at 911. Mr. Murphy’s argument was, essentially, that because the crime occurred on land that belonged to Creek Nation (as a part of the Creek Reservation), only federal courts maintained jurisdiction over the case; the state courts never had jurisdiction over his case at all. Though the Tenth Circuit agreed with Mr. Murphy, the case was then appealed up to the Supreme Court of the United States where it remained without an opinion for two years.

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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.

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