Supreme Court ruling on tribal treaty rights brings no immediate changes to hunting seasons

Decision does not allow tribal members to hunt without restriction

Posted 5/23/19

From county commission meetings to the governor’s office, a U.S. Supreme Court ruling on a Crow tribal member’s alleged poaching in the Bighorn National Forest has officials and hunters …

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Supreme Court ruling on tribal treaty rights brings no immediate changes to hunting seasons

Decision does not allow tribal members to hunt without restriction


From county commission meetings to the governor’s office, a U.S. Supreme Court ruling on a Crow tribal member’s alleged poaching in the Bighorn National Forest has officials and hunters discussing — and mostly guessing about — the ramifications of the decision.

The Supreme Court’s 5-4 decision can be considered a victory for Clayvin Herrera, who appealed his conviction for killing an elk out-of-season in the Bighorn Mountains. However, Herrera is not off the hook and there won’t be a free-for-all in the forest, or anywhere else in the region, according to officials and those familiar with the case.

The dispute hinges on the interpretation of a 1868 treaty between the federal government and the Crow Tribe.

The treaty promised that — in exchange for the government acquiring roughly 30 million acres of the tribe’s territory in modern-day Montana and Wyoming — the Crow people would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon … and peace subsists … on the borders of the hunting districts.”

Herrera contends that language gives him the right to hunt in the Bighorn Mountains.

The State of Wyoming disagreed, arguing that the tribe’s hunting rights ended in 1890. That’s when Wyoming became a state and assumed the power “to regulate the killing of game within [its] borders.” The state also argued that the Bighorn National Forest is not “unoccupied,” given that it was “reserved from entry or settlement” in 1897.

However, on Monday, a Supreme Court majority made up of Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Neil Gorsuch affirmed that the Crow Tribe’s hunting rights under the 1868 Treaty of Fort Laramie remain valid.

“The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve,” Justice Sotomayor wrote for the majority.

The court sent two issues back to Wyoming’s court system for further debate: whether the specific area in the forest where Herrera killed the elk was “occupied,” and whether the state has the right to make regulations to manage wildlife “in the interest of conservation.”

At Tuesday’s Park County Commission meeting, Chairman Jake Fulkerson said he had thought the court’s ruling meant tribal members “could go hunt anywhere, anytime they want.”

“That’s what you would think, but no,” responded Commission Lee Livingston, who, as an outfitter, has been closely tracking the the issue.

“It’s not a slam dunk,” Livingston said, adding that he plans to continue to track the issue closely.

The big worry among some sportsmen was that tribal members might be allowed to hunt in Yellowstone National Park, Livingston said. However, he noted that the Crow treaty only allows hunting on unoccupied land immediately adjacent to the Crow Reservation in southern Montana.

“The short version is, nothing’s changing tomorrow. The hunting seasons are going to continue as-is,” Livingston said.

“They [Wyoming game wardens] just probably won’t be arresting any Indians,” offered Commissioner Joe Tilden.

“Probably not,” Livingston agreed.

However, Brian Nesvik, director of the Wyoming Game and Fish Department, said the department will continue to prosecute anyone caught hunting without a proper license — including tribal members.

Until the two remanded issues are decided, all current state regulations remain the same, Nesvik said. 

“It’s not resolved, and today nothing changes on the ground,” Nesvik said. “Elk management will continue.”

Wyoming Gov. Mark Gordon issued a statement Tuesday confirming the state’s commitment to managing wildlife in the Bighorn National Forest.

“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,” Gordon said.

He also was clear that the state will continue to prosecute any violation of hunting and fishing regulations.

“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,” Gordon said.

The case has been argued now for five years. Following three judicial rulings, the U.S. Supreme Court accepted review of the case against Herrera, who killed an elk on public land out of season in January 2014 in Sheridan County. Few will speculate as to how much longer it will take to reach a final ruling.

University of Montana law professor Monte Mills, who worked on a brief in support of Herrera, said he has no idea how much longer the case will remain unresolved.

Mills said the foundation of the case was resolved by the court — the 1868 treaty is still valid — but there are many arguments to be made before the existing regulations will be affected.

While the Herrera case is specific to the Crow Tribe and the Bighorn National Forest, the Supreme Court’s decision on the validity of the treaty may impact future interpretations of treaty rights cases, he said. The question is “whether states still — even if there is a treaty right and whether the tribe can exercise those treaty rights — can the state regulate how tribes exercise those rights,” he said.

“My crystal ball has been a little cloudy these days. It’s always tough to predict kind of what things may mean,” Mills said.

Gregory Ablavsky, an associate professor at Stanford Law School, suggested in a post for the SCOTUSblog that the tone of the court’s ruling might be more important than the specific reasoning.

“Perhaps most notably, Justice Neil Gorsuch’s willingness to break with the other conservative justices and join the court’s more liberal wing — hinted at in earlier Indian law decisions — may signal an emerging coalition in favor of the rights of Native nations,” Ablavsky wrote.

In several cases, the Supreme Court has ruled that states can regulate the taking of wildlife, but “only where and in the interest of conservation of those species,” said Mills, who helps run the university’s Margery Hunter Brown Indian Law Clinic.

There are cases from across the country where tribes and states have fought court battles over treaties, he noted. But there have also been cases where the two sides have worked out treaty rights by compromising, Mills said.

“There are a number of examples where tribes, states, local communities and others have worked out cooperative ways to do that,” he said. “Everybody finds a way to accommodate both treaty reserved rights and the interests of others.”

Mills said he isn’t suggesting cooperation will happen in this case, only that he feels it’s a viable option to protracted legal battles.

Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh and Chief Justice John Roberts dissented from the majority. Justice Alito said the issue had already been settled. He noted in part a 1994 ruling from the 10th Circuit Court of Appeals, which said a Crow tribal member could not freely hunt in the Bighorns because the forest was no longer “unoccupied.”

However, the majority said the court had reversed that precedent in 1998, when it recognized the hunting, fishing and gathering rights of the Mille Lacs Band of Chippewa Indians in Minnesota.

(CJ Baker contributed reporting.)