Herrera v. Wyoming (Decision May 20, 2019)
A member of the Crow Tribe of Montana maintains a treaty right to hunt elk in Wyoming’s Bighorn National Forest.
In the face of conflicting precedent, the Supreme Court stuck to modern canons of treaty interpretation. The Court rejected Wyoming’s efforts to preserve older case law and upheld the terms of the 1868 Treaty of Fort Laramie allowing Tribe members to hunt on “unoccupied lands.”
Clayvin Herrera, a member of the Crow Tribe of Montana (Apsáalooke Nation), pursued game elk from Crow reservation land in Montana into Bighorn National Forest in neighboring Wyoming. Wyoming later charged and convicted Herrera of hunting without a Wyoming license off-season.
The 1868 Treaty of Fort Laramie preserved the Crow hunting rights in their traditional territory, including “unoccupied” lands off-reservation, “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.” The trial court in Wyoming denied Herrera the opportunity to use the treaty as a defense. On appeal, the Wyoming appellate court upheld his conviction, citing to a Tenth Circuit case that found the treaty right extinguished when Wyoming became a state.
Did the treaty right survive statehood?
While off-reservation state regulations generally apply as they would to non-Tribal citizens, such as the need for a hunting permit, the treaty here pre-empts the state law. The Crow Tribe, like many others, negotiated extensively for their right to continue hunting in their traditional territory despite being confined to a reservation. The Treaty of Fort Laramie intended to permanently preserve the Crow’s ability to continue traditional ways of life, such as subsistence hunting. In exchange, they gave up significant amounts of their homelands for American settlement.
However, not all treaty rights last forever in the eyes of the Court. Despite similar language preserving off-reservation hunting, the 1896 Court in Ward v. Race Horse upheld the conviction of a Shoshone-Bannock member for violation of state hunting laws. The Race Horse Court reasoned that because Wyoming was admitted on “equal footing” with all other states, pre-statehood treaty rights that interfered with state regulatory authority could not survive.
In 1995, the 10th Circuit applied Race Horse to a dispute over the Crow Tribe’s hunting rights, and held that Wyoming’s statehood extinguished the Tribe’s off-reservation hunting rights. In 1999, though, the Supreme Court in Minnesota v. Mille Lacs departed from Race Horse, saying that while treaty rights may end upon “clearly contemplated” conditions, statehood did not categorically abrogate treaty hunting. Herrera argued that Mille Lacs should apply, not the now-outdated Race Horse.
The Supreme Court agreed with Herrera that Wyoming statehood did not automatically end the Crow treaty hunting rights. Looking to Mille Lacs, the Court noted that the treaty did contemplate conditions upon which the right would end, but statehood was not one of them. The United States did not mention statehood during negotiations. Instead, the treaty spelled out when the right would end: if the land became occupied, if game no longer lived on the lands, or in times of conflict, the right would terminate. Since statehood was not in the treaty, nor are hunting rights incompatible with statehood, the rights remained.
Is the land occupied?
The Supeme Court also addressed whether one of the right-ending conditions has been satisfied here. Wyoming argued that the establishment of the Bighorn National Forest meant those lands were no longer “unoccupied” and eligible for treaty hunting. The Supreme Court disagreed, drawing on the canons of treaty interpretation that ambiguous language must be read as the Tribes would have understood them when signing. The Court saw unoccupied as meaning not yet settled by American colonizers, as the Crow would have seen it at the time. Establishing a national forest was not categorically an “occupation,” but the Court left the issue of whether certain parts of the forest may be occupied to the lower courts. Additionally, Wyoming may still regulate for “conservation necessity.”
Can the Tribe reargue the same issue?
The Wyoming appellate courts acknowledged that Mille Lacs ordinarily would apply here, but that Herrera was precluded from arguing it since the issue was settled already by the 10th Circuit in 1995. Essentially, issue preclusion prevents repeated, and unnecessary re-litigation of issues from clogging up courts. The majority opinion here disagreed that the previous 10th Circuit opinion still bound members of the Crow Tribe, because Mille Lacs effectively overruled the precedent it relied upon. The Court agreed that Mille Lacs was a sufficient departure in the underlying law that any prior decisions were not binding. The dissenting opinion, however, agreed with the Wyoming courts that Herrera should be bound by the old precedent.