U.S. Supreme Court Rules in Favor of Native American Elk Hunter

By author of The Realblog with Stephanie Mallory

The Court cited an 1868 treaty between the Crow tribe and the U.S. Government

Clayvin Herrera, a member of the Crow Tribe who was convicted for elk hunting out of season in Wyoming's Bighorn National Forest back in 2014, had his day before the U.S. Supreme Court. On Monday, the Court ruled in favor of Herrera, citing an 1868 treaty between the Crow tribe and the U.S. Government that gave tribe members hunting rights on "unoccupied lands." Wyoming wasn't a state until 1890, but the Court ruled that the treaty was still in effect. 

According to the Billings Gazette, Herrera and other family members began their hunt on the Crow tribe's reservation in southern Montana but crossed into the neighboring Bighorn National Forest, where they killed several elk.

A game warden saw photos Herrera posted on a hunting website of him posing with an elk he shot with snow in the background. The officer identified the area in the photos as the Bighorn National Forest. Herrera was cited and fined $8,000 for killing an elk there during the winter, when it is prohibited.

Backed by the federal government, Herrera argued that when his tribe gave up land in present-day Montana and Wyoming under the 1868 treaty, it retained the right to hunt on the land, including land that became Wyoming's Bighorn National Forest.

The state of Wyoming argued that the Crow tribe's hunting rights ceased to exist after Wyoming became a state in 1890 or after the Bighorn National Forest was established in 1897. But Supreme Court Justice Neil Gorsuch joined justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in a ruling for Herrera.

The same lineup voted in favor of tribal rights in a previous case this term, ruling that members of the Yakima Nation did not have to pay taxes for importing fuel into Washington state.

The remaining four justices said they would have ruled that a prior case settled that Crow tribe members are subject to the game laws of Wyoming.

Despite the ruling, Herrera and the rest of the Crow tribe members are not currently free to hunt wherever and whenever they please. 

Michael Pearlman, communications director for the office of Wyoming Governor Mark Gordon, said the Supreme Court sent the case back to the lower courts where the state can argue that it can regulate hunting by Crow tribe members for the management of species. The state can also try to argue that the tribe's treaty rights don't extend to the specific area of Bighorn National Forest because it is "occupied land."

Herrera's lawyers have argued that the location where he was hunting was covered by the treaty, and data shows that elk are overpopulated in the state.

"A quick check with our Att'orney Generals office confirmed that nothing on the ground changes until the case has been resolved and all the issues have been fully litigated," Pearlman said. "Wyoming will continue to enforce its hunting and fishing regulations to members of the Crow Nation (and everyone else) until that happens."

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