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Chris Aadland
Indian Country Today and Underscore News

Crow tribal citizens are still fighting to exercise off-reservation hunting rights in Wyoming after a U.S. Supreme Court victory more than two and a half years ago and recent state court wins.

In 2019, the Supreme Court ruled in favor of Crow tribal citizen Clayvin Herrera, who was cited for killing three bull elk in 2014 out of season and without a license during a hunt with several other tribal citizens. They had started on Crow tribal lands while following a group of elk and crossed into the Bighorn National Forest.

Herrera had been found guilty of two misdemeanors in a jury trial after he unsuccessfully claimed in state courts that the tribe’s 1868 Fort Laramie treaty, which guaranteed Crow tribal citizens’ right to hunt off-reservation in “unoccupied lands,” made him immune from prosecution. The Supreme Court agreed in the 2019 Herrera v. Wyoming decision and affirmed the tribe’s off-reservation hunting rights.

The Crow Tribe and treaty rights organizations viewed the decision as a victory for tribal sovereignty and treaty rights. But the ruling was also one that prompted concern – which tribal leaders at the time dismissed as misguided and based on stereotypes – from Wyoming officials and others about unregulated hunting by tribal citizens outside of reservation boundaries.

Since then, the state has continued to successfully – until recently – fight against the Supreme Court decision in state courts, saying the state should ignore the ruling and should instead rely on a previous court case the Supreme Court had repudiated in its Herrera decision to continue uphold its prosecution of him and discourage tribal members from exercising off-reservation hunting rights.

But now, tribal citizens with off-reservation treaty rights could be closer to being able to hunt outside of tribal lands without the threat of state interference. Earlier this month, the Wyoming Supreme Court denied a request from the state to reverse a December decision by a lower state court. The December decision rejected the state’s rationale in ignoring the Herrera treaty rights affirmation to continue its prosecution of him.

“We're certainly happy with the district court's decision, and we're certainly happy with the Wyoming Supreme Court choosing not to take this case,” said Dan Lewerenz, a staff attorney with the Native American Rights Fund who has represented the Crow Tribe in the issue. “But we're still waiting for the state of Wyoming to do the right thing.”

The state’s resistance to the 2019 U.S. Supreme Court ruling, according to Lewerenz, has discouraged tribal citizens from exercising their off-reservation hunting rights in Wyoming because of the threat of prosecution. In fact, he said the state since that 2019 treaty rights affirmation has arrested some Crow tribal citizens who have attempted to hunt outside of tribal boundaries without following state hunting regulations.

“Wyoming appears willing to continue to arrest Crow Tribe hunters for doing what the treaty said they could do and what the U.S. Supreme Court said they could do,” Lewerenz said.

Crow Tribe flag. (Photo courtesy of Crow Tribe Facebook page)

Additionally, Wyoming’s opposition to the Supreme Court ruling and further attempts to uphold Herrera’s poaching convictions have complicated efforts by at least one other tribe with similar treaty rights from implementing its own off-reservation hunting regulations for tribal citizens in the state.

The state could appeal the decision to the U.S. Supreme Court, further prolonging resolution in the case.

It’s unclear how the state intends to proceed, though. The Wyoming Attorney General’s Office declined to say whether it was planning to appeal, saying it does not comment on pending litigation.

A continuing saga

When the U.S. Supreme Court affirmed the Crow Tribe’s treaty right to hunt on unoccupied lands, it also sent the case back to state courts to answer two questions: one, whether there was a conservation justification for the state to regulate hunting by Crow tribal citizens and; two, whether the area of the Bighorn National forest where Herrera killed the elk in 2014 could be considered occupied.

Before that ruling, prosecutors in Wyoming state courts had successfully argued that previous court case judgments, 1896’s Ward v. Race Horse and 1995’s Crow Tribe of Indians v. Repsis, meant the Crow Tribe’s off-reservation treaty hunting rights disappeared when Wyoming became a state and the Bighorn National Forest was established.

The Supreme Court, however, ruled that those treaty rights remained intact. The court essentially eliminated Wyoming’s justification for the Herrera prosecution by repudiating the Repsis ruling because a Supreme Court treaty rights victory ruling from 1990 had discredited the legal basis – the Race Horse case – the Repsis decision needed to remain valid. That meant Herrera could now bring up his treaty rights as a defense in state court because the Supreme Court had confirmed they still existed.

Still, the state had continued to insist that Repsis decision was proper to cite as it sought to uphold Herrera’s conviction, arguing that the courts should disregard the Supreme Court’s ruling and adopt the dissents, which carry no legal force, of the four dissenting justices – a rationale Herrera’s lawyers called “astoundingly brazen.”

In 2020, a lower Wyoming circuit court agreed with the state, upholding Herrera’s conviction.

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But on Dec. 3, after an appeal from Herrera, a higher Wyoming district court disagreed, reaffirming the Supreme Court’s finding, ruling that the state’s continued reliance on the now-repudiated Repsis case was improper. In the decision, the judge ordered a hearing, saying if the state wanted to continue its prosecution, it must prove that it has a conservation justification to prohibit off-reservation treaty hunting and that the area of the Bighorn National Forest where Herrera killed the elk could be considered occupied.

The state appealed that decision on Dec. 20 to the Wyoming Supreme Court, asking it to review the district court. The Wyoming Supreme Court denied that request on Jan. 4.

Prinz Three Irons hunts the face of the Big Horn Mountains at Montana and Wyoming state line in winter 2019, a place where most Crow hunters received fines from Wyoming Fish and Game officers, despite treaty rights. (Photo courtesy of Prinz Three Irons via  Four Points Press)

The victories are positive signs, Lewerenz said, especially because he said the state doesn’t have a strong argument for prohibiting off-reservation treaty hunting for elk, at least in the Bighorn National Forest, because the animal overpopulated there.

The Crow Tribe has also asked federal courts to formally vacate the previous Repsis ruling, which Lewerenz said would eliminate the ability of Wyoming to further argue issue preclusion from that Repsis case banning tribal members who hunt outside of reservation boundaries from using treaty rights as a defense to prosecution. It would also mean other states, like Montana, wouldn’t be able to rely on the case to prosecute tribal members for off-reservation hunting.

Wyoming’s federal district court ruled against the tribe and NARF last year, mainly because that judge said his court didn’t have the authority to rule on the issue, but said that the higher U.S. Court of Appeals for the 10th circuit did, Lewerenz said. The case is now pending before that court.

“We're hoping that the state will just do the right thing and give up on this appeal, give up on trying to enforce their law against legitimate treaty hunters,” he said. “But we're confident that the 10th circuit will see things the right way.”

Anxious to exercise a right

Since the U.S. Supreme Court’s Herrera ruling in 2019, Lewerenz said the Crow Tribe and its citizens have been eager to exercise their affirmed hunting rights. But the unsettled nature of the dispute has discouraged many from doing so.

Wyoming’s “aggressive enforcement,” even after that ruling, Lewerenz said, has had a “chilling effect on Crow tribe members, many of whom just don't have the means to resist a state court prosecution if they happen to be arrested for exercising their legal rights.”

Michael Pearlman, a spokesman for Wyoming Gov. Mark Gordon, did not specify if any tribal citizens had been cited for off-reservation hunting, but said the state hadn’t changed its stance that tribal citizens with off-reservation hunting rights must still follow state hunting regulations. He said the state has communicated that position to any tribal members who have asked.

Like the Crow Tribe, the Eastern Shoshone Tribe, which share’s Wyoming’s Wind River Reservation with the Northern Arapaho Tribe, has off-reservation hunting rights on “unoccupied lands” guaranteed in the Fort Bridger Treaty of 1868. In the months following the Supreme Court ruling in the Herrera case, the tribe announced plans to begin allowing tribal citizens to hunt outside of the reservation’s boundaries.

At the time, the tribe told state lawmakers that any hunting outside of tribal lands by Eastern Shoshone citizens would be tightly governed through regulations like seasons and bag limits, and that the tribe’s regulation would prioritize conservation. The tribe formed a committee in 2019 to discuss the issue and draft regulations.

The committee had regularly met until 2020, when the COVID-19 pandemic paused the process. But the uncertainty created by the Herrera case continuing in state court also added to the delay, said John St. Clair, chairman of the Eastern Shoshone Business Council.

“We've started on it and those two issues have kind of put it to a standstill,” he said of finalizing off-reservation hunting regulations for tribal members.

With the recent rulings in state court, St. Clair And hoped to bring up the topic when tribal leaders meet with Gordon later this month as part of a regularly scheduled quarterly meeting with Gordon’s office, where he said he would ask Gordon about how to move forward with the tribe’s off-reservation hunting plans.

While the state has attempted to address the issue through the courts, some have suggested that the state instead negotiate, at least Eastern Shoshone, the terms of an agreement to address the issue and prevent any other time-consuming court cases from flaring up.

At an August 2021 meeting of the Wyoming Legislature’s tribal relations committee, Republican Wyoming state senator Affie Ellis, who is also a Navajo Nation citizen and attorney, asked a member of Gov. Mark Gordon’s staff why the state is prolonging the issue through the courts.

She said she thought it made more sense for the state, at least in the case of the Eastern Shoshone Tribe, to work on an agreement, like a compact or legislation, to avoid further conflict in the courts, allow the state to advance conservation goals and allow tribal members to assert their treaty rights without worrying about punishment from the state.

“My concern is that this is going to drag on for another decade and then in a decade we’ll finally be going ‘OK I guess we need a compact’ - things that I think we already kind of know,” Ellis, one of the committee’s co-chairs, said at the meeting.

Gordon’s staff member, Emily Soli, told Ellis that discussions around agreements with tribes were premature until the courts ruled on questions like defining occupation and whether the state had conservation justifications for regulating hunting by tribal members with treaty rights.

In an emailed response to questions, Michael Pearlman, a spokesman for Gordon, said that’s still the approach the state is taking. He said the state had initial conversations with the Crow Tribe about the issue last year that have since stalled. Additionally, Pearlman said the state would wait for courts to determine questions around “conservation necessity” before deciding whether a compact with the Eastern Shoshone Tribe is necessary.

“The State believes that its regulations relating to hunting seasons, bag limits, and licensure are both reasonable and necessary to preserve the state's wildlife resources, and therefore that such regulations should be imposed on hunters with treaty rights just as they are imposed on Wyoming hunters,” he said. “We are hopeful that our state courts will find the appropriate balance of interests, given the importance of both Tribal treaty rights and wildlife conservation.”

The Shoshone-Bannock Tribes of Idaho, who signed the same 1868 treaty as the Eastern Shoshone, and has exercised its rights in Idaho, and on a more limited basis in Montana and Wyoming, for years. The tribe, which has had to fight two court battles to assert that right, has helped the Eastern Shoshone by sharing it’s off-reservation hunting regulations model as it works toward asserting its treaty right.

The tribe also met with Crow leaders after the Herrera decision in 2019 to discuss the issue.

Shoshone-Bannock Business Council Secretary, Ladd Edmo, told the committee last year at the same meeting that the tribe would be happy to work with the state and share its expertise and experiences to speed up the process for the Eastern Shoshone to develop its regulations.

“Rather than relying on confrontation in a legal setting, the Tribes and State could be harnessing the same energy to collaborate on mutually beneficial programs that protect, preserve and enhance big game species for all residents of Wyoming and the Tribes who still call it home,” the Tribes’ Chairman, Devon Boyer, wrote in 2020 to the Legislature’s tribal relations committee. “The Tribes should be viewed as a partner with parallel interests in maintaining high quality hunts throughout Wyoming.”

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This story is co-published by Underscore.news and Indian Country Today, a news partnership that covers Indigenous communities in the Pacific Northwest. Funding is provided in part by Meyer Memorial Trust.