Welcome
The United States Law Week

Tribal Dispute Hits Supreme Court With Trump Support

Jan. 7, 2019, 9:45 AM

What started as a simple elk hunt on a Montana reservation has morphed into a U.S. Supreme Court case with potentially dramatic consequences for American Indian tribes.

Crow tribe member Clayvin Herrera says he was just hunting to feed his family as his ancestors have done for years. But Wyoming says he had no right to take the hunt into its forest.

The justices will hear arguments tomorrow in the dispute over an old federal treaty that could not only impact tribes across the country but also farming, ranching, and wildlife interests.

The answer to the question whether the Crow still have off-reservation hunting rights from the 1868 treaty has “enormous practical and spiritual significance” and could “threaten the rights of numerous other Indian tribes that long ago reserved similar off-reservation protections in their own treaties with the United States,” Herrera says in a legal filing ahead of the oral argument.

It’s the third high court clash this term asking the justices to parse an old treaty’s modern effect against the backdrop of the government’s serial broken promises to Indian tribes.

But this case is different from the others in at least one important respect: Herrera has the Trump administration’s support. The federal government sided with Oklahoma and Washington state in other tribal disputes already argued this term.

So when Herrera’s lawyer argues to the justices that the off-reservation treaty rights still exist, a federal lawyer will be there, too, arguing the same.

That leaves Wyoming to defend a state court decision concluding otherwise—a decision that Herrera’s lawyers call “profoundly wrong and profoundly unsettling.”

Stone Age Hunters, Misdemeanors

In 2014, Herrera and other Crow members went hunting on their reservation in Montana. They followed elk that crossed into the Bighorn National Forest in neighboring Wyoming, shot the elk there, and took the meat back to Montana.

Wyoming charged Herrera with two misdemeanors for hunting without a license during “closed season.” A state jury convicted him.

But the answer to the hunting rights question affects more than just Herrera’s low-level convictions. It also has “dramatic consequences for the Crow and numerous other tribes,” he says, noting that other tribes also rely on reserved treaty rights.

These other tribes likewise submitted legal filings to the high court supporting Herrera’s position, as have scholars who study these issues. Meanwhile, other states have lined up behind Wyoming, as have farming, ranching, wildlife, and hunting groups.

Herrera stresses that hunting is central to the Crow tribe, which originated in Canada with “Stone Age hunters” and migrated over 300 years ago to what’s now southern Montana and northern Wyoming.

The tribe’s 1868 treaty with the federal government created their reservation in the Montana part, with the tribe giving up present-day Wyoming land in exchange for payments, goods, and protection.

Relevant to the upcoming Supreme Court argument is part of the treaty that gave the Crow hunting rights on the “unoccupied lands of the United States” that the tribe gave up “so long as game may be found thereon.”

But Wyoming says those hunting rights have since been eliminated, either when Wyoming became a state in 1890 or when the Bighorn National Forest was established in 1897.

Those rights were temporary, Wyoming insists, and if statehood didn’t extinguish them, then the creation of the national forest “was an act of occupation, placing that land outside of the ambit of the Crow Treaty right.”

Herrera, for his part, says that siding with the state instead of the two parties who actually signed the agreement would be “particularly misguided.”

The case is Herrera v. Wyoming, U.S., 17-532, oral argument 1/8/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com