The NCSL Blog

11

By Lisa Soronen

Herrera v. Wyoming is a case of dueling Supreme Court precedent.

 (James Woodcock/The Billings Gazette file photo via AP) In this file photo taken on Feb. 17, 2015, Clayvin Herrera, right, a game warden for the Crow Tribe, and fellow tribe member Ronnie Fisher are shown on the Crow Reservation in northern Wyoming.Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming in 2014, and was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land.

In Herrera v. Wyoming, the Supreme Court will decide whether Wyoming's admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in the forest.

To decide this case, the lower court applied a 1995 Tenth Circuit decision, Crow Tribe of Indians v. Repsis, which raised the same question. In Repsis, the Tenth Circuit held that the “Tribe’s right to hunt ...  was repealed by the act admitting Wyoming into the Union” and that “the creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”

The Tenth Circuit in Repsis relied on an 1896 Supreme Court case, Ward v. Race Horse, involving off-reservation hunting rights and decided against a tribe. Four years after Repsis, the Supreme Court decided another off-reservation hunting rights case, Minnesota v. Mille Lacs Band of Chippewa Indiansin favor of a tribe.

At issue in this case is whether Mille Lacs overruled Race Horse and Repsis.

According to Herrera, Mille Lacs indicates Repsis was decided incorrectly. Herrera argues: “Repsis unambiguously held that ‘[t]he Tribe’s right to hunt reserved in the [1868 Treaty] was repealed by the act admitting Wyoming into the Union.’ Indeed, for good measure, it declared Race Horse ‘compelling, well-reasoned, and persuasive,’ and it cited Race Horse for the proposition that the hunting right preserved in the 1868 Treaty was a ‘temporary right’ that was ‘repealed with Wyoming’s admission into the Union.’ Mille Lacs rejects that reasoning across the board, from the notion that statehood abrogates treaty hunting rights to the ‘too broad’ construct of ‘temporary’ rights.”

Herrera also argues that the establishment of the Big Horn National Forest did not abrogate the Crow’s treaty rights. Indian treaties are interpreted as the Indians would have understood them.

The Crow Tribe understood “unoccupied lands of the United States” in the 1868 Treaty to mean “land undeveloped by white settlers.” In short, prohibiting “entry or settlement” on land by creating a national forest does not cause that land to become “occupied.”

Wyoming argues that Herrera’s interpretation of Mille Lacs is too broad. According to Wyoming, “Mille Lacs expressly validated the alternative holding of Race Horse: that Congress did not intend the language ‘the right to hunt on the unoccupied lands of the United States’ to survive Wyoming’s statehood.”

This case has implication beyond the Crow treaty because a number of other treaties agreed to before states joined the Union also allow tribal members to engage in subsistence hunting on the “unoccupied lands of the United States.” 

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.