A Crow hunter whose poaching case went to the U.S. Supreme Court was vindicated in a decision on Monday, May 20, that upholds his people’s right to hunt off-reservation and off-season based on 1868 treaty rights.
Neil Gorsuch has proven to be a staunch supporter of native treaty rights, having previously affirmed rights under the 1855 treaty with the Yakama Nation pre-empting Washington state’s fuel tax.
In January 2014, Clayvin Herrera, a member of the Crow Tribe and a resident of the Crow Reservation in Montana, shot a bull elk in Wyoming’s Bighorn National Forest. He trudged through three feet of snow and across a state boundary to do so, and it took him eight hours to pack out the meat, which his family ate all winter. Later that year, Wyoming charged him for killing the elk out of season and without a license.
Herrera hunted the elk off-reservation, but he was acting under the protection of the 1868 Treaty Between the United States of America and the Crow Tribe of Indians. According to that treaty, when the Crow ceded 30 million acres of territory to present-day Montana and Wyoming, the tribe retained the “right to hunt on the unoccupied lands of the United States so long as game may be found on” and “peace subsists … on the borders of the hunting districts.”
But Wyoming refused to consider the 1868 Treaty in Herrera’s case. The lower court argued that when Wyoming became a state, the 1868 Treaty expired. The court also didn’t regard the national forest where the elk was killed “unoccupied.” Herrera appealed, but the state appellate court upheld the decision, and Wyoming’s Supreme Court denied review. In other words, Wyoming argued that its own existence trumped the treaty’s legality.
“We disagree,” Justice Sonia Sotomayor wrote in the 5-4 majority opinion, joined by Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Neil Gorsuch, a recent Trump pick. “The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve.” According to the nation’s highest court, the treaty trumped statehood.
“This day marks a victory for the Apsáalooke and all treaty tribes as our off-reservation hunting rights have been upheld by the Supreme Court of the United States,” Crow Tribal Chairman Alvin Not Afraid Jr. said in a statement. “Our right to hunt in the Bighorn Mountains on the reservation or beyond was important to our ancestors, is important to us today, and will be important to our children and their children. We look forward to seeing the state of Wyoming finally respect our 1868 Treaty rights.”
Paul McNamee says
I was pleased when I read this.
Dave Allen says
And the old west was kept alive and saved by five lawyers. Surely Old Man Coyote has had a hand in this.
The 68 Treaties (there are an entire series of them) were premised on the thought that the lands would be soon “occupied” by agriculture and industry, which in fact they were. The Court leaves that decision entirely open.
At best the hunting provisions were afterthoughts by drafters who assumed the game would soon all be gone, which they were wrong about. At worst, there was open discussion at the time that encouraged unregulated hunting by everyone as it was assumed that this would force the Natives onto the reservations and into farming.
That was the “old west”.
It’s the 20th Century West that has had the high game populations, with numbers of some populations being at an all time high, and others recovered due to 20th Century game management policies. And that was all supported by locals in the Western states. There’s been a big push in recent years towards game farming and land privatization in which would have the impact of forcing locals out. If that occurs, make no mistake about it, it’ll be the end of hunting, sooner or later, as it goes over to all head hunting, which most people really don’t support.
This decision doesn’t get us there, and if carefully read it leaves the door open to conservation and probably a tighter definition of “unoccupied”. But the concept that this preserves the “old west” is simply wrong, and we should be glad its wrong. The drafters of those 68 treaties didn’t want to preserve hunting for Indians, or anyone else. They wanted the game gone and Indians on their reservations. Those provisions were not a romantic concession, they were an afterthought by a group of people who assumed that all the elk, deer, antelope and buffalo would soon be dead and everyone would be living decent lives, by their way of viewing it, behind a plow.
That this didn’t occur was largely because people in the West, Indians and European Americans, didn’t see it had to be that way.
Point well taken. I think you have the right of it here…
Thanks for these thoughtful responses.
BTW, made the requested edit.
“BTW, made the requested edit.”
I mostly post early in the morning when I do, which is while I’m drinking coffee. My frequent typos demonstrate that I haven’t finished the daily ration of coffee as a rule at the time of my typing.
Brian H. says
It sets an interesting precedent. I believe the Utes have a similar treaty here in Colorado. I haven’t heard of incidents like this over here.
Indeed the decision has very wide application, as by and large all the 1868 treaties and those done in the same approximate time frame read the same way.
The decision is being over broadly read, however. What I suspect is that following decisions will define “unoccupied” more closely. Land that will truly be regarded as “unoccupied” are likely to be wilderness areas, which were withdrawn from occupation, and oddly enough parks, unless some interesting legal way to handle the park situation is found.
Additionally, and going back to the way it will probably be found, the likely result is also to continue to provide for the state’s ability to regulate. My suspicion is that this may end up displacing out of state licenses to some extent as Native Americans will have a preferential right in their place. That’s a result which, quite frankly, will make a lot of us who live in Western states happy as out of state license holders and outfitters aren’t necessarily all that well regarded by many locals.
Ugly Hombre says
“Neil Gorsuch has proven to be a staunch supporter of native treaty rights, having previously affirmed rights under the 1855 treaty with the Yakama Nation pre-empting Washington state’s fuel tax.”
Good calls by the good Judge…
More power to him!
Simple call by any judge. That merely reaffirmed well established prior decisions.
My lengthy commentary on the decision:
It’s interesting to see the reaction to this, as the decision combined with the briefs really doesn’t say what people seem to think it does.
And an addition: https://lexanteinternet.blogspot.com/2019/06/lex-anteinternet-potential-wildlife.html
Excellent. Read this, folks.
Your solution seems to be simple and equitable — maybe too much so for guvmint work. Thank you for weighing in on this.