Tribal hunting rights case returns to court

SHERIDAN — Attorneys for Crow tribal member Clayvin Herrera argued in a written filing in 4th Judicial District Court that the latest ruling on the case surrounding tribal hunting rights by Sheridan County Circuit Court should be reversed and remanded, again.

Circuit Court, which issued its ruling in June 2020, concluded that issue preclusion applies to both the occupation and conservation ruling and cited prior cases — primarily Crow Tribe of Indians v. Repsis and Ward v. Race Horse — that considered similar issues. 

Issue preclusion centers around the idea that the issue has already been decided in court and therefore is not eligible to be litigated again. 

Herrera’s attorneys argued in the recent court filing that the U.S. Supreme Court’s ruling on the case didn’t allow for review of issue preclusion, and, in fact, affirmed Herrera’s tribal hunting right in the Bighorn National Forest. 

“Simply put, it is time for the state to follow the Supreme Court’s 2019 Mandate, recognize Mr. Herrera’s right to hunt in the BHNF, and either dismiss this prosecution, or at the least focus solely on the two issues remanded, site-specific occupation and conservation necessity, not issue preclusion,” Herrera’s attorneys wrote. 

Herrera’s case began in January 2014 when he was cited for taking big game without a license on the Bighorn National Forest. 

Herrera pleaded not guilty and moved to dismiss both charges, exerting his right as a Crow tribal member to hunt “unoccupied” lands pursuant to the 1868 Treaty of Fort Laramie. 

In early proceedings, the state argued the land is, in fact, occupied and a conservation necessity exists to regulate hunting, even by tribal members. 

Herrera was found guilty in Sheridan County Circuit Court and appealed his case up to the U.S. Supreme Court. 

In 2019, the U.S. Supreme Court affirmed Crow hunting rights and overturned previous court decisions based on occupation arguments — saying neither Wyoming statehood nor establishment of the Bighorn National Forest nullified the treaty. 

The high court left two questions open for consideration upon remand to the lower courts — whether Wyoming could prove the specific site where the elk were killed as “occupied” and whether a conservation necessity requires tribal hunters to abide by state regulations. 

Herrera’s attorneys argue in their most recent filing that the state did not address those two issues, but instead focused nearly exclusively on issue preclusion. 

“This decision to follow the dissent instead of the holding of the High Court is extraordinary, and extraordinarily wrong,” Herrera’s attorneys said. 

The state now has several weeks to respond to the argument submitted by Herrera’s attorneys. While Herrera’s case continues to make its way through — and back through — the courts, the Crow Tribe of Indians in January asked the federal court in Wyoming to vacate the judgment from Crow Tribe of Indians v. Repsis, which held that the Crow Tribe’s off-reservation treaty hunting rights had been extinguished when Wyoming became a state. 

The 1994 ruling — according to a press release from the Native American Rights Fund, which is representing the Crow Tribe — relied heavily on the 100-year-old Supreme Court case Ward v. Race Horse in holding that Indian treaty hunting rights are incompatible with statehood. 

The Tenth Circuit, also relying on Ward v. Race Horse, upheld that decision in 1995. 

However, the Supreme Court’s decision in Herrera v. Wyoming has disrupted those earlier cases. 

“Ordinarily, the courts value finality, and a 25-year-old judgment would not be disturbed,” said NARF Staff Attorney Dan Lewerenz, who represents the Crow Tribe, in a press release. “But the courts also have a rule that specifically addresses situations like this — where the passage of time and changed factual or legal circumstances make it unjust to leave an old judgment in place.” 

Those familiar with the case have said the effects of the U.S. Supreme Court’s Herrera ruling could be far reaching. 

If the court continues to rule in Herrera’s favor and finds that areas such as the Bighorn National Forest are not “occupied” and that conservation necessity does not prevent tribal members’ ability to hunt contrary to state regulations, it could open up broad swaths of federal land to tribal hunting. 

In February 2019, Bill Yellowtail — a rancher from the Wyola area and former Montana state senator who has tracked the case — showed U.S. Forest Service employees maps of what was originally considered Crow territory at the time the 1868 treaty was signed. 

Those lands stretch from the Musselshell River in Montana to the Powder River in the east, south to near Sinks Canyon in Wyoming and west through the heart of what is now Yellowstone National Park at the headwaters of the Yellowstone River. 

“If the rule applies to the Bighorn [National Forest], by logical extension it includes the Shoshone [National Forest] and all of the others as well, and by the way, all of this BLM [land],” Yellowtail said in the February presentation to USFS employees. 

Crow tribal members say the hunting rights promised in centuries-old treaties are just as important today. 

“Our rights under the Treaties of 1851 and 1868 remain significant and important to Crow citizens today,” said Heather Whiteman Runs Him, a Crow Tribe member and director of the Tribal Justice Clinic at the University of Arizona James E. Rogers College of Law, who worked with NARF on the case seeking to vacate the Repsis judgment. “The right to hunt for subsistence on ceded lands must be respected by the State of Wyoming, especially after the Supreme Court’s ruling in Herrera.”