Clayvin Herrera, in white cap, is seen here with members of his family on the Crow Reservation in Montana. Photo: Kristy Bly / World Wildlife Fund

Law | National

Supreme Court schedules hearing in third Indian law case

Monday, December 3, 2018

The U.S. Supreme Court will hear arguments in Herrera v. Wyoming, a treaty rights case, on January 8, 2019.

The outcome will determine whether citizens of the Crow Tribe can be prosecuted for hunting on off-reservation treaty territory in the state of Wyoming. The lower courts have ruled that they lost those rights when Wyoming was admitted to the Union.

The case is notable in that the Supreme Court typically does not agree to hear cases in which an Indian or tribal plaintiff has lost at the lower level. But Clayvin Herrera, who was convicted for killing a trophy elk in the Bighorn Mountains of Wyoming, has a powerful supporter of his treaty rights -- the Trump administration.

"The Crow did not lose their right under the 1868 treaty to hunt on unoccupied lands of the United States when Wyoming became a state," the Department of Justice wrote in a brief in support of Herrera.

Herrera also has many supporters in Indian Country, with the Crow Tribe, the Shoshone-Bannock Tribes, two Ute tribes and treaty tribes from the Pacific Northwest submitting briefs in support. More than a dozen tribes signed onto a brief filed by the National Congress of American Indians.

According to the Shoshone-Bannock Tribes, whose treaty includes an off-reservation hunting provision identical to that of the Crow Tribe, "a state’s admission to the Union on an equal footing does not extinguish treaty rights to hunt, fish, and gather off-reservation because Indian treaty rights can 'co-exist with state management of natural resources.'"

Non-Indians are paying close attention too. The Wyoming Stock Growers Association, the Association of Fish and Wildlife Agencies, the Western Association of Fish and Wildlife Agencies, Safari Club International and the states of Nebraska, Kansas, Louisiana, North Dakota, South Dakota and Texas all opposing Herrera. The Citzen Equal Rights Foundation and the Mille Lacs Equal Rights Foundation -- two anti-Indian groups -- also filed a brief against Herrera.

According to the six states, which are home to dozens of tribes, "the decided nature of the termination of the Crow Tribe’s off-reservation hunting rights is clear."

The Trump administration is seeking to participate in the upcoming. The Supreme Court has not yet ruled on the November 15 motion.

Herrera v. WyomingSupreme Court's current term, which began in October. Arguments already took place in the prior cases: Washington State Department of Licensing v. Cougar Den on October 30 and Carpenter v. Murphy on November 27. Decisions are pending in both cases.

Briefs from Tribal Supreme Court Project

Brief for Petitioner [Clayvin Herrera]

Amicus Brief of Eastern Shoshone Tribe

Amicus Brief of Indian Law Professors

Amicus Brief of Natural Resources Law Professors

Amicus Brief of Southern Ute Indian Tribe and Ute Mountain Ute Tribe

Amicus Brief of National Congress of American Indians, et al.

Amicus Brief of Pacific and Inland Northwest Treaty Tribes

Amicus Brief of Shoshone-Bannock Tribes of the Fort Hall Reservation

Amicus Brief of Timothy P. McCleary, et al.

Amicus Brief of Crow Tribe of Indians

Amicus Brief of United States