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 | Opinion

Kerry Drake: U.S. Supreme Court got it right in Crow Tribe hunting case

Thursday, May 30, 2019

By Kerry Drake, WyoFile

wyofile.com

American history is rife with examples of states and the federal government failing to honor treaties with Native American tribes. The courts have often been party to such egregious injustice.

But not last week. On May 20, the U.S. Supreme Court ruled in favor of a Crow tribal member from Montana in his case against Wyoming. The dispute turned on an 1868 treaty that gave the Crow Tribe the right to hunt off their reservation on unoccupied lands.

In 2014, tribal game warden Clayvin Herrera led his family on an Elk hunt. They started their expedition in Montana, where there was no question of their hunting rights. Things got messy though when they pursued their quarry across state lines and killed three elk in the Bighorn National Forest in Wyoming.

Wyoming saw this as an act of poaching and fined Herrera $8,000, placed him on probation for one year and banned him from hunting in the state for three years.

Herrera appealed his conviction but lost in state court and the Wyoming Supreme Court. His lawyers had argued that under the 1868 Fort Laramie Treaty, the Crow Tribe was granted “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.”

For Clayvin Herrera and other members of the Apsáalooke Nation, the Supreme Court’s tribal treaty decision vindicates a right they believe essential. #HonorTheTreaties https://t.co/pbUkgxRdbv
— indianz.com (@indianz) May 29, 2019

But the state of Wyoming maintained that “as long as” doesn’t mean forever, and that the treaty was voided upon Wyoming’s statehood in 1890. And if the court wouldn’t buy that argument, state attorneys had another in their back pocket: The lands became “occupied” when the federal government turned them into a national forest.

“Wyoming statehood was not just a legal event, it was a recognition the once wild frontier was no more,” according to the state’s brief. “And the Crow Tribe understood that its hunting rights had ended.”

The nation’s highest court, however, didn’t swallow that spurious logic. In a 5-4 decision, the four liberal justices – Sonia Sotomayor, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan – were joined by conservative Neil Gorsuch.

Gorsuch may lean right, but he is also a Westerner who is certainly familiar with the historical record of tribes’ rights being usurped by lower courts. That circumstance likely influenced his decision to uphold tribal rights even though it meant breaking with the ideological right-wing stance of the current high court.

Herrera v. Wyoming, 17-532, was far from simple. The court had to sort out historic rulings on tribal hunting and fishing rights that have gone both for and against Native Americans.

In two years on the nation's highest court, Justice Neil Gorsuch has emerged as a reliable ally for tribal interests despite being picked by a president whose policies and actions have been disastrous for Indian Country. #HonorTheTreaties https://t.co/IL6fv9rpOw
— indianz.com (@indianz) May 24, 2019

In 1896 the Supreme Court determined that Wyoming statehood ended the right of the Shoshone Tribe to hunt on unoccupied U.S. territory. That might seem to have answered the legal question right there, but nine years later the court upheld treaties granting tribal fishing rights in the Pacific Northwest, ruling that statehood didn’t affect those pacts.

In 1999, a Chippewa fishing rights treaty signed in 1837 was ruled to still be in effect despite Minnesota’s claim that statehood terminated it. The Supreme Court said the language in its 1896 decision was “too broad to be useful in distinguishing rights that survive statehood from those that do not.”

Writing for the majority last week, Stotomayor noted, “There is no evidence in the treaty itself that Congress intended the treaty to expire at statehood, or that the Crow Tribe would have understood it to do so. Nor does the historical record support such a reading of the treaty.”

Lawyer Marc D. Slonim, who submitted an amicus brief in support of Herrera, told Time Magazine that in the 1860s the federal government didn’t want the burden of feeding Indians. “So allowing tribes to continue to hunt and fish off their reservations made a lot of sense,” he said.

In the early 20th century, however, states — driven largely by white society’s decimation of key resources like buffalo — enacted new conservation oriented hunting regulations, many of which also impinged on Native hunting rights.

Tribal communities meanwhile were reeling from a war of extermination. Historians note that they were in no position to pursue their legal hunting rights in court until the middle of the past century.

The Supreme Court got it right, but their ruling is an incomplete victory for Native people. Herrera’s case was ordered back to a lower court to determine if conservation needs give the state of Wyoming the right to regulate hunting by Crow tribal members.

Herrera still may have to pay the $8,000 fine. His attorneys are set to challenge that with the state’s own data showing that elk are overpopulated in Wyoming.

The United States will only honor the treaties it makes when they are forced to do it. #HonorTheTreaties https://t.co/urQFrEb8IP
— indianz.com (@indianz) May 23, 2019

The state could just drop the case, but probably won’t. Gov. Mark Gordon issued a statement after the ruling that his administration will “stand up for a system that preserves the decades of conservation work that has built a strong wildlife population in the Bighorns … [and] work to find solutions for all those who hunt.”

So, the court’s latest decision on tribal hunting rights may appear to some observers as merely symbolic, but it has served an important purpose. It has set a precedent that can be used in other tribal cases — an assertion treaties with the U.S. government remain in force unless and until Congress specifically votes to break them.

Lillian Alvernaz, Indigenous Justice Legal Fellow with the ACLU of Montana, put the ruling into proper perspective in a statement to the website nativenewsonline.net. She called it a “huge win” for Herrera that means tribal members can continue to hunt on unoccupied lands like the Bighorn Forest to provide sustenance for their families and children, whose access to healthy food is limited.

“Throughout the history of colonization, tribes have upheld their end of treaties while the federal government has consistently fallen short of its obligations,” she wrote.

Is Indian Country on a roll at the nation's highest court? For the second time this term, the Supreme Court has upheld a tribal treaty. #HonorTheTreaties https://t.co/utYsELBCOb
— indianz.com (@indianz) May 20, 2019

Alvernaz said she’s hopeful the decision “marks a new day, one where the federal government lives up to its treaty obligations and recommits to the important principles of tribal sovereignty and self-determination of tribes in the U.S.”

I doubt that Clayvin Herrera had the Supreme Court in mind when when he tracked those elk into the Bighorn National Forest. As a single father whose pay had recently been cut, he was probably thinking instead of a freezer full of meat for his three daughters.

But as happens so often in America, one man’s perseverance in pursuing justice against the odds is what empowers others who are struggling in the same boat.

Herrera and the Crow Tribe took on the state of Wyoming and won. And for at least in this one instance, Native Americans obtained justice that will hopefully live on in our court system.

Supreme Court Audio: Herrera v. Wyoming

Indianz.Com on SoundCloud: U.S. Supreme Court - Herrera v. Wyoming - January 8, 2019

Supreme Court Decision: Herrera v. Wyoming

Syllabus | Opinion [Sotomayor] | Dissent [Alito]

Supreme Court Documents: Herrera v. Wyoming

Docket Sheet: No. 17-532 | Oral Argument Transcript | Questions Presented

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Casper and can be reached at kerry.drake33@yahoo.com.

This article originally appeared on WyoFile, an independent nonprofit news organization focused on Wyoming people, places and policy, on May 28, 2019. It is republished with permission.