An Elk Hunting Case Before the Supreme Court

Rockies Elk

A Case of Occupied Versus Unoccupied Hunting Land

Clayvin Herrera
Clayvin Herrera

On Jan. 8, a game warden for the Crow Tribe of southeastern Montana went before the United States Supreme Court. Clayvin Herrera was convicted by the State of Wyoming of killing a bull elk out of season, without a license in January 2014. Two of his companions, who also shot bulls after following the herd off the Crow Reservation across the state line into the Bighorn National Forest, both pleaded guilty to the same poaching charges and paid fines. Herrera however, has argued all the way to the highest court in the land that the 1868 Second Treaty of Fort Laramie guarantees his tribal “right to hunt on the unoccupied lands of the United States so long as game may be found thereon.”

Some hunters say a decision in favor of Herrera would be the end of game management as we know it, while tribal advocates and the federal government say it would correct a longstanding injustice.

Most native tribes allow and regulate hunting by their members within the borders of their respective reservations. Treaties between tribes and the United States often included similar language to that of the Crow, guaranteeing the right to hunt on other “unoccupied lands.” Indeed, many tribes already exercise those off-reservation hunting rights through agreements with state wildlife management agencies. Wyoming is the only Western state in which that does not occur.

Welcome to Crow CountryThe State of Wyoming argues that with its admission to the Union in 1890, the land within its borders became “occupied,” voiding those Crow hunting rights. They point to the 1896 decision in Ward v. Race Horse, where the Supreme Court ruled that the Shoshone-Bannack Tribe’s hunting rights had been voided by Wyoming statehood, because each state entering the Union did so on the same footing, which included sovereignty over their natural resources. And if that didn’t do it, says the state, surely Herrera’s kill site became “occupied lands” with the 1897 designation of that ground as the Big Horn Forest Reserve, a precursor to the national forest and one of the oldest protected landscapes in the country. In the 1995 Crow Tribe of Indians v. Repsis decision, the Tenth Circuit Court said just that: “The creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”


Crow Reservation
Crow Reservation

However, only four years after the Repsis decision, the Supreme Court ruled in Minnesota v. Mille Lacs Band of Chippewa Indians that this tribe did in fact maintain hunting and fishing rights on the lands they had ceded under similar treaty arrangement, but the justices stopped short of officially reversing either Race Horse or Repsis. This conflicting case law was the primary point of discussion in oral arguments before the court this year in Herrera v. Wyoming.

Many hunters and wildlife managers in Wyoming and beyond are concerned about the ramifications of the Supreme Court ruling in favor of Herrera—a likely outcome, especially given that the federal government intervened on behalf of Herrera. The Crow Tribe ceded 30 million acres in the Second Treaty of Fort Laramie, including modern-day Yellowstone National Park. Much of that ground could potentially be construed as “unoccupied.”

Crow Tribe in Court
Crow Tribe in Court 1-8-19

“If this Court reverses the judgment of the court below, Wyoming’s and other states’ long-recognized authority to regulate the use of resident wildlife could be instantly curtailed, with highly uncertain results for tribal and non-tribal beneficiaries as well as state and federal managers of natural resources,” says the amicus curiae brief submitted by the Association of Fish and Wildlife Agencies in support of Wyoming. “Management of wildlife resources held in trust by the states on one hand, and federal lands on the other, is a delicate dance even without the surprise of off reservation treaty rights long understood by game managers to be extinguished.”

The states of Nebraska, Kansas, Louisiana, North Dakota, South Dakota and Texas, the Western Association of Fish and Wildlife Agencies, and Safari Club International also intervened on behalf of Wyoming, citing similar concerns. A quick perusal of any Western hunting forum will provide numerous examples of the apprehension many hunters feel about this case.

Others say such concern is unfounded because many native tribes already exercise treaty hunting rights on public lands under agreements with state game agencies—and the species they hunt haven’t exactly gone extinct.

Sam Lungren, Feb 13, 2019, The Meat Eater


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Don McDowell, Arizona native, is an avid outdoorsman and has been an active bass pro fisherman for over 16 years and in the past 15 years has developed his own radio show promoting bass fishing and conservation efforts for bass fishing that escalated to nominations with several bass groups and organizations. In the past 12 years, Don has pursued his conservation agenda through AZBFN-TBF as Conservation Director and with the Arizona Game and Fish Department, in the spring of 2014 redesigned his website to include those efforts highlighted below and has increased the AZGFD exposure, public education of the AZGFD and Commission issues on his radio show and website soliciting local and national support for Arizona. 2014 has seen the founding of SRT Outdoors, Inc., 501 C3 organization, “Not for Profit, for Conservation” which is concentrating on grants for mitigating the effects of Gizzard Shad on Roosevelt lake thorough habitat enhancement, Florida Strain Bass stocking, lakes bottom mapping, etc. and feral hog research.

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