Elk Hunting and Treaty Rights

January 14, 2019
 
Sean Anderson University of Illinois College of Law

University of Illinois College of Law

Today, a story about elk hunting, Native American treaty rights, and a case that the Supreme Court will take up later this year. In 1868, the U.S. Government and the Crow Indian Tribe entered into an agreement called the Second Treaty of Fort Laramie. The tribe gave up possession of most of the land it had held under the first Fort Laramie treaty, accepting a much smaller reservation of about 8 million acres. But the tribe retained, as to the 30 million acres it gave up, the right to hunt in “unoccupied” federal lands.

Fast forward to 1995, when the U.S. Court of Appeals held that the Crow tribe’s hunting rights under the treaty were only temporary, and that they vanished in 1890 when the relevant land became part of the newly established State of Wyoming. That same court also held that land included in a federal forest reservation—the Bighorn National Forest—was not “unoccupied,” so that even if the tribe’s hunting rights survived statehood, they didn’t extend to land within that forest.

The court of appeals decision rested, at least in part, on a Supreme Court decision from 1896, which addressed a similar treaty with a different tribe. But in 1999, the Supreme Court decided a new case, involving a subgroup of the Chippewa tribe in Minnesota, in which it disagreed with much of the 1896 decision. All of which just sets the scene for the new case the Court has agreed to consider.

In that new case, a group of hunters, including a member of the Crow Tribe named Clayvin Herrera, followed a group of elk across the border between the tribe’s reservation and the Bighorn Forest, and then shot three of them. The State of Wyoming charged Herrera with hunting out of season, and he raised the tribe’s treaty rights as a defense. The Wyoming courts rejected that defense, and Herrera was found guilty and fined.

The case is complicated because it turns in part on esoteric arguments about something called “issue preclusion,” which boil down to whether Herrera is bound by the 1995 court of appeals decision addressing the same issues. The U.S. Government has weighed in on Herrera’s side, arguing that the Supreme Court’s 1999 decision in the Chippewa case changed the law enough to undercut the 1995 decision. On the merits, Herrera and the Government argue that the tribe’s treaty rights survived Wyoming’s statehood and that including land in a national forest does not necessarily mean it stops being “unoccupied” for purposes of the treaty.

Even if Herrera wins on all those points in the Supreme Court, Wyoming would still have a couple of possibilities for winning the case after it’s remanded to the state courts. First, Wyoming might try to show that the specific part of the Bighorn Forest where Herrera shot elk counted as “occupied” land, such that the tribe’s hunting rights didn’t extend there. And second, the state could try to prove that enforcing its law limiting elk hunting to specific seasons is “reasonable and necessary for conservation,” meaning the tribe’s right to hunt on unoccupied land would have to bend to that restriction.