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Crow man takes hunting case to U.S. Supreme Court, says 1868 treaty is on his side

Posted: 11:50 AM, Oct 13, 2018
Updated: 2018-10-13 12:29:46-04

BILLINGS, Mont. – Native American tribes in the western United States will be closely watching an upcoming Supreme Court case that could set a precedent for tribal hunting rights and the application of Indian treaties.

The case, Clayvin Herrera v. Wyoming, involves a member of the Crow tribe who took an elk in Wyoming and was later convicted of illegal hunting several years ago.

“It is really about a case where a guy went hunting. He pursued an elk across the reservation line and into the state of Wyoming, where they ended up killing a few elk and bringing the meat back to the reservation,” said Monte Mills with the University of Montana Law School.

Mills is familiar with the case as co-director of the Margery Hunter Brown Indian Law Clinic at the University of Montana in Missoula. He has also written briefs for the case.

“Eventually he was charged by game wardens in Wyoming with violating Wyoming game law,” said Mills.

However, Herrera believes the Laramie Treaty of 1868 is on his side. It says tribal members have the right to hunt on unoccupied land but the Crow reservation currently ends at the Montana-Wyoming border.

“He’s arguing, I have a treaty right and I can’t be punished by Wyoming. I’m not subject to Wyoming law. I am governed by the treaty with the United States,” said Mills.

In response, Wyoming said, those treaty rights ended when Wyoming became a state.

“Wyoming is relying on previous cases that said when this area became the Big Horn National Forest that meant that it was occupied,” said Mills.

The case is still months away from actually hitting the Supreme Court docket. Herrera’s legal team has filed their legal briefs and currently, the Wyoming state attorneys are filing their response.

Wyoming’s legal brief is due by Nov. 13 and Herrera has the chance to reply by Dec. 13.

The Supreme Court won’t likely hear the case until January 2019. A decision may not be reached until late spring or early summer 2019, said Mills.

Many will be watching the case carefully, especially tribal members, Mills said. The case could lay the groundwork for future land rights cases involving tribes and states for years to come, he said.

“It’s important to remember that Indian people were here before the United States, before the constitution,” said Mills. “Those treaties still say that’s the supreme law of the land and that’s one of the issues in this Herrera case, whether or not that treaty still exists, then Wyoming law can’t apply.”

Mills also says this a case is one nontribal members will want to watch.

“Even 150 years later, it’s a fundamental question about our constitutional commitments. And that’s an important national question for all of us in the United States, regardless of our connection with Indian country,” said Mills.

Pertaining to this case, the state of Wyoming has also raised concern about its ability to regulate game and hunters within its borders, according to Mills. He says an underlying concern for Wyoming when it comes to treaty rights continues to be how the state views its authority to regulate hunts.

On the side of the tribes, listed in Herrera’s brief, are arguments about the importance of the role of hunting, fishing, and gathering for tribes.

Mills said a number of tribes in Montana take part in offseason hunting and currently hunt near Yellowstone National Park for bison, which is done pursuant to treaty agreements.

Story by Andrea Lutz, MTN News