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Four years after a Crow tribal game warden shot a bull elk out of season in Wyoming’s Bighorn National Forest, the issue of whether the state should recognize his tribe’s treaty rights to hunt there was argued before the U.S. Supreme Court on Tuesday.

In part the justices were trying to decide the repercussions of an earlier high court ruling in a similar treaty case, while Wyoming’s deputy attorney general argued the issue had already been settled.

“The court seemed skeptical of Wyoming's arguments that statehood terminated the Crow Treaty rights to hunt and fish,” said Lillian Alvernaz, ACLU of Montana Indigenous Justice legal fellow, in an email. ”Justice Roberts in particular seemed interested in holding the parties accountable for the provisions that they negotiated in 1868."

Wyoming is the only western state to ignore Indian fishing and hunting treaty rights.

The case was one of two the justices heard oral arguments on during their Tuesday session in Washington, D.C. Justice Ruth Bader Ginsburg is recovering from surgery and was not present. Transcripts of the arguments are available online.

Background

Photographed in a suit and tie standing on the steps of the Washington, D.C., courthouse, tribal member Clayvin Herrera was a long plane ride away from the setting of the photograph he shared with friends in 2014, elk antlers resting on his back and giving a thumbs up.

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Wyoming elk

This is one of three photos Clayvin Herrera submitted to the website MonsterMuleys.com that show him with an elk that he shot in Wyoming in 2014.

Shortly after, Herrera was cited for killing the bull elk in Wyoming’s Bighorn National Forest out of season. His Billings attorney, Kyle Ann Gray, wanted to argue that rights granted to the Crow Tribe in the 1868 Treaty of Fort Laramie allowed him to hunt and fish on unoccupied lands of Wyoming.

The state of Wyoming has long held that those rights were rescinded when Wyoming became a state in 1890. In addition, the state sees the Bighorn National Forest as occupied — even though it is public land — and that the creation of the forest also canceled the Crow treaty rights. Because the state considered Herrera’s claims settled in earlier court cases, he was not allowed to use the treaty rights argument and was found guilty of a misdemeanor, fined and received a suspended sentence.

The legal precedence Wyoming referred to in the case is Ward v. Race Horse, an 1896 Supreme Court case that found when Wyoming became a state, all tribes’ off-reservation treaty hunting rights were nullified.

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Crow in court

Clayvin Herrera, fourth from left, poses for a photo while in Washington, D.C., on Tuesday where his tribal treaty rights hunting case was being argued.

Recent ruling

But a 1999 ruling by the U.S. Supreme Court in a Minnesota case involving the Mille Lacs Band of Chippewa Indians seems to conflict with the reasoning behind Race Horse, an issue the Supreme Court justices noted Tuesday.

“I think a fair reading would suggest that what Mille Lacs did was to repudiate the reasoning that Race Horse had in it with respect to exactly the question before us,” said Justice Elena Kagan. “And it's true that it did not go all the way to overruling the case, but it — it came up like half a step short of that.”

Wyoming’s Chief Deputy Attorney General, John Knepper, disagreed.

“Your Honor, the court did not overrule the approach to treaty interpretation,” he said. “It said the key is looking at what the intent of the parties is.”

Justice Kagan then went on to clarify, saying, “Well, just to make this more concrete, I mean, as I understand it, Race Horse essentially said that these treaty rights expired upon statehood. And Mille Lacs comes in and says that's a wrong thing to say. Treaty rights don't expire upon statehood. So that seems like a pretty relevant change in the law.”

Knepper countered that, “It was that the treaty itself envisioned termination at statehood. And because the parties agreed that it would terminate at statehood, the treaty did so.”

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On the steps

Crow tribal member Samuel Enemy Hunter, ACLU of Montana Indigenous Justice organizer, poses on the steps of the U.S. Supreme Court.

Other views

Kagan wasn’t the only justice questioning whether the court had already effectively overruled the Race Horse decision. Justice Sonia Sotomayor also noted the inconsistency.

“You know, Justice — Chief Justice Rehnquist — I don't know if he was chief back then — said that we had — that the majority had effectively overruled Race Horse, and so have commentators. So should we just say it?”

Assistant to the Solicitor General Frederick Liu, who represented the Justice Department in its support of Herrera’s case, said it would be fine with the federal government if the court reversed the Race Horse case.

“We would invite the court to overrule Race Horse,” Liu said.

He went on to add, however, that he didn’t think the court needed to do that in this case even though the reasoning in Race Horse was “no longer good.”

Counterpoint

Not all of the justices seemed to agree. Justice Brett Kavanaugh specifically stated the opposite, although he later hedged and said maybe the court should have ruled Race Horse was overruled.

“We said that Race Horse meant that statehood did not automatically terminate the prior treaty right, automatically, but that certain language in the Race Horse treaty was still sufficient to terminate the treaty right,” Kavanaugh said. “And the language in the Race Horse treaty is the exact same language at issue in this treaty. What's — so why shouldn't we have the same result here that we had in Race Horse?”

Attorney George Hicks Jr., arguing on behalf of Herrera, disagreed.

“Justice Kavanaugh, I — I don't think you expressly overruled the outcome in Race Horse, but I think that you did reject all the legal reasoning that led to the Race Horse results.”

Kavanaugh went on to say he is concerned that if the court agrees with Herrera’s argument, a similar treaty for the Shoshone-Bannock Tribe then becomes questionable. “… We'll have a result that the same treaty language creates two different results,” he said.

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Wyoming’s case

Although a large part of the arguments related to the Mille Lacs and Race Horse rulings, Wyoming’s main contention coming into the hearing was based on preclusion — that Herrera’s treaty rights argument had already been settled in an earlier case.

Wyoming’s Knepper said the issue was decided by the Tenth Circuit Court in the 1995 treaty rights case Crow Tribe v. Repsis. The Herrera case is just the same argument in another form, he said, and therefore should not be considered even in light of the high court’s Mille Lacs decision.

To be considered by the court would require a “major doctrinal shift,” Knepper said.

Justice Stephen Breyer questioned that reasoning, saying Herrera’s case raises the issue of a “change in the applicable legal context” largely due to the Mille Lacs decision.

After Knepper defended his argument, Breyer said, “I think a fair reading would suggest that what Mille Lacs did was to repudiate the reasoning that Race Horse had in it with respect to exactly the question before us.”

Hunting

Although the oral arguments concentrated on previous cases and interpretations, the conversation did occasionally stray into some odd statements.

Possibly a bit out of touch with the western landscape, national forests and the hunting lifestyle, there were comments about gamekeepers, a discussion of brucellosis — a disease spread by infected elk and bison in the Greater Yellowstone Ecosystem — and the unsafe conditions in Wyoming forests during the hunting season.

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Supreme Court Crow Tribe Hunting

Attorney Kyle Ann Gray, left, Clayvin Herrera, and attorney Frederick Liu pose for pictures on the steps of the Supreme Court, Tuesday, Jan. 8, 2019, in Washington. The U.S. Supreme is reviewing a case in which Clayvin Herrera, a Crow tribal member and former tribal game warden from Montana, is asserting his right under a 150-year-old treaty with the U.S. government to hunt elk in the Bighorn National Forest in Wyoming.

Although many hunters’ young children, relatives or friends accompany them into the woods, Knepper said he would not take his children into Wyoming’s forests during the hunting season because “there are risks there … that are too much to overcome.”

The justices' ruling on the case will be issued sometime this spring. The high court has the option to dismiss the appeal, remand the case back to the lower court for further findings or determine that the Mille Lacs ruling takes precedence.

Gray, Herrera's Billings attorney, maintained Tuesday he should have been able to hunt on that land. 

"We are gratified to have had the opportunity to argue, but the judgement affirming Mr. Herrera’s conviction should be reversed," Gray said. "We know the court will give careful consideration to the issue and look forward to the decision."

Should the court rule in Herrera’s favor, other Wyoming tribes such as the Shoshone-Bannock and Arapahoe may also be affected. It also has the potential to affect other unoccupied lands, such as Bureau of Land Management property. Or the court could issue a very narrow ruling.

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