05/21/2019

Tribe Treaty Rights to Hunt in Wyoming Upheld by High Court

Holland & Hart Appellate Team Instrumental in Securing Victory

In a 5-4 opinion issued on May 20, the U.S. Supreme Court vindicated the Crow Tribe’s 1868 treaty rights to hunt on the unoccupied lands in Wyoming that were part of the Crow Tribe’s original territory in Herrera v. Wyoming. Holland & Hart is pleased to announce the win as a significant victory that reinforces the firm’s core values and the critical impact of dedicating our skills, time, and talents to provide pro bono legal services to assist those who might otherwise go without legal help.

Holland & Hart’s appellate team consisting of Billings-based attorneys Kyle A. Gray and Steven T. Small, and Jackson, Wyoming-based attorney Dessa Reimer, represented Herrera on a pro bono basis before the state courts in Wyoming. Appellate lawyers George William Hicks Jr. and Andrew C. Lawrence of Kirkland & Ellis joined the appellate team as the case made its way to the U.S. Supreme Court.

The case arose in 2014 out of Wyoming’s decision to prosecute Clayvin Herrera, a Crow Tribe member, with off-season elk hunting in the Bighorn National Forest. Herrera and other tribal members had pursued a group of elk over the border from the Crow Reservation in Montana into Wyoming and took three elk, returning to the Reservation with the elk to feed their families during the winter months. At the time, Herrera believed he had a right to hunt in the forest under the Crow Tribe’s 1868 Treaty, which reserved to the Crow Tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.”

At trial in the Wyoming circuit court, Herrera was prevented from asserting a treaty defense. Herrera’s conviction was upheld on appeal to the Wyoming district court on three grounds: that Wyoming statehood in 1890 had abrogated the treaty hunting rights; that the creation of the National Forest has “occupied” the lands; and that the issue had already been decided by the Tenth Circuit in the 1995 Crow Tribe of Indians v. Repsis decision, and a different result was foreclosed by issue preclusion.

In a decision authored by Justice Sotomayor, the Supreme Court disagreed on all three points. First, treaty rights must be expressly abrogated by an act of Congress, but nothing in the Wyoming statehood act terminated the Crow Tribe’s treaty rights. Second, creation of the National Forest did not “occupy” the lands in the way the term would have been understood by the Crow Tribe at the time the treaty was negotiated—the forest lands remained unsettled by non-Indians after its creation. Third, Herrera was not precluded by the Repsis decision from asserting his treaty hunting rights given that the U.S. Supreme Court’s intervening decision in Minnesota v. Mille Lacs Band of Chippewa Indians had repudiated the reasoning on which the Tenth Circuit Repsis decision relied.

The result of the May 20 Supreme Court decision is that the Crow Tribe’s 1868 off-reservation treaty hunting rights in Wyoming remain valid. More work remains to be done on remand to the Wyoming courts as the Supreme Court left open the possibility that the State may attempt to regulate tribal hunting rights for “conservation” purposes. The nature and limits of the State’s authority under this term remain to be tested. The decision, however, is a huge step forward for the Crow Tribe and tribal treaty rights.

The Holland & Hart team’s successful representation combined specialized knowledge of American Indian Law with creative appellate strategy that successfully framed the tribal rights issues for consideration by the U.S. Supreme Court.

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