Battle of ‘two sovereigns’

Crow hunting rights case draws in treaties, century-old precedents and U.S. Supreme Court
Thursday, January 17, 2019
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AP photo by Alex Brandon

Clayvin Herrera poses for a picture on the plaza of the U.S. Supreme Court on Tuesday, Jan. 8 in Washington, D.C. 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.

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Photo by Andrew Turck

Lillian Alvernaz (right), indigenous legal justice fellow for the American Civil Liberties Union of Montana, answers audience questions at Little Big Horn College during a Dec. 14 informational forum on the U.S. Supreme Court case, Herrera v. Wyoming. The two main speakers on this subject were Alvernaz and Samuel Enemy-Hunter (left), ACLU of Montana’s indigenous justice organizer.

Findings from two federal cases more than 100 years apart, and allegedly contradictory, collided Jan. 8 before the U.S. Supreme Court in a conflict involving the State of Wyoming and former Crow tribal game warden Clayvin Herrera.

The Supreme Court decided the first case, Ward v. Race Horse, in May 1896 concerning the Bannock Tribe, whose reservation lay within the Wyoming border. In its ruling, the court stated the Bannock’s treaty did not give tribal members “the right to [hunt] within the limits of that State in violation of its laws.”

Moving into March 1999, the Supreme Court passed a second ruling in the case Minnesota v. Mille Lacs Band of Chippewa Indians. This time, it stated, “treaty rights are not impliedly terminated at statehood.”

“Just to make this more concrete, as I understand it, Race Horse essentially said that these treaty rights expired upon statehood,” Associate Justice Elena Kagan told those assembled in the court’s Washington, D.C. chambers. “And Mille Lacs comes in and says, ‘That’s a wrong thing to say. Treaty rights don’t expire upon statehood.’

“That seems like a pretty relevant change to the law.”

‘Unoccupied lands’

The Crow Tribe’s 1868 Fort Laramie Treaty, which recently passed its 150th anniversary, states tribal members have the right to hunt on “unoccupied lands.” Using this document, Herrera is defending a January 2014 incident where – without a hunting license and outside the regular season – he crossed a fence, and shot and killed a bull elk in Wyoming’s Bighorn National Forest.

Explaining the 1868 treaty in his opening statement, Herrera’s attorney George Hicks Jr. told the court, “[The] Crow Tribe of Indians agreed to cede to the United States 30 million acres of its aboriginal land and move to a reservation. In exchange for ceding its land, the tribe expressly reserved the right to hunt on that ceded land.”

Of the events “explicitly” stated in the treaty that would cause tribal “hunting rights to terminate,” he continued, “Wyoming’s admission to the Union is not one of them.”

Wyoming’s Sheridan Circuit Court, following a three-day jury trial in April 2016, ordered Herrera to pay $8,080 in fines and court costs for the incident. In addition, it ordered his Wyoming hunting privileges suspended for three years.

Three appeals after his conviction, Herrera was defeated in the Fourth Judicial District of Wyoming, denied entry by the Wyoming Supreme Court and now is taking his last shot in the U.S. Supreme Court.

Herrera practices subsistence hunting, according to a November 2017 reply brief for the District Court of Wyoming, which “literally” allows him to provide for his family. Court documents state he took the elk meat back to Montana, where “tribal hunters…later distributed [it] among their families.”

Quoting Herrera’s amici, or associates, the reply brief states Wyoming’s decision to allegedly interfere with Crow hunting rights “‘poses a dire threat’ to all members of the Tribe.” According to the document, “The state does not dispute that the issue here is important to the Crow Tribe. Nor could it.”

“It’s not about me,” Herrera stated in a Facebook post the day before his case. For the sake of clarity, the post has been edited. “It’s about all of us, every Native before us now and after us. It’s for our children and our future. It’s about sovereignty and solidifying a future for our people…but most of all, it’s because it’s our right!”

The current case, Herrera v. Wyoming, bears a remarkable similarity to Crow Tribe of Indians v. Repsis, decided in December 1995 by the U.S. Court of Appeals for the Tenth Circuit. As with Herrera’s situation, Repsis involved a Crow tribal game warden charged for shooting and killing an elk without a Wyoming hunting license in the Bighorn National Forest.

The plaintiff in Repsis, Thomas Ten Bear, argued the Fort Laramie Treaty gave him the right to hunt on “unoccupied lands,” but – using Race Horse as a precedent – the Tenth Circuit rejected his suit against Wyoming.

“The lands of the Bighorn National Forest have been ‘occupied,’” the court stated in its decision, “since the creation of the national forest in 1887.”

Chief Justice John Roberts, during Herrera’s hearing, questioned the Tenth Circuit’s conclusion.

“Our test for whether land is occupied is whether that land has been settled,” he said. “The whole point of the Bighorn is that you don’t want that land settled.”

Another look at Race Horse

Defending his state’s position, Wyoming’s Chief Deputy Attorney General John Knepper told the assembled Supreme Court justices he believed they were overlooking “one subtlety…from the 19th century law to the 20th century law.”

Citing the 1903 case Lone Wolf v. Hitchcock, where the U.S. Supreme Court affirmed that Congress had final say in Native American matters, he wanted the current court to examine the original intent of those who signed the Fort Laramie Treaty.

Justice Edward Douglas White, who served on the Supreme Court during the Lone Wolf case, stated in his decision that Congress could alter Native American treaties.

“Authority over the tribal relations of the Indians has been exercised by Congress from the beginning,” White wrote, “and the power has always been deemed a political one.”

Race Horse – when taking the Lone Wolf decision into account – Knepper said, provides “the clearest evidence that we have before us of what the 19th century thinkers thought the language meant.”

In Native treaties, such those of the Bannock or Crow tribes, he said, the term “unoccupied lands” in the nineteenth century “applies only to lands of such a character as would be embodied in hunting districts.”

When Bighorn National Forest was established, Knepper noted, its state memorandum made “no reference whatsoever to hunting outside Wyoming’s permitting regime.”

“It was not so much that the statehood as a legal act made it terminate,” he said of the Bannock, and by extension Crow treaty hunting rights. “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.”

Associate Justice Neil Gorsuch congratulated Knepper for his “passionate” and “excellent” defense of Race Horse. Justice Roberts, meanwhile, questioned his argument’s rationale, commenting that “‘occupied’ doesn’t really have anything to do with hunting.” While looking into the background of an issue was important, Roberts continued, “Here, it seems to me you’re just substituting an entirely different concept.”

Knepper, for his part, brought up Yellowstone National Park, which was established in Montana beginning March 1872, soon after the Race Horse case. Yellowstone, he noted, was carved from the Crow hunting district.

“The United States proceeded over the entire time, beginning in 1872 and then through…1880s, to say to tribes: You may not hunt here. This is off limits. We have occupied this land,” Knepper said. “The federal government’s arrival and the federal government’s setting this land aside has the effect of occupying the land.”

‘It’s open all year round’

Having grown up on the Crow Reservation, Samuel Enemy-Hunter remembers living off commodities controlled by the federal government. Now an indigenous justice organizer for the American Civil Liberties Union of Montana, he prefers the freedom of getting his food himself or through fellow Crow tribal members.

His homeland, he notes, “doesn’t have a hunting season; it’s open all year round.”

“When a clan member goes hunting, there have been instances where my clan children have stopped by to offer me some deer meat or hind pork,” he said. “That’s just the way we are as a people.”

On Sept. 11, 2018, the self-described “avid hunter” signed an amicus brief drafted by the ACLU in support of Herrera. Three months later, Enemy-Hunter and Lillian Alvernaz, ACLU of Montana’s indigenous legal justice fellow, hosted a public forum the evening of Dec. 14 at the Student Union Building of Crow Agency’s Little Big Horn College. There, they spoke to residents on the implications of Herrera’s case.

Though the crowd wasn’t large – around 20 people – those in attendance were open to expressing their hopes and concerns. Relations with white ranchers near the Wyoming border had been tense, according to some of the attendees. Tribal members had noticed more fences in the area, and rumors had circulated the ranchers were using motion sensors and drones to catch people allegedly breaking the law.

“When we are allowed to hunt on that side,” said Joseph Stewart, a contractor from Aberdeen, “we know we’re going to start getting harassed and [they will] start giving us pressure, too.”

In years that he does hunt, Stewart continued, he usually bags between five and 12 deer, and “if we’re lucky,” four to five elk. From there, as with Herrera, he gives away a significant portion of the meat to friends and family.

A common worry within the audience was if Herrera won, Wyoming would use it as an excuse to force new regulations upon the tribe. As Hicks noted in the courtroom, Wyoming “has the ability to regulate its…wildlife, its natural resources.”

Still, another resident added, “It could be a good thing. We win and it’s a precedent throughout Indian Country.”

“And it’s so cool!” Alvernaz exclaimed from the Student Union lectern. “You’re at the Supreme Court!”

Alvernaz herself isn’t Crow; her heritage is Dakotah, Nakotah and Assiniboine. Nonetheless, she said, spreading the word on Herrera’s case seemed “like an important conversation.”

“I feel selfishly empowered even more to see people who really care about it,” she said, “because this case does have real-life, on-the-ground implications.”

Using the case as a jumping-off point, Enemy-Hunter added, could serve as “a good time to build some kind of relationship” between the tribe and Wyoming.

After all, Knepper told the Supreme Court, in both entities, “we have two eternal sovereigns.”

“The Crow Tribe will be here forever, as they have been since time immemorial,” he said, “and the State of Wyoming has no intention of disappearing.”

Herrera v. Wyoming, according to Alvernaz, likely will be decided around June – though she noted that in court case verdicts, the timing is never certain.