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Treaty rights in 2018

Supreme Court hunting case examined through a nineteenth century lens
Thursday, September 27, 2018
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File photo by Andrew Turck
            Kyle Gray, an attorney representing Clayvin Herrera pro bono in his hunting rights case, gives Crow tribal members legal updates during a July 28 general council meeting at the Multipurpose Building in Crow Agency. The case involving Herrera, set to be heard in the U.S. Supreme Court, concerns the legitimacy of Crow hunting rights specified in the 1868 Fort Laramie Treaty.

A legal dispute that originated in Wyoming just outside Big Horn County, Montana is set to appear before the U.S. Supreme Court. It involves an argument over hunting rights, and comes at a time when many tribes within the United States are interested at seeing their own rights to hunting and fishing areas solidified.

These territories, often in the west and directly related to tribal members’ livelihood, are defined in the treaties as “unoccupied,” and refer to traditional hunting areas including national forest and federally-operated lands.

The Crow Tribe, having just celebrated the sesquicentennial of the signing of the Fort Laramie Treaty of 1868, is particularly invested in the case. This is because the lands in question – areas in and around the Bighorn Mountains – are hunting grounds used traditionally by the tribe and therefore protected in the Fort Laramie Treaty. On the other side of the argument is the State of Wyoming, hoping to establish restrictions on the hunting rights provided for in the treaty.

The State of Wyoming contests that, upon entering statehood in 1890, the implication arose that treaty rights would no longer apply.

The defendant in this case, Clayvin B. Herrera – a Crow tribal member and former game warden – was charged with killing a bull elk illegally in Wyoming’s Bighorn National Forest. He holds the position that the treaty rights never expired, nor were they nullified by the legislature, making the 2014 hunt legal. Citing the case between the Mille Lacs band of the Chippewa and the State of Minnesota, along with several other preceding court decisions, the defendant holds there is sufficient documented evidence in his favor.

Much of the Wyoming argument rests upon a pair of cases that took place about 100 years apart, and the older of these two bears a strong resemblance to Herrera’s case, both in circumstance and in the language provided within the treaties. In Ward v. Race Horse, decided in favor of the state in 1898, a member of the Eastern band of Shoshonees killed seven elk on July 1, 1895, and was then taken into custody.

In that case, Justice White explained, “The elucidation of this issue will be made plain by an appreciation of the situation existing at the time of the adoption of the treaty, of the necessities which brought it into being and of the purposes intended to be by it accomplished.”

Evidence of “the situation” at the time of the treaty lies in actual phonographed or dictated minutes of the meeting between the Crow chiefs and official delegates of the United States government.

In the recorded minutes, Commissioner Taylor stated, “You will still be free to hunt as you are now.”

Justice White nonetheless went on to rule in favor of the state, saying, “The right to hunt given by the treaty clearly contemplated the disappearance of the conditions therein specified.”

At no point in the treaty’s text is a deadline specified for the Crows’ right to hunt on unoccupied lands.

Prior to Ward v. Race Horse, the situation on the reservations already had grown difficult. Capt. Ray, U.S. Army, and acting agent of the Shoshone Agency, in his report of May 29, 1894 wrote, “I find that article 4 of the treaty with the Eastern Band of Shoshone Indians, made July 3, 1868, gives the Indians the right to hunt on all the unoccupied lands of the United States, and they have certainly availed themselves of that privilege.”

Ray went on to tally the rations “for Indians on this reservation” as agreed to in the same treaty as “not sufficient to ward of pangs of hunger, and they must supplement this allowance in some way or suffer.”

Lives were lost in the summers prior to Ward v. Race Horse, owing mainly to this ongoing dispute, and the sentiment remained the same on behalf of the tribes. From a report dated July 20, 1895, Capt. R. H. Wilson, U.S. Army, and acting agent for the Shoshone Agency wrote, “[The Indians] have hitherto considered that the provisions of their treaty give them the right to hunt on unoccupied lands whenever they please.”

Community elder and former Crow politician Marvin L. Stewart said the tribe continues to maintain the rights addressed by Wilson.

“And I’ve done quite a bit of research on that,” he said, referring to his studies at Little Big Horn College in Crow Agency. “And it isn’t that we have a right to get a permit and then hunt. We figured that we already had that right.”

In addition to emphasizing the prior right to hunt, Stewart also tallied a number of occasions when he, loved ones or tribal ancestors would fast and receive visions in the Bighorn Mountains, the same places where they hunted and continue to hunt.

“The Wyoming line, over here going south,” he said, gesturing toward the mountains, “if you follow the highway right on top of that high place before you get into Wyoming there, that was one of the areas that they used…saying this was one of the main points we had a right to.”


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