Herrera v. Wyoming

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LII note: The U.S. Supreme Court has now decided Herrera v. Wyoming .


Do members of the Crow Tribe of Indians retain the right to hunt outside of the Crow Reservation as established in an 1868 federal treaty, or was that right terminated through the establishment of either the Bighorn National Forest or the state of Wyoming?

Oral argument: 
January 8, 2019
Court below: 

In this case, the Supreme Court will decide whether members of the Crow Tribe of Indians retain a right to hunt outside of the Crow Reservation on “unoccupied lands of the United States,” a right which was originally established in an 1868 federal treaty. Clayvin Herrera argues that because Congress has not specifically abrogated this hunting right and because Bighorn National Forest qualifies as unoccupied land which once belonged to the Crow Tribe, the treaty-based hunting right should be upheld. Wyoming, on the other hand, asserts that the establishment of Wyoming as a state and the creation of the Bighorn National Forest extinguished this off-reservation hunting right. The outcome in this case will determine the scope of the 1868 treaty and will clarify the hunting rights afforded to present-day Crow tribal members.

Questions as Framed for the Court by the Parties 

Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.


Petitioner Clayvin Herrera is a member of the Crow Tribe of Indians and lives on the Crow Reservation in St. Xavier, Montana. In January 2014, Herrera was hunting elk on Crow Reservation. Herrera and other tribal members tracked several elk from the reservation into Bighorn National Forest, a forest in Wyoming that is not part of the Crow Reservation. Herrera shot and killed three elk in Bighorn National Forest and transported them back to the Crow Reservation in Montana. He did not have a hunting license in Wyoming. Moreover, Wyoming does not permit hunting in January. Subsequently, Herrera was cited with two misdemeanors for violating Wyoming state law in connection with hunting and taking the elk.

Herrera moved to dismiss the misdemeanor charges on July 2, 2015. He argued that under the 1868 Treaty with the Crow (“Crow Treaty”), members of the Crow Tribe have the right to hunt outside the Crow Reservation on unoccupied United States lands that once belonged to the Crow Tribe, and that this hunting right preempts Wyoming’s hunting laws. The Crow Treaty was signed before Wyoming was admitted as a state and before the Bighorn National Forest was established.

The trial court denied Herrera’s motion to dismiss based on the Tenth Circuit’s holding in Crow Tribe of Indians v. Repsis, which stated that the Crow Treaty was no longer valid. According to the Tenth Circuit, due to this invalidation, members of the Crow Tribe no longer retained the treaty right to hunt outside of their reservation within the state of Wyoming. The trial court noted that, alternatively, the court could have denied Herrera’s hunting right because Wyoming’s hunting regulations—being reasonable and necessary for conservation—supersede the Crow Treaty hunting rights, even if the Crow Treaty was still valid. Herrera sought to appeal this pretrial decision to the state appellate court and the Wyoming Supreme Court, but both avenues of appeal were denied. Herrera was then 7found guilty at trial on both misdemeanor counts. After his conviction, Herrera appealed to the state appellate court, the Wyoming District Court, challenging the trial court’s pretrial decision that the Crow Treaty did not provide Herrera with off-reservation hunting rights in the Bighorn National Forest.

On appeal of Herrera’s conviction, the Wyoming District Court affirmed the trial court’s decision that the Crow Treaty was invalid, finding that Repsis precluded Herrera from relitigating the issue of whether the Crow Treaty allows Crow tribal members to hunt off-reservation. The appellate court did note, however, that Wyoming state courts are not required to follow the Tenth Circuit’s ruling in Repsis, although in the absence of binding authority on the continued validity of the Crow Treaty, the Repsis decision was highly persuasive. Therefore, the Tenth Circuit found that the trial court properly followed the Repsis reasoning when it found that the Crow Treaty hunting right for tribal members was no longer in effect and was not a valid defense for Herrera in his criminal trial.

The United States Supreme Court granted certiorari on June 28, 2018.



Herrera argues that the language of the Crow Treaty protects the Tribe’s right to hunt, as it enumerates all possible circumstances under which that right would end,1 and Wyoming becoming a state was not one of those circumstances. Furthermore, Herrera notes that the Crow Treaty makes no reference to Wyoming’s potential statehood—let alone stating that statehood would eliminate the Crow Tribe’s right to hunt. Indian canons of construction demand that only an act of Congress can eliminate Indian rights, and Herrera argues that the 1890 Wyoming Statehood Act does not mean the abrogation of the Crow Tribe’s right to hunt. Indeed, Herrera, relying on Minnesota v. Mille Lacs Band of Chippewa Indians, asserts that there is no evidence in the Wyoming Statehood Act—nor in any other congressional act—of congressional intent to eliminate any rights awarded to the Crow Tribe under the Crow Treaty.

Moreover, Herrera argues that the Court should not rely on the reasoning of Crow Tribe of Indians v. Repsis to conclude that statehood abrogated the Crow Treaty. Herrera states that Repsis relied upon the reasoning in In re Race Horse that stated that Wyoming statehood abrogated the right to hunt, and asserts that Race Horse has since been repudiated by the Court in Mille Lacs. Herrera notes that, although Race Horse relied upon the idea that Wyoming’s power to regulate hunting was irreconcilable with the Tribe’s hunting rights under the Crow Treaty, the Court in Mille Lacs subsequently took the opposite view and deemed these two rights reconcilable. Thus, according to Herrera, in Mille Lacs, the Court asserted that achieving statehood does not eliminate a tribe’s right to hunt within a State’s boundaries, abandoning the Race Horse view. Ultimately, Herrera concludes that because neither the Crow Treaty nor the Wyoming Statehood Act explicitly provides that statehood would abrogate the Tribe’s hunting right, that hunting right could be abrogated only by implication, which was a possibility which Mille Lacs has rejected. Therefore, Wyoming’s statehood cannot abrogate the Crow Treaty.

In opposition, Wyoming argues that the Crow Tribe’s right to hunt granted under the Crow Treaty ended at the time of Wyoming’s statehood. Wyoming notes that there were regulations in 1880 instructed Indians to cease hunting activities off-reservation without express permission and that, by the time Wyoming achieved statehood in 1890, all parties to the Crow Treaty understood that the right to off-reservation hunting had ended. Wyoming alleges that the original intention of the Crow Treaty was to separate the reservation and the advancing non-Indian settlements to maintain peace between the two groups—not to preserve off-reservation hunting for the Crow Tribe. Indeed, Wyoming argues that the policy underlying the Crow Treaty was to ensure the Crow Tribe’s successful transition to an agrarian lifestyle, in contrast with Herrera’s claim that the Crow Treaty was meant to allow for hunting on lands established in States. Wyoming asserts that Herrera’s interpretation of the Crow Treaty as protecting the right to hunt off-reservation is contrary to Treaty’s intent to separate the Crow Tribe and the non-Indians.

Additionally, Wyoming argues that the conclusion in Repsis, which relies on Race Horse, remains good law, and that the Court should reaffirm Race Horse’s holding that the off-reservation right to hunt ended when Wyoming achieved statehood. Wyoming contends that Herrera’s argument misinterpreted the decision in Mille Lacs. Wyoming agrees with Herrera’s claim that Mille Lacs repudiated Race Horse’s holding that state sovereignty is irreconcilable with Indian hunting rights. Nevertheless, Wyoming asserts that their argument is based on Race Horse’s alternative holding that Congress had contemplated that the right to hunt was not intended to survive statehood—this Race Horse holding, Wyoming argues, was upheld in Mille Lacs. Further, Wyoming notes that only the Mille Lacs dissent argued that Race Horse had been reversed entirely, while the majority expressly stated that Race Horse had not been reversed. For these reasons, Wyoming argues that Race Horse and Repsis should control in this case, and the Court should uphold the lower courts’ decision that the right to hunt in the Crow Treaty has ended.


Herrera argues that the creation of the Bighorn National Forest did not render that land “occupied” and therefore did not terminate the Crow Tribe’s hunting rights, even though the Presidential proclamation creating the forest prohibited persons from making entry or settlement onto that land. In support of this argument, Herrera reasons that the parties at the time of the signing of the Crow Treaty would have interpreted the term “occupied” as referring to the act of physical settlement. Accordingly, Herrera claims that “unoccupied” lands would be lands that were unsettled, and—more specifically—unsettled by non-Indians.Herrera argues that this interpretation of “occupied” is supported by a variety of evidence: the negotiations between the parties preceding the Crow Treaty; the post-1868 historical record, including statements by politicians referencing the Crow Treaty; and even dictionary definitions contemporaneous with the signing.

After arguing that “unoccupied” means “unsettled by non-Indians,” Herrera asserts that the Presidential proclamation creating the Bighorn National Forest did not make that land suddenly settled by non-Indians. Rather, that proclamation prohibited settlement by anyone within the bounds of the established Bighorn National Forest. Additionally, Herrera contends that Congress actually barred the President from eliminating any Indian treaty rights when creating national forests. Lastly, Herrera returns to the understanding of the parties to the Crow Treaty, claiming that neither party considered the creation of the Bighorn National Forest as abrogating the Crow Tribe’s right to hunt, and noting that even the U.S. Forest Services has recognized that the right to hunt expressed in Indian treaties may be exercised on national forest lands.

Wyoming also reads “unoccupied” in its historical context, but advances an alternate interpretation of the term that is not based on a lack of physical presence. Instead, Wyoming argues that, at the time of the Crow Treaty, unoccupied lands were lands in the public domain available for sale, entry and settlement. That is, once land was removed from the public domain—thereby making it unavailable for sale, entry or settlement—it was considered “occupied.” To support this argument, Wyoming makes an analogy to the Crow reservation itself: the entirety of the reservation was considered “occupied” by the Crow Tribe, even though the Crow Tribe does not have a physical presence across all 12,500 square miles of the reservation.

Wyoming argues that the Presidential proclamation establishing the Bighorn National Forest removed the land from the public domain, thus recasting the land as occupied. Wyoming again draws an analogy to Indian reservations by arguing that national forests, like Indian reservations, are occupied because they are removed from the public domain and are prohibited from entry or settlement by others. Wyoming maintains that the Presidential proclamation creating the Bighorn National Forest withdrew the land from settlement, thereby making the land occupied for purposes of the Crow Treaty.Indeed, Wyoming contends that the United States’ regulation of hunting in Bighorn National Forest demonstrates the exercise of control and exclusion over the land, which marks the land’s occupied status.Finally, Wyoming argues that at the time of the Presidential proclamation, the Crow Tribe understood that this proclamation signaled the occupied status of the Bighorn National Forest.



The Crow Tribe of Indians (“Crow Tribe”), in support of Herrera, argues that the right to hunt outside of the Crow Reservation should be preserved due to the historic and modern importance of this right for the Crow Tribe. Historically, the Crow Tribe emphasizes, tribal members depended on big game, especially elk, for sustenance, clothing, and shelter. Additionally, the Crow Tribe notes that off-reservation hunting also played a large role in tribal culture, particularly in Crow religion. In fact, as Timothy P. McCleary and other public health, education, and law experts (“McCleary”) point out, the Bighorn National Forest land on which Herrera killed the elk is a historically “sacred hunting ground[]” for the Crow Tribe. Furthermore, McCleary asserts that Crow tribal members still heavily rely on off-reservation hunting for food because many tribal members have a low economic status, and, with the Crow Reservation located over twenty miles away from the nearest grocery store, access to typical food sources is very difficult for tribal members. McCleary contends that extinguishing the off-reservation hunting right could exacerbate the Crow Tribe’s food insecurity and have serious public health implications, including increased illnesses for children and chronic health problems for adults.

In contrast, the Association of Fish and Wildlife Agencies (“AFWA”), in support of Wyoming, asserts that states like Wyoming have significant interests in regulating hunting, including off-reservation hunting by tribal members. According to AFWA, when state agencies regulate hunting, states are able to better conserve natural resources, which promotes overall public safety. Furthermore, Safari Club International (“Safari Club”), in support of Wyoming, contends that allowing Herrera and other Crow tribal members to hunt off-reservation hinders Wyoming’s ability to conserve wildlife within its borders. Safari Club argues that allowing unregulated, off-reservation hunting under the Crow Treaty is contrary to modern wildlife management policy and could lead to the complete depletion of game in the area. More specifically, AFWA emphasizes that if the treaty hunting right is upheld, state agencies may not be able to maintain a stable elk population within the Bighorn National Forest. Safari Club argues that species depletion through unregulated hunting can result in significant ecosystem issues, harming both the tribal members who rely on these animals for food and the other animals who prey on these species within the ecosystem. The Safari Club also cautions that upholding the Crow Tribe’s off-reservation hunting right could have far reaching consequences, allowing unregulated hunting in any land that once belonged to the Crow Tribe.


The Indian Law Professors, in support of Herrera, emphasize that treaties between the United States and Indian tribes are the “supreme law of the land” and recognize Indian tribes as sovereign nations, separate from states but subject to federal authority. Treaties, the Indian Law Professors note, provide a legal basis through which Indian tribes continue to protect their essential rights, including their ownership of reservation land and their rights to hunt, fish, and gather food on certain lands. The Indian Law Professors argue that to preserve these necessary rights, treaties, such as the Crow Treaty, must be protected and upheld. Furthermore, the Indian Law Professors contend that allowing a state to declare the Crow Treaty invalid could undermine the validity of the hundreds of treaties between Indian tribes and the United States, creating uncertainty over how these treaties should continue to be interpreted and applied.

Conversely, AFWA, in support of Wyoming, asserts that upholding the hunting rights in the Crow Treaty would lead to great “jurisdictional uncertainty” in wildlife resource management because these resources would become subject to state, federal, and tribal authority. Moreover, in support of Wyoming, the Citizen Equal Rights Foundation and other Minnesota-based entities (“CERF”) contend that treaty rights, including the off-reservation right to hunt contained in the Crow Treaty, undermine federalism by overriding a state’s ability to exercise power within its borders. CERF continues that allowing the federal government to enforce Indian treaty rights at the local level subverts local governmental interests in resource conservation and prevents local residents from providing input into the laws that govern them. Additionally, AFWA claims that even if preserving state sovereignty is not persuasive, managing natural resources is a significant federal interest that can override and extinguish tribal treaty rights.

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