Wyoming hunting case could have broad implications
February 21, 2019
SHERIDAN — A U.S. Supreme Court case involving elk killed in the Bighorn National Forest by a member of the Crow Tribe has implications far beyond the boundaries of the forest located in the north central part of Wyoming.
Bill Yellowtail, a rancher from the Wyola area and former Montana state senator, gave a presentation Tuesday to employees of the Bighorn National Forest, outlining the background of the case and the variety of effects it may have. Yellowtail grew up on his family’s cattle ranch on the Crow Indian Reservation and his daughter now works for the U.S. Forest Service in Sheridan. He has offered presentations in local schools, too, facilitating discussions on the case as a civics lesson.
Following three judicial rulings, the U.S. Supreme Court accepted review of the case against Clayvin Herrera, who allegedly killed elk on public land out of season in January 2014 in Sheridan County.
The court heard oral arguments in the case in January. Herrera’s hunt began on the Crow Reservation in Montana but ended roughly 1 mile south of the Montana-Wyoming state line, putting the killed elk on public land managed by the Bighorn National Forest. Herrera does not dispute that he and his hunting party killed three elk. He does, though, argue the illegality of their doing so.
Herrera’s lawyers have argued that when he shot the elk, he did so under the authority of a treaty agreed to in 1868 by the U.S. and representatives of the Crow. The treaty grants hunting rights to Crow tribal members, who “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.”
Herrera and his lawyers contend that those rights still exist. The state argues that the Bighorn National Forest is not “unoccupied” and that the treaty was considered void after Wyoming became a state.
While the case focuses on an incident that occurred on the Bighorn National Forest, its implications could stretch far beyond forest boundaries, according to Yellowtail.
If Wyoming prevails in the case, Yellowtail said, it could call into question hunting and other rights in treaties Native Americans across the country have with the U.S. If Herrera prevails, it could open up much of Wyoming — and with additional challenges, lands across the country — to tribal hunting without regard for state laws and conservation efforts.
“It is difficult to pin down exact implications because no ruling has been made yet,” said Craig Smith, regional wildlife supervisor with the Wyoming Game and Fish Department. “But, in general, it is safe to say that if the court rules against the state’s interest, and unregulated hunting is allowed, there is a potential to reduce wildlife populations to a level that is not sustainable for future generations.”
Yellowtail showed USFS employees maps of what was originally considered Crow territory at the time the 1868 treaty was signed. Those lands stretch from the Musselshell River in Montana to the Powder River in the east, south to near Sinks Canyon in Wyoming and west through the heart of what is now Yellowstone National Park at the headwaters of the Yellowstone River.
If the U.S. Supreme Court rules in favor of Herrera, Yellowtail said, all of those lands once considered Crow tribal territory could be open to tribal members for hunting.
“If the rule applies to the Bighorn (National Forest), by logical extension it includes the Shoshone (National Forest) and all of the others as well, and by the way, all of this BLM (land),” Yellowtail said.
Yellowtail added that the current case may not directly cause that to happen, but additional cases on the nuances of the 1868 and similar treaties could lead to that result based on any precedent set in the Herrera case.
Other tribes, with similar language in treaties with the U.S., have followed the Herrera case and could assert similar rights should the court rule in the Crow tribal member’s favor.
They are also keeping an eye on the case for fear of repercussions less favorable to the tribes.
“…If you can abrogate that provision of a treaty,” Yellowtail said of the hunting rights in question, “what’s to keep the rest of the treaty from being chipped away bit by bit.”
The former Montana legislator said he hopes the court’s decision falls somewhere between the two extreme scenarios.
“I hope if Herrera prevails, that the court doesn’t miss a beat and says that the conservation necessity has to be honored, and all that implies,” Yellowtail said, adding that the court has to consider all of the practicalities involved. “Without it, you can imagine, us Crow Indians will feast for a couple of years and then there will be no elk left.”
Yellowtail added that the Crow do have extensive hunting regulations, “but we have zero compliance, zero enforcement.”
The former Montana legislator said he could envision the U.S. Supreme Court ruling that while the Crow tribal members have hunting rights, they must still follow state laws regarding conservation and game management.
Yellowtail said he has led discussions on the case at Sheridan High School and at schools in Montana. He has also visited with leaders at Sheridan County School District 1 about sharing a presentation with students there.
SHS social studies teacher Kevin Rizer said his classes typically study high-profile U.S. Supreme Court cases and give presentations on them in class, but the Herrera case stands out.
“I’ve never been this close to a case before,” Rizer said. “As a government teacher it is kind of exciting.”
While Yellowtail has lived a life of civic engagement, he said this case offers interesting lessons for students because it is ongoing and there is a sense of anticipation regarding the U.S. Supreme Court’s decision.
“I would not want to be in the position of the Supreme Court and try to find a finesse way to get through all these practicalities,” Yellowtail said. “They are not just legal theories, but they are on-the-ground practicalities.”
Wyoming Game and Fish Game Warden Dustin Shorma, who was the lead investigator in the case, has also given presentations to local classes.
Rizer noted that the students in his classes recognize the impacts it could have on their own lives as hunters in Wyoming. As part of class, Rizer’s students will use constitutional arguments to predict the outcome of the case that originated in the Bighorn Mountains.
“They recognize that this is going to have an impact one way or another,” Rizer said. “…In education, when you can get kids to ask those kinds of questions, it creates the perfect environment for learning.”
A decision in Herrera’s U.S. Supreme Court case is expected by the end of June. The high court could dismiss the appeal, send the case back to a lower court for further findings or determine that prior cases take precedence.