An Indian Tribe Says It Needs To Hunt To Survive. The Supreme Court Is Now Considering Their Case

A Native American man hunts elk to feed his family in a Wyoming national forest — the Supreme Court will hear arguments Tuesday as to whether that’s legal.

The case asks whether a 19th-century treaty still allows the Crow Nation to hunt on unoccupied federal land in Wyoming. A lower court allowed Wyoming to prosecute a Crow man for hunting off season in the Bighorn National Forest.

“The decision below is profoundly wrong and profoundly unsettling,” the Indian petitioner wrote in his brief at the high court. “Affirmance not only would strip a sovereign Indian tribe of a longstanding, treaty-guaranteed right of enormous practical and spiritual significance; it would threaten the rights of numerous other Indian tribes that long ago reserved similar off-reservation protections in their own treaties with the United States.”

The case arose in January 2014 when Clayvin Herrera and several companions, Crow Indians all, pursued a small herd of elk from the tribe’s Montana reservation into the Bighorn National Forest in northern Wyoming. Once in Bighorn, they bagged three elk. The hunting party then transported the elk meat back to the Montana reservation to feed their families and other tribals over the winter.

According to Herrera’s attorneys, hunting was a necessary food supplement for many Crows, as the tribe faced serious economic privation during that period.

State authorities in Wyoming charged Herrera with two misdemeanor violations of state hunting laws; he was convicted on both counts, made to pay an $8,000 fine, and refrain from hunting for three years. Herrera disputed those charges, arguing the 1868 Second Treaty of Fort Laramie guarantees the Crow right to hunt in Bighorn, a part of their aboriginal homeland. Tuesday’s case will turn on whether that treaty is still in force.

Wyoming says their admission to the union in 1890 nullified the 1868 treaty, and at least one Supreme Court precedent from the late 19th century supports that view. They further say Bighorn’s designation as a national forest in 1897 also abrogated the Fort Laramie agreement.

But Herrera counters that 20th-century developments in Indian law have displaced the arguments Wyoming advances. For example, in a 1999 decision called Minnesota v. Mille Lacs Band of Chippewa Indians, the Supreme Court found that the Chippewa retained hunting rights on land ceded to the federal government in 1837.

The Trump administration filed an amicus (or “friend-of-the-court”) brief supporting Herrera, writing in court documents that the federal government has “a substantial interest in the proper interpretation of its treaties with Indian tribes, in light of both its status as a party to such treaties and its special relationship with the Indian signatories whose rights such treaties secure.”

A six-state coalition led by Nebraska filed its own amicus brief supporting Wyoming, arguing that Herrera cannot advance his arguments because they were already rejected in a similar 1996 dispute in the 10th U.S. Circuit Court of Appeals.

A decision is expected by June.