Read MeatEater’s first article about the Herrera’s hunt, investigation, arrest and legal journey if you’re new to this case.
On Monday, May 20, the United States Supreme Court issued a much-anticipated ruling in the case of Herrera v. Wyoming. Though Clayvin Herrera and the Crow Tribe claimed a major victory in their quest to restore treaty-granted hunting rights on the Bighorn National Forest, the case is far from concluded and may return to the high court again.
Essentially, the Supreme Court justices disagreed with the State of Wyoming about the existence of two things: “unoccupied lands” in the Bighorn National Forest and the Crow tribe’s right to hunt on those lands. Both are alive and well, the justices proclaimed. However, they declined to specify exactly what or where “unoccupied lands” are, or whether Herrera was on them when he shot the elk that ignited this debate.
The high court remanded the case, and those questions, back to the Wyoming District Court in Sheridan for a rehearing in light of this opinion. Despite ruling in favor of Herrera, the court also appeared to acknowledge that the state has some valid management jurisdiction in regard to Crow hunting on the Bighorn, for the sake of wildlife conservation.
The decisive vote in the 5-to-4 decision was cast by Justice Neil Gorsuch, who crossed party lines to join the progressive wing of the court and maintained his track record of siding with tribes. The outcome of the SCOTUS review appeared neither surprising nor final to those watching it closely.
David Willms, an attorney specializing in wildlife issues, worked as a senior policy advisor to former Wyoming Gov. Matt Mead throughout much of this saga. He stresses that this case is far from concluded because the final outcome is still unclear.
“What I’ve been telling people, if you’re a hunter or angler, don’t look at this as a sky-is-falling moment,” Willms told MeatEater. “All they really did was establish that yes, there is a valid and existing treaty right, but the extent of that right and limitations on that right have not been determined yet.”
The Supreme Court majority opinion, written by Justice Sonia Sotomayor, relied on two factors to overturn the lower court decision: the treaty language as the parties understood it in 1868 and the precedent set by the court’s 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians.
The Second Treaty of Fort Laramie included four provisions for the termination of the Crow hunting rights, but statehood within that area was not among them. The designation of the Bighorn National Forest didn’t render the land “occupied” either, Sotomayor wrote; “Quite the opposite.”
Interestingly, one provision for the abandonment of the treaty right was “so long as game may be found thereon.” Elk and several other species of big game were extirpated from the Bighorn around the turn of the 20th century and reestablished decades later by the state and federal government—a fact Wyoming may point to in future hearings.
Wyoming’s unsuccessful oral arguments relied on the 1896 Supreme Court decision in Ward v. Race Horse, which held that the Shoshone-Bannack Tribe’s hunting rights under similar treaty language had been extinguished by Wyoming’s statehood under the equal footing doctrine of the Constitution. This collection of justices, however, were more swayed by the precedent of the Mille Lacs decision in favor of the Chippewa Tribe, which held that Minnesota’s statehood had not abrogated treaty hunting and fishing rights. “Mille Lacs undercut both pillars of Race Horse’s reasoning,” the opinion states.
The validity of Wyoming’s reasoning hinged on an additional technicality: That the treaty rights argument couldn’t be made in court, because the Tenth District Court had specifically ruled in the 1995 Crow Tribe v. Repsis decision that, based on a legal principle known as issue preclusion, the Crow could not hunt out of season on the Bighorn National Forest. This Supreme Court, however, said that an exception must be made because the governing case law has now changed with their adoption of Mille Lacs.
While the Court affirmed Herrera’s treaty hunting rights and the existence of unoccupied lands within the Bighorn National Forest to exercise them, they punted on the definition of “unoccupied lands” and the requirement for conservation. The opinion provided some guidance and guardrails about what human activities fail to define an area of land as “occupied,” such as mining and logging, but the opposing sides in this case still will be hard pressed to agree on a definition. Grazing leases, campgrounds, water diversion projects, roads, trails and others could possibly be put forwards as tests for occupancy.
“Conservation necessity” will likely boil down to harvest allocations to tribal members, another sticking point to be sure. The presence of low-density, low-fecundity big game species like moose and bighorn sheep in the Bighorn Mountains may support a vote in favor of strong hunting restrictions. Elk populations, however, are currently over objective throughout much of the region, as Herrera’s lawyers have argued.
“The way I look at it, we have potentially one or two more trips to the Supreme Court ahead of us,” Willms predicted. “I would anticipate that the trial court would make a determination on occupancy and there would be disagreement on one side or the other and would be appealed up and probably have to be dealt with by the Supreme Court. And same thing with conservation necessity. Since the Supreme Court took this case in the first instance and remanded back, they’ll likely take it again. It would surprise me if they didn’t.”
Certain elements of the hunting community continue to reprise a now familiar refrain. They suggest that tribes across the country will be able to hunt any public lands without restriction if the courts continue to favor Herrera. Most experts don’t see that as even remotely possible. The Supreme Court dealt very specifically with the Crow treaty and the Bighorn National Forest, but the question does remain whether lands managed by other agencies could be deemed “unoccupied.”
“It’s not like now the floodgates are open and we’re going to see all kinds of cases challenging these systems. It’s very narrowly tailored to the specific language of this treaty,” Willms said. “There are one or two other treaties that have the exact same language. It’s pure speculation, but that might open the door for an argument for those particular treaties.”
Those particular tribes will be unlikely to press any claims until the Herrera case is resolved, which could take several more years.
Clayvin Herrera now stands a very good chance of having his poaching conviction and fines overturned. In a statement, Wyoming Gov. Mark Gordon hinted at the state’s priorities going forward: “With the remand, my administration will stand up for a system that preserves the decades of conservation work that has built a strong wildlife population in the Bighorns, and we will work to find solutions for all those who hunt.”
Feature image via Wiki Commons.