One day in the middle of winter, a single dad needed food for his three daughters. What happened next sparked a case that will be heard by the Supreme Court on Tuesday. But, though the incident in question took place only a few years ago, the case involves matters that reach back more than a century into American history.
Clayvin Herrera, a member of the Crow Tribe and a tribal game warden in Montana, went hunting for elk with fellow tribe members in January 2014. He has said in interviews that he had recently seen a reduction in salary, and was counting on hunting as a way to feed his family. When one of the animals jumped over a fence into Bighorn National Forest, he has said, they followed it. After shooting and killing three elk, they returned home with the meat.
In 2015, Wyoming authorities cited Herrera for hunting during closed season and without a state license, a misdemeanor. Herrera’s lawyers said it was an accident that he had crossed into the National Forest, but a jury convicted him in 2016, after prosecutors argued that as a game warden, he should have known where the border was. He was sentenced to a year of probation, ordered to pay about $8,000 in fines and court fees, and banned from hunting for three years. In the years following, a state appellate court upheld the conviction, as did the Wyoming Supreme Court.
Now, on Tuesday, the U.S. Supreme Court hears arguments in Herrera v. Wyoming.
Herrera’s lawyers will argue that when he shot the elk, he was asserting his right to hunt under a treaty agreed to in 1868 by the U.S. and representatives of the Crow people. That treaty grants certain hunting rights to the people it covers, 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.” As the tribe sees it, that “as long as” means those rights still exist.
But the State of Wyoming will argue that such a right hasn’t applied since Wyoming became a state in 1890, and that furthermore the designation of Bighorn National Forest in 1897 meant the land ceased to be unoccupied. “Wyoming statehood was not just a legal event, it was a recognition the once wild frontier was no more. And the Crow Tribe understood that its hunting right had ended,” the state argues.
Needless to say, the relationship between federal and state governments and tribal authorities has often been a dark one, and treaties like the one at issue in Herrera v. Wyoming are a key part of that story.
The 1868 treaty central to Herrera’s legal team’s argument was signed “at a time of great uncertainty and conflict in the mountain west,” says historian Frederick E. Hoxie, an expert on American Indian history. The Civil War had recently ended and a gold rush in Montana had sparked a spike in conflict between settlers hoping to strike it rich and the people who already lived on the land they wanted to mine.
Treaties like that one — which were “often broken, sometimes coerced,” as the National Museum of the American Indian has put it — were an attempt to make some peace in those conflicts. As they pushed Native Americans onto reservations, they often provided exceptions meant to offer Indians a means of survival in this new world. In the plains region, this might mean allowing them to hunt on unoccupied land outside the reservation borders, and in the Pacific Northwest similar rights were extended to fishing.
“The basic point of all of them was Indian people subsisted by hunting and gathering; they couldn’t survive if they were confined to their reservation, so they needed the ability to go off reservation as long as lands were unoccupied. Nobody envisioned there would be problem with that,” says Marc D. Slonim, a lawyer who has argued for tribes in similar cases and who submitted an amicus brief in support of Herrera on behalf of the National Congress of American Indians. “From the federal prospective, they didn’t want the burden of feeding tribes, so allowing tribes to continue to hunt and fish off their reservations on unoccupied lands made a lot of sense.”
Perhaps unsurprisingly, despite nobody envisioning a problem, problems did arise.
Starting around the early 20th century, disputes between state governments and American Indians over hunting and fishing rights became a major issue. Key resources such as buffalo were driven to near-extinction “by commercial hunting, primarily by non-Indians, so states stepped in to start regulating the exercise of hunting and fishing,” according to Slonim. “There was a big push for regulation and conservation.” Burgeoning sport-hunting organizations tried to come up with solutions such as shorter hunting seasons, but that wasn’t seen as a workable solution for Indians engaging in hunting for subsistence and ceremony. The question of how to balance promised hunting rights with the states’ new desire to control hunting led to conflict.
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Herrera will not be the first time that the U.S. Supreme Court hears a case coming out of those conflicts, but there are “dueling precedents,” so the question in Herrera is which one the justices will cite.
In the 1896 case Ward v. Race Horse, the court held that Wyoming statehood did in fact do away with the right to hunt on unoccupied U.S. territory as set out in the the Shoshone-Bannock treaty. In Crow Tribe of Indians v. Repsis in 1995, the U.S. Court of Appeals for the 10th Circuit upheld the Race Horse ruling. On the other hand, in 1999’s Minnesota v. Mille Lacs Band of Chippewa Indians, over a fishing right in a 1837 treaty, the Supreme Court rejected the state’s use of Race Horse, arguing that the language in that decision is “too broad to be useful in distinguishing rights that survive statehood from those that do not.” Herrera’s legal team will argue that that case overrules the two other rulings that came to the opposite conclusion.
“Generally, the Supreme Court and lower courts have said that rights secured in treaties aren’t affected by statehood,” says Slonim. He points to United States v. Winans, decided shortly after in 1905, which “secured” similar treaties in the Pacific Northwest regardless of statehood. Decisions in a flurry of cases maintained those rights in the ’70s and ’80s. In one case commonly known as the “Boldt decision,” after the judge, it was ruled in 1974 that people covered by one such treaty were entitled to up to 50% of the harvestable surplus of salmon passing through the tribe’s fishing grounds.
“Particularly in the ’70s into the ’80s, these issues were extremely contentious,” Slonim says.
That timing followed the rise of the American Indian Movement, as Indians, partly inspired by the civil rights movement of the ’60s, pursued cases concerning their own rights. And, historian Hoxie argues, it was only then that tribes were able to fight for those rights. “In my opinion, the Indian people were so decimated by the actions of the federal government and other people in the late 19th and early 20th century they were unable to enforce their treaty rights until the middle of the 20th century,” he says.
Over time, as those rights were recognized, states began working with the tribes on practical solutions to potential conflicts. Today, tribes are very involved in partnerships about managing natural resources and working with sport and commercial fishermen.
Experts say Herrera v. Wyoming comes at a delicate time. Hoxie argues that such cases arise when “racial tensions are exacerbated” in general. And at a time when some American Indians’ traditional ways of life are under threat, preserving treaty rights to hunt and fish off reservations is seen by many as one way to preserve American Indian culture and heritage. “Cloud Peak, in the Wyoming portion of the Bighorn Mountains, holds tremendous spiritual significance to the Tribe as a site where many Tribal leaders and heroes fasted. It is also the location where the Tribe believes the Creator gave a sacred tobacco plant to the Tribe after a long migration to show that this region was where they were meant to remain,” the Crow tribe put it in a brief supporting Herrera. “The Bighorn Mountains have remained a source of sustenance — both physical and spiritual — to the Tribe since that very early time, despite the many dramatic changes on the land since then.”
Whether the court agrees that the significance is enough to overrule state regulations on hunting remains to be seen.
