Herrera v. Wyoming

WHETHER WYOMING’S ACHIEVEMENT OF STATEHOOD ENDED THE RIGHT TO HUNT UNDER THE CROW TREATY

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.

WHETHER THE CREATION OF THE BIGHORN NATIONAL FOREST ENDED THE RIGHT TO HUNT UNDER THE CROW TREATY

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.