05/20/2019

In an opinion released today, the Supreme Court ruled that an 1868 treaty between the U.S. and the Crow Tribe could give members of that tribe the right to ignore state hunting regulations and engage in the unregulated take of game beyond the borders of reservation land.

The case of Herrera v. Wyoming was brought to the Supreme Court by Clayvin Herrera, a member of the Crow Tribe and former tribe game warden.  Herrera followed a group of elk past the Crow reservation’s boundary and ended up taking several bull elk in the Bighorn National Forest in Wyoming.

Herrera asserted his treaty rights as a defense to criminal charges of illegally taking elk out of season.  After he lost in state court, Herrera successfully petitioned the U.S. Supreme Court to consider his case. 

Supreme Court Justices Sotomayor, Ginsburg, Breyer, Kagan and Gorsuch agreed with Herrera.  They held that the Bighorn National Forest and other federal lands may fall within the scope of an 1868 treaty that permits members of the Crow Tribe to hunt on “unoccupied lands of the United States.”

SCI assisted the Wyoming Game and Fish Department in this case, opposing the position of Herrera.  SCI filed a “friend of the court” brief to defend the importance of state management authority over game on federal lands.  This same principle could apply to 19 other treaties with similar language, spreading the impact to other Tribes and well beyond Wyoming.

In effect, the ruling could give Tribal members the ability to ignore the state hunting regulations.  This could threaten wildlife populations.  It could also lead to restrictions on non-Native hunters in order to keep harvests within biologically acceptable limits. 

The glimmer of hope for state wildlife managers is that the ruling still allows Wyoming to make its case to the Wyoming state court that the state’s hunting regulations should override treaty rights for reasons of “conservation necessity.”

Four justices, including Justice Alito, Chief Justice Roberts, and Justices Thomas and Kavanaugh, filed a dissenting opinion strongly disagreeing with the majority ruling. 

SCI argued in our brief that states could be forced to reduce the available harvest for non-tribal hunters since the unregulated take by tribal hunters not only reduces the potential availability of game for all, but also undermines the state wildlife managers’ ability to accurately determine the number of animals removed from the population.

SCI will continue to monitor the case and, if needed, will help support Wyoming’s efforts to demonstrate the conservation necessity of its game regulations.