By Kristen Czaban
The Sheridan Press
Via Wyoming News Exchange
SHERIDAN — Now that the U.S. Supreme Court has issued its opinion on Herrera v. Wyoming, lower courts will take up the case again while locals await the effects — both legal and social — of the decision. The case originated in 2014 when Clayvin Herrera, a member of the Crow tribe, went hunting and crossed the state line into Wyoming and the Bighorn National Forest.
Herrera was cited for killing an elk there out of season and as a result was sentenced to pay more than $8,000 in fines and court fees and have his hunting privileges suspended.
Herrera didn’t deny taking the elk, but questioned the illegality of the action. He argued that an 1868 treaty between the Crow and U.S. government allows members of the tribe to hunt “unoccupied” lands. The state of Wyoming argued that the treaty rights were nullified when Wyoming became a state and that the Bighorn National Forest doesn’t constitute “unoccupied” lands.
The appeal made its way to the U.S. Supreme Court, which Monday issued its opinion undercutting much of the state’s case.
Now that the high court upheld the tribal hunting rights, Bill Yellowtail — a rancher from the Wyola area and former Montana state senator who has tracked the case — said he fears the repercussions.
“Look, we’re neighbors after all, and I’m concerned that this has the potential for creating anger and division among us,” Yellowtail said Monday evening. “I hope that does not come to pass, I’m just concerned that we let the process develop in an orderly fashion now, and that in the end we can share the wildlife and landscape resources respectfully.”
Yellowtail added though, that he fears Crow hunters and Wyoming hunters may “come to unpleasantness” in competition over the wildlife.
“So I want people to be patient,” Yellowtail said.
While officials within the Bighorn National Forest and Wyoming Game and Fish Department have remained largely silent on the opinion issued Monday, Wyoming Gov. Mark Gordon noted that, “the Court recognized that several issues in this case are unresolved, and the Court remanded the case back to Wyoming so the state court can consider the outstanding issues.”
In the meantime, Gordon said, the state will continue to regulate hunting in the Bighorn National Forest.
“With the remand,” Gordon said, “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.”
Solutions may be difficult to come by, though, since the path forward remains unclear.
For example, some are asking if the opinion means members of the Crow tribe have unlimited rights to hunt in the Bighorn National Forest. And will that right extend to other federal lands that fall within the original treaty boundaries?
Those are just two questions retired Bighorn National Forest district ranger Clarke McClung said he would have if he still worked for the U.S. Forest Service. Officials from the forest declined to comment on the U.S. Supreme Court decision.
“To me, the opinion opens a complete can of worms,” McClung said. “How will the U.S. Forest Service manage that use? How do they manage that one and what impact does it have on other uses and the overall management of the land?”
McClung pointed to several issues — such as access, licensing and conservation — that could arise if the decision is found to mean unlimited hunting rights for the Crow.
Justice Sonia Sotomayor, who wrote the opinion, did note two ways the decision in favor of Herrera is limited. First, the ruling that the Bighorn National Forest isn’t categorically “unoccupied” doesn’t mean that all areas of the forest are unoccupied. The state of Wyoming could argue on the remand to state courts that the area in which Herrera hunted “was used in such a way that it was ‘occupied’ within the meaning of the 1868 Treaty,” Sotomayor wrote.
In addition, she noted, Wyoming could pursue the argument that state regulations applying to Crow tribe members exercising their hunting rights are necessary for conservation.
Conservation has been at the heart of some concerns expressed by those familiar with the case.
“Given that we have a finite number of game animals, the question is how shall they be managed now, into the future, in a way that sustains them as vital populations,” Yellowtail said. “And that’s complicated now by the fact that we have a treaty for hunting rights that adds a whole new level of pressure on the game resources.”
Other court cases balancing tribal rights regarding the harvesting of wildlife with conservation needs have existed.
For example, in February 1974, federal judge George Boldt issued a ruling reaffirming the treaty rights of Washington tribes to fish in “accustomed” places while allocating 50 percent of the annual catch allowed based on conservation figures to treaty tribes.
“The court recognized that in order for the salmon to thrive, they needed to be managed,” Yellowtail said of the case. “Now, just as Wyoming has always managed the wild game, we’ll have to fit Crow treaty hunting into that management.”
If the conservation necessity is upheld in court, many details of management will require debate. For example, how will the harvest of animals be divided between members of the Crow tribe and nontribal members? What rules will apply to tribal members? Who will enforce compliance with the established rules? Those questions, Yellowtail said, likely represent just the beginning of the debate.
“These are critical questions moving forward,” Yellowtail said, “But they are also potential for conflict.”
Another concern has centered around what this means for other federally held lands that fell under the 1868 treaty with the Crow, and similar treaties with other tribes across the country.
In February, Yellowtail showed USFS employees maps of what was originally considered Crow territory at the time the 1868 treaty was signed. Those lands stretch from the Musselshell River in Montana to the Powder River in the east, south to near Sinks Canyon in Wyoming and west through the heart of what is now Yellowstone National Park at the headwaters of the Yellowstone River.
“If the rule applies to the Bighorn (National Forest), by logical extension it includes the Shoshone (National Forest) and all of the others as well, and by the way, all of this BLM (land),” Yellowtail said in the February presentation to USFS employees.
The 5-4 vote from the U.S. Supreme Court will likely shape the future of Wyoming’s conservation efforts for years to come, but to what extent will likely be determined as the lower courts again take up the issue.