By Ashleigh Fox

The Sheridan Press

Via Wyoming News Exchange

SHERIDAN — The U.S. Supreme Court heard arguments Tuesday morning on the Clayvin Herrera case, which started in Sheridan County Circuit Court and was appealed to 4th Judicial District Court, Wyoming Supreme Court and now to the nation’s highest court.

Following three judicial rulings, the U.S. Supreme Court accepted review of the criminal case against Clayvin Herrera, who allegedly poached an elk on public land out of season in January 2014 in Sheridan County. Herrera’s hunt began on the Crow Reservation in Montana but ended roughly a mile south of Montana-Wyoming border markers, putting the killed elk on public land managed by the Bighorn National Forest.

Sheridan County Circuit Court Judge Shelley Cundiff found Herrera guilty on two poaching charges April 29, 2016, as did 4th Judicial District Court Judge John Fenn in an appeal from circuit court Dec. 9, 2016. The Wyoming Supreme Court rejected the second appeal on June 16, 2017.

Briefs were filed by numerous agencies outside of counsel representation in support of Clayvin Herrera or the state of Wyoming in early September. Those entities supporting Herrera’s case included: Eastern Shoshone Tribe, Indian Law Professors, Natural Resources of Law Professors, Southern Ute Indian Tribe and Ute Mountain Ute Tribe, National Congress of American Indians, Pacific and Inland Northwest Treaty Tribes, Shoshone-Bannock Tribes of the Fort Hall Reservation, Timothy P. McCleary, and Herrera’s home tribe and closest tribe to Sheridan, the Crow Tribe of Indians.

Those submitting support for the state of Wyoming in the form of a brief included: Wyoming Stock Growers Association, Association of Fish and Wildlife Agencies, Western Association of Fish and Wildlife Agencies, states of Nebraska, Kansas, Louisiana, North Dakota, South Dakota and Texas, Citizen Equal Rights Foundation, Mille Lacs Equal Rights Foundation and the city of Wakhon, Minnesota, and Safari Club International.

In opening statements, George W. Hicks Jr, on behalf of Herrera, said the text of the 1868 treaty memorializing an agreement between the Crow Tribe of Indians and the United States to cede 30 million acres of land to move to a reservation holds today. In exchange for the land, Hicks said the treaty retained the tribe’s right to hunt on the land relinquished.

The treaty outlines ways that would cause the hunting rights to be terminated. Hicks’ argument was that Wyoming’s admission to the Union is not one of them.

“While the treaty does provide that the right would terminate if the lands were no longer unoccupied, President Cleveland’s 1897 proclamation creating the Bighorn National Forest did not suddenly render all 1.1 million acres of land comprising the forest occupied as the parties to the treaty understood that term,” Hicks said in the argument.

Two additional cases were heavily used as evidentiary support for both sides of the matter — Minnesota v. Mille Lacs Band of Chippewa Indians and Crow Tribe of Indians v. Repsis. The Mille Lacs case occured between the state of Minnesota and the Mille Lacs Band of Chippewa Indians in 1999.

In that case, the Supreme Court ruled that, because of a treaty ceding land to the United States, the Ojibwe (Chippewa) tribe retained certain hunting, fishing and gathering rights on the ceded land contingent upon a set of guidelines to protect the Great Lake fisheries, according to an education journal article by Patty Loew and James Thannum from the University of Nebraska.

The Repsis case presented facts nearly identical to Herrera’s case. In the 4th Judicial District Court appeal in Sheridan under Judge John Fenn, an attorney representing Herrera said the decision to not allow the Native American in question to hunt freely on non-reservation land was an incorrect decision.

John Knepper, on behalf of the state of Wyoming, said the judge in the Repsis case ruled that the treaty in question had expired.

The definition of occupying land stood in the balance of the Supreme Court’s decision. If the argument for Wyoming gaining statehood was not valid due to past court decisions, Knepper vied for the ruling that negates the treaty because of the land becoming occupied through state park or national forest designation. In addition to the Bighorn National Forest, where Herrera poached the elk, Yellowstone National Park is also a location where Native Americans cannot hunt, although part of the park falls within the Crow hunting district.

“The United States proceeded over the entire time, beginning in 1872 and then through the ‘80s, 1880s, to say to tribes, ‘You may not hunt (in Yellowstone.) This is off limits. We have occupied this land,’” Knepper said.

The implications of the decision would be conservation issues, which were discussed at length between Knepper and the justices.

Knepper explained by allowing people to hunt out of season in the Bighorn National Forest or other areas, it creates a safety concern for non-hunting recreators. Knepper said he won’t take his children into the national forest during hunting season because of the inherent risks associated with hunting season.

In addition to safety concerns, Knepper said conservation efforts outlined by game and fish departments help ensure diseases do not spread in the area.

A ruling has not yet been made, but in closing arguments, Hicks said that if the court finds that the treaty right is valid and has not been terminated, that Wyoming still would have the ability to regulate its wildlife and natural resources.

Explicit details on how those regulations would be carried out were not discussed in Tuesday’s arguments.

Justices will review the matter and return with an opinion in the near future.