33 The Court agreed with Herrera that Mille Lacs, not Race Horse, controlled. 31 Writing for the Court, Justice Sotomayor 32 found the Crow Tribe’s hunting rights were valid under the Treaty. 28 Further, the court indicated that “even if the 1868 Treaty right survived Wyoming’s entry into the Union, it did not permit Herrera to hunt in Bighorn National Forest” because the treaty right only applied on “unoccupied” lands, and “the national forest became categorically ‘occupied’ when it was created.” 29 The Wyoming Supreme Court denied a petition for review. Mille Lacs Band of Chippewa Indians 27 had repudiated Race Horse and consequently nullified the applicability of Repsis. 25 Consequently, the Wyoming state appellate court found that likewise, here “the Crow Tribe’s 1868 Treaty right expired upon Wyoming’s statehood.” 26 It rejected Herrera’s argument that the Supreme Court’s decision in Minnesota v. Race Horse, 24 which found that statehood had changed the obligations of the Treaty. Repsis, 21 the Court of Appeals had “review the same treaty right.” 22 The appellate court decided that this previous decision “merited issue-preclusive effect against Herrera because he is a member of the Crow Tribe.” 23 In the Repsis decision, the Tenth Circuit relied on Ward v. On appeal, “he central question facing the state appellate court was whether the Crow Tribe’s off-reservation hunting right was still valid.” 20 In a separate 1995 case, Crow Tribe of Indians v. 18 Herrera received a suspended sentence, a fine, and a suspension of hunting privileges for three years. In the present day, almost 150 years after the 1868 Treaty, Clayvin Herrera, a member of the Crow Tribe in Montana, “pursued a group of elk past the boundary of the reservation and into the neighboring Bighorn National Forest in Wyoming.” 15 Herrera’s group shot several bull elk, returned to the reservation with the meat, and was later charged by the State of Wyoming for “taking elk off-season or without a state hunting license and with being an accessory to the same.” 16 In state trial court, Herrera insisted that the 1868 Treaty protected his right to hunt “where and when he did,” 17 but his argument was unsuccessful and the trial court denied his pretrial motion to dismiss. ![]() 13 Each of their admission acts included a clause ensuring each state was “on an equal footing with the original States, in all respects whatever.” 14 known as the Bighorn National Forest.” 12 Wyoming joined a number of other states that were admitted into the Union in the decade before the Treaty. 9īetween the signing of the Treaty and the present case, Wyoming was established as a territory, 10 was admitted as a state, 11 and created a National Forest from an “area made up of lands ceded by the Crow Tribe in 1868. 8 Even after subsequent regulations by the Indian Department, Tribe members regularly hunted near the Little Bighorn River. on the borders of the hunting districts.” 6 The Commissioner of Indian Affairs “assured them that the Tribe would have ‘the right to hunt upon as long as the game lasts.’” 7 Hunting has been and remains central to the Crow Tribe’s way of life. 5 The United States promised in exchange that the Crow Tribe “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. 3 Both before and after American settlers moved west, its “members hunted game for subsistence.” 4 In 1868, the Crow Tribe ceded much of its territory by treaty, confining itself to an 8 million acre reservation in present-day Montana. The Crow Tribe has been in modern-day Montana for over three centuries. 2 The Court’s decision in Herrera is a positive signal indicating its willingness to force the State to remain faithful to the promises of its treaties this demonstrates a hopeful shift back toward the foundational principles of Federal Indian law that have suffered under the expansion of the plenary doctrine. Wyoming, 1 the Supreme Court held that offseason hunting activity by a member of the Crow Tribe (Apsaalooke) was protected under an 1868 Treaty between the United States and the Crow Tribe and that the relevant terms did not automatically expire upon Wyoming’s statehood. ![]() These questions were complicated by a changing perspective on the inherent sovereignty of Indian Tribes and how that informed what the courts found Congress could legitimately say or do when it came to (re)defining the scope of treaties. ![]() As the United States expanded and its territories received statehood, questions naturally emerged about how the nature of relationships between the territories and Indian tribes on those lands would change.
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