Supreme Court to review Crow elk hunting rights

Saturday, June 30, 2018

BILLINGS (AP) — The U.S. Supreme Court has agreed to review a case in which a Crow tribal member and former tribal game warden from Montana is asserting his treaty right to hunt elk in the Bighorn National Forest in Wyoming, The Billings Gazette reports .

A ruling could resolve disagreements among lower courts with regard to tribal treaty rights, U.S. Solicitor General Noel Francisco wrote last month in recommending the high court take up the case. The court agreed Thursday to take the case.

Clayvin Herrera is appealing his misdemeanor conviction for killing an elk in the forest in January 2014. He was sentenced to probation, ordered to pay $8,080 in fines and costs and lost his hunting and fishing privileges for three years.

Herrera’s defense argues the 1868 Fort Laramie Treaty between signed by the Crow Tribe and the U.S. government granted tribal members the right to hunt on unoccupied lands that the tribe had ceded to the United States through the treaty, including large portions of Wyoming and Montana.

The Wyoming Supreme Court rejected Herrera’s case, saying the issue was decided by the 10th U.S. Circuit Court of Appeals in 1995. That ruling was based in part on an 1896 U.S. Supreme Court ruling that said tribal treaty rights “are irreconcilable with state sovereignty.” The 10th Circuit also ruled that the area became “occupied” when it became a national forest.

The 1896 Supreme Court ruling has since been overturned, Francisco noted.

The Idaho Supreme Court, the 9th U.S. Circuit Court of Appeals and the Montana Supreme Court all recognize tribal hunting rights on unoccupied lands, including national forests, Francisco wrote.

A high court ruling could settle the issue and determine the definition of “unoccupied lands”, he said.

The court has recessed for the summer and will resume deliberations in October.

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