Billings, Mont. • 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 right under a 150-year-old treaty with the U.S. government 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.
“This case affects numerous other tribes, as no fewer than 19 federal treaties protect the ‘right to hunt on federal lands away from the respective reservations,’” attorneys for former game warden Clayvin Herrera noted, asking the Supreme Court to decide the case.
The court agreed Thursday to take the case.
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.
The case came to light when Herrera emailed Wyoming game warden Dustin Shorma in January 2014 to suggest they work together on poaching cases along the Montana-Wyoming border, Shorma testified during Herrera’s April 2016 trial in Sheridan County Circuit Court.
Shorma did some online research and discovered pictures of Herrera and others with bull elk that had been uploaded to the website MonsterMuleys.com. Shorma believed the photos were taken in January 2014 in Wyoming, where the elk hunting season was closed, he testified.
Shorma matched the pictures to the topography of a site in Wyoming near the Montana border, where he found the remains of three elk. He cited Herrera, who surrendered the elk head he had kept. Testimony indicated Herrera and the other hunters took the elk meat back to their families.
Herrera testified that he believed he was still on the reservation in Montana, where he was allowed to hunt in January, and that heavy snow prevented him from seeing any boundary markers.
On appeal, Herrera’s defense argues the 1868 Fort Laramie Treaty 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, the solicitor general, 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.