The Herrera Case


Clayvin Herrera, a member of the Crow tribe, shot an elk in Big Horn National Forest in Wyoming in 2014, and was charged with hunting without a license during a closed season. Herrera claims that an 1868 treaty giving the Crow the right to hunt on the “unoccupied lands of the United States” allowed him to hunt on this land.

In Herrera v. Wyoming, the Supreme Court will decide whether Wyoming’s admission to the Union or the establishment of the Big Horn National Forest abrogated the Crow’s treaty right to hunt in the forest.

To decide this case, the lower court applied a 1995 Tenth Circuit decision, Crow Tribe of Indians v. Repsis, which raised the same question. In Repsis, the Tenth Circuit held that the “Tribe’s right to hunt … was repealed by the act admitting Wyoming into the Union” and that “the creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”

The Tenth Circuit in Repsis relied on an 1896 Supreme Court case, Ward v. Race Horse, involving off-reservation hunting rights and decided against a tribe. Four years after Repsis, the Supreme Court decided another off-reservation hunting rights case, Minnesota v. Mille Lacs Band of Chippewa Indians, in favor of a tribe.

At issue in this case is whether Mille Lacs overruled Race Horse and Repsis.

According to Herrera, Mille Lacs indicates Repsis was decided incorrectly. Herrera argues: “Repsis unambiguously held that ‘[t]he Tribe’s right to hunt reserved in the [1868 Treaty] was repealed by the act admitting Wyoming into the Union.’ Indeed, for good measure, it declared Race Horse ‘compelling, well-reasoned, and persuasive,’ and it cited Race Horse for the proposition that the hunting right preserved in the 1868 Treaty was a ‘temporary right’ that was ‘repealed with Wyoming’s admission into the Union.’ Mille Lacs rejects that reasoning across the board, from the notion that statehood abrogates treaty hunting rights to the ‘too broad’ construct of ‘temporary’ rights.”

Herrera also argues that the establishment of the Big Horn National Forest did not abrogate the Crow’s treaty rights. Indian treaties are interpreted as the Indians would have understood them.

The Crow Tribe understood “unoccupied lands of the United States” in the 1868 Treaty to mean “land undeveloped by white settlers.” In short, prohibiting “entry or settlement” on land by creating a national forest does not cause that land to become “occupied.”

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5 thoughts on “The Herrera Case

  1. I remember the spear fishing BS in WI back when I was a kid, about how sport fisherman got really pissed that the tribes could spear fish and they couldn’t. I remember thinking they were being silly, that their weren’t enough tribe members left to seriously affect the fish stocks in the lakes and rivers (like every tribe member would have to be out there 12 hours a day spearing fish left and right before anyone would notice an even minor dint).

    And I was right, it wasn’t about the fish stocks, it was about the fact that they could spear fish and no one else could. And there were claims about equal protection blah blah, totally ignoring the fact that these were a sovereign people.

    Anyway, long way to say that I suspect the reason anyone bothers to bust the tribes for stuff like this is because there are sportsmen who get all butthurt over the fact that tribes can hunt and fish in ways and at times and in places they can’t. And people need to just tell those guys to shut up and read a history book.

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    • I go back and forth in my head on this one. I have always supported tribal rights to engage in historic hunting practices (Inuit hunting of whales, using spears, hunting animals at stream crossings, etc). I also support them not having to purchase hunting licenses or even more liberal bag limits, etc and even special off-season hunts. On the other side of the argument, specifically in Herrera, is that they interpreted the treaty as they saw it and appear to have violated state law. Not so happy about that. I’m glad SCOTUS is going to clear this up.

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      • I’m of the opinion that as long as the tribes are not hunting or fishing for profit (selling the meat or other parts as part of a business venture), they should be allowed to take what they want from any public land or water. If the feds want to get into it, they’d need to show that the tribes are taking more than they could possibly be using.

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        • I think the fair argument against this is that with the reservation system they are trying to have their cake and eat it too. If they are US citizens, subject to all the same laws, then it seems like game laws would also apply. They aren’t currently required to have a hunting license to hunt on the reservation but they still benefit from conservation dollars. It seems fair to ask them to follow all game laws when they are off the reservation, just like they aren’t allowed to break criminal laws (speeding, murder, whatever).

          The only way I could really be okay with them having extra hunting rights would be if we all decided it was some kind of affirmative action thing. Having spent some time on several reservations out west, it seems like that’s a pretty weak gesture considering how much more we could be doing.

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