It’s been nearly five years since the U.S. Supreme Court issued a landmark decision recognizing tribes’ treaty-based hunting rights, and two months since a lower federal court issued an order related to tribal elk hunting in the Bighorns. Still, many of the fundamental legal and policy questions about where, when and if certain Native Americans are bound by state hunting regulations remain far from resolution.
Meanwhile, the landscape of case law in which observers expected the lingering legal questions to be resolved has quietly, but meaningfully, shifted: Wyoming has dropped the charges in the partially remanded Herrera v. Wyoming case, meaning the case is dead and its unresolved elements will remain that way.
That has elevated the importance of a case that began when Thomas Ten Bear, a member of the Crow Tribe, was convicted of elk poaching in the Bighorns in 1989. Though completely separate from the more modern Herrera case, Ten Bear’s shares a number of key elements: both center around Crow Tribal members being prosecuted for killing elk in a national forest in Wyoming without a state-issued permit.
Years before the Supreme Court’s Herrera ruling, Ten Bear asked a federal court to throw out his nearly 35-year-old poaching conviction. In late March, with the new precedent in place, U.S. District of Wyoming Judge Alan Johnson issued a 27-page order partially granting Ten Bear and the Crow Tribe’s requests for relief. While doing so, he hewed closely to the specific case before him.
The judge made a couple of “important” judgements that helped establish consensus around “key legal questions,” said Sen. Affie Ellis (R-Cheyenne), an attorney and member of the Navajo Nation who has followed the issue closely.
“Unequivocally, [the order] says that statehood admission does not abrogate treaty rights,” Ellis told WyoFile. “The case unequivocally says that just because you create a national forest, [it doesn’t mean] that those lands are occupied.” The Crow’s treaty grants hunting rights in perpetuity on “unoccupied” lands.
But other important questions about off-reservation hunting remain unresolved, she said.
Creating a national forest doesn’t make it “occupied,” but there are ambiguities about when portions of a forest — or any land — can be considered occupied and off-limits to treaty-based tribal hunting. Separately, there are unanswered questions about “conservation necessity,” and when the state could regulate or even prevent tribal hunting outside of reservation boundaries.
Johnson didn’t definitively answer those questions. Ellis didn’t think he would.
“If he made a blanket statement of how [off-reservation hunting] should look, it would probably have been treated as … an opinion, but not binding precedent,” she said. “There are limits on what a court can do.”
The judge was ruling on a narrow case, stemming from Ten Bear’s elk poaching conviction 35 years ago. Ten Bear and the Crow Tribe sued Wyoming using a 1868 treaty right argument, but lost. Then decades passed before the Supreme Court ruled the opposite in the Herrera case.
Wyoming dropped charges against Clayvin Herrera last year after an unrelated conviction on felony child pornography charges promised a long prison sentence. That means lingering legal questions about “occupancy” and “conservation necessity” will no longer be resolved through that case, Ellis said. The nation’s highest court had sent back those questions for the Sheridan County Circuit Court to answer. But with the charges dropped, the case is dead.
The Crow Tribe, meanwhile, has sought relief from the Ten Bear judgements, known as Repsis after the game warden who brought the original charges. That request was bounced from the U.S. District Court of Wyoming to the Tenth Circuit Court of Appeals and back to the federal district court, where Johnson ruled while considering the new Herrera precedent in late March.
Agreement needed
Cheyenne attorney David Willms believes that Wyoming and tribal residents with treaty hunting rights in state bounds still lack a clear blueprint for resolving off-reservation tribal hunting.
“My read between the lines is the judge is saying, ‘The state and the tribes need to get together and work this thing out,’” said Willms, a former policy advisor for Gov. Matt Mead and an adjunct law teacher at the University of Wyoming.
In his ruling, Johnson wrote that the two parties should “endeavor to strike a balance between treaty-based … rights and state sovereignty over natural resources.”
The Supreme Court’s Herrera v. Wyoming ruling, he wrote, suggests that the two are “necessarily compatible.”
In the five years since Herrera, there has been one big effort to make off-reservation hunting compatible in the state of Wyoming.
During the Wyoming Legislature’s 2023 general session, lawmakers were advancing a tribal agreement bill that Wyoming Game and Fish Department Director Brian Nesvik described as his “biggest legislative lift” of the year. In essence, the legislation would have granted Gov. Mark Gordon the authority to negotiate state-tribal pacts for off-reservation hunting and angling seasons that went outside of Game and Fish Department regulations.
The Eastern Shoshone Tribe initiated the effort in 2022 and was initially on board. But then southeast Idaho’s Shoshone-Bannock — other tribes with treaty hunting rights in Wyoming — protested, arguing that they were cut out of the process and that the bill was too prescriptive, violating their sovereignty. Eventually the bill lost all tribal support. The legislation died, but not before “poisoning the well,” as one state senator put it at the time.
Since then, the Wyoming Game and Fish Department has taken the position that tribal members can be cited for off-reservation hunting and angling that violates state seasons and regulations.
“On the ground, it’s still not legal for tribal members [without standard permits] to hunt off-reservation in Wyoming on unoccupied lands,” Nesvik told members of the Legislature’s Joint Appropriations Committee in January. “That’s the way we’re treating it. We do know that the Supreme Court made some decisions that we need to deal with.”
Nesvik cited the “gray area” left by the Supreme Court: “We believe that ‘conservation necessity’ exists, and until there’s tribal regulation that’s agreed upon with the state, those tribal rights can’t be executed,” he said.
The Billings Gazette reported this winter that Montana Fish, Wildlife and Parks responded to the Supreme Court’s decision very differently, instructing its wardens not to cite Crow Tribe members who violate state hunting laws in the Custer Gallatin National Forest east of the Yellowstone River. The state and tribe are discussing additional off-reservation hunting grounds in Montana, but have not asserted their treaty rights in Wyoming, Crow Tribal Fish and Game Director Ryan Fitzpatrick told the newspaper.
“We didn’t want to get into an argument or court case,” he told the Gazette. “They said they want time to identify unoccupied lands. We didn’t want to go out there and say we have a treaty.”
Continued impasse
Meantime, there are few signs of progress toward resolving off-reservation hunting in Wyoming.
Wyoming Game and Fish officials declined an interview for this story, deferring to Gov. Mark Gordon’s office, which released a statement.
“To date, neither tribe has indicated a desire to continue the discussion on off-reservation hunting with the state,” the governor’s statement said.
WyoFile was unsuccessful in its attempts to interview Eastern Shoshone and Northern Arapaho tribal leaders. The two tribes occupy the Wind River Indian Reservation in central Wyoming. Efforts to reach the Crow Tribe in Montana and Shoshone-Bannock tribes in Idaho were also unsuccessful.
Gordon desires “government-to-government negotiations” with the tribes to mutually agree on off-reservation hunting. That approach is more “positive and productive” than “unpredictable, expensive and contentious” litigation, he said in the statement.
“It is not, and has never been, the governor’s intention to unilaterally regulate tribal hunting on or off of the reservation,” the statement said. “Instead, the governor’s intention is to find common ground on shared values of wildlife conservation and responsible hunting.”
Ellis, the attorney and state senator, also believes that the best way to move forward is outside of the courtroom. Having a tribal member violate Wyoming hunting laws as a test case would subject that person to prosecution and “doesn’t seem appropriate,” she said.
There are “important lessons” to be learned from Wyoming and the Eastern Shoshone Tribe’s failed 2023 effort to reach agreement, Ellis said.
“The unfortunate thing is how that bill was drafted and the way it was negotiated,” she said. “We came to see that the Shoshone-Bannock tribes had concerns about the bill, as it was drafted, and not being included in the drafting of the bill.”
Going forward, Ellis said, it’s important to have an agreement that includes both of the Shoshone tribes that signed onto the 1868 Treaty of Fort Bridger. Article 4 of the treaty states: “… they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.”
Toward a resolution
It also makes sense for Wyoming to strike an agreement with the Crow Tribe, which has similar treaty language, over hunting in the Bighorn National Forest, Ellis maintains.
Rep. Lloyd Larsen (R-Lander), who was the primary sponsor of the 2023 tribal agreement bill, told WyoFile that Johnson’s order “adds clarity” and will help the tribes and state understand what the courts will expect. At the same time, he said, it left a “lot of flexibility.”
Importantly, Johnson’s order did not end the Repsis case, Ellis said. Effectively, she said, that case has supplanted Herrera as the case where the particulars of “occupied land” and “conservation necessity” could be determined legally.
There is a lot of legal precedent that will guide the resolution to those questions.
On the issue of occupancy, other courts have ruled that the presence of cattle, fences, cultivated fields and buildings can be a determinant, Ellis said.
“If an area is open and available to hunting, it’s probably considered unoccupied,” she said. “But how do you parse that out when there might be signs [stating] that those lands have been leased? That’s a little unresolved.”
Resolving “conservation necessity” will be even more difficult in court, Ellis said. The status of a species or big game herd often changes one year to the next, whether from persistent winters that collapse pronghorn herds or drought-driven diseases that devastate deer herds.
“A court can only look at a snapshot in time with one case or controversy,” Ellis said. “To me the better solution would be a negotiated agreement.”
The state senator reiterated her hope that Wyoming and the tribes can find common ground.
“It’s important to let the dust settle and let the parties reevaluate where they are,” Ellis said. “I don’t think it’s necessarily going to be within the next year or two that people are ready to re-engage, but at some point in the future, hopefully all the parties will be willing to have these discussions again.”
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