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Supreme Court decision in favor of Native American elk hunter worries Wyoming

Wyoming elk

Photo credit: Shutterstock

Just because a document is really old doesn’t mean it doesn’t matter. This is the case with a recent U.S. Supreme Court decision in support of a Native American elk hunter. As goHUNT previously reported, in a 5-4 ruling, the high court sided with Crow Tribe member Clayvin Herrera, who challenged his conviction for hunting elk out of season in Bighorn National Forest in Wyoming. The court cited an 1868 treaty that gives tribe members hunting rights in unoccupied lands.

Now, due to the high court’s ruling, Wyoming officials are concerned that it “could complicate wildlife management,” especially regarding “unregulated off-reservation hunting,” specifically if more tribal members decide to take part in it, the Sidney Herald reports. During a recent meeting, state officials voiced concerns over this possibility, pointing to the Eastern Shoshone Tribe, in particular. 

“It throws into doubt a lot of fundamental assumptions we have about the state’s ability to manage wildlife and preserve wildlife,” said Sen. Brian Boner (R-Douglas), who chairs the Joint Committee on Federal Natural Resources. “There’s a lot of scared people right now who are afraid we won’t have the ability to do that.”

The rationale behind targeting the Eastern Shoshone Tribe is that, like the Crow Tribe, the Eastern Shoshone Tribe also has similar off-reservation hunting rights “included in a similar 1868 treaty that led to the tribe ceding millions of acres of its aboriginal lands,” according to the Sidney Herald. Yet, tribal members say that the concern is unnecessary and any hunting will be “done responsibly.”

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“The state’s views of the Tribe as an area of lawlessness is guided by unhelpful and outdated stereotypes,” wrote Eastern Shoshone Business Council Co-Chairman Leslie Shakespeare in an email to the Sidney Herald on behalf of the council. “The Tribe was pleased with the ruling in Herrera v. Wyoming because it vindicated the viewpoint that the Tribe has never waived from and that (its) treaty rights are an integral part of the Federal government’s trust responsibility to the Tribes.”

While the case won’t be settled for some time and will likely be in appeals for years (and Herrera heads to district court to see if his misdemeanor conviction will be overturned or upheld), according to the Sidney Herald, Wyoming officials are pushing for the court to figure out two key issues:

  1. To determine what actually qualifies as “a factual occupation of the land” and
  2. To discern “whether barring tribal members from unregulated hunting would qualify as a necessity for conservation,” which would be an exception to the hunting rights permitted under the 1868 treaty in question.

“We’re not going to lose this case,” said David Devald, an attorney in the AG’s office. “Reviewing case law and discussing this issue with other Attorney Generals’ offices from other states – some of which have had to deal with these treaty issues – I think it’s going to be very difficult to implement an effective regulatory scheme when you have a group of folks who might be immune to prosecution.”

Regardless, tribal members will need to remain part of the discussion as the ultimate decision greatly impacts their long-standing hunting rights.

“The Tribe is committed to responsible and sustainable use of its natural resources,” said Shakespeare. “The Tribe, for generations to come, want(s) to ensure the vibrancy and availability of all the natural resources and wildlife.”

Note from Brady Miller of goHUNT: Please remember to keep comments in regards to this article civil. We allow an open discussion, but remember that everyone can read and comment on news articles.


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David S. - posted 3 months ago on 10-02-2019 07:30:28 am

Hunting is a great thing but when it comes to elk hunting it gets more exciting but we have to be in our limit area to do this.
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Ashlee J. - posted 4 months ago on 09-20-2019 01:58:30 am

Nice animals, all trained to have bare elk quarters on their backs and simply cruising along like and as per suggestion if you are looking for, like falling off a log for them.

rick b. - posted 6 months ago on 07-12-2019 10:29:27 pm

this could be a disaster for our way of life If the native americans snagging salmon in the east are remotely indicative of how the crow or shoshone will treat elk deer and bighorns then we are all screwed

SETH D. - posted 6 months ago on 07-10-2019 06:11:55 am
Sunny New Mexico

Hi Dustin,

To the Crow and possibly the Arapaho and Shoshone (because I think those battles are coming) this represents a carte blanche capability to hunt anywhere. Who is to say that those "empty places" does not include national parks, national monuments and state parks? The story from a few weeks ago about the Idaho native that killed 8 bighorn rams in a season just because he could bring us back to the foundation of the problem.

If you look at what is happening in Canada where natives used treaties to take back hunting rights in British Columbia as a model, it spells out what could go terribly wrong with this agenda.

The bottom line is fear, is that there will be collaborative process only a legal quagmire, and we the American hunter will probably get the raw deal. There is nothing stopping anyone of any heritage in America from applying for and going on the same hunts. To me that is a fair deal.

Even Alaska which is normally at the epicenter for native rights, has laws that restrict hunters by location not by race. A hunter who lives in Copper Center can subsistence hunt in the National Park, but a guy who lives in Fairbanks can not. The Crow live 20-30 miles from Billings, MT a town of 350,000. They aren't a remote group.

Dustin F. - posted 6 months ago on 07-09-2019 05:41:40 pm
Carmel Valley, CA

Hi Seth,

I understand that states have lawyers and those lawyers get paid, even if that means a payroll. I agree that the greater incentive for the State is to protect the "public" resource especially if management feels that resource is being depleted at an undesirable rate relative to their financial and population size objectives. I don't have all the details, but if both party objectives align, then the issue of "influence and "control" does not have to create a ridiculous legal pursuit which disregards the historical and current Trust Agreement. Of course the State wants that ensure the resource meets their financial objectives. My objection is that such resolution comes at the cost of disrespecting the rights of the Crow Tribe. My suggestions can satisfy both party goals. Resolution shouldn't come at the foundational Trust which the U.S. Government committed to the Crow Tribe. The argument that the elk are on Wyoming territory obfiscates the cultural and historical context from which the Treaty accounted and made compensatory measures for—this reason supports the foundational necessity of respecting the Trust agreement. Just from what details we've been read, the value for "sustainable" populations for years to come is a mutually-shared value; so a first approach could very well save considerable money and work toward a possible solution that would not only honor the Treaty, but could also potentially create new patterns of interaction between Native Tribes and our U.S. Government. We realize this case is being used as a broad brush to provide States with more specific boundaries, but it's going to be made at the cost of abuse to the Treaty Rights and I'm adamant that such a abuse is not necessary. If we're getting into the issue of securing States rights as precedent over Federal influence; then they should pick a fight elsewhere.

SETH D. - posted 6 months ago on 07-08-2019 07:30:56 pm
Sunny New Mexico

Your ideas are valid, but the state of Wyoming can not afford to allow an outside entity to have that much control and influence over management of wildlife in the state. They have ever financial incentive to fight the fight at whatever cost come because it is a public resource and not one owned by the Crow (who live in Montana). The cost by the state of lawyers is a mute point, the state already employs lawyers, and I am sure that the RMEF, DSC, SCI, NRA-ILA, and other pro hunting environmental organizations will help to fund it.

There is no reason not to fight for the states rights to manage wildlife. Failure to do so will bring on legal battles as well.

Dustin F. - posted 6 months ago on 07-08-2019 09:45:40 am
Carmel Valley, CA


Thanks for sharing your experience, I agree that such proposal has lower odds—all systems resist change. My collaboration suggestion would be a small action which would potentially threaten generational grievances and isolationist views which are part of existing feedback loops that perpetuate legally-based wastes of time. My suggested collaboration necessitates intelligent processing, emotional intelligence, clear incentives, and actionable measurements which guide the plan and management process. All beneficial change begins with a acknowledgement of a problem and a focus on mutually shared values. I doubt either party has exchanged management plan objectives and herd data; but, by doing so would actualize the beginning of an un-costly beneficial change. Such action would would be a small start to "collaboration". The incentive to avoid legal fees is a great tool toward seeking a resolution. But, such pursuit necessitates higher intelligence grounded in an understanding of empowerment and determined focus on mutually-shared-expansive value.

SETH D. - posted 6 months ago on 07-08-2019 09:11:32 am
Sunny New Mexico


I grew up on the Wind River Indian Reservation. Maybe collaboration will happen, but I would be willing to bet that the answer is there will be no collaboration. Washington state has similar issues with tribal hunting, and it has really hurt their ability to manage wildlife.

Rudy G. - posted 6 months ago on 07-07-2019 10:03:51 am

"Rich man, Poor man scenerio"
With outfitters being the only ones that are able to hunt all species, at out of reach prices, it doesn't surprise me that something like this would crop up!

Jay M. - posted 6 months ago on 07-06-2019 08:02:46 pm
Raleigh, nc

Nicely written.

Dustin F. - posted 6 months ago on 07-06-2019 11:33:52 am
Carmel Valley, CA

A legal attempt to coerce conditions in obfuscation to primary Tribal rights is a waste of time, money, and
is disrespectful. The distinction between treaty rights and how shared resources are managed is clear. The issue is clearly evidenced by the behaviors at hand—whether or not the Crow Tribe will align their hunting and subsistence decisions with the management regulations prescribed by the State. And, whether or not the State will trust the tribe to protect this obvious shared resource. Viewing the Crow Tribe as "immune to prosecution" is a very un-resolute way of attaining mutually-shared-expansive actions. Furthermore, Tribal hunting is not "unregulated". Such legal cases and views evidence intention to disregard and control the sovereign rights of Native American Tribes. The Crow Tribe has represented that their hunting is "regulated" and maintains an "eye toward sustainable use". Rather than trying to undo treaty rights, the focus should be working together to create abundance and mutually beneficial regulations. A new contract defining these shared management principles and regulations is a much more valuable method to resolution than the attempted legal coercion at hand. Collaboration between Tribal leaders and State Wildlife Managers is a far less costly and more beneficial method to resolution.

Michael V. - posted 6 months ago on 07-05-2019 01:34:05 am

Camping, hunting, outing, fishing, and shooting like activities are some main and learning activities in the student's life. Every academics expert suggest students include to in these activities and try to increase the level of observation, I remember that in my college days I had been suggested by the and literally I have taken the number of advantages by it.