Supreme Court Decides Case Upholding Indian Treaty Rights

A 2014 hunting expedition by members of the Crow Tribe in Montana has led to a Supreme Court decision impacting federal land management and Indian treaty rights. Clayvin Herrera and other Crow tribal members pursued elk they were hunting in Montana  into the neighboring Bighorn National Forest in Wyoming. They shot a bull elk and returned to Montana with their prized meat. The State of Wyoming charged Mr. Herrera with taking elk off-season or without a state hunting license and for being an accessory to both.


Herrera argued he had the right to hunt due to the treaty rights guaranteed in the 1868 Treaty of Fort Laramie between the United States and Crow Tribe of Indians. The 1868 Treaty promised that in exchange for the majority of the tribe’s territory, 30 million acres,  in what is now Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The treaty was a promise made in response to the tribe making a reservation of 8 million acres in Montana its “permanent home,” and “no permanent settlement elsewhere.” In 1897, President Grover Cleveland set apart an area  “reserved from entry or settlement" that included lands ceded by the Crow Tribe in 1868, which became the Bighorn National Forest.

The State of Wyoming argued the Crow Tribe’s 1868 Treaty rights expired upon Wyoming’s statehood. It added that the land at Bighorn National Forest was not “unoccupied.” The state trial court found Herrera guilty of the charges brought by the State of Wyoming. He was sentenced to jail, required to pay a $6,000 fine, and had his hunting privileges suspended for three years. Herrera appealed all the way to the U.S. Supreme Court that reached a decision on May 20, 2019.  The Supreme Court remanded the case back to the lower court to reconsider its decision based on the Supreme Court's findings on treaty rights.

Supreme Court Decision

The Supreme Court agreed with Herrera’s assertion that the Crow Tribe’s hunting rights under the 1868 Treaty were still valid. The five to four decision delivered by Justice Sotomayor noted that the Wyoming Statehood Act did not show Congress intended the 1868 Treaty hunting right to end. The Supreme Court also noted the Wyoming Statehood Act “makes no mention of Indian treaty rights.” If Congress intended to end treaty rights it would need to do so explicitly, and there is no evidence Congress intended to abrogate the 1868 Treaty when Wyoming became a state.

The treaty identifies four situations that would terminate the hunting right. The hunting rights would end when either: “(1) the lands are no longer “unoccupied”; (2) the lands no longer belong to the United States; (3) game can no longer “be found thereon”; and (4) the Tribe and non-Indians are no longer at “peace… on the borders of the hunting districts.” None of these situations mentions Congress ever intended the hunting right to expire at statehood. Wyoming however unsuccessfully attempted to have the treaty interpreted as implying its termination at statehood.

The U.S. Supreme Court addressed whether Bighorn National Forest could be considered as “occupied.” Text in the treaty is required to be construed how “they would naturally be understood by the Indians.” The word “unoccupied” in the treaty is understood by the Crow Tribe as an area free of residence or settlement by non-Indians. The word “occupation” in the treaty is used to describe the tribe’s residence inside the boundaries of the reservation and refers tribe members as “settlers” on the new reservation. Historical evidence provides additional evidence of how “unoccupied” should be interpreted. After the signing of the treaty in 1868, a leader of the Board of Indian Commissioners confirmed the connection between occupation and settlement. He stated the treaty permitted the Crow Tribe to hunt in the area, “as long as there are buffalo, and as long as the white men are not [in that area] with farms.” The Supreme Court agreed with Herrera that Bighorn National Forest did not become “occupied” at its creation. The Supreme Court mentioned that its decision has its limitations. It stated the Bighorn National Forest is not occupied but does not mean all areas within the forest are unoccupied.

Specific areas of the forest may be used in such a way where it may be considered “occupied” within the meaning of the 1868 Treaty. Also, the state trial court decided Wyoming could regulate the exercise of the treaty right “in the interest of conservation.” The State may again argue why its application of state conservation regulations to Crow Tribe exercising its hunting right is necessary for conservation when the case is reconsidered by the Wyoming lower court.

Long Term Ramifications

Herrera v. Wyoming involves attempts to balance States interests with Indian treaty rights and Environmental and Natural Resources law. This decision closely decided in a 5-4 vote impacts states, tribes, and federal land management. This closely held decision sparked by Mr. Herrera’s hunting expedition has strengthened Indian treaty-rights in the U.S., not just Wyoming.

For information on how this decision affects you, contact Whitcomb Selinsky at (866) 476-4558.

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