Supreme Court Sides with Crow Tribe Member Who Took Elk Out of Season

Clayvin Herrera won his case before the Supreme Court after being convicted of hunting out of season and without a license. (Photo: Clayvin Herrera Facebook)

The Supreme Court has sided with a member of the Crow Tribe in Wyoming who had been charged and convicted with hunting elk out of season and without a license.

Trump-appointed Justice Neil Gorsuch sided with his left-leaning colleagues to argue that an 1868 treaty between the tribe and the U.S. government allows members of the tribe to hunt in “unoccupied” lands outside their reservation.

In 2014, Clayvin Herrera and several other Crow members pursued a group of elk past the boundary of the reservation and into the neighboring Bighorn National Forest. They shot several bull elk and returned to Montana with the meat.

The State of Wyoming charged Herrera with taking elk off-season or without a state hunting license and with being an accessory to the same.

Herrera appealed through both state and federal courts, citing a portion of an 1868 Treaty that granted Native Americans “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.”

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The lower courts rejected Herrera’s argument. They reasoned that, based on legal precedent, Wyoming’s admission into the Union negated the 1868 treaty between the Crow tribe and the federal government. In addition, the lower courts said, the Bighorn National Forest is categorically not “unoccupied.”

In her majority opinion, Justice Sonia Sotomayor reversed the lower court’s decision and argued that a 1999 SCOTUS ruling repudiated the idea that the tribe’s treaty rights had been abrogated when Wyoming became a state.

Quoting that decision, the justice argued, “[T]here is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood.”

Furthermore, there is not “any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so,” Sotomayor said.

SEE ALSO: Supreme Court Rules Unanimously to Allow Alaska Man to Hunt Moose with Hovercraft

Sotomayor also rejected the idea that a national park should be considered “occupied” land. She stressed that the treaty term “unoccupied” must be interpreted as the Crows understood it, which, according to historical evidence, would have meant “free of residence or settlement by non-Indians.”

Wyoming does retain the power to impose nondiscriminatory regulations on tribal treaty hunting rights if those regulations are “necessary for conservation.” Sotomayor also granted that some portions of the Bighorn National Forest could be considered “occupied.”

But since much of the Bighorn National Forest does not contain residential dwellings, the court’s decision allows members of the Crow Tribe to hunt without following the rules and regulations imposed on residents of the state.  

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About the author: Jordan Michaels has been reviewing firearm-related products for over four years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Waco. Follow him on Instagram @bornforgoodluck and email him at jordan@gunsamerica.com.

{ 9 comments… add one }
  • John July 17, 2020, 9:41 pm

    There will always be opposing opinions regarding the rights of indiginous peoples. The old thinking of “might makes right” is no longer valid, it’s called theft, very much like the schoolyard bully who steals everyones lunch money because he can. Just because you can dosen’t mean you should.

    The indians never made the white man suffer as badly as the indians were made to suffer, and still are. Greed for gold is a terrible disease but I think obliterating a sovereign people’s way of life is even worse. Granted, life is not fair, but no one should help that along at the cost of other’s rights or liberty.

  • Tito E. Naranjo June 5, 2019, 2:05 pm

    I am a Pueblo Tribal member and live on the Santa Clara Pueblo. Each tribe sets up game and fish laws for tribal members; this is their sovereign right. I have lived and hunted in Alaska; hunted in Montana, Arizona, Wyoming and New Zealand, etc. Generally, off reservation laws are respected and observed by most individual Indians and tribes. The Pueblos, however, have never signed treaties with states or with the U.S. Government. Yes, tribes have lost vast amounts of lands to the Spanish, Mexican and American governments (particularly with Pueblos of New Mexico and Arizona). State and Federal lands surround reservations or Native Lands which contain waters, mountain lands where game and fish are inherent to the land. Politics, thoughts, opinions of individuals and governments are generally against Native American rights to the land and resources. There has never been a treaty set by the U.S.A. that has been kept and honored–all broken. If the above treaty was signed by the U.S.A., then it should be kept; however, the Crow Tribe should have a statement and control over tribal members on the matter with Herrera and others. Some Native people do subsist on fish and game, mostly in the huge lands of Alaska. It is mandatory for each of the over 300+ tribes in the U.S. to understand that they have a responsibility by setting laws to assert control over tribal members on their lands and surrounding lands. Game and fish resources are limited-not unlimited-and it is the responsibility of each individual and tribe to understand this fact. Every individual in the U.S. is responsible to protect game and fish, Native or non-Native. The land also requires protection against man’s greed; this includes the Arctic National Wildlife Refuge of Alaska and prevention of oil exploration on the Bristol Bay headwaters which will protect the trout and Salmon fisheries of Alaska.

  • Mick Murphy June 5, 2019, 12:11 am

    To the victor go the spoils. Treaties are great and the American Indian is one of few who have been allowed to traditionally stay as they are. Not many others in history has had that offer.They ARE lucky to just be. Its by no means hate or criminal intent. Just human history and facts.

  • Alan Robinson June 4, 2019, 11:38 am

    I think the State should have thought this one through a little more thoroughly.
    There aren’t enough Natives to make this an issue, and it once was their land.
    This was a foolish overstep of power.

  • MORRIS` graham June 4, 2019, 11:15 am

    GOOD FOR HIM. THEY WERE HERE FIRST AND THEY HAVE RIGHTS. WHITE MAN STILL TRYING TO DO AWAY WITH THE INDIAN’S? I AM WHITE BUT RESPECT THE TREATY AS EVERY ONE SHOULD.

    • Txjack June 5, 2019, 8:07 pm

      I want to vomit when I hear uneducated morons spout off the “they were here first” liberal koolaid. It isn’t true and even if it were to let these Indians flout laws that were created to protect the animals is unacceptable. I’ve read where they have receive permission to kill endangered whales and Bald Eagles because it makes them feel like an Indian for some absurd ceremony.“New archaeological evidence suggests that America was first discovered by Stone Age people from Europe – 10,000 years before the Siberian-originating ancestors of the American Indians set foot in the New World”.
      “But the newly-discovered and recently-dated early Maryland and other US east coast Stone Age tools are from between 26,000 and 19,000 years ago – and are therefore contemporary with the virtually identical western European material.What’s more, chemical analysis carried out last year on a European-style stone knife found in Virginia back in 1971 revealed that it was made of French-originating flint”.

  • Charles June 4, 2019, 10:19 am

    Well…does that mean that any native americans can hunt what they want when they want?? I certainly don\’t think that is quite koshe. Even when I lived in Alaska and could hunt game animals for subsistence I had to do it in a regular season. I also didn\’t take advantage of the rules just because I could. Also these native Americans have access to government subsidies with food stamps and other help. Game really isn\’t the major portion for their diet these days. I know some will disagree with me but the days of the hunt to be able to live are gone at least in the lower 48–or 49 anyway. I live in Wyoming…and would love to get a bull elk tag one day.. Not anti native americans at all.. but lets be honest..to they truly don\’t NEED to pursue and take game animals to fulfil a treaty right

    • Richard June 4, 2019, 10:36 am

      Any Native American is aloud too hunt on RES land any time any day, Remember that’s there land . I live in Montana and i am White man, but i honor the law and tribial ways, that is the law .No if ands or buts. If the 1868 treaty means any different so be it . We will not fight the native Americans any more ,We as Americans have to live side by side with them and the White Man has taken enough from the Native Americans, this whole thing is the law of the land get used too it people.

    • Gerald Butler June 4, 2019, 7:10 pm

      There will come a day that all our blood will be washed away, it gets closer every decade, but those that know there folks, where they come from, and respect the old ways should always be allowed to live and take from the land as our elders did. We’ve fought your wars, assimilated and live in peace, for once a branch of this government stood up for us, instead of against us.

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