Herrera v. Wyoming

What happened

In an 1868 treaty, the Crow Tribe gave up most of its territory in modern-day Montana and Wyoming. In exchange, the United States promised that the Tribe "shall have 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 subsisted on the borders of the hunting districts.

In 2014 Wyoming charged Clayvin Herrera, a member of the Crow Tribe, with off-season elk hunting in Bighorn National Forest. He argued that the treaty protected his hunt. A jury convicted him. The state appellate court relied on a Tenth Circuit decision, Crow Tribe of Indians v. Repsis, which in turn relied on the Supreme Court's 1896 decision in Ward v. Race Horse, and held that the treaty right expired when Wyoming became a state. It also held that Herrera could not relitigate the question, and that the national forest became categorically "occupied" when it was created.

The Supreme Court, 5-4, in an opinion by Justice Sotomayor, vacated that judgment and sent the case back. It held that "the Crow Tribe's hunting rights under the 1868 Treaty did not expire upon Wyoming's statehood," that the case was controlled by Minnesota v. Mille Lacs Band, not Race Horse, and that Repsis did not preclude Herrera's argument. It also held that Bighorn National Forest did not become categorically "occupied" when it was created.

The Court did not decide that every area of the forest is open. On remand, Wyoming may argue that state conservation regulations must apply to the exercise of the treaty right. Justice Alito dissented, joined by the Chief Justice and Justices Thomas and Kavanaugh.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error