Living Law,
Living LandSupport land rights
All treaties and agreements

PlainsTreaty

Treaty with the Crow, 1868

The 1868 Crow treaty set a Montana reservation, had the Crow give up other claims, and kept their hunting right on federal land.

Signed
May 7, 1868
Senate
Ratified
Land given up
about 30 million acres
Land set aside for the nations
about 6.6 million acres
Promises
0 of 1 broken or only partly kept
The land in this treaty’s record. Open on the map

What happened

On May 7, 1868, at Fort Laramie, U.S. commissioners signed a treaty with Crow chiefs and headmen. Article 2 set apart a district of Montana Territory for the Crow's "absolute and undisturbed use and occupation." It ran from the 107th meridian along the mid-channel of the Yellowstone River to the 45th parallel. The Crow agreed to relinquish all title, claims or rights to any other part of the territory of the United States. The United States agreed to build an agency, a physician's residence, a school and other buildings on the south side of the Yellowstone near Otter Creek.

Article 4 made the reservation the Crow's permanent home. It also gave them "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon," so long as peace holds on the borders of the hunting districts.

The Supreme Court, in Herrera v. Wyoming (2019), described the treaty as a promise given "in exchange for most of the Tribe's territory in modern-day Montana and Wyoming." It held that the Crow hunting rights "did not expire upon Wyoming's statehood." In Montana v. United States (1981), the Court held that whatever property rights the 1868 treaty created, its language was "not strong enough" to overcome the presumption against conveying the Big Horn riverbed.

What was promised, and what happened

  • Kept

    The Crow keep the right to hunt on unoccupied U.S. lands while game lasts and peace holds. (Art. 4)

    The Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood. law.cornell.edu

Summarized with AI assistance from 5 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error

What the sources say, and how this was checked

Well supported by the sources below.

  1. they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereonTribal Treaties Database (Oklahoma State University): Treaty with the Crows, 1868
  2. relinquish all title, claims, or rights in and to any portion of the territory of the United StatesTribal Treaties Database (Oklahoma State University): Treaty with the Crows, 1868
  3. in exchange for most of the Tribe’s territory in modern-day Montana and WyomingHerrera v. Wyoming, 587 U.S. 329 (2019)
  4. The Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood.Herrera v. Wyoming, 587 U.S. 329 (2019)
  5. whatever property rights the 1868 treaty created, its language is not strong enough to overcome the presumption against the sovereign's conveyance of the riverbedMontana v. United States, 450 U.S. 544 (1981)

Research notes. The Montana v. United States holding is summarized from the Court's syllabus. The cited sources give no acreage.

What the treaty did to the land

About 30 million acres given up. about 6.6 million acres recognized, kept or set aside for the nations. Each shape is a numbered area in the federal government’s 1899 record of land cessions.

What happened next

Everything the record holds about this land and this treaty, in order: what earlier agreements said, what this one did, and what the United States, the courts and the nations did afterwards.

  1. 1851

    Land kept

    About 37 million acres recognized as land of the Crow

    By Treaty of Fort Laramie (Horse Creek), 1851

    area 517 area 635 area 619

  2. 1868

    This treaty

    About 30 million acres ceded to the United States by the Crow. About 6.6 million acres set aside as a reservation for the Crow

    The 1868 Crow treaty set a Montana reservation, had the Crow give up other claims, and kept their hunting right on federal land.

  3. 1880

    Land lost

    About 1.4 million acres ceded to the United States by the Crow

    The 1899 record: “The Crows execute another agreement, ceding a portion of their reserve under treaty of May 7, 1868”

    area 619

  4. 1882

    Land record

    Earlier terms confirmed for the land of the Crow

    The 1899 record: “Confirms agreement of June 12, 1880, for cession of a portion of their reserve”

    area 619

  5. 1882

    Land record

    About 5.2 million acres named in the record

    The 1899 record: “Ratifies agreement of Aug. 22, 1881, for cession of a portion of their reservation”

    area 635

  6. 1896

    In court

    Ward v. Race Horse

    In 1896 the Court held that a Bannock treaty hunting right gave no exemption from Wyoming's game laws after statehood.

  7. 1981

    In court

    Montana v. United States

    The Crow Tribe could not regulate non-Indian hunting on fee land in its reservation, and the Big Horn riverbed went to Montana.

  8. 2014

    Promise broken

    Crow Tribe and Herrera v. Wyoming (2019): treaty hunting right survives statehood

    An 1868 treaty let the Crow hunt on unoccupied federal land; Wyoming prosecuted a hunter, but the Court upheld the right.

  9. 2019

    In court

    Herrera v. Wyoming

    The Crow Tribe's 1868 treaty hunting right survived Wyoming statehood, and Bighorn National Forest is not categorically 'occupied'.

The law behind it

The legal ideas behind the decisions, and related records without a date. Court cases and laws with a date are in what happened next, above.

  • Legal doctrine

    abrogation

    Abrogation is Congress overriding a treaty: Lone Wolf (1903) allowed it, but modern courts require clear evidence Congress chose to break the treaty.

  • Legal doctrine

    canons of construction

    Courts read ambiguous treaties in favor of tribes and as the Indians would have understood them, rules the Supreme Court has repeated for more than a century.

  • Legal doctrine

    reserved rights

    Treaties are 'a grant of right from' tribes, not to them: reserved hunting and fishing rights survived cessions, statehood and even termination.

  • Legal doctrine

    statehood

    The Court once said a state's admission ended a tribe's treaty hunting right; Mille Lacs (1999) and Herrera (2019) rejected that reasoning.

  • Legal doctrine

    civil jurisdiction

    Tribal civil power is strongest over members; Williams v. Lee (1959) protected it, and Montana (1981) limited it over non-members.

  • Legal doctrine

    implicit divestiture

    Under implicit divestiture, the Supreme Court holds tribes lost some powers, such as trying non-Indians, by their dependent status unless Congress restores them.

  • Legal doctrine

    inherent sovereignty

    Tribes' powers of self-government predate the Constitution and are not delegated by Congress, though the Supreme Court says Congress can limit or end them.

  • Legal doctrine

    montana rule

    Montana v. United States (1981) set a presumption against tribal civil power over non-members on non-Indian fee land, with two exceptions.

Who is doing the work today

The nations connected to this treaty come first, then groups returning land and defending treaty rights. Support goes directly to them.

This history belongs to living nations. Start with them:

Native legal and land defense, nationally

Gifts go straight to each organization; this atlas takes nothing. Listing is not endorsement: how organizations are listed.

Sources

  1. digitreaties.org/treaties/treaty/179035469reference work
Research notes

Kappler page: Wikipedia (pointer) cites pp. 1008-1011 for related material; verify.

Shapes are approximate and are not legal descriptions of land, title or jurisdiction.