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

What happened

In the 1868 treaty with the Crow, Article IV preserved a hunting right off the reservation. The Supreme Court quotes the treaty as saying the Crow "have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon," as long as peace subsists on the borders of the hunting districts.

Wyoming became a state in 1890. In 2014, Wyoming charged Clayvin Herrera, a Crow member, with off-season elk hunting in Bighorn National Forest. The state courts held that the treaty right ended when Wyoming became a state, and that the forest was "occupied" and so outside the treaty. That reasoning followed an older Supreme Court decision, Ward v. Race Horse (1896), which the Court later repudiated.

In Herrera v. Wyoming (2019), the Supreme Court sent the case back. It held that the Crow treaty right was not ended by Wyoming statehood, relying on Minnesota v. Mille Lacs (1999). It also held that Bighorn National Forest was not categorically "occupied," because the Tribe would have understood "unoccupied" to mean an area free of residence or settlement by non-Indians. The Court said this did not mean every part of the forest is open, and it did not decide whether Wyoming may regulate hunting for conservation. The vote was 5 to 4. Justice Sotomayor wrote for the Court, joined by Justices Ginsburg, Breyer, Kagan and Gorsuch. Justice Alito dissented, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh.

Good to know. Here the Court upheld the treaty hunting right.

Summarized with AI assistance from 3 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error