The U.S. Supreme Court will hear oral arguments for Herrera v. Wyoming on Jan. 8, 2019. In taking this case, the Supreme Court has a chance to hold the federal government accountable for a promise that it made to the Crow Tribe 150 years ago. That promise, ratified in the 1868 Treaty of Fort Laramie, guarantees the right of the Crow to hunt and fish on all “unoccupied lands” of the United States. The ACLU of Montana supports tribal sovereignty and signed onto an amicus brief in support of Clayvin Herrera and the Crow Tribe.
In the 1868 Treaty of Fort Laramie, the Crow Tribe ceded a significant amount (about 30 million acres) of territory to the United States in exchange for “the right to hunt on 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.”
Overview of Herrera v. Wyoming
• In January 2014, Clayvin Herrera, a Crow tribal member, joined other tribal members to go elk hunting. They pursued a small herd of elk from the Crow Reservation onto the Big Horn National Forest in northeastern Wyoming, whereupon they killed and quartered three elk and returned to the Reservation.
• Wyoming authorities traveled to the Crow Reservation in Montana and cited Clayvin for taking an elk without a state license and during a closed hunting season - a misdemeanor under Wyoming state law.
• Taking the elk was lawful under the 1868 Treaty of Fort Laramie. In an effort to stand up for the rights of the Crow Tribe, Clayvin has appealed the case all the way to the Supreme Court of the United States.
Why this lawsuit is important
Accountability and Sovereignty: Throughout colonization, tribes have upheld their end of treaties, while the federal government has consistently fallen short of its obligations. The Supreme Court has the opportunity to hold the federal government accountable and affirm tribal sovereignty.
Sustenance: The Crow Tribe continues to rely on the hunting rights clearly stated in the 1868 Treaty. Practicing this right keeps tribal members culturally connected, and is vitally important for tribal members to feed and nourish families and children - especially because access to healthy food is limited.
Precedent Setting: The ability of tribal members to hunt off-reservation is well settled law. The Supreme Court consistently plays a huge role in interpreting and ratifying treaty obligations. This case is a logical extension of other Supreme Court rulings; the Crow Tribe and the federal government both must be able to enjoy the benefit of the bargain they negotiated in 1868.
The decisions below go against a century of Supreme Court jurisprudence. A ruling in Clayvin’s favor will reaffirm Crow treaty hunting rights off the reservation.
• Clayvin Herrera was cited for illegally taking an elk out of season and in violation of Wyoming hunting licensing laws.
• Clayvin asserted immunity through his federal treaty hunting right. On July 2, 2015, he filed a Motion to Dismiss Under the Supremacy Clause of the United States Constitution and the Fort Laramie Treaty of 1868. Wyoming opposed Clayvin’s motion to dismiss the citations.
• The circuit court ruled against Clayvin’s pretrial motions, refused his immunity from prosecution, and set trial for April 27, 2016.
• The circuit court held that the establishment of the Big Horn National Forest extinguished any treaty rights the Crow possessed to hunt on that land. Additionally, it held that Clayvin is bound by Wyoming conservation efforts and their game regulations while hunting in Wyoming.
• Clayvin moved for reconsideration.
• The circuit court reaffirmed its original ruling and prohibited Clayvin to present any evidence at trial pertaining to his treaty hunting rights.
• The jury trial lasted three days, April 27-29, 2016. Because of the circuit court’s order that Clayvin not assert his treaty hunting rights, a jury convicted him and ordered him to pay $8,080 in fines and court costs. He received a one-year jail sentence that the court suspended, and his hunting privileges were suspended in Wyoming for three years.
• Clayvin appealed this conviction on May 26, 2016.
• The Fourth Judicial District of Wyoming affirmed the circuit court’s order on April 25, 2017.
• Clayvin petitioned to the Wyoming Supreme Court. The Court denied his appeal with no explanation.
• On October 5, 2017, Clayvin asked the U.S. Supreme Court to hear his case.
• On June 28, 2018, the Supreme Court of the United States announced it would hear his case.
• Oral argument is set for January 8, 2019, and a decision is expected in the spring of 2019.