By LORI ANN EDMO
FORT HALL — The Shoshone-Bannock Tribes has filed an amicus curiae brief in support of the Clayvin Herrera v. State of Wyoming case being heard before the U.S. Supreme Court.
Arguments will be heard January 8, 2019.
The case has significance to the Shoshone-Bannock Tribes because it involves off reservation treaty hunting rights.
Herrera exercises his rights under the Laramie Treaty of 1868 that allows Crow tribal members the right to hunt on unoccupied land, however the Crow reservation ends at the Montana-Wyoming border. Herrera maintains he has a treaty right and is not subject to Wyoming law. According to the brief filed on his behalf, for well over a century Crow members relied on that binding language to hunt on off-reservation lands including the Bighorn National Forest in northern Wyoming that is adjacent to the Crow Reservation established in 1897 from lands the tribe ceded to the United States.
The State of Wyoming’s argument is the treaty right ended when Wyoming became a state.
Herrera, a member of the Crow Tribe of Montana, was convicted of killing elk in the Bighorn Mountains of Wyoming. He went hunting on the Crow Reservation with other members of the tribes in January 2014. According to the brief, after spotting a small herd of elk, the group pursued the animals and eventually crossed the state line into the Bighorn National Forest in northern Wyoming. The group shot and killed three elk in the federal forest and carried the meat back to the Crow Reservation in Montana to help feed their families and other tribal members over the winter.
The state of Wyoming convicted Herrera of two crimes under Wyoming law for unlawfully hunting elk in the Bighorn Nation Forest. Before the trial the Wyoming trial court prohibited Herrera from asserting his federal treaty right as a defense prosecution and a Wyoming appellate court affirmed it. Both of the courts concluded the Tribe’s 1868 hunting right had been abrogated by Wyoming’s admission to the Union in 1890 or by the establishment of the Bighorn Forest in 1897 that rendered the federal land no longer “unoccupied.” Herrera wasn’t allowed to raise the 1868 Treaty right defense because a prior Supreme Court Case – Crow Tribes of Indians v. Repsis 1994, which he wasn’t a party to.
According to Paul Echo Hawk, an attorney for the Shoshone-Bannock Tribes (but not on this case) the United States Supreme Court’s decision in the 1999 Mille Lacs case rejected the Race Horse case holding that Wyoming’s admission as State extinguished tribal treaty rights to hunt on “unoccupied lands of the United States.” However, the Wyoming state court in the present Herrera case and the 1995 10th Circuit Repsis case both concluded that an alternative ground for terminating tribal off-reservation hunting rights in the Bighorn National Forest was the creation of the national forest itself. That reasoning suggested that creating a national forest in the unoccupied territory resulted in the “occupation” of the land even though national forest land is “no longer available for settlement.” Herrera points out that the presidential proclamation creating the Bighorn National Forest expressly prohibited “entry or settlement” on that land. Herrera’s brief also points out that the Supreme Court’s Mille Lacs decision is more recent than the 10th Circuit’s Repsis case and plainly rejects the argument that creation of Statehood extinguishes tribal treaty rights. Herrera further argues that creation of a national forest, which is not open for settlement, cannot be considered “occupation” of previously unoccupied land of the United States.
Echo Hawk explained the Fort Hall Reservation falls within the jurisdiction of the Ninth Circuit Court of Appeals in the federal court system. Wyoming is in the 10th Circuit. And, in sharp contrast to the 10th Circuit’s Repsis decision, the Ninth Circuit Court has held the creation of a national forest does not terminate tribal treaty hunting rights and that national forests remain “unoccupied” federal lands. See Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983). The Idaho Supreme Court has also held that Shoshone-Bannock Tribal members have the right to hunt and fish in the Challis National Forest. See State v. Tinno, 497 P.2d 1386 (Idaho 1972). Thus the 10th Circuit’s decision in Repsis is not the law in the 9th Circuit and the State of Idaho.
Herrera argues affirming the decision not only would strip a sovereign Indian tribe of a longstanding, treaty-guaranteed right of enormous practical and spiritual significance; it would threaten the rights of numerous other Indian tribes that long ago reserved similar off-reservation protections in their own treaties with the United States.
The Shoshone-Bannock Tribes amicus curiae brief reads the Tribes interest in the case arises from the reliance that the court placed on Ward v. Race Horse, 163 U.S. 504 (1896) in ruling that Wyoming’s statehood extinguished the Crow Tribe’s off-reservation treaty right. Race Horse was effectively overruled in the Mille Lacs Band of Chippewa Indians case. The Tribes submitted the amicus curiae brief in the proper application of Mille Lacs. The brief is submitted to show that Race Horse was overruled in Mille Lacs and the historical record confirms that Race Horse was wrongly decided. First Race Horse did not arise from a conflict between off-reservation treaty rights to hunt and the conservation of natural resources by the State. It instead arose from the murder of Bannock Indians by a posse of non-Indians led by the local constable who sought to keep the Indians from hunting in the Jackson Hole country to protect business interests of local hunting guides. As federal officials later found, the non-Indians had a “premeditated and pre-arranged plan to kill some Indians and thus stir up sufficient trouble to subsequently get the U.S. troops into the region and ultimately have the Indians shut out from Jackson Hole. The plan was successfully carried out and the desired results obtained. Treaty rights to hunt, fish and gather off-reservation are not irreconcilable with state sovereignty over natural resources. When the Fort Bridger Treaty is interpreted with the rules of treaty construction in Mille Lacs, it is clear that Article 4 of the 1868 Treaty was intended to secure to the Tribes the right to hunt, fish and gather on unoccupied lands of the United States in Wyoming, as elsewhere, for as long as game is to be found on those lands.
The murder of Bannock Indians, not the killing of elk led to the Race Horse case, the Shoshone-Bannock Tribes amicus curiae brief explains. On July 15, 1865, a party of Bannock Indians and their families were hunting for subsistence purposed in the area known as the Jackson Hole country, Wyoming where they were surrounded by a posse of settlers led by the local constable. The Indians were disarmed and marched under guard. When the Indians fled because they believed they were to be killed, the settlers shot at the Indians – two Indians – an elderly blind man and an infant were killed as a result of the attack. The settlers sought to keep the Indians from hunting in that area to protect business interests of local hunting guides and initiated the confrontation to get the Indians before the courts. The constable admitted it would bring matters to a head knowing someone was going to be killed but the killers were never prosecuted. Instead the settlers opposition to the Indians rights resulted in the Race Horse case being prosecuted.
Under the Mille Lacs decision, it determined that a state’s admission to the Union on an equal footing does not abrogate treaty rights to hunt, fish and gather off-reservation because those rights are not irreconcilable with state sovereignty making clear when a treaty “itself defines circumstances under which the rights terminate,” and those defined circumstances do not include “when a State was established in the area,” the rights are intended to and do survive statehood.
The Mille Lacs Court also made clear that “we interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them,” and “Indian treaties are to be interpreted liberally in favor of the Indians and any ambiguities are to be resolved in their favor.” The Shoshone-Bannock Tribes affirm when Article 4 of the 1868 Treaty is so interpreted, it confirms that the Tribes retain their right to hunt, fish and gather on unoccupied lands of the United States in Wyoming, as they do in Idaho under the ruling of the Idaho Supreme Court in the Tinno case.
The Tribes brief further explains the Tinno case — a landmark Shoshone-Bannock Tribes Treaty decision where the Idaho Supreme Court affirmed the Fort Bridger Treaty of 1868. The Treaty has survived intact for future generations of Shoshone-Bannock tribal members to enjoy the tribal right of hunting, fishing and gathering through the federal lands found in all the Tribes aboriginal homelands in Idaho, Oregon, Nevada, Utah, Montana, along with the Great Basin and surrounding territories.
The Tinno decision also reaffirmed the Treaty Rights existence beyond the statehood of Idaho.
The Tribes brief also explained exercising co-management of off-reservation Treaty hunting and fishing rights under their own regulations in cooperation with the States and the federal government to ensure that off-reservation treaty rights are exercised consistent with the protection of natural resources. It also explains the Tribes are party to the Columbia Fish Accords, a partnership between tribes, States and federal agencies to mitigate the effect of dams on fish in the Columbia River Basin.
The Shoshone-Bannock Tribes believe the judgment of the Wyoming district court should be reversed.
In addition to the Shoshone-Bannock Tribes, the Eastern Shoshone Tribe, Indian law professors, Natural Resource Law Professors, Southern Ute and Ute Mountain Ute tribes, National Congress of American Indians, Pacific and Inland Northwest Treaty Tribes, Crow Tribe and the United States all filed amicus curiae briefs in support of Herrera.
Numerous non-Indian groups such as the Wyoming Stock Growers Association, Safari Club International, states including Nebraska, Kansas, Louisiana, North Dakota all oppose Herrera, along with the Citizen Equal Rights Foundation according to Indianz.com
Attorneys filing the brief for the Shoshone-Bannock Tribes are Bill Bacon, Monte Gray and Sonosky, Chambers, Sachse, Endreson & Perry, LLP attorneys Douglas B. Endreson, Anne D. Noto, along with Frank S. Holleman, IV.