A recent U.S. Supreme Court ruling affirming tribal hunting rights has Wyoming officials worried about the potential effect of unregulated off-reservation hunting — a concern some tribal officials dismissed as “misguided.”
With the case likely still far from settled, state officials told lawmakers on Thursday during a meeting in Gillette that they were concerned the ruling could complicate wildlife management if more tribal members, including citizens of the Eastern Shoshone Tribe, begin off-reservation hunting in Wyoming.
The worry comes after a Supreme Court ruling in May affirmed the right of Crow Tribe members to hunt on land, including parts of Wyoming, given away as part of an 1868 treaty.
“It throws into doubt a lot of fundamental assumptions we have about the state’s ability to manage wildlife and preserve wildlife,” said Sen. Brian Boner, R-Douglas, who chairs the Joint Committee on Federal Natural Resources. “There’s a lot of scared people right now who are afraid we won’t have the ability to do that.”
The Supreme Court case, Herrera v. Wyoming, stemmed from a 2014 incident in which Crow Tribe member Clayvin Herrera and family members killed several elk during a prohibited winter hunt in Wyoming’s Bighorn National Forest. Herrera was eventually cited after a game warden saw photos he posted on a website for hunters.
Herrera successfully argued that an 1868 treaty that permitted Crow Tribe members to hunt in “unoccupied” land – including the Bighorn National Forest — in exchange for giving up land in present-day Montana and Wyoming was still valid.
Wyoming’s Eastern Shoshone Tribe also retains off-reservation hunting rights included in a similar 1868 treaty that led to the tribe ceding millions of acres of its aboriginal lands. Tribal officials said the state shouldn’t be worried because any future hunting on “unoccupied” land ceded in the treaty would be done responsibly.
“The state’s views of the Tribe as an area of lawlessness is guided by unhelpful and outdated stereotypes,” wrote Eastern Shoshone Business Council Co-Chairman Leslie Shakespeare in an email on behalf of the council. “The Tribe was pleased with the ruling in Herrera v. Wyoming because it vindicated the viewpoint that the Tribe has never waived from and that (its) treaty rights are an integral part of the Federal government’s trust responsibility to the Tribes.”
Officials for the Northern Arapaho Tribe, the Wind River Reservation’s other tribe, and an attorney working for it, didn’t return messages seeking comment Thursday and Friday.
The potential long-term implications of the case on Wyoming – and the West as a whole – are uncertain. The case is now headed to district court in Sheridan, where Herrera’s misdemeanor conviction will either be overturned or upheld.
No matter the outcome, the case is likely far from over, with months – if not years – of appeals likely.
The court has to grapple with two issues: first, the question of what qualifies as a factual occupation of the land – in this case, whether the designation of the Bighorns as a National Forest qualified as “occupation” under the legal definition – and whether Herrera was bound by a 1995 ruling in the 10th Circuit Court of Appeals that deemed the conditions of the 1868 treaty null and void, as Justice Alito asserted in his dissent.
There’s also the question of whether barring tribal members from unregulated hunting would qualify as a necessity for conservation, an exception to the hunting rights allowed under the 1868 treaty as recognized by the U.S. Supreme Court in a case out of Washington state several decades ago.
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All these factors combined give the state confidence.
“We’re not going to lose this case,” David Devald, an attorney in the AG’s office, told lawmakers at Thursday’s meeting. “Reviewing case law and discussing this issue with other Attorney Generals’ offices from other states – some of which have had to deal with these treaty issues – I think it’s going to be very difficult to implement an effective regulatory scheme when you have a group of folks who might be immune to prosecution.”
Though a ruling is far off, some in state government are already concerned with the potential impacts unregulated hunting could have on game populations from the Bighorn Mountains into the lands outside the Wind River Reservation, with ample amounts of uncertainty on how to regulate species if the state’s permitting system – the primary mechanism to manage population numbers – is undermined in any way.
If Sheridan District Court were to rule in the tribes’ favor, said Wyoming Game & Fish director Brian Nesvik, the ruling “would change everything we do with wildlife management in those lands, and the way those populations are managed.”
Until the Distict Court makes its decision, Boner said it’s important for the Crow Tribe to know that the state will “enforce the law as it’s written.”
Despite the concerns from state officials, Shakespeare said any off-reservation hunting would be regulated, much like hunting on the reservation.
“Whether the Tribe exercises its off-reservation hunting rights in federally-managed or state lands, the state’s worry about unregulated or unfettered hunting is misguided,” he said. “Any exercise of the Tribe’s off-reservation hunting rights will be likewise be regulated by the Shoshone Business Council with an eye towards sustainable use.”
There’s also the greater implications on Western policy, and whether the ruling in Herrera v. Wyoming could set a precedent to be mimicked by other tribes around the West.
“There’s a lot of treaty rights out there,” Nesvik said. “And certainly, the way this treaty right gets interpreted could influence other tribes to assert the same types of treaty rights in other parts of the state. Potentially, in the worst case scenario, it could have effects on our state as well as across the West.”
“It definitely fits the narrative of the federal government not letting the states competently manage game,” Boner added.
Still, Shakespeare said Eastern Shoshone officials would participate in discussions with any government that oversees any “unoccupied lands subject to the Tribe’s treaty rights.”
“The Tribe is committed to responsible and sustainable use of its natural resources,” he said. “The Tribe, for generations to come, want(s) to ensure the vibrancy and availability of all the natural resources and wildlife.”