WASHINGTON — The Supreme Court on Monday sided with a member of the Crow tribe who was fined for hunting elk in Wyoming’s Bighorn National Forest, giving him a good chance to get a more than $8,000 fine against him overturned.
The case the justices decided 5-4 is a win for Clayvin Herrera and his tribe, which had argued they continued to have hunting rights in the forest.
Herrera’s case began in 2014 when he went hunting with family. The group began on the Crow tribe’s reservation in southern Montana but crossed into the neighboring Bighorn National Forest in Wyoming, where they killed several elk.
Soon after, a game warden saw photos Herrera posted on a bragging website for hunters, including one of him crouched in the snow behind an elk he shot and another with its antlers balanced on his shoulders. The game warden ultimately identified the area where the photos were taken in the Bighorn National Forrest, and Herrera was cited for killing an elk there during the winter, when it is prohibited.
About 30 spent shell casings littered the ground where the shooters must have waited. In a draw below the casings were eight dead bull elk. So…
But Herrera, backed by the federal government, argued that when his tribe gave up land in present-day Montana and Wyoming under an 1868 treaty, the tribe retained the right to hunt on the land, including land that became Wyoming’s Bighorn National Forest.
The state of Wyoming had argued that the Crow tribe’s hunting rights ceased to exist after Wyoming became a state in 1890 or after Bighorn National Forest was established in 1897. But the Supreme Court disagreed, with Justice Neil Gorsuch joining his four liberal colleagues — justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in ruling for Herrera.
The court’s four other justices said they would have ruled that a prior case settled that Crow tribe members like Herrera don’t have an unrestricted right to hunt and fish in the Bighorn National Forest and are subject to the game laws of Wyoming.
A Crow tribal hunter has asked the U.S. Supreme Court to review his treaty rights case.
The ruling does not immediately resolve the issue of Herrera’s fine. The Supreme Court said in sending the case back to lower courts that the state can argue that it can regulate hunting by Crow tribe members if it is necessary for wildlife conservation. The state can also try to argue that the tribe’s treaty rights didn’t extend to the specific area of Bighorn National Forest where he was hunting. But Herrera’s lawyers have argued that the location where he was hunting was covered by the treaty and have said data shows that elk are overpopulated in the state.
The state can pursue the case or drop it. In a statement, Wyoming Gov. Mark Gordon noted that there are outstanding issues in the case which Wyoming courts will resolve. He said his administration will “stand up for a system that preserves the decades of conservation work that has built a strong wildlife population in the Bighorns” and “work to find solutions for all those who hunt.”
George Hicks, an attorney for Herrera, said in a statement that his lawyers were gratified by the court’s ruling.
The case is Herrera v. Wyoming, 17-532.