Herrera case continues to U.S. Supreme Court

In mid June, the Supreme Court of the United States agreed to review a case where Crow Tribe member Clayvin Herrera asserts he has aboriginal hunting rights in the state of Wyoming. The case stems from the arrest of Herrera and two other members of the Crow Tribe for taking elk in the Big Horn Mountains without licenses. 

“Mr. Herrera petitioned the state of Wyoming to sidestep legal proceedings so he would not have to go to court,” explained Wyoming Game and Fish Department (WGFD) Director Scott Talbott. “Under a similar case in the 1990s, Ward v. Race Horse, however, the Supreme Court held that all of the aboriginal hunting rights for the Crow Tribe no longer existed in the state of Wyoming.”

Case history

In January 2014, Herrera was cited on two poaching charges for killing bull elk in the Big Horn Mountains out of season and without a license. 

Talbott continued, “Mr. Herrera went through circuit court in Sheridan County and was convicted.”

In 2016, a Sheridan Circuit Court sentenced Herrera to one year of unsupervised probation and a fine of $8,080 for the charge, but he has since continued to push the case to be reviewed at the next level. 

“The Wyoming Supreme Court upheld Sheridan Circuit Court’s decision, but recently, the Supreme Court of the U.S. was petitioned to review the case,” Talbott said.

On Oct. 5, the petition for a writ of certiorari was filed, and, after blanket consent and a variety of briefs, both in favor and in opposition, were filed. On Jan. 8, 2018, the solicitor general was invited to file a brief in case. 

While WGFD was optimistic the petition would be granted in their favor because of the Race Horse case, on May 22, the solicitor general, who reviews cases, issued a writ of certiorari asserting the Race Horse case was wrong and the decision needs to be reversed. 

Implications

Talbott emphasized the implications of the Race Horse case being overturned could potentially disrupt wildlife management in the state. 

“If the case is overturned and treaty rights are restored to the tribes, Crow Nation and other nations will having subsistence hunting right in most of Wyoming and parts of other states, including in Yellowstone National Park and Grand Teton National Park here,” he says.

While those rights only apply to unoccupied lands, Bureau of Land Management and U.S. Forest Service-managed lands would be subject to hunting. 

“We are very, very concerned about this case,” Talbott said, “and we have to be very aware of how it proceeds.” 

Next steps

On June 21, the Supreme Court held deliberations, deciding to review the case. 

Herrera’s defense argues that the 1868 Fort Laramie Treaty between the Crow Tribe and the U.S. government grants tribal members the right to hunt on unoccupied lands, and the Idaho Supreme Court, Ninth U.S. Circuit Court of Appeals and Montana Supreme Court all recognize tribal hunting right on unoccupied lands, including on national forests. 

Reports from the Associated Press note the court has recessed for the summer and will resume deliberations in October. 

Talbott emphasized, “This case very much concerns WGFD as a wildlife management agency.”

Saige Albert, managing editor of the Wyoming Livestock Roundup, compiled this article from presentations at the 2018 Wyoming Stock Growers Association Summer Cattle Industry Convention and Trade Show and online reports about the case. Send comments on this article to saige@wylr.net.