Herrera v. Wyoming

Wyoming’s statehood did not abrogate an 1868 treaty between the United States and the Crow Indian Tribe regarding tribal members’ rights to hunt on "unoccupied lands" and Bighorn National Forest is not categorically "occupied."

Petitioner (Crow Tribe member) hunted elk in Bighorn National Forest. He was subsequently tried for hunting out-of-season and without a valid license. Petitioner filed a motion to dismiss, stating that he was protected by an 1868 treaty allowing Tribe members to hunt on “unoccupied land.” The court denied the motion and prohibited Petitioner from raising a treaty-based defense. The Court of Appeals for the Tenth Circuit affirmed, relying on Crow Tribe of Indians v. Repsis, 73 F. 3d 982 (10th Cir. 1995), which drew heavily from Ward v. Race Horse, 163 U.S. 504 (1896). The Supreme Court reversed, stating that both cases were repudiated by Minnesota v. Mille Lacs Band of Chippewa Indiansand that the treaty did not expire upon Wyoming’s statehood. 526 U.S. 172 (1999). The Court reasoned that there was no “clear evidence” that Congress sought to abrogate the treaty rights. Furthermore, the Court found that the treaty expressed “occupied lands” to mean lands that have been settled and that Bighorn National Forest is not categorically such. Wyoming’s “equal footing” argument, claiming the treaty violates its right to regulate hunting within its borders, is invalid on grounds that it does have such authority, when necessary for conservation. REVERSED and REMANDED.