Interesting "Treaty Rights" case in Wyoming

[idahohuntr]

I disagree.  What is the treaty right if they are completely limited by the State's recreational harvest regulations?  This would really undermine Treaties and sovereignty - which is at least part of why the United States is supporting the Crow on this.

Because the treaties were written when natives were not even considered humans, the words "in common with the citizenry" meant the same as, not divided seperately...
[/quote]
There again - what treaty right exists if the interpretation is the tribe is limited to hunt and fish like you and me?
[/quote]
Because it is a right, not a reward.
They were non-citizens , being guaranteed the same rights as citizens, not special privileges.
[/quote]
That is not at all correct. Many Tribes ceded millions of acres of land to the United States in exchange for the reservation of hunting, fishing and other rights.  Treaty Rights were not a grant of rights from the US - they were a reservation of rights always held by Tribes, so its nonsensical that one could interpret the Treaty the way you are.
 

[idaho guy]

They can hunt the Montana side of the bighorns ,which is on the reservation, clear into I think jan or feb on winter range. Not a big deal to see 50 bulls herded up on winter range at that time of year.Anyways it is on reservation land and I totally agree with them doing whatever the tribe thinks is right. Wyoming is another ball game and that I think it is a pretty tough draw area for elk. How can Wyoming manage that for a quality limited hunt and allow the crow to hunt that almost year around? I agree with the different tribes having some hunting rights etc but you have to draw the line somewhere especially when it comes to game management.       

[Oh Mah]

I disagree.  What is the treaty right if they are completely limited by the State's recreational harvest regulations?  This would really undermine Treaties and sovereignty - which is at least part of why the United States is supporting the Crow on this.

Because the treaties were written when natives were not even considered humans, the words "in common with the citizenry" meant the same as, not divided seperately...

There again - what treaty right exists if the interpretation is the tribe is limited to hunt and fish like you and me?
[/quote]
Because it is a right, not a reward.
They were non-citizens , being guaranteed the same rights as citizens, not special privileges.
[/quote]
That is not at all correct. Many Tribes ceded millions of acres of land to the United States in exchange for the reservation of hunting, fishing and other rights.  Treaty Rights were not a grant of rights from the US - they were a reservation of rights always held by Tribes, so its nonsensical that one could interpret the Treaty the way you are.
[/quote]If you really believe this then you must not be one of the people that think white man came to America and stole their land,By your statement we traded for their treaty rights and special privileges.Now can we put that issue to sleep or is there a debate on that still, well just because?

[idahohuntr]

They can hunt the Montana side of the bighorns ,which is on the reservation, clear into I think jan or feb on winter range. Not a big deal to see 50 bulls herded up on winter range at that time of year.Anyways it is on reservation land and I totally agree with them doing whatever the tribe thinks is right. Wyoming is another ball game and that I think it is a pretty tough draw area for elk. How can Wyoming manage that for a quality limited hunt and allow the crow to hunt that almost year around? I agree with the different tribes having some hunting rights etc but you have to draw the line somewhere especially when it comes to game management.     

Simple - Wyoming does not have jurisdiction over a sovereign that has a treaty entered into by the United States.

Closer to home - we have Treaty Tribes that hunt all kinds of special draw/quality elk units in Idaho, Washington, Oregon etc. and the states have no jurisdiction over them (when they hunt, how many bulls they kill etc.).   

[baker5150]

They can hunt the Montana side of the bighorns ,which is on the reservation, clear into I think jan or feb on winter range. Not a big deal to see 50 bulls herded up on winter range at that time of year.Anyways it is on reservation land and I totally agree with them doing whatever the tribe thinks is right. Wyoming is another ball game and that I think it is a pretty tough draw area for elk. How can Wyoming manage that for a quality limited hunt and allow the crow to hunt that almost year around? I agree with the different tribes having some hunting rights etc but you have to draw the line somewhere especially when it comes to game management.     

Simple - Wyoming does not have jurisdiction over a sovereign that has a treaty entered into by the United States.

Closer to home - we have Treaty Tribes that hunt all kinds of special draw/quality elk units in Idaho, Washington, Oregon etc. and the states have no jurisdiction over them (when they hunt, how many bulls they kill etc.).

This is what interests me in this case.  If this is so simple, then why did the Tenth circuit court have a differing opinion.

This is the previous opinion

The Court "conceded that where there are rights created by Congress, during the existence of a Territory, which are of such a nature as to imply their perpetuity, and the consequent purpose of Congress to continue them in the State, after its admission, such continuation will, as a matter of construction, be upheld, although the enabling act does not expressly so direct." Id. at 515, 16 S. Ct. at 1080. However, " [h]ere the nature of the right created gives rise to no such implication of continuance, since, by its terms, it shows that the burden imposed on the Territory was essentially perishable and intended to be of limited duration."3  Id. Therefore, the treaty "does not give [the Tribe] the right to exercise this privilege within the limits of [Wyoming] in violation of its laws." Id. at 504, 16 S. Ct. at 1076.

[idahohuntr]

The 10th Circuit relied on lower court case law from a century ago - and its not clear whether SCOTUS will clarify that issue, but in short that older case law did imply Treaties were of limited duration as States were added to the Union.  Rulings in other circuits and even the SCOTUS in more recent times have not concurred with that limited duration finding.

Assuming the SCOTUS does not take up that bigger issue (treaties of limited duration), it will likely address two key arguments made by Wyoming - both of which are presented to explain why the Treaty is not in effect in Wyoming:

1. Creation of statehood terminated the treaty
2. The bighorn national forest is not unoccupied lands and therefore the Crow have no right to hunt there, per terms of the treaty

I think Wyoming will lose on both points.  If they prevail on one, it will be the unoccupied lands argument - but I don't see much chance on that one either. 

If Wyoming prevails on either of these 2 points, Herrera loses, and it would seem likely to have monumental effects to treaties/treaty rights across the US, but especially the Pacific Northwest.

[baker5150]

The 10th Circuit relied on lower court case law from a century ago - and its not clear whether SCOTUS will clarify that issue, but in short that older case law did imply Treaties were of limited duration as States were added to the Union.  Rulings in other circuits and even the SCOTUS in more recent times have not concurred with that limited duration finding.

Assuming the SCOTUS does not take up that bigger issue (treaties of limited duration), it will likely address two key arguments made by Wyoming - both of which are presented to explain why the Treaty is not in effect in Wyoming:

1. Creation of statehood terminated the treaty
2. The bighorn national forest is not unoccupied lands and therefore the Crow have no right to hunt there, per terms of the treaty

I think Wyoming will lose on both points.  If they prevail on one, it will be the unoccupied lands argument - but I don't see much chance on that one either. 

If Wyoming prevails on either of these 2 points, Herrera loses, and it would seem likely to have monumental effects to treaties/treaty rights across the US, but especially the Pacific Northwest.

They relied Mostly on the treaty itself, they even note it.

To determine the nature of the reserved right, the Court examined the literary and historical context of the treaty and Article 4. Initially, the Court concluded that unoccupied lands "were only such lands of that character embraced within what the treaty denominates as hunting districts" and not all the lands ceded by the Indians which were owned by the United States and not yet settled. Id. at 508, 16 S. Ct. at 1077-78.
After careful historical analysis, the Court concluded that the hunting right reserved by the treaty "clearly contemplated the disappearance of the conditions therein specified" and was of a "temporary and precarious nature."

affirmation of the appeals case mentioned


We AFFIRM the district court's grant of summary judgment in favor of the State and dismissal of the Tribe's UIA claim. Unlike the district court's apologetic interpretation of and reluctant reliance upon Ward v. Race Horse, we view Race Horse as compelling, well-reasoned, and persuasive.6  Also, contrary to the Tribe's views, there is nothing to indicate that Race Horse has been "overruled, repudiated or disclaimed;" Race Horse is alive and well.

Race Horse conclusively established that "the right to hunt on all unoccupied lands of the United States so long as game may be found thereon, ..." reserved a temporary right which was repealed with Wyoming's admission into the Union. 163 U.S. at 504, 16 S. Ct. at 1076. In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on "unoccupied lands;" the lands of the Big Horn National Forest have been "occupied" since the creation of the national forest in 1887. Therefore, we hold that the Tribe and its members are subject to the game laws of Wyoming.

[idahohuntr]

The 10th Circuit relied on lower court case law from a century ago - and its not clear whether SCOTUS will clarify that issue, but in short that older case law did imply Treaties were of limited duration as States were added to the Union.  Rulings in other circuits and even the SCOTUS in more recent times have not concurred with that limited duration finding.

Assuming the SCOTUS does not take up that bigger issue (treaties of limited duration), it will likely address two key arguments made by Wyoming - both of which are presented to explain why the Treaty is not in effect in Wyoming:

1. Creation of statehood terminated the treaty
2. The bighorn national forest is not unoccupied lands and therefore the Crow have no right to hunt there, per terms of the treaty

I think Wyoming will lose on both points.  If they prevail on one, it will be the unoccupied lands argument - but I don't see much chance on that one either. 

If Wyoming prevails on either of these 2 points, Herrera loses, and it would seem likely to have monumental effects to treaties/treaty rights across the US, but especially the Pacific Northwest.

They relied Mostly on the treaty itself, they even note it.

To determine the nature of the reserved right, the Court examined the literary and historical context of the treaty and Article 4. Initially, the Court concluded that unoccupied lands "were only such lands of that character embraced within what the treaty denominates as hunting districts" and not all the lands ceded by the Indians which were owned by the United States and not yet settled. Id. at 508, 16 S. Ct. at 1077-78.
After careful historical analysis, the Court concluded that the hunting right reserved by the treaty "clearly contemplated the disappearance of the conditions therein specified" and was of a "temporary and precarious nature."

affirmation of the appeals case mentioned


We AFFIRM the district court's grant of summary judgment in favor of the State and dismissal of the Tribe's UIA claim. Unlike the district court's apologetic interpretation of and reluctant reliance upon Ward v. Race Horse, we view Race Horse as compelling, well-reasoned, and persuasive.6  Also, contrary to the Tribe's views, there is nothing to indicate that Race Horse has been "overruled, repudiated or disclaimed;" Race Horse is alive and well.

Race Horse conclusively established that "the right to hunt on all unoccupied lands of the United States so long as game may be found thereon, ..." reserved a temporary right which was repealed with Wyoming's admission into the Union. 163 U.S. at 504, 16 S. Ct. at 1076. In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on "unoccupied lands;" the lands of the Big Horn National Forest have been "occupied" since the creation of the national forest in 1887. Therefore, we hold that the Tribe and its members are subject to the game laws of Wyoming.

My reading is they relied primarily on Ward v Race Horse to support their flawed interpretation/application of the law to Tribal Treaties.

The Supreme Court seems to have a knack for providing very limited scope rulings based on technicalities...short of that -  I see no way Wyoming prevails.

[baker5150]

The 10th Circuit relied on lower court case law from a century ago - and its not clear whether SCOTUS will clarify that issue, but in short that older case law did imply Treaties were of limited duration as States were added to the Union.  Rulings in other circuits and even the SCOTUS in more recent times have not concurred with that limited duration finding.

Assuming the SCOTUS does not take up that bigger issue (treaties of limited duration), it will likely address two key arguments made by Wyoming - both of which are presented to explain why the Treaty is not in effect in Wyoming:

1. Creation of statehood terminated the treaty
2. The bighorn national forest is not unoccupied lands and therefore the Crow have no right to hunt there, per terms of the treaty

I think Wyoming will lose on both points.  If they prevail on one, it will be the unoccupied lands argument - but I don't see much chance on that one either. 

If Wyoming prevails on either of these 2 points, Herrera loses, and it would seem likely to have monumental effects to treaties/treaty rights across the US, but especially the Pacific Northwest.

They relied Mostly on the treaty itself, they even note it.

To determine the nature of the reserved right, the Court examined the literary and historical context of the treaty and Article 4. Initially, the Court concluded that unoccupied lands "were only such lands of that character embraced within what the treaty denominates as hunting districts" and not all the lands ceded by the Indians which were owned by the United States and not yet settled. Id. at 508, 16 S. Ct. at 1077-78.
After careful historical analysis, the Court concluded that the hunting right reserved by the treaty "clearly contemplated the disappearance of the conditions therein specified" and was of a "temporary and precarious nature."

affirmation of the appeals case mentioned


We AFFIRM the district court's grant of summary judgment in favor of the State and dismissal of the Tribe's UIA claim. Unlike the district court's apologetic interpretation of and reluctant reliance upon Ward v. Race Horse, we view Race Horse as compelling, well-reasoned, and persuasive.6  Also, contrary to the Tribe's views, there is nothing to indicate that Race Horse has been "overruled, repudiated or disclaimed;" Race Horse is alive and well.

Race Horse conclusively established that "the right to hunt on all unoccupied lands of the United States so long as game may be found thereon, ..." reserved a temporary right which was repealed with Wyoming's admission into the Union. 163 U.S. at 504, 16 S. Ct. at 1076. In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on "unoccupied lands;" the lands of the Big Horn National Forest have been "occupied" since the creation of the national forest in 1887. Therefore, we hold that the Tribe and its members are subject to the game laws of Wyoming.

My reading is they relied primarily on Ward v Race Horse to support their flawed interpretation/application of the law to Tribal Treaties.

The Supreme Court seems to have a knack for providing very limited scope rulings based on technicalities...short of that -  I see no way Wyoming prevails.

Of course, in this case the defendant uses Ward vs Racehorse for their bases of appeal. 

[Ace]

Let’s make it more equal. We the tax payer have a say so on public lands. They are a nation. Take ALL tax payer $ away from the tribes and let them run their nation

[Tbar]

The 10th Circuit relied on lower court case law from a century ago - and its not clear whether SCOTUS will clarify that issue, but in short that older case law did imply Treaties were of limited duration as States were added to the Union.  Rulings in other circuits and even the SCOTUS in more recent times have not concurred with that limited duration finding.

Assuming the SCOTUS does not take up that bigger issue (treaties of limited duration), it will likely address two key arguments made by Wyoming - both of which are presented to explain why the Treaty is not in effect in Wyoming:

1. Creation of statehood terminated the treaty
2. The bighorn national forest is not unoccupied lands and therefore the Crow have no right to hunt there, per terms of the treaty

I think Wyoming will lose on both points.  If they prevail on one, it will be the unoccupied lands argument - but I don't see much chance on that one either. 

If Wyoming prevails on either of these 2 points, Herrera loses, and it would seem likely to have monumental effects to treaties/treaty rights across the US, but especially the Pacific Northwest.

They relied Mostly on the treaty itself, they even note it.

To determine the nature of the reserved right, the Court examined the literary and historical context of the treaty and Article 4. Initially, the Court concluded that unoccupied lands "were only such lands of that character embraced within what the treaty denominates as hunting districts" and not all the lands ceded by the Indians which were owned by the United States and not yet settled. Id. at 508, 16 S. Ct. at 1077-78.
After careful historical analysis, the Court concluded that the hunting right reserved by the treaty "clearly contemplated the disappearance of the conditions therein specified" and was of a "temporary and precarious nature."

affirmation of the appeals case mentioned


We AFFIRM the district court's grant of summary judgment in favor of the State and dismissal of the Tribe's UIA claim. Unlike the district court's apologetic interpretation of and reluctant reliance upon Ward v. Race Horse, we view Race Horse as compelling, well-reasoned, and persuasive.6  Also, contrary to the Tribe's views, there is nothing to indicate that Race Horse has been "overruled, repudiated or disclaimed;" Race Horse is alive and well.

Race Horse conclusively established that "the right to hunt on all unoccupied lands of the United States so long as game may be found thereon, ..." reserved a temporary right which was repealed with Wyoming's admission into the Union. 163 U.S. at 504, 16 S. Ct. at 1076. In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on "unoccupied lands;" the lands of the Big Horn National Forest have been "occupied" since the creation of the national forest in 1887. Therefore, we hold that the Tribe and its members are subject to the game laws of Wyoming.

My reading is they relied primarily on Ward v Race Horse to support their flawed interpretation/application of the law to Tribal Treaties.

The Supreme Court seems to have a knack for providing very limited scope rulings based on technicalities...short of that -  I see no way Wyoming prevails.

Of course, in this case the defendant uses Ward vs Racehorse for their bases of appeal.

The defendant?

[CarbonHunter]

One thing I can guarantee is that once the court rules very few will be happy. No matter how they rule.

[idaho guy]

They can hunt the Montana side of the bighorns ,which is on the reservation, clear into I think jan or feb on winter range. Not a big deal to see 50 bulls herded up on winter range at that time of year.Anyways it is on reservation land and I totally agree with them doing whatever the tribe thinks is right. Wyoming is another ball game and that I think it is a pretty tough draw area for elk. How can Wyoming manage that for a quality limited hunt and allow the crow to hunt that almost year around? I agree with the different tribes having some hunting rights etc but you have to draw the line somewhere especially when it comes to game management.     

Simple - Wyoming does not have jurisdiction over a sovereign that has a treaty entered into by the United States.

Closer to home - we have Treaty Tribes that hunt all kinds of special draw/quality elk units in Idaho, Washington, Oregon etc. and the states have no jurisdiction over them (when they hunt, how many bulls they kill etc.).

I know that occurs in Idaho and Washington that is my point. Exactly how well do you think that's working with unlimited tribal hunts in so called controlled hunt areas in Idaho and Washington? At some point we have to have common sense. We cant go back and hunt like we did 200 years ago and at a minimum their should be cooperation between tribes and other wildlife managers to achieve the same goals for the animals . I think you are usually supporting science based wildlife management and seem to believe in the biologist. How does that work allowing unchecked hunting by certain groups? I SUPPORT tribal hunting rights  but we have to use common sense applying 200 year old treaty rights to todays world game management.       

[Ace]

Do what ever they want on their nation. You go to another nation you go by their rules. Take the tax payer$ away and build the wall with that $

[Humptulips]

Does Statehood abrogate the Crow Indians or any other tribes treaty rights? I would say no, however I would also argue that seasons and bag limits along with other hunting or fishing regulations do not and should not be considered an infringement upon treaty rights.
He and his fellow tribal members may still hunt off reservation. They just have to comply with hunting regulations equally applicable to all non-tribal citizens.

I disagree.  What is the treaty right if they are completely limited by the State's recreational harvest regulations?  This would really undermine Treaties and sovereignty - which is at least part of why the United States is supporting the Crow on this.

Because the treaties were written when natives were not even considered humans, the words "in common with the citizenry" meant the same as, not divided seperately...

There again - what treaty right exists if the interpretation is the tribe is limited to hunt and fish like you and me?

That is the treaty right. To be treated equally. Consider the time  when the treaties were written. Natives were not treated equally and the guarantee they could hunt off reservation like anyone else meant something. Seasons and bag limits came later. That was an unthought-of concept at the time when the treaties were signed.