Interesting "Treaty Rights" case in Wyoming

[PlateauNDN]

The Treaties were not created to treat us equal. The Treaties were created to end the conflicts between the US Govt and Tribes. The US Govt was getting tired of losing lives of soldiers and wanted to avoid more death and find an easier solution to removing the savages from their lands and opening up more land for Americans.

[bobcat]

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.       

Good post. I agree 100%.

[bobcat]

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.

Another very good post. 

[Ace]

Equality ? It’s past that and more.

[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.

The defendant?

Ha. Whoops.  It was the Plaintiff appealing in the above mentioned case.
The Crow Tribe and Thomas Ten Bear

[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.).

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.       

Good post. I agree 100%.

I agree, we all win when there is good cooperation between all managers (State, federal, tribal) to ensure the resource is well managed.  I wish there were greater cooperation - but it also wasn't that long ago that state agencies were harassing and arresting Tribal members for exercising their rights...so I think we can all understand some of the challenges in cooperation. Having an understanding of their treaty rights I know it's a non-starter to just say to them "follow our harvest regulations and objectives".  Also, keep in mind that Tribal harvest is probably a small percentage of total deer/elk harvest in most states...even if there are some egregious examples of members harvesting large numbers in areas like feed stations and quality units.

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.

The fallacy there is the presumption that treaty rights were granted by the US...that is not how Tribal treaties are interpreted by the courts.  Tribes explicitly reserved the right to fish in their usual and accustomed areas and to hunt on open/unclaimed lands.  Fishing and hunting were so integral to them that while they ceded claims to millions of acres of lands - worth billions, if not trillions today - they would only do so with the assurance that their rights/ability to hunt and fish would be maintained in perpetuity.  It had nothing to do with equal consideration to other citizens. 

[STIKNSTRINGBOW]

Just out of curiosity, I looked up the Treaty of Fort Laramie, and the only mention of hunting was..

ARTICLE XI.
In consideration of the advantages and benefits conferred by this treaty and the many pledges of friendship by the United States, the tribes who are parties to this agreement hereby stipulate that they will relinquish all right to occupy permanently the territory outside their reservations as herein defined, but yet reserve the right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase.

so I started looking further and found this

Because of the Sioux massacre on the Pawnee in southern Nebraska during a hunting expedition in 1873, the US banned such hunts outside the reservation. Thus, the US decision nullified a part of Article XI.[49]:8

[Stein]

The US also killed all of the buffalo which rendered the rights lost.

[PlateauNDN]

The US also killed all of the buffalo which rendered the rights lost.

They did not kill all of the bison. YNP has the last herds of pure genetic wild bison.

Here's an excerpt from the transcript of the oral argument last week that I found interesting. " JUSTICE GORSUCH: -- but the treaty is express, and it contemplates no conservation. It contemplates the complete elimination of the game by the white man.
MR. LIU: Yeah.
JUSTICE GORSUCH: So, if the white man
gets to eliminate the game, again, counsel for the government, how come the Indian may not?

That's a very good question indeed.

[STIKNSTRINGBOW]

My biggest question is, if they are allowed to hunt with the same rights as everyone else, how is that breaking the treaty?
My family settled in Montana and hunted for sustenance also.
I can trace my family back to Alexander Hamilton, my predecessors were part of the western expansion.
They fought in wars, both foreign and domestic.
.
The "right" to hunt has not been taken away, they have the right.
Allowing that "right" to be interpreted as the ability to be unregulated is an abuse.
It's like saying the second amendment is about sporting arms, when it was written to preserve a militia.
But that's a different topic...

[Stein]

Your family didn't sign a treaty with the United States.

[idahohuntr]

My biggest question is, if they are allowed to hunt with the same rights as everyone else, how is that breaking the treaty?
My family settled in Montana and hunted for sustenance also.
I can trace my family back to Alexander Hamilton, my predecessors were part of the western expansion.
They fought in wars, both foreign and domestic.
.
The "right" to hunt has not been taken away, they have the right.
Allowing that "right" to be interpreted as the ability to be unregulated is an abuse.
It's like saying the second amendment is about sporting arms, when it was written to preserve a militia.
But that's a different topic...

You have a privilege to hunt - privileges can be taken away.  A treaty right to hunt is much more substantive...Treaties are the supreme law of the land, or so says the US Constitution.  And as I noted previously, hunting rights were explicitly reserved by Tribes - they were not some gift from the US - which is sort of what you imply above by stating that we will still let them hunt, just under our state laws.   

So - on a number of fronts, I think your logic is inconsistent with the purpose and exercise of treaty rights.

[STIKNSTRINGBOW]

You have a privilege to hunt - privileges can be taken away.  A treaty right to hunt is much more substantive...Treaties are the supreme law of the land, or so says the US Constitution.  And as I noted previously, hunting rights were explicitly reserved by Tribes - they were not some gift from the US - which is sort of what you imply above by stating that we will still let them hunt, just under our state laws.   

So - on a number of fronts, I think your logic is inconsistent with the purpose and exercise of treaty rights.

However, a privilege is a special entitlement granted to a restricted group or person, either by birth or on a conditional basis, and can be revoked. By contrast, a right is irrevocable and inherently held by all human beings.
I am not saying we "let" them hunt, I am saying they are allowed to hunt just like everyone else.
The ability is not taken away, merely that in the interest of conservation and preservation and game management objectives they should follow game department regulations in the areas not controlled by their allocated reservations.
The "right" to hunt with impunity on areas open to the general public is detrimental to conservation efforts.
In a time before season structure and limits they were promised an ability to hunt, and were encouraged to practice farming.
They were provided with tools, seed, etc. with the intent to be able to still feed their families and reduce their need to depend on hunting/gathering.
The intent of the treaties was to reduce/eliminate conflicts with settlers, not provide them with open availability to do whatever they wanted, then claim it as a "right"

[baker5150]

My biggest question is, if they are allowed to hunt with the same rights as everyone else, how is that breaking the treaty?
My family settled in Montana and hunted for sustenance also.
I can trace my family back to Alexander Hamilton, my predecessors were part of the western expansion.
They fought in wars, both foreign and domestic.
.
The "right" to hunt has not been taken away, they have the right.
Allowing that "right" to be interpreted as the ability to be unregulated is an abuse.
It's like saying the second amendment is about sporting arms, when it was written to preserve a militia.
But that's a different topic...

You have a privilege to hunt - privileges can be taken away.  A treaty right to hunt is much more substantive...Treaties are the supreme law of the land, or so says the US Constitution.  And as I noted previously, hunting rights were explicitly reserved by Tribes - they were not some gift from the US - which is sort of what you imply above by stating that we will still let them hunt, just under our state laws.   

So - on a number of fronts, I think your logic is inconsistent with the purpose and exercise of treaty rights.

There are quite a few states that the "Right to hunt" is written into their constitutions.  The 2 states in this case included.

[Sitka_Blacktail]

My biggest question is, if they are allowed to hunt with the same rights as everyone else, how is that breaking the treaty?
My family settled in Montana and hunted for sustenance also.
I can trace my family back to Alexander Hamilton, my predecessors were part of the western expansion.
They fought in wars, both foreign and domestic.
.
The "right" to hunt has not been taken away, they have the right.
Allowing that "right" to be interpreted as the ability to be unregulated is an abuse.
It's like saying the second amendment is about sporting arms, when it was written to preserve a militia.
But that's a different topic...

You have a privilege to hunt - privileges can be taken away.  A treaty right to hunt is much more substantive...Treaties are the supreme law of the land, or so says the US Constitution.  And as I noted previously, hunting rights were explicitly reserved by Tribes - they were not some gift from the US - which is sort of what you imply above by stating that we will still let them hunt, just under our state laws.   

So - on a number of fronts, I think your logic is inconsistent with the purpose and exercise of treaty rights.

Just for the sake of argument, I'd say, I agree, treaty rights are much more substantive, but proper management guarantees that there will be animals to hunt and therefore protects the right and ability to hunt. If there are no animals, that right doesn't mean much. If I gave you the right to hunt for gold in my yard, it would be meaningless.