Interesting "Treaty Rights" case in Wyoming

[idahohuntr]

Supreme Court Ruling Threatens Wildlife And Hunting

In an opinion released today, the Supreme Court ruled that an 1868 treaty between the U.S. and the Crow Tribe could give members of that tribe the right to ignore state hunting regulations and engage in the unregulated take of game beyond the borders of reservation land.

The case of Herrera v. Wyoming was brought to the Supreme Court by Clayvin Herrera, a member of the Crow Tribe and former tribe game warden.  Herrera followed a group of elk past the Crow reservation's boundary and ended up taking several bull elk in the Bighorn National Forest in Wyoming.

Herrera asserted his treaty rights as a defense to criminal charges of illegally taking elk out of season.  After he lost in state court, Herrera successfully petitioned the U.S. Supreme Court to consider his case.

Supreme Court Justices Sotomayor, Ginsburg, Breyer, Kagan and Gorsuch agreed with Herrera.  They held that the Bighorn National Forest and other federal lands may fall within the scope of an 1868 treaty that permits members of the Crow Tribe to hunt on "unoccupied lands of the United States."

SCI assisted the Wyoming Game and Fish Department in this case, opposing the position of Herrera.  SCI filed a "friend of the court" brief to defend the importance of state management authority over game on federal lands.  This same principle could apply to 19 other treaties with similar language, spreading the impact to other Tribes and well beyond Wyoming.

In effect, the ruling could give Tribal members the ability to ignore the state hunting regulations.  This could threaten wildlife populations.  It could also lead to restrictions on non-Native hunters in order to keep harvests within biologically acceptable limits.

The glimmer of hope for state wildlife managers is that the ruling still allows Wyoming to make its case to the Wyoming state court that the state's hunting regulations should override treaty rights for reasons of "conservation necessity."

Four justices, including Justice Alito, Chief Justice Roberts, and Justices Thomas and Kavanaugh, filed a dissenting opinion strongly disagreeing with the majority ruling.

SCI argued in our brief that states could be forced to reduce the available harvest for non-tribal hunters since the unregulated take by tribal hunters not only reduces the potential availability of game for all, but also undermines the state wildlife managers' ability to accurately determine the number of animals removed from the population.

SCI will continue to monitor the case and, if needed, will help support Wyoming's efforts to demonstrate the conservation necessity of its game regulations.

Thanks SCI. Anyone on here who’s not a member should join asap.

I'd strongly suggest the fellas at SCI take a good hard look at the case law on conservation necessity before they waste any money and effort on pursuing that issue...I'll give em a little hint...telling tribes they have to follow state hunting laws (unless elk are near extinction) is a dead end.

[KFhunter]

what they need to do is revisit the "in common with" language of the treaty

[Tbar]

what they need to do is revisit the "in common with" language of the treaty

You know how that was interpreted in previous case law right?

[idahohuntr]

what they need to do is revisit the "in common with" language of the treaty

You know how that was interpreted in previous case law right?

Very few people read much about treaties.

Gorsuch really laid out the ignorance of people debating "in common with" language as meaning tribes treaties allow them to have equal treatment as the rest of the citizens...it was in last months Yakama ruling.  Good read. 

[idaho guy]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

[KFhunter]

what they need to do is revisit the "in common with" language of the treaty

You know how that was interpreted in previous case law right?

Yes I am aware of that, hence the word "revisit" in my post above.

[KFhunter]

what they need to do is revisit the "in common with" language of the treaty

You know how that was interpreted in previous case law right?

Very few people read much about treaties.

Gorsuch really laid out the ignorance of people debating "in common with" language as meaning tribes treaties allow them to have equal treatment as the rest of the citizens...it was in last months Yakama ruling.  Good read.

The justice also observed that Wyoming can still press the argument that “the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation.” The high court sent the case back to Wyoming state court for further litigation which could resolve these issues.

But Sotomayor’s opinion “takes a puzzling course,” Justice Samuel A. Alito Jr. wrote in a lengthy dissent. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Brett M. Kavanaugh.

He said Crow tribe members could still be precluded from asserting the treaty right for reasons Sotomayor’s opinion didn’t address.

So the majority’s decision to “plow ahead” on the treaty interpretation issue, Alito wrote, “is hard to understand, and its discourse on that issue is likely, in the end, to be so much wasted ink.”

The case is Herrera v. Wyoming, U.S., 17-532, vacated, remanded 5/20/19.

[idahohuntr]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

I support a system and a ruling that ensures a promise made by the United States is kept...treaties are the supreme law of the land and I'm glad Trumps solicitor argued against the stupidity of Wyomings arguments.  All that said, I hope there is comanagement between states and tribes...but given how WY has treated tribes for decades, I could understand Tribes telling the state to go pound sand. 

[idahohuntr]

what they need to do is revisit the "in common with" language of the treaty

You know how that was interpreted in previous case law right?

Very few people read much about treaties.

Gorsuch really laid out the ignorance of people debating "in common with" language as meaning tribes treaties allow them to have equal treatment as the rest of the citizens...it was in last months Yakama ruling.  Good read.

The justice also observed that Wyoming can still press the argument that “the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation.” The high court sent the case back to Wyoming state court for further litigation which could resolve these issues.

But Sotomayor’s opinion “takes a puzzling course,” Justice Samuel A. Alito Jr. wrote in a lengthy dissent. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Brett M. Kavanaugh.

He said Crow tribe members could still be precluded from asserting the treaty right for reasons Sotomayor’s opinion didn’t address.

So the majority’s decision to “plow ahead” on the treaty interpretation issue, Alito wrote, “is hard to understand, and its discourse on that issue is likely, in the end, to be so much wasted ink.”

The case is Herrera v. Wyoming, U.S., 17-532, vacated, remanded 5/20/19.

To invoke conservation necessity is a high bar...and conservation cant be balanced on the backs of tribes.  Wyoming would basically have to end general season hunting before they could even try and argue conservation regulations against tribal harvest. Actually, my statement only applies if WY wants to prevail...obviously they can try any number of losing arguments they would like. 

[idaho guy]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

I support a system and a ruling that ensures a promise made by the United States is kept...treaties are the supreme law of the land and I'm glad Trumps solicitor argued against the stupidity of Wyomings arguments.  All that said, I hope there is comanagement between states and tribes...but given how WY has treated tribes for decades, I could understand Tribes telling the state to go pound sand.

 

Ok I agree that the promise should be kept. Totally disagree with how they are interpreting these promises when it comes to modern day management of game. I don’t think the crow won much given the unlimited hunting they are entitled to on what is a game rich and huge reservation already. I know for a fact game management just lost big time. It’s not over yet. I think the crow and other tribes should continue to do whatever they want on their lands but not on national forest. I don’t care if they get special treatment off the reservation but at least they should be required to cooperate with and abide by regulations, seasons and even some kind of bag limits.

[KFhunter]

fish will pave the way to more co-management in Washington.  If we can get a win in the courts over salmon conservation and declining orca pods we'll have a path for other species, such as Yakima elk herd.

[KFhunter]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

I support a system and a ruling that ensures a promise made by the United States is kept...treaties are the supreme law of the land and I'm glad Trumps solicitor argued against the stupidity of Wyomings arguments.  All that said, I hope there is comanagement between states and tribes...but given how WY has treated tribes for decades, I could understand Tribes telling the state to go pound sand.

 

Ok I agree that the promise should be kept. Totally disagree with how they are interpreting these promises when it comes to modern day management of game. I don’t think the crow won much given the unlimited hunting they are entitled to on what is a game rich and huge reservation already. I know for a fact game management just lost big time. It’s not over yet. I think the crow and other tribes should continue to do whatever they want on their lands but not on national forest. I don’t care if they get special treatment off the reservation but at least they should be required to cooperate with and abide by regulations, seasons and even some kind of bag limits.

It's like the courts suffer from "white guilt" from past wrongs, so are ruling everything in favor of the tribes even though when you read the treaties it's clear that's not whats meant by them especially when you consider the time frame in which is was written.  There is no such thing as "unoccupied" lands taken in that context, back then there was miles and miles of territory that was US territory unclaimed, it's all claimed now. 

One cannot just hitch a wagon and go settle down somewhere on a new homestead.


Yes, the treaties are the law of the land and it's SCOTUS' responsibility to determine what that law is in the context and time frame in which it was written.

[Platensek-po]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

I support a system and a ruling that ensures a promise made by the United States is kept...treaties are the supreme law of the land and I'm glad Trumps solicitor argued against the stupidity of Wyomings arguments.  All that said, I hope there is comanagement between states and tribes...but given how WY has treated tribes for decades, I could understand Tribes telling the state to go pound sand.

 

Ok I agree that the promise should be kept. Totally disagree with how they are interpreting these promises when it comes to modern day management of game. I don’t think the crow won much given the unlimited hunting they are entitled to on what is a game rich and huge reservation already. I know for a fact game management just lost big time. It’s not over yet. I think the crow and other tribes should continue to do whatever they want on their lands but not on national forest. I don’t care if they get special treatment off the reservation but at least they should be required to cooperate with and abide by regulations, seasons and even some kind of bag limits.

It's like the courts suffer from "white guilt" from past wrongs, so are ruling everything in favor of the tribes even though when you read the treaties it's clear that's not whats meant by them especially when you consider the time frame in which is was written.  There is no such thing as "unoccupied" lands taken in that context, back then there was miles and miles of territory that was US territory unclaimed, it's all claimed now. 

One cannot just hitch a wagon and go settle down somewhere on a new homestead.


Yes, the treaties are the law of the land and it's SCOTUS' responsibility to determine what that law is in the context and time frame in which it was written.

You realize that’s an argument the left uses with the 2nd amendment right?? Are you going to allow a revision of that given the time frame it was written in?

[KFhunter]

that's why we have the 2nd amendment, because when it was written the founders feared government and were of the opinion that every American was a militiaman.


thus today every American is granted the right to bear arms, in the eyes of our founding fathers we are all part of a militia.   

By militia, Madison obviously meant every able-bodied man capable of bearing arms. This, undoubtedly, was also the meaning of "militia" when the Second Amendment was written. Across the nation, Federalists echoed our Founding Fathers' insistence that the right to keep and bear arms become part of the Constitution.

today the left would have the term "militia" be a dirty word, they've tried to change the meaning to mean that a militia is anti-government, but that isn't necessarily the case. 
At any rate the meaning of the word has evolved and the anti's would have us believe that the 2nd amendment doesn't grant the right for all Americans to bear arms because we aren't a militia anymore.

So its a good thing that SCOTUS went back to the founding fathers meaning of the word militia,  or we wouldn't be having the 2nd amendment like we have today.

let's have any further conversation about this topic here:
https://hunting-washington.com/smf/index.php/topic,239241.0/topicseen.html

So as not to hijack this thread about treaty rights

[idaho guy]

That’s a shame. The crow is a huge reservation but doesn’t have a lot of members so it probably won’t be devastating to the herd on the Wyoming side.They really have no need to hunt off the reservation because the hunting on the crow side is good and the reservation is huge. I worry more about the precedent for other areas. You were right idahhunter but does it feel good? Someday I would hope common sense would prevail on some of these cases. It doesn’t look like it will wildlife and proper management are the losers here. I know it’s not over I guess we will see how the rest goes.

I support a system and a ruling that ensures a promise made by the United States is kept...treaties are the supreme law of the land and I'm glad Trumps solicitor argued against the stupidity of Wyomings arguments.  All that said, I hope there is comanagement between states and tribes...but given how WY has treated tribes for decades, I could understand Tribes telling the state to go pound sand.

 

Ok I agree that the promise should be kept. Totally disagree with how they are interpreting these promises when it comes to modern day management of game. I don’t think the crow won much given the unlimited hunting they are entitled to on what is a game rich and huge reservation already. I know for a fact game management just lost big time. It’s not over yet. I think the crow and other tribes should continue to do whatever they want on their lands but not on national forest. I don’t care if they get special treatment off the reservation but at least they should be required to cooperate with and abide by regulations, seasons and even some kind of bag limits.

It's like the courts suffer from "white guilt" from past wrongs, so are ruling everything in favor of the tribes even though when you read the treaties it's clear that's not whats meant by them especially when you consider the time frame in which is was written.  There is no such thing as "unoccupied" lands taken in that context, back then there was miles and miles of territory that was US territory unclaimed, it's all claimed now. 

One cannot just hitch a wagon and go settle down somewhere on a new homestead.


Yes, the treaties are the law of the land and it's SCOTUS' responsibility to determine what that law is in the context and time frame in which it was written.

   

I agree with the white guilt aspect otherwise I can’t get my arms around their
modern day interpretations of hundred year old treaties. Indians did get screwed in a lot of circumstances way back when but why do deer and elk have to suffer for it. I would say modern tribes have been compensated for past wrongs and we shouldn’t throw away common sense. I am for tribal hunting rights within reason and in conjunction with proper management of herds. Why punish the elk what did they do  If it’s traditional centuries ago hunting land then let them hunt off the reservation traditionally with horses and long bows not diesel trucks and 300 ultra mags