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Author Topic: Interesting "Treaty Rights" case in Wyoming  (Read 3639 times)

Offline idahohuntr

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #45 on: January 16, 2019, 03:15:26 PM »
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.
If US v Wa wouldn't have tied 4-4 we could have had some clarification on that point...clearly many tribes believe governments have not done enough to protect the resources that make those rights meaningful...e.g., allowing culverts that block salmon.

States do have the power to stop Tribal harvest for conservation necessity...but the bar is high to go that route. 
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #46 on: January 16, 2019, 03:17:19 PM »
 :chuckle:
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #47 on: January 16, 2019, 04:05:35 PM »
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #48 on: January 17, 2019, 09:36:49 AM »
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.


In Montana(and Idaho) you have a constitutional RIGHT to hunt and fish. It is not a privilege it is a right. So I think sticks logic is consistent. The treaties were written when there was NO game laws for anyone and no management of the game. Treaties need to be interpreted according to the modern day North American wildlife model. Even the treaties themselves had language that I think limited tribal rights based on the existence of  and numbers of game too hunt. On the reservations tribes can do whatever they want and in a lot of cases are amazing at managing the herds. Off reservation they should at least have to work with other wildlife managers to achieve whatever goals have been set. We can argue legal jargon and intent of the parties 200 years ago all day long but we really just need to apply common sense. I know they probably couldn't have even imagined that Idaho would have 1.7 million people living in it today. Its time for common sense not antiquated legal arguments

Offline idahohuntr

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #49 on: May 20, 2019, 02:07:49 PM »
Just as I predicted....Herrera wins 5-4, Wyoming loses.  Crow are free to hunt Bighorn NF without interference from wyoming game and fish...cant get the link to the decision to post.

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #51 on: May 20, 2019, 03:23:42 PM »
When do they hit Yellowstone?

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #52 on: May 20, 2019, 03:25:11 PM »
When do they hit Yellowstone?

That would be quite the stir... has that happend at any of the parks here in wa?
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #53 on: May 20, 2019, 03:37:12 PM »
When do they hit Yellowstone?

That would be quite the stir... has that happend at any of the parks here in wa?

I believe natives have rights to hunt certain species in the park.
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #54 on: May 20, 2019, 03:56:11 PM »
Just as I predicted....Herrera wins 5-4, Wyoming loses.  Crow are free to hunt Bighorn NF without interference from wyoming game and fish...cant get the link to the decision to post.



Not yet. The ruling is just that the treaty is still in effect. There hasn't been a ruling on the definition of "unoccupied."
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Offline Bob33

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #55 on: May 20, 2019, 04:08:11 PM »
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.

 
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #56 on: May 20, 2019, 04:11:11 PM »
When do they hit Yellowstone?
That would be quite the stir... has that happend at any of the parks here in wa?
There's a US District ruling that actually originated out of an Olympic NP tribal hunting case. In US v Hicks the judge ruled national parks are not open for tribal hunting. In the ruling the judge ruled that:

1. Upon the enactment by Congress of legislation creating the Olympic National Park in 1938, if not before, the land included therein ceased to be "open and unclaimed land," thus terminating the privilege of hunting on Olympic National Park lands.

2. The 1942 legislation, prohibiting all hunting in the Park, terminates the Indian hunting privilege on Olympic National Park lands.

3. Termination of the Indian hunting privilege on Olympic National Park lands does not constitute abrogation.

Now what should be noted is this is a US District Court ruling, it didn't get pushed up to the 9th Circuit or SCOTUS. So technically it just has binding in Western WA, however its not uncommon for judges across the country to use each others precedent in their own cases. So in the future we may see a tribal hunting in a national park case make it to a circuit court or SCOTUS, but as for right now we have US v Hicks which says no hunting in parks.

Offline idahohuntr

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #57 on: May 20, 2019, 04:37:44 PM »
Just as I predicted....Herrera wins 5-4, Wyoming loses.  Crow are free to hunt Bighorn NF without interference from wyoming game and fish...cant get the link to the decision to post.



Not yet. The ruling is just that the treaty is still in effect. There hasn't been a ruling on the definition of "unoccupied."
The landowner says they are unoccupied...good luck if WY thinks they stand a chance citing another tribal member hunting the bighorns  :chuckle:
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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #58 on: May 20, 2019, 06:06:07 PM »
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 whos not a member should join asap.

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Re: Interesting "Treaty Rights" case in Wyoming
« Reply #59 on: May 20, 2019, 07:16:59 PM »
When do they hit Yellowstone?
That would be quite the stir... has that happend at any of the parks here in wa?
There's a US District ruling that actually originated out of an Olympic NP tribal hunting case. In US v Hicks the judge ruled national parks are not open for tribal hunting. In the ruling the judge ruled that:

1. Upon the enactment by Congress of legislation creating the Olympic National Park in 1938, if not before, the land included therein ceased to be "open and unclaimed land," thus terminating the privilege of hunting on Olympic National Park lands.

2. The 1942 legislation, prohibiting all hunting in the Park, terminates the Indian hunting privilege on Olympic National Park lands.

3. Termination of the Indian hunting privilege on Olympic National Park lands does not constitute abrogation.

Now what should be noted is this is a US District Court ruling, it didn't get pushed up to the 9th Circuit or SCOTUS. So technically it just has binding in Western WA, however its not uncommon for judges across the country to use each others precedent in their own cases. So in the future we may see a tribal hunting in a national park case make it to a circuit court or SCOTUS, but as for right now we have US v Hicks which says no hunting in parks.

So your saying the muckleshoots have never hunted in the mt Rainer np since this ruling took effect in the 40s?  These rulings dont stop the tribes, they just use them if they go their way like it did today.

 


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