Treaty Rights Case

Dakota79

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SHERIDAN — A few members of the Crow Nation are gearing up for a pitched battle in an arena where, historically, they have not done so well.

Colton and Clayvin Herrera and Ronnie Fisher were cited in October for poaching elk in January 2014 near Eskimo Creek in the Bighorn Mountains. Their defense, they have said, will be that off-reservation hunting rights are outlined in the 1868 Treaty of Laramie with the Crows.

Article 4 in that treaty gives Indians living on the reservation the right to hunt “…the unoccupied lands of the United States so long as game may be found thereon…” and as long as the Native Americans maintain peace with those living near the hunting districts.

The Crow Nation has traditional off-reservation hunting grounds in Montana, Wyoming and South Dakota. According to Leslie Plain Feather, an official in the Crow Nation’s legislative branch, Wyoming has its own ideas about Article 4.

“We don’t really have problems with Montana or South Dakota,” Plain Feather said. “It’s always Wyoming.”

In May 2013, the legislative branch of the Crow Nation filed a joint action resolution that they would fully exercise their right to off-reservation hunting rights pursuant to the 1868 Treaty with the Crows. Plain Feather said the tribe has sent notices of the resolution to Wyoming, Montana and South Dakota as well as to President Barack Obama, the U.S. Attorney General and the secretaries of interior and agriculture. Plain Feather said no one has responded to the notices yet.

Wyoming Game and Fish officials at the district office in Sheridan had no comment on the dispute other than to say they would continue to enforce Wyoming laws and regulations.

Indian treaties in the West varied little and Article 4 of the 1868 treaty with the Crows is identical to the article in several other treaties with other tribes, including the Bannocks who share a reservation with Shoshoni Indians in southeastern Idaho.

The treaty with the Bannocks was signed July 3, 1868. Traditional Bannock hunting grounds stretched into the area that became the Territory of Wyoming only two weeks after the treaty was signed. Though provisions of the act of setting up a new state said they would ensure that the treaties would remain in place, a Bannock Indian named Race Horse was arrested for hunting in Uinta County in October 1868, just four months after both the treaty with the Bannocks and the Territory of Wyoming were put into place.

It might seem odd that a 120-year-old legal case is be hanging over the heads of Fisher and the Herreras, but the judges of the Circuit Court of the United States for the District of Wyoming came to a decision that is still being fought over. The decision of that court was that the terms of Article 4 of the treaty with the Bannocks had been “perishable and intended to be of limited duration.”

But no suggestion of limitation is mentioned in the treaty with the Bannocks and given that the language in that treaty is identical to the language in the 1868 Treaty with the Crows, some say that the Crow treaty is also meant to last into the present day.

One hundred years after the decision made by the courts in the Race Horse case, Thomas L. Ten Bear and the Crow Nation filed an appeal with the 10th U.S. Circuit Court of Appeals for the District of Wyoming after Ten Bear’s conviction for killing an elk in the Bighorn National Forest in November 1989. Ten Bear and the Crow Tribe named the Wyoming Game and Fish Department and the Wyoming Game and Fish Commission in the suit, and argued the rights of the Crow Tribe to hunt in the national forest as part of the 1868 Treaty with the Crows. The state of Wyoming evoked the 11th Amendment to the U. S. Constitution — a state’s sovereign immunity against litigation from the citizen of another state or nation — and the suit was instead filed against WGFD director Chuck Repsis and commission director Francis Petera, individually.

The Crow Tribe argued that the Race Horse decision should not control the decision of the Ten Bear appeal. The doctrine of the decision made by the court in Race Horse had been overruled by the Supreme Court in other cases concerning the rights of tribes to hunt and fish on traditional grounds in other states. In United States v. Winans, the court recognized that the United States was aware that private ownership of lands formerly in the hands of the Indians had been forseen and the treaties stood to help the Indians preserve their way of life, and the formation of states in no way stood in the way of the treaties.

But the 10th U.S. Circuit Court of Appeals for the District of Wyoming disagreed. In their decision against Ten Bear, they stated that the Crow Tribe’s right to hunt off-reservation as laid out in Article 4 of the 1868 Treaty of Laramie with the Crows was repealed by the admission of the state of Wyoming to the Union.

The 10th Circuit also held that state management of wildlife was irreconcilable with any tribal treaty rights to hunt off-reservation and that even if that right did still exist, the national forest land was not “unoccupied.”

More than 20 years after their last defeat, Fisher and the Herreras will renew a battle that has been waging for more than a century and is not quite ready to end.
- See more at: http://thesheridanpress.com/?p...SDxlDr.b6SGBHi7.dpuf
 

Gr8bawana

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While I don't think Indians should be allowed to do whatever they please, we should remember they have been wronged since day one by the government. One treaty after another broken and at times outright attempts to end their existence.
 

bobvonb

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and doesn't it seem like a native American victory here could only strengthen hunting rights for all of us in the long run?
 

mtguy

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Seems to be a good time to bring this post back in the forefront.
This case is going to be heard by the Supreme Court on January 8th, and could have huge implications on the states wildlife.
 

TheTone

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Any lawyers out there with thoughts on which way the current make up of SCOTUS will lean?

I'm very interested. Should they lose at the supreme court it could have some huge ramifications where I live
 

TheTone

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Don’t the Nez Perce already have off reservation hunting rights?

Yeah, I may have kinda swapped the lose/prevail in my post. It would be interesting if FS and BLM ground is ruled to not be open and unclaimed.
 

mtguy

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Unoccupied is the question. If deemed so, it could open up all sorts of problems. The entire breaks bighorn sheep could be open to unregulated slaughter by indegiuous people. Is Yellowstone park occupied? Two of the three people in the case took their poaching tickets and moved on, knowing they were on the wrong side of the Rez. One, who was a tribal game warden claimed treaty rights. I grew up on a reservation and have a good idea of the bountiful game left on reservation lands. Not good.
 

VikingsGuy

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Two of the three people in the case took their poaching tickets and moved on, knowing they were on the wrong side of the Rez. One, who was a tribal game warden claimed treaty rights.

From what I have read this was no "GPS mistake", the tribe had sent notice letters to WY & MT reiterating their intention to hunt off reservation per the treaty. My guess is they were going to hunt across the line until WY either acknowledged their rights or cited them and they would fight it through the courts to force acknowledgement. I haven't read the briefs, but my guess is 60-40 Herrera wins. For work I get pretty detailed assessments of all SCOTUS hearings, so when I see this one cross my desk I will update for those who are interested.
 

LopeHunter

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America is not known for standing pat on much other than the Constitution which has itself been interpreted liberally so that social engineering could take place in peace time and support of war goals could be attained. I can see SCOTUS tidying up game management by holding firm with the 10th's ruling. From a practical standpoint, how can the Court try to deal with endangered species if a Tribe can shoot an unlimited amount of various animals as if the animals belonged to another nation though those animals are in another nation?
 

antlerradar

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The Court ruling in favor of Herrera and that the forest land is unoccupied or unclaimed would be a big blow to those that are against PLT. This ruling would change peoples positions on PLT. I might even change my mind on PLT if I started to see Reservation like game management on public land.
Another question I have been pondering if the Court rules the public land unclaimed, how would this play in to Utah's claim public land. I can't help to think that a ruling that the public is unclaimed would not help Utah in their crusade to claim a the public land in the state.
 

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