U.S. supreme Court case - Big decision ahead

[RobG]

Good old Kerry White... now he can blame wolves and indians for killing all the elk, while at the same time he can blame MFWP for not killing enough elk.

 

[idahohuntr]

Fair enough, I certainly respect your opinion. My opinion regarding "conservation" relates to the following SCOTUS discussion as shared in the SCOTUSblog and the actual SCOTUS ruling.

Wyoming's State conservation efforts, by the creation of the WGFD, are "non-discriminatory".

*Also, the use of bold imprint is merely to highlight the specific portions of interest. Not intended to raise hairs.


https://www.scotusblog.com/2019/05/opinion-analysis-court-rejects-issue-preclusion-in-affirming-crow-tribes-treaty-hunting-right/

From the actual ruling;

I think I better understand your point. Having listened to the oral arguments and in combination with other case law on "conservation necessity" issues with Tribes/States in the Pacific Northwest I am aware of - I think some folks are reading too much into the door left slightly open by SCOTUS. Because Wyoming argued the Treaty was not valid off-reservation - they had no reason to argue about conservation necessity or if the specific location of harvest was technically occupied. All SCOTUS said in the majority opinion was that Wyomings arguments failed, the Treaty exists, however the State may wish to argue occupied or conservation in lower courts if they so choose.

BUT - based on previous case law - I think WY would fail to maintain Herreras conviction on the grounds there is a conservation necessity that forces Crow Tribe members to follow WYGF regs or that where he killed the elk was an "occupied" portion of the Bighorn NF. Basically, I think SCOTUS included the statements you put in bold as a matter of process/law...they are areas the State COULD argue as they were never originally before the Court. I do not think it is the SCOTUS majority signaling these items are something WY is likely to prevail on.

Full disclosure...I'm not an attorney so you'll want to exercise great caution in my various legal interpretations!

 

[3855WIN]

Antlerrader's approach does seem to be the common sense way to solve this problem. Of course, law has very little to do with common sense!

New Mexico does have 20 plus Indian reservations. Not all are without problems. But the problems usually do not the extreme that you guys in the North deal with. I sincerely hope you find a solution.

I think the Tribes In NM are very different people from the Montana Tribes.

 

[Toadslayer]

Montana honors Crow treaty rights in Custer Gallatin National Forest

The May 20 U.S. Supreme Court opinion affirming Crow Tribe treaty hunting rights in Wyoming has reverberated into Montana.

billingsgazette.com

 

[wllm1313]

Montana honors Crow treaty rights in Custer Gallatin National Forest

The May 20 U.S. Supreme Court opinion affirming Crow Tribe treaty hunting rights in Wyoming has reverberated into Montana.

billingsgazette.com

Interesting...

"Court cases defined that for us a long time ago," said Tom McDonald, the Fish, Wildlife, Recreation & Conservation Office division manager for the CSKT.
For male wildlife species like deer and elk, tribal hunters can shoot a bull or buck any time of the year without even purchasing a tag, he explained. For restricted species like moose or bighorn sheep there are tag drawings for tribal members, and bighorns are hunted only on the reservation. Seasons for female wildlife species run from Sept. 1 to Jan. 31, McDonald said.

Any idea what the courts cited when they ruled you could restrict species and set seasons?

 

[375H&H]

Tom Mcdonald sounds like a real winner. Clearly he is unaware of what sparked the court case.

“A lot of it is not sport hunting, it’s subsistence hunting”

“Overhunting is not an issue”

“They all frown on waste of meat, that’s taboo”

 

[PrairieHunter]

The Crow tribe is really going to have an influence on hunting in WY and MT between this and I did not realize they were also responsible for blocking the grizly hunt until recently.

https://www.apnews.com/e4092f472b72451bbf9700b266117ac0
But wildlife advocates and the Crow Indian Tribe successfully sued to stop the hunts. Their attorneys persuaded Christensen that despite the recovery of bears in Yellowstone, the species remains in peril elsewhere because of continued threats from climate change and habitat loss.

 

[375H&H]

The Crow tribe is really going to have an influence on hunting in WY and MT between this and I did not realize they were also responsible for blocking the grizly hunt until recently.

https://www.apnews.com/e4092f472b72451bbf9700b266117ac0
But wildlife advocates and the Crow Indian Tribe successfully sued to stop the hunts. Their attorneys persuaded Christensen that despite the recovery of bears in Yellowstone, the species remains in peril elsewhere because of continued threats from climate change and habitat loss.

That’s interesting. Montana is not appealing unlike Wyoming and Idaho who are. Just like we talked about in another thread, the intentions of the FWP and governor about actually implementing a grizzly hunt are unknown...but that should almost be another thread in itself, I digress.

 

[ClearCreek]

Tom Mcdonald sounds like a real winner. Clearly he is unaware of what sparked the court case.

“A lot of it is not sport hunting, it’s subsistence hunting”

“Overhunting is not an issue”

“They all frown on waste of meat, that’s taboo”

Tom McDonald must lives in some alternate universe if he actually believes what he said in those three quotes when it comes to the Crow tribe and reservation. The situation on the ground is just the opposite of what he said.

ClearCreek

 

[BWALKER77]

Tom McDonald must lives in some alternate universe if he actually believes what he said in those three quotes when it comes to the Crow tribe and reservation. The situation on the ground is just the opposite of what he said.

ClearCreek

It's clear he never leaves his office..

 

[VikingsGuy]

It's clear he never leaves his office..

That's not fair, all politicians have to leave their office long enough to attend fund raising banquets . . .

 

[Aussie_hunter_JD]

I apologise in advance I'm at work and this is rushed so it's not my most articulate work. If anything comes across as culturally insensitive, bigoted or what have you I can assure that it's because I've rushed this down on my break.

I don't know enough about the US example to comment but in Aus we have a similar thing with our aboriginals. That includes the ongoing hunting of the endangered and otherwise protected dugong. It has a cultural link to them, but previously was hunted out of a bark canoe and wooden spear which I would have imagined was challenging. These days it's motorised boats and rifles.

Similarly, there are areas off limits for hunting to non aboriginals, but the catch is almost all of the game they hunt are introduced european species. Then again most Australians feel that only aboriginals should be allowed to hunt at all.

The whole cultural thing is so dicey, here questioning it will get you labelled a racist preventing any real and legitimate conversation.

I think the intent has so much to do with these laws, cultures that have a law from a time when it was purely relating to subsistence needs to be reconsidered in contemporary light if that's no longer the case. After all, the vast majority of Australians have no respect for my cultural link to hunting and self sufficiency which has not broken for generations. In a way I feel it's racist of those people to say well you're a civilised white person and we've moved beyond that as a society so it's barbaric of you to engage in those practices. But then turn around and say that it's fine for aboriginals to, what are you insinuating? that they're backward savages who are little better than we were thousands of years ago so it's ok? I have friends that are aboriginal and they're no different from me. In that respect I find that incredibly insulting, I believe in equality including the part people forget that comes with it regarding everyone being equal!

This whole thing the world over is becoming a mess, I agree that you do need to respect cultural traditions, but, in saying that you also need to acknowledge and respect the fact that we all have them and they're equally valid.

I can't imagine an american whose grown up in a place for generations has any less connection to the land they live in and around than anyone else irrespective of whether you're family has been there 200 years or 2,000. Sometimes we get called Europeans here, I've been to Europe and I can tell you I did not feel at home, I'm Australian through and through, it's all I am.

 

[idahohuntr]

Your points are fair - but with respect to this case and to many Tribes in the US - their rights have virtually nothing to do with their race, culture, language etc. Their ability to hunt unoccupied lands stems from a treaty their ancestors signed with the United States. A treaty that in most cases was ratified by the US Senate and signed by the President.

Of course, their previous occupation of lands, language, history, culture etc. all contribute to why and how we got to those treaties, but their treaty is what preserved those hunting rights...and thats why folks who've lived 5 generations in Idaho or Montana or Wyoming may have a strong connection to the land - but no legitimate claim to similar rights of Treaty Tribes.

 

[wllm1313]

Your points are fair - but with respect to this case and to many Tribes in the US - their rights have virtually nothing to do with their race, culture, language etc. Their ability to hunt unoccupied lands stems from a treaty their ancestors signed with the United States. A treaty that in most cases was ratified by the US Senate and signed by the President.

Of course, their previous occupation of lands, language, history, culture etc. all contribute to why and how we got to those treaties, but their treaty is what preserved those hunting rights...and thats why folks who've lived 5 generations in Idaho or Montana or Wyoming may have a strong connection to the land - but no legitimate claim to similar rights of Treaty Tribes.

Might not want to open the Australia treaty with aborigines can of worms...let’s just say it’s worth a google.

I think it’s a interesting outside perspective on our current situation... and there are remarkable similarities.

 

[ElkFever2]

For anyone interested in background reading regarding origins of relations between Europeans and Native Americans, "American Holocaust" is very good. The observation that stood out to me the most was that Western European cultures are a polar opposite from Native American cultures. They are like oil and water. Despite hundreds of years of relations between these groups, many persons belonging to the native culture communities still struggle terribly to get along in the modern US. Life for most on some reservations is crappy and deplorable by anyone's standard. It makes me mad when I read about natives involved in poaching incidents, drunk-driving homicides, and other crimes. I wish the perpetrators would lead more functional lives. In the end though, I try to suspend my judgment. I'll never really understand what it would be like to have to choose between assimilating to the majority culture, trying to maintain a cultural identity, or somehow trying to do both. Yet this is the reality for about 1 million people living within the borders of the US today.

As far as the court decision goes, I find it disappointing. Not because I personally dislike it, but because this ruling, along with similar court rulings on native hunting rights, seems to really ignore/misunderstand the original contexts in which the treaties were made.

Please chime in if I've got the wrong idea here, but this is how I see it:

188X US Gov't relegates sub-human people group to live in area A (reservation), and allowed to hunt in area A, plus area B (treaty-specified hunting grounds). White Americans can live and hunt anywhere, without restriction.
189X States begin to regulate hunting for US citizens
192X US Congress reclassifies sub-human people group as US citizens. They now have all the same legal rights as everyone else, such as the right live and hunt anywhere, including area B. Regulation of hunting in area A is up to the tribe.

So why would anyone conclude treaty-specified hunting rights in area B are broader than what WYGF determines them to be for anyone else, considering the later developments of game and fish regulation and granted citizenship?

In practice though, expensive NR tags that can only be obtained every so many years severely restricts the ability of Crow Res. tribe members to practically hunt in area
B.

A reasonable compromise, IMO, would be to allow Crow Res. tribe members to obtain tags in the same manner as WY residents, which would only be available on land specified in the treaty, and all trophy animal parts must be surrendered to WYGF. Otherwise, all other laws and regulations must be observed.

Since the matter was remanded to the lower court, I hope something similar to this does come about, but I have a sick feeling that I am being overly optimistic.

 

[VikingsGuy]

As far as the court decision goes, I find it disappointing. Not because I personally dislike it, but because this ruling, along with similar court rulings on native hunting rights, seems to really ignore/misunderstand the original contexts in which the treaties were made.

Please chime in if I've got the wrong idea here, but this is how I see it:

188X US Gov't relegates sub-human people group to live in area A (reservation), and allowed to hunt in area A, plus area B (treaty-specified hunting grounds). White Americans can live and hunt anywhere, without restriction.
189X States begin to regulate hunting for US citizens
192X US Congress reclassifies sub-human people group as US citizens. They now have all the same legal rights as everyone else, such as the right live and hunt anywhere, including area B. Regulation of hunting in area A is up to the tribe.

So why would anyone conclude treaty-specified hunting rights in area B are broader than what WYGF determines them to be for anyone else, considering the later developments of game and fish regulation and granted citizenship?

You are forgetting that Treaties are like contracts - they do not automatically adjust to market conditions and a third party who is not a party to them has very little voice in court about the matter.

A better example would be:

Chad and George are neighbors. They are both in their late 20’s and neither has kids. It turns out Chad and George have neighboring ranches. But things have gone poorly for Chad and well for George. Chad is on the edge of bankruptcy. George and Chad reach an agreement to sell Chad’s land to George. All the terms and pricing are fairly standard, but at the last minute Chad refuses to sell unless George agrees to a provision that Chad and all of his descendants will have non-exclusive access to the sold land for hunting purposes. George is irritated by the request and has a choice - agree to this limitation or wait until Chad goes into backruptcy. But that adds legal fees, the risk another buyer would out bid him at auction and delay in access to the land for over a year, so George agrees, but he does add that he (George) personally has the right to terminate this access if he so decides at anytime after 20 years. In the end this doesn’t seem like a big deal to George, as it is common at the time for neighbors to consent to hunting access, and in any event, how much a problem could one guy hunting be? And after 20 years George figures he would just cancel (even though he is not saying that directly to Chad).

So all is well for the first 25 years, and George decides not to bother cancelling the access.

Now we are 50 years after the transaction, Chad is dead but had 4 kids who each had 4 kids - so now there are 20 descendants of Chad and all are avid hunters - making full use of the access rights negotiated for by “grandpa” Chad. George is still alive but moved to Florida and has leased all his land to his son Will to farm/ranch and otherwise manage the land. Will now realizes that while neighborly consent to hunting may have been the rule of the day 50 years ago, a modern ranch makes money by contracting exclusively to outfitters. Shortly after contracting with an outfitter, Will starts gettting complaints from the outfitter about Chad’s descendants hunting on the property. Will tells Chad’s descendants that they can’t access this land any longer. A few of Chad’s grandkids ignore this warning and Will gets his buddy, the local sheriff, to arrest them for criminal trespass. In their defense they raise Chad’s original contract with George. Will says that this is ridiculous, George gave him “keys to the ranch” so to speak and in any event many things have changed in the last 50 years. When they get to court, George as the actual owner of the land and as party to the contract is asked to provide his view. He says that the contract is still in place and that he has not canceled it even though he had the right to. The court rules in favor of Chad’s descendants.

Now Will is pissed at Chad’s kids/grandkids — but the real beef is not between the kids of Chad and Will, it is between George and Will himself. George could fix this by just terminating but he won’t — that is not Chad’s kids problem and why would they stop hunting just to please Will and the outfitter?

If you haven’t gathered yet, Chad is the Crow tribe and George is the Fed Govt and Will is Wyoming.

 

[wllm1313]

@VikingsGuy, Well done sir!

 

[BuzzH]

The only thing to add to vikingsguy's story, pretend there was no expiration date or 20 year deal....

 

[VikingsGuy]

The only thing to add to vikingsguy's story, pretend there was no expiration date or 20 year deal....

I was only trying to work in the angle that congress/pres have authority to cancel or rewrite Indian treaties - they are just choosing not to. But I probably was layering on too many veiled parallels for that to make sense.