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Five Years After Supreme Court Decision, Tribal Hunting Rights Still Murky

Nearly five years have passed since the U.S. Supreme Court issued a landmark decision recognizing the treaty-based hunting rights of Native American tribes. Despite this, many legal and policy questions regarding where, when, and if certain Native Americans are bound by state hunting regulations remain unresolved. Two months ago, a lower federal court issued an order related to tribal elk hunting in the Bighorns, but the clarity hunters and tribal members hoped for remains elusive.

Observers expected that lingering legal questions would be resolved through various court cases. However, Wyoming’s decision to drop charges in the partially remanded Herrera v. Wyoming case has left many issues unresolved. This decision has unexpectedly elevated the importance of another case dating back to 1989, involving Thomas Ten Bear, a member of the Crow Tribe, who was convicted of elk poaching in the Bighorns. Like the Herrera case, Ten Bear’s situation revolves around the prosecution of Crow Tribal members for killing elk in a national forest in Wyoming without a state-issued permit.

Ten Bear’s Case and the Supreme Court Precedent

Years before the Supreme Court’s Herrera ruling, Ten Bear sought to have his nearly 35-year-old poaching conviction overturned. With the new precedent in place, U.S. District Judge Alan Johnson issued a 27-page order in late March, partially granting Ten Bear and the Crow Tribe’s requests for relief. Johnson’s decision clarified some key legal questions, establishing that statehood admission does not abrogate treaty rights and that the creation of a national forest does not render the land “occupied,” thus not nullifying the Crow Tribe’s treaty hunting rights.

Despite these clarifications, significant questions remain about off-reservation hunting. There are ambiguities about when portions of a national forest—or any land—can be considered “occupied” and thus off-limits to treaty-based tribal hunting. Additionally, questions about “conservation necessity”—the conditions under which the state could regulate or prevent tribal hunting outside of reservation boundaries—are still unanswered.

Judge Johnson’s ruling was specific to Ten Bear’s case and did not provide broad answers to these complex issues. The limits of what a court can definitively resolve were evident in his narrow approach, which left many aspects of off-reservation hunting rights open to interpretation and further negotiation.

A Call for Agreement

Cheyenne attorney David Willms believes that Wyoming and tribal residents with treaty hunting rights still lack a clear blueprint for resolving off-reservation tribal hunting. Judge Johnson’s ruling suggested that the state and tribes should work together to strike a balance between treaty-based rights and state sovereignty over natural resources. The Supreme Court’s Herrera v. Wyoming ruling also implied that these two aspects are “necessarily compatible.”

In the five years since the Herrera decision, there has been one significant legislative effort in Wyoming to make off-reservation hunting compatible with state regulations. During the Wyoming Legislature’s 2023 general session, a tribal agreement bill was introduced, granting the governor the authority to negotiate state-tribal pacts for off-reservation hunting and angling seasons outside of Game and Fish Department regulations.

However, the bill faced opposition from tribes like the Shoshone-Bannock, who argued that they were excluded from the drafting process and that the bill was too prescriptive, violating their sovereignty. The legislation ultimately died, leaving tribal hunting rights unresolved and further complicating state-tribal relations.

Since the legislative effort failed, the Wyoming Game and Fish Department has maintained that tribal members without standard permits can be cited for off-reservation hunting violations. Meanwhile, Montana has taken a different approach, instructing its wardens not to cite Crow Tribe members who violate state hunting laws, reflecting a more lenient stance on treaty rights.

Despite the legal and legislative deadlock, Wyoming officials remain hopeful for a negotiated agreement. Governor Mark Gordon emphasized the need for government-to-government negotiations with the tribes to mutually agree on off-reservation hunting, considering it a more positive and productive approach than litigation.

Towards a Resolution

Resolving these issues outside of the courtroom appears to be the best path forward. Both sides need to find common ground and address the concerns that have previously derailed efforts. Lessons from past negotiations, particularly the importance of inclusive and respectful dialogue, are crucial for future success.

The hope is that, with time, both the state and the tribes will be ready to re-engage in discussions and develop a framework that honors treaty rights while ensuring sustainable wildlife conservation. As the dust settles, there is cautious optimism that an agreement can be reached, benefiting both tribal members and the broader community.

What do you think of the legal issues surrounding tribal hunting? Leave your thoughts in the comments below.

 

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