The Eastern Shoshone Tribe has filed an amicus brief with the U.S. Supreme Court supporting a Crow tribe member’s bid to overturn his Wyoming state court conviction for illegal elk hunting, saying his right to hunt on unoccupied lands can’t be erased by statehood or the creation of a national forest.
The Eastern Shoshone argued further on Monday that the lower court’s ruling against Crow member Clayvin Herrera for hunting in Bighorn National Forest upends principles that favor interpreting treaties in tribes’ favor, and could hurt the Shoshone’s rights in accordance with the 1868 Second Treaty of Fort Bridger, because the treaty contains language that is nearly identical to the language in the Crow’s 1868 treaty with the United States.”The Wyoming district court erred in finding that the Crow Tribe’s off-reservation hunting rights — guaranteed under the Treaty of May 7, 1868 — were extinguished upon Wyoming’s statehood or, alternatively, by the establishment of the Bighorn National Forest in 1897,” the Eastern Shoshone Tribe said. “Neither event had the force to abrogate the express treaty right to hunt on the unoccupied lands of the United States.”
On Sept. 4, Herrera urged the high court to overturn his state court conviction for illegal elk hunting in Bighorn, saying the lower court’s ruling could undermine many tribes’ rights under their treaties with the federal government.
In the first brief filed since the high court agreed to hear the case, Herrera said his rights under the 1868 tribal treaty between the Crow and the federal government weren’t cut off when Wyoming achieved statehood, and that the creation of the Bighorn National Forest not only didn’t end the Crow hunting right but actually reinforced it by prohibiting settlement on that land.
Herrera pursued a pack of elk outside the Crow reservation in Montana and into Wyoming in January 2014, which led to him being fined, receiving a suspended jail sentence and having his hunting privileges suspended for three years. The decision was upheld by a state appellate court and then passed over by the Wyoming Supreme Court, triggering Herrera’s October petition for high court review.Wyoming opposed the petition in November, contending that Herrera was barred from relitigating the validity of the Crow hunting right within the state, because the issues raised in the suit are almost identical to those in the Tenth Circuit’s 1995 decision in Crow Tribe of Indians v. Repsis.
In response to a January request from the Supreme Court for the government’s views on the case, the solicitor general urged the high court to grant the petition, saying that the tribe’s hunting rights under the 1868 treaty endured through Wyoming’s statehood and that the creation of the Bighorn National Forest didn’t mean the hunting right was lost.
The Supreme Court agreed to hear the case on June 28.
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