Wyoming governor seeks legislative authorization to make off-reservation hunting agreements with Tribes

    A legislative committee advanced a bill proposal this week that would let Wyoming Gov. Mark Gordon negotiate and enter into agreements with Tribes regarding off-reservation hunting, fishing, trapping, and gathering rights.

    House Bill 83 was drafted in the wake of the 2019 U.S Supreme Court decision Herrera v. Wyoming, which determined that Tribal hunting rights outlined in federal treaties were not extinguished when Wyoming became a state.

    The decision “made some pretty significant changes to major components of (what we’ve) been doing for the last hundred-and-some years since Wyoming achieved statehood,” Wyoming Game and Fish Department director Brian Nesvik told the committee.


    “That’s why we’re here today,” Nesvik said. “We feel like we need to have some discussions about a bill that will put us in a position to be proactive and not continue to allow litigation to shape the state’s policy and how we deal with this.”

    Eastern Shoshone Tribe

    The Eastern Shoshone Tribe approached Gordon’s office last year to discuss the situation, Wyoming Rep. Lloyd Larsen, R-Lander, said, and both groups feel HB 83 represents “an appropriate way to move forward.”

    “We appreciate … the Eastern Shoshone Business Council reaching out and working with the state to move this forward,” Larsen said. “It was really a significant effort, and one that we appreciate.”

    Kit Wendtland, special counsel for Gordon’s office, echoed Larsen’s appreciation that the Eastern Shoshone Tribe was willing “to work with us on an agreement like this.”


    “It is much better to be proactive and make a good agreement than to wait and risk a bad court decision,” Wendtland said. “The governor really appreciates his collaborative relationship with both Tribes and really respects the open line of dialogue he has (with them). When you have a partner like that … it is much better to take advantage of that relationship to work with them and to come to a good agreement instead of fighting it out in court.”


    Committee members asked several questions about the details of the off-reservation hunting agreement that could result from HB 83 – a bill that Wyoming Rep. Bob Nicholas, R-Cheyenne, said “kind of takes our process and turns it upside down.”

    “Typically, we (the Legislature) are responsible for the laws of Wyoming,” Nicholas said. “With this draft bill, we basically, as the Legislature, assign that responsibility – or we abdicate it – to the governor to work directly to develop laws … that then have not been approved by the Legislature.”


    He suggested the bill be modified to require final ratification of the off-reservation hunting agreement by the Legislature.

    But Wendtland said that move “could burden the process in a way that could hurt our ability to speak effectively and efficiently with Tribes.”

    “We’ve worked really hard to build our relationship with the Eastern Shoshone Business Council, and with the Northern Arapaho Business Council as well,” Wendtland said. “I worry that adding another step right now at this stage would create friction.”


    Eastern Shoshone Business Council Vice-Chairman Michael Ute also pushed back on the idea of requiring legislative ratification, reminding the committee that “this is a federal treaty right that was there before the State of Wyoming even existed.”

    “If we add more things to this process of the agreement, are you putting in roadblocks so that the Tribe cannot exercise its treaty right effectively?” Ute asked. “I fear that would lead to immediate litigation, (so) I would have to disagree with adding any more steps.”


    Nicholas acknowledged that “it’s important for us to recognize (the) fundamental rights that have to be resolved as a result of that case, as the law of the land at this point in time.”

    He added, however, that “we have to protect our rights the same way you are protecting (Tribal) rights,” and “if litigation is necessary” to resolve the situation, “that’s fine.”

    But Wendtland pointed out that the issue already “has been litigated.”

    “It’s been litigated all the way up to the Supreme Court,” he said. “That litigation has happened. And I think the uniqueness of that ruling and the breadth of the sea-change that it represented (is) what puts us in this unique situation where it is a bit of a departure from the normal legislative process.

    “But I think it’s one that’s merited by the situation.”


    HB 83 received “very strong support” this week from the Wyoming Wildlife Federation, with government affairs director Jess Johnson of Lander noting that the Legislature isn’t usually involved in “setting the minutia” of hunting regulations in the state.

    “This is an incredible opportunity,” Johnson said. “This is a really cool, precedent-setting thing, (and) the Wyoming Wildlife Federation stands staunchly in support. … We’re here for every step.”

    Fort Hall Business Council Secretary Claudia Washakie opposed the bill, however, speaking as a representative for the Shoshone-Bannock Tribes, which also have treaty-established hunting rights in Wyoming.

    Those rights were not “granted” to the Tribe by the federal government, Washakie explained – they are “a reservation of rights by Tribes,” which have “sovereign authority” to regulate their own hunting, fishing and gathering activities “free from interference from state regulation.”

    “Tribes are not required to externally collaborate with any agency prior to implementing any activity protected by a reserved treaty right,” Washakie said. “Quite literally, the treaty signed between the U.S. and the Tribe is the agreement. (It’s the) supreme law of the land, pre-empting state laws to the contrary.”

    HB 83 “places additional barriers on self-governance,” Washakie said, and it “would limit Tribes’ sovereignty over the management of the reserved right to hunt in Wyoming outside the exterior boundaries of reservations, rather than acknowledging Tribes’ inherent sovereignty to manage treaty hunting.”

    “(Our) Tribes have never entered into any agreements that would constrain or otherwise impede our management authority under the treaty, and we will not engage in any negotiated agreement as laid out in the proposed legislation,” she said. “(We) remain unconvinced that the proposed legislation is necessary given the status of inherited self-governance over treaty reserved rights and would recommend additional fact-finding on this issue.”

    Nicholas said Washakie’s comments represent “some of the thunderclouds on the horizon” with regards to HB 83.

    “If one Tribe … doesn’t believe that this current language is necessary and believes that they have operational rights now in Wyoming, and if that moves to litigation, we’ll be having one discussion with one Tribe and in court battles with (another),” he said.

    “I think that’s already the problem,” Wendtland replied. “That status quo already exists, and I think the ability to do an agreement like this, even if it’s just one right now … helps us get at that sooner rather than later.”

    The House Appropriations Committee approved HB 83 unanimously on Tuesday without any further discussion.

    The bill was placed on General File in the Wyoming House of Representatives later that day, and it appeared near the top of the list for consideration by the Committee of the Whole on Thursday afternoon.


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