No. 17-532, Wyo. Dist.
Preview by Samuel E. Meredith, Senior Online Editor
In 2014, Clayvin Herrera and a group of other individuals from the Crow Tribe went elk hunting. Although the hunt began on the Tribe’s reservation in Montana, the group eventually entered the Bighorn National Forest in Wyoming where they shot a number of elk.
Because the hunt took place out of season, Wyoming filed criminal charges against Herrera. In response to these charges, Herrera claimed that he was exempt from criminal liability thanks to a nineteenth-century treaty granting the Tribe certain hunting privileges in what is now the Bighorn National Forest. The trial court disagreed with Herrera. The unsuccessful appeals that followed have led Herrera to seek relief from the Supreme Court.
The basic question before the Court is whether the treaty-based rights on which Herrera relies are still in force. Wyoming urges that the government’s actions since the treaty’s ratification have vitiated the hunting privileges granted in the treaty. Wyoming further claims that the question presented in this case was litigated and resolved in favor of the state in Crow Tribe of Indians v. Respis, 73 F.3d 982 (10th Cir. 1995). In light of this result, Wyoming argues, Herrera’s claim is precluded. Moreover, Wyoming argues, even if Herrera’s treaty-based defense is not precluded, it should nonetheless fail because “courts have held that . . . [similarly-worded grants of] off-reservation hunting right[s] ha[ve] expired.”
In response, Herrera argues that the government’s post-ratification actions, such as the acceptance of Wyoming’s application for statehood and the creation of the Bighorn National Forest, had no effect on the Tribe’s hunting rights. Herrera further argues that Respis does not preclude his defense because “there has been an intervening ‘change in the applicable legal context.’” Brief of Petitioner at 46–47, Herrera v. Wyoming, No. 17-532 (U.S. filed Sept. 4, 2018) (quoting Bobby v. Bies, 556 U.S. 825, 834 (2009)). According to Herrera, this change came in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), a case in which the Court “effectively overrule[d]” a precedent crucial to the holding in Respis. Brief of Petitioner at 30, 48, Herrera v. Wyoming, No. 17-532 (U.S. filed Sept. 4, 2018) (quoting Mille Lacs, 526 U.S. at 219 (Rehnquist, C.J., dissenting)).