Dispute continues over Crow off-reservation hunting rights
Kelli Heitstuman-Tomko

Date posted: January 31, 2015


SHERIDAN — A few members of the Crow Nation are gearing up for a pitched battle in an arena where, historically, they have not done so well.

Colton and Clayvin Herrera and Ronnie Fisher were cited in October for poaching elk in January 2014 near Eskimo Creek in the Bighorn Mountains. Their defense, they have said, will be that off-reservation hunting rights are outlined in the 1868 Treaty of Laramie with the Crows.

Article 4 in that treaty gives Indians living on the reservation the right to hunt “…the unoccupied lands of the United States so long as game may be found thereon…” and as long as the Native Americans maintain peace with those living near the hunting districts.

The Crow Nation has traditional off-reservation hunting grounds in Montana, Wyoming and South Dakota. According to Leslie Plain Feather, an official in the Crow Nation’s legislative branch, Wyoming has its own ideas about Article 4.

“We don’t really have problems with Montana or South Dakota,” Plain Feather said. “It’s always Wyoming.”

In May 2013, the legislative branch of the Crow Nation filed a joint action resolution that they would fully exercise their right to off-reservation hunting rights pursuant to the 1868 Treaty with the Crows. Plain Feather said the tribe has sent notices of the resolution to Wyoming, Montana and South Dakota as well as to President Barack Obama, the U.S. Attorney General and the secretaries of interior and agriculture. Plain Feather said no one has responded to the notices yet.

Wyoming Game and Fish officials at the district office in Sheridan had no comment on the dispute other than to say they would continue to enforce Wyoming laws and regulations.

Indian treaties in the West varied little and Article 4 of the 1868 treaty with the Crows is identical to the article in several other treaties with other tribes, including the Bannocks who share a reservation with Shoshoni Indians in southeastern Idaho.

The treaty with the Bannocks was signed July 3, 1868. Traditional Bannock hunting grounds stretched into the area that became the Territory of Wyoming only two weeks after the treaty was signed. Though provisions of the act of setting up a new state said they would ensure that the treaties would remain in place, a Bannock Indian named Race Horse was arrested for hunting in Uinta County in October 1868, just four months after both the treaty with the Bannocks and the Territory of Wyoming were put into place.

It might seem odd that a 120-year-old legal case is be hanging over the heads of Fisher and the Herreras, but the judges of the Circuit Court of the United States for the District of Wyoming came to a decision that is still being fought over. The decision of that court was that the terms of Article 4 of the treaty with the Bannocks had been “perishable and intended to be of limited duration.”

But no suggestion of limitation is mentioned in the treaty with the Bannocks and given that the language in that treaty is identical to the language in the 1868 Treaty with the Crows, some say that the Crow treaty is also meant to last into the present day.

One hundred years after the decision made by the courts in the Race Horse case, Thomas L. Ten Bear and the Crow Nation filed an appeal with the 10th U.S. Circuit Court of Appeals for the District of Wyoming after Ten Bear’s conviction for killing an elk in the Bighorn National Forest in November 1989. Ten Bear and the Crow Tribe named the Wyoming Game and Fish Department and the Wyoming Game and Fish Commission in the suit, and argued the rights of the Crow Tribe to hunt in the national forest as part of the 1868 Treaty with the Crows. The state of Wyoming evoked the 11th Amendment to the U. S. Constitution — a state’s sovereign immunity against litigation from the citizen of another state or nation — and the suit was instead filed against WGFD director Chuck Repsis and commission director Francis Petera, individually.

The Crow Tribe argued that the Race Horse decision should not control the decision of the Ten Bear appeal. The doctrine of the decision made by the court in Race Horse had been overruled by the Supreme Court in other cases concerning the rights of tribes to hunt and fish on traditional grounds in other states. In United States v. Winans, the court recognized that the United States was aware that private ownership of lands formerly in the hands of the Indians had been forseen and the treaties stood to help the Indians preserve their way of life, and the formation of states in no way stood in the way of the treaties.

But the 10th U.S. Circuit Court of Appeals for the District of Wyoming disagreed. In their decision against Ten Bear, they stated that the Crow Tribe’s right to hunt off-reservation as laid out in Article 4 of the 1868 Treaty of Laramie with the Crows was repealed by the admission of the state of Wyoming to the Union.

The 10th Circuit also held that state management of wildlife was irreconcilable with any tribal treaty rights to hunt off-reservation and that even if that right did still exist, the national forest land was not “unoccupied.”

More than 20 years after their last defeat, Fisher and the Herreras will renew a battle that has been waging for more than a century and is not quite ready to end.
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Let them do their appeals from behind bars!!!

And they like to call themselves nature people?
Indians are rapists of the natural world
They want it all and now
There is no such a thing as conservation in their DNA
White man might have been just as bad once upon a time but he put restrictions on himself
Indians never will

If the courts decide not to prosecute, does that mean that my wife can go hunt elk anytime she wants to (she is 1/4 crow Indian)? Must be nice to do what ever you want. The Ojibwe here is Wisconsin take one of our elk each year, absolutely pathetic. Native Americans can do what ever they want on their reservations. I am under firm belief that they should have to follow state laws when they leave it.

What were our ancestors thinking when they decided that the indians wouldn't be assimilated into the American way of life, but would instead be able to live under their own rules on the reservations?

The treaties of America don't mean sh!t. Never have, never will. The Crows were stupid to think otherwise.

The crow Indians are a joke and I worked personally with them on the crow reservation. they are the biggest bunch of bandits and poachers I know. There fish and game department is ridiculous. They are least conservationist among us. The reservation should be dissolved and make them fend for themselves

In Ak I don't think I'm exaggerating to much to say the natives do a reasonable job at respecting and helping in managing wildlife resources. Sure there are instances and examples of poor performance but all in all, most game is for the table and not wasted.

One of the huge issues that we seem to have gotten right in Ak is the lack of the reservation system. Up here there is native land, but its not sovereign so theres no "we get to do what we want on this side of the border!" and then they try to extrapolate.

Here, fish and game is managed and enforces by the state and fed's, no exceptions.