Secretary of the Interior Ryan Zinke, right, greets Chairman Alvin Not Afraid, Jr. of the Crow Tribe prior to a Senate Committee on Indian Affairs hearing in Washington, D.C., on March 8, 2017. The hearing was Zinke's first after joining the Trump administration. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Trump administration backs Crow hunter in tribal treaty rights case

A citizen of the Crow Tribe is getting a big boost from the Trump administration in a treaty rights dispute pending before the nation's highest court.

Clayvin Herrera was convicted in Wyoming in 2016 for hunting in the Bighorn Mountains. Though the area is off the reservation, he argues that it is covered by an 1868 treaty with the federal government and thus out of the state's reach.

A brief submitted by the Department of Justice (DOJ) on Tuesday supports that premise. The tribe's treaty rights on ceded lands were not terminated when Wyoming became a state in 1890, government attorneys told the nation's highest court.

"The 1868 treaty did not provide for the termination of the tribe’s hunting right upon the admission of a state," the 27-page document reads. "Nor was that right repealed by Wyoming’s statehood act."

The brief represents the Trump administration's long-awaited entry in the case. In January, the U.S. Supreme Court issued what is known as a CVSG, or a call for the views of the Solicitor General, to find out what the federal government thinks about the dispute.

DOJ's favorable stance of the Crow treaty could in fact prove influential. The Solicitor General is often called the "tenth justice," Native American Rights Fund attorney Joel Williams told tribal leaders earlier this year, because of the potential for a CVSG brief to influence the nine members of the Supreme Court.

But since Herrera's case involves Indian issues, it may not even matter. In a law article and a post on the influential Turtle Talk blog, professor Matthew L.M. Fletcher observed a curious development -- whenever DOJ expresses support for tribal interests in a CVSG brief, the tribal party's chances of success go down.

Cloud Peak in the Bighorn Mountains. Photo: Ttharp23

For Herrera, who has worked as a game warden for his tribe, a continuation of that pattern would mark the end of his battle. He filed his petition, known as Herrera v. Wyoming, last October in hopes of affirming his right to hunt as his ancestors envisioned.

"As this very case makes clear, whether petitioner’s family has food on the table during unforgiving Montana winters depends on his ability to exercise the off-reservation hunting rights long ago granted to his tribe," Herrera's attorneys wrote last October.

The state of Wyoming, unsurprisingly, doesn't want the justices to hear the case. Prior rulings, including one from the 10th Circuit Court of Appeals, have already confirmed that Crow citizens must comply with state laws when they hunt off the reservation, Attorney General Peter K. Michael (R) wrote in opposition to Herrera's petition.

"The hunting rights of the Crow Tribe and its members in Wyoming have been settled by the federal courts for almost a quarter of a century," the November 2017 brief read.

That 10th Circuit case is known as Crow Tribe of Indians v. Repsis. In it, the court described the tribe's off-reservation rights as "temporary" -- they expired when Wyoming became a state, the 1995 decision read.

The court went further and held that "unoccupied lands" mentioned in the Crow treaty are no longer "unoccupied" due to the creation of the Bighorn National Forest by the federal government. Herrera's disputed hunt took place in the national forest, as did the hunt at issue in Repsis.

"In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on 'unoccupied lands;' the lands of the Big Horn National Forest have been 'occupied' since the creation of the national forest in 1887," the 10th Circuit concluded. "Therefore, we hold that the tribe and its members are subject to the game laws of Wyoming."

More than 20 years after Repsis hit the books, the DOJ brief calls it wrongly decided because it is based on a faulty premise -- that tribal treaty rights are "irreconcilable" with state rights. And since the Wyoming court accepted Repsis as valid in Herrera's case, that decision is "incorrect" too, Solicitor General Noel J. Francisco, an appointee of President Donald Trump, wrote.

"The 'starting point' for interpreting a treaty 'is the treaty language itself," the brief asserts, quoting from a 1999 Supreme Court decision which upheld the off-reservation treaty rights of the Mille Lacs Band of Ojibwe.

“The treaty must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians," it continues, again quoting from Minnesota v. Mille Lacs Band of Chippewa Indians.

Should the Supreme Court grant Herrera's petition and accept DOJ's view of the treaty, it would have vast implications for Indian Country, not just the Crows. Leaders of other tribes are closely following the case, believing it could affect their off-reservation rights too.

During the annual conference of the National Congress of American Indians last October, Chairman Nathan Small of the Shoshone-Bannock Tribes said the Fort Bridger Treaty, signed by his people's ancestors in 1868, includes nearly identical language to that of the Crows. He expanded on that view in testimony to Congress earlier this month.

"Subsequent to the treaty, the tribes ceded hundreds of thousands of acres to the U.S. to facilitate settlement of large portions of the reservation in a series of cession agreements; however, the tribes expressly reserved specific usufructuary rights for lands remaining in the public domain, including retained priority rights to hunt, fish, gather, graze, and cut timber for personal use," Small told the House subcommittee in charge of federal funding for Indian programs.

The next step is for the Supreme Court to consider Herrera's petition at a closed-door conference. One hasn't been scheduled as of Thursday, according to Docket No. 16-1498.

If the justices grant the petition, arguments would most likely take place after the court convenes a new term in October.

The CVSG filed in Herrera v. Wyoming is the second one from the Trump administration in an Indian law case. Just last week, DOJ urged the Supreme Court to hear Washington State Department of Licensing v. Cougar Den, a treaty rights case involving a citizen of the Yakama Nation who runs a fuel station on the reservation in Washington state.

But unlike Herrera, the CVSG brief in Cougar Den goes against tribal interests. Government attorneys are arguing that the 1855 Yakama Treaty -- which specifically guarantees "free access" to public highways -- does not shield tribal citizens from the state's gasoline tax.

The Cougar Den brief was more than seven months in the making. It was submitted barely a day after Indianz.Com drew attention to the long wait for the Trump administration's views.

The Trump team acted much quicker in Herrera, filing the brief after just four months. It helps that the Crow Tribe often has the ear of a key member of the Cabinet -- Secretary Ryan Zinke, the leader of the Department of the Interior.

"The nations, they're sovereign," Zinke said in Congressional testimony last month when asked about his views on tribal consultation and a controversial reorganization at Interior.

And though Zinke, nor Interior, are mentioned in the Herrera brief, it shares his view that public lands can be used for multiple purposes, such as hunting.

"The U.S. Forest Service recognizes that certain tribes may have 'off-reservation treaty rights,including 'rights to hunt,' on lands within the National Forest System," the brief states. The U.S. Forest Service is an agency of the Department of Agriculture.

Further down the line, a third CVSG brief is due in Osage Wind v. United States, a case that impacts the trust resources of the Osage Nation. The Supreme Court made the call just last week.

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