It was January of 2014 when three Crow tribal members, Clayvin Herrera, Captain of the Crow Fish and Game Department, along with his nephew Colton Herrera Jr. and Ronnie Fisher, were hunting elk on the Crow Reservation near the Montana/Wyoming border in the Bighorn Mountains. The Montana/Wyoming border is also the boundary between the reservation and the Bighorn National Forest. The three hunters are all Crow tribal members and each killed an elk. With assistance from Colton’s father and other members of the Crow Tribe, they quartered the elk and packed them home to feed their families and other tribal members over the remaining winter months.
Wyoming game wardens, after seeing photos on a website, became suspicious that the elk were taken in Wyoming. Eight months later, in September of that year, two officers of the Wyoming Game and Fish Department came to the Crow Reservation, read Clayvin his rights, interviewed him, and asked if he would accept a citation because they had no authority on the reservation. Clayvin agreed to take the citations and went to Wyoming voluntarily to defend himself against the charges.
Tribal members can legally hunt elk on the Crow Reservation in January. However the elk season was closed under state law at the time of the hunt in that Bighorn National Forest hunting unit, which is part of ancestral Crow territory ceded by treaty to the federal government by the Crow Tribe in return for a reservation that would be protected from non-Indian settlers. The Treaty of Fort Laramie was signed in 1868, before Wyoming existed, and Article 4 of that treaty guarantees Crow tribal members the off-reservation “right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” In 1897 the Bighorn National Forest was formed by presidential proclamation out of lands inside Wyoming, ceded by the Crow Tribe to the federal government in the Fort Laramie Treaty, and remains lands of the United States to this day.
It’s now over two years since the incident. A motion to dismiss and stay request was denied, and the case against Clayvin went to trial April 27 with Circuit Court Judge Shelley A. Cundiff presiding. The prosecution claimed the three Crow men shot the elk about one mile inside the Wyoming border on the Bighorn National Forest. Because of a prior ruling by the court, Clayvin was not allowed to tell the jury his understanding that if he did unintentionally cross over the reservation boundary into Wyoming, that the Fort Laramie Treaty makes hunting on the Bighorn National Forest legal for members of the Crow tribe despite any state law to the contrary. The jury found Clayvin guilty of taking an elk and helping others take an elk in Wyoming during a closed season. Judge Cundiff sentenced Clayvin to one year of unsupervised probation, suspended his hunting privileges in any state for three years, and fined him $8,000
Under the U.S. Constitution, the 1868 Treaty is the supreme law of the land and at that time Congress guaranteed the right of members of the Crow Tribe to continue to hunt off the reservation on unoccupied lands the tribe had ceded under the treaty to the United States. However, under an 1896 U.S. Supreme Court Case, Ward v. Race Horse, the Wyoming Game and Fish Department maintains that Wyoming statehood, because it came after the 1868 Treaty, nullified the right of Crow members to hunt off reservation on the Bighorn National Forest in Wyoming. Based on a 1999 U.S. Supreme Court decision involving Minnesota’s Mille Lacs Band of Chippewa Indians, which overruled the Race Horse case, the Wyoming court rejected the statehood argument but held instead that the creation of the Bighorn National Forest extinguished the treaty right to hunt.
The Mille Lacs decision by the US Supreme Court, which upheld off-reservation hunting and fishing rights contained in an 1837 treaty, was relied upon by the Crow Tribe in 2013 when the Tribal Legislature passed a resolution telling Montana and Wyoming that tribal members would exercise hunting privileges off the reservation on federal lands within their ancestral hunting grounds. Montana has accepted that resolution but obviously Wyoming has not.
Meanwhile, caught in the middle of disagreeing governments and courts, Clayvin Herrera has been forced to endure a difficult criminal trial in order to vindicate a Crow federal right to hunt like the off-reservation hunting right upheld by the Supreme Court for the Chippewa in its Mille Lacs decision. As explained in the Mille Lacs case, the Supremacy Clause of the U.S. Constitution says that such federal treaties made under federal authority constitutes the supreme law of the land, and that states are bound by such federal treaties unless Congress has abrogated them. Where there is conflict between state law and a federal treaty, the treaty controls.
Clayvin intends to appeal his conviction to a Wyoming appellate court and the legal ruling that he has no off-reservation treaty right to hunt inside Wyoming on the Bighorn National Forest. It’s hoped that a rapid decision to vindicate Clayvin of the charges will soon be forthcoming.