Big Sky Connection


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Eric Tegethoff

October 19, 2018

HELENA, Montana - The U.S. Supreme Court has agreed to hear a case early next year that could have a big impact on Native Americans' hunting treaty rights.

The case involves Clayvin Herrera, a Crow tribal member who pursued an elk from his reservation in Montana into Wyoming and killed it there. Wyoming later charged him for hunting outside the established seasons.

Monte Mills, co-director of the Margery Hunter Brown Indian Law Clinic at the University of Montana, has filed a brief on behalf of other Native American law professors in support of Herrera.

"In defense," Mills says, "Mr. Herrera said, 'Well, I'm a member of the Crow Indian Tribe and I have a treaty right, by virtue of the tribe's treaty with the United States that allows me and authorizes me to hunt in certain areas, including on open lands owned by the United States.'"

The Wyoming court rejected this defense and Herrera was convicted and fined. Mills says Herrera's defense is based on the Laramie Treaty of 1868, which gives tribal members the right to hunt on unoccupied land.

Wyoming says that treaty became invalid when it became a state.

According to Mills, the Supreme Court has made conflicting rulings on how treaty rights are applied. He says this case could affect Native Americans and create a new precedent if the justices decide to analyze treaty rights in some new way.

"The questions of state authority and treaty interpretation," says Mills, "there's a long string of Supreme Court precedent that deal with those questions. And so, if the Court were to do something different in this case, that's really where it might have impact."

The Supreme Court will likely hear the case in January 2019 and announce its decision next summer.