Supreme Court Justice Kennedy Retiring in July

[antlerradar]

What obligation do the tribes have to renegotiate treaties? It’s a legally binding document.

These treaties were not written with the tribes best interest in mind. There are lots of things in these treaties that the tribes would find undesirable.

I did a quick look on the net and found a cliff notes version of this treaty. ( I know you can't trust everything on the web) One of the restrictions places on the tribes dealt with the travelers across Indian lands. If the tribe can invoke treaty rights to gain unrestricted hunting on unoccupied lands I would think that non tribal members could invoke treaty rights to cross Indian lands to access the unoccupied lands. There are road that cross the Crow Res that provide better access to the Bighorns and likely in the Pryors too.

I would for sure want to read the actual treaty, not the cliff notes version and maybe have a good lawyer handy before I tried it but it is something to think about.

 

[Deleted member 28227]

What obligation do the tribes have to renegotiate treaties? It’s a legally binding document.

These treaties were not written with the tribes best interest in mind. There are lots of thinks in these treaties that the tribes would find undesirable.

I did a quick look on the net and found a cliff notes version of this treaty. ( I know you can't trust everything on the web) One of the restrictions places on the tribes dealt with the travelers across Indian lands. If the tribe can invoke treaty rights to gain unrestricted hunting on unoccupied lands I would think that non tribal members could invoke treaty rights to cross Indian lands to access the unoccupied lands. There are road that cross the Crow Res that provide better access to the Bighorns and likely in the Pryors too.

I would for sure want to read the actual treaty, not the cliff notes version and maybe have a good lawyer handy before I tried it but it is something to think about.

Not to mention OG companies traversing the res to get to federal leases for development.

 

[JLS]

If the tribe can invoke treaty rights to gain unrestricted hunting on unoccupied lands I would think that non tribal members could invoke treaty rights to cross Indian lands to access the unoccupied lands. There are road that cross the Crow Res that provide better access to the Bighorns and likely in the Pryors too.

I am not saying there would never be motivation for the tribes, I am merely stating there is no obligation for them to renegotiate their treaties. Also, considering the importance of hunting to Native culture, it would take a lot for them to bargain any of that away. The recent decision in Washington will likely encourage tribes to fight these decisions tooth and nail.

I too have been wrong many times before, and I think it’s a coin toss or slightly better the Crow tribe wins this case. However, it’s also been a number of years since I read the Crow treaty, so there is significant opportunity for CRS to kick in.

 

[bobbydean]

If the land was unoccupied land at the signing of the treaty and now is state land, a renegotiation should be in order!

 

[Gr8bawana]

If the land was unoccupied land at the signing of the treaty and now is state land, a renegotiation should be in order!

Yes! Let's see how much more the U.S. government can screw over native Americans in modern times.

 

[OriginalOscar]

IMO, Wyoming took an unnecessary risk pushing the issue. If it doesn't go their way, the risk is a huge increase in tribal hunting. That's the trouble with taking this stuff to court...the court is forced to choose a winner and a loser. Again, IMO, there are better ways to go about things.

You mean the unnecessary prosecution of poaching?
- https://www.washingtonpost.com/nati...ory.html?noredirect=on&utm_term=.20d3be35bfb4

Not understanding the hating on Wyoming. Seems Wyoming is moving the ball on a couple items. After initial loss of their wolf management plan they won that case and also leadership of reestablishing Grizzly hunts.

This case is worth the fight and the article makes a good point about states rights.

Again they are poachers and need to be prosecuted to the extent the law allows. Good on Wyoming!

 

[BuzzH]

You mean the unnecessary prosecution of poaching?
- https://www.washingtonpost.com/nati...ory.html?noredirect=on&utm_term=.20d3be35bfb4

Not understanding the hating on Wyoming. Seems Wyoming is moving the ball on a couple items. After initial loss of their wolf management plan they won that case and also leadership of reestablishing Grizzly hunts.

This case is worth the fight and the article makes a good point about states rights.

Again they are poachers and need to be prosecuted to the extent the law allows. Good on Wyoming!

You seem unable to understand the written English Language.

Nobody is "hating" on Wyoming.

Its your opinion that this case is worth the fight, its mine that it is not. I base my opinion on the fact that charging tribal members on 3 elk shot near the WY/MT border is not worth the risk in losing at the Supreme Court level. In particular when, as stated in the article you linked to, the 9th circuit and many lower courts have ruled that tribes/tribal hunters have the right to hunt on NF and other Federal lands off the reservation. Lets not also forget that treaties are binding, legal documents that expressly spell out the rights for the tribes to hunt, not only on reservations, but also off.

Again, for the second time, so you aren't confused, IMO, taking this to the Supreme Court is not worth the risk of almost unfettered tribal hunting on all NF lands in Wyoming, if the USC decides in favor of the tribes. Which, is at best, a coin flip as per evidence provided in this discussion.

What happens if Wyoming loses? I don't think many will be saying "Good on Wyoming!" since that would not only open up the floodgate in Wyoming, but also most of the West.

I also didn't hear much "Good on Wyoming!" from Montana and Idaho hunters on the way Wyoming handled the wolf issue, which delayed delisting in those states several years.

 

[appaloosa]

Herrera wasn't exercising his "treaty rights" to hunt elk in Wyoming, he was POACHING. He shot a bull elk in the middle of winter, off the reservation, took the head and backstraps, and left the rest. To suggest that the State of Wyoming shouldn't file criminal charges against him because of a potential Supreme Court fight is completely obtuse.

 

[MTGomer]

Herrera wasn't exercising his "treaty rights" to hunt elk in Wyoming, he was POACHING. He shot a bull elk in the middle of winter, off the reservation, took the head and backstraps, and left the rest. To suggest that the State of Wyoming shouldn't file criminal charges against him because of a potential Supreme Court fight is completely obtuse.

I agree with Buzz that Herrerra will likely prevail, but I agree with you that it certainly meets my definition of poaching.

Natives have a treaty right to do these hunts. Whether limits can be placed on them to make them true subsistence hunts, instead of wintertime trophy hunts, i don’t know. You would think some limits could be placed, just like he limits on speech, guns etc and their rights.

 

[rmauch20]

Poachers need to be charged and prosecuted. When They wipe out everything in their hunting area that tells me everything I need to know. I don’t care if he is a native or from mars. I am sure his tribe pushed off or destroyed the people that were there before thier arrival.
If it is correct that he only took the head and back straps, I don’t see how anyone can defend his actions.

 

[TheTone]

Going to be some animal herds in for a world of hurt if he prevails. Living around a tribe with wide reaching off reservation hunting rights its amazing to see the amount and quality of animals some members are killing almost constantly.

 

[BuzzH]

Yep, and why the risk/reward over prosecuting for 3 bull elk isn't worth it.

People have tunnel vision and their prejudice drives poor decision making.

I'm not inclined to risk my wildlife over a flip of the coin. If this doesn't go Wyoming's way, those 3 bull elk wont be a drop in the bucket. Wyoming is either going to look like a hero or goat, and its all going to be decided by 7 people.

 

[rmauch20]

He didn’t do it as part of a tradition or his culture, he’s a poacher. Everything is open to negotiation. If they don’t have to follow federal, state, or local laws and what the Hells the point.

 

[Straight Arrow]

Everything is open to negotiation. If they don’t have to follow federal, state, or local laws and what the Hells the point.

Nope; according to the treaty the negotiation is over. If the treaty were to prevail in court, then there is NO violation of federal, state, or local laws. That is the point previously made. Treaty validation would set an undesirable legal precedent which would likely increase the "poaching".

 

[rmauch20]

So allow poaching to stop more poaching. Got it. Either way everyone that’s not in a tribe loses.

But I can’t corner hop.

 

[Straight Arrow]

But I can’t corner hop.

Now there's a valid legal issue (sans treaty) that would be an interesting question to pose to a SCOTUS potential justice. But similarly the legal precedent resulting from a court decision may not be to your liking. Private property rights would probably "trump" your desire to corner hop during this political era.

 

[VikingsGuy]

He didn’t do it as part of a tradition or his culture, he’s a poacher. Everything is open to negotiation. If they don’t have to follow federal, state, or local laws and what the Hells the point.

Treaties are also "law" in the US. So we have one side's view of the what the treaty means and and whether it trumps state wildlife regulations, and we have the other side's view on the same questions. If the tribe's view on these two issues is determined to be the correct view then that is the law - and his actions were fully lawful and he is not a poacher. If the state's view is determined to be correct then that is the law and he is a law breaking poacher. The label poacher is meaningless at this point - it is still to be decided (innocent until proven guilty).

That aside, as Buzz points out, sometimes parties decide to lose a battle or two to "win" the war. The government does this all the time in the criminal arena - if they have a law they like that may be legally suspect, and a local court rules against them, they often don't appeal because then they can keep using their interpretation against others (and dare folks to fight them in court each time) as trial court rulings are quite limited. I don't like the technique, but it is part of the game. Whether WY should just withdraw the conviction to "moot" the appeal and thereby make future defendants fight through to SCOTUS on their own nickel and at their own risk is a fair question. My guess is that in this case, given the near future make up of the court, it was a fair gamble. And if they lose, Congress can fix it -- this whole "states govern hunting on federal lands" approach has it's short comings and dealing with tribal lands is one of them.

 

[VikingsGuy]

Now there's a valid legal issue (sans treaty) that would be an interesting question to pose to a SCOTUS potential justice. But similarly the legal precedent resulting from a court decision may not be to your liking. Private property rights would probably "trump" your desire to corner hop during this political era.

Or the government could get a spine and use eminent domain to take necessary easements into desirable but otherwise "locked" public lands. Wouldn't be feasible for every parcel, but some targeted action could open some larg-ish areas. They could also set a de minimis penalty for trespass by corner crossing to public lands and pre-empt state trespass law.

The courts are a lousy way to make law. There are almost always better legislative options, but given the current state of grid lock, we all look for judge made solutions - time for citizens to demand legislators start legislating rather than blocking and thereby leaving to courts.

 

[Straight Arrow]

Or the government could get a spine and use eminent domain to take necessary easements into desirable but otherwise "locked" public lands.

Shhhsh ... don't give them ideas, as this administration would employ eminent domain to corner hop with bulldozers to extract resources off public lands.

 

[Topgun 30-06]

Yep, and why the risk/reward over prosecuting for 3 bull elk isn't worth it.

People have tunnel vision and their prejudice drives poor decision making.

I'm not inclined to risk my wildlife over a flip of the coin. If this doesn't go Wyoming's way, those 3 bull elk wont be a drop in the bucket. Wyoming is either going to look like a hero or goat, and its all going to be decided by 7 people.

FYI there are nine Supreme Court Justices, not seven, although seven constitutes a quorum!