U.S. supreme Court case - Big decision ahead

[idahohuntr]

I think it is worth noting that while this particular case and its potential effect is somewhat new territory for Wyoming and even Montana - if you look to Tribes in the Pacific Northwest this is business as usual. Many tribes in Washington, Oregon, and Idaho have hunted unoccupied state and federal lands in these states for a long time - and because they are exercising their treaty right they most certainly do not pay any attention to state rules and regulations. These tribes have slightly different treaty language than the Crow treaty, but as far as hunting goes the language is very similar. The statement put out by Wyoming's Governor is not helpful in my view. Wyoming attempting to cite more tribal members hunting off-reservation as the Governors statement implies will not end well and will only further deteriorate relationships between the State and Tribe. Look to how Tribes in the Northwest responded to state fishing regulations in the 60's and 70's in WA and OR if you want a peek at how things could go if WY persists in arresting/citing tribal members.

While the SCOTUS ruling remanded the case back to State court - the reality is WY has no chance in winning an argument that significant portions of the Bighorn NF are 'occupied' or that they could regulate tribal hunting as part of conservation necessity. It is my sincere hope that WY will abandon this losing strategy and engage Tribes in a collaborative manner to work as co-managers of a resource everyone cares about. As a hunter I have occasionally been frustrated when I draw a coveted tag in Idaho, scout my butt off, then watch as several tribal members hunt the unit I drew for 2 weeks leading up to the opening of my state regulated season. Part of the reason Tribes target some of these units is because the hunting is better...its not a general season unit for state hunters. In Washington, there are some Tribes and tribal members that aggressively harvest bucks and bulls and this clearly limits the number of tags and opportunity available to state hunters.

Overall, I see Tribal/State management of wildlife a bit like two countries with a large stockpile of nuclear arms...each side could absolutely wreak havoc on wildlife populations if they so choose...but its that "red button" that I think can bring both sides to the table to ensure well managed wildlife populations. The Crow Tribe now clearly has the legal precedent to descend on any number of limited entry units in Wyoming and shoot the heck out of the elk before any state hunters get a chance...in turn, the state could say to hell with limited entry units and just turn every good unit into a general season, making them less desirable for tribal hunters to target.

I guess in all my rambling I'm hoping cool heads prevail and everyone sees the value in co-management - the alternative is a whole lot less opportunity and quality for everyone. The WY Governor's statement is not helpful in pursuing this mutually beneficial path.

 

[antlerradar]

Rob Bishop is smiling today. Won't be long and WY will join UT and be advocating for PLT

 

[Thomas11]

I get the idea of treaties. And he can hide behind that. But at the end of the day, he started out hunting in MT and crossed state lines, killed elk outta season, and left the meat to waste correct? I do not think this is honoring the treaty. I’ve read a ton about this and to me it is total nonsense. There has to be some common sense here. And the idea that tribes need special treatement is crazy. There is nothing that says they have to live or exist in their tribal land. They have every chance and opportunity to live their lives and go to college or whatever they want like the rest of Americans. This country was founded on suppressed and immigrant ppl. I see no reason that in 2019 we should be giving anyone group special privileges. I know that’s a diff topic. But this case in my opinion and the decision by the Supreme Court is a joke. He was hunting outta season, across state lines, no intentions of even taking the meat, it had nothing to do w subsistence living evidenced by him leaving the meat so I don’t even see what he did was hunting? That’s just killing. I don’t care if he was Indian, white , or black! What he did was wrong and he hid behind some treaty! Does it not matter anymore of what is wrong or right? We can say all this BS about treaties, laws, etc. but what he did was just wrong? Does that not matter? And how do we fix it? There needs to be some common sense here and how to affectively manage these treaties vs game management. But what I do know is he wasn’t trying to subsistence live off the game he took based off what I’ve read. I might could be a lilttle more understanding otherwise.

 

[Irrelevant]

BF I appreciate your thorough response but you point to a lot of things that aren't in fact stagnant and the way I read it mix apples and oranges a bit. Our society is actively engaged in the idea of revamping the mining law and working to force access through land grants, the only reasons they haven't been revamped are due to the extreme money in lobbying thrown at the effort. Water rights are constantly evolving, here in WA we went from riparian to western water law in the early 1900s, a process in which people did lose their rights, then in the 1980s they started issuing fish protection water rights (instream flows), and the tribes have argued that they supersede farmers, so that farmers can be shutoff during droughts even if they have THE most senior water right. Then the municipal water law got enacted basically rewriting the law for a certain segment of society.

And when you talk about giving land back from the homestead era that's apples and oranges. Those in-favor of amending the treaties aren't saying we should take back the last 100+ years of elk meat, just that going forward they should play by the same rules as everyone else. You can maintain the right the hunt unoccupied lands and still be forced to hunt during season. Just like I can divert water for irrigation so long as there's enough for the salmon.

And if we're talking about the unholy act of breaking promises, shoot, just look at all the promises and "deals" the US makes now and then backs out of them during the next election cycle. If you're livelihood is based on trade relations, a large international agreement is reached you structure your business around it, then 4 years later someone you didn't vote for backs out of it and all of a sudden your products at smacked with huge tariffs and you can't turn a buck, are't you're just as f-ed as not being able to freely hunting unoccupied lands to feed your family?

And big picture wise, sure we can all agree that the tribes were hosed in the worst way but was it worse that what Germany did to the Jews? They paid 3 billion marks for that, straight up over 14 years, that's a ton of money but in the end there's a finality that allows both sides to move forward. That is the foresight that wasn't seen in the 1800's with the tribes. One that could be gained through the purchase of treaty rights as some have mentioned.

The entire idea of the United States federal government and constitution was founded on the idea that it should be able to adapt to societal changes, adapt to the future, if societies don't adapt they die. I don't like the idea of breaking promises, but I equally don't like the idea of being held hostage to an old text that undermines the very nature of the US written by people who couldn't have imagined what life's like today.

 

[Thomas11]

I think it is worth noting that while this particular case and its potential effect is somewhat new territory for Wyoming and even Montana - if you look to Tribes in the Pacific Northwest this is business as usual. Many tribes in Washington, Oregon, and Idaho have hunted unoccupied state and federal lands in these states for a long time - and because they are exercising their treaty right they most certainly do not pay any attention to state rules and regulations. These tribes have slightly different treaty language than the Crow treaty, but as far as hunting goes the language is very similar. The statement put out by Wyoming's Governor is not helpful in my view. Wyoming attempting to cite more tribal members hunting off-reservation as the Governors statement implies will not end well and will only further deteriorate relationships between the State and Tribe. Look to how Tribes in the Northwest responded to state fishing regulations in the 60's and 70's in WA and OR if you want a peek at how things could go if WY persists in arresting/citing tribal members.

While the SCOTUS ruling remanded the case back to State court - the reality is WY has no chance in winning an argument that significant portions of the Bighorn NF are 'occupied' or that they could regulate tribal hunting as part of conservation necessity. It is my sincere hope that WY will abandon this losing strategy and engage Tribes in a collaborative manner to work as co-managers of a resource everyone cares about. As a hunter I have occasionally been frustrated when I draw a coveted tag in Idaho, scout my butt off, then watch as several tribal members hunt the unit I drew for 2 weeks leading up to the opening of my state regulated season. Part of the reason Tribes target some of these units is because the hunting is better...its not a general season unit for state hunters. In Washington, there are some Tribes and tribal members that aggressively harvest bucks and bulls and this clearly limits the number of tags and opportunity available to state hunters.

Overall, I see Tribal/State management of wildlife a bit like two countries with a large stockpile of nuclear arms...each side could absolutely wreak havoc on wildlife populations if they so choose...but its that "red button" that I think can bring both sides to the table to ensure well managed wildlife populations. The Crow Tribe now clearly has the legal precedent to descend on any number of limited entry units in Wyoming and shoot the heck out of the elk before any state hunters get a chance...in turn, the state could say to hell with limited entry units and just turn every good unit into a general season, making them less desirable for tribal hunters to target.

I guess in all my rambling I'm hoping cool heads prevail and everyone sees the value in co-management - the alternative is a whole lot less opportunity and quality for everyone. The WY Governor's statement is not helpful in pursuing this mutually beneficial path.

I didn’t realize honestly this went on. So r u saying they can literally hunt any unit anytime for any species in Idaho? So for instance can they just go hunt unit 54 for elk? Or is it unit specific depending on the treaty? The more I’ve read into all this since this decision by the Supreme Court it seems it has been a problem across the west for some time. I’m honestly shocked. But from a commen sense approach none of it should be allowed. It’s kinda of nuts actually.

 

[idahohuntr]

I didn’t realize honestly this went on. So r u saying they can literally hunt any unit anytime for any species in Idaho? So for instance can they just go hunt unit 54 for elk? Or is it unit specific depending on the treaty? The more I’ve read into all this since this decision by the Supreme Court it seems it has been a problem across the west for some time. I’m honestly shocked. But from a commen sense approach none of it should be allowed. It’s kinda of nuts actually.

Yes - they can hunt most anytime/anywhere (within their historic territory...which is usually very broad and overlaps many other tribes) depending on rules and regulations promulgated by their respective Tribe...and of course, the terms of their treaty. I believe there are several Tribes that could (or do) absolutely hunt public land elk in Unit 54, 40, 44, etc. or bighorn sheep in 11, 13 etc. I spoke with one Tribal game warden in Idaho a few weeks ago who stated their Tribe has the right to hunt prime Utah units as well...said they could absolutely go to the Henry Mtns and hunt muley's to their hearts content...but obviously they have chosen not to...at least at this time. Fishing rights get even more powerful for NW tribes...most have the right to fish at all "usual and accustomed" places...even if its on private land. Literally, you could own a $10 million waterfront home in Puget Sound and a Tribe could have the legal right to walk across your lawn and stand on your property to fish. Again, its pretty well established up in the Northwest - so less shocking to us than what folks in WY and MT have been used to...but with this ruling I see a lot of change coming to both those states. I know at least one case where a State did not pursue potential violations against a Tribal hunter because they would rather have a gray area than a precedent setting loss like what WY just experienced.

An important thing for you to be aware of...Tribes are not subservient to States...they negotiated their treaties with the United States, not individual states. So your shock, while understandable, is a bit off track. The Crow tribe really has no more obligation to follow Wyoming state hunting regulations than Wyoming hunters have to follow hunting rules promulgated by Canada. In this specific case (Herrera) he is not "breaking" any law...he has no obligation to abide by WY regulations...his treaty right trumps those state regs. And I intentionally use the word Trump there...as it was Trump's SCOTUS nominee that secured the key 5th vote...and it was Trump's solicitor general that argued in support of Herrera at the Supreme Court. It was one of the funny moments in the oral arguments...the State of Wyoming arguing federal lands (the Bighorn NF) are occupied - and the justices respond with something like, "but the federal government is here and they say their lands are not occupied with respect to Herrera's treaty rights".

 

[farmerboy1381]

Ok I am far from a lawyer and I have strongly mixed feelings on this. I believe the government should honor its treaties, but technology and times are different. Couldn’t Wyoming address those aspects of the treaty? For instance nothing in the treaty allows them to transport game animals taken in a truck or ATV. How about a law that makes it illegal to transport a game animal in or off of the National forest in a powered vehicle except during a legal season? Or maybe pass a law that makes it illegal to use a firearm or vehicle not available in 1860 (that was the treaty date right?) in hunting or transporting game unless a current Wyoming tag is held for the species? Seems to me that is not covered by the treaty. Let them hunt but do it in the way that was intended.

 

[Sytes]

Does this "Treaty" permit tribes to conduct their hunts for those who are willing to pay non tribal, $17,000 elk hunts (Blackfeet) so long as it's a tribal designated hunt for tribal funding? Basically, a way for anyone to pay backdoor entry to any "unoccupied" unit / district?
I know, up until now, MT State and Blackfeet held the understanding this was on their reservation though now?
Basically, how far does the treaty / sovereignty extend? It does not address this portion, at least within the SCOTUSBLOG:
https://www.scotusblog.com/2019/05/...n-affirming-crow-tribes-treaty-hunting-right/

Side note... I can see a resurgence of the Blackfeet's assertion they are entitled to hunt Glacier National Park. This has been a contentious back and forth game between the tribe and feds, regardless the "Conservation" model and Treaties / sold mineral rights, etc...

When the land was declared a national park in 1910, Blackfeet hunting and fishing rights were revoked, but gathering rights remained. Since then, Blackfeet people have been arrested and challenged in court while attempting to assert some of their treaty rights. Park and tribal officials alike say meetings between the groups rarely end without a discussion about indigenous rights in Glacier.

 

[Addicting]

Are they allowed to hunt Wyoming Wilderness with out a guide? Being from a Sovereign Nation does not make them a resident of any one state, let alone Wyoming.

 

[BrentD]

This isn't the first decision like this. I believe Wisconsin has had similar ruling with respect to tribes fishing (and netting). I am not really familiar with what has happened since, but perhaps someone could describe what resulted and how it has panned out there. I believe there are parallels.

 

[3855WIN]

Ok I am far from a lawyer and I have strongly mixed feelings on this. I believe the government should honor its treaties, but technology and times are different. Couldn’t Wyoming address those aspects of the treaty? For instance nothing in the treaty allows them to transport game animals taken in a truck or ATV. How about a law that makes it illegal to transport a game animal in or off of the National forest in a powered vehicle except during a legal season? Or maybe pass a law that makes it illegal to use a firearm or vehicle not available in 1860 (that was the treaty date right?) in hunting or transporting game unless a current Wyoming tag is held for the species? Seems to me that is not covered by the treaty. Let them hunt but do it in the way that was intended.

Do you want the 2nd Amendment to only pertain to firearms at the time of writing?

 

[antlerradar]

Are they allowed to hunt Wyoming Wilderness with out a guide? Being from a Sovereign Nation does not make them a resident of any one state, let alone Wyoming.

Interesting. With the tribes claiming Sovereign Nation status. How long before someone challenges the vote from residents of the Sovereign Nation in a close state of Montana election.
Don't get me wrong, Far to many Crows fail to exercise there right to vote. On the other hand if the Crow tribe wants a Sovereign Nation where the laws of Montana do not apply should residents have the right to vote in Montana elections. Maybe in reality the Sovereign Nation that the US government signed the treaty with back in the 1860's no longer exists.

 

[antlerradar]

Ok I am far from a lawyer and I have strongly mixed feelings on this. I believe the government should honor its treaties, but technology and times are different. Couldn’t Wyoming address those aspects of the treaty? For instance nothing in the treaty allows them to transport game animals taken in a truck or ATV. How about a law that makes it illegal to transport a game animal in or off of the National forest in a powered vehicle except during a legal season? Or maybe pass a law that makes it illegal to use a firearm or vehicle not available in 1860 (that was the treaty date right?) in hunting or transporting game unless a current Wyoming tag is held for the species? Seems to me that is not covered by the treaty. Let them hunt but do it in the way that was intended.

I don't think your are totally off base. Restrictions like seasons and limits are issued because technology had advanced so much that the seasons and limits were needed for conservation. Advancements in technology allowed unrestricted hunters to eradicate the elk form the Bighorn's. Now that the WY FWP has restored the elk through modern conservation measures the Crow Tribe is asking that they be allowed to return to the unrestricted hunting of the 1860's with modern equipment.

 

[VikingsGuy]

The entire idea of the United States federal government and constitution was founded on the idea that it should be able to adapt to societal changes, adapt to the future, if societies don't adapt they die. I don't like the idea of breaking promises, but I equally don't like the idea of being held hostage to an old text that undermines the very nature of the US written by people who couldn't have imagined what life's like today.

And the ways to make changes are fully provided: Constitutional Amendment (US, not state), SCOTUS interpretation evolving, agreement between tribe and state, and most relevant to this discussion - Congressional action. Individual state game & fish departments aren't on that list. The world changes and so does our legal framework, but we need to do it through the provided channels. WY tried SCOTUS path and lost - they can take their concerns to Congress if they wish - I doubt they will be well received, but that is the nature of democracy. In fact if Congress cared, and if a majority agreed with HT, almost all of the legal complaints raised at times on HT (corner crossing, NR price gouging, treaty rights, easements to locked up public land, "wilderness outfitters", parking on the side of a highway (rest in peace TopGun) etc.) could be solved by congress. But even though these are life and death issues for HT, they are not for 95% of America. The lawful answer to this dilemma is to make our case for change, not have a state F&G dept subvert federally sanctioned treaties.

 

[farmerboy1381]

Do you want the 2nd Amendment to only pertain to firearms at the time of writing?

That’s a very valid point and one I had not completely considered in this context. But considering how hard the second amendment is regulated to account for modern weapons I question whether it is applicable. It almost seems to prove the point that modern technology can be regulated even in the face of a God given right let alone a treaty.
Stupid question but how does this affect Yellowstone park? That is certainly unoccupied land.

 

[Sytes]

Pulling the 2A into this is an interesting play for debate... Any other "Bill of Rights" that conclude with, "Shall not be infringed"? Without the 2nd, the 1st is simply words.

Treaties are broke, re-written, made new, negotiated, etc. Shall not be Infringed, kinda means... Shall not be Infringed.

Back to the topic. Speaking of Yellowstone, as mentioned above, there is a constant issue of criminal poaching/hunting in Glacier National Park by Blackfeet who believe it's their right. This has been going on and now with this new ammo given to the tribes... It will be interesting.

 

[BuzzH]

I didn’t realize honestly this went on. So r u saying they can literally hunt any unit anytime for any species in Idaho? So for instance can they just go hunt unit 54 for elk? Or is it unit specific depending on the treaty? The more I’ve read into all this since this decision by the Supreme Court it seems it has been a problem across the west for some time. I’m honestly shocked. But from a commen sense approach none of it should be allowed. It’s kinda of nuts actually.

Its been going on in Montana for at least 40 years as well and its not a problem.

 

[Sytes]

Not a problem... Sure. What was the concern Randy shared earlier in this thread about the roads in for the Bison hunt?

 

[Deleted member 28227]

And when you talk about giving land back from the homestead era that's apples and oranges. Those in-favor of amending the treaties aren't saying we should take back the last 100+ years of elk meat, just that going forward they should play by the same rules as everyone else. You can maintain the right the hunt unoccupied lands and still be forced to hunt during season. Just like I can divert water for irrigation so long as there's enough for the salmon.

Agreed, if you read the full text of the treaty + the text of the Sioux treaty BuzzH linked to the subtext was that the native, nomadic subsistence hunters, were going to get to continue their traditional way of life for the remainder of the current generations life and then were going to become agrarian, "In order to insure the civilization of the tribe entering into this treaty, the necessity of education is admitted, especially by such of them as are, or may be settled on said agricultural reservation...such persons that commence farming shall receive instructions...and it is further stipulated, that the United Sates will furnish and deliver to each lodge of Indians, or family of personas legally incorporated with them, who shall remove to the reservation herein described, and commence farming, one good american cow and one good, well-broken pair of American oxen..."(Treaty with the Crow Indians, May 7, 1968).

It seems pretty obvious that the expectation was that WY, MT, ID, UT, etc were going to become like Texas is currently... fully privatized and/or that all the wild game was going to be killed and replaced with livestock. The easterner's that were writing these treaties were likely looking at Tennessee, Kentucky, etc. where elk had been extirpated, and turkey and whitetails were almost gone.

The start of the modern conservation movement wasn't going to start for another 35-40 years after these treaties were made, and even then conservation was a huge uphill battle. Moreover I don't think anyone at that time thought that we would be talking about elk and sheep, honestly I think "hunt" in the context of this treaty is metoynomic for "pursue buffalo". Given the very specific wording of the Sioux treaty of Ft. Laramie, "...but yet reserve the right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase" if I was litigating this case I would assert that the "so long as game exists" was a specific reference to buffalo and as that species no long exists that their hunting rights are nullified.

I think a more equitable solution with regards to all the tribes in the Rockies, is to make new hunting agreements and add them into current state management plans. As others have noted there is excellent habitat on the various reservations but no game. I think if the state was willing to make some concessions, in the vein of hunting vouchers i.e. a set percentage of the tag for various species that go to the tribes that they may transfer and allocate however they see fit you could likely get these treaties amended. Why would the tribe do this because killing a trophy elk or a sheep has only intrinsic value to a tribe's member and that person may still be charged by the state and taken to court, but being able to guide hunters with premium "landowner" tags has a huge monetary value... which others have alluded to with the Apache tribes. The incentive for the state is stability and planning, if you know the tribe is gonna kill 4 sheep every year you can set tag quotas accordingly.

End the end if both WY and the tribe feel like they are getting hosed then it's probably a solid agreement.

 

[BuzzH]

Not a problem... Sure. What was the concern Randy shared earlier in this thread about the roads in for the Bison hunt?

Your inconvenience is your problem...what "problem" are tribal hunting and fishing rights having on game and fish populations in Montana, Idaho, Wyoming?

Answer: NONE

I can kill 2-3 elk per year in each of those States, a boatload of deer and pronghorn.

As long as the tribal hunting in Wyoming doesn't create a conservation crisis, it should go on. The only potential I can see at all as a conservation concern would be unfettered moose hunting in the Bighorns. Other than that...Wyoming can barely control elk numbers via allowing each hunter to shoot 3 a year.

This whole "issue" is a non-issue. The Government and the Tribes entered an agreement, the USSC reaffirmed their hunting rights, and most on this thread are looking for ways to nullify the treaty. I guess not much has changed in that regard since 1868.

I got news, you better get used to tribal members exercising their hunting rights...because they're going to do it and they have the right to do it.