U.S. supreme Court case - Big decision ahead

[idahohuntr]

The people who entered into the treaty should be the ones working this out. Their treaty , their land, their problem. Not a difficult concept to wrap your mind around.

Do you really think it makes sense for Wyoming to do this again and expect a different outcome?

What's absolutely weird about this is the feds taking the side of the tribes and taking no responsibility for their participation in the treaty or in enforcing laws on their property with their own LEO's.

The feds are working this out...they signed a treaty, treaties are the supreme law of the land, and Wyoming took actions in violation of the treaty...so the feds intervened to straighten out the mess Wy created. You keep saying there's this 'problem', but it seems to be your inability to acknowledge or understand tribal treaty rights.

 

[3855WIN]

The feds are working this out...they signed a treaty, treaties are the supreme law of the land, and Wyoming took actions in violation of the treaty...so the feds intervened to straighten out the mess Wy created. You keep saying there's this 'problem', but it seems to be your inability to acknowledge or understand tribal treaty rights.

Correct. Wyoming and every other state should check with DC before doing anything. Big Brother is in charge. Wyoming is essentially in the same position Indian tribes were in 150 years ago.

 

[Sytes]

Idahohuntr,
There are points within that hold resolution... It's not a setting such as, "treaty is supreme law, now shut it."

Can not change the typing below back to regular v italics... Meh, is what it is. Forum bug.
I'm very interested how States work the "conservation" portion left open by America's Supreme judicial body. This is not a WY deal... This can o worms has just been opened nationally...

 

[noharleyyet]

So if I'm reading correctly 'treaty' is the only absolute term in government. Every other law, policy, culturally grandfathered behaviour, code, etc is lobby fodder...correct? This dude and case should have it's picture in Webster's illustrating counterintuitive. The SC punted...

 

[VikingsGuy]

Correct. Wyoming and every other state should check with DC before doing anything. Big Brother is in charge. Wyoming is essentially in the same position Indian tribes were in 150 years ago.

I am sure they would gladly trade spots with you if that were possible.

 

[VikingsGuy]

So if I'm reading correctly 'treaty' is the only absolute term in government. Every other law, policy, culturally grandfathered behaviour, code, etc is lobby fodder...correct? This dude and case should have it's picture in Webster's illustrating counterintuitive. The SC punted...

Not quite. Treaties in general can be renegotiated and the vast majority of modern treaties have unilateral termination/withdrawal provisions. As for 19th century Indian Treaties, for the the most part the courts have said that congress + pres can unilaterally change and force on tribes by enactment of statute (and many old treaties actually provide for the president to unilaterally terminate even without statutory enactment). But as it comes to the states - yes, treaties trump every time. Tribal relations is (and always has been) a primary federal accountability - states right has it place, but not here. If the federal government agreed with WY, they could fix this fairly simply.

 

[iHunt]

*Before reading this post, please understand that I am only asking the following questions to spark a deeper conversation, I am not complaining nor angry with any group of people involved.

At the risk of sounding less than compassionate to the history of the native american people, why haven't we found a better way than reservations, treaties, and divide? I understand that in the 1800s we needed to do something to end the fighting, but are they really serving either side any good any longer?

I also understand the native americans have gone through some unspeakable tough times at the hands of the white settlers, and those actions may never be forgiven. However, everyone involved in those unspeakable acts from both sides are no longer with us.


Why then, does our government continue to treat a (relatively) small population of people differently than the rest? There have been many isolated groups of people throughout the world's history that have been treated horribly, yet we don't intentionally treat them different to the extent that the native american people are treated different.

I may be ignorant to the native american culture as I have never spent much time with them, but I have driven through countless reservations on my travels across the west. I don't recall seeing teepees, horses, warriors training with their bows and tomahawks, groups of people making crafts out of the animals they harvest, etc. I see pickups and cars, houses, gas stations, bars, restaurants and everything else a non-reservation town has. Now I understand there are still activities to celebrate their traditional way of life, but for all practical purposes the native american lifestyle in today's world looks very similar to everyone elses way of life. Why does one group of people get to hunt on or off reservation outside of season? Hunting has been a part of my family's tradition just as long as theirs. We have been feeding our family with the game we harvest just like they feed theirs. Yes, they were a little more dependent on wildgame and hunting later into this nation's history than most of our families, but it's a little tough to argue that someone is still dependent on hunting to survive when they are driving trucks and cars to their hunting spots, and when they don't bag an elk there is a grocery store and a pre-paid card from the government to buy food.

Is it maybe time to realize the ways of old are in the past, find a way forward that does not involve reservations and government dependence? It seems that the current system is not beneficial to either side.

I have read and re-read this post many times and tried my best not to sound attacking in any way. If something seems offensive, please remember it was not my intention.

 

[VikingsGuy]

*Before reading this post, please understand that I am only asking the following questions to spark a deeper conversation, I am not complaining nor angry with any group of people involved.

At the risk of sounding less than compassionate to the history of the native american people, why haven't we found a better way than reservations, treaties, and divide? I understand that in the 1800s we needed to do something to end the fighting, but are they really serving either side any good any longer?

I also understand the native americans have gone through some unspeakable tough times at the hands of the white settlers, and those actions may never be forgiven. However, everyone involved in those unspeakable acts from both sides are no longer with us.


Why then, does our government continue to treat a (relatively) small population of people differently than the rest? There have been many isolated groups of people throughout the world's history that have been treated horribly, yet we don't intentionally treat them different to the extent that the native american people are treated different.

I may be ignorant to the native american culture as I have never spent much time with them, but I have driven through countless reservations on my travels across the west. I don't recall seeing teepees, horses, warriors training with their bows and tomahawks, groups of people making crafts out of the animals they harvest, etc. I see pickups and cars, houses, gas stations, bars, restaurants and everything else a non-reservation town has. Now I understand there are still activities to celebrate their traditional way of life, but for all practical purposes the native american lifestyle in today's world looks very similar to everyone elses way of life. Why does one group of people get to hunt on or off reservation outside of season? Hunting has been a part of my family's tradition just as long as theirs. We have been feeding our family with the game we harvest just like they feed theirs. Yes, they were a little more dependent on wildgame and hunting later into this nation's history than most of our families, but it's a little tough to argue that someone is still dependent on hunting to survive when they are driving trucks and cars to their hunting spots, and when they don't bag an elk there is a grocery store and a pre-paid card from the government to buy food.

Is it maybe time to realize the ways of old are in the past, find a way forward that does not involve reservations and government dependence? It seems that the current system is not beneficial to either side.

I have read and re-read this post many times and tried my best not to sound attacking in any way. If something seems offensive, please remember it was not my intention.

Within your thoughtful post I saw two lines of questions. First, why do we continue the tribe/treaty/nation-within-a-nation/reservation approach? Second, within the current system, why do natives receive benefits others do not? Both fair questions.

The first question does not lend itself to easy answers, but I will share my thoughts. I have never heard or read anyone suggesting this tribe/treaty/nation-within-a-nation/reservation approach has worked well (or even marginally) for the last 150+ years. So why does it stay (since congress has the power to fix/remove it)? In my opinion it is because of the fatal combination of 90+% of Americans being uninterested/unconcerned with the issue, in conjunction with many vested interests in the status quo regardless of its many flaws. You would have to get enough voter interest in finding a solution, have an actual solution that gives enough benefits to the beneficiaries of the status quo to "buy" their acquiescence and a solution that fits the social/political paradigm of 60 senators, 218 congressman and a president all without making an even bigger mess. Not really much different than Ag policy and many others that fit the general description. And frankly, if there was some political outcry to address this today, my guess is it would be pushing it the other way. I see America's current focus on identity politics moving to a future where voices would be pushing for more tribal sovereignty and less "oneness", so while the current state is a "fail" (as my 13 year old daughter my say) I would be very surprised if it gets unwound in my lifetime.

The second question does have an easy (even if unsatisfactory) answer in my opinion -- because we have not updated the law/treaty situation, the status quo requires these differing treatments. It really is that simple. Not much different than any other broken legal framework - is long as it is on the books those that may receive some benefit from it will understandingly take it while it remains. Without solving your first question, we can not lawfully/logically fix the second.

 

[MTGomer]

https://www.facebook.com/59667416374/posts/10156421655571375

Hey and just like that, Kerry White has a new found love of wildlife.

 

[idahohuntr]

Idahohuntr,
There are points within that hold resolution... It's not a setting such as, "treaty is supreme law, now shut it."

Can not change the typing below back to regular v italics... Meh, is what it is. Forum bug.
I'm very interested how States work the "conservation" portion left open by America's Supreme judicial body. This is not a WY deal... This can o worms has just been opened nationally...

My statements were in regards to allegations the US Government created a mess...Treaties having supremacy over state law is a critical concept to understand in this specific case.

I don't fully understand your point - but you bring up the conservation issue...unless elk are facing extinction in Wyoming, there won't be a lot of regulation from WY over Crow and other Tribe members hunting the Bighorns and probably many/most other public lands in WY. This is why I've been adamant the state needs to find its way to the co-management table.

 

[Toadslayer]

Of course Montana has to go ahead and fold first.

 

[Toadslayer]

Our family owns a working cattle ranch on deeded lands on the Crow Rez. Trust me...we have found plenty of headless deer left to waste.

 

[Sytes]

My statements were in regards to allegations the US Government created a mess...Treaties having supremacy over state law is a critical concept to understand in this specific case.

I don't fully understand your point - but you bring up the conservation issue...unless elk are facing extinction in Wyoming, there won't be a lot of regulation from WY over Crow and other Tribe members hunting the Bighorns and probably many/most other public lands in WY. This is why I've been adamant the state needs to find its way to the co-management table.

Fair enough, I certainly respect your opinion. My opinion regarding "conservation" relates to the following SCOTUS discussion as shared in the SCOTUSblog and the actual SCOTUS ruling.

Wyoming's State conservation efforts, by the creation of the WGFD, are "non-discriminatory".

*Also, the use of bold imprint is merely to highlight the specific portions of interest. Not intended to raise hairs.

In affirming the tribe’s treaty hunting right, the court stressed that this right is not unlimited. Portions of the national forest may be legally “occupied” under the treaty language, it noted, and Wyoming retains the power to impose nondiscriminatory conservation regulations on tribal treaty rights under well-established precedent.

https://www.scotusblog.com/2019/05/...n-affirming-crow-tribes-treaty-hunting-right/

From the actual ruling;

On remand, the State may press its arguments as to why the
application of state conservation regulations to Crow Tribe
members exercising the 1868 Treaty right is necessary for
conservation. We do not pass on the viability of those
arguments today.
* * *
The judgment of the Wyoming District Court of the
Fourth Judicial District, Sheridan County, is vacated, and
the case is remanded for further proceedings not incon-
sistent with this opinion.

 

[antlerradar]

Not quite. Treaties in general can be renegotiated and the vast majority of modern treaties have unilateral termination/withdrawal provisions. As for 19th century Indian Treaties, for the the most part the courts have said that congress + pres can unilaterally change and force on tribes by enactment of statute (and many old treaties actually provide for the president to unilaterally terminate even without statutory enactment). But as it comes to the states - yes, treaties trump every time. Tribal relations is (and always has been) a primary federal accountability - states right has it place, but not here. If the federal government agreed with WY, they could fix this fairly simply.

Is it time for the federal government to step in and pass legislation on treaty rights? I and not asking for the treaty's to be voided. That has little chance of passing and would be unfair to the tribes. On the other side, after reading this thread and in the Idaho sheep thread it is clear that some of the tribal members are using the treaty's to hunt in ways that are above and beyond the intentions and expectations of the original signors. If state law can not be used to curb the excesses then it is up the federal government.

These are some places where I think need to be addressed.

Wanton waste. The hunting clause of the treaty's was there so the tribal members would be able to have something to eat. The only people leaving good meat on the ground in the 1800's were the people of European decent. Herrera hid behind the treaty to get out of a wanton waste charge. If the states and tribes can not or will not address wanton waste then it is left to Congress. If Congress will not pass rules against wanton waste than congress is more dysfunctional than I thought but at least sportsman will find out who thier friends in congress are.

Trophy hunting. Again the tribes were interested in the hunting of food. The tribal hunter in Idaho is stretching the intentions of the treaty when he used treaty rights to hunt nearly ten record class rams in a place where non tribal members would be lucky to draw a tag in their lifetime. If the state were to auction off licences for the rams the value would likely be north of a million. The tribes of the 1800's moved often and traveled light. Trophy class heads had no value and were left behind. Trophy animals do however eat just fine and tribal members should not be prohibited from taking them. If a tribal member takes a trophy animal the head should be surrendered to the state to be auctioned off and the proceeds used for law enforcement. Again the hunting clause of the treaty is there so tribal members can have a winters supply of meat, not to get your name in the record books or become an Instagram hero.

New technology. Things are different now that when the treaty's were signed. There are huge advancements that give the advantage to the hunter. It is likely that the people in the 1800's would have anticipated advancements in firearms and maybe even in transportation so legislation limiting firearms and transportation may be a step too far. There is now way that those same people could have foreseen the electronic age. Legislation needs to be passed to eliminate the advantage of electronics in treaty rights hunting.

Much of the land is not wilderness any more. There are cabins, businesses and busy roads on much of the federal governments land today. The government should declare a buffer zone around improved roads, permanent structures, Campgrounds etc. and designate it as occupied land.

Safety issues. There are lots more people on public land today. Hunting at night and shooting form a motor vehicle are safety issues and I am sure that there are plenty of other places where safety is an issue.

CWD. CWD is not a hunting issue but a disease management issue. The tribes should have to follow all state regulations in regard to CWD.

I would much prefer that all hunting regulations be handled by the state's, but it is clear that the courts do not see it that way so management is left to the legislative branch of government

 

[bobbydean]

Antlerrader's approach does seem to be the common sense way to solve this problem. Of course, law has very little to do with common sense!

New Mexico does have 20 plus Indian reservations. Not all are without problems. But the problems usually do not the extreme that you guys in the North deal with. I sincerely hope you find a solution.

 

[mplane72]

Been following this thread since the beginning. Just catching up from what I missed over the weekend.

The thought occurs to me that if there was ever a president in modern times who would be willing to revisit this treaty it's Trump and it just may be in his power to do something about it. If you want to see it changed maybe you should start lobbying him. I have a feeling he'd love it. Tweet away.

 

[RobG]

Good old Kerry White... now he can blame wolves and indians for killing all the elk, while at the same time he can blame MFWP for not killing enough elk.

 

[idahohuntr]

Fair enough, I certainly respect your opinion. My opinion regarding "conservation" relates to the following SCOTUS discussion as shared in the SCOTUSblog and the actual SCOTUS ruling.

Wyoming's State conservation efforts, by the creation of the WGFD, are "non-discriminatory".

*Also, the use of bold imprint is merely to highlight the specific portions of interest. Not intended to raise hairs.


https://www.scotusblog.com/2019/05/...n-affirming-crow-tribes-treaty-hunting-right/

From the actual ruling;

I think I better understand your point. Having listened to the oral arguments and in combination with other case law on "conservation necessity" issues with Tribes/States in the Pacific Northwest I am aware of - I think some folks are reading too much into the door left slightly open by SCOTUS. Because Wyoming argued the Treaty was not valid off-reservation - they had no reason to argue about conservation necessity or if the specific location of harvest was technically occupied. All SCOTUS said in the majority opinion was that Wyomings arguments failed, the Treaty exists, however the State may wish to argue occupied or conservation in lower courts if they so choose.

BUT - based on previous case law - I think WY would fail to maintain Herreras conviction on the grounds there is a conservation necessity that forces Crow Tribe members to follow WYGF regs or that where he killed the elk was an "occupied" portion of the Bighorn NF. Basically, I think SCOTUS included the statements you put in bold as a matter of process/law...they are areas the State COULD argue as they were never originally before the Court. I do not think it is the SCOTUS majority signaling these items are something WY is likely to prevail on.

Full disclosure...I'm not an attorney so you'll want to exercise great caution in my various legal interpretations!

 

[3855WIN]

Antlerrader's approach does seem to be the common sense way to solve this problem. Of course, law has very little to do with common sense!

New Mexico does have 20 plus Indian reservations. Not all are without problems. But the problems usually do not the extreme that you guys in the North deal with. I sincerely hope you find a solution.

I think the Tribes In NM are very different people from the Montana Tribes.

 

[Toadslayer]

Montana honors Crow treaty rights in Custer Gallatin National Forest

The May 20 U.S. Supreme Court opinion affirming Crow Tribe treaty hunting rights in Wyoming has reverberated into Montana.

billingsgazette.com