Case Notes

Case Note: Herrera v. Wyoming, 139 S. Ct. 1688 (2019)

On May 20, 2019, the Supreme Court of the United States released their newest contribution to Federal Indian Law. In Herrera v. Wyoming, the Court held that Wyoming’s entry into the Union does not abrogate off-reservation hunting rights guaranteed in the 1868 Treaty between the United States and Crow Tribe of Indians.[1] The Court specified that on remand, Wyoming may argue: 1. that the specific hunting site is “occupied,” and 2. state conservations regulations are necessary to coincide with the Crow off-reservation hunting treaty right.[2]

Summary of Facts

The Plaintiff, Calvin Herrera, is a Crow Tribal member and elk hunter. In 2014, Herrera was hunting in the Big Horn National Forest when he was charged by the State of Wyoming for violations of taking an elk “off-season” and hunting without a license. [3]

Procedural History

In 2015, the state trial court rejected Herrera’s argument that the 1868 Treaty permitted him to to hunt off-reservation.[4] During trial, Herrera was denied his treaty defense and the jury produced a guilty verdict for both violations.[5] On appeal, the Wyoming Court of Appeals was presented the question of whether the off-reservation hunting provision of the 1868 Treaty was still valid.[6] The Court of Appeals chose to apply the same reasoning in Ward v. Race Horse, and held that the off-reservation hunting treaty provision expired when Wyoming entered the Union.[7] The court relied upon a U.S. Court of Appeals 10th Circuit case, Crow Tribe of Indians v. Repsis, to reject Herrera’s treaty defense. The court reasoned because the Crow Tribe litigated Repsis on behalf of both the Tribe and its members, Herrera’s defense was “issue-precluded.”[8] The court also added that even if the provision survived Wyoming’s statehood, the 1868 Treaty language would consider the Big Horn National Forest as “occupied,” and Herrera would not be permitted to hunt there.[9]

Herrera’s petition to the Wyoming Supreme Court was denied, however the U.S. Supreme Court granted certiorari.[10]

Summary of Analysis

The Court was presented with and addressed two questions. The first question was whether the Crow Tribe’s 1868 off-reservation hunting right was still valid after Wyoming’s statehood.[11] Second, if the provision was valid, the issue is whether the Big Horn National Forest is now considered “occupied.”[12]

To address the first question, the Court made three separate inquiries:

1. Whether the case is controlled by the analysis of Race Horse or Minnesota v. Mille Lacs Band of Chippewa Indians;[13]

2. Whether Repsis, precluded Herrera’s argument that the treaty provision survived Wyoming’s statehood;[14] and

3. If applying Mille Lacs analysis, did Wyoming’s statehood abrogate the Crow Tribe’s treaty right?[15]

First, the court determined that the case would be controlled by the Mille Lacs analysis.[16] The court held that Race Horse “must now be regarded as retaining no vitality.”[17] Mille Lacs provided a 2-part analysis for the Court to follow: whether an Act of Congress admitting a state into the union abrogated a treaty right and next whether there was evidence to show the parties intended for a treaty right to be abrogated upon statehood.[18] In the analysis, the court did not find any evidence within the Wyoming Statehood Act to suggest the abrogation of the off-reservation hunting right, or that either party intended to abrogate such right. The Court further rejected the State’s argument that the treaty right was “irreconcilable” with state sovereignty, as other states have imposed reasonable conservation regulations to coincide with off-reservation hunting.[19] The Court further clarified that Race Horse can only be used to support the argument that statehood does not impliedly extinguish a treaty right.[20]

Second, the court determined that Repsis did not preclude Herrera’s off-reservation treaty defense.[21] The court held that by adopting Mille Lacs, this constituted a change in law, to justify Herrera’s defense.[22] The court reasoned that even when the elements of issue preclusion exist, exceptions can be warranted given an intervening change in law – this case mandated the application of Mille Lacs.

Third, the court determined there was no act of Congress, treaty reference, or historical evidence to show Wyoming’s statehood abrogated the Crow Tribe’s off-reservation treaty right.[23] The court held that the Treaty included four separate situations or circumstances that would terminate the off-reservation hunting provision, but statehood was not included.[24] The court reasoned that Congress did not implicitly or expressly abrogate the hunting right, and thus there was no reason for the Crow Tribe to equate Wyoming’s statehood as the abrogation of their right to hunt off-reservation.[25]

Through the application of Mille Lacs, the Court answered the first question presented by determining that the Crow Tribe’s 1868 off-reservation hunting right was still valid after Wyoming’s statehood.

Next, the court addressed the second question of whether the 1868 Treaty would consider the Big Horn National Forest as now “occupied.” Within the text of Article IV of the Treaty, it required the Crow Indians to maintain peace “among the whites and Indians on the borders of hunting districtsand to only make “permanent settlement” on their reservationto retain their right to hunt on “unoccupied lands.”[26] The Court’s analysis required interpreting “unoccupied” upon how the Crows would have interpreted and understood the word when they signed the 1868 Treaty.

The Court held that the withdrawal of federal land for the creation of the Big Horn National Forest did not categorize the land as “occupied.”[27] The Court’s reasoning narrowed upon how the Crow Indians would have understood the term “unoccupied.” The Court juxtaposed the treaty text with the historical context of the Crow Tribe at that time.[28] Although the State urged the Court to consider the National Forest as occupied, the Court nevertheless determined the park supported the treaty right by preventing the land from being occupied for settlement.[29] The Court also specifically mentioned that federal land withdraws to prevent settlement; mining and/or logging operations; and imposed hunting restrictions would not categorize land as “occupied.”[30]

Although the Court concluded Wyoming’s statehood did not abrogate the Crow Tribe’s off-reservation hunting right and the land was not categorized as occupied, the opinion was limited. First, on remand, the State may argue that the specific hunting site is in fact occupied.[31] Second, the State may also argue why conservation regulations are necessary to coincide with off-reservation hunting.[32]


The Court vacated the Wyoming District court decision, and “remanded the case for further proceedings.”[33]

Krista Thompson is a second-year law student at the University of New Mexico School of Law. She is Navajo, Hopi, and Yavapai and grew up in Fort McDowell, Arizona. Krista is currently working toward her Indian Law Certificate. Prior to law school she attended Arizona State University where she earned a B.S. in American Indian Studies, B.A. in Sustainable Urban Dynamics, and a Masters in Public Policy.

[1] Herrera v. Wyoming, 139 S.Ct. 1686 (2019).

[2] Id. at 1703.

[3] Id. at 1693.

[4] Id.

[5] Id.

[6] Id.

[7] 163 U.S. 504, 516 (1896).

[8] Herrera, 139 S.Ct. 1968, 1694.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 1700.

[13] Id. at 1694.

[14] Id. at 1697.

[15] Id. at 1698.

[16] Id. at 1694.

[17] Id. at 1697.

[18] Id.

[19] Id. at 1695.

[20] Id.

[21] Id.

[22] Id. at 1698.

[23] Id. at 1700.

[24] Id. at 1699.

[25] Id.

[26] Id. at 1701-02.

[27] Id.

[28] Id. at 1702.

[29] Id.

[30] Id.

[31] Id. at 1703.

[32] Id.

[33] Id.

By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

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