Colton and Clayvin Herrera and Ronnie Fisher were cited in October for poaching elk in January 2014 near Eskimo Creek in the Bighorn Mountains. Their defense, they have said, will be that off-reservation hunting rights are outlined in the 1868 Treaty of Laramie with the Crows.
Article 4 in that treaty gives Indians living on the reservation the right to hunt “…the unoccupied lands of the United States so long as game may be found thereon…” and as long as the Native Americans maintain peace with those living near the hunting districts.
The Crow Nation has traditional off-reservation hunting grounds in Montana, Wyoming and South Dakota. According to Leslie Plain Feather, an official in the Crow Nation’s legislative branch, Wyoming has its own ideas about Article 4.
“We don’t really have problems with Montana or South Dakota,” Plain Feather said. “It’s always Wyoming.”
In May 2013, the legislative branch of the Crow Nation filed a joint action resolution that they would fully exercise their right to off-reservation hunting rights pursuant to the 1868 Treaty with the Crows. Plain Feather said the tribe has sent notices of the resolution to Wyoming, Montana and South Dakota as well as to President Barack Obama, the U.S. Attorney General and the secretaries of interior and agriculture. Plain Feather said no one has responded to the notices yet.
Wyoming Game and Fish officials at the district office in Sheridan had no comment on the dispute other than to say they would continue to enforce Wyoming laws and regulations.
Indian treaties in the West varied little and Article 4 of the 1868 treaty with the Crows is identical to the article in several other treaties with other tribes, including the Bannocks who share a reservation with Shoshoni Indians in southeastern Idaho.
The treaty with the Bannocks was signed July 3, 1868. Traditional Bannock hunting grounds stretched into the area that became the Territory of Wyoming only two weeks after the treaty was signed. Though provisions of the act of setting up a new state said they would ensure that the treaties would remain in place, a Bannock Indian named Race Horse was arrested for hunting in Uinta County in October 1868, just four months after both the treaty with the Bannocks and the Territory of Wyoming were put into place.
It might seem odd that a 120-year-old legal case is be hanging over the heads of Fisher and the Herreras, but the judges of the Circuit Court of the United States for the District of Wyoming came to a decision that is still being fought over. The decision of that court was that the terms of Article 4 of the treaty with the Bannocks had been “perishable and intended to be of limited duration.”
But no suggestion of limitation is mentioned in the treaty with the Bannocks and given that the language in that treaty is identical to the language in the 1868 Treaty with the Crows, some say that the Crow treaty is also meant to last into the present day.
One hundred years after the decision made by the courts in the Race Horse case, Thomas L. Ten Bear and the Crow Nation filed an appeal with the 10th U.S. Circuit Court of Appeals for the District of Wyoming after Ten Bear’s conviction for killing an elk in the Bighorn National Forest in November 1989. Ten Bear and the Crow Tribe named the Wyoming Game and Fish Department and the Wyoming Game and Fish Commission in the suit, and argued the rights of the Crow Tribe to hunt in the national forest as part of the 1868 Treaty with the Crows. The state of Wyoming evoked the 11th Amendment to the U. S. Constitution — a state’s sovereign immunity against litigation from the citizen of another state or nation — and the suit was instead filed against WGFD director Chuck Repsis and commission director Francis Petera, individually.
The Crow Tribe argued that the Race Horse decision should not control the decision of the Ten Bear appeal. The doctrine of the decision made by the court in Race Horse had been overruled by the Supreme Court in other cases concerning the rights of tribes to hunt and fish on traditional grounds in other states. In United States v. Winans, the court recognized that the United States was aware that private ownership of lands formerly in the hands of the Indians had been forseen and the treaties stood to help the Indians preserve their way of life, and the formation of states in no way stood in the way of the treaties.
But the 10th U.S. Circuit Court of Appeals for the District of Wyoming disagreed. In their decision against Ten Bear, they stated that the Crow Tribe’s right to hunt off-reservation as laid out in Article 4 of the 1868 Treaty of Laramie with the Crows was repealed by the admission of the state of Wyoming to the Union.
The 10th Circuit also held that state management of wildlife was irreconcilable with any tribal treaty rights to hunt off-reservation and that even if that right did still exist, the national forest land was not “unoccupied.”
More than 20 years after their last defeat, Fisher and the Herreras will renew a battle that has been waging for more than a century and is not quite ready to end. - See more at: http://thesheridanpress.com/?p...SDxlDr.b6SGBHi7.dpuf
I wouldn't have a problem with native people hunting wherever they wanted to preserve their "way of life"... as long as they hunt with the same tools as they did before the Europeans showed up!
Otherwise, anyone with an interest in something can twist the meaning and before you know it women will not be allowed to vote anymore, slavery re-introduced, and the ownership of private property forfeit.
I have had friends who were married to native women and it was common for us to keep out mouths shut about where we saw moose when they were around.
That does not mean that we today should have to pay for the sins of the fathers!
If we are going to go back and honor treaties signed by the US Government in the past, which treaties do we honor? Should we ALL move back to Europe? It's generally agreed that the Natives 'we' bought Manhattan from, didn't have title to it to begin with. I think we should start by giving that back!
Nations have conquered others throughout history without this assumed guilt by following generations. As far as our responsibility for "conquering" them; that's much more convoluted then the simplistic version often presented. Throughout history, they often warred with each other. And Europeans were responsible in the first place for any prosperity they enjoyed. Before horses were introduced by Spaniards, American Native life was pretty bleak. Their great "horse culture" was compliments of "invaders". While their culture is often viewed with nostalgia, they were pretty stagnant technologically as compared to most of the world at that time. Overall, the Reservation system seems to have been more of a hindrance to them than a benefit.
I was once on a cow elk hunt on the Jicarilla reservation. As we were driving out one morning, the conversation shifted to how the tribe was buying up a lot of private land surrounding the deeded treaty lands. The guide then made the comment (with some disdain) they were just getting back all the land that was stolen from them. My comment to him was be fortunate it was America that conquered them and not the French or Spanish for I am quite certain reservations would not exist and most all cultures and heritages would be lost. After a few moments of silence, a different conversation started.
