Herrera v. Wyoming: Inside the Elk Hunting Case Before the Supreme Court

Some hunters say a decision in favor of Herrera would be the end of game management as we know it, while tribal advocates and the federal government say it would correct a longstanding injustice.

Most native tribes allow and regulate hunting by their members within the borders of their respective reservations. Treaties between tribes and the United States often included similar language to that of the Crow, guaranteeing the right to hunt on other “unoccupied lands.”  Indeed, many tribes already exercise those off-reservation hunting rights through agreements with state wildlife management agencies. Wyoming is the only Western state in which that does not occur.

The State of Wyoming argues that with its admission to the Union in 1890, the land within its borders became “occupied,” voiding those Crow hunting rights. They point to the 1896 decision in Ward v. Race Horse, where the Supreme Court ruled that the Shoshone-Bannack Tribe’s hunting rights had been voided by Wyoming statehood, because each state entering the Union did so on the same footing, which included sovereignty over their natural resources. And if that didn’t do it, says the state, surely Herrera’s kill site became “occupied lands” with the 1897 designation of that ground as the Big Horn Forest Reserve, a precursor to the national forest and one of the oldest protected landscapes in the country. In the 1995 Crow Tribe of Indians v. Repsis decision, the Tenth Circuit Court said just that: “The creation of the Big Horn National Forest resulted in the ‘occupation’ of the land.”

However, only four years after the Repsis decision, the Supreme Court ruled in Minnesota v. Mille Lacs Band of Chippewa Indians that this tribe did in fact maintain hunting and fishing rights on the lands they had ceded under similar treaty arrangement, but the justices stopped short of officially reversing either Race Horse or Repsis. This conflicting case law was the primary point of discussion in oral arguments before the court this year in Herrera v. Wyoming.

Many hunters and wildlife managers in Wyoming and beyond are concerned about the ramifications of the Supreme Court ruling in favor of Herrera—a likely outcome, especially given that the federal government intervened on behalf of Herrera. The Crow Tribe ceded 30 million acres in the Second Treaty of Fort Laramie, including modern-day Yellowstone National Park. Much of that ground could potentially be construed as “unoccupied.”

“If this Court reverses the judgment of the court below, Wyoming’s and other states’ long-recognized authority to regulate the use of resident wildlife could be instantly curtailed, with highly uncertain results for tribal and non-tribal beneficiaries as well as state and federal managers of natural resources,” says the amicus curiae brief submitted by the Association of Fish and Wildlife Agencies in support of Wyoming. “Management of wildlife resources held in trust by the states on one hand, and federal lands on the other, is a delicate dance even without the surprise of off reservation treaty rights long understood by game managers to be extinguished.”

The states of Nebraska, Kansas, Louisiana, North Dakota, South Dakota and Texas, the Western Association of Fish and Wildlife Agencies, and Safari Club International also intervened on behalf of Wyoming, citing similar concerns. A quick perusal of any Western hunting forum will provide numerous examples of the apprehension many hunters feel about this case.

Others say such concern is unfounded because many native tribes already exercise treaty hunting rights on public lands under agreements with state game agencies—and the species they hunt haven’t exactly gone extinct.

Aron Johnson is a wildlife biologist for the Southern Ute Indian tribe in southwest Colorado. He says that in 2009 the Southern Ute Tribe started exercising treaty hunting rights on 3 million acres of federal public lands. They entered in a memorandum of understanding with Colorado to communicate about their harvest off the reservation.

“Most people outside of Indian Country aren’t really aware of how tribes operate and wouldn’t have the slightest idea about treaty hunting and fishing,” Johnson said. “To be clear, the tribe sets seasons, bag limits, regulations and issues its own permits to tribal members. This includes setting permit numbers for rare game such as bighorn sheep, moose and mountain goats. The tribe communicates regularly with the state to ensure take is not negatively impacting the resource. We want to continue to hunt healthy populations of big game in perpetuity.”

Johnson says the tribe provides enforcement and oversight of its own hunters, in cooperation with state and federal officers. He also says a lot of the rhetoric coming from hunters about this case is grossly inaccurate.

“It gives the impression that upon a verdict against Wyoming, that tribal people from across the country are going to suddenly descend on federal lands and wipe them clean of fish and wildlife resources,” Johnson said. “The Herrera case is not a wildlife management problem, it’s a Wyoming problem. Only the United States Congress has power to abrogate treaty rights. Simply put, Wyoming doesn’t want to share, doesn’t want its authority challenged. To ignore, or refute, volumes of treaty case law is ludicrous. To attempt to renege on rights expressly reserved for tribal nations is contemptible.”

Indeed, many statements regarding the possible outcomes of this case may overstate the ramifications of this Supreme Court ruling. David Willms was a senior policy advisor for former Wyoming Gov. Matt Mead during much of this court case.

“I’ve seen the stuff out there that’s more hyperbole in my mind, like ‘you’re going to take your family to Yellowstone and watch a bison get shot in the park.’ No, you’re not,” Willms said. “But are you going to see limits on opportunities for residents and nonresidents to be able to satisfy a treaty right on national forest lands for a traditional big game species? I think there’s a decent chance that could happen.”

Willms guesses that if the Supreme Court decides the Crow treaty right survived Wyoming’s statehood, the justices will likely issue a narrow decision dealing specifically with the Crow hunting rights outside their reservation. The big, lingering question will then be what constitutes “unoccupied lands.” If the high court recognizes the existence of a treaty right, it will likely either determine that federal lands are “unoccupied lands,” or provide a test for occupancy and remand to a lower court to decide whether the federal lands are occupied in this instance.

The well-established doctrine of conservation necessity would then likely force the tribe and states of Wyoming and Montana to come to an agreement over how tribal hunting fits into existing state wildlife management.

“The example I’d use is, say there were 100 elk tags in the Bighorns, just throwing out a number for easy math,” Willms said. “So, whereas in the past you had 80 licenses go to residents and 20 of those licenses go to nonresidents, now you might have 30 of those licenses [go to the Crow Tribe] and then maybe only 60 of those licenses go to residents and a smaller percentage go to nonresidents. So, both residents and nonresidents get pinched a bit more and make those tags harder to draw.”

Still, the secretive nature of Herrera’s hunt still bothers many Wyomingites, though it is immaterial to the Supreme Court case. According to sworn testimony from the trial, Herrera only got caught after he emailed the Wyoming Department of Fish & Game to discuss poaching near their shared border. The request was passed along to the game warden for that region, Dustin Shorma.

“I was having a lot of poaching incidents along the state line, and I wasn’t getting anywhere with any of them,” Shorma testified under oath. “So, you know, I thought it was a sincere outreach on his part to try to maybe work together to catch some of these people, so I contacted him for his help.”

Shorma and Herrera agreed to meet on a back road near the state line soon after. At that meeting, Shorma showed Herrera a spike bull that had been shot and left on the Crow Reservation side of the line.

“He was interested in knowing who I suspected was responsible for these poaching incidents. He was curious as to the capabilities of our forensic laboratory in Laramie.” Shorma said. “On the way home, I was kind of, I don’t know, maybe excited that I’d be able to solve some of these cases. But by the same token, it bothered me, some of the conversations that we had. I started kind of thinking like I was maybe being taken advantage of, I guess.”

When he returned home, Shorma decided to Google Herrera. He found lots of images of him posing with large deer and elk. He followed one link to a brag board website called Monster Muleys and Herrera’s post there with three elk titled: “Good Year on the Crow Reservation.”

“A couple of them looked like they were in Wyoming,” Shorma said. “Just based on the limited topography and vegetation I could see from the photographs, I kind of had a hunch where it was at, but I wanted to confer with some people who knew the area a lot better than I did.”

Shorma showed the photos to a local hunter familiar with Hunt Area 38, who had reported 12 poaching incidents in there that year. He confirmed Shorma’s hunch. Over the next several months, Shorma received more and more reports of out-of-season elk poaching in Hunt Area 38, adjacent to the Crow Reservation.

“I found a large bull elk that had been shot off the Pass Creek Road, and the only thing that had been taken was a little bit of backstraps and head had been removed,” he said. “I was getting pretty desperate. I mean, you know, the public entrusts a game warden to enforce the game laws.

“The way vehicles were coming and going, it was obvious to me that there was a possibility that it was members from the Crow Tribe who were responsible for some of this. So, I got on some of these forum sites that have pictures of dead elk, and I just started downloading pictures and taking note of names, who the hunters were and where they said they were and saving all that to my computer.”

On May 19, along with wildlife investigator Scott Adell and a stack of photos copied from Monster Muleys and Facebook, Shorma went into the area he believed Herrera and his friends had harvested their three bulls.

“We found remains at the site where Clayvin was kneeling next to the mature bull elk,” Shorma said. “We found a fourth bull that had been untouched.”

He took photos to match the scenes of the ones off Monster Muleys, using topography and unique knots and branch configurations on trees as points of reference. He also took GPS waypoints of the kill sites on the hillside, placing them about a mile away from the fence demarcating the Montana border and the Crow Reservation.

Shorma then confronted Herrera on Sept. 12. Presented with the photographic evidence, Herrera admitted that he and his friends had, in fact, killed the bulls in Wyoming. He was cited for two misdemeanors. Herrera insisted that he had crossed into Wyoming accidentally, but the jury agreed with the prosecution that, as a game warden, Herrera should have known better. The judge sentenced him to pay $8,000 in fines, serve a year probation and not hunt in Wyoming for three years. Wyoming’s appellate court upheld the conviction, but Herrera now hopes to have it overturned by the nation’s highest court.

Herrera insists that he did not mean to cross into Wyoming that day five years ago, but still it was his right to do so. Above all, he says, he was just trying to provide meat for his three daughters.

“That was a time when the tribe was in recession bad. And they cut our hours. They cut our pay,” Herrera testified on the witness stand. “I was cut down to like 32 hours a week. They cut me down to like $10 an hour. And growing kids, they eat more than me now, but the plan was to get an elk to eat it. Live off it.”

While things such as season dates, licensing, waste of game and tag allocation matter a lot to hunters, the Supreme Court is not addressing those questions. What the justices decide may have implications for modern hunters, but perhaps bigger implications for generations-old promises made to the original hunters of this continent.

Feature image via John Hafner.