Victory for Native American Hunting Rights

Crow Indians Hunting Elk Painting

On 20 May 2019, the US Supreme Court (“SCOTUS”) released its decision in Herrera v. Wyoming, a landmark case for Indigenous tribes across the country. The Court held that treaty hunting rights are not impliedly extinguished upon a grant of statehood and may exist within national parks as well.

In 2014, Clayvin Herrera and his fellow Crow Tribe members were hunting elk on their reservation in Montana when they pursued the animals into neighboring Wyoming’s Bighorn National Forest.After he shot the elk and collected the meat, the State of Wyoming charged Herrera for taking elk off-season or without a state hunting license. Herrera asserted his treaty right to hunt in the area, which was memorialized in the 1868 Treaty between the United States of America and the Crow Tribe of Indians (“1868 Treaty”):

The Indians…shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.[emphasis added]

The State, relying on Ward v. Race Horse, argued that the Tribe’s treaty rights expired upon Wyoming’s statehood, and alternatively, that Herrera did not have the right to hunt in Bighorn National Forest because it was categorically occupied since its creation. The trial court agreed and held that Herrera could not even re-litigate the issue of treaty right expiry as it was previously settled in Crow Tribe of Indians v. Repsis (“Repsis”), thereby convicting him.3

Herrera appealed to the nation’s highest court, which vacated the trial court’s conviction and remanded the case for further proceedings. In a narrow 5–4 margin, the Court held that the 1868 Treaty did not expire upon Wyoming’s statehood. Since the 1999 SCOTUS decision in Minnesota v. Mille Lacs Band of Chippewa Indians (“Mille Lacs”), the extinguishment of treaty rights has required a “clearly expressed” intent from Congress, which was missing here.Herrera was not precluded from litigating his treaty right to hunt because Mille Lacs changed the applicable legal context since Repsis. The Court also held that Bighorn National Forest was not categorically occupied. The treaty term “unoccupied” must be construed as “[it] would naturally be understood by the Indians”—“an area free of residence or settlement by non-Indians”—which is the case for most areas in government-protected forest lands.SCOTUS clarified that Wyoming can still argue that hunting restrictions are necessary in the interest of conservation on remand.6

The Crow Tribe may now continue hunting on unoccupied lands in Wyoming and Montana peacefully, which will provide sustenance for hundreds of Crow families while preserving their cultural traditions. This victory for the Tribe checks state abrogation of Native American treaty rights while keeping the federal government accountable to its treaty obligations. That’s one step forward for tribal hunting rights, but there are many left in the fight for Indigenous sovereignty in America.


This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the views of the CCLA.


1 Herrera v Wyoming, 587 US 17–532 at 4 (2019).

2 Ibid at 3–4.

3 Ibid at 5.

4 Ibid at 9.

5 Ibid at 19.

6 Ibid at 22.