Herrera v. Wyoming

Under the 1868 treaty between the United States and the Crow Tribe (the 1868 treaty), the Crow ceded 30 million acres of tribal land in what would become Wyoming (defendant) and Montana. In exchange, the Crow received an 8-million-acre reservation and a treaty-reserved right to continue hunting off-reservation. Specifically, the Crow were permitted to hunt on any unoccupied territory of the United States containing wild game as long as there was continuing peace between the Crow and the United States. At the time, the term “unoccupied” was understood to mean land unsettled by White United States citizens. In 1890, the Wyoming Statehood Act created the State of Wyoming; the act was silent on Indian rights. In 1897, President Grover Cleveland established Bighorn National Forest (Bighorn) in Wyoming and dictated that Bighorn would remain free from settlement. In 2014, Clayvin Herrera (plaintiff), a member of the Crow, pursued a group of elk from the Crow Reservation into neighboring Bighorn. The elk were killed in Bighorn. Wyoming charged Herrera for hunting elk off-season and for hunting without a license. Herrera challenged, arguing that his right to hunt elk in Bighorn was protected under the 1868 treaty. The trial court ruled for Wyoming. Herrera appealed. On appeal, the appellate court affirmed, holding that the Crow’s, and by extension Herrera’s, hunting rights under the 1868 treaty had expired upon Wyoming’s ascension to statehood. Alternatively, the appellate court held that even if the Crow’s treaty-reserved hunting rights were still valid, Bighorn’s classification as a national forest terminated the Crow’s hunting rights within Bighorn because the classification effectively occupied the land. The United States Supreme Court granted certiorari after the Wyoming Supreme Court denied Herrera’s petition for review.