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President Cleveland’s proclamation creating Bighorn National Forest did not “occupy” that area within the meaning of the Treaty Between the United States of America and the Crow Tribe of Indians, May 7, 1868, 15 Stat. 650. To the contrary, the President reserved the lands from entry or settlement. Presidential Proclamation No. 30, 29 Stat. 909. The proclamation gave warning to all persons not to enter or make settlement upon the tract of land reserved by the proclamation.
An 1868 treaty between the United States and the Crow Tribe promised that in exchange for most of the Tribe's territory in modern-day Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.” 15 Stat. 650. In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera's argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him. On appeal, the state appellate court relied on the reasoning of the Tenth Circuit's decision in Crow Tribe of Indians v. Repsis, 73 F. 3d 982-which in turn relied upon this Court's decision in Ward v. Race Horse, 163 U. S. 504, 16 S. Ct. 1076, 41 L. Ed. 244-and held that the treaty right expired upon Wyoming's statehood. The court rejected Herrera's argument that this Court's subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 119 S. Ct. 1187, 143 L. Ed. 2d 270, repudiated Race Horse and therefore undercut the logic of Repsis. In any event, the court concluded, Herrera was precluded from arguing that the treaty right survived Wyoming's statehood because the Crow Tribe had litigated Repsis on behalf of itself and its members. Even if the 1868 Treaty right survived Wyoming's statehood, the court added, it did not permit Herrera to hunt in Bighorn National Forest because the treaty right applies only on unoccupied lands and the national forest became categorically occupied when it was created.
Did the Crow Tribe's hunting rights under the 1868 Treaty expire upon Wyoming's statehood?
The court held that the Tribe’s hunting rights survived Wyoming’s statehood and the lands within Bighorn National Forest were not “occupied” when it was created. Under Mille Lacs, the Tribe's hunting rights under the Treaty remained valid and did not expire when Wyoming became a state. The Wyoming Statehood Act did not end the Treaty hunting rights as it did not mention Indian treaty rights and there was no evidence in the Treaty that Congress intended hunting rights to expire at statehood. The Bighorn National Forest did not become occupied under the Treaty when it was created because the Tribe would have understood “unoccupied” to denote an area free of non-Indian residence.