Herrera v. Wyoming
The Supreme Court ruled that a Crow Tribe member's 1868 treaty right to hunt on unoccupied federal land did not automatically expire when Wyoming became a state, and that Bighorn National Forest was not automatically "occupied" just because it was designated a national forest.
The decision revives a long-dormant treaty hunting right by rejecting a 19th-century precedent's reasoning and sends the case back to Wyoming courts to decide narrower questions about the specific hunting site and state conservation rules.
How it got here: A Wyoming trial court convicted Herrera and the state appellate court affirmed based on a prior federal appeals ruling and treaty interpretation; the Supreme Court agreed to review.
The Case in Depth
What happened
In 1868, the Crow Tribe ceded most of its land in Montana and Wyoming to the United States in exchange for a reservation and a promise that tribal members could keep hunting on "unoccupied" federal land. In 2014, Clayvin Herrera, a Crow Tribe member, hunted elk out of season in Wyoming's Bighorn National Forest, land within the area the Tribe once used for hunting, and Wyoming prosecuted him.
The question before the Court
Did an 1868 treaty right letting Crow Tribe members hunt on "unoccupied" federal land end when Wyoming became a state, and did it cover Bighorn National Forest?
Why it matters
Crow Tribe members may now be able to invoke the 1868 treaty as a defense to Wyoming hunting citations, though the case still must resolve whether the specific hunting location was "occupied" and whether Wyoming's conservation rules apply. Other tribes with similarly worded 19th-century treaties may also revisit whether their hunting rights survived statehood.
What changes now
The case returns to the Wyoming state courts. On remand, Wyoming may still argue that the specific spot where Herrera hunted was "occupied" in a way that falls outside the treaty right, and that the state's wildlife conservation rules can still apply to tribal members exercising the treaty right. The Court did not decide either of those questions, so Herrera's case is not yet finally resolved.
What this does not decide
The Court held only that Bighorn National Forest is not entirely and automatically "occupied," not that every acre within it is open to treaty hunting, and it left open whether the specific site Herrera hunted counts as occupied. It also did not decide whether Wyoming's conservation regulations can still limit the treaty right.
Concurrences and dissents
Dissent — Justice Alito
Justice Alito argued the Court should not have reached the treaty question at all, because a prior federal appeals court ruling (Repsis) rested on two independent grounds, and the majority addressed only one. He believed the second ground — that Bighorn National Forest was already 'occupied' — still barred Herrera under ordinary issue-preclusion rules, making the majority's treaty analysis largely academic. He also doubted that the Mille Lacs decision changed the law enough to excuse Herrera from being bound by the earlier case.
How the Court got there
The legal reasoning, step by step
- The Court asked whether an 1896 decision, Ward v. Race Horse, which held that a nearly identical treaty hunting right ended automatically when Wyoming became a state, still controlled, or whether a later decision, Minnesota v. Mille Lacs Band of Chippewa Indians (1999), had undercut it.
- Mille Lacs established that a treaty hunting right ends only if Congress clearly expressed an intent to cancel it, or if the treaty itself lists an ending event that has occurred — not simply because a territory became a state.
- Because Mille Lacs rejected the reasoning behind Race Horse without formally saying so, the Court held that Race Horse no longer carries legal force on the statehood question, even though it was not expressly overruled.
- Applying Mille Lacs, the Court found no clear statement in the law admitting Wyoming to the Union, and no language in the 1868 Treaty itself, showing that Congress or the Crow Tribe intended the hunting right to end at statehood.
- The Court also held that a change in the controlling legal rule can excuse a party from being bound by an earlier lawsuit's outcome (the doctrine of issue preclusion), so a 1995 federal appeals court ruling against the Tribe based on Race Horse did not bar Herrera from raising the treaty right again.
- Turning to whether Bighorn National Forest counted as 'unoccupied,' the Court read the treaty's text and history to mean the Crow Tribe understood 'unoccupied' as land free of non-Indian residence or settlement, and concluded that simply designating land a national forest does not automatically make it 'occupied' in that sense.
Doctrinal impact
Cases affected by this decision
Limits Ward v. Race Horse (163 U. S. 504)
Its reasoning that statehood automatically ends treaty hunting rights is repudiated, though the case is not formally overruled.
Reaffirms Minnesota v. Mille Lacs Band of Chippewa Indians (526 U. S. 172)
The Court applies this case's framework requiring clear evidence before a treaty right is considered terminated.