Herrera v. Wyoming

Background

Clayvin Herrera, a member of the Crow Tribe, was charged in Wyoming after he and other tribe members hunted elk in Bighorn National Forest off the Crow Reservation. Wyoming courts treated an earlier case (Repsis) and a 19th-century decision (Race Horse) as ending the Tribe’s 1868 treaty hunting right at statehood, or as making the national forest “occupied” and therefore outside the treaty. Herrera argued the 1868 Treaty preserved the right to hunt on unoccupied federal lands while game remained.

Reasoning

The Court addressed whether the treaty right survived Wyoming’s admission and whether the national forest became categorically “occupied.” Relying on the Court’s later decision in Minnesota v. Mille Lacs, the majority rejected Race Horse’s rule that statehood automatically extinguishes treaty rights and explained that Congress must clearly express any intent to abrogate a treaty. The Court read “unoccupied” as meaning lands without non‑Indian settlement, and found President Cleveland’s proclamation reserving Bighorn National Forest from entry or settlement did not make the lands occupied under the 1868 Treaty. The Court vacated Herrera’s conviction and remanded for further proceedings.

Real world impact

The decision restores the ability of Herrera and other Crow Tribe members to assert the 1868 treaty defense in Wyoming and opens the door for similar claims by tribes with like treaty language. It does not declare every spot in Bighorn unprotected: the State may still argue a particular site was occupied or that conservation rules apply, and those factual and regulatory issues go back to the lower courts.

Dissents or concurrances

Justice Alito, joined by the Chief Justice, Justice Thomas, and Justice Kavanaugh, dissented, arguing the Tribe is bound by the prior Repsis judgment and that the majority’s opinion may be moot if preclusion remains applicable.