Supreme Court Ruling Threatens Wildlife And Hunting

[AfricaHunting.com]

In an opinion released today, the Supreme Court ruled that an 1868 treaty between the U.S. and the Crow Tribe could give members of that tribe the right to ignore state hunting regulations and engage in the unregulated take of game beyond the borders of reservation land.

The case of Herrera v. Wyoming was brought to the Supreme Court by Clayvin Herrera, a member of the Crow Tribe and former tribe game warden. Herrera followed a group of elk past the Crow reservation's boundary and ended up taking several bull elk in the Bighorn National Forest in Wyoming.

Herrera asserted his treaty rights as a defense to criminal charges of illegally taking elk out of season. After he lost in state court, Herrera successfully petitioned the U.S. Supreme Court to consider his case.

Supreme Court Justices Sotomayor, Ginsburg, Breyer, Kagan and Gorsuch agreed with Herrera. They held that the Bighorn National Forest and other federal lands may fall within the scope of an 1868 treaty that permits members of the Crow Tribe to hunt on "unoccupied lands of the United States."

SCI assisted the Wyoming Game and Fish Department in this case, opposing the position of Herrera. SCI filed a "friend of the court" brief to defend the importance of state management authority over game on federal lands. This same principle could apply to 19 other treaties with similar language, spreading the impact to other Tribes and well beyond Wyoming.

In effect, the ruling could give Tribal members the ability to ignore the state hunting regulations. This could threaten wildlife populations. It could also lead to restrictions on non-Native hunters in order to keep harvests within biologically acceptable limits.

The glimmer of hope for state wildlife managers is that the ruling still allows Wyoming to make its case to the Wyoming state court that the state's hunting regulations should override treaty rights for reasons of "conservation necessity."

Four justices, including Justice Alito, Chief Justice Roberts, and Justices Thomas and Kavanaugh, filed a dissenting opinion strongly disagreeing with the majority ruling.

SCI argued in our brief that states could be forced to reduce the available harvest for non-tribal hunters since the unregulated take by tribal hunters not only reduces the potential availability of game for all, but also undermines the state wildlife managers' ability to accurately determine the number of animals removed from the population.

SCI will continue to monitor the case and, if needed, will help support Wyoming's efforts to demonstrate the conservation necessity of its game regulations.



Source: Safari Club International (SCI)

 

[Hogpatrol]

The sky is falling, the sky is falling. Good grief, SCI, get a grip. Talk about a one sided news release. They conveniently leave out all the pertinent facts of the case, like the 30 million acres they swapped in the treaty for those rights and it only allows out of season hunting, not all regulations. SCI needs to read the treaty before going off all half cocked and paranoid. It affects one tribe, one specific treaty with them, in one state and one regulation.

 

[Hank2211]

Maybe it's the lawyer in me, but it strikes me that a deal's a deal.

The Supreme Court was asked to determine if someone was guilty of a criminal offence, and in order to make that determination, they were required to interpret a treaty. That interpretation is done according to what the treaty itself says. If it is ambiguous, then reference can be had to surrounding circumstances and the intent of the parties, as deduced from the document itself. Matters like conservation, which were not even a consideration at the time, and were almost certainly never within the contemplation of either party to the treaty, can have no bearing on any sort of legal analysis or interpretation of a contract such as this, not should they. There are other matters - likely constitutional ones - which might go into the analysis, but conservation? No.

I don't disagree that these sorts of decisions can have a negative impact on conservation, but the solution to that issue isn't to re-write contracts or re-make deals we currently don't like, and hold someone guilty of a criminal offence when they otherwise would not be. Sort of a rule of law thing, it seems to me.

The conservation issue can be resolved by having the parties sit down and address that issue, much as they sat down 150 years ago. If conservation requires that one side give up rights guaranteed to them by the United States, then there's a solution - it just requires some good faith on both sides (and likely some compensation).

 

[JimP]

I believe that it is going to get real interesting before it is all finished.

Here is a link to a copy of The Treaty With The Crow-1868 The article about hunting is article 4

https://www.firstpeople.us/FP-Html-Treaties/TreatyWithTheCrow1868.html

 

[flatwater bill]

I'm not a lawyer, but don't Supreme Court cases usually set precedent? Maybe this won't be limited to one tribe in one area..........FWB

 

[CAustin]

Maybe it's the lawyer in me, but it strikes me that a deal's a deal.

The Supreme Court was asked to determine if someone was guilty of a criminal offence, and in order to make that determination, they were required to interpret a treaty. That interpretation is done according to what the treaty itself says. If it is ambiguous, then reference can be had to surrounding circumstances and the intent of the parties, as deduced from the document itself. Matters like conservation, which were not even a consideration at the time, and were almost certainly never within the contemplation of either party to the treaty, can have no bearing on any sort of legal analysis or interpretation of a contract such as this, not should they. There are other matters - likely constitutional ones - which might go into the analysis, but conservation? No.

I don't disagree that these sorts of decisions can have a negative impact on conservation, but the solution to that issue isn't to re-write contracts or re-make deals we currently don't like, and hold someone guilty of a criminal offence when they otherwise would not be. Sort of a rule of law thing, it seems to me.

The conservation issue can be resolved by having the parties sit down and address that issue, much as they sat down 150 years ago. If conservation requires that one side give up rights guaranteed to them by the United States, then there's a solution - it just requires some good faith on both sides (and likely some compensation).

Hank thanks for summing it up!

 

[wesheltonj]

I'm not a lawyer, but don't Supreme Court cases usually set precedent? Maybe this won't be limited to one tribe in one area..........FWB

Not necessarily. I read the summary but not the whole case. Under this treaty, were the hunting rights voided upon Wyoming granted statehood? The court ruled they did not unlike some of the other treaties in which they did. So much for his poaching.

I would agree that SCI is a little over the top.

 

[Mike Van Horn]

When l lived in Wisconsin the tribes were allowed to spear fish during the spawning seasons when fishing seasons were closed. On any lake they choose
I heard if your Native American in Canada you can hunt anything, not sure if that is only on reservations.
I don't think SCI is over reacting.

 

[Hogpatrol]

Full text of ruling:

https://casetext.com/case/herrera-v-wyoming-2

 

[Wheels]

I find the SCOTUS breakdown on this case enlightening.

It is always interesting seeing the personalities and thought process of the new justices put on display.

It looks like Gorsuch, Kavanaugh and Roberts all are close enough to the center to be able to step over the line from constitutionalist to living constitution interpreter on some decisions.

 

[sestoppelman]

I lay no claim to understanding the treaty rights etc., my only concern is when any one conservative judge sides with the four libtards on the court about anything. Kavanaugh did it the other day as well. He did however promise that he would not be a rubber stamp judge. No doubt Gorsuch did too. I am mostly happy with these guys, Roberts however is a fink in my view.

 

[JPbowhunter]

I was listening to Steve rinellas podcast when they talked about this with a journalist type guy and the accused apparently only claimed the treaty right defense when everything else failed.
He initially tried to "assist" the game warden when he was chasing up a potential poaching case. But the warden thought it was suspicious he was so interested. I believe they ended up using pics he posted of some elk bulls on another forum claiming they were on the reservation. But the warden and others using the pic backgrounds eventually found the carcasses off reservation. I believe the fear is the precedent and what could stem from that.

 

[Mekaniks]

Yeah, SCI went completely one sided and over the top with this article. It's designed to drive fear with folks that won't read the case and put in the time to understand the outcome. But since SCI "assisted Wyoming Fish and Game Department in this case" perhaps they can also assist WF&GD negotiating a successful management plan with the tribe moving forward? Oh wait... well maybe thats what this article is about.....bargaining.....Hmmmm???

 

[BRICKBURN]

............
I heard if your Native American in Canada you can hunt anything, not sure if that is only on reservations. .......

"First Nations" across Canada are composed of many "tribes"/Nations and operate with many different treaties that apply in various jurisdictions.
There are significant restrictions on hunting and fishing.
eg. National Parks, Provincial Parks, No hunting areas, corridor sanctuaries, private property (unless invited).
There are plenty of legal issues and court cases that have been ongoing.

Treaty rights do allow hunting for (an over simplification) "own use" on Public land and reservations.

 

[Powdermaker]

We recently had a case before the courts in Saskatchewan. A "First Nations" individual shot a moose on unoccupied private land. He was charged with hunting on private land without the landowners permission. It went before the court and the individual won his case. This opened up a huge can of worms. While first nations people could hunt for food on public land, they always needed permission to hunt on private land. The Saskatchewan government is now enacting a new trespass law which everyone must have permission to access private land.
This will have big implications for all of you American hunters who come up here duck, goose, and upland hunting. You will have to have permission to drive anywhere off road. Saskatchewan was probably one of the last places in the world where you could access private land without permission. I guess this change was bound to happen eventually. As a landowner, I am glad that the courts have made a clear decision. As a hunter, it will greatly affect my bird hunting.
The Federation of Saskatchewan Indians has vowed to take the Saskatchewan government to court over the implementation of the new trespass law. If they win, there will be a lot of hard feelings among the hunting fraternity.

 

[Ridge Runner]

It has been some decades ago...1960's, 1970's, perhaps as late as the early 1980's.....A Native American family living in Michigan(?).....(If my memory serves me right)...was charged with multiple offenses including poaching.

Basic background summary:

This particular situation involved a native American family living and practicing cultural native traditions.

A state wildlife officer witnessed the killing of a deer (or elk) out of season thus arrest and charge of poaching, further investation resulted in other charges.

When this case went to court, the judge ruled the dismissal of all charges and that wildlife officer had no jurisdiction over him and his family regarding their living and practing traditional native American ways of life.
And as such (they) ARE NOT required to purchase any type of hunting or fishing license and are able to legally pursue fish and wildlife in providing for their subsistance, whether such wildlife is regulated by season or not.

Historically:

Native Americans were the original conservationists of wildlife.

By practicing take no more than needed, waste nothing.

So What's the problem? As long as native cultural and traditions are practiced.

 

[Powdermaker]

Ridge Runner, you are right in saying it is no big deal, if only a few individuals are practicing their traditional hunting practices. Here in Saskatchewan , 16 % of the population is "first Nation" . There is a lot unregulated hunting going on. Meaning we don't have any idea how many animals are being killed each year. How can we manage the resource without some numbers to go on? Reminds me a lot of a hundred years ago, when there were no game laws. Where did that get us?

 

[flatwater bill]

The problem is that there are 8 billion plus humans on the Earth now. And there is little room for wildlife. The number of Native Americans and First Nations, whatever is the current PC term, has changed too. Not many lance and bow hunters either. The targeting of trophy species makes me wonder whether cultural tradition is the only use or value of these animals. And since I originally posted, I asked a friend and lawyer (Dave S.) who has done work here for conservation organizations, and he believes this is a really, really big precedent. That it will preclude all future negotiations by leaving an out......a get out of jail free card..who's implications on private land, National Parks, and closed areas is yet to be fully understood. I have just reviewed several articles where 380 inch elk and various big horn rams were used by the original conservationists for their "traditional" uses. I understand others have very different opinions. I read the treaty. But I think this is a brewing disaster................FWB

 

[JPbowhunter]

Decided against this post.

 

[Ridge Runner]

Ridge Runner, you are right in saying it is no big deal, if only a few individuals are practicing their traditional hunting practices. Here in Saskatchewan , 16 % of the population is "first Nation" . There is a lot unregulated hunting going on. Meaning we don't have any idea how many animals are being killed each year. How can we manage the resource without some numbers to go on? Reminds me a lot of a hundred years ago, when there were no game laws. Where did that get us?

Tribal leaders/councils, members don't want the wildlife they respect and hunt to vanish. "They" want wildlife to flourish as a means to protect their cultural heritage.

Game laws had to be enacted because encroaching westward movement of "settlers" were destroying the vast herds of animals: buffalo/bison, elk, beaver, white tail deer, and many other species west of the Mississippi River to near extinction.

In the areas east of the Mississippi River the once vast herds of eastern buffalo/bison and elk, the eastern populations of cougar/panther, eagles and wolf became extinct.

While eastern white deer, beaver, black bear, hawks and turkey were nearing extinction.

It wasn't just the unregulated hunting that discimated wildlife, but also the destruction of great forest and natural wildlife habitat.