The Bighorn Mountains, captured here from the Lovell area, are where Crow tribal member Clayvin Herrera hunted elk outside of the Wyoming Game and Fish Department's season in 2014. A poaching charge brought against Herrera went all the way to the U.S. Supreme Court, where the high court ruled in Herrera's favor and recognized the Crow Tribe's 1868 treaty right to hunt "unoccupied lands of the United States." (Mike Koshmrl/WyoFile)

Until now Monte Mills had never seen a state try to promulgate rules that stem directly from Herrera v. Wyoming, a U.S. Supreme Court decision that recognized a Crow tribal member’s right to hunt unoccupied, off-reservation land ceded by a 1868 treaty.  

On Thursday, Mills, who directs the University of Washington’s Native American Law Center, reviewed a draft of House Bill 83 – Tribal agreements to hunt and fish, which attempts to translate the high court’s decision into state law. 

“From the tribal perspective, this is laying the groundwork for some meaningful negotiation and dialogue and agreement,” Mills told WyoFile. “Under Herrera, the rights are there under federal law — there isn’t a requirement for a state [hunting or fishing] license — so the implementation and cooperation around how that works is really important. That’s where these agreements are really important.” 

House Bill 83 does just that, paving the path for an agreement. As drafted, the bill does not grant carte blanche unlicensed hunting or fishing access for tribal members in places like the Bighorn Mountains, the Shoshone National Forest or other “unoccupied lands of the United States” — the language used in the treaty. Instead, the legislation grants the governor authority to negotiate with tribes about treaty-based hunting, fishing, trapping and gathering rights in Wyoming. In the bill’s current form, any new off-reservation tribal seasons must align with Wyoming Game and Fish Department seasons, though the bill permits “limited exceptions for ceremonial, traditional or religious purposes.” 

The Eastern Shoshone Tribe set the current legislative effort in motion, said Kit Wendtland, special legal counsel for Gov. Mark Gordon. 

“The bill really emerged out of our discussions with the Eastern Shoshone,” Wendtland said. “They came to us earlier [in 2022] asking to talk about their off-reservation treaty hunting rights.” 

Kit Wendtland, special counsel for Gov. Mark Gordon, in January 2023. (Mike Koshmrl/WyoFile)

The Eastern Shoshone have the same language about hunting rights in their 1868 treaty as the Crow, a now Montana-based tribe whose hunting rights were also secured in 1868, he said. 

Eastern Shoshone Business Council Chairman John St. Clair and Councilman John Washakie were unable to be reached for comment on Thursday or Friday. 

Clayvin Herrera, a Crow tribal member, challenged the Wyoming Game and Fish Department after being charged with off-season elk hunting in the Bighorn Mountains in 2014. In 2019 the U.S. the Supreme Court agreed with Herrera that the Crow’s hunting rights on unoccupied, ceded lands had not been extinguished. A 123-year precedent, established in Ward v. Race Horse, had previously held sway giving state game laws primacy over treaty rights. 

“Before Herrera the case law was the exact opposite,” Wendtland said. “Did the state engage in this lengthy litigation and go to court all the way up to the Supreme Court? Of course. However, it was really a sea change in the law, and in the wake of that, the fact that we’re able to have this discussion shows the positive relationship with the tribes.”  

In its current unamended form, HB 83 carefully defines the types of agreements Wyoming can engage in with the tribes. 

“It seems like this draft bill is fairly narrow,” Mills said, “at least in terms of what types of agreements that governor would be authorized to enter into.” 

For one, the Wyoming-tribal pacts must jibe with state statute. Tribes must also have bag limits, or enforceable game hunting, fishing and trapping regulations ensuring there aren’t free-for-all seasons. In its current iteration, the bill demands that hunters and anglers unlicensed by their tribe would be subject to applicable state law outside of the Wind River Indian Reservation. 

One provision built into the bill allows Game and Fish wardens to enforce state law “when necessary for conservation.” Another establishes that private land is off-limits to tribal hunters and anglers who lack permission. 

Except for the ceremonial and religious exemptions, HB 83 also requires tribes to establish off-reservation regulations that align with Game and Fish rules. Tribal hunters must also respect the state agency’s area closures. Last, the tribes must collect and share harvest data with Game and Fish. 

Wyoming Game and Fish Department Director Brian Nesvik testifies before the Wyoming Game and Fish Commission at a January 2023 meeting. (Mike Koshmrl/WyoFile)

Addressing the Wyoming Game and Fish Commission on Wednesday, Game and Fish Director Brian Nesvik called the tribal agreement bill his agency’s “biggest legislative lift” of the year.

“While this bill does not specifically delineate how [off-reservation seasons] would work,” Nesvik said, “it does provide sideboards the governor would have to follow when negotiating with different tribes in Wyoming.” 

Compared to other states, not many federally recognized tribes call Wyoming home, Nesvik said. To start off with, the state is negotiating with the Eastern Shoshone, he said, and they’ve been in discussions for almost a year. 

Another starting point, is that Wyoming will look at agreements for off-reservation hunting and angling on “public land that isn’t occupied,”  Wendtland said. “Unoccupied will have to be determined on a case-by-case basis,” he added.

It’s unclear if the Northern Arapaho Tribe could also be in line for off-reservation seasons.

“Their treaty is different,” Wendtland said. “Fleshing out their [treaty] right, that’s a different conversation.” 

Northern Arapaho Business Council Chairman Lloyd Goggles said he’d only become aware of the legislation “maybe three weeks ago.”

“I’m still reading some of the materials on it,” Goggles said. 

Lloyd Goggles, chairman of the Northern Arapaho Tribe, in Cheyenne in January 2023. (Mike Koshmrl/WyoFile)

The Northern Arapaho’s in-house legal counsel, Goggles said, have generated “rough draw” maps that illustrate where its members might have claims. That was in the southeastern part of the state, he said, near the Northern Arapaho’s historical lands. 

Wendtland and Mills both emphasized that Wyoming isn’t headed for uncharted waters. Other states, they said, have negotiated with resident tribes and established off-reservation hunting seasons. Off-reservation tribal bison hunts, for example, play out every winter along the northern boundary of Yellowstone National Park in Montana. Yellowstone itself is looking into expanded access for members of the two dozen-plus tribes whose ancestral lands overlap with the modern day park. 

There are a “whole bunch of states” with tribal-state hunting and fishing agreements, Wendtland said. “What those agreements have in them,” he said, “is all over the place.” 

House Bill 83 was introduced by Reps. Lloyd Larsen (R-Lander), Barry Crago (R-Buffalo), Chip Neiman (R-Hulett), Sandy Newsome (R-Cody), Ember Oakley (R-Rawlins), Albert Sommers (R-Pinedale) and Sens. Eric Barlow (R-Gillette), Cale Case (R-Lander), Dan Dockstader (R-Afton), Ogden Driskill (R-Devils Tower) and Affie Ellis (R-Cheyenne). 

On Thursday the bill was assigned to the House Appropriations Committee.

Mike Koshmrl

Mike Koshmrl reports from Jackson on state politics and Wyoming's natural resources. Prior to joining WyoFile, he spent nearly a decade covering the Greater Yellowstone Ecosystem’s wild places and creatures...

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  1. Fascinating. Seems a shame the Owl Creek drainage has no public (or First Nations) access to the wilderness area where it heads. The idea of starting in the Owl Creek drainage and coming out in the Wind River drainage (or vice versa) could be a fabulous experience I would think, would take Fed, WY, Shoshoni, and local rancher cooperation and public recognition of the potential both positive and negative). Tribal hunting and possible predictor control would factor.

    1. Paul: There already is a historic road going from the Owl Creek drainage over the Owls to the Wind River. Its called the Blondie Pass road which follows an ancient Indian trail into the Big Horn Basin. Its also known as the Fort Washakie to Red Lodge stage coach road which was the very first road declared a county road by Fremont County in 1884 – the Fremont County road records are now online showing the hand written road description. On the Owl Creek side, the road comes out at anchor Dam. Suitable for 4 wheel drives with 2 spare tires.

  2. Nice to see the tribes win one after being screwed by Game and Fish.

    As for “HB 83 also requires tribes to establish off-reservation regulations that align with Game and Fish rules. Tribal hunters must also respect the state agency’s area closures. Last, the tribes must collect and share harvest data with Game and Fish. ”

    I don’t remember seeing that in the Fort Bridger Treaty of 1868 language: “but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.”

    Seems pretty clear that Wyoming Game and Fish have no authority to make demands of a sovereign nation under the treaty. What am I missing?

    1. “they shall have the right to hunt….” per the Treaty. Pretty unambiguous. It doesn’t say they shall have the “privilege” to hunt. The restrictions in the bill seem pretty onerous on that “right”. Much the same issue as 2A supporters make (which of course include most of the legislators in Cheyenne) that the possession of firearms is a “right” and not a “privilege”. After all, isn’t Wyoming a 2A Sanctuary State? Let’s see the same legal standard applied. The tribes should reject any proposed restrictions they feel impinge upon their rights.

  3. SOME OFF RESERVATION HUNTING HISTORY – POWDER RIVER BASIN:
    The Sioux nation also negotiated a treaty at Fort Laramie in 1868 and I believe it gave them hunting rights all the way to the Bighorn Mountains; that is, almost all of the Powder River Basin. The early ranchers occasionally encountered Sioux that had left South Dakota and traveled to Wyoming – if I remember right this is documented in the book ” Pulling Leather” which is about the early AU7 on the Cheyenne River – this would be in the 1880s up to early 1890s. They left each other alone with no problems.
    This all came to an end in 1904 on Lightening Creek NE of Douglas where a sheriff’s posse from Converse County engaged in an shootout with a small group of Sioux who were hunting in the area. About four Sioux were killed and if I remember right, the converse County Sheriff was killed. Since then, I’m not aware of any encounters between the Sioux and settlers.
    The Sioux have concentrated their efforts on return of the Black Hiils and apparently have not shown a lot of interest in pursuing their off reservation hunting rights in Wyoming – this could change due to the publicity the Herrera case and the Eastern Shoshoni negotiations have caused.
    Interesting that the Northern Arapahoe are looking at SE Wyoming – I don’t even know if they were at Ft. Laramie in 1868 – apparently they aren’t tying their off reservation hunting rights to the Wind River Reservation or Shoshone treaty of 1868.

  4. the tribes should be allowed to hunt & fish anywhere they want without permission.
    the big horn mountain range were fiercely fought over by the tribes because of the fish & game.
    the medicine wheel is not there by accident,which was testament to the importance of this range to the tribes.

    1. I agree the tribes should hunt where ever, when ever they want. But as I agree with that, I also agree that all non tribal members should have the same right. If we give one group of people carte blanche then we must give it to all. I mean, if we are going to end 120 years of wildlife conservation, tribal members aren’t the only ones who should reap the spoils for the few years public wildlife has left. It will be the wild west for 4 or 5 years, then there will be nothing left. There is nothing in the law that demands that non tribal members pay to preserve and manage wildlife for tribal members to take whenever they feel like it. So lets shoot everything and be done with it. Unless of course, tribal members agree to modern day wildlife management for a modern day world.