Post-Herrera, Wyoming seeks hunting pacts with tribes

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.” 

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. 

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. 

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.