CHEYENNE—The Wyoming Legislature’s effort to craft policy recognizing tribal members’ treaty-enshrined hunting rights to pursue wild game on ancestral lands unraveled this week.
Once broadly supported, House Bill 83 – Tribal agreements to hunt and fish would have granted Gov. Mark Gordon the authority to negotiate state-tribal pacts for off-reservation hunting and angling seasons that went outside of Wyoming Game and Fish Department regulations. Initiated by the Eastern Shoshone Tribe, the legislation was hamstrung mid-session when it lost all tribal support. On Tuesday that setback triggered the bill’s demise during its third reading on the Wyoming Senate floor.
“I heard about it at church this weekend,” said Rep. Cale Case (R-Lander), who’s district covers the southwest side of the Wind River Indian Reservation. “People are very upset, and I just think that has poisoned the well.”
House Bill 83 attempted to translate the U.S. Supreme Court’s Herrera v. Wyoming decision into state law. The 2019 high court decision recognized that Crow Tribe member Clayvin Herrera’s 1868 treaty rights to hunt on “unoccupied lands” had not been extinguished by statehood. A 123-year-old legal precedent established in Ward v. Race Horse previously gave state game laws primacy over treaty rights.
Case dubbed HB 83 a “great brainstorming session,” but said he recognized the tribe’s misgivings about “prescriptive language” imposed on a sovereign tribe “that predates the state of Wyoming.
“You can see why they’re upset,” he said.
Case and Sen. Affie Ellis (R-Cheyenne), formerly HB 83 co-sponsors, both took the unusual step of requesting that the Legislative Service Office remove their names from the legislation after the Eastern Shoshone Tribe pulled its support.
“This bill is just not ready for primetime,” Ellis said. “As it stands right now, we’re missing a key player that would make this bill work.”
Ellis, a Navajo Nation member, had attempted to strip HB 83 of provisions that Eastern Shoshone and Shoshone-Bannock tribal members said violated their sovereignty. Her amendment, proposed in the Senate Travel, Recreation, Wildlife and Cultural Resources Committee, failed 2-3. Shortly thereafter, Sens. Fred Baldwin (R-Kemmerer), Mike Gierau (D-Teton) and Wendy Schuler (R-Evanston) advanced the bill out of committee in the face of tribal opposition that kept mounting.
Members of the Eastern Shoshone Tribe protested the bill in Fort Washakie last week, yet in the two days that followed HB 83 cleared its first two voice votes on the Senate floor. Following Case and Ellis’ remarks, however, its reception among lawmakers took a sharp turn.
House Bill 83 was voted down 8-23 when it came up for a third reading on Tuesday. Sens. Tim French (R-Powell), Gierau, Larry Hicks (R-Baggs), Bob Ide (R-Casper), Dave Kinskey (R-Sheridan), John Kolb (R-Rock Springs), Ogden Driskill (R-Devils Tower) and Schuler were on the short side of the vote.
With HB 83 dead, Gordon and other Wyoming policymakers will lack the authority to depart from Game and Fish regulations in their negotiations with the tribes.
“Although the bill did not pass, Governor Gordon believes that finding agreement through government-to-government collaboration based on shared values will yield superior results over adversarial litigation,” the governor’s communications director, Michael Pearlman, said in an emailed statement. “At the end of the day, the important goal is to find a path forward that protects and respects both the Tribes’ and the State’s shared values of wildlife conservation and responsible hunting for generations to come.”
Still, much of Wyoming’s off-reservation hunting dispute with the tribes is likely to be unwrinkled in the courtroom. Language about hunting in the Crow and Eastern Shoshone’s treaties do not grant carte blanche access to hunt unoccupied land. In full, the clause reads: “…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.”
At the U.S. Supreme Court’s direction, the Sheridan County Circuit Court has been tasked with sussing out what constitutes “unoccupied land,” and whether state regulation of hunting in places like the Bighorns is necessary for conservation. No hearing date in that remanded case has been set, according to Wendy Bloxom, the circuit court’s chief clerk.
Wyoming game wardens, in the meantime, will be taking their cues from county prosecutors, though Game and Fish Director Brian Nesvik said he expects for his officers to treat tribal members and non-tribal members the same.
“We certainly believe the law is on our side,” Nesvik said. “It’s still not legal — until we can come up with some kind of an agreement — for tribal members to be taking wildlife outside of the normal seasons and without licenses.”
I am member of the Shoshone-Bannock Tribes of Idaho. My great grandfather was John Racehorse, Sr. or “Pohave” who the case “Ward v. Racehorse is about. Prior to Wyoming to being a State and Idaho we hunted fished and gathered in these areas. With the coming of the colonialist also came bad men who were poaching deer, elk, moose, buffalo and selling the meat since upon their arrival they noticed our tribal people at the time taking game only seasonally in what is now the Yellowstone Park areas and even east and south of there. Today we continue to hunt fish and father under our Treaty of 1868 and we have our own game codes, off reservation tagging system, and we have our Federally Trained Game Wardens monitor our hunting, fishing and gathering in what we know are our traditional hunting, fishing, and gathering areas. We have very qualified biologists who assist in the development of and management of the fish and game we take. If fact in the Salmon River basin of Idaho we (our fisheries programs) have worked to bring salmon back to many of these streams. The State of Wyoming is trying to use conservation as a means of trying to say Indians will abuse the and take to many species of game. We do not have enough members for that ever to happen. We self manage better than the States do with educated and qualified people. If conservation is such an issue why does Wyoming sell so many out of state tags for hunting in Wyoming to out of state residents. This alleged argument doesn’t fly. We are the first people and we respect all living beings and we have ceremonies to pray for a continued abundance of our brothers the deer, elk, buffalo, moose, all things our Mother Earth provides. We always seek to live in balance with nature.
There is an irony that is often ignored here. There are actually tribal members that run livestock on the reservation on tribal leases that are issued somewhat similarly to BLM permits. There is a disastrous overpopulation of horses on the north end of the reservation that threatens those tribal stock people’s living. Their game animals are suffering and reintroduced and protected predators are moving in. Given this, you think your dreams of basically expanding the reservation are “an interesting scenario”. I cannot believe what I read here most of the time.
Any hunting by tribal members off reservations under the treaty language should be mandated with the use of hunting tools used by tribes at that time. No compound bows, no high powered rifles, no ATVs or pickups.
Treaty harvest of bison and other game near Gardiner, MT has turned into a dangerous circus from “Native” tribal hunters. Enough virtue signaling and Wokeness. Tribal members are American citizens and should simply follow the same rules expected of the rest of us.
When whites first came to what is now wyoming they met thousands of buffalo and huge herds of deer and elk. They killed every thing to make room for farms and ranches. Today the tribes on the Wind River are constantly chasing off white poachers because they come for trophy bull elk they can’t find anywhere in they’re “managed” areas. The 1868 Treaty is the law of the land said the U.S.S.C. Yet for some reason it’s the law when it’s to white benefit. This is going to court again and Wyoming will lose.
“This is going to court again and Wyoming will lose.”
Everyone sees the writing on the wall…..except for the people “leading” the state.
AN AMAZING SCENARIO WHICH COULD DEVELOP: Have you ever considered the possibility of the Eastern Shoshone re-populating the off-reservation tribal hunting grounds granted to them by the treaty of 1868 with buffalo??? That is, the Shoshones could release hundreds of buffalo with their brand on the designated unoccupied federal land. The implication would be that the Shoshone not only have the right to hunt off-reservation, but that, their treaty rights also extend to managing the buffalo on the designated land. Please note that buffalo are typically not managed by Wyoming Game and Fish and are not subject to a hunting season. Consider that buffalo are the original native species whereas wild horses, cattle and sheep are the intrusive species. How would the Federal court rule on this matter???
EXAMPLE: In 1973 the Sioux camped on George Washington’s head on Mt. Rushmore and were not removed by the National Park Service since their treaty with the US granted them the Black Hills. They also camped all summer at Victoria Lake SW of Raped City on USFS land and were not harassed or told they couldn’t do so by the Federal government. Their argument which went unchallenged was that they owned the Black Hills and they were simply camping on their tribal land.
So, what would happen if the Shoshone turned their branded buffalo lose on the unoccupied BLM lands such as the Red Desert??? And, do the buffalo have the right to migrate unimpeded such as the elk, deer and antelope do??? The high desert unoccupied BLM lands could revert to the original species such as elk, deer, antelope and buffalo and the introduced non-native species being wild horses, cattle and sheep would be forced off the land do to lack of forage.
There is not room for another species on the high desert; therefore, reintroduction of buffalo by the Shoshone would force somebody else out. Why don’t the Shoshone have the right to reintroduce buffalo on their designated hunting grounds off the reservation?? I would bet on the Shoshones in Federal court.
Wildlife conservation has a long history of success in Wyoming. In fact, if not for the efforts on non tribal members, it wouldn’t remain in any area on or off the reservation. So, if tribal members think that the taking of game without regard to seasons or limits, game who’s management is paid for 100% by non tribal members, will bring about “peace among Whites and Indian’s” as the treaty requires, that thinking is not correct. The only way forward is for tribes to work with the state to carve out a niche where tribal taking of game is all part of the management quota. This isn’t 1868 anymore. Wildlife conservation practices were not needed then. It’s a different world now. Folks need to work together to find a pathway forward.
If Nesvik thinks that G and F have any say or control regarding this matter and that Wardens will ticket tribal members, then he’ll find out that you don’t supersede the Feds. The law is not on the G and F side and his statements are just plain boneheaded.
Thad, what is part G and F? What do they say and how does it impact the law?