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.”