## Facts

- An 1868 treaty between the United States and the Crow Tribe reserved to the Tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts.”
- In January 2014, Clayvin Herrera, a Crow Tribe member, and others followed elk from the Crow Reservation in Montana into Bighorn National Forest in Wyoming and killed three elk.
- The hunters lacked Wyoming hunting licenses and hunted during closed season; the meat was taken back to Montana.
- Wyoming charged Herrera with misdemeanors for off-season hunting and for being an accessory to taking elk without a license.
- Herrera moved to dismiss, asserting the treaty hunting right as a federal defense that preempted state game laws under the Supremacy Clause.
- State courts rejected the defense, concluding the right ended at statehood and that the national forest was not “unoccupied,” and relied in part on a prior federal decision addressing the same treaty.

## Issues

1. Whether Wyoming’s admission to the Union abrogated the Crow Tribe’s 1868 treaty right to hunt on “unoccupied lands of the United States.”
2. Whether creation of Bighorn National Forest categorically rendered the forest “occupied,” eliminating treaty hunting within its boundaries.
3. Whether prior litigation concerning the treaty right precluded Herrera from asserting the treaty defense in his criminal case.

## Decision

- The Supreme Court held that Wyoming statehood did not abrogate the 1868 treaty hunting right because Congress did not clearly express an intent to terminate it.
- The Court held that designation of Bighorn as a national forest did not categorically make the land “occupied” for treaty purposes.
- The Court held Herrera was not precluded from litigating the treaty issues, including because intervening Supreme Court precedent altered the controlling legal framework.
- The Court vacated the state appellate judgment and remanded for further proceedings, including case-specific consideration of whether the particular hunting location was “occupied.”

## Legal Principles

- Indian treaty rights persist after statehood unless Congress clearly expresses an intent to abrogate them or an express termination condition in the treaty is satisfied.
- Indian treaties are interpreted as the Tribe would have understood the terms at the time of agreement.
- The term “unoccupied” in an off-reservation hunting clause may turn on factual conditions (e.g., settlement or residence) and is not automatically negated by federal land designation such as a national forest.
- Issue preclusion may not bar relitigation of legal questions when intervening decisions substantially change the controlling law, and its application is constrained where it would foreclose a criminal defendant’s federal-right defense.

## Conclusion

The Court ruled that the Crow Tribe’s treaty-based off-reservation hunting right was not extinguished by Wyoming’s statehood and was not categorically displaced by creation of Bighorn National Forest, vacating Herrera’s convictions and remanding for determination of whether the specific hunting area was “unoccupied” under the treaty.


Herrera v. Wyoming, 139 S. Ct. 1686 (2019)