Clayvin Herrera

Clayvin Herrera was cited in 2015 for poaching elk south of the Crow Reservation in Wyoming. 

Gazette Staff

A Crow tribal member’s legal battle, claiming 150-year-old treaty rights allowed him to kill a bull elk on national forest land in Wyoming in 2014, has made its way to the U.S. Solicitor General’s office.

Solicitor General Noel Francisco is the No. 3 official in the U.S. Department of Justice. As solicitor general he represents the United States before the U.S. Supreme Court.

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Noel Francisco

Francisco

On Monday, Francisco was “invited” by the Supreme Court justices to write a brief regarding Montana resident Clayvin Herrera’s request for a review of a lower court’s decision. Herrera was found guilty in a 2016 jury trial of killing an elk outside the state hunting season on the Bighorn National Forest. His appeals of that judgment have been upheld or dismissed by subsequent state and federal courts.

"As gatekeeper for the Court, the Solicitor General plays a sometimes delicate and difficult role," wrote Stephen Wermiel on the SCOTUSblog. "The Court relies on the Solicitor General for an honest assessment of when a question of federal law or sometimes of constitutional rights really merits the Court’s attention."

A review by the U.S. Supreme Court is Herrera’s last chance to argue that Crow tribal members’ right to hunt on unoccupied federal lands, guaranteed in an 1868 treaty with the federal government, are still valid. The high court accepts only about 100 to 150 of the more than 7,000 cases that it is asked to review each year, according to the United States Courts website.

Wyoming courts have argued those treaty rights were revoked when Wyoming became a state and when the Bighorn National Forest was created, thereby making the federal lands occupied. The trial court refused to allow Herrera to argue treaty rights as his defense, saying the issue had been settled in previous cases.

But Herrera’s defense team says the contradictory interpretation of treaty rights by different federal courts has raised inconsistencies that only the U.S. Supreme Court can reconcile. Montana and Wyoming law professors as well as Little Bighorn College history professor Timothy McCleary have filed briefs supporting Herrera’s contention.

Monte Mills, a University of Montana law professor who filed a brief supporting Herrera's case, said it could be springtime before Francisco files his brief with the high court. Mills said he's glad the petition wasn't rejected outright.

"This is precisely the type of matter the Supreme Court should be considering," he said.

A decision in Herrera’s favor by the court, if it should take up the case, could affect at least 19 other tribes that were guaranteed off-reservation treaty hunting rights.

Herrera’s counsel, which includes Billings attorney Kyle Gray, filed a brief with the Supreme Court in November requesting that it order the lower court to provide its case record for review. Wyoming has, in part, argued that there is no case to review since the ruling was a matter of law.

In the conclusion of its 13-page brief, Herrera’s attorneys argue, “At bottom, there are no obstacles to deciding whether the rights of all Crow Tribe members should eternally be held hostage to legal reasoning that flunks every test of treaty interpretation, statutory interpretation, and common sense. But if these century-old federal treaty rights really are no longer the ‘supreme Law of the land,’ and Tribe members can be criminally convicted for engaging in expressly protected activities, the Tribe deserves to receive that extraordinary judgment from this Court.”

In the original judgment, Herrera was fined and ordered to pay costs of $8,080, received a suspended jail sentence and had his hunting privileges suspended for three years.

The case is Herrera v. Wyoming, case number 17-532.

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