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Via Wyoming News Exchange

LANDER — The 2019 U.S. Supreme Court decision Herrera v. Wyoming upheld tribal rights to hunt on unoccupied off-reservation land, ruling that Wyoming’s statehood didn’t supersede the treaty rights of tribal members.

In the case, Wyoming officials attempted to cite a group of Crow reservation hunters for poaching after the party followed three elk from Montana into Wyoming in the Big Horn National Forest and shot them, then took them home for food.

In the wake of that decision, Wyoming has tried to figure out how it can be part of regulating tribal hunting.

During the last legislative session, a bill would have granted authority to the governor to negotiate with tribes on such hunting regulations, but after the Eastern Shoshone and Northern Arapaho tribes pulled their support and public outcry mounted, even the bill’s sponsors began backing away and the bill failed.

But last month, Wyoming Game and Fish Director Brian Nesvik, in a discussion with the Wyoming Joint Appropriations Committee, asserted that tribes still do not have the rights upheld in the Supreme Court decision.

Instead, he said, it’s illegal due to a “conservation necessity.”

But the Eastern Shoshone Tribe has called foul on that interpretation.

In a public statement, tribal officials explained that a “conservation necessity” was created by two U.S. Supreme Court cases: Puyallup Tribe v. Department of Game of Wash. (1968) and Minnesota v. Mille Lac band of Chippewa Indians (1999).

Such a necessity, they wrote, only exists when a particular species is endangered, and must pass three tests: the “conservation necessity” must be reasonable and necessary, it must be the least restrictive means to achieve the goal, and it cannot discriminate against Native hunters.

“Mr. Nesvik’s belief that a conservation necessity exists throughout the state of Wyoming for every species is unsupported by any facts,” tribal leaders wrote. “A conservation necessity could only apply to a specific area and one species such as deer, elk, bear, moose, antelope, etc., when the continuation of that species is endangered.”

Eastern Shoshone leaders say the Herrera decision did leave some questions unanswered.

“The case was remanded back to Wyoming for an evidentiary hearing on whether a ‘conservation necessity’ existed in the area where Mr. Herrera hunted,” they wrote. “As far as the EST knows, an evidentiary hearing was never held. This is one of the unresolved issues.”

This story was published on February 17, 2024.