When White People Stopped Indigenous Elk Hunts In Jackson Hole
Frontier racism and injustice prompted legal action that still ripples across America, involving native hunting and fishing rights. Red Lodge writer John Clayton takes a deep dive
For the Crow, Yellowstone country wasn't a mere hunting ground but part of a larger home land. Here, Bird On the Ground and Forked Iron pose for photographer Edward Curtis in 1908. Image courtesy Library of Congress
EDITOR'S NOTE: In recent years, court clashes over hunting rights involving the federal government, states and indigenous tribes have been in the news, rising to the US Supreme Court. From incendiary racially-tinged debates over walleye fishing in Minnesota and Wisconsin to a victory by the Crow tribe involving hunting in the Bighorn Mountains of Montana and Wyoming, indigenous nations are exercising their legal authority through historic treaties. As Red Lodge writer John Clayton notes in this important investigative report, what happened in Yellowstone and Jackson Hole at the end of the 19th century represent flashpoints for discussion. Mountain Journal offers thanks to Wyohistory.org—a project of the Wyoming State Historical Society—for being able to bring you this piece that was just published in autumn 2020. We praise Wyohistory, project director Tom Rea and Clayton for diving deep into an issue that has important implications for public lands, indigenous rights and the West coming to terms with racist attitudes that still exist. —Mountain Journal founder Todd Wilkinson
by John Clayton
On July 13, 1895, a party of Bannock Indians awoke in their camp
to find themselves surrounded by 27 armed white men. The Bannock party
resembled a family reunion, with nine men, 13 women and five children camped
near the confluence of the Hoback River and Granite Creek, about 30 miles
southeast of today’s Jackson, Wyoming inside the Greater Yellowstone Ecosystem.
They had traveled from the Fort Hall reservation in Idaho to
hunt elk, as they always did, and as was clearly permitted in their treaty with
the U. S. government. They had avoided white settlements and harvested only
enough meat to feed themselves through the winter.
Today, the area around Jackson is known for tourism, scenic
beauty, wilderness, and elk. In 1895, the elk were seen as the key to the
region’s economy and future. For the 60 or so white people who lived on
homesteads scattered across the area, Indian elk hunting was a threat.
So the whites initiated what is sometimes called the Bannock War of
1895—although, as we will see, the Bannocks never fired a shot.
Today, the area around Jackson is known for tourism, scenic beauty, wilderness, and elk. In 1895, the elk were seen as the key to the region’s economy and future. For the 60 or so white people who lived on homesteads scattered across the area, Indian elk hunting was a threat.
That July day of terror
for the Bannocks led to a summer of hysteria for the whites. The tensions were
“resolved” in a much-maligned 1896 U. S. Supreme Court decision, known as the Race Horse case.
More than a century later, in a 2019 case known as Herrera, the Supreme Court fully repudiated its Race Horse principles.
The question of how to
combine indigenous peoples’ treaty-reserved hunting rights with Wyoming’s
conservation and land management regulations can now be resolved all over
again, this time, one would hope, with justice for all.
Causes Of The 1895 Bannock "War"
Traditional Bannock
lifestyles had involved seasonal migrations, including winters in the
bottomlands of Idaho’s Snake or Bear Rivers, and large spring and fall
gatherings to organize hunting parties in the high country of what is now
northwest Wyoming. In the 1860s, as whites began migrating through the area,
fights erupted with the Bannock and their allies, the Shoshone, including on
Jan. 29, 1863, when whites massacred hundreds of indigenous people at Bear
River, near today’s Preston, Idaho.
The Fort Bridger Treaty of 1863 assigned Bannock, Shoshone and
associated tribes a 44 million acre reservation across large swaths of today’s
Wyoming, Idaho, Utah and Nevada. But the federal government failed to enforce
that treaty against encroachment from miners, buffalo hunters, migrants,
agriculturalists, members of displaced Great Plains tribes and others. In the Fort Bridger Treaty of 1868, the tribes gave up the
vast majority of those lands, with the Eastern Shoshone selecting the Wind River reservation,
near today’s Lander, Wyo., and the Bannock, after a five-year delay, selecting
the Fort Hall reservation, near today’s Pocatello, Idaho.
The 1868 treaty stipulated that the tribes “shall have the right
to hunt on the unoccupied lands of the United States so long as game may be
found thereon, and as long as peace subsists among the whites and Indians on
the borders of the hunting districts.” A treaty signed with the Crow tribe the
same year contained identical language.
Those hunting rights were important for two reasons. First, many
indigenous cultures see people as part of nature (rather than separate from
it), and thus hunting not only as a form of natural regulation, but also as an
expression of connection between an individual and the wider natural world. In
agreeing to live on a reservation, Bannock, Shoshone and Crow people weren’t
giving up that philosophy.
Second, whites failed to fulfill their treaty obligations to
provide the Fort Hall tribes with sufficient rations, or tools for farming on
the reservation. Bannocks had to hunt or starve. On subsistence hunting trips,
a party would receive a pass from the reservation’s Indian agent, written in
English so that anyone who encountered them could confirm the legitimacy of
their trip. Unlike white settlers, indigenous people had methods of drying and
preserving meat to eat through the winter. They could also use elk hides, or
sell the hides, often to white merchants.
Frederic Remington imagined how the party of Bannocks looked fording the Snake River in Jackson in 1895 for an article in Harper's Magazine. Painting is part of Remington Art Museum permanent collection.
Whites first permanently settled Jackson Hole in the late 1880s.
They centered on a post office called Marysvale, located near today’s town of
Jackson. Harsh winters meant difficult farming, but scenery and wildlife drew
sport hunters. Many locals, including Stephen N. Leek, who arrived in 1888,
made their living as guides.
By the early 1890s,
Jackson Hole elk populations were dwindling. In retrospect, it’s clear that
much of the problem was habitat. White homesteaders and their fences had
disrupted elk migrations and winter ranges.
But at the time, attention centered
on overhunting. Shortly after statehood in 1890, Wyoming passed
regulations to
create hunting seasons and limits to try to conserve wildlife. But it did
little enforcement, especially in Jackson Hole, which was then part of Uinta County,
with the county seat of Evanston almost
250 miles south.
Who overhunted?
Whites in Jackson Hole claimed that Bannock and Shoshone engaged in “wanton slaughter”
of elk. Jackson Hole residents claimed that Indians killed elk for only the
commercial value of their hides. The administration of nearby Yellowstone National Park also focused on Indian
depredation. Beginning in the 1880s, Yellowstone superintendents complained to
Indian agents that traveling parties of indigenous people decimated Yellowstone
wildlife populations.
The administrators believed that once Yellowstone became a
national park, it was no longer the “unoccupied land” where Indian treaty
hunting rights applied. It was now occupied by a national park. South of the
park, as homesteads started dotting Jackson Hole, residents believed that their
entire valley was just as “occupied” as Yellowstone, if not more so.
The administrators believed that once Yellowstone became a national park, it was no longer the “unoccupied land” where Indian treaty hunting rights applied. It was now occupied by a national park. South of the park, as homesteads started dotting Jackson Hole, residents believed that their entire valley was just as “occupied” as Yellowstone, if not more so. However, evidence suggests that whites in Jackson Hole were responsible for more elk slaughter than Indians.
However, evidence suggests that whites in Jackson Hole were
responsible for more elk slaughter than Indians.
For example, memoirs of Jackson Hole settlers’ children uniformly recalled
eating elk and venison meat year-round. Unlike the Indians, few whites were
skilled at preserving meat in summer months, so often left much to rot. And
visiting hunters wanted trophies such as antlers or elk teeth, not meat. In
1901, for example, a party of eight hunters with two guides killed 59 elk.
Lieutenant John T. Van Orsdale, former agent of the Fort Hall
reservation, noted in 1895 that “it is a notorious fact that hundreds of
animals are killed by white men for nothing more than heads and horns. There
are men in that country who make it a business to pilot hunting parties from
the East and the Old Country which not only slaughter elk but capture and ship
them out of the country. The killing of game by Indians interferes with their
business.”
The influence of
guiding—which in Jackson Hole would evolve into the broader industry of dude ranching—is
unusual in the history of white-Indian conflicts. These traditionally involved
white migrants and settlers, not tourism promoters. Even when clashes centered
on off-reservation hunting rights—as, for example, in New Mexico’s Gila
National Forest and Montana’s Glacier National Park from the 1890s to the
1910s—the white hunters were typically locals.
In Jackson Hole, however, the white interest
in elk populations was not for the subsistence or even the sport of local
residents. It was instead for profit by catering to wealthy recreational
hunters from elsewhere.
When Tensions In Jackson Hole Mounted
Bill Manning, shown here around 1920, led the posse that first confronted the Bannock party south of Jackson Hole 25 years earlier. Photo from Collection of JH Historical Society 1958.0019.001
In the fall of 1894,
Jackson Hole residents elected a constable, William Francis Manning
(1836-1932), and a justice of the peace, Frank Rhoades, who promised to enforce game laws that the state of Wyoming was unable
or unwilling to enforce. Governor William Richards said he would support any such actions
by Manning and Rhoades.
On June 7, 1895, Manning arrested three Bannocks and confiscated
their elk hides. Rhoades fined their leader $15 (about $450 in 2020 dollars), which
was paid by a friend. About June 24, Manning and a posse arrested nine more
Bannocks. Rhoades fined them as well, but they didn’t have any money.
Eventually the whites tired of the expense of jailing the Indians and told them
to escape.
“The officers and settlers soon found out that they had started
something that, without help, would be very hard to carry through,” wrote
Stephen Leek in a memoir years later. “Something more serious than arrest and
conviction had to take place; an Indian or a white man had to be killed before
there would be relief.”However, Manning’s testimony later in 1895 suggests that whites’
plans for violence were deep-rooted, rather than based on circumstance. “We
knew very well when we started in on this thing that we would bring matters to
a head. We knew some one was going to be killed, perhaps some on both sides,
and we decided the sooner it was done the better, so that we could get the
matter before the courts.”
The celebrated and notorious Stephen Leek
On June 30, Manning and three deputies accosted a very large Bannock
party that refused to be arrested. Manning backed down, but only temporarily.
The whites had to follow through, Leek wrote, or become “the laughing stock of
the Indians who, we knew, would then become intolerable.” In response, Rhoades
swore in 38 men as deputies, and wrote a warrant for the Indians’ arrest.
Without names or even a number of Bannocks to be arrested, the warrant was
probably illegal. But the settlers’ will was strong.
The posse first ran into a large party of Eastern Shoshone,
headed back to their Wind River Reservation. “For a time excitement ran high
and a spark would have brought on a battle,” Leek wrote. “The outcome would
have meant some good Indians; but owing to the close quarters and determined
actions of those same Indians there would have been some mourning among the
whites also.”
There was a racist
saying at the time, “The only good Indian is a dead Indian.” (It’s generally
attributed, perhaps incorrectly, to General Philip Sheridan.)
Leek not only expected people to be so familiar with the “good Indian” saying
that he could allude to it without explanation, he also intended to apply it to
real, live, unarmed Indians he met in the flesh.The incident ended peacefully, but when the Shoshone told the
whites that they’d recently departed from a more warlike party of Bannock,
white fears only increased.
Another Dark Fateful Day In History
After regrouping, the posse was reduced to 26 deputies. To surprise the Bannocks, rather than traveling up the Hoback drainage, they ascended nearby Cache Creek and then moved south. They found a Bannock camp, at a place now called Battle Mountain, and circled it during the night. At daylight, they arrested the Bannocks, who put up no resistance. “These Indians surrendered gracefully,” Leek wrote, adding, “too much so we thought.” He expected “treachery or attempts to escape.”
The Bannocks, led by a man named Ben Senowin, were not the same party that had repelled the previous posse. But they’d been hunting elk, so the whites used the warrant to arrest them and confiscate their hides. They began a long march toward town.
Senowin later said that the Bannocks were not fully aware of the charges against them. Even if they had been aware, they would have found the charges groundless. Manning was not enforcing anti-poaching laws against whites, who were clearly subject to those laws. Instead he was targeting only Bannock, whose treaty exempted them from those laws. Senowin’s party was harmlessly executing those rights complete with a pass from their Indian agent. Manning’s deputies confiscated that pass, as well as their ration checks, without which they might starve if they returned to the reservation without meat.
Battle Mountain, misnamed for the nearby confrontation between the Bannock party and the posse, as it looks today. Image courtesy Summitpost.org
The party marched all day. The deputies told several Bannock
men that they were in big trouble, and might even be hanged. Deputies also said
that in the case of an escape attempt, they’d been instructed to shoot the
horses first. Such comments were likely intended to encourage the Bannocks to
attempt to escape, which would give the whites an excuse to shoot—despite the
fact that the misdemeanor for which the Bannocks had not yet been tried carried
a maximum penalty of a $15 fine and three months’ imprisonment, and despite
the fact that having confiscated their paperwork, Manning knew their names and
could have them re-arrested later.
In late afternoon, as the party entered a stand of timber, the deputies simultaneously loaded their rifles with a round in the chamber. The Bannocks feared they would be massacred there in the middle of nowhere. They quickly scattered into the trees.
Leek noted that the Bannocks fled to the right. The deputies, who shot from their right shoulders, had to first turn their horses to gain any accuracy. As they did so, Leek caught “glimpses through the trees of flying bodies in the timber to our right—and our Indians were gone.”
The deputies told several Bannock men that they were in big trouble, and might even be hanged. Deputies also said that in the case of an escape attempt, they’d been instructed to shoot the horses first. Such comments were likely intended to encourage the Bannocks to attempt to escape, which would give the whites an excuse to shoot—despite the fact that the misdemeanor for which the Bannocks had not yet been tried carried a maximum penalty of a $15 fine and three months’ imprisonment.
Despite the deputies’ alleged instructions, no horses were shot.
An elderly, unarmed, half-blind man named Se-we-a-gat (or Timeha) was shot four
times in the back. Bannocks claimed that one white man had grabbed
Se-we-a-gat’s bridle while another shot him. Se-we-a-gat lay dead by the side
of the trail—“a good Indian,” Leek called him.
Another man, a 20-year-old named Nemuts, was shot twice, but
escaped and later recovered. An infant was swept off his mother’s back by a
tree branch; he must have died, although his body was never found. A young boy
fell off his horse and was captured by the deputies.
The posse returned to town with their three-year-old prisoner, who
was cared for by a local woman. A messenger was dispatched 120 miles to the
nearest telegraph office, at Market Lake (now known as Roberts), Idaho. A
telegram to Governor Richards, signed by Rhoades, Manning and three others,
read: “Nine Indians arrested, one killed, others escaped. Many Indians report
here; threaten life and property. Settlers are moving families away. Want
protection immediately. Action on your part is absolutely necessary.”
Hysteria
The July 27,
1895 CheyenneDaily Sun-Leader headline read,
“Settlers Massacred: At Least Sixteen Families Butchered in Jackson’s Hole by
the Red Devils.” National news falsely reported that most or all of the white
settlers in Jackson Hole were dead, and bloodthirsty Bannock had taken control
of the valley.
In fact, Senowin’s party was headed back to Fort Hall, as
quickly and unobtrusively as possible. On the way, a sympathetic Mormon rancher
fed them some freshly-killed elk. But rumors of massacred whites continued
spreading nationwide for weeks. The Bannock were presumed to be teaming up with
Eastern Shoshone, Lemhi and Ute people. Their warriors must number in the
thousands. They must have secured a stronghold in the remote valley. If
conditions were temporarily quiet, they must be setting a trap.
The July 27, 1895 Cheyenne Daily Sun-Leaderheadline read, “Settlers Massacred: At Least Sixteen Families Butchered in Jackson’s Hole by the Red Devils.” National news falsely reported that most or all of the white settlers in Jackson Hole were dead, and bloodthirsty Bannock had taken control of the valley.
A prospector reported that he’d had a gunfight with three
Indians, killing two despite being wounded in the chest. In fact he’d been shot
by his prospecting partners. A party of Princeton students on a geological tour
was believed to be in jeopardy, perhaps annihilated. In fact they had never
felt unsafe. Two Jackson-area homes were robbed of bedding and clothing. In
fact the thieves were six white men from Lander who had come to fight Indians.
In response to Governor
Richards’s request, five companies of troops from the Ninth Cavalry at Fort
Robinson, Neb.—Black men known as “buffalo soldiers”—were dispatched to the railroad
stop at Market Lake. At least one company then marched the 120 miles over Teton
Pass into Jackson Hole. Arriving on Saturday Aug. 3, the soldiers found no dead
settlers, no threatening Indians and no evidence of wasteful elk slaughter.
That same day, Thomas B. Teter, the agent at Fort Hall,
reported, “All Indians absent from the reservation have returned. Had big
council. Request me to telegraph you their hearts felt good. Had not harmed a
white man, and would start haying, leaving grievances to the justice of the
white man.”
The Legal System
Outside of Wyoming, much sympathy lay with the Bannocks. For
example, the army general in charge of the Ninth Cavalry, John J. Coppinger,
said, “I do not consider the Indians to blame for the Jackson Hole affair. …
They are entirely quiet now and have been. In fact they will not say ‘Boo’ to a
goose.” Even Idaho newspapers mocked the “war” manufactured for the benefit of
a small number of Jackson Hole guides.
The New York Evening Postwrote, “this was a case
of massacre with premeditation. ... As to the ‘Bannock War’ [as it was already
being called], there is no such thing. The Bannocks are only a handful, and
they have lived at peace with the whites for seventeen years. The survivors of
them are only anxious to save their own lives, and well they may be,
considering how the white man’s law is executed in Wyoming.”
Indeed, Wyoming’s US Attorney wrote, “The whole affair was, I
believe, a premeditated and prearranged plan to kill some Indians. ... and
ultimately have the Indians shut out from Jacksons Hole.” He called
Se-we-a-gat’s death “murder.” But, he said, “there are no officials in Jacksons
Hole—county, State, or national—who would hold any of Manning’s posse for
trial.”
Wyoming’s US Attorney wrote, “The whole affair was, I believe, a premeditated and prearranged plan to kill some Indians. ... and ultimately have the Indians shut out from Jacksons Hole.” He called Se-we-a-gat’s death “murder.” But, he said, “there are no officials in Jacksons Hole—county, State, or national—who would hold any of Manning’s posse for trial.”
The United States Indian Service sent an inspector, Province
McCormick, to try to sort out the situation. When McCormick met with Gov.
Richards, General Coppinger and others, Richards “was unwilling to concede to
the Indians any rights under their treaty to hunt in Wyoming,” McCormick
reported. Following his superiors’ instructions, McCormick then proposed that
they “make a test case” to decide the law, and Richards agreed to abide by its
results.
McCormick then traveled
to Fort Hall to set up the case. He and Teter selected two Bannocks to be tried
for hunting in Wyoming. As part of that effort, McCormick wrote to his
superiors, he assured a tribal council that “no effort would be spared to
restore to them guaranteed rights and also the punishment of their murderers.” [McCormick used the italics for
that word.] They merely had to trust in the white man’s law.
However, McCormick warned his superiors, “When this test case is
decided, and the courts uphold (as I suppose they will) the treaty rights as
guaranteed to these Indians … establishing the right of these Indians to hunt
on public or unoccupied lands does not protect them in that right.” He worried
that Wyomingites would not respect the decisions of courts. “Shooting down
defenseless Indians is a greater source of revenue in the end than the tilling
of the soil. They realize that it is not a crime in Wyoming to shoot an
Indian.”
TheRace Horse Case
Of the two Bannocks in the test case, one (who may have been Ben
Senowin) soon vanished from the record. The other, John Race Horse, Sr., had
not been with Senowin but admitted to killing seven Wyoming elk as part of
another hunting party. Teter, the Indian agent, took them to Evanston to be
arrested. On Oct. 10, 1895, Teter reported that “the Indians, though in the
custody of the Sheriff, are not aware of the fact of their arrest and, it is my
intention to keep them in ignorance, owing to the bad effect it would have upon
the Indians of the reservation.”
Indeed, Uinta County
jail records show no Indians in custody in October, and no prisoners brought in
by Teter. Nevertheless, the U. S. Attorney filed a writ of habeas corpusagainst
the Uinta County sheriff, John H. Ward, for Race Horse’s release. The habeasstrategy
allowed the case to go to U. S. circuit court, rather than a potentially biased
lower court. It also allowed for faster appeal to the U. S. Supreme Court,
which gave priority to habeascases. The Indian Service,
confident of victory, wanted a ruling that could apply nationwide.
On Nov. 21, 1895, circuit judge John Riner sided with the feds
and the Bannocks. He wrote, “State law must give way to [the federal
government’s] superior authority. This rule is essential to the existence of
the Federal Government. Without it, the constitution, laws, and treaties of the
United States would be subject to overthrow at any time, at the will of the
state.” He ordered Race Horse’s release.
Wyoming immediately
appealed to the U. S. Supreme Court. At the Supreme Court, in March 1896,
Wyoming attorney Willis Van Devanter argued the “equal footing” clause:
Each state is admitted to the Union on an equal footing with other states.
Since a state such as Vermont had been admitted without any Indian treaties
diminishing its rights to regulate hunting, the same should hold for Wyoming.
Otherwise Wyoming would lack the power, possessed by every other state, “to
regulate the killing of game within [its] borders.”
Willis Van Devanter about 1896, the year he argued the Race Horse case on behalf of Wyoming before the US Supreme Court. Photo courtesy Wyoming State Archives
In a seven-to-one vote issued on May 25, 1896, the Supreme Court
reversed Riner’s decision. The Supreme Court ruling authored by Justice Edward
Douglass White largely followed Van Devanter’s reasoning. As a territory, White
wrote, Wyoming had been explicitly obligated to follow all Indian treaties. But
its admission as a state contained no such explicit obligations; indeed the
admission mentioned equal footing with other states.
“The march of advancing civilization foreshadowed the fact that
the wilderness, which lay on all sides of the point selected for the
reservation, was destined to be occupied and settled by the white man,” White
wrote. Thus the hunting right was “temporary and precarious”; it was
“essentially perishable, and intended to be of a limited duration.”
He cited the 1872 creation of Yellowstone, and the 1894 Lacey
Act restricting hunting in Yellowstone, to show the freedom that white
governments had to restrict Indians’ off-reservation treaty hunting rights. If
Congress through those acts could restrict Bannock hunting rights in
Yellowstone, so too could the state of Wyoming restrict those rights within its
borders. (One justice was not present for oral arguments and thus took no part
in the decision; the dissent by Henry Billings Brown claimed that under legal
tradition, treaties with Indians had to be interpreted as Indians of the time
would have understood them.)
Race Horse was arrested again, but prosecutors agreed that because this was a test case, he should be released. Residents of Jackson Hole had gotten what they wanted—an end to off-reservation hunting—and they felt no need to further punish Race Horse.
The Fort Hall tribes were obviously not happy with the decision. (Many Shoshone joined Bannocks at Fort Hall, where the governing body is now known as the Shoshone-Bannock Tribes Of The Fort Hall Reservation, or Sho-Bans.) Their trust in white law had been misplaced.
Yet this was merely one of a string of broken promises. They had also lost their treaty-reserved rights to collect camas roots at an off-reservation site in central Idaho, as well as their rights to the irrigation water that might make their reservation land suitable for agriculture. In 1888, they’d had to cede 1,800 acres of their reservation because railroad companies wanted to develop the current city of Pocatello. Because the city was growing, in 1898 they had to cede another 418,560 acres; when the cession was formally opened to white settlement in 1902, 6,000 Pocatello residents took part in a “Day of the Run” to claim those lands. In the coming decade their lands would be further fragmented by allotment, and they would be forced to absorb the Lemhis, whose reservation near Salmon, Idaho, was eliminated.
Above: The Yellowstone Plateau is a harsh place for humans to survive in winter. However, throughout the park, temporary shelters known as wickiups were found but none remain standing. Photo courtesy Harlan Kredit/NPS. A graphic showing the 26 tribal nations with direct historical association with Yellowstone. Courtesy National Park Service/Yellowstone Spatial Analysis Center
Decisions of the 1896
Supreme Court have not aged well. Most famously, the Plessy v. Fergusonruling,
issued just one week before Race Horse v. Ward,
enshrined the “separate but equal” doctrine that legitimated racial
discrimination against Blacks for another sixty years. The warped legacy of Race Horse would
last even longer.
The RecentHerreraCase In The Bighorn National Forest
On Jan. 18, 2014, Clayvin Herrera and some friends and relatives
went elk hunting. As members of the Apsáalooke Nation—the Crow Tribe—they could
legally hunt on their Montana reservation. Herrera had three daughters to feed
despite a recent cut in his pay; the poverty rate on the reservation was at 30
percent and rising. Herrera’s party spotted some elk, and followed the animals
across the border into Wyoming onto land managed by the Bighorn National
Forest. There they killed three elk, and packed out the meat. In the indigenous
tradition, they distributed it widely in their community.
Wyoming officials cited Herrera, his brother and a friend for
“Taking an Antlered Big Game Animal Without a License or During a Closed
Season.” The others reached plea agreements, and thus soon vanished from the
record. But Herrera himself decided to fight the charges (he was also charged
with being an accessory to the others committing the same violation). Before
the trial even began, Herrera’s attorneys moved to dismiss the charges because
he had a treaty right to hunt elk off the reservation. A series of Wyoming
courts, and the federal Tenth Circuit, declined to intervene: Herrera needed to
face a jury.
In Sheridan County Circuit
Court, Herrera admitted shooting the elk. He wanted to argue that the action
was legal under his treaty rights, but the Wyoming court ruled that he wasn’t
allowed to make that argument—in legal terms, he was precluded from
making that argument. He tried other arguments, which were not persuasive. The
jury found him guilty. Although the charge was a misdemeanor, the fine was
$8,000, plus a year of probation and a three-year ban on hunting.
Herrera appealed. A
higher state court upheld his conviction. He appealed again. The Wyoming
Supreme Court declined to review his conviction. He appealed again, and the U.
S. Supreme Court agreed to hear his case in Herrera v. Wyoming.
The Supreme Court was
interested in three potentially controversial legal issues. The first was preclusion,which
is a rich subject for arcane legal arguments. The reason Herrera couldn’t argue
his treaty rights, the lower judges had said, was that he was bound by the
results of a previous case. In 1994, the federal Tenth Circuit Court of Appeals
had ruled against a Crow tribal member who had similarly killed an elk in the
Bighorn National Forest. This case, known as Repsis(full name: Crow Tribe of Indians v. Repsis; Chuck Repsis
was the Wyoming Game and Fish agent who made the arrest), was a declaratory
judgment suit filed by the Crow tribe as a whole. Once the tribe lost Repsis,no
tribal member could re-litigate its issues.
The second interesting
legal issue was Race Horse,
the 1896 ruling that off-reservation treaty hunting rights had been
extinguished at statehood. Repsis relied on Race Horse. But in a 1999 decision on a case
in Minnesota, known as Mille Lacs(full name: Minnesota v. Mille Lacs Band of Chippewa Indians),
the U. S. Supreme Court rejected the RaceHorse reasoning that “equal footing” should imply that treaty rights
were terminated at statehood.
In Mille Lacs, the Court stopped short of
explicitly overruling Race Horse.But maybe it was time to finally do
so? After all, the Race Horseruling had a checkered history. For
one thing, it didn’t help the elk: Wyoming game numbers continued to decrease
from 1896 through the 1920s. Beginning in 1897, blame started settling on
wolves, coyotes and mountain lions.
But what interested the
Supreme Court was legal precedents: Only one subsequent Supreme Court opinion,
in 1916, relied on Race Horse,
and lower courts continually rejected it and the equal footing doctrine. A 1982
law handbook, Cohen's Handbook of Federal
Indian Law, stated
that Race Horse was
“an anomaly, probably the only case where the Court has held an Indian treaty
right [was] extinguished based on doubtful and ambiguous expressions of
Congressional intent.” The issue wasn’t whether Congress could singlehandedly
alter conditions of an Indian treaty—it could.
But many legal experts
thought it needed do so formally and explicitly. By contrast, Race Horserelied
on implications of other developments such as statehood.
A third interesting
issue for the Supreme Court was that Repsis had held that even if statehood
didn’t end the Crows’ treaty hunting rights, the establishment of the Bighorn
National Forest in 1897 did, because it meant that the land in question was no
longer “unoccupied.” Indeed, the Wyoming Stockgrowers Association and other
agricultural groups filed a Herrera brief in support of the state,
arguing that a rancher who leased National Forest land for grazing was occupying it—any
other interpretation would present the rancher with undue burdens.
Herrera’s lawyers
countered that the proclamation establishing the Forest had precluded “entry or
settlement” on the land (and the Forest Reserve Act of 1891 had prohibited any
forest establishment from abrogating Indian treaties). “No ordinary English speaker
would understand a prohibition on
the entry or settlement of vast, empty, and undisturbed land to mean that the land
suddenly became ‘occupied,’” they wrote.
Crow Nation members nathan Small, Lee Juan Tyler and Randy'L He-dow Teton listen to organ arguments in the Herrera case at the US Supreme Court, January 2019, in Herrera v. Wyoming. Image courtesy SCOTUSblog
A Landmark Opinion
Although Herrera was
so technical that it never gained much popular attention, it was widely
followed within the legal profession. For example, the U. S. Solicitor General,
in charge of interpreting federal law for the federal government, not only
filed a brief on Herrera’s behalf, but also participated in the Supreme Court’s
oral arguments. A law professor who attended those oral arguments, on Jan. 8,
2019, called the session “one of the most dramatic I can recall.”
Numerous legal blogs
weighed in, with at least one quipping that the Supreme Court might “put Race Horse out
to pasture once and for all.”
The Supreme Court
issued its ruling on May 20, 2019. A five-to-four decision authored by Justice
Sonia Sotomayor found for Herrera. Repsisdid
not preclude Herrera from arguing that statehood affected treaty rights, it
said, because Mille Lacs represented a significant
intervening change in the law.
“Applying Mille Lacs, this is not a hard case,” the
opinion said; Wyoming’s mistake had been to ignore Mille Lacs. To avoid similar future mistakes,
the Herrera opinion
took the step that Mille Lacshadn’t, quite: “[W]e make clear
today that Race Horseis repudiated to the extent it held
that treaty rights can be impliedly extinguished at statehood.” Furthermore, it
said the term unoccupied had to be interpreted as indigenous
people of 1868 would have understood it: “free of residence or settlement by
non-Indians.” Establishing the Bighorn National Forest didn’t occupy the land.
A dissent authored by
Justice Samuel Alito focused on preclusion. Repsiswas a complicated decision, and
regardless of Mille Lacs,Alito claimed, portions of Repsis still
precluded Herrera from arguing for his treaty rights. Perhaps the most
notable feature of the Herreradecision was that Justice Neil
Gorsuch, a westerner with uniquely thorough experience in federal Indian law,
broke with other conservative justices to join Sotomayor in favor of Herrera.
Gorsuch would later expand that position in the 2020 McGirt v. Oklahomadecision.
In McGirt, Oklahoma argued that statehood had disestablished the Muscogee
(Creek) Nation reservation; the Gorsuch-authored McGirt opinion
continued the Herrerareasoning by again saying that if
Congress has not taken explicit action to change an Indian treaty, treaty
rights remain in force.
Some Reflections On Racism
The Herrera decision comes at a time when advocates for racial justice are prompting American society to reconsider racism. What does racism mean, how has it played out in history, and how (if at all) should we address it today?
The history behind Herrera poses questions along many of those changing dimensions of racism. Most of us can agree that the Bannocks were harmed by the views of individual racists such as Stephen Leek—how then do we judge Leek? For example, should he remain in the Wyoming Outdoor Hall of Fame? Should his bio there mention these issues? Should the National Park Service change the name of the marina he founded at Jackson Lake? Or do all people have flaws, which need not be mentioned when they are honored for their strengths?
Most of us can agree that the Bannocks were harmed by the views of individual racists such as Stephen Leek—how then do we judge Leek? For example, should he remain in the Wyoming Outdoor Hall of Fame? Should his bio there mention these issues? Should the National Park Service change the name of the marina he founded at Jackson Lake? Or do all people have flaws, which need not be mentioned when they are honored for their strengths?
Do we agree that harm to indigenous people also came from institutions, such as the paternalistic yet incompetent Indian Service—and if so, can we do anything about that? How about the National Park Service, which eliminated off-reservation treaty hunting rights in Yellowstone the same way settlers did in Jackson Hole (albeit less violently)?
Would we say that a system of laws and societal attitudes conspired to take away indigenous people’s rights in a racist fashion? If so, have we sufficiently reformed that system? Do those who have benefited from 125 or more years of that system owe anything to those who have been victimized by it? For example, has Jackson Hole’s current prosperity grown out of its elk hunting, from which the Sho-Bans were unfairly banned? If so, do people of the Jackson area (some newly arrived there) owe anything to the Sho-Bans?
These are not easy questions. Reasonable people can disagree about the answers. But they represent some of the ethical dilemmas that now face judges, wildlife managers, and policymakers. Being able to talk broadly (politely and constructively) about these questions is a sign of a healthy civil society.
An Ongoing Case With Huge Implications
Some hunters
fear that Herrerameans that Crow hunters
can indiscriminately slaughter wildlife. However, that’s not the way it works
in other, similar situations. Among other states, Montana and Colorado have
long accommodated off-reservation hunters from the Confederated Salish and
Kootenai Tribes and the Ute tribe, respectively.
In August 2019, the Crow legislature adopted changes to its game
code to regulate off-reservation treaty hunting on unoccupied federal lands in
Montana and in Wyoming’s Bighorn National Forest. Thus, Montana has instructed
game wardens not to cite Crow tribal members who violate state hunting laws in
the Custer Gallatin National Forest (adjacent to the reservation, and once part
of it), or crossing the border from the Bighorn. Montana now understands these
hunters to be regulated by tribal laws.
It's not unusual for
states and tribes to collaborate on natural resource management. For example,
the Wind River Reservation Tribal Game and Fish Department has worked with Wyoming Game and Fish
and the U. S. Fish and Wildlife Service to dramatically increase elk, deer and
pronghorn populations on the reservation since 1982. The Sho-Ban tribes have
worked on off-reservation salmon recovery in Idaho. If, as expected, the Custer
Gallatin National Forest formally recognizes Montana’s Crazy Mountains as an
“area of tribal interest,” the Crow tribe will collaborate on management of the
Crazies. Such collaboration often means lots of hard work, but may be the
answer in a post-Herreraworld.
If, as expected, the Custer Gallatin National Forest formally recognizes Montana’s Crazy Mountains as an “area of tribal interest,” the Crow tribe will collaborate on management of the Crazies. Such collaboration often means lots of hard work, but may be the answer in a post-Herreraworld.
However, the post-Herrera world is not yet here. The Supreme
Court didn’t fully decide Herrera’s fate. Although it held that the entire Bighorn
Forest couldn’t be occupied, it allowed that portions might be. It also noted
that Wyoming does have the right to regulate hunting due to a complicated
doctrine that goes under the shorthandconservation necessity.
It sent Herrera’s case back to the Wyoming state courts to amass evidence and
decide those issues.
In a first step,
prosecutors urged the Sheridan County Circuit Court to again address
preclusion. On June 11, 2020, judge Shelley Cundiff agreed that although Repsis had
not precluded Herrera from arguing about statehood, it did still preclude him
from arguing about occupation and conservation necessity. Repsis had
ruled that the Bighorn Forest was occupied, and that conservation necessity
required Crow hunters to follow all Wyoming Game and Fish regulations.
After all, prosecutors
point out, the elk herd is a resource that exists only because of a century’s
worth of conservation management by the state of Wyoming. (For example, the
state runs 23 elk feedgrounds in Teton, Sublette and Lincoln counties.) And at
the time of Herrera’s 2014 elk kill, the Crow tribe had not yet established any
regulation on tribal hunting in Wyoming.
Mille Lacshad
addressed only statehood, not occupation or conservation necessity, Cundiff’s
ruling said. Thus those sections of Repsis still couldn’t be re-litigated by a
Crow tribal member. Because Herrera was precluded by Repsisfrom
addressing occupation or conservation necessity, the ruling said, there was no
point in lengthy proceedings to amass evidence about them.
Herrera’s attorneys
have appealed, and will likely argue that the Supreme Court told the lower
courts to rule on facts about occupation and conservation necessity, rather
than again getting bogged down in Repsisand preclusion. That appeal is in
process; it’s quite possible that the case will head all the way back to the U.
S. Supreme Court.
Who Gets To Hunt Wyoming's Elk?
These developments put
the Sho-Ban and Eastern Shoshone tribes in a curious position. With Race Horsenow
repudiated, their treaty hunting rights have seemingly been validated again.
These tribes were not parties in Repsis,which means that the preclusion
issues so central to Herreracannot apply to them.
According to federal
law, they can again hunt in Wyoming’s national forests—but what about Wyoming
law? What happens if a Wyoming game warden encounters an Indian hunting without
a Wyoming license, or out of Wyoming’s season? It’s as if we have finally
reached the resolution that Indian Service inspector Province McCormick
expected in 1895: “When this test case is decided, and the courts uphold (as I
suppose they will) the treaty rights as guaranteed to these Indians…” will it
have any effect in Wyoming?
Beneath all of the legal twists is an underlying historical
issue: elk. Access to elk hunting has always been what’s at stake. In 1895,
Jackson Hole residents used violence to deny that access to Bannocks, so they
could build an economy selling that access to out-of-staters. The 1896 Supreme
Court wholeheartedly agreed with them. More recently, as Wyoming denied that
access to Crows, the Supreme Court has been more skeptical.
There’s been one other
change in 125 years: Wyoming elk populations are no longer dwindling. Quite the
opposite.
In 2020, the Wyoming Game and Fish Department estimated that
statewide elk populations were 32 percent above objectives. Among the
geographical units with excess elk populations were the North Bighorn unit,
adjacent to the Crow reservation, and the Hoback, Afton and Upper Green River units,
areas hunted before 1895 by the Bannock and Shoshone. “If you’re an elk hunter,
it doesn’t get any better than it is now in Wyoming,” Doug Brimeyer of Wyoming
Game and Fish told WyoFile.But who gets to hunt Wyoming’s elk?
John Clayton writes the newsletter Natural Stories. His
books includeWonderlandscape: Yellowstone National Park and the Evolution of an American Cultural Icon, The Cowboy Girl, and Natural
Rivals: John Muir, Gifford Pinchot, and the Creation of America’s Public Lands. He has lived in Greater Yellowstone since 1990.
