Commentary: 1868 Treaty Right Still Valid, Important

By Jay Harris


In the spring of 1868, eleven Crow chiefs traveled to what is today southeastern Wyoming (Dakota Territory at the time) to meet with officials representing the United States government. 

On May 7th, the Crow delegation agreed to conditions specified by the government and later that year the U.S. Senate and President Johnson ratified what is today known as the "1868 Fort Laramie Treaty" or the "1868 Treaty with the Crow Indians."

In addition to establishing an eight million acre Crow Reservation (the
first with definite legal boundaries), situated entirely in what was
then the Territory of Montana, the treaty recognized a tribal right to
hunt on "all unoccupied lands of the United States."  This
off-reservation treaty right to hunt was the subject of a 1995 Tenth
Circuit decision which held that the treaty right no longer existed.

The case first arose from a 1989 citation given to Tyrone Ten Bear, a tribal member, by the Wyoming Game and
Fish Department for killing an elk in the Bighorn National
Forest without a state license.  Ten Bear did not contest the factual basis of the charge, arguing instead (with the support of the Crow Tribe) that the 1868 treaty right was still valid and, as was thought to be clear in the plain language of the treaty, allowed off-reservation hunting by tribal members on "unoccupied lands of the United States so long as game may be found therein" (essentially, federal public lands). 

By the time the case, cited as Crow Tribe of Indians v. Repsis (Chuck Repsis was the Wyoming game warden who had cited Ten Bear), made it to the Tenth Circuit Court of Appeals in Denver, the stakes were high: the definition of a treaty right more than a century and a quarter old was in the balance. 

The Repsis Court decided, however, that the treaty right was no longer valid.  The decision was based largely on a legal precedent established in an 1896 U.S. Supreme Court case, Ward v. Race Horse, which held that the Shoshone-Bannock treaty language (which contained the exact same provision as the 1868 Crow Treaty) creating an off-reservation right to hunt had been implicitly abrogated by Congress through admission of Wyoming into the Union.  Both the Supreme Court (in Race Horse) and the Tenth Circuit (in Repsis) characterized the tribal rights to hunt off-reservation in a federal territory as "temporary and precarious." 

Furthermore, the Tenth Circuit held that state management of wildlife was irreconcilable with any tribal treaty rights to hunt off-reservation.  As an alternative holding, the Tenth Circuit decided that even if the Crow treaty right still existed, national forest land was not "unoccupied" but, even if it were, the state had a compelling conservation necessity that outweighed any possible tribal right to hunt unregulated.

Understandably, in the years following the Tenth Circuit's decision in the Repsis case, many Crows felt the 1868 treaty right to be a relic of the past and one that may had never been fully taken advantage of at that.  But the Repsis decision was only ever binding in the Tenth Circuit, which does not include the state of Montana, and the Ninth Circuit has not yet had the opportunity to decide a case factually and legally similar to Repsis. 

But other tribes across the United States continued to press their historic treaty rights for modern recognition from states and in the courts if need be.

In the late 1990's, the Mille Lacs Band of Chippewa from Minnesota found themselves involved in some heavy duty federal litigation to defend their off-reservation hunting and fishing rights dating back to an 1837 treaty.  Despite what can be considered even more restrictive language than what is contained in the 1868 Crow Treaty, in 1999 the US Supreme (in a 5-4 decision) found for the Mille Lacs Band and, in doing so, invalidated the central premise relied on by both the Supreme Court in Race Horse and the Tenth Circuit in Repsis.   

In her majority opinion, Justice O'Connor said that the century-old Race Horse doctrine was invalid because it "rested on a false premise."  As many courts have held over the years, state wildlife management and tribal treaty rights are not inherently irreconcilable.  In addition, O'Connor wrote that the previous use of the terms "temporary" and "precarious" were "too broad to be useful in distinguishing rights that survive statehood from those that do not."  Justice O'Connor made clear that the greater weight of previous federal decisions supported the upholding of tribal treaties in the face of unclear Congressional legislation.  In doing so, the Court reaffirmed Congress' authority under the Constitution to create tribal treaty rights in federal territories that can and do survive statehood.

As it were, Minnesota v. Milles Lacs Band of Chippewa was a major victory for the Ojibwe Nation, a landmark Supreme Court decision in favor of Indians and, as a result, a revitalization of the 1868 Crow Treaty.

As for the line of precedents which include Race Horse and Repsis, Justice Rehnquist (a strong supporter of stare decisis -- that is, sticking to established case law) acknowledged that the Court had invalidated and reversed a 103-year old decision in his dissent in the Mille Lacs decision.  Further, Indian Law in a Nutshell author William Canby, a senior judge for the Ninth Circuit Court of Appeals, said in the Fourth Edition (2004) of the Nutshell series book that the primary holding in Repsis "is almost certainly not the law" and that the Supreme Court has "put an end to such reliance on Race Horse."

As for the 140-year anniversary of the Fort Laramie Treaty signing ceremony with the old Crow Chiefs, it appears very likely that the right to hunt off-reservation is still entirely valid.  The more pressing question may be: what exactly are "unoccupied lands of the United States?"

A rather vague yet complex legal analysis is required to deduce an idea of what lands the Crow Tribe may legally hunt on under the 1868 treaty.  In short, though the specific language of the Crow Treaty has not been fully adjudicated in federal court so as to make clear the precise meaning, there are cases that have been decided in the Montana state courts which have interpreted "open and unclaimed" language in Indian treaties (the 1855 Hell Gate Treaty with the Flathead Indians, for example) to include national forest land. 

A possible (and perhaps likely) definition would include the multiple-use federal lands managed by the Forest Service, the BLM, and the Fish and Wildlife Service.  There is a possibility that other federal lands, including national parks, are legally included but any tribe attempting to hunt in Yellowstone National Park, for example, which prohibits hunting under a federal regulation and not a statute (a treaty trumps a federal regulation) would most certainly prompt a swift federal response from Congress and perhaps even the president.

In all likelihood, any interested observers (including courts and the state of Montana) are going to be most friendly to a Crow policy which seeks to limit the exercise of the treaty right to multiple-use federal lands where hunting is currently allowed within the area included in the territory established under an earlier (1851) Fort Laramie treaty that set out what was then considered "Crow Country."  It may even be a wise step for the Crow Tribe to limit itself to all above-described federal lands ceded since the 1868 reservation was established.

Currently, legal counsel for the Montana Department of Fish, Wildlife,
and Parks is very receptive to the idea of a tribe making its claim to
hunt off their reservation for buffalo -- particularly those buffalo
leaving the Yellowstone National Park boundaries near Gardiner (where
over 1,500 buffalo have been killed in the last six months due largely to brucellosis concerns).  However,
according to state officials, the tribe must make their case for having
a treaty right very clear.  There is no question the Crow Tribe can do this much.

Recently, the state of Montana officially recognized the Nez Perce as having a treaty right to hunt buffalo on certain federal lands within the historic hunting range of the tribe in Montana.  The state, however, is not willing to recognize the Nez Perce as having a right to hunt any other species (the state contends that any hunting the Nez Perce would have done in Montana for anything but buffalo would have been incidental -- note that this is a rather untenable position from a legal standpoint, but sensible and pragmatic from a policy standpoint). 

The state of Montana is also requiring the Nez Perce make clear their intent regarding when hunts are to take place and how many animals are to be harvested.  As has been reported in regional newspapers earlier this year, the Nez Perce have been criticized by the state for hunting species other than buffalo and for taking more buffalo than originally indicated.   

One of the important Supreme Court holdings in the Mille Lacs decision was that states may regulate off-reservation tribal treaty hunting and fishing but any such regulation cannot be discriminatory against the tribes and must be pursuant to a "conservation necessity."  This conservation necessity requirement set out by the Court in Mille Lacs is actually a reaffirmation of long-standing principles decided in many other important cases. 

As of now, there have been no Crow treaty hunts since the Repsis or Mille Lacs decision.  However, there may soon be discussions amongst tribal leaders about approaching the state of Montana (and Wyoming) to possibly enter into an agreement which recognizes the Crow treaty right and where the state accommodates the right through, for example, a number of annual "Crow treaty permits" for big-game species such as elk, deer, big horn sheep, mountain goats, moose, black bear, mountain lions, pronghorn, as well as upland birds.  Such an agreement would need not condition the extent of the treaty right in the future, would likely be acceptable to the states, and (importantly) would reduce the possibility of litigation that could draw an unfavorable court decision or, worse, legislation from Congress that could extinguish the right altogether.

With a careful and informed approach, the Crow Tribe should be able to (by exercising the 1868 treaty right to hunt) reconnect in an important way to the treasured, historic tribal homeland that sustained and inspired past Crows.   Perhaps it is possible through a modern rediscovery of what makes these areas so special that Crows today may be able to gain some of the same perspective Crows have historically had concerning the sacred connection to the homeland -- a land that truly is "in exactly the right place." 

With regards to this important treaty hunting right, hopefully the seven generations that have passed since the 1868 signing at old Fort Laramie is exactly the right time for a reassertion.

Jay Harris is a law student at the University of Colorado in Boulder, where he serves as President of the Native American Law Students Association.