SHERIDAN — Fourth Judicial District Court Judge John Fenn upheld the decision by Sheridan County Circuit Court Judge Shelley Cundiff finding Clayvin Herrera guilty on two poaching charges from a hunt in January 2014 that began on the Crow Reservation in Montana but ended roughly a mile south of Montana-Wyoming border markers.
Herrera shot and killed the elk in the Bighorn National Forest out of season.
Fenn took the case under advisement following a Dec. 9, 2016, appeal hearing.
During the Dec. 9 hearing, three main points remained at the forefront of both defense attorney Kyle Gray’s and Deputy County and Prosecuting Attorney Christopher LaRosa’s arguments — whether the U.S. 10th Circuit Court of Appeals Crow Tribe of Indians v. Repsis case from December 1995 holds ground in district court, if the U.S. occupied land of the Bighorn National Forest extinguishes the rights of Native Americans as listed in Article 4 of the 1868 Treaty with the Crows and the issue of conservation as Herrera killed the elk out of its hunting season in Wyoming.
Article 4 of the 1868 Treaty with the Crows states “…but they 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.” While LaRosa said the creation of the Bighorn National Forest in 1897 transitioned the lands to an “occupied” status; Gray disagreed. Gray said they “backtracked” and changed their argument of the state’s creation rather than the forest’s creation as the official action nullifying the treaty.
Fenn steered arguments back to the Repsis case, saying the facts of the 1995 case were “pretty darn close if not identical” to the case at hand. Fenn asked Gray why Repsis is not applicable to this case. Gray said the Repsis decision was “just clearly an incorrect decision.” Grey said Repsis was not a precedent of this court and played no role in this court.
The judgment and sentence documents said Herrera’s primary argument is that the circuit court should not have found Repsis to be persuasive because it was overruled by Minnesota v. Mille Lacs Band of Chippewa Indians, a 1999 case rejecting and reversing an 1896 court decision tasked with determining whether the treaty made by the U.S. with the Bannock Indians gave them the right to exercise off-reservation hunting privileges within the limits of the state of Wyoming in violation of its laws.
Court documents state that the circuit court rejected this argument and district court concluded that Mille Lacs did not overrule Repsis. Rather, Mille Lacs reaffirmed the principle that the court must look at the language in the treaty to determine whether it was intended to be perpetual or intended to terminate at the occurrence of a “clearly contemplated” event.
The Repsis court applied this principle and determined that the off-reservation hunting rights outlined in the Crow Treaty were no longer valid. It was therefore proper for the circuit court to adopt the reasoning in the Repsis decision, and bar Herrera from asserting the invalidated treaty hunting right as a defense to prosecution.
Attorney Gray filed a petition for review with the Wyoming Supreme Court on May 10. If after 40 days the Wyoming Supreme Court has not accepted Gray’s petition for review, it is considered denied.