Courtesy Clayvin Herrera
Crow tribal official Clayvin Herrera is selling t-shirts to finance his legal battle over elk hunting. He told ICTMN that sales are "through the roof."

Crow Official Fights for Treaty Rights to Hunt Elk

Jack McNeel

Three Crow tribal members have been cited in Wyoming for shooting elk out of season. Clayvin Herrera is one of those, along with his brother Colbert Herrera and Ronnie Fisher. Herrera is also captain of the Crow Fish and Game Department, in charge of both enforcement and conservation.

The event occurred in January 2014, but the Crow hunters were not notified of the citation till about eight months later. There is no question that they were hunting in Wyoming, adjacent to the Crow reservation in Montana, or that they took three bull elk. The hunting season was closed in Wyoming at the time. The question becomes one of whether treaty rights supersede state laws.

“We were hunting on a Sunday and off duty in personal vehicles,” Herrera told ICTMN as he pointed out what he said were errors in newspaper accounts. “The main plan was to go get meat. I have three daughters to take care of, and food was kind of an issue.”

They scanned the hillside through binoculars, saw some elk and started up through the timber toward them. He said treaty rights weren’t even in his thoughts at the time. After a long hike through two to three feet of snow they approached the elk, and each hunter took an elk.

“We take pictures and cut them up. We’re happy,” Herrera said, describing the hunt to ICTMN. They packed what they could carry and had recruited packers to recover the rest.

“It took us eight hours to get back with all of it to the truck,” he said.

The Sheridan Press reported that “the antlers and some meat was taken from the elk.”

“That’s borderline libelous,” Herrera said. "We took all the meat.”

Two of the elk were young bulls, rag horns, certainly not of trophy size. It was the first bull elk for two of the hunters, and saving the antlers was a sentimental act, Herrera said.

The Treaty of Laramie was signed in 1868. Article 4 of that treaty gives the Crow tribe “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.”

And the land is most certainly unoccupied, Clayton said.

“It’s absolutely wilderness to the bone,” he said. “There’s nothing occupied about it.”

ICTMN asked Joe Gilbert, Regional Wildlife Supervisor for Wyoming located in Sheridan, for their department’s comments on the citation.

“That’s an open investigation right now," he said. "It hasn’t been decided in court so therefore I can’t really talk about the details of the case, other than to confirm we did cite some Crow tribal members for killing elk in Wyoming out of season. They pleaded not guilty, and that’s about it.”

Gilbert wants the case to come to court this year.

“The last time we were involved in a similar situation was back in 1989,” Gilbert said. “That took all the way to 1996 to work its way through the 10th Circuit Court of Appeals.”

Herrera referred to the Mille Lacs case in Minnesota, which reaffirmed Native rights to hunt on unoccupied lands, saying that the way it was interpreted there would correspond to the Wyoming area's being open to treaty hunting as well.

“In 2013 our tribe passed a law saying we were going to assert our treaty rights and move forward. Then five days before this treaty hunt, as it’s since been called, I testified in front of the Montana Intertribal Relations Committee on treaty hunting and advised Montana that we’re moving forward with our treaty hunting,” Herrera said. “Montana had no issues. We were shaking hands at the end and exchanging hunting stories with the guys. They’re all for it and always work with us.”

Montana has continued to support the tribe, he said.

“When we passed that law I talked to the Montana legislature and it was thumbs up, good for you guys,” Herrera said. “Then five days later we did this hunt, so it’s not like we got caught doing something and then we’re screaming treaty.”

They are backed by the Crow, whose Tribal Legislature in May 2013 passed a joint resolution on hunting.

“The policy of the Crow Tribe shall be to exercise fully its treaty right to hunt on all unoccupied lands of the United Stated which are located within the traditional Crow homeland,” it decreed.

More recently, the tribe’s Natural Resource Committee printed a letter of support as well, calling the charges “an unlawful intrusion of Crow tribal member treaty rights to hunt in the traditional territory of the Crow Tribe,” saying that it is “based on the aggressive and indifferent undertone of the State of Wyoming” and that the state’s actions “are not supported by current United States Supreme Court Case Law.”

Herrera said he’s receiving moral support from the tribe and has tribal members who are lawyers also giving him advice. But he’s still looking at costs he can ill afford, and he is selling t-shirts to help raise money for the legal battle to come. Emblazoned with a headdress and the slogan, “Honor the original hunters,” it is available by messaging Herrera on Facebook.

“We can interchange the logo. If they’re from a different tribe and send me the logo I’ll make one for their tribe,” Herrera said. “Sales are through the roof.”

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