That's what the United States Supreme Court's decision in Herrera v. Wyoming stands to be.
Or at least it certainly has that potential.
That doesn't actually mean its improperly decided, although its very clearly contrary to earlier precedence which it flat out overrules, and it also isn't so clearly correct that those who are lambasting the dissent for the fact that it was decided by a one vote majority have any sort of point at all. Indeed, the irony of the decision being celebrated by liberals is that they are implicitly overjoyed by what was originated as a system of American apartheid in the 19th Century and which stands to massively damage wildlife resources throughout the United States in the 21st and even, oddly enough, stands to allow for Native American hunting in Yellowstone and Glacier National Parks (a somewhat amusing thought) all while they're rejoicing in the free allowance of something that a lot of them question if it's conducted by others.* But the Court might be reading the 1868 treaty correctly and, by implication, ever similarly worded Indian Treaty, and there's a lot of them have similar provisions.
The gist of the decision is the meaning of the word "unoccupied".
To a western way of thinking, and indeed in the historical and environmental sense, there's no unoccupied land in the United States outside of Alaska. To an Eastern way of thinking on this, which is solely one of inaccurate cultural perception, and apparently to Judge Gorsuch's Denverite** way of thinking, "unoccupied" means not privately owned, which completely discounts the fact that Federal lands were withdrawn from homesteading for patent in 1932 and which further discounts that leased lands are, in fact, occupied. If you don't think a lease is a type of occupation, tell that to a tenant. Given this, in my view, the decision is wholly incorrect.
To a western way of thinking, and indeed in the historical and environmental sense, there's no unoccupied land in the United States outside of Alaska. To an Eastern way of thinking on this, which is solely one of inaccurate cultural perception, and apparently to Judge Gorsuch's Denverite** way of thinking, "unoccupied" means not privately owned, which completely discounts the fact that Federal lands were withdrawn from homesteading for patent in 1932 and which further discounts that leased lands are, in fact, occupied. If you don't think a lease is a type of occupation, tell that to a tenant. Given this, in my view, the decision is wholly incorrect.
For what it's worth, on the discussion of issue preclusion, Judge Alito is also, in my view, wholly incorrect, and even somewhat nonsensical, which makes this decision the potential ecological and management disaster it is.*** Or might be.
Okay, for some basic facts.
The case arises due to Clayvin Herrera, a registered member of the Crow Tribe in Montana and, ironically, a game warden, having been arrested for poaching in Wyoming. The simple version of the story is that he crossed into Wyoming and killed an elk in Wyoming without a license. The more complicated version is, however, that Herrera and/or those he were with seem to have been guilty of animal wasting, something that has shocked informed lay readers of the decision as the conduct seems to have been appalling. It wasn't, as has sometimes been suggested, that a single elk was killed, but rather the Herrera party shot eight bull elk and took their heads and some hindquarters but left the rest, including one younger bull they didn't touch at all. The apologist for Herrera who are celebrating the decision should at least reach the conduct, which was incredibly wasteful and undoubtedly illegal under not only Wyoming's law, but that of the Crow Tribe, which Herrera undoubtedly was aware of.**** So the effect of the Supreme Court decision is to not only allow provide that hunting can happen without a state license in this context, but perhaps (but perhaps not) outright game wasting can as well.**** There's no real way to dress that up. Not subject to the law on the Reservation, as he wasn't on it, the Supreme Court ruled here that Herrera might not be subject to Wyoming's law either. The decision, therefore, not only licenses cross territorial hunting without a hunting license, but without any regulation at all.
Or maybe it doesn't.****
Wyoming is the model of Western game management and its system of game management is universally regarded as an enormous success. Indeed, perhaps the most successful game management example in the world. The reason that antelope outnumber human beings in Wyoming, and why elk are so numerous, is due to the efforts of the Wyoming Game and Fish. In the 1920s and 1930s antelope were on the verge of extinction. Now they're everywhere. Deer exist in greater numbers in Wyoming than at any time in human history.
Managed big game hunting by the State of Wyoming through the Wyoming Game and Fish is the reason why. And an integral part of that is the requirement that the hunter have a license for the type of animal he intends to harvest, and only harvests an animal during the set season.
Herrera was undoubtedly aware of that and it seems that something caused him to be concerned that his violation of Wyoming's law was going to get him caught. Given that his party had left 30 shell casings on the ground and hadn't taken all of the meat it had harvested, but had taken the heads, he had reason to be concerned about the chances, remote thought they were, that the Wyoming Game and Fish would stumble onto the scene and investigate it as a poaching incident. Under the pretext of investigating poaching on the Crow reservation he therefore contacted the Wyoming Game and Fish and a warden met with him. Something about his behavior and the questions he asked caused the warden to be suspicious and he checked into Herrera, who turns out to have posted a lot of his hunting pictures on the net. This lead the warden to realize he'd poached an elk in Wyoming, and Herrera was cited. Herrera, therefore, basically led to his own conviction.*****
There's a lesson in this right here as frankly an element of law enforcement is knowing when to prosecute something and when not to, and the Wyoming authorities screwed up here. If it appears that I'm arguing that they should have let this crime pass, and it was a crime, that's is what I'm arguing. The border region here has been a problem for years and seasoned law enforcement personnel and prosecutors know that sometimes you let a crime go by to serve a larger interest. Here, the crime should have been passed up on, as great of trespass on the law though it was, as citing a Tribal Game Warden with poaching put him in a situation that he could hardly let pass himself. In other words sometimes enforcing the law, like war, is the extension of politics by other means, and the prosecution here, while understandable, wasn't wise.^
In his defense, and I've discussed it here before, he cited the 1868 Treaty between the United States and the Crow Tribe. When this issue first came up here, I posted this item, repeating the entire treaty, along with my inaccurate prediction, here (I've emboldened the party in question):
The ghost of the Crow Treaty of 1868 appears in a Wyoming court.
ARTICLE 1.
From this day forward peace between the parties to this treaty shall forever continue. The Government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they hereby pledge their honor to maintain it. If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also re-imburse the injured person for the loss sustained.
![[Village criers on horseback, Bird On the Ground and Forked Iron, Crow Indians, Montana]](https://cdn.loc.gov/service/pnp/cph/3c00000/3c06000/3c06700/3c06766r.jpg)
ARTICLE 2.
ARTICLE 3.
ARTICLE 4.
ARTICLE 5.
ARTICLE 6.
ARTICLE 7.
ARTICLE 8.
ARTICLE 9.
For the boys and girls under the ages named, such flannel and cotton goods as may be needed to make each a suit as aforesaid, together with a pair of woollen hose for each.
And in order that the Commissioner of Indian Affairs may be able to estimate properly for the articles herein named, it shall be the duty of the agent, each year, to forward to him a full and exact census of the Indians, on which the estimate from year to year can be based.
ARTICLE 10.
ARTICLE 11.
ARTICLE 12.
In defense of my inaccurate prediction, the new decision clearly overrules a prior decision that's 100% on point. And radically so.
Indeed, it's really interesting in that context, as a matter of jurisprudence, as the decision flat out ignores the doctrine of stare decisis. This issue has been precisely litigated with the polar opposite result reached, so by reaching its decision in the fashion it did, four "liberal" judges and one "conservative" judge flat out ignored earlier precedence, sidestepping on their trampling of earlier decisions aside.
Stare decisis has shown up in recent Supreme Court nominations in the form of questions from Democratic Senators on Roe v. Wade, with the question being if that decision is entitled to application of stare decisis. The answer always tends to be yes, and then when it appears that the judges start to depart from it there's an outcry that they must have lied. But here it's clear that the majority made no effort whatsoever to apply stare decisis but rather simply excused their failure to apply it. That's their right as appellate jurists, but the interesting thing is the degree to which liberal judges don't apply it.
Indeed it's recently been the liberal and the swing justices who have ignored precedent. It was very clearly done so here, and the Obergefell decision likewise ignored it to a degree in that the Supreme Court there ignored their own self imposed rule that marriage is a matter of state law, not Federal law. So it's notably been the liberal wing of the court, not the conservative wing, that hasn't felt itself to be bound by precedent, a fact which has a long history.
This also means that the current loud yelling that overturning Roe v. Wade is some how an unprecedented act, should it occur, is baloney. It was always baloney, as the Supreme Court applies stare decisis when its convenient to do so, and ignores it when it wishes to. It has always done that. And it very clearly did that in this decision.
This also means that the current loud yelling that overturning Roe v. Wade is some how an unprecedented act, should it occur, is baloney. It was always baloney, as the Supreme Court applies stare decisis when its convenient to do so, and ignores it when it wishes to. It has always done that. And it very clearly did that in this decision.
The Indians herein named agree, when the agency-house and other buildings shall be constructed on the reservation named, they will make said reservation their permanent home, and they will make no permanent settlement elsewhere, 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.
Justice Sotomayor's decision seems to hold that unoccupied means land that wasn't patented in some fashion. Or maybe it means that's not in use in a physically altered fashion.
Or maybe it doesn't mean either and leaves the question open, in which case a person would have to question how well developed the appellees briefs were as that should have been very clear.
I read them and they were in fact very well done.
What seems to have in fact been the case is that the Supreme Court, in reaching this decision, decided less than it seems to have an actually left a door very wide open. Indeed, the Wyoming briefs touched all the points in issue, and what the Court hinted at in its closing remarks pints towards what it apparently wants addressed. Maybe.
I read them and they were in fact very well done.
What seems to have in fact been the case is that the Supreme Court, in reaching this decision, decided less than it seems to have an actually left a door very wide open. Indeed, the Wyoming briefs touched all the points in issue, and what the Court hinted at in its closing remarks pints towards what it apparently wants addressed. Maybe.
For well over a century it's been the case that the Supreme Court had the opinion that the subsequent statehood of the various Western states rendered all the lands occupied, and in actual point of fact as they all became in fact occupied by agricultural and silvaculture operations, they are occupied. Not all were homesteaded under the various Homestead Acts, but that's wholly besides the point as the Western pattern of cattle and sheep ranching occupied the lands through grazing districts from the 1870s on, and actual patenting of the land was not the norm. By "unoccupied" the treaty meant wholly unoccupied. At any rate, the current decision, therefore, shows a real ignorance of history if not read in the context of the various briefs. If those are read, something else is suggested.
Indeed, for people who wonder what the relevance of getting a real grasp on history is, this case provides a good example. Most Americans take their view of history of the west from Western movies, quite frankly, most of which have a highly inaccurate view of Western history. Probably the most accurate movie scene, if a person insists on taking their history from the movies, would be the opening gunfight in Red River in which the protagonist takes the land north of the Rio Grande away from a Mexican Don. He's taking it, but it isn't unoccupied.
To explore this a little further, we'll link in our old item about the Johnson County War:
If that seems a bit confusing, consider this.
That would include, notably, Yellowstone National Park, which is very clearly "unoccupied lands of the United States". Indeed, the creation of Yellowstone National Park postdates the 1868 treaties and, moreover, was subject to a process which isn't really all that different from that which lead to the Bighorn National Forest being a National Forest.
What exactly happened here isn't very clear other than that a subsequent set of cases, probably over a period of years, is likely. What is clear is that the justices took a massive departure from their prior line of decisions and this would seem to indicate a desire to redraw the map on prior Indian Law cases to some degree, but to what degree is pretty unclear. The immediate implications are very significant for Wyoming's wildlife, and for that matter, the United States Park Service which now will have to contend, almost certainly, with hunting in the parks. This no doubt never crossed the minds of the justices, but it's a fact.
The opinion, however, actually doesn't immediately resolve the issues and send the entire topic back to the state courts for consideration of two additional issues which were not reached. One is that it was suggested in the opinion that the state might be able to regulate hunting by Natives for conservation purposes. If all the briefs are read, that's the very strong suggestion of the opinion.
Indeed, a very strong suggestion also is that the Court may be highly sympathetic to the argument that all of the lands are in fact occupied, but it wants specific proof of that. As noted above, if the briefs are read, they are read in the context of existing stare decisis. What the court seems to be strongly suggesting, however, is that this needs to be gone into in depth. I can't fault the scriveners of the briefs for not doing so, given that they were relying on the existing law. But if that is done, based upon the way the decision reads, and the way that the briefs read, I suspect that the court may very well hold that these lands are in fact occupied.
What the court wants, therefore, is a discussion on "unoccupied". If that's done, what I suspect the Court will hold is that wilderness areas and areas designated for wilderness are unoccupied. Parks may also very much be unoccupied. That wouldn't, as hinted at by the decision, mean incapable of being regulated, however.
If this isn't the case, a lot of people are hanging their hats on the regulation aspect of the decision may be a bit surprised. The State, if simply relegated to regulation for conservation, will have to overhaul its licensing system so that it incorporates Natives into the licensing system irrespective of their residences. That is, if the state can regulate elk herds for conservation that still doesn't mean that the state can issue licenses to residents rather than non resident Natives. I.e, guys living on the Crow Reservation, under this system, might have a preferential right to hunt over guys living in Buffalo.
Or maybe the Crows (and Sioux, and Cheyenne and Arapaho and Shoshone) have a preferential right over other non resident hunters.
Procedure wise, this is on its way back to state court. My guess, but it's only a guess, is that the state court will find that the lands are subject to Wyoming Game and Fish regulation as they are in fact occupied and its necessary for conservation. That will be appealed to the 10th Circuit. The 10th Circuit doesn't like to be overruled so the question is really dicey there. I'm not at all confident that the 10th Circuit won't decide that Wyoming is basically unoccupied and it'll hope that the Supreme Court takes the matter back up.
Which leads to what to do.
Clearly, this decision stands to wreck game management in the West if not addressed, and it will have to be. Governor Gordon has already noted that given the language of the decision the State will continue to manage big game as before. The kind of precise hunting regulation that the state has had for most of its history doesn't contemplate an unknown number of non residents, and that's what these hunters were, hunting in the state without regulation.
Depending upon how things go, and assuming that the go poorly for the State (not a safe assumption) and how the State may wish to approach it, it seems likely that the state can incorporate Indians with treaty rights into the system as a separate category of non resident hunter, albeit one with rights that are going to be nearly as good if not equally good as those of residents. That's going to crowd other non residents out, and the amount that the state will be allowed to charge for those licenses will not be the really high rates they now do. But that's a defensible position, I think. The State likely now should start getting in contact with the various 1868 treaty tribes and start pondering new regulations, and get ahead of the game if it can. At least it ought to start contemplating this.
A definite negative thing this will do, and let's make no mistake about it, will be to reignite the drive to "take back" the Federal lands. If the Federal lands became Wyoming state lands, the state will make sure the lands are occupied and in any event, state lands are not "lands of the United States". Those who have been arguing that the lands should remain in state hands, myself included, are going to hear a lot of "told you so's" now.
Indeed, for people who wonder what the relevance of getting a real grasp on history is, this case provides a good example. Most Americans take their view of history of the west from Western movies, quite frankly, most of which have a highly inaccurate view of Western history. Probably the most accurate movie scene, if a person insists on taking their history from the movies, would be the opening gunfight in Red River in which the protagonist takes the land north of the Rio Grande away from a Mexican Don. He's taking it, but it isn't unoccupied.
To explore this a little further, we'll link in our old item about the Johnson County War:
Sidebar: The Johnson County War
Over the past week, I've been running the events of the Johnson County War on a day by day basis. This event may be the single most significant event in Wyoming's history, if measured in terms of popularity. It's been the subject of several books, most recently Davis' "Wyoming Range War", and it's formed the basic plot outline, in a highly developed and adulterated way, for endless novels and movies, including such famous ones as The Virginian (the only one to really take the large stockman's side) and Shane.
The popular concept of the war is that it represented an armed expression of unadulterated greed. While greed cannot be dismissed as an element, the larger question remains. What was it all about?
The cattle industry, as we know it, didn't really come about until the conclusion of the Civil War. Prior to that, the most significant meat livestock in the US was pork. Swine production produced the basic farm meat for most Americans, which is not to say that they didn't eat cattle, they did, but cattle production was fairly small scale in the East, and much of it was focused on dairy and mixed production. Meat cattle were more common in the South, and while it's popular to note that American ranching was a development of Mexican ranching, it was also very much a development of Southern ranching practices. This, in fact, partially gave rise to the Johnson County War, as will be seen.
At any rate, the American Beef Cattle industry was born when the railroads penetrated into Kansas after the Civil War, and returning Texas cattlemen found that the herds in their state had gone wild, and greatly increased. Cattle in Texas, up until that time, had followed the Mexican practice of being raised principally for their hides, not for meat, but the introduction of rail into Kansas meant that cattle could now be driven, albeit a long ways, to a railhead and then shipped to market. An explosion in urban centers in the East provided a natural market, and soon the cattle industry in Texas had switched over to being focused on shipping cattle for beef.
The Texas industry spread north as well and by the 1870s it was making inroads into Wyoming, although really only southern Wyoming for the most part. At the same time, and often forgotten, a dramatic increase in herds in Oregon, the byproduct of early farm herds and pioneer oxen herds, produced a surplus there that caused herds to be driven back east into Wyoming at the very moment that northern Wyoming opened up for ranching.
But what was ranching like here, at the time?
It was dominated by the fact of the Homestead Act, a bill passed during the Civil War in order to encourage western emigration into the vast public domain. But the bill had been written by men familiar only with Eastern farming, and it used the Eastern agricultural unit, 40 acres, as a model. That amount of acreage was perfectly adequate for a yeoman farmer, and indeed after the Civil War "40 acres and a mule" was the dream of the liberated slave, which they hoped to obtain from the Federal government. But 40 acres wasn't anywhere near adequate for any sort of livestock unit in the West, and most of the West wasn't suitable for farming. In the West, additionally, the Federal homesteading provisions oddly dovetailed with State and Territorial water law.
Water law was the domain of states or territories exclusively, and evolved in the mining districts of California, which accepted that claiming water in one place and moving it to another was a necessary right. This type of water law, much different from that existing in the well watered East, spread to the West, and a "first in time, first in right" concept of water law evolved. This was to be a significant factor in Western homesteading. Additionally, the Federal government allowed open use of unappropriated public lands for grazing. States and Territories, accepting this system, sought to organize the public grazing by district, and soon an entire legal system evolved which accepted the homesteading of a small acreage, usually for the control of water, and the use of vast surrounding public areas, perhaps collectively, but under the administration of some grazing body, some of which, particularly in Wyoming, were legally recognized. In the case of Wyoming, the Wyoming Stock Growers Association controlled the public grazing, and had quasi legal status in that livestock detectives, who policed the system, were recognized at law as stock detectives.
This was the system that the large ranching interests accepted, developed and became use to in the 1870s and 1880s. Large foreign corporations bought into Western ranching accepting that this was, in fact the system. It had apparent legal status.
But nothing made additional small homesteading illegal. And the penalty for failing to cooperate in the grazing districts mostly amounted to being shunned, or having no entry into annual roundups. This continued to encourage some to file small homesteads. Homesteading was actually extremely expensive, and it was difficult for many to do much more than that. Ironically, small homesteading was aided by the large ranchers practice of paying good hands partially in livestock, giving them the ability to start up where they otherwise would not have been. It was the dream of many a top hand, even if it had not been when they first took up employment as a cowboy, to get a large enough, albeit small, herd together and start out on their own. Indeed, if they hoped to marry, and most men did, they had little other choice, the only other option being to get out of ranch work entirely, as the pay for a cowhand was simply not great enough to allow for very many married men to engage in it.
By the 1880s this was beginning to cause a conflict between the well established ranchers, who tended to be large, and the newer ones, who tended to be small. The large stockmen were distressed by the carving up of what they regarded as their range, with some justification, and sought to combat it by legal means. One such method was the exclusion of smaller stockmen from the large regional roundups, which were done collectively at that time, and which were fairly controlled events. Exclusion for a roundup could be very problematic for a small stockman grazing on the public domain, as they all were, and this forced them into smaller unofficial roundups. Soon this created the idea that they were engaging in theft. To make matters even more problematic, Wyoming and other areas attempted to combat this through "Maverick" laws, which allowed any unbranded, un-cow attended, calf to be branded with the brand of its discoverer. This law, it was thought, would allow large stockmen to claim the strays found on their ranges, which they assumed, because of their larger herds, to be most likely to be theirs (a not unreasonable assumption), but in fact the law actually encouraged theft, as it allowed anybody with a brand to brand a calf, unattended or not, as long as nobody was watching. Soon a situation developed in which large stockmen were convinced that smaller stockmen were acting illegally or semi illegally, and that certain areas of the state were controlled by thieves or near thieves, while the small stockmen rightly regarded their livelihoods as being under siege. Soon, they'd be under defacto siege.
This forms the backdrop of the Johnson County War. Yes, it represent ed an effort by the landed and large to preserve what they had against the small entrant. But their belief that they were acting within the near confines of the law, if not solidly within it, was not wholly irrational. They convinced themselves that their opponents were all thieves, but their belief that they were protecting a recognized legal system, or nearly protecting it, had some basis in fact. This is not to excuse their efforts, but from their prospective, the break up by recognized grazing districts by small entrants was not only an obvious threat to its existence (and indeed it would come to and end), but an act protecting what they had conceived of as a legal right. Their opponents, for that matter, were largely acting within the confines of the law as well, and naturally saw the attack as motivated by greed.
As with many things, the conflict in systems of laws gave each side a basis to see their own acts as fully valid. The small stockmen had the high side of the fight, but the fight itself was more ambiguous in motivations, to some degree, than it is typically portrayed as being.
The fight didn't start with the invasion at all, but actually a campaign of assassinations was started by somebody. It cannot be assumed that the WGSA had ratified this, but certainly whoever commenced it was on that side of the fight. It proved unsuccessful, and if anything it made Johnson County residents nervous, but all the more opposed to those aligning against them. Finally, as we have seen, events transpired to the point where the WSGA actually sponsored an invasion, albeit one of the most ineptly planned and executed ones every conducted by anyone.
The invasion, as we've seen, was a total failure in terms of execution. It succeeded in taking the lives of two men, with some loss of life on its part as well, but it did nothing to address the perceived problem it was intended to address. The invaders were much more successful in avoiding the legal implications of their acts, through brilliant legal maneuvering on the part of their lawyers, but the act of attempting the invasion brought so much attention to their actions that they effectively lost the war by loosing the public relations aspect of it. For the most part, the men involved in it were able to continue on in their occupations without any ill effect on those careers, a fairly amazing fact under the circumstances, and, outside of Gov. Barber, whose political career was destroyed, even the political impacts of the invasion were only temporary. Willis Vandevanter was even able to go on to serve on the United States Supreme Court, in spite of the unpopularity of this clinets in the defense of the matter. Violence continued on for some time, however, with some killings, again engaged in with unknown sponsors, occurring. However, not only a change in public opinion occurred, but soon a change in perceived enemies occurred, and a new range war would erupt against a new enemy, that one being sheep. The range itself would continue to be broken up unabated until the Taylor Grazing Act was passed early in Franklin Roosevelt's administration, which saved the range from further homesteading, and which ultimately lead to a reconsolidation of much of the range land.
If that seems a bit confusing, consider this.
- The original Homestead Act was passed on May 20, 1862 (ironically this decision was released on May 20).
- Red Cloud's War, which was a Sioux War against the United States over the Big Horn Mountains, and which featured the Cheyenne and Arapaho as allies of the Sioux, and the Crows as allies of the United States, was fought from 1866 to 1868.
- The series of Indian Treaties with the various Tribes in the West were largely written and concluded in 1868. These reflected the US defeat in Red Cloud's war, which the Crow shared in defeat, resulting in a temporary Sioux and Cheyenne dominance over "unoccupied" territory in northern Wyoming and eastern Montana, but a Crow retreat to their current location.
- In 1872 the Wyoming Stock Growers Association was founded.
- Major settlement of Wyoming north of the Union Pacific Railroad didn't start until 1876.
- Up until 1876 the lands north of the Union Pacific were truly "unoccupied".
- In 1876 the Sioux "left" their reservation in South Dakota and would not return. The departure was, in some ways, a giant hunting expedition through northern Wyoming and southern Montana.
- The U.S. Army was dispatched, from two separate directions, to return the Sioux to their reservations, employing Shoshone combatants and Crow scouts as part of their efforts. The most famous Indian battles of the Plains Indians Wars took place that summer in 1876, including the defeat of an element (not the entire unit) of the 7th Cavalry at Little Big Horn. The most important battle that year, however, was the November 25, 1876 Dull Knife battle which represents a crushing defeat of the Sioux outside of the reservation, and a human tragedy as well.
- The Department of Agriculture formed the office of Special Agent for forests in the United States.
- After the Sioux and Cheyenne defeat, range cattle operations north of the Union Pacific started in earnest.
- The Wyoming Stock Growers Association divided the range in Wyoming, southern Montana, and western North Dakota, into grazing districts. At that point all of the range land and mountain land in Wyoming was effectively occupied, even if not patented, as it was all in agricultural use. Indeed, it was in agricultural use.
- In 1911 the Forest Service was formally created as part of the Department of Agriculture.
- In 1934 the Taylor Grazing Act was passed withdrawing the remaining un-patented Federal lands from homestead entry and passing them on to a system of leasing.
 |
| Map of Yellowstone National Park that appears on the Park's website and which places it in context in relation to the various norther Indian Reservations in the United States. I'm not familiar with all of the treaties involved for these various tribes, but I am familiar with some, and the Herrera decision creates a massive wildlife managment problem for every state shown here, as well as, ironically enough, the Federal Government which has no good excuse, under Herrera, from allowing native hunting in Yellowstone National Park. |
The potential irony of the Herrera decision is that its actually most applicable to Yellowstone National Park, if only Wyoming is considered. Questions remain reserved as to Wyoming's now imperiled and damaged ability to manage wildlife on Federal lands within its its state, as is true now for every state west of the Mississippi, but most imperiled is the Federal governments sole domains. Areas like Yellowstone are in fact National Parks because they are unoccupied. The legitimate question exists if any Federal lands in the West that are leased for agriculture or silvaculture actually are unoccupied. But the parks clearly are. And they have plenty of wildlife and frankly probably ought to be hunted.
Within a year or two, they will be.
And of course it would apply, at least apparently, to all the lands of the US, not just those in Montana, Wyoming, North Dakota and South Dakota, which were the traditional domain of the Crows.
Crow lands in 1851, at the time of a prior treaty. 517, 619 and 635 were Crow lands. This large domain was smaller by 1868 as the Crows had suffered from encroachments at the hands of the Sioux and Cheyenne from which they'd suffered substantial territorial losses. By 1868 almost all of 517 was in the hands of the Sioux and the Cheyenne.
What exactly happened here isn't very clear other than that a subsequent set of cases, probably over a period of years, is likely. What is clear is that the justices took a massive departure from their prior line of decisions and this would seem to indicate a desire to redraw the map on prior Indian Law cases to some degree, but to what degree is pretty unclear. The immediate implications are very significant for Wyoming's wildlife, and for that matter, the United States Park Service which now will have to contend, almost certainly, with hunting in the parks. This no doubt never crossed the minds of the justices, but it's a fact.
The opinion, however, actually doesn't immediately resolve the issues and send the entire topic back to the state courts for consideration of two additional issues which were not reached. One is that it was suggested in the opinion that the state might be able to regulate hunting by Natives for conservation purposes. If all the briefs are read, that's the very strong suggestion of the opinion.
Indeed, a very strong suggestion also is that the Court may be highly sympathetic to the argument that all of the lands are in fact occupied, but it wants specific proof of that. As noted above, if the briefs are read, they are read in the context of existing stare decisis. What the court seems to be strongly suggesting, however, is that this needs to be gone into in depth. I can't fault the scriveners of the briefs for not doing so, given that they were relying on the existing law. But if that is done, based upon the way the decision reads, and the way that the briefs read, I suspect that the court may very well hold that these lands are in fact occupied.
What the court wants, therefore, is a discussion on "unoccupied". If that's done, what I suspect the Court will hold is that wilderness areas and areas designated for wilderness are unoccupied. Parks may also very much be unoccupied. That wouldn't, as hinted at by the decision, mean incapable of being regulated, however.
If this isn't the case, a lot of people are hanging their hats on the regulation aspect of the decision may be a bit surprised. The State, if simply relegated to regulation for conservation, will have to overhaul its licensing system so that it incorporates Natives into the licensing system irrespective of their residences. That is, if the state can regulate elk herds for conservation that still doesn't mean that the state can issue licenses to residents rather than non resident Natives. I.e, guys living on the Crow Reservation, under this system, might have a preferential right to hunt over guys living in Buffalo.
Or maybe the Crows (and Sioux, and Cheyenne and Arapaho and Shoshone) have a preferential right over other non resident hunters.
Procedure wise, this is on its way back to state court. My guess, but it's only a guess, is that the state court will find that the lands are subject to Wyoming Game and Fish regulation as they are in fact occupied and its necessary for conservation. That will be appealed to the 10th Circuit. The 10th Circuit doesn't like to be overruled so the question is really dicey there. I'm not at all confident that the 10th Circuit won't decide that Wyoming is basically unoccupied and it'll hope that the Supreme Court takes the matter back up.
Which leads to what to do.
Clearly, this decision stands to wreck game management in the West if not addressed, and it will have to be. Governor Gordon has already noted that given the language of the decision the State will continue to manage big game as before. The kind of precise hunting regulation that the state has had for most of its history doesn't contemplate an unknown number of non residents, and that's what these hunters were, hunting in the state without regulation.
Depending upon how things go, and assuming that the go poorly for the State (not a safe assumption) and how the State may wish to approach it, it seems likely that the state can incorporate Indians with treaty rights into the system as a separate category of non resident hunter, albeit one with rights that are going to be nearly as good if not equally good as those of residents. That's going to crowd other non residents out, and the amount that the state will be allowed to charge for those licenses will not be the really high rates they now do. But that's a defensible position, I think. The State likely now should start getting in contact with the various 1868 treaty tribes and start pondering new regulations, and get ahead of the game if it can. At least it ought to start contemplating this.
A definite negative thing this will do, and let's make no mistake about it, will be to reignite the drive to "take back" the Federal lands. If the Federal lands became Wyoming state lands, the state will make sure the lands are occupied and in any event, state lands are not "lands of the United States". Those who have been arguing that the lands should remain in state hands, myself included, are going to hear a lot of "told you so's" now.
Bureau of Reclamation land in Wyoming. The Herrera decision adds a powerful argument to those who have been pushing to transfer the Federal lands to the states. If that had occured prior to now this argument would be completely moot as the Big Horn National Forest would not be included in the "lands of the United States". Up until Herrera, they wouldn't have been regarded that way in any event.
Indeed, irrespective of the the basis for the decision, in the West where some have argued that the lands need to go from the Federal government to the stats to protect the states from Federal overreach there's a powerful new argument to that effect. People who have been modifying their prior arguments to argue for a state law that land transferred from the Federal government can be protected by a "no transfer" provision now have, for the first time, a really excellent argument. If all the Federal lands were transferred into state hands in Wyoming that would in fact protect the state's ability to manage its wildlife resources from a threat such as this. Lots of people who up until now have been solidly in the "no" camp on this issue will reconsider.
The Herrera decision will cause a lot of erosion in the Keep It Public camp.
And this is going to get ugly. Make no mistake about it. The comments on Facebook and the like on this issue are already at the ugly level. Backers of the decision who don't have to live with it are gushing in admiration of it and can't grasp why any jurist would vote the other way. They're taking the "just getting meat for the family" argument to the extreme, as the underlying act here was morally unsupportable even if perhaps not illegal. The same people would be asking for the head of non Indian hunters for the same acts. Those who are angry about the decision, and they are many, are trending towards racism in many of their comments.
Indeed, the entire topic is one that is difficult to touch upon with out starting to sound either: 1) like a racist or 2) like somebody who reads Bury My Heart At Wounded Knee every week. And that's not good at all. Having said that, at least one topic should be mentioned that rarely is in this context.
It's odd that we're at a point where racist arguments reemerge on the liberal left and circle back around. The entire reservation system was created based on race. There's no denying it. It's been a terrible human disaster for a lot of reasons, and that still has never been adequately addressed. Be that as it may, in 2019, the Supreme Court has essentially, and perhaps for perfectly legal reasons, decided that members of one race have a right that's superior to other U.S. citizens. I.e., the Supreme Court has decided that some people can ignore the state's laws on racial grounds.
Now the historical reasons for that are clear, but do they make full sense in the 21st Century? At the time the 1868 treaties were concluded Indians were not citizens of the United States. That was an injustice in and of itself, but they were not. That, amazingly enough, was not addressed until 1924. But after 1924 the Reservations remained sovereigns and the members of the tribes who were part of their recognized groups remained subject, to some but not all degrees, to the treaties of earlier eras.^^
Indeed, it's very clear that off the Reservations almost none of the original provisions are applicable, for which everyone should be thankful. In 1876 Sioux hunting parties that left the reservation were subject to a massive military expedition that resulted in a lot of Indian deaths and the destruction of much of their way of life. That was justified on the basis of the treaties. Nothing like that would be regarded as remotely just now. And yet even today Indians on Reservations are not beneficiaries of the full protection of the Bill of Rights, as amazing at that may seem (often people don't believe this, but it is quite true). So at some point the question has to become how is this system going to look going into the future? Americans as a whole are less and less one ethnicity every day. In 1868 they were white, black and Indian. That's no longer true.
Indeed, one of the unanswered questions, which will remain unanswered as no body will dare touch it, is whether or not the Indian Citizenship Act of 1924 extinguished these types of provisions, and many others, from the 1868 treaties. One of the really odd aspects of this is that there Indian tribes that are recognized as such, but who are landless in every fashion, i.e., they have no reservations and no special rights based on their ethnic status. These tend to be located on both coasts. Conversely, well before 1924 there were large numbers of Indians who were regarded as citizens by some mysterious undefined process. They just were, while others were not. This seemed to be based on their degree of assimilation, and nearly all of them were located in the East. So the earlier process of granting citizenship to Indians worked in the fashion that it didn't really impact anything other than that.
But the Indian Citizenship Act of 1924 may very well have.
The Indian Citizenship Act of 1924 was drafted in with the Reservation's in mind, and it therefore had what must be regarded as a very peculiar impact in regard to Indian status. It reads.
At first blush, therefore, it would seem that this is exactly the sort of right preserved by the 1924 statute. But is it? And what is the actual implied status of the Reservations after this?
Well, at the time nothing happened to the Reservations which is a pretty good argument that nobody intended it to. But things have changed and a lot of the provisions that once applied to Indians under treaties are clearly gone. Are the hunting rights there?
Maybe not. That's another argument that the state now has. When Congress preserved was the right to "Tribal or other property" it isn't clear at all that this sort of right is a "property right".
It might be. The legal right to use land for hunting is sometimes regarded as a lease right or a profit a pendre. But it might not be. This may have been a mere vague license of some sort that passed away when Indians became co-equal citizens.
At any rate, there are now substantial legal problems and massive potential threats to wildlife on public land, to include park land, as the decision threatens to open up public land to unregulated hunting. A person might argue that the number of Native Americans who would engage in this practice would be small, but it has been happening on the Wyoming/Crow Reservation boundary and at bare minimum it it could have locally devastating effects in large areas of Wyoming and Montana. Beyond that, if we consider that he number of overall individuals who might fit into the pool of those potentially eligible to take advantage of this numbers somewhere between 150,000 to 250,000 people, even conservatively that could mean an additional 7,000 to 15,000 unregulated hunters, if not many more.
Stepping back, for a second, if that's the case a way out of this quagmire may be simply to grant licenses in some fashion, as already noted, to Native Americans which would otherwise go to out of state hunters. Indeed, it would nearly neatly fit the numbers and and it provides a potential set of benefits, oddly enough.
Earlier in this blog we had a short post (seems like they are getting longer and longer, doesn't it?) on the topic of subsistence hunting. That post urged the Game and Fish to adopt substance licenses. That post is here:
Well. . . maybe I am. And not at the same time.
The argument that liberals make on an emotional, not a legal, basis in support of this decision is that this allows people to feed their families. In truth, that wasn't the thought at all at the time, but was a sop to the un-informed Indian signators. Reading anything from the period makes it plain that the government agents of the 1860s figured that significant hunting in the West was on its way out as agriculture, which they though of as farming, was on its way in.
This doesn't mean that they were anti-hunting, but the Federal Government of the post Civil War 19th Century completely reflected the views of American Industry at the time. And that view was that the progression of settlement in the West was subject to immutable laws, and the elimination of significant game populations were part of that. Up until the very late 19th Century, in fact, that was the universal industrial view, when it suddenly changed.
In that view, the progress of civilization in the West, which is how they viewed it, was:
So, looking at these again, it is clear that the Federal Government thought:
_________________________________________________________________________________
*There's a really odd element to this, as we'll see below, particularly due to the game wasting aspect of this. As will be noted, the conduct which lead to this case resulted in a lot of wasted game, something illegal under the laws of Wyoming and Montana, and almost certainly illegal under the laws of the Crow Reservation. That conduct has been excused by the public liberal commentators on the basis, basically, that the perpetrators were Indians, and that makes it okay. Conversely, as will also be noted, there's a group of mad people who argue that all Indians are game wasters, which is a racist statement.
At any rate, the hypocrisy noted is that if we accept that allowances should be made for either 1) subsistence hunting or 2) cultural heritage, that argument applies equally to all ethnicities (races, if we must use that confusing term) in North America. Hunting is just as much of a European heritage as it is a Native American one, and indeed, a short trip through history will show that hunting in fact has a strong connection with certain Asian cultures as well. A person can't really make a legitimate argument that hunting is more important for Indians due to culture and ethnicity than it is to other groups, unless you make the argument that it's closer to them as they were aboriginal more recently. However, you can't even do that as for European Americans the history is that they relied on game nearly from the onset as well, and many still do in large parts of the country. For African Americans it's likewise an improper argument in comparison as they came from hunting cultures in Africa as well in terms of their heritage and up until some point in the first quarter of the 19th Century those held in slavery were oddly enough expected to supplement their tables through hunting and often issued light firearms for that purpose.
**It's often oddly noted that Gorsuch is a "Westerner", but this too is from an Eastern point of view. Gorsuch grew up in Denver and has lived in large cities his entire life. Denver is a gigantic metropolitan area and has little connection with the "West" outside of its physical location. Indeed, legal practitioners are well aware that Denver law firms are heavily staffed by East Coasters who moved simply because of the business opportunities or because they're part of large East Coast law firms that put them there. To the extent they have any real connection with anything "Western", it tends to be that they sometimes enjoy skiing, something that Colorado offers a lot of and which a lot of Westerners enjoy. Be that as it may, a lifelong residence in Denver would not qualify a person to have "Western" viewpoints really towards anything, but rather would put a person more in the same category that a lifelong resident of any major American metropolitan area would have.
That certainly doesn't disqualify him from being on the Supreme Court by any means, but rather does disqualify him from being the voice of the West on the Court, something that pundits seem to want to tag him with.
***Alito's descent argues heavily that an existing case which has not been overruled specifically precludes the implied impact of this case from taking effect. On that point, which isn't his only one, he's wrong.
To the extent that this newer Supreme Court case is inconsistent with any lower court's opinion, or any prior Supreme Court opinion, it would have overruled them sub silentio or at least called them into question.
****As it isn't relevant to their decision, the animal wasting portion of the facts isn't something that would or should figure into the decision on the grounds upon which it was reached.
That fact may provide a hint, however, as to why the Supreme Court reserved the question of whether Wyoming had the right to regulate hunting by Tribal members on a game conservation basis. Often such hints are subtle, and the fact that question was reserved may not only be a subtle hint but may place the conduct into sharp focus, as we'll discuss above.
That isn't the only hint in this decision, however, if read in concert with the briefs. A pretty big hint exists in regards to what is or isn't "unoccupied" as well.
*****This again raises the issue set out immediately above.
It also puts into focus the fact that the Wyoming Game and Fish has caught a lot of poachers recently by way of similar methods. I.e., they posted their illegal acts on the internet. In this case, of course, it might turn out that Herrera might get away with it.
But that doesn't make his conduct admirable. A lot of people gushing over the decision should pause to consider the legal maxim that "bad facts make bad law". American law frequently operates to give a pass to some people who have exhibited really awful conduct. There's no really nice way to put a shine on what Herrera did here and elevating him to the level of benighted native hunter is really going too far.
^Hypocritical? Perhaps, but to quote the song, "knowing when to fold, knowing when to hold up" are critical aspects of the law. People who believe that every crime must be prosecuted to the full extent of the law are naive. Prudential judgment is an integral and vital part of law enforcement and the judicial system.
^^One of the really odd aspects of this is that there Indian tribes that are recognized as such, but who are landless in every fashion, i.e., they have no reservations. These tend to be located on both coasts. Conversely, well before 1924 there were large numbers of Indians who were regarded as citizens by some mysterious undefined process. They just were, while others were not. This seemed to be based on their degree of assimilation, and nearly all of them were located in the East.
Indeed, one of the unanswered questions, which will remain unanswered as no body will dare touch it, is whether or not the Indian Citizenship Act of 1924 extinguished these types of provisions, and many others, from the 1868 treaties. One of the really odd aspects of this is that there Indian tribes that are recognized as such, but who are landless in every fashion, i.e., they have no reservations and no special rights based on their ethnic status. These tend to be located on both coasts. Conversely, well before 1924 there were large numbers of Indians who were regarded as citizens by some mysterious undefined process. They just were, while others were not. This seemed to be based on their degree of assimilation, and nearly all of them were located in the East. So the earlier process of granting citizenship to Indians worked in the fashion that it didn't really impact anything other than that.
But the Indian Citizenship Act of 1924 may very well have.
The Indian Citizenship Act of 1924 was drafted in with the Reservation's in mind, and it therefore had what must be regarded as a very peculiar impact in regard to Indian status. It reads.
Be it enacted by the Senate and the House of Representatives of the United States of American in Congress assembled,
That all non-citizen Indians born within the territorial limits fo the United States be, and they are hereby, declared to be citizens of the United States; Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.That statute doesn't actually state that the rights of the Tribes themselves was unimpaired. Indeed, it seems to argue for the opposite. The only thing perhaps preserved was the right to "Tribal or other property".
At first blush, therefore, it would seem that this is exactly the sort of right preserved by the 1924 statute. But is it? And what is the actual implied status of the Reservations after this?
Well, at the time nothing happened to the Reservations which is a pretty good argument that nobody intended it to. But things have changed and a lot of the provisions that once applied to Indians under treaties are clearly gone. Are the hunting rights there?
Maybe not. That's another argument that the state now has. When Congress preserved was the right to "Tribal or other property" it isn't clear at all that this sort of right is a "property right".
It might be. The legal right to use land for hunting is sometimes regarded as a lease right or a profit a pendre. But it might not be. This may have been a mere vague license of some sort that passed away when Indians became co-equal citizens.
At any rate, there are now substantial legal problems and massive potential threats to wildlife on public land, to include park land, as the decision threatens to open up public land to unregulated hunting. A person might argue that the number of Native Americans who would engage in this practice would be small, but it has been happening on the Wyoming/Crow Reservation boundary and at bare minimum it it could have locally devastating effects in large areas of Wyoming and Montana. Beyond that, if we consider that he number of overall individuals who might fit into the pool of those potentially eligible to take advantage of this numbers somewhere between 150,000 to 250,000 people, even conservatively that could mean an additional 7,000 to 15,000 unregulated hunters, if not many more.
Stepping back, for a second, if that's the case a way out of this quagmire may be simply to grant licenses in some fashion, as already noted, to Native Americans which would otherwise go to out of state hunters. Indeed, it would nearly neatly fit the numbers and and it provides a potential set of benefits, oddly enough.
Earlier in this blog we had a short post (seems like they are getting longer and longer, doesn't it?) on the topic of subsistence hunting. That post urged the Game and Fish to adopt substance licenses. That post is here:
Wyoming should adopt subsistence hunting regulations
Alaska has them.
Now, with this change, I'm not arguing that Wyoming must issue subsistence licenses.
Well. . . maybe I am. And not at the same time.
The argument that liberals make on an emotional, not a legal, basis in support of this decision is that this allows people to feed their families. In truth, that wasn't the thought at all at the time, but was a sop to the un-informed Indian signators. Reading anything from the period makes it plain that the government agents of the 1860s figured that significant hunting in the West was on its way out as agriculture, which they though of as farming, was on its way in.
This doesn't mean that they were anti-hunting, but the Federal Government of the post Civil War 19th Century completely reflected the views of American Industry at the time. And that view was that the progression of settlement in the West was subject to immutable laws, and the elimination of significant game populations were part of that. Up until the very late 19th Century, in fact, that was the universal industrial view, when it suddenly changed.
In that view, the progress of civilization in the West, which is how they viewed it, was:
- Homesteading farmers came in.
- They built towns.
- Miners came in.
- They built industry.
In that view, the Indians were in the way and the game populations they relied upon were a nuisance in that they allowed the Indians to exist in an uncivilized state.
Interestingly, as similar view was held by the same people about ranching. Western ranching hadn't been contemplated by the farmers of the Homestead Act at all. The acreage a person received for a homestead, 40 acres, shows that. At first ranching was regarded as a strange semi feral stage just prior to farming, which would replace it.
All of this is significant in that the period of time we're looking at, 1868, held the view that the elimination of the game populations was an unfortunate but inevitable byproduct of the advance of civilization. And their view of the Reservation system held that Indians were to be taught how to farm which would, in turn, turn them into civilized Christian farmers. Several aspects of these treaties point this out right away.
ARTICLE 4.The Indians herein named agree, when the agency-house and other buildings shall be constructed on the reservation named, they will make said reservation their permanent home, and they will make no permanent settlement elsewhere, 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.
* * *
ARTICLE 7.In order to insure the civilization of the tribe entering into this treaty, the necessity of education is admitted, especially by such of them as are, or may be, settled on said agricultural reservation; and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent for said Indians to see that this stipulation is strictly complied with; and the United States agrees that for every thirty children, between said ages, who can be induced or compelled to attend school, a house shall be provided, and a teacher, competent to teach the elementary branches of an English education, shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher. The provisions of this article to continue for twenty years.
ARTICLE 8.
- The game was going to run out; and
- The Indians would become farmers.
In truth, some with the Federal Government not only thought the game would run out, they were hoping it would soon. The Army on occasion issued cartridges to European American settlers for the purposes of hunting buffalo and there are plenty of statements to the effect by Army officers that as soon as the game was gone the Indian Wars would be over. Less blunt, some lamented the inevitable, they thought, change but thought it inevitable. Indian agents, on the other hand, became hopelessly frustrated when the actions of the Army countered these goals, such as when the Shoshone were recruited for the 1876 campaign against the Sioux, which caused a lot of them who had taken up the plow to put it back down.
By the 1880s these views were changing however and in fact a lot of the change in view came from people associated with livestock, something they get little credit for now. Ranchers did not see game populations as something that had to be displaced and in fact they relied upon them for the table themselves fairly frequently. Those in that occupation and those who had hunted in the West organized for the preservation of big game species, leading to organizations like the Boone and Crockett Club (1887) to form. Market hunting was increasingly made illegal in the late 19th and early 20th Centuries. Locals in Wyoming supported the preservation of game species and big game hunting, which were part of their culture.
This all ran counter to the line of thinking expressed in the 1868 treaties which contemplated the rapid elimination of the game and to some degree cynically looked forward to it. And that takes me back to the point about subsistence hunting.
Subsistence hunting by everyone has been common in the West. . .and frankly the South and a lot of the rest of the country, since day one. Those who argue, albeit inaccurately, that the provisions of this treaty contemplated that should be willing to accept the incorporation of that view into the laws of the Western states. In this case, therefore, what that should mean is that licenses that go to out of state hunters now would go to Native hunters, under a separate classification, first.
This would, I'd note, be regarded as a disaster by outfitters, but that shouldn't weigh into this decision greatly. Most people most places are sympathetic with hunting for the table. Trophy hunting has much less appeal to people who do not hunt, and frankly it has mixed appeal to those who do. As I've noted before here, "head hunting" was not well regarded among local hunters when I was young, although it somehow has come to be, and ironically here, the Herrera party seems to have incorporated it into the event that gave rise to this Supreme Court decision.
How to exactly work this into the state's game regulations would have to be worked out. Out of state hunters, who have threatened the state's system on several occasions within the last couple of decades by lawsuits in which they tried to get equal status with residents, have to be taken into consideration, probably, as they'd try it again. If they don't, I'd note, they probably simply ought not to be. That would be very hard on local outfitters, obviously, but not as hard as unregulated hunting will be. And it will be hard on the coffers of the Wyoming Game and Fish.
And because of that latter item, those coffers ought to be refilled by the Federal Government where the revenue is lost. If Wyoming must contemplate this sort of hunting due to a Federal treaty, than that same Federal Government that created the situation and which spread out resources initially in a system which they cynically thought would bring this process to an end can spread them out again to keep it going.
_________________________________________________________________________________
*There's a really odd element to this, as we'll see below, particularly due to the game wasting aspect of this. As will be noted, the conduct which lead to this case resulted in a lot of wasted game, something illegal under the laws of Wyoming and Montana, and almost certainly illegal under the laws of the Crow Reservation. That conduct has been excused by the public liberal commentators on the basis, basically, that the perpetrators were Indians, and that makes it okay. Conversely, as will also be noted, there's a group of mad people who argue that all Indians are game wasters, which is a racist statement.
At any rate, the hypocrisy noted is that if we accept that allowances should be made for either 1) subsistence hunting or 2) cultural heritage, that argument applies equally to all ethnicities (races, if we must use that confusing term) in North America. Hunting is just as much of a European heritage as it is a Native American one, and indeed, a short trip through history will show that hunting in fact has a strong connection with certain Asian cultures as well. A person can't really make a legitimate argument that hunting is more important for Indians due to culture and ethnicity than it is to other groups, unless you make the argument that it's closer to them as they were aboriginal more recently. However, you can't even do that as for European Americans the history is that they relied on game nearly from the onset as well, and many still do in large parts of the country. For African Americans it's likewise an improper argument in comparison as they came from hunting cultures in Africa as well in terms of their heritage and up until some point in the first quarter of the 19th Century those held in slavery were oddly enough expected to supplement their tables through hunting and often issued light firearms for that purpose.
**It's often oddly noted that Gorsuch is a "Westerner", but this too is from an Eastern point of view. Gorsuch grew up in Denver and has lived in large cities his entire life. Denver is a gigantic metropolitan area and has little connection with the "West" outside of its physical location. Indeed, legal practitioners are well aware that Denver law firms are heavily staffed by East Coasters who moved simply because of the business opportunities or because they're part of large East Coast law firms that put them there. To the extent they have any real connection with anything "Western", it tends to be that they sometimes enjoy skiing, something that Colorado offers a lot of and which a lot of Westerners enjoy. Be that as it may, a lifelong residence in Denver would not qualify a person to have "Western" viewpoints really towards anything, but rather would put a person more in the same category that a lifelong resident of any major American metropolitan area would have.
That certainly doesn't disqualify him from being on the Supreme Court by any means, but rather does disqualify him from being the voice of the West on the Court, something that pundits seem to want to tag him with.
***Alito's descent argues heavily that an existing case which has not been overruled specifically precludes the implied impact of this case from taking effect. On that point, which isn't his only one, he's wrong.
To the extent that this newer Supreme Court case is inconsistent with any lower court's opinion, or any prior Supreme Court opinion, it would have overruled them sub silentio or at least called them into question.
****As it isn't relevant to their decision, the animal wasting portion of the facts isn't something that would or should figure into the decision on the grounds upon which it was reached.
That fact may provide a hint, however, as to why the Supreme Court reserved the question of whether Wyoming had the right to regulate hunting by Tribal members on a game conservation basis. Often such hints are subtle, and the fact that question was reserved may not only be a subtle hint but may place the conduct into sharp focus, as we'll discuss above.
That isn't the only hint in this decision, however, if read in concert with the briefs. A pretty big hint exists in regards to what is or isn't "unoccupied" as well.
*****This again raises the issue set out immediately above.
It also puts into focus the fact that the Wyoming Game and Fish has caught a lot of poachers recently by way of similar methods. I.e., they posted their illegal acts on the internet. In this case, of course, it might turn out that Herrera might get away with it.
But that doesn't make his conduct admirable. A lot of people gushing over the decision should pause to consider the legal maxim that "bad facts make bad law". American law frequently operates to give a pass to some people who have exhibited really awful conduct. There's no really nice way to put a shine on what Herrera did here and elevating him to the level of benighted native hunter is really going too far.
^Hypocritical? Perhaps, but to quote the song, "knowing when to fold, knowing when to hold up" are critical aspects of the law. People who believe that every crime must be prosecuted to the full extent of the law are naive. Prudential judgment is an integral and vital part of law enforcement and the judicial system.
^^One of the really odd aspects of this is that there Indian tribes that are recognized as such, but who are landless in every fashion, i.e., they have no reservations. These tend to be located on both coasts. Conversely, well before 1924 there were large numbers of Indians who were regarded as citizens by some mysterious undefined process. They just were, while others were not. This seemed to be based on their degree of assimilation, and nearly all of them were located in the East.
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