The early Fall of the Red Summer. October 31, 1919

On this date, the Red Summer reappeared.

In Corbin Kentucky the summer came in reaction to a stabbing of a local resident two days prior. The victim was white and the the reported assailants black.  In reaction, on this day nearly all of the town's 200 black residents of all ages were forced on to freight cars and made to leave town, depopulating the town of its black residents.  The Town had about 3,600 people (it now has about 7,304, with the population declining in recent years), making the percentage of African American residents appreciable if not large.  Probably around 6% of the population, by my rough math.

The impact has lasted until the present day and the town is nearly all white, with a tiny number of African Americans (.26% of the population) being outnumbered by a tiny number of American Indians (.31%) and Asian Americans .64%).  For the contemporary United States, the town is a real demographic anomaly.

In Butte Montana, while not directly related, police were instructed by Federal authorities to round up for deportation all Mexicans who could not prove citizenship, something not easy to do in 1919 prior to most people carrying any sort of identification.

Butte was a multicultural city due to mining, with a population drawn from all over the world.  Mining itself was headed into strike, and October 1919 was proving to be a bad time to be Hispanic in Butte or Black in Corbin, with no real protection being offered under the law.

October 14, 1919. Missing the Mark and Other Dangers

There was already a winner, but the 1919 Air Derby, which saw plans stationed in the east fly west, and planes stationed in the west, continued on and continued to make news inWyoming.

Two of those planes that arrived over Cheyenne in the dark had to come down, with one missing the field.

In other news, things in Gary Indiana were getting out of hand, in terms of labor strikes. And two members of the Arapaho Tribe were recounting their experiences at the Battle of the Little Big Horn to interviewers.

And an interesting observation was made about not owning a car.

It's almost October.

I note that due to the surprise about the snowstorm in Montana.

It is a big storm.  I don't doubt that.

Sage Grouse season (we usually call them "sage chickens") starts in mid September in Wyoming.  When I was young I always worried that we wouldn't be able to get up to the high country where we hunted them (and I still do), due to snow.  It seemed like it was about a 50/50 proposition, although it likely probably wasn't.

What could be assured is that it was going to be cold.

And it was, frankly, this year.

Actually the weather was likely much, more or less, like it was when I was young.  And so the threat of snow is as well.

Winter arrives in Montana

A prediction for Montana for this weekend by the National Weather Service:

This has the potential to be a historically significant early-season snow event.

Historically significant? 

Yikes.

The Enigma of Western Writers.

This post is on Western writers.

By which I mean writers from the West who write about the West.  By the "West", I mean the West of the Mississippi United States in general, and the various regions of the West as well. 

I don't mean writers like Annie Proulx, who move into an area, write something that they set in the area, and then are celebrated by reviewers outside of the area who are completely ignorant on the area in the first place.  Or even ones like Sam Western.

Nothing was western about the originator of Western writing, Owen Wister, who was an East Coaster through and through.

I'm not saying, well not saying completely, that a person has to be born in one area to write knowledgeably about it. There are certainly examples to the contrary.  Cormac McCarthy has notably written about the west of Texas and in the Southern Gothic style, but he's from Rhode Island originally.  Owen Wister, who is sometimes credited with inventing the Western novel (and at the time he wrote The Virginian he was writing about the recent past) was very much an Easterner.  His friend Theodore Roosevelt wrote beautifully about the West of his day, but he was a new Yorker.  Frederic Remington, the legendary illustrator and painter, is not only famous for his Western paintings and illustrations, which dramatically capture an era, but he was a writer as well, writing on the same topics that he depicted in his paintings.   Edward Abbey was from Pennsylvania and didn't experience the West until he was 18 years old.  Thomas Berger who wrote the only really great novel about Indians, Little Big Man, lived on the East Coast his entire life.

President Theodore Roosevelt, who was also a prolific reader and writer.

But I am saying that there's something different about writing on a culture that you are part of and about a region you are from.  I'd even go on to say that its really difficult to do that without being born in an area. Some writers can pull that off, but they are few.  So if you were born and raised in New England, or Zimbabwe, two actual examples for recent "Western writers", you can probably credibly pull off novels about the shipping news, or not going to the dogs tonight, but your regional novels aren't going to appear authentic to anyone from the region at all, because they are not.

Indeed, could Go Kill A Mockingbird have been written by anyone but a Southerner?  What about anything that Flannery O'Connor wrote. . . would they have been just as impactful if written by a Vermonter?   Would Doctor Zhivago have been what it was if it was written by a New Yorker?  Could Musashi have been written by anyone other than Ejii Yoshikawa?

I doubt it.

Boris Pasternak, who was born in Imperial Russia in 1890 and who died in the Soviet Union in 1960.  His famous work is the novel about the Russian doctor Zhivago, who would have been born right about the same time and and have experienced many of the same things.  Hardly anybody would maintain that a non Russian, let alone a non Russian who hadn't experienced these things, could have written a novel like Doctor Zhivago.

So I'm talking about writers who have spent their youth, even if not perhaps born here, in the real West.  Writers growing up, like Norman Maclean, in Montana, or writers growing up in Wyoming, Idaho, Nebraska, North and South Dakota, New Mexico, and so forth.  And writers, I will credit, from Texas.  Having said all of that, I'd currently exclude writers, for the most part, who may be from any of those regions but whose lives have been spent in the really big cities of the region, like Denver, Dallas or Houston. Big cities are their own thing, and that thing isn't the West.  Modern Denver, and indeed increasingly much of the Front Ranger for hundreds of miles around it, are no more The West than Newark is.  So too with Las Vegas, Phoenix, or any of the giant Texas cities.

Anyhow, some observations.

Western writers, as I've defined them, clearly have a deep, deep, love for the region.  If you read, for example, Norman Maclean's work, he clearly loved Montana.  Indeed, no other writer described the Rocky Mountain West as accurately and deeply as Maclean.  Nobody.

Mari Sandoz clearly loved Nebraska and the plains.  So did Willa Cather.

And what's so notable about that is that they all left the region they loved.

In the film A River Runs Through It and in the novella, Norman Maclean has his brother express the view that he, the brother, will "never leave Montana".  Indeed, Maclean has Paul, his brother, express the view that those who moved from Montana to the West Coast suffered from moral defects, a view a lot of Westerners do in fact have.  But both Paul Maclean and Norman Maclean, in real life, moved to Chicago. At the time that he wrote his works, late in life, Norman Maclean had spent more years in Chicago than in Montana.  He died in Chicago in 1990 at age 87 (his wife, Jessie, had a much shorter life, dying due to respiratory aliments in 1968 at age 63).

Mari Sandoz was born in Nebraska in 1896. She moved to Denver, which at that time remained a Western city, in 1940, at which time she was 44  years old, but then moved to New York City in 1943, where she remained until her death at age 69 in 1966.

Wila Cather, was born in 1873 and her family moved to Nebraska in 1883.  She was steeped in the West from her youth, but she moved to Pittsburgh in 1896, at which time she was an up and coming writer.  She moved to New York in 1905, which is where she remained for the rest of her life.

What's going on here?  It seems that "Western" writers don't achieve success at that unless they've moved to somewhere distinctly non Western.

Maybe some of that has to do with what Garrison Keillor, who is a Western writer (Minnesota and North Dakota are part of the West the way I've defined them) noted about the region in general.  Our number one export is our children.  While we often don't credit it, and we frequently argue about it, the West has both a small population and a good educational system.  We work hard here to educate our youth, but we really don't have anywhere for them to go, as a rule.  That's been noted by outsiders, such as non Westerner, Sam Western (who is in  the non Westerner import class of writer), but they rarely seem to grasp the nature of it.  The West remains the West, where it has, because of natural features which translate into economic ones.  This means that while we really appreciate the need for solid educations, it also means that we educate generation after generation of Westerners who have no place to go with their educations. So they go elsewhere.

That seems to me to be the story for Maclean and Cather.  Norman Maclean obtained a degree in English from Dartmouth in 1924. What use would that have been in the Montana of 1924, or for that matter in the Montana of 2019?  It'd be limited, at best.  He clearly retained his affection for Montana and spoke of himself, from his actual home in Chicago, as a Montanan in his writings.  He married a woman from Montana in 1931, showing the extent to which he retained actual roots there. But he lived and died in Chicago.

The situation for Cather was likely even more pronounced.  An educated woman in the West in the 1890s, her career options were necessarily  highly limited.  Indeed, they were limited in the Western world in general. She never married, something very unusual for her era, and focused on her writing career, but that would fairly obviously be a lot easier to do from New York than from Nebraska.

Sandoz doesn't quite fit this mold, but maybe she provides another example.  Sandoz was a difficult character from her youth on but first found herself published while living in Nebraska, having relocated to Lincoln from the Sand Hills. She's struggled up to that point to establish herself as a writer, but when she did, it was with two novels both of which met with gigantic disapproval in Nebraska.  So she moved to Denver, and then on to New York.

And perhaps Michael Punke gives us another example.  Punke is the author of The Revenant.  Punke was born in Torrington Wyoming.  He's a practicing lawyer, as well as an author (and therefore obviously a much more disciplined person than myself), but he has worked nearly exclusively outside of the West, both inside of and outside of government.

And maybe Punke's example brings home that this phenomenon is widespread with Westerners in general.  At what point you cease to be a Westerner by leaving a region can be debated.  I think it that does happen, and am one of the many who disregard lamentations published in the letters to the editor section of the newspapers that start off with "I read the article about so and so last week, and while I left Wyoming forty years ago. . . .". 

But it's clear that people who were largely raised in a region conceive of themselves, quite often, as remaining part of it their entire lives.  Which I suppose makes sense.  Wendell Berry has lamented that modern American life means that people don't become "of" a place, but maybe they do more than we might imagine (which is another reason that novelist from Zimbabwe or Vermont don't become regional authors by moving here).  Beyond that, however, what we see with writers may be nothing more than what we see with legions of Westerners.

For a long time, at least for rural Westerners, which is a definition that would fit many in the West, growing up and getting an education has meant either narrowing the scope of your education or leaving.  I.e., if you are educated as a lawyer, doctor, veterinarian, school teacher, accountant, or engineer, you can find work here.  But if you have a PhD in English, you probably better be looking elsewhere.

Indeed, even with these other professions, as time marches on, this is becoming more and more true.  In 1990, at the time I graduated from the University of Wyoming's law school, it was already the case that maybe 1/3d of the class was headed to Colorado.  In some recent years over half the class has, as changes in the nature of practice have made that necessary.  Indeed, with the passage of the UBE, there's really no longer a reason for a Wyoming law school at all, and its only a matter of time until the legislature realizes that.

For some this is compounded with the American ethos of money meaning everything.  There are areas of various professions you can find work in the state, to be sure, but it won't pay the same lucrative amount that it might elsewhere.  So people move for the money.  Interestingly, they often find themselves in personal conflict after that, and are often among those writing to the editor with letters such as; "I'm distressed to read that such and so is going in near my beloved home town of Little Big Horn. . . I want it to be just like it was when I left in 1959 and I'm planning to return soon from the hideous dump of Los Angeles where I've been piling up cash since the early 1960s . . ." 

So, maybe it's the nature of the regional economy, and perhaps the national economy at that.  Writers gravitate to where the writers are, and the writers, by and large, are in the big cities.

Not all of them of course, but a lot of them.

Maybe.

Maybe something else is also at work, and perhaps that's most notable in what we noted above about Mari Sandoz. She didn't leave Nebraska for more futile publishing grounds.  She left Nebraska as she was taking a lot of heat after getting published.  Indeed, her second novel was censored in the state.

So maybe its the classic example of a person not really being too welcome on their own home ground in some instances.

In fairness, Sandoz's writing was always very critical of various things, and indeed quite frankly her histories, for which she remains famous, aren't terribly accurate in various ways.  At least her histories haven't born the test of time except, perhaps, for Old Jules, the book her extraordinarily difficult father asked her to write about him after his passing.  But still, maybe the West doesn't welcome its own writers much?

Or maybe it does.  Novelist Jim Harrison, who was from Michigan, which is pretty rural in some locations and the near west to a degree, lived in Arizona and Montana after leaving Michigan.  Garrison Keillor, mentioned above, flirted with New York after already being well known, but returned to Minnesota.  Patrick McManus, the humor writer, lived in the West his entire life.  Current crime writer C. J. Box, whose protagonist is a Wyoming Game Warden, is from Wyoming.  Tim Sandlin, whom I've never read, was born in Oklahoma but lives in Jackson.

Indeed, if Oklahoma is sort of like Texas in some ways, it's worth noting that Texas has had a lot of native authors who have continued to live in Texas, Larry McMurtry notable among them.  McMurtry grew up on a ranch outside of Archer, Texas, a town so far north in Texas its nearly in Oklahoma.

So added to that, maybe these long distance travels aren't as far as they seem. . . in some instances.  In my grandfather's era Chicago was the hub of the western cattle industry and Denver just a very large city on the plains.  Chicago's role in that went away, but the point is that economists and politicians who are baffled by the fact that the West doesn't spawn very many large cities are potentially missing the point that it has. . . its just that everything is more spread out here.  So Chicago, a Midwestern city, may have more of a link to the West of an earlier era than we might suppose.  Denver serves that purpose for much of the Northern Plains now and, I dare say, Calgary does as well at a certain point.

Indeed, those cities filled that roles, or fill them, as they were, or are, centers of industry for regions.  And while we don't like to think of writing as an industry, it's a type of one, so perhaps some relocation makes sense.  Indeed, it might even now, in spite of the electronic age, which seems to be pulling the working population towards the city centers like a black hole draws in light.

Anyhow, something to ponder.

Movies In History: A River Runs Through It.

A River Runs Through It

This movie is set in Montana in the teens and twenties of the 20th Century, based on a book that was a series of memories by the author who experienced the same.  Perhaps because of that, or perhaps because it was filmed by Robert Redford who lives in the West and who has a good feel for Western topics, it's a good look at the northern plains, and Montana in particular, in that era.

Or even later eras. The close association the protagonists have with the land and rural activities strongly reminds me of my youth in the 1970s.  The way people were part of rural activities, and they were part of them, is really accurately portrayed.  It also does an excellent job of capturing the northern plains of the teens and twenties, at which point they were fully part of American life and distinct at the same time.

Material details of this film are excellent.  The film well depicts the early automobile era and shows why vehicles were adopted so rapidly.  The tightness of communities in the era is well depicted. Clothing and style of dress, even haircuts, are correct.  About my only complaint is that the fly fishing style isn't the one that I'm familiar with, and given as I was taught by people who had learned in the 1930s and 1940s, I wonder if the local style I see here, used by locals, more accurately reflects fishing of this era than that in the film.

August 2, 2014

Addendum.

One of the things I've been surprised about, when I occasionally look at my own reviews, is how short they were, the longer ago they were written.  I don't know if that's good or bad, but its the truth.  Anyhow, I finally got around to reading the novella this film was based on, and I just noted that in another thread here:

September 5, 2019

A River Runs Through It and Other Stories
Norman Maclean

Most people are familiar with the really excellent movie based on this semi autobiographical novella by Norman Maclean which was made into an excellent movie by Robert Redford.  I just started reading it a few days ago and I'm already well into it.  I'll give, of course, a review of it when I've completed reading it.

_________________________________________________________________________________

September 8, 2019

I finished A River Runs Through It and Other Stories yesterday.

The novella A River Runs Through It has achieved almost mystical status in certain quarters, with it being particularly highly regarded among those who like "western" literature, or perhaps I should say literature of the modern west, although all of these stories are set in the period prior to World War Two.  The reputation is well deserved.

Various reviews attempt to compare the work to other well known authors who wrote in the same genera, with Hemingway being noted.  Well, it's much better than any work of Hemingway's, even if we consider that the Hemingway outdoor works set in the West actually are good, as compared to the rest of his writing which is not all that great, frankly.  A River Runs Through it, the longest of the novellas, is truly a masterpiece.

Maclean describes the West of the 1910s through the 1930s in a way that would be highly recognizable to anyone whose grown up in the real West even today.  The novella is hugely interior, and for that reason the task of putting it on film must have been really difficult to say the least.  To anyone wanting a real grasp of how Westerners see the West and themselves, this novella is the work to read.

One question that a person whose seen the excellent movie may have is how much does the novella depart from the film?  Not much, but it does some, and the film adds some elements that are lacking in the novella.  The novella does not deal with how Norman meets Jessie, his wife, in any fashion.  Jessie Maclean really was from Wolf Point Montana, but the story of their early relationship is completely omitted.  Indeed, throughout much of the novella Norman is already married, including those parts dealing with Jessie's brother.

It's hard to describe the writing of a novel, although this is barely a novel and close to a memoir and that also raises the question here on how much of the story is fiction and how much is fact.  I'm not familiar with Maclean's life enough to know how much of the story is fictionalized, but I suspect its not all that much.  By way of a plot spoiler, one thing that's definitely true, but somewhat fictionalized, is that Paul Davidson (Paul Maclean's actual nom de plum) did indeed die from being beat up in an alley in the late 1930s, just as described, and the murder remains an unsolved murder.  It was a Chicago murder, however, as Norman Maclean had convinced Paul to come to Chicago where he worked as a reporter and for the press office of the University of Chicago.  This wouldn't really fit the Montana centric story line however, as would the fact that Paul was a Dartmouth graduate.

The novella is, I feel, a must read.

As noted, this book contains three stories, not one, although A River Runs Through It is the longest and best known.

The second one is Logging and Pimping and You're Pal, Jim.

Maclean worked as a logger while attending college.  The precise details of that I don't know, but it was for at least two seasons. This novella deals with that and I suspect, and indeed I'm certain, that it's much more fictionalized than A River Runs Through It.  It's also of uneven quality.

In this novella Maclean sought to describe loggers but I suspect that he ended up, as is so often done, by fairly grossly exaggerating his depiction as he went on, which is unfortunate. Some elements of the description, in particular his description of clothing, are really excellent. But it decays as it the novella goes on and this one may be said to have almost no real point, other than being an odd character study.

The third one is USFS 1919, which deals as with Norman's work on a Forest Service crew in 1919.

This one is excellent, and again not only is the story worthwhile, but the descriptions of life at the time, and particularly a very distinct rural occupation of the time, are superb.  Descriptions of horses, packing and Forest Service work in a now bygone era are extremely well done.   This story is also probably mostly fiction, but his work for the Forest Service at a very young age (Norman is 17 when this story takes place, and he'd already worked for the Forest Service for two years) is not.  This novella is well worth reading.

On a couple of other observations, knowing that the movie was from a novella, I've wondered if the plot details of the film were filled out from the other novellas in the book. They are not.  As noted, the film includes story lines, such as Norman meeting Jessie, that aren't in the book at all.  About the only added details provided is that Norman worked as a logger and for the Forest Service, and his work as a logger is mentioned in the film.

Anyhow, the stories included in A River Runs Through It and Other Stories are first rate stories in the modern Western genre and much better than many, maybe most. The stories due have an earthy element to them, and all three have some references to illicit unions of one kind or another, but they aren't graphic and they don't get down in the mud as much as later works of Larry McMurtry.  

I don't have a great deal to add to my earlier movie review that the current novella review doesn't touch on, so my main point here, in adding this addenda, was just to note what was noted.  The film follows the novella pretty closely, but it does add a major story line, the romance between Norman and Jessie, which Norman doesn't touch on in these works at all. She was actually from Montana, as the film portrays, however.  He really did take a teaching position at the University of Chicago.  There are some departures, although they are really minor.  The minor character Mabel, Paul's Indian girlfriend, is much more richly described in the novella than the film, and is a much rougher character as well.  But all in all, it's pretty close.  Indeed, the film is amazingly well done.

One minor thing I'd note is that its surprising how this film seems to be the high water mark (no pun intended) for some of the actors in it, but not others. Brad Pitt went on to fame, but frankly nothing he's done since this film has been as good.  Craig Sheffer continues to act, but he's not anywhere nearly as well known as Pitt and his portrayal of Norman does seem likely to stand as the role he'll be remembered for.  The same will be true for Emily Lloyd's portrayal of Jessie Maclean.  Tom Skerritt, on the other hand, will recalled for having a large number of excellent roles as a character actor, his role as the father of Paul and Norman being one of them.  Nicole Burdette, who portrayed the Indian girlfriend Mabel, has done very little film acting since this movie and the suspicion must be that she doesn't want to.

September 8, 2019.

Friday Farming: Katheryn Freeman, the only woman in The New York State School of Agriculture at Farmingdale, Long Island, first graduating class.

Kathryn Freeman

The New York State School of Agriculture at Farmingdale, Long Island
Class of 1919
March 19, 2019

By April Lynne Earle

Kathryn Freeman was the only female graduate in the first graduating class. It might have been easier to say that she was the first female graduate, but the there is something to be said for being the ONLY female.

An interesting short portrait.  Including these interesting items:

Kathryn stated in the July 19, 1919 issue of Country Gentleman that, “I was born to be a farmer. I have always known I should do this, ever since I could tell a seed from a pebble.”

And apparently upon graduating she did work farming, in Montana, for a time.  But then this:

Kathryn did go out west. She worked for a short time on a ranch in Montana, after graduation. She then returned to New York, and during the Great Depression, in the 1930 census, she is listed as a landscape architect living on 5th Avenue in Manhattan.

As a deaf Jewish woman farm  hand in Montana, she must have seemed eccentric in the extreme at the time.  Even now a relocated female New Yorker farmer in the west would be unusual.

Ultimately she wasn't a farmer, but she did have an occupation related to the outdoors.  Lots of small farmers have failed over the years, and lots still do.  Coming from the outside into farming isn't easy.  I wonder if she regarded her career happily, or as a disappointment, in how it worked out.

Lex Anteinternet: A Potential Wildlife Management Disaster or A Redefinition of Unoccupied. The Montana Game and Fish and the Gallatins.

Hunters in the Gallatin National Forest, early 20th Century.

I've written twice on this topic already, those entries being here, where I discussed the overall situation;

A Potential Wildlife Management Disaster or A Redefinition of Unoccupied.

and here, where I discussed a potential approach for Wyoming:

Lex Anteinternet: A Potential Wildlife Management Disaster or A Redefinition of "Unoccupied". Where forward from here.

One of the things I mentioned in the first one, more than once, is that the decision had ramifications for states other than Wyoming.

Montana clearly agrees with that.

Sheep in the Gallatin Valley, 1930s.  Contrary to the way those not familiar with it imagine it, National Forest land is in fact used by agriculture.  Indeed, that fact sometimes angers some people who don't appreciate that recreation is in fact not part of the original reason for designating lands as national forest, and isn't even close to the reason.

The details of what will occur will take some time to sort out, but the head of the Montana Game & Fish (which sends out some of the niftiest emails, such as the one I got this Fall warning pheasant hunters to watch for grizzly bears), has directed his wardens not to cite Crow Indians hunting in the Gallatin National Forest in Montana.

For those who are now aware of the Gallatin National Forest is an over 1,800,000 acre stretch of National Forest of which has been joined for administrative purposes to the Custer National Forest which is considerably to its east.

The Gallatin National Forest borders Wyoming, with most of that border laying to the immediate north of Yellowstone National Park.  About 1,000,000 acres of the combined Custer Gallitin has been designated as wilderness.

In my earlier post on this topic I predicted that the predicament faced by the Wyoming Game and Fish would soon confront the entire region's wildlife management agencies.  My only surprise here is how quickly that it impacted Montana, but otherwise I was right on the mark here. This suggests to me that Montana may already have been having a bit of a problem in this area as in fact Wyoming was in the Pryor Mountain area. Be that as it may, Montana is taking a much different approach than Wyoming is, so far. 

Gallatin Valley, 1921.

Montana and Wyoming actually face different geographical challenges here.  One of the original issues in the Herrera matter was whether or not Herrera was in Wyoming or knew that he was.  That did not become a feature of the Supreme Court case however and would have been totally irrelevant to it.

Indeed, the differences don't stop there.  The Big Horn National Forest, which was the area involved in the Wyoming matter, is 1,100,000 acres in extent. That's big, but it's small compared to the Gallatin.  Indeed, the wilderness areas inside the Custer Gallatin exceed the size of the Big Horn.  That actually makes the logic of the "unoccupied" argument much stronger for the Gallatin.

Indeed, with some of the dust having been settled, a quick look at the map of the areas administered just by the Forest Service in Wyoming shows that a lot of it clearly is occupied.  A lot of it isn't even forest.  The Gallatin situation, however, is considerably different.

Also different is how the border areas work out.  The Big Horn is bordered on its north, as noted, by the Crow Reservation.  The Gallatin doesn't border any reservations, although the Custer National Forest does, as it borders the Crow Reservation to the north.  But the Gallatin shares a long southern border with Yellowstone National Park.

Train going over Bozeman Pass in the 1930s.

That may seem alarmist, but I don't intend it to be.  I think it's simply pointing out the facts as they are.  The Montana Game and Fish obviously believe that Herrera will result in unlicensed native hunters in the Gallatin and they've instructed their wardens not to interfere with them, meaning that they've conceded to unlicensed and unregulated hunting in the Gallatin this year. This year, and likely next if this continues on, will therefore be a test as to how this will impact things.

But beyond that, thinking that this doesn't spread over at least a little bit into Yellowstone is naive.  Even in this era of GPS people can get off course, and under the Herrera decision there's no rationale legal basis to argue that Yellowstone National Park, which is a national park because it is unoccupied, isn't open under the decision.

As I noted in my earlier commentaries, while I think this could rapidly turn into a wildlife management disaster, I feel somewhat differently about Yellowstone which, in actuality, suffers from having too much game that isn't hunted.  This could alleviate that problem, although a lack of regulation to continue on for years will create a new problem.

Which gets me back to my earlier point.  I don't think that Herrera goes as far as people suppose, but I do think that this is the time that the regional game departments might want to think about incorporating its decision into their license draw systems.  Wyoming hasn't shown an inclination to try that and Montana is demonstrating a seeming intent to just stand back, although I think that's likely a temporary action designed to avoid conflict.  In both cases, the states might want to consider some revisions along the lines I noted earlier, as the other states in the region might want to as well.

A Potential Wildlife Management Disaster or A Redefinition of Unoccupied.

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.

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.

 

 Crow Indians, 1908. These men may have been living at the time the Ft. Laramie Treaty came into being.

The Casper Star Tribune reported that today the trial of Clayvin Herrera, a game warden on the Crow Reservation in southern Montana, commences today in Sheridan.  Herrera is charged with taking a big game animal in Wyoming out of season in 2014.  In other words, with poaching.  He is not only a game warden on the Crow Reservation, he is also a Crow Indian.

Of interest, he's relying on one of the Fort Laramie Treaties of 1868 as a defense.  The thesis is that the treaty grants the Crows hunting rights in Wyoming, which it did (and not just to the Crows, but to other tribes as well, in related treaties of the same vintage) and therefore hunting in Wyoming out of Wyoming's season isn't necessarily a violation of the law.  It's an attractive and even a romantic legal defense.

It won't work.

Citation to the 1868 treaties (there is more than one) for various things has been made before and the point of the state; that subsequent developments in history and Wyoming's statehood abrogated that part of the treaty, are fairly well established.  A very long time ago, well over two decades now, one of the Federal judges in the state became so irritated by such an attempt that he actually stated that the treaty with the Sioux of the same vintage and location also authorized (which I don't think it did) shooting at tribal members off the reservation and nobody thought that was the case any more, stating that in the form of a question.  Again, I think that remark was not only evidence of frustration, and highly inappropriate, but it was flat out wrong, the treaty never authorized that, but citation to the treaty on dead letters within it is pointless which I suppose was in his inartfully made point.

Which brings us to the actual point.  Ineffectual though they are, and they are, the 1868 treaties really live on as a psychological influence, and that's interesting. Indeed, it's an interesting aspect of the first three of our Laws of History.  After all this time an ineffectual treaty lives on, wounded, but still there, in some odd fashion.  And with it, some old arguments and fights.

The Treaty:

Articles of a treaty made and concluded at Fort Laramie, Dakota Territory, on the seventh day of May, in the year of our Lord one thousand eight hundred and sixty-eight, by and between the undersigned commissioners on the part of the United States, and the undersigned chiefs and head-men of and representing the Crow Indians, they being duly authorized to act in the premises.

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.

If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws; and in case they refuse willfully so to do the person injured shall be re-imbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the President, on advising with the Commissioner of Indian Affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss while violating, or because of his violating, the provisions of this treaty or the laws of the United States shall be re-imbursed therefor.

ARTICLE 2.

The United States agrees that the following district of country, to wit: commencing where the 107th degree of longitude west of Greenwich crosses the south boundary of Montana Territory; thence north along said 107th meridian to the mid-channel of the Yellowstone River; thence up said mid-channel of the Yellowstone to the point where it crosses the said southern boundary of Montana, being the 45th degree of north latitude; and thence east along said parallel of latitude to the place of beginning, shall be, and the same is, set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no persons, except those herein designated and authorized so to do, and except such officers, agents, and employés of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and henceforth they will, and do hereby, relinquish all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the limits aforesaid.

ARTICLE 3.

The United States agrees, at its own proper expense, to construct on the south side of the Yellowstone, near Otter Creek, a warehouse or store-room for the use of the agent in storing goods belonging to the Indians, to cost not exceeding twenty-five hundred dollars; an agency-building for the residence of the agent, to cost not exceeding three thousand dollars; a residence for the physician, to cost not more than three thousand dollars; and five other buildings, for a carpenter, farmer, blacksmith, miller, and engineer, each to cost not exceeding two thousand dollars; also a school-house or mission-building, so soon as a sufficient number of children can be induced by the agent to attend school, which shall not cost exceeding twenty-five hundred dollars.

The United States agrees further to cause to be erected on said reservation, near the other buildings herein authorized, a good steam circular saw-mill, with a grist-mill and shingle-machine attached, the same to cost not exceeding eight thousand dollars.

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 5.

The United States agrees that the agent for said Indians shall in the future make his home at the agency-building; that he shall reside among them, and keep an office open at all times for the purpose of prompt and diligent inquiry into such matters of complaint, by and against the Indians, as may be presented for investigation under the provisions of their treaty stipulations, as also for the faithful discharge of other duties enjoined on him by law. In all cases of depredation on person or property, he shall cause the evidence to be taken in writing and forwarded, together with his finding, to the Commissioner of Indian Affairs, whose decision shall be binding on the parties to this treaty.

ARTICLE 6.

If any individual belonging to said tribes of Indians, or legally incorporated with them, being the head of a family, shall desire to commence farming, he shall have the privilege to select, in the presence and with the assistance of the agent then in charge, a tract of land within said reservation, not exceeding three hundred and twenty acres in extent, which tract, when so selected, certified, and recorded in the “land book,”as herein directed, shall cease to be held in common, but the same may be occupied and held in the exclusive possession of the person selecting it, and of his family, so long as he or they may continue to cultivate it.

Any person over eighteen years of age, not being the head of a family, may in like manner select and cause to be certified to him or her, for purposes of cultivation, a quantity of land not exceeding eighty acres in extent, and thereupon be entitled to the exclusive possession of the same as above directed.

For each tract of land so selected a certificate, containing a description thereof and the name of the person selecting it, with a certificate endorsed thereon that the same has been recorded, shall be delivered to the party entitled to it by the agent, after the same shall have been recorded by him in a book to be kept in his office, subject to inspection, which said book shall be known as the “Crow land book.”

The President may at any time order a survey of the reservation, and, when so surveyed, Congress shall provide for protecting the rights of settlers in their improvements, and may fix the character of the title held by each. The United States may pass such laws on the subject of alienation and descent of property as between Indians, and on all subjects connected with the government of the Indians on said reservations and the internal police thereof, as may be thought proper.

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.

When the head of a family or lodge shall have selected lands and received his certificate as above directed, and the agent shall be satisfied that he intends in good faith to commence cultivating the soil for a living, he shall be entitled to receive seed and agricultural implements for the first year in value one hundred dollars, and for each succeeding year he shall continue to farm, for a period of three years more, he shall be entitled to receive seed and implements as aforesaid in value twenty-five dollars per annum.

And it is further stipulated that such persons as commence farming shall receive instructions from the farmer herein provided for, and whenever more than one hundred persons shall enter upon the cultivation of the soil, a second blacksmith shall be provided, with such iron, steel, and other material as may be required.

ARTICLE 9.

In lieu of all sums of money or other annuities provided to be paid to the Indians herein named, under any and all treaties heretofore made with them, the United States agrees to deliver at the agency house, on the reservation herein provided for, on the first day of September of each year for thirty years, the following articles, to wit:

For each male person, over fourteen years of age, a suit of good substantial woolen clothing, consisting of coat, hat, pantaloons, flannel shirt, and a pair of woolen socks.

For each female, over twelve years of age, a flannel skirt, or the goods necessary to make it, a pair of woolen hose, twelve yards of calico, and twelve yards of cotton domestics.

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.

And, in addition to the clothing herein named, the sum of ten dollars shall be annually appropriated for each Indian roaming, and twenty dollars for each Indian engaged in agriculture, for a period of ten years, to be used by the Secretary of the Interior in the purchase of such articles as, from time to time, the condition and necessities of the Indians may indicate to be proper. And if, at any time within the ten years, it shall appear that the amount of money needed for clothing, under this article, can be appropriated to better uses for the tribe herein named, Congress may, by law, change the appropriation to other purposes; but in no event shall the amount of this appropriation be withdrawn or discontinued for the period named. And the President shall annually detail an officer of the Army to be present and attest the delivery of all the goods herein named to the Indians, and he shall inspect and report on the quantity and quality of the goods and the manner of their delivery; and it is expressly stipulated that each Indian over the age of four years, who shall have removed to and settled permanently upon said reservation, and complied with the stipulations of this treaty, shall be entitled to receive from the United States, for the period of four years after he shall have settled upon said reservation, one pound of meat and one pound of flour per day, provided the Indians cannot furnish their own subsistence at an earlier date. And it is further stipulated that the United States will furnish and deliver to each lodge of Indians, or family of persons legally incorporated with them, who shall remove to the reservation herein described, and commence farming, one good American cow and one good, well-broken pair of American oxen, within sixty days after such lodge or family shall have so settled upon said reservation

ARTICLE 10.

The United States hereby agrees to furnish annually to the Indians the physician, teachers, carpenter, miller, engineer, farmer, and blacksmiths as herein contemplated, and that such appropriations shall be made from time to time, on the estimates of the Secretary of the Interior, as will be sufficient to employ such persons.

ARTICLE 11.

No treaty for the cession of any portion of the reservation herein described, which may be held in common, shall be of any force or validity as against the said Indians unless executed and signed by, at least, a majority of all the adult male Indians occupying or interested in the same, and no cession by the tribe shall be understood or construed in such a manner as to deprive, without his consent, any individual member of the tribe of his right to any tract of land selected by him as provided in Article 6 of this treaty.

ARTICLE 12.

It is agreed that the sum of five hundred dollars annually, for three years from the date when they commence to cultivate a farm, shall be expended in presents to the ten persons of said tribe who, in the judgment of the agent, may grow the most valuable crops for the respective year.

W. T. Sherman,
   Lieutenant-General.

Wm. S. Harney,
   Brevet Major-General and Peace Commissioner.

Alfred H. Terry,
   Brevet Major-General.

C. C. Augur,
   Brevet Major-General.

John B. Sanborn.

S. F. Tappan.

Ashton S. H. White, Secretary.

Che-ra-pee-ish-ka-te, Pretty Bull, his x mark. 

Chat-sta-he, Wolf Bow, his x mark. [SEAL.]

Ah-be-che-se, Mountain Tail, his x mark. 

Kam-ne-but-sa, Black Foot, his x mark. 

De-sal-ze-cho-se, White Horse, his x mark.

Chin-ka-she-arache, Poor Elk, his x mark. 

E-sa-woor, Shot in the Jaw, his x mark.

E-sha-chose, White Forehead, his x mark. 

—Roo-ka, Pounded Meat, his x mark. 

De-ka-ke-up-se, Bird in the Neck, his x mark. 

Me-na-che, The Swan, his x mark. 

Attest:

George B. Wills, phonographer.

John D. Howland.

Alex. Gardner.

David Knox.

Chas. Freeman.

Jas. C. O'Connor.

  

Crow hunters, 1909.

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.

At any rate, the text in question here is the following:

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.

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.

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:

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.

This history is significant as it makes it very clear to anyone studying it that there are no "unoccupied lands" in the lower 48 states in a physical or legal sense. To the extent there are, they're the park lands that were reserved as parks.

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.

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.

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.

Canada also has them for "first nation" and Metis hunters.

Subsistance huning is hunting which is, by definition, hunting "for the pot" or "for the freezer".  That is, it acknowledges that the hunter is hunting in order to provide himself food for the year.

Now, truth be known, much hunting in the US is of this type anyhow.  People tend to focus on "trophy hunting", which in the case of big game animals (which is the only type of game it applies to) means animals with impressive antlers, but most hunters actually don't hunt in that fashion.  Most actually are hunting for meat.  You always have to use the meat that you take, of course, so trophy hunting is mixed purpose anyhow.

So, then, what's my point?

Well, the following is.

This year, for the first time since I was fourteen years old, I did not draw an antelope tag.  I've been hearing from friends about not drawing them the past several years, but I was, so I didn't pay too much attention to it.  I could have put in for a landowners tag but I didn't (maybe I should check and see if I still can), but assured by the past that I'd draw, as I always have, I didn't worry too much. 

Well, I flat out didn't draw.

In Wyoming you get to put in for three areas, so what this means is that not only did I not draw, but all three of my choices didn't pan out. 

Now, to put this in context, antelope has been part of my diet now for almost forty years.  For a time in the 1980s and early 1990s, antelope and deer (and maybe elk) provided 100% of the ungulate meat that I consumed in a year, with protein supplemented in the form of rabbit, duck, grouse and fish.  I.e., it was my subsistence.  This only changed when I married, as at that point my ranch girl wife insisted that we incorporate beef, which she was much more used to.  If we could go back and omit the beef (which I like, I'm not complaining) and only do the wild game, I'd do it.

Indeed, I like antelope, a meat that quite a few people complain about. The complainers, in my observation, wreck it by trying to prepare it like beef, which does do it in.  Treated as its own thing, it's good.  In fact, when I first started having beef again, after years of not having it as I was hunting for all my meat, beef tasted rather odd.  I later read that Plains Indians, when they started receiving beef rations, had the same reaction as I did. Beef was too sweet.

Anyhow, this year I didn't draw.  I may be able to pick up a left over tag, but I might not be able to.  It depends on whether I have time that day to apply, and given my schedule, I likely won't.

I did draw an elk tag, but elk are hard to get and most years I don't have ample time to devote to it.  I always go, but I fill out only about 1/3d of the time.

So the whole thing is really disappointing.

So why didn't I draw?

Well, I suppose a variety of reasons. One likely is that the population of the state has grown over the past decade, thanks in part to the oil boom we were having and in part to the uniquely weird American view that any country in the world is capable of having the population infinitely expand without that place eventually become a hideous blight, like Denver.  Now, before I'm accused of things, I'm not advocating all sorts of social engineering and persona pharmaceuticals (which I oppose), but rather noting that a country really can't sanely take in 1,000,000 immigrants every year without it looking, eventually,  like the hideous blight of Denver Colorado.

Part of it too, however, is that the state sells quite a few out of state tags, and antelope tags are a popular one.

Now, I'm not opposed to out of state hunters coming in here to hunt. And I understand that its important for our economy. But I frankly do think that the state ought to heavily favor the local residents.  All states should, in what ever they have.  I don't expect Alaska to give me the same rights in halibut fishing that natives would have.  I don't expect Nebraska to favor me with the same waterfowl hunting opportunities it gives its citizens.  I don't expect Colorado to favor me in. . . um. . . well I can't think of anything that I might compete with a Coloradoan in, in Colorado, but if there was, I'd expect the residents of the hideous blight to have rights to it over me.

If that sounds like favoritism, it is, of a type.  It's localism, and it conceded the nature of local resources.  It's also a species of agrarianism in this context.

Of course, what does that really mean?  

Well, I think Wyoming can and should take a page out of the Canadian playbook, or the Alaskan one, here.  If you have held, I'd say, Wyoming big game permits for a consistent ten years, and if you put in for antlerless as well as antlered in that time, your application should be weighted so that, after the first round of draws are done, those who have not drawn in this category, and who have put in for a classification of "subsistence hunter", should have their applications gone back over and if they didn't draw, they should have their licenses then bump out any anterless out of state, or second license (we have those too) drawn by a resident hunter, so that they get one.  

It would be fair, and it would be based on what hunting is really about.

I'd make that apply, I note, to all game animals.  Yes, I understand that might mean that somebody from Ohio who put in for a high dollar elk tag doesn't draw, but it probably won't mean that as it's probably the case that Ohioans don't put in for cow tags.  But if it did mean that, oh well.  Its fair and it focuses things on the very point of why we hunt.

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.

When the head of a family or lodge shall have selected lands and received his certificate as above directed, and the agent shall be satisfied that he intends in good faith to commence cultivating the soil for a living, he shall be entitled to receive seed and agricultural implements for the first year in value one hundred dollars, and for each succeeding year he shall continue to farm, for a period of three years more, he shall be entitled to receive seed and implements as aforesaid in value twenty-five dollars per annum.

And it is further stipulated that such persons as commence farming shall receive instructions from the farmer herein provided for, and whenever more than one hundred persons shall enter upon the cultivation of the soil, a second blacksmith shall be provided, with such iron, steel, and other material as may be required.

So, looking at these again, it is clear that the Federal Government thought:

• 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.