Amicus Curiae Brief — Clayvin Herrera, Petitioner v. Wyoming

Supreme Court briefNov 20, 2018

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No. 17-532

In the

Supreme Court of the United States

♦

Clayvin Herrera,

Petitioner,

State of Wyoming,

Respondent.

♦

ON WRIT OF CERTIORARI

TO THE DISTRICT COURT OF WYOMING,

SHERIDAN COUNTY

♦

AMICI CURIAE BRIEF OF WYOMING STOCK

GROWERS ASSOCIATION, WYOMING FARM

BUREAU FEDERATION, WYOMING WOOL

GROWERS ASSOCIATION, MONTANA FARM

BUREAU FEDERATION, IDAHO FARM

BUREAU FEDERATION, UTAH FARM

BUREAU FEDERATION, COLORADO FARM

BUREAU FEDERATION, AND SOUTH

DAKOTA CATTLEMEN’S ASSOCIATION IN

SUPPORT OF RESPONDENT

♦

William Perry Pendley

Counsel of Record

Cody James Wisniewski

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wppendley@mountainstateslegal.com

cody@mountainstateslegal.com

Counsel for Amici Curiae

November 20, 2018

QUESTION PRESENTED

The amici curiae file this brief in support of the State

of Wyoming to focus on an important aspect of the

Question Presented to the Court, namely:

If neither Wyoming’s admission to the Union nor

the establishment of the Bighorn National Forest

abrogated the Crow Tribe of Indians’ 1868 federal

treaty hunting rights, are federally managed lands

that are leased or permitted to private third parties

“[]occupied” by function of those leases or permits and

thereby not subject to the hunting rights established

in the 1868 Crow Tribe Treaty?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................

TABLE OF AUTHORITIES ..............................

IDENTITIES AND INTERESTS

OF AMICI CURIAE ...........................................

Amici Curiae in the Geographic Area

Affected by the Crow Tribe Treaty ............

Amici Curiae in Geographic Areas

Subject to Indian Treaties with Identical

Language as the Crow Tribe Treaty .........

III. Amici Curiae in Geographic Areas

Subject to Indian Treaties with Hunting

Rights Similar to the Crow Tribe Treaty ..

STATEMENT OF THE CASE ...........................

Historical Background ...............................

II.

Factual Background ...................................

III. Procedural Background .............................

SUMMARY OF THE ARGUMENT ..................

II.

iii

ARGUMENT ......................................................

The Plain Language of the Crow Tribe

Treaty does not Provide Tribe Members

a Right to Hunt on Federally Permitted

or Leased Lands Because they are not

“Unoccupied” ..............................................

The Contemporaneous Meaning of

“Unoccupied”

Demonstrates

that

Federally Permitted and Leased Lands

are Inherently Occupied ............................

III. The Intent Behind the Crow Tribe

Treaty also Supports the Understanding

that Federally Permitted and Leased

Lands are not “Unoccupied” ......................

CONCLUSION ...................................................

II.

APPENDIX

Appendix A

USDA Forest Service: Term Private Land

Grazing Permit..............................................

A-1

TABLE OF AUTHORITIES

Page

CASES:

Andrus v. Smith, 133 Cal. 78 (1901) .................

Bailey v. Irby, 2 Nott & McC. 343 (S.C.

Const. App. 1820) ...............................................

Bate Refrigerating Co. v. Sulzberger,

157 U.S. 1 (1895) ................................................ 16–17

Buford v. Houtz, 133 U.S. 320 (1890) ................

Caminetti v. United States,

242 U.S. 470 (1917) ............................................ 16, 17

Chickasaw Nation v. United States,

534 U.S. 84 (2001) .............................................. 17, 21

Collier v. Bartlett,

175 P. 247 (Okla. 1918) .......................... 22–23, 25–26

Crow Tribe of Indians v. Repsis,

73 F.3d 982 (10th Cir. 1995) .............................. 10, 11

Crow Tribe of Indians v. Repsis,

116 S.Ct. 1851 (1996) (mem.) ............................

Hamilton v. Rathbone, 175 U.S. 414 (1899) ......

Horton v. Moore, 38 Cal. App. 623

(2nd Dist. 1918) ............................................. 22, 25–26

Jackson ex dem. Gilliland v. Woodrudd, 1

Cow. 276 (N.Y. Sup. Ct. 1823) ...........................

Johnson v. Almida Land & Cattle Company,

LLC, 241 P.3d 673 (Ariz. 2016) .........................

Jones v. United States, 846 F.3d 1343 (Fed.

Cir. 2017) ............................................................ 17, 21

Lake County v. Rollins, 130 U.S. 662 (1889)..... 16–17

Lawrence v. Fulton, 19 Cal. 683 (1862) .............

Light v. United States, 220 U.S. 523 (1911) ......

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) .............................

Missionary Soc. of M.E. Church v. Dalles City,

107 U.S. 336 (1883) ............................................

Northwestern Bands of Shoshone Indians v.

United States, 324 U.S. 335 (1945).................... 17, 21

Seufert Bros. Co. v. United States,

249 U.S. 194 (1919) ............................................

State v. Arthur, 74 Idaho 251 (1953) .................

State v. Coffee, 97 Idaho 905 (1976) ............ 23, 25–26

State v. Cutler,

708 P.2d 853 (Idaho 1985) ..................... 27–28, 31, 32

Territory v. Stone, 2 Dakota 155,

4 N.W. 697 (1880) ...............................................

United States v. Choctaw Nation,

179 U.S. 494 (1900) ....................................... 15–16, 17

United States v. First Nat. Bank,

234 U.S. 245 (1914) ............................................ 16–17

United States v. Lexington Mill & Elevator

Co., 232 U.S. 399 (1914)..................................... 16–17

United States v. Rogers, 23 F. 658

(W.D. Ark. 1885) ................................................ 22, 25

United States v. Winans,

198 U.S. 371 (1905) ....................................... 23, 25–26

Ward v. Race Horse, 163 U.S. 504 (1896).......... passim

Webber v. Clarke, 74 Cal. 11 (1887)...................

Western Watershed Project v. BLM, No. 10cv-266-S, 2011 WL 13135784 (D. Wyo. Dec.

14, 2011) .............................................................

REGULATIONS, STATUTES AND

TREATIES:

First Treaty of Fort Laramie, Sept. 17, 1851,

11 Stat. 749, Art. 5 .............................................

8–9

vii

Treaty Between the United States and the

Crow Tribe of Indians, May 7, 1868,

15 Stat. 649 ........................................................ passim

Treaty with the Eastern Band Shoshoni and

Bannock, 1868, July 3, 1868, 15 Stat. 673 ... 5, 10, 14

Treaty with the Navaho [sic], 1868, June 1,

1868, 15 Stat. 667 .............................................. 6, 14

Treaty with the Sioux - - Brule, Oglala,

Miniconjou, Yanktonai, Hunkpapa,

Blackfeet, Cuthead, Two Kettle, Sans Arcs,

and Santee - - and Arapaho, 1868, Apr. 29,

1868, 15 Stat. 635 ............................................ 7–8, 14

Treaty with the Ute, 1874, Apr. 29, 1874,

18 Stat. 36. ......................................................... 7, 14

43 U.S.C. § 315c ................................................. 24–25

RULES:

Supreme Court Rule 37.3(a) ..............................

Supreme Court Rule 37.6 ..................................

FEDERAL MANUALS AND RULES:

36 C.F.R. 261.10(d)(1) ........................................

viii

Forest Service Manual 2200, et seq.

2230.2 ............................................................

2230.3 ............................................................

2230.5 ............................................................ 19, 20

2231 ...............................................................

2231.02 ..........................................................

2231.03 ..........................................................

2231.2 ............................................................

2231.62a ........................................................ 19, 24

OTHER AUTHORITIES:

ALEXANDER MAJORS, SEVENTY YEARS ON THE

FRONTIER: ALEXANDER MAJORS’ MEMOIRS OF A

LIFETIME ON THE BORDER (Rand, McNally,

1893) ...................................................................

ANDERSON’S DICTIONARY OF LAW (1st ed.

1889) ...................................................................

BLACK’S LAW DICTIONARY (1st ed. 1891)............

BLACK’S LAW DICTIONARY (10th ed. 2014) ... 17, 18, 22

BLM and Forest Service Announce 2018

Grazing Fees, Bureau of Land Management ....

CHRISTOPHER KNOWITON, CATTLE KINGDOM:

THE HIDDEN HISTORY OF THE COWBOY WEST

(Houghton Mifflin Harcourt 2017) .................... 29–30

MERRIAM-WEBSTER DICTIONARY ........................ 17, 18

Federal Lands and Indian Reservations,

USGS ..................................................................

FREDERICK POLLOCK & ROBERT SAMUEL

WRIGHT, AN ESSAY ON POSSESSION IN THE

COMMON LAW (1888)...........................................

FREDERICK E. HOXIE, PARADING THROUGH

HISTORY: THE MAKING OF THE CROW NATION

IN AMERICA, 1805-1935 (Cambridge, 1995) .......

U.S. Office of Indian Affairs, Annual Report of

the Commissioner of Indian Affairs to the

Secretary of the Interior for the Year 1873

(1874) .................................................................. 28, 29

IDENTITIES AND INTERESTS OF AMICI

CURIAE1

Amici curiae represent farming and ranching

interests across the western United States—including

over 175,000 members in six separate states. Among

these groups, the amici curiae fall into three broad

categories. First, a number of the amici curiae operate

in and represent members who occupy federally

managed land pursuant to leases and permits in areas

subject to the treaty hunting right contained in the

Crow Tribe Treaty at issue in this case. Second, a

number of the amici curiae operate in and represent

members who occupy federally managed land

pursuant to leases and permits in areas subject to

different treaties that use identical language to the

Crow Tribe Treaty at issue in this case. Finally, the

remainder of the amici curiae operate in and

represent members who occupy federally managed

land pursuant to leases and permits in areas subject

to other treaty hunting rights, based on different

language than the Crow Tribe Treaty.

Federal lease and permit holders, like those

represented by amici curiae, pay the United States for

the privilege of grazing livestock on federally

managed lands, including national forest lands. See

Appendix A, USDA Forest Service: Term Private Land

The parties have consented to the filing of this amici curiae

brief. See Supreme Court Rule 37.3(a). Additionally, pursuant to

Supreme Court Rule 37.6, the undersigned affirms that no

counsel for a party authored this brief in whole or in part, and no

person or entity other than the amici curiae, their members, or

their counsel, made a monetary contribution specifically for the

preparation or submission of this brief.

Grazing Permit. These lessees and permittees do so

under a number of conditions imposed by the United

States, such as managing, protecting, and improving

(when necessary) the lands subject to the permit. See

id. In exchange, federal permit and leaseholders have

the right to be present on the subject lands, graze their

livestock on those lands, and exert a level of control

over the lands. See id.

AMICI CURIAE IN THE GEOGRAPHIC

AREA AFFECTED BY THE CROW TRIBE

TREATY

Wyoming Stock Growers Association (“WSGA”) is

a non-profit membership organization founded in

1872 and incorporated under the laws of the State of

Wyoming. WSGA represents over 1,200 livestock

producers across the state and advocates for the

interests and advancement of the livestock industry,

Wyoming agriculture, rural community living, and

the livestock-related interests of its members. As part

of its mission, WSGA also informs and educates the

public regarding the role of the livestock industry in

the community, in partnership with the state and

federal government. WSGA has approximately 475

members who hold grazing permits from either the

Bureau of Land Management or the United States

Forest Service, some of whom operate in the national

forests in the State of Wyoming. WSGA and its

members operate in the geographic area subject to the

Crow Tribe Treaty and will be bound and affected by

the decision of this Court.

Wyoming Farm Bureau Federation (“WYFB”) is

a non-profit membership organization founded in

1920 and incorporated under the laws of the State of

Wyoming.

WYFB represents more than 13,000

members in all 23 counites in the state, including over

2,600 agricultural producers. WYFB’s mission is to

protect, promote, and represent the economic, social,

and educational interests of its members at the local,

state, and national levels, as well as to protect private

property rights and help its members achieve an

equitable return on their investments. WYFB has

members who operate in the national forests in the

State of Wyoming. WYFB and its members operate in

the geographic area subject to the Crow Tribe Treaty

and will be bound and affected by the decision of this

Court.

Wyoming Wool Growers Association (“WWGA”)

is a non-profit membership organization founded in

1903 and incorporated under the laws of the State of

Wyoming. WWGA represents over 300 members

across the state, and works to protect, preserve, and

enhance the lamb and wool industry and the ranching

community. As part of its mission, WWGA is an active

partner with the state, its citizens, and the federal

government in caring for, enhancing, and adding

value to the renewable resources in the state. WWGA

has members who operate in the national forests in

the State of Wyoming. WWGA and its members

operate in the geographic area subject to the Crow

Tribe Treaty and will be bound and affected by the

decision of this Court.

Montana Farm Bureau Federation (“MTFB”) is a

non-profit membership organization founded in 1919

and incorporated under the laws of the State of

Montana. MTFB represents over 21,000 memberfamilies in the state and works to enhance both the

reputation and the viability of the agricultural

industry. MTFB’s mission is to promote, protect, and

represent the economic, social, and educational

interests of its farmer and rancher members. MTFB

has members who operate in the national forests in

the State of Montana. MTFB and its members operate

in the geographic area subject to the Crow Tribe

Treaty and will be bound and affected by the decision

of this Court.

II.

AMICI CURIAE IN GEOGRAPHIC AREAS

SUBJECT TO INDIAN TREATIES WITH

IDENTICAL LANGUAGE AS THE CROW

TRIBE TREATY

Idaho Farm Bureau Federation (“IDFB”) is a

non-profit membership organization founded in 1939

and incorporated under the laws of the State of Idaho.

IDFB represents over 80,000 member-families, who

farm and ranch in all 44 counties within the state.

IDFB’s mission is to strengthen agriculture locally

and to protect the rights, values, and property of its

members and all producers in the state. IDFB works

at a local, county, state, and national level to analyze

problems and formulate action to achieve educational

improvement, economic opportunity, and social

advancement. IDFB has members who operate in the

national forests in the State of Idaho. IDFB and its

members operate in the geographic area subject to the

Bannock and Eastern Shoshone Tribe Treaty, which,

while not directly at issue in this case, provides those

tribes with an identical hunting right to that

contained in the Crow Tribe Treaty.2 Any decision of

this Court may be applied to the Bannock and Eastern

Shoshone Tribe Treaty, which will directly affect

IDFB and its members.

Utah Farm Bureau Federation (“UTFB”) is a

non-profit membership organization founded in 1916

and incorporated under the laws of the State of Utah.

UTFB represents over 34,000 members in all 29

counties in the state. UTFB works to support its

producer-members through legislative lobbying,

leadership development programs, commodity

associations, rural health and safety programs,

insurance products, and agricultural supplies and

marketing. UTFB actively works at the local, state,

national, and international level to represent the

interests of its members and the agricultural

industry. UTFB has members who operate in the

national forests in the State of Utah. UTFB and its

members operate in the geographic area subject to the

“Article 4 – The Indians herein named agree, when the

agency house and other buildings shall be constructed on their

reservations named, they will make said reservations 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 so long as peace subsists among the whites and Indians on

the borders of the hunting districts.” Treaty with the Eastern

Band Shoshoni and Bannock, 1868, July 3, 1868, 15 Stat. 673

(emphasis added) (“Bannock and Eastern Shoshone Tribe

Treaty”).

Navajo Tribe Treaty, which, while not directly at issue

in this case, provides the Navajo Tribe with a nearly

identical hunting right as contained in the Crow Tribe

Treaty.3 Any decision of this Court may be applied to

the Navajo Tribe Treaty, which will directly affect

UTFB and its members.

III. AMICI CURIAE IN GEOGRAPHIC AREAS

SUBJECT TO INDIAN TREATIES WITH

HUNTING RIGHTS SIMILAR TO THE

CROW TRIBE TREATY

Colorado Farm Bureau Federation (“COFB”) is a

non-profit membership organization founded in 1919

and incorporated under the laws of the State of

Colorado. COFB represents nearly 25,000 members

in all 64 counties in the state. COFB’s mission is to

preserve and protect the future of agriculture and

rural values and to protect the Colorado way of life.

COFB represents its members’ interests in areas such

as property rights, water rights, use of public lands,

the environment, and education. COFB has members

who operate in the national forests in the State of

Colorado. COFB and its members operate in the

“Article 9 – In consideration of the advantages and benefits

conferred by this treaty, and the many pledges of friendship by

the United States, the tribes who are parties to this agreement

hereby stipulate that they will relinquish all right to occupy any

territory outside their reservation, as herein defined, but retain

the right to hunt on any unoccupied lands contiguous to their

reservation, so long as the large game may range thereon in such

numbers as to justify the chase . . .." Treaty with the Navaho

[sic], 1868, June 1, 1868, 15 Stat. 667 (emphasis added) (“Navajo

Tribe Treaty”).

geographic area subject to the Ute Tribe Treaty,

which, while not directly at issue in this case, provides

the Ute Tribe with a tribal hunting right.4 Any

decision of this Court may be applied to the Ute Tribe

Treaty, which would directly affect COFB and its

members.

South Dakota Cattlemen’s Association (“SDCA”)

is a non-profit membership organization founded in

1948 and incorporated under the laws of the State of

South Dakota. SDCA represents over 800 members

across the state.

SDCA is a producer-oriented

organization that is actively involved advocating for

its members’ interests in agricultural policy, property

rights, environmental management, and federal land

use at a local, state, and national level. SDCA has

members who operate in the Black Hills National

Forest in South Dakota. SDCA and its members

operate in the geographic area subject to the Sioux

Treaty of 1868, which, while not directly at issue in

this case, provides various Sioux Tribes, including the

Oglala Lakota Tribe, with a tribal hunting right.5 Any

“Article 2 – The United States shall permit the Ute Indians

to hunt upon [the ceded] lands so long as the game lasts and the

Indians are at peace with the white people.” Treaty with the Ute,

1874, Apr. 29, 1874, 18 Stat. 36 (“Ute Tribe Treaty”).

“Article 11 – In consideration of the advantages and

benefits conferred by this treaty, and the many pledges of

friendship by the United States, the tribes who are parties to this

agreement hereby stipulate that they will relinquish all right to

occupy permanently the territory outside their reservation as

herein defined, but yet reserve the right to hunt on any lands

north of North Platte, and on the Republican Fork of the Smoky

Hill River, so long as the buffalo may range thereon in such

numbers as to justify the chase.” Treaty with the Sioux - - Brule,

decision of this Court may be applied to the Sioux

Treaty of 1868, which would directly affect SDCA and

its members.

♦

STATEMENT OF THE CASE

HISTORICAL BACKGROUND

In May 1868, the United States and the Crow

Tribe of Indians (“Crow Tribe”) entered into the

Second Treaty of Fort Laramie, which was ratified by

the Senate and signed by President Andrew Johnson

on May 7, 1868. Treaty Between the United States and

the Crow Tribe of Indians, May 7, 1868, 15 Stat. 649

(“Crow Tribe Treaty”). The Crow Tribe Treaty

resulted in the creation of the Crow Reservation,

located in present-day southern Montana, and the

tribe’s sale of the remainder of its historical territory,

which had been partially established by the First

Treaty of Fort Laramie, to the United States.6 First

Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead,

Two Kettle, Sans Arcs, and Santee - - and Arapaho, 1868, Apr.

29, 1868, 15 Stat. 635 (“Sioux Treaty of 1868”).

“The territory of the Crow Nation, commencing at the

mouth of Powder River on the Yellowstone; thence up Powder

River to its source; thence along the main range of the Black Hills

and Wind River Mountains to the head-waters of the Yellowstone

River; thence down the Yellowstone River to the mouth of

Twenty-five Yard Creek; thence to the head waters of the Muscleshell River; thence down the Muscle-shell River to its mouth;

thence to the head-waters of Big Dry Creek, and thence to its

mouth.” First Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat.

749, Art. 5.

Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749.

Pursuant to treaty negotiations, the Crow Tribe

Treaty provided that the Crow Tribe “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.” Crow Tribe

Treaty, Art. 4 (emphasis added).7

II.

FACTUAL BACKGROUND

In January 2014, Petitioner Clayvin Herrera, an

enrolled member of the Crow Tribe who resides on the

Crow Reservation in Montana, went on an elk hunt

with a group of other enrolled tribe members. Pet. Br.

1, 13. The group tracked a heard of elk off of the Crow

Reservation and crossed the Wyoming state line,

entering into the Bighorn National Forest. Id. When

entering the Bighorn National Forest, the hunting

group crossed a fence that is maintained by a federal

permit holder and crossed lands that are subject to a

grazing permit possessed by the same, independent

third-party. Pet. App. 5; JA 54, 68–70, 74–75. The

group “shot, quartered, and packed” “three elk” out of

the Bighorn National Forest and brought the harvest

back to their residences on the Crow Reservation in

“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.” Crow Tribe

Treaty, Art. 4.

Montana. JA 256. Upon learning of and connecting

Herrera to the hunt, Wyoming authorities cited

Herrera for two criminal misdemeanors under

Wyoming law: (1) taking an antlered big game animal

without a license or during a closed season; and (2)

being an accessory to the same. Pet. App. 5, 36; JA

117, 165.

III. PROCEDURAL HISTORY

After being formally charged, Herrera moved to

dismiss the charges based on the Crow Tribe Treaty

provision, contained in Article 4, which he claimed

granted him the right, as a registered Crow Tribe

member, to hunt in the Bighorn National Forest. Pet.

App. 6; Crow Tribe Treaty, Art. 4.

The State of Wyoming opposed, relying in part on

the cases Ward v. Race Horse, 163 U.S. 504 (1896),

and Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th

Cir. 1995). Pet. App. 37–39. In Race Horse, this Court

held that Wyoming’s admission into the Union “on

equal terms with the other states” abrogated the

Bannock Indian Tribe’s treaty hunting rights and that

Wyoming’s statehood terminated what the Court

deemed a “temporary and precarious,” rather than a

“perpetual” hunting right. 163 U.S. at 508–15. The

Bannock Indian Tribe’s treaty hunting right is based

on identical language to that used in the Crow Tribe

Treaty. See Bannock and Eastern Shoshone Tribe

Treaty, Art. 4. In Repsis, the Tenth Circuit, following

Race Horse, held that the “Tribe’s right to hunt

reserved in [the Crow Tribe Treaty was] repealed by

the act admitting Wyoming into the Union.” 73 F.3d

at 992. The Tenth Circuit also indicated in an

“alternative basis for affirmance” that the Crow

Tribe’s hunting rights were abrogated by the

establishment of the Bighorn National Forest because

when “Congress created the Big Horn National

Forest,” the land therein was “no longer available for

settlement,” thereby “result[ing] in the ‘occupation’ of

the land.” Id. at 993. According to the Tenth Circuit,

the Bighorn National Forest “ha[s] been ‘occupied’

since the creation of the national forest in 1887 [sic].”

Id. at 994. This Court declined to grant certiorari in

Repsis. 116 S.Ct. 1851 (1996) (mem.).

Herrera, in response, argues that Race Horse and

Repsis are no longer good law, as this Court, in 1999,

held that the principal theory upon which Race Horse

rested was no longer binding precedent. Pet. App. 39–

41; see Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 204–07 (1999). Herrera argues

that “[t]he Court also rejected Race Horse’s ‘temporary

and precarious’ language as ‘too broad to be useful in

distinguishing rights that survive statehood from

those that do not,’ explaining that rights reserved in

Indian treaties should continue in force unless a

terminating event defined in the treaty has occurred.”

Pet. Br. 13 (citing Mille Lacs, 526 U.S. at 206-07).

Finally, Herrera cites to the dissent in Mille Lacs to

support the proposition that “[t]reaty rights are not

impliedly terminated upon statehood.” Pet. Br. 13

(citing Mille Lacs, 526 U.S. at 207 and Mille Lacs, 526

U.S. at 219 (Rehnquist, C.J., dissenting)).

Here, the Wyoming State Circuit Court followed

Repsis in both holdings and denied Herrera’s motion

to dismiss the charges brought against him by the

State of Wyoming. Pet. App. 3–35; 36–43. Herrera

was convicted on both counts. Pet. App. 9. The

Wyoming District Court affirmed the Circuit Court

and the Wyoming Supreme Court denied Herrera’s

petition for a writ of review. Pet. App. 3–35; 1–2.

♦

SUMMARY OF THE ARGUMENT

The arguments presented by Herrera and amicus

curiae the United States overlook those people who

regularly use and work on federally managed lands.

Federal permit and lease holders, such as ranchers

and farmers, enter into an agreement with the federal

government in order to graze livestock on vast swaths

of federally managed lands, including lands located in

today’s many national forests. Amici curiae request

that this Court recognize that those permitted and

leased lands are occupied by the permittees and

lessees who are regularly present on those lands and

who work, use, and exercise a level of control over

those lands. The Crow Tribe’s treaty hunting rights,

whether applicable in Wyoming or in the Big Horn

National Forest, do not apply to federally permitted

and leased lands.

The term “unoccupied,” as used in the Crow Tribe

Treaty, has a clear and unambiguous meaning. To

occupy means to take up space; to reside in, as an

owner or tenant; or to hold in possession. This

understanding of the term “occupy” has not varied in

over a century. Federal permit and lease holders,

such as those represented by amici curiae, occupy the

federally managed lands for which they have permits

and leases. Federal permit and lease holders are

physically present on the lands subject to their

agreements, have possession of those lands, and

exercise a level of control over them. Federal permits

and leaseholds are, therefore, not “unoccupied” as

contemplated in the Crow Tribe Treaty.

Furthermore, the plain meaning of the term

“occupy” was the same when the Crow Tribe Treaty

was written and ratified as it is today. Courts and

legal dictionaries throughout the late nineteenth and

early twentieth centuries recognized that “occupy”

included possessing, holding or keeping for use,

exercising control over, and putting property to a use

appropriate to its general character. Federal permit

and lease holders not only exert a level of possession

and control over these lands, but also quite clearly put

them to a use that is appropriate to the lands’

character, such as grazing.

Finally, even if this Court decides to examine the

subjective intent of the parties behind the hunting

rights contained in the Crow Tribe Treaty, the intent

was to limit conflict between the Crow Tribe members

and settlers moving West, as asserted by the United

States in its brief. U.S. Br. 25. That intent

encompasses a limitation on tribal members’ hunting

rights on lands regularly and legally maintained and

worked—occupied—by settlers, such as the settlers’

grazing and farming lands. Petitioner and the United

States both affirmatively acknowledge that farm

lands were considered occupied in the time

contemporaneous to signing the Crow Tribe Treaty.

Pet. Br. 35; U.S. Br. 26. Those lands are nearly

identical to the current federally permitted and leased

lands occupied by amici curiae’s members.

Practically speaking, if this Court were to allow

for an unfettered tribal hunting right on lands subject

to legal use and possession by permits or leases,

instead of limiting the hunting rights to all

“unoccupied” lands of the United States, ranchers and

farmers would be forced to contend with out-of-season,

unmanaged, tribal hunting on their federal

allotments, potentially endangering the ranchers’ and

farmers’ operations, livestock, their own personal

safety, and the safety of those out-of-season Indian

hunters. If out-of-season and unlicensed hunting

were allowed, the ranchers and farmers would have

no way of knowing when the hunting will occur on

their leased or permitted lands, would have no ability

to prepare for those hunts, and may be unexpectedly

confronted with armed persons on their permit and

leaseholds. In addition, this Court’s holding could

then easily be applied to a number of different Indian

tribe treaties that contain identical language to the

Crow Tribe Treaty, including, but not limited to: the

Bannock and Eastern Shoshone Tribe Treaty and the

Navajo Tribe Treaty. Further, there are a number of

Indian treaties that, while containing slightly

different language, could be analogized to the Crow

Tribe Treaty in this matter, including, but not limited

to: the Sioux Treaty of 1868 and the Ute Tribe Treaty.

Amici curiae wish to make the Court acutely aware

that any decision in this case will almost certainly not

be limited to the Crow Tribe Treaty.8

♦

ARGUMENT

In order to determine the bounds of the hunting

right granted to the Crow Tribe in the Crow Tribe

Treaty, this Court must first look to the plain meaning

of the words used. If—and only if—the language is

ambiguous, should the Court then look to evidence

surrounding the execution of and intent behind the

treaty:

All agree that as a general rule in the

interpretation of written instruments the

intention of the parties must control, and

that such intention is to be gathered from

the

words

used—the

words

being

interpreted, not literally nor loosely, but

according to their ordinary signification. If

the words be clear and explicit, leaving no

room to doubt what the parties intended,

they must be interpreted according to their

natural and ordinary significance. If the

words are ambiguous, then resort may be

Not only could any opinion in this case be applied to the

numerous Indian treaties in the West, which confer identical or

similar hunting rights, this Court, in Seufert Bros. Co. v. United

States, has already held that rights conferred upon a tribe under

a treaty apply beyond the historically ceded territory of the tribe

in question. 249 U.S. 194 (1919). Thus, the definition of

“unoccupied” will extend to smaller tracts of federally managed

lands throughout the United States.

had to such evidence, written or oral, as will

disclose the circumstances attending the

execution of the instrument and place the

court in the situation in which the parties

stood when they signed the writing to be

interpreted.

United States v. Choctaw Nation, 179 U.S. 494, 531

(1900) (on interpretation of the agreement entered

into between the United States and the Wichita and

Affiliated Bands of Indians).

THE PLAIN LANGUAGE OF THE CROW

TRIBE TREATY DOES NOT PROVIDE

TRIBE MEMBERS A RIGHT TO HUNT ON

FEDERALLY PERMITTED OR LEASED

LANDS BECAUSE THEY ARE NOT

“UNOCCUPIED”

The plain meaning of the term “unoccupied” in

the Crow Tribe Treaty does not allow Crow Tribe

members to hunt on federally managed lands that

have been permitted or leased to private parties, given

that those lands are occupied by the federal permit

and lease holders.

“It is elementary that the meaning of a statute

must, in the first instance, be sought in the language

in which the act is framed, and if that is plain, and if

the law is within the constitutional authority of the

lawmaking body which passed it, the sole function of

the courts is to enforce it according to its terms.”

Caminetti v. United States, 242 U.S. 470, 485 (1917)

(citing United States v. First Nat. Bank, 234 U.S. 245,

258 (1914); United States v. Lexington Mill & Elevator

Co., 232 U.S. 399, 409 (1914); Bate Refrigerating Co.

v. Sulzberger, 157 U.S. 1, 33 (1895); Lake County v.

Rollins, 130 U.S. 662, 670, 671 (1889)). The same is

true of Indian treaties. See Chickasaw Nation v.

United States, 534 U.S. 84, 94 (2001) (rejecting other

canons of interpretation when the plain meaning of

the treaty was clear); Northwestern Bands of

Shoshone Indians v. United States, 324 U.S. 335, 353

(1945) (“We attempt to determine what the parties

meant by the treaty. We stop short of varying its

terms to meet alleged injustices.”); Jones v. United

States, 846 F.3d 1343, 1352 (Fed. Cir. 2017) (“The

Treaty was written in English, however, and we must

honor any unambiguous language in the treaty.”).

This Court does not have any additional duty of

interpretation when the language of a treaty is “plain

and admits of no more than one meaning.” Caminetti,

242 U.S. at 485 (citing Hamilton v. Rathbone, 175 U.S.

414, 421 (1899)); see Chickasaw Nation, 534 U.S. at

94; Choctaw Nation, 179 U.S. at 531.

The word “occupy,” as defined by MERRIAMWEBSTER means: “to take up (a place or extent in

space)” or “to reside in as an owner or tenant.”

Occupy,

MERRIAM-WEBSTER

DICTIONARY,

https://www.merriam-webster.com/dictionary/occupy

(last visited Nov. 18, 2018). BLACK’S LAW DICTIONARY

defines “occupy” as: “To hold possession of; to be in

actual possession of.”

Occupy, BLACK’S LAW

DICTIONARY (10th ed. 2014). Additionally, BLACK’S

LAW DICTIONARY defines “unoccupied” as “(Of a

building) not occupied; vacant.” Unoccupied, BLACK’S

LAW DICTIONARY (10th ed. 2014).

This plain meaning of the term “occupy” has not

varied in over a century. The first BLACK’S LAW

DICTIONARY, published in 1891, defined “occupy” as:

“To hold in possession; to hold or keep for use.”

Occupy, BLACK’S LAW DICTIONARY (1st ed. 1891).

ANDERSON’S DICTIONARY OF LAW, published in 1889,

defined “occupy” as: “To hold in possession; to hold or

keep for use,” and further explained that occupy

“[i]mplies actual use, possession or cultivation by a

particular person.” Occupy, ANDERSON’S DICTIONARY

OF LAW (1st ed. 1889).

While the definition of “possession” may be less

obvious, MERRIAM-WEBSTER, in relevant part, defines

the term as: “the act of having or taking into control,”

“control or occupancy of property without regard to

ownership,” or “something owned, occupied, or

controlled.”

Possession,

MERRIAM-WEBSTER

DICTIONARY,

https://www.merriamwebster.com/dictionary/possession (last visited Nov.

18, 2018). BLACK’S LAW DICTIONARY defines the term

as: “The fact of having or holding property in one’s

power; the exercise of dominion over property.”

Possession, BLACK’S LAW DICTIONARY (10th ed. 2014).

Additionally, dating back to the nineteenth century,

“[i]n common speech a man is said to possess or be in

possession of anything of which he has the apparent

control.” Id. (citing FREDERICK POLLOCK & ROBERT

SAMUEL WRIGHT, AN ESSAY ON POSSESSION IN THE

COMMON LAW 1–2 (1888)). Further, land that is

lawfully possessed by a party not holding title is

considered derivatively possessed.

Possession,

BLACK’S LAW DICTIONARY (10th ed. 2014).

All of these definitions lead to the understanding

that there are certain indices of occupation: presence,

possession, use, control (actual or apparent), and

cultivation.

The United States Forest Service (“Forest

Service”) and the Bureau of Land Management

(“BLM”) administer over 24,500 grazing permits and

leases in 16 western states. BLM and Forest Service

Announce 2018 Grazing Fees, Bureau of Land

Management,

https://www.blm.gov/pressrelease/blm-and-forest-service-announce-2018grazing-fees (last visited Nov. 18, 2018). These lessees

and permittees pay for the privilege to graze livestock

on federally managed lands, sometimes referred to as

“public lands,” pursuant to their agreements with the

United States. See App. A. The grazing lands are

considered to be part of the permit, and the lessee or

permittee is responsible for managing, protecting, and

improving (when necessary) the lands subject to the

permit, in conjunction with the Forest Service or BLM

and its authorized officer. See id. The Forest Service

defines a grazing permit as “a document authorizing

livestock to use [National Forest Service] lands or

other lands under Forest Service control for livestock

production.” Forest Service Manual 2200, et seq., at

2230.5,

https://www.fs.fed.us/cgibin/Directives/get_dirs/fsm?2200 (last visited Nov. 18,

2018) (“FSM 2200”). Permits can be cancelled for nonuse. Id. at 2231.62a. When calculating the grazing

fees for a grazing permit, the Forest Service bases the

calculation off of a “head month,” which is “a month’s

use and occupancy of range by one weaned or adult

cow with or without calf, bull, steer, heifer, horse,

burro, or mule, or 5 sheep or goats.” Id. at 2230.5

(emphasis added).

Essentially, federal permit and lease holders

have provided consideration for and entered into an

agreement with the United States to graze their

livestock on specific portions of federally managed

lands. In turn, the permit and lease holders have the

right to be present on, use, cultivate, and exert a level

of control over those lands.9 This is a partnership

between the United States and the lessee or

permittee, both of whom benefit from the relationship.

Lessees and permittees receive the benefit of

operating on federally managed lands and the Forest

Service and BLM use the lessees and permittees to

maintain the land and to achieve the “resource

management objectives” and “to best serve the public’s

long-term economic and social needs.” E.g., FSM

2200, at 2230.2.

Under the plain meaning of “unoccupied,”

federally permitted and leased lands are occupied by

the private parties who possess those permits and

leases. The Forest Service acknowledges, in its own

manual, that permittees use the permitted lands and

that permittees’ livestock occupy the lands. See FSM

2200, at 2230.5. The permit holders have the right to

hold, use, control, cultivate, and operate upon those

lands. Indeed, the Forest Service’s agent in this case

testified that the fence Petitioner crossed at the

This right is subject to the terms and conditions outlined

in the specific permit or lease. Additionally, the right is subject

to termination by the authorizing agency, as described in the

permit or lease. See, App. A.

Wyoming state line was maintained by the federal

permit holder who held the grazing permit to those

lands. JA 75, 131. While the leases and permits may

be subject to some conditions, the federal government

grants lessees and permittees the right to put those

lands to use, and to exert a level of control over those

lands, and in turn, expects them to maintain and

protect those lands for the benefit of the United

States.

Some form of extraordinary evidence would be

required to demonstrate that another, differing or

conflicting meaning of the term “occupy” exists or has

existed in over a century. See Northwestern Bands of

Shoshone Indians, 324 U.S. at 353; Chickasaw, 534

U.S. at 94; Jones, 846 F.3d at 1352. When the plain

meaning is apparent, this Court should not differ from

that meaning. Id. Federal lessees and permittees

exhibit all of the indices of occupation, as understood

by lawyers and laypersons alike, of their leased and

permitted lands. The Court’s holding in this matter,

therefore, should not allow tribal hunting on federal

permit and leaseholds pursuant to the Crow Tribe

Treaty.

II.

THE CONTEMPORANEOUS MEANING OF

“UNOCCUPIED” DEMONSTRATES THAT

FEDERALLY PERMITTED AND LEASED

LANDS ARE INHERENTLY OCCUPIED

The historical understanding of the word

“[]occupied,” as used in the Crow Tribe Treaty—as in

other

contemporaneous

uses—contemplated

occupation by possession, control, and/or use, not

simply a perpetual, physical presence.

“When congress used the word ‘occupied,’ it could

have meant no more than possession of the country.”

United States v. Rogers, 23 F. 658, 666 (W.D. Ark.

1885). The BLACK’S LAW DICTIONARY definition of

“occupy,” is, in part, based on this Court’s 1883

decision in Missionary Soc. of M.E. Church v. Dalles

City, which states “[t]o occupy means to hold in

possession; to hold or keep for use.” 107 U.S. 336

(1883); see also Occupy, BLACK’S LAW DICTIONARY

(10th ed. 2014). A variety of courts in the late

nineteenth and early twentieth centuries understood

the term “occupied” to include property that is

“subject[] to the will and control” of a party or “put to

a use appropriate to its general character.” Horton v.

Moore, 38 Cal. App. 623, 628 (2nd Dist. 1918) (“It is

also held that the terms ‘occupation,’ ‘possession

pedis,’ ‘subjection to the will and control,’ are

synonymous; that property is possessed and occupied

when it is put to a use appropriate to its general

character.”) (citing Andrus v. Smith, 133 Cal. 78

(1901); Webber v. Clarke, 74 Cal. 11 (1887); Rogers, 23

F. 658 (W.D. Ark. 1885); Lawrence v. Fulton, 19 Cal.

683 (1862)); see Bailey v. Irby, 2 Nott & McC. 343, 345

(S.C. Const. App. 1820) (equating “actual occupancy”

with “possession,” and “a pedia possessio”); accord

Jackson ex dem. Gilliland v. Woodrudd, 1 Cow. 276

(N.Y. Sup. Ct. 1823); see also Territory v. Stone, 2

Dakota 155, 4 N.W. 697 (1880) (equating the words

‘occupy’ and ‘use’). This understanding of “occupy”

even extended, specifically, to lands that were used for

cultivation and grazing. Collier v. Bartlett, 175 P. 247,

248 (Okla. 1918).

Particularly important to this Court’s inquiry,

are a number of state court opinions interpreting

Indian treaty rights. These courts long understood

“occupied lands” to include, among other things, lands

used

for

subsistence—including

agricultural

activities. See State v. Coffee, 97 Idaho 905, 907 (1976)

(“The area occupied by the Idaho Kootenai was used

primarily for residence and subsistence. The tribe

gained sustenance mainly from fishing, although

hunting, berry picking, trapping and root digging

were also impotant [sic].”) Further, when analyzing

the language granting the Nez Perce Tribe the right

to hunt on “open and unclaimed land,” the Idaho

Supreme Court stated the phrase “was intended to

include and embrace such lands as were not settled

and occupied by the whites under possessory rights or

patent or otherwise appropriated to private

ownership.” State v. Arthur, 74 Idaho 251, 256 (1953).

This Court, when examining the treaty between

the United States and Yakima Tribe, stated “the

object of the treaty was to limit the occupancy [of the

Indian tribe] to certain lands, and to define rights

outside of them.” United States v. Winans, 198 U.S.

371, 379 (1905). While it was clear that the tribe

would settle and reside on a portion of the land, this

Court reasoned that the entirety of the land reserved

for the tribe, which the tribe exercised a particular

level of control over, was thereby occupied by the tribe

in its entirety. Id. at 379, 381. Justice Brown, in his

dissent from the Court’s majority opinion in Race

Horse, understood that “the words ‘unoccupied lands

of the United States’ [] refer, not only to lands which

have not been patented, but also to those [lands]

which have not been settled upon [or] fenced . . ..”

Race Horse, 163 U.S. at 520. As this Court has

previously recognized, the Court should refrain from

interpreting a treaty against its plain meaning,

especially when the historical context weighs against

that interpretation. Id. at 516. (“Doubtless the rule

that treaties should be so construed as to uphold the

sanctity of the public faith ought not to be departed

from. But that salutary rule should not be made an

instrument for violating the public faith by distorting

the words of a treaty, in order to imply that it

conveyed rights wholly inconsistent with its language,

and in conflict with an act of congress, and also

destructive of the rights of one of the states.”)

Federal permittees and lessees are required to

take responsibility for the use and maintenance of the

land they graze. Their permits require them to

actually use the land. See FSM 2200, at 2231.62a.

Their permits require them to put the lands to a

beneficial use that is appropriate to the land’s

character—namely, grazing. See, e.g., FSM 2200, at

2230.3, 2231.02, 2231.03. They fence and maintain

the property subject to their permits. See JA 54, 68–

70, 74–75; see also App. A.10 This does not differ from

While the United States is not required to fence federally

managed lands in compliance with state “fence laws,” see Light

v. United States, 220 U.S. 523, 534–537 (1911), many federal

permits are conditioned on the maintenance or construction of

fencing to contain grazing to the permitted area and prevent

livestock from entering non-permitted areas. See 43 U.S.C.

lands that were grazed by settlers in the nineteenth

century, with the exception that the lands today are

much more clearly demarcated, because they are

legally required to be under the federal permit and

leasing system. See FSM 2200, at 2231.2, et seq.

Federally managed lands, in their entirety, are much

more clearly denoted on maps than they were in 1868.

See, e.g. Federal Lands and Indian Reservations,

USGS,

https://nationalmap.gov/small_scale/printable/fedlan

ds.html (last visited Nov. 18, 2018). In addition,

federal permits and leases are required to give specific

definitions of their borders, including maps which are

attached to those permits. See App. A. If anything,

lands that are occupied by federal permit holders are

much more obvious and apparent today than the lands

used for grazing by settlers in 1868.

Additionally, “[t]o have possession does not

require actual residence.” Rogers, 23 F. at 666. Even

though federal permit holders do not live on the

federally managed lands in question, that does not

mean those lands are not occupied—as courts have

made clear for decades. See Winans, 198 U.S. at 379,

§ 315c (“Fences . . . and other improvements necessary to the care

and management of the permitted livestock may be constructed

on the public lands within such grazing districts under permit

issued by the authority of the Secretary.”); see also Western

Watershed Project v BLM, No. 10-cv-266-S, 2011 WL 13135784,

at *3 (D. Wyo. Dec. 14, 2011) (evidencing BLM’s offer of a ten

year grazing permit conditioned on maintenance of existing

fences); Johnson v. Almida Land & Cattle Company, LLC, 241

P.3d 673 (Ariz. 2016) (evidencing a Forest Service grazing permit

in the Prescott National Forest requiring the permitholder to

erect a fence).

381; Race Horse, 163 U.S. at 520; Coffee, 97 Idaho at

907; Horton, 38 Cal. App. at 628; Collier, 175 P. at 248.

While permit and lease holders do not reside on the

permitted lands, they certainly exercise a level of

control over the lands in question. See App. A; see also

FSM 2200, at 2231. Permit and lease holders are

required to abide by the terms of their agreement with

the United States, but that agreement grants them

very specific interests in the permitted lands. These

interests include the right to access the land, the right

to be present on the land, the right to hold the land as

separate from surrounding lands (including other

permitted lands), and most importantly, the right to

put the land to a used that is appropriate to its general

character. See App. A; see also FSM 2200, at 2231. In

every contemporaneous understanding of the word

“unoccupied,” it is clear that permit and lease holders

occupy their permitted and leased federal lands.

The meaning of “unoccupied,” as used in the

Crow Tribe Treaty, does not include federally

managed lands that are occupied by federal permit

and leaseholders. Those permittees and lessees not

only exhibit the indices of occupation, as we

understand them today, but as they were understood

dating back to the time of the signing and ratification

of the Crow Tribe Treaty. Federal permit and

leaseholders are not only physically present on the

land and have their livestock physically present on the

land, but also the permitted and leased lands are

subject to a level of control by their permittees and

lessees, are put to a beneficial use appropriate to their

general character, and are more clearly demarcated

than they would have been 150 years ago. Federally

permitted and leased lands are not “unoccupied” as

that term was meant by the Crow Tribe Treaty.

III. THE INTENT BEHIND THE CROW TRIBE

TREATY

ALSO

SUPPORTS

THE

UNDERSTANDING THAT FEDERALLY

PERMITTED AND LEASED LANDS ARE

NOT “UNOCCUPIED”

Even if this Court goes beyond the plain meaning

and looks to the intent behind the Crow Tribe Treaty,

the overwhelming evidence indicates that the intent

was to reduce conflict between the Indian tribes and

the settlers moving West. Accordingly, federally

permitted and leased lands should not be considered

“unoccupied” since farming and grazing lands, which

were possessed, held, and used by early settlers just

as they are possessed, held, and used by federal

permit and lease holders today, would have been seen

as high-conflict areas.

Importantly, it is highly likely that the Crow

Tribe knew that the term “unoccupied” would apply to

lands that were regularly possessed, held, and used by

settlers for agricultural purposes. First, the tribe

understood that the term “occupied” encompassed

lands that were possessed, used, and controlled by a

person, not just settled by residence. “Under the

[Shoshone-Bannock] treaty a relatively few Indians

were to ‘occupy’ millions of acres of land within the

meaning of the treaty, which suggests that the

signatory Indians’ understanding would not

necessarily require actual physical presence or use to

change land from an “unoccupied” to an occupied

status.” State v. Cutler, 708 P.2d 853, 857 (Idaho

1985). The same is true of the Crow Tribe Treaty in

this matter. The Crow Tribe Reservation established

in the Crow Tribe Treaty comprised of about eight

million acres.

FREDERICK E. HOXIE, PARADING

THROUGH HISTORY: THE MAKING OF THE CROW NATION

IN AMERICA, 1805-1935 92 (Cambridge, 1995). No

matter the size of the Crow Tribe in 1868, nowhere

near every acre would be physically settled by tribe

members, yet the entire reservation was “occupied.”

Crow Tribe Treaty, Art. 2 (the Crow Tribe Reservation

is “set apart for the absolute and undisturbed use and

occupation of the Indians herein named.” (emphasis

added)).

Second, the United States explicitly

informed the Crow Tribe that its hunting right would

not apply on agricultural lands, which Petitioner

acknowledges. Pet. Br. 35. In 1873, when discussing

the treaty, a representative of the United States told

the Crow Tribe that the tribe members were allowed

to hunt on the lands “as long as there are any buffalo,

and as long as the white men are not here . . . with

farms.” Pet. Br. 35; U.S. Office of Indian Affairs,

Annual Report of the Commissioner of Indian Affairs

to the Secretary of the Interior for the Year 1873, at 132

(1874).

There was no misunderstanding—

agricultural lands were occupied by the settlers.

Similarly, if, as the United States argues in its

brief, the intent behind the Crow Tribe Treaty, from

its perspective, was to reduce conflict between the

Indian tribes and the settlers moving West, U.S. Br.

25–26, then the term “unoccupied” should be

understood to prohibit hunting on agricultural lands

where settlers were often present and where they had

showed occupation by using, maintaining, and often

fencing or otherwise demarcating those lands. See

supra, Argument, Sections I & II; see, e.g., Buford v.

Houtz, 133 U.S. 320, 328 (1890) (“Nearly all states in

early days had what was called the ‘Fence Law,’-a law

by which a kind of fence, sufficient in a general way to

protect the cultivated ground from cattle and other

domestic animals . . . was prescribed.”). First, this

interpretation is supported by the definition of

“occupy” applied by courts through the end of the

nineteenth and the beginning of the twentieth

centuries, as demonstrated above.

See supra,

Argument, Section II. Second, like Petitioner, the

United States acknowledges that agricultural lands

were not considered “unoccupied” at the time

contemporaneous with ratification. U.S. Br. 26 (citing

U.S. Office of Indian Affairs, Annual Report at 132).

As understood by both the Crow Tribe and the

United States, lands used for agricultural activities

were explicitly excluded from the Crow Tribe’s treaty

hunting right, because they are inherently occupied.

If the purpose of the term “unoccupied” was to keep

the tribes and the settlers from coming into conflict,

that conflict would not only occur where the settlers

resided, but also in any areas that were regularly and

consistently occupied by settlers, like their

agricultural lands. See Crow Tribe Treaty, Art. 4; U.S.

Br. 25. The West, as we know it today, was founded

on a robust and prosperous agricultural trade. See

ALEXANDER MAJORS, SEVENTY YEARS ON THE

FRONTIER: ALEXANDER MAJORS’ MEMOIRS OF A

LIFETIME ON THE BORDER 224 (Rand, McNally, 1893)

(“Cattle-raising on the rich, nutritious bunch grass of

the broad valleys of the Territory also soon grew to be

a very lucrative business, to supply the numerous

placer-mining towns of Montana.”); CHRISTOPHER

KNOWITON, CATTLE KINGDOM: THE HIDDEN HISTORY

OF THE COWBOY WEST 118 (Houghton Mifflin Harcourt

2017) (“Wyoming was all about cattle. . . Fortuitously

located at the center of the open range, with Colorado

Kansas, and Nebraska to the south and the Montana

and Dakota territories to the north, Cheyenne was

ideally situated for shipping cattle east by rail.”).

Both the Crow Tribe and the United States recognized

that when settlers moved West and established

settlements, they would also establish agricultural

operations, and those lands would then be considered

“occupied.”

The permittees and lessees of today operate more

transparently and under more regulation than the

ranchers and farmers of the Old West. See App. A; see

generally FSM 2200. Not only that, the lands they

occupy are specifically permitted or leased from the

federal government and must be explicitly defined by

a map. See App. A. Both the Crow Tribe and the

United States understood that agricultural lands, like

those of federal permitted and leased lands, were

occupied by those who used, cultivated, and

maintained the lands.

In addition to its historic interpretation, the

United States also acknowledges that certain lands in

today’s national forests are “occupied” because they

are put to a beneficial use by the United States or its

people. U.S. Br. 28 (“[T]he U.S. Forest Service may

construct roads, campsites, or administrative

buildings on particular tracts of National Forest land.

Where the Forest Service has done so, those areas

may be considered occupied under the 1868 Treaty. .

..”). The United States asserts that the federal

government can administer “a particular tract of

National Forest land in such a way that render that

land occupied within the meaning of the 1868 Treaty.”

U.S. Br. 28 (citing Cutler, 708 P.2d at 856). The tracts

that are occupied, are “those that the signatory

Indians to treaties would have understood [] to be

claimed, settled or occupied.” Cutler, 708 P.2d at 856;

U.S. Br. 28. Essentially, by administering a tract in

such a way that would potentially have people

present, that tract becomes “occupied.” The United

States offers, as corroborating evidence, 36 C.F.R.

261.10(d)(1), which prohibits discharging a firearm

“within 150 yards of a residence, building, campsite,

developed recreation sit or occupied area.” U.S. Br. 28

(emphasis added).

By its plain language, the

regulation indicates there is occupation beyond the

listed uses in the regulation, when the lands are put

to a beneficial use.

Much like the intent of

“unoccupied” as used in the Crow Tribe Treaty, the

intent behind prohibiting the discharge of firearms

near “occupied area[s]” is safety.

There can be no argument that lands that

regularly have people and livestock present would be

of concern when discharging a firearm today or when

trying to keep the tribes and settlers separate in the

nineteenth century. Federal permit and leaseholders

are regularly present on the lands, in order to conduct

their agricultural operations. Further, the federal

government is the party that designates what lands

can be permitted or leased to private parties. By doing

so, the United States is putting those lands to a

beneficial use which renders that land occupied under

the meaning of the Crow Tribe Treaty. See U.S. Br.

28; see also Cutler, 708 P.2d at 856. Federally

permitted and leased lands both, regularly have

people present and are designated by the United

States for a beneficial use, fulfilling both of the United

States’ established criteria for occupation of land

within the national forests.

Even when interpreting the intent behind the

Crow Tribe Treaty, federally permitted and leased

lands are not “unoccupied” as was understood and

intended by both parties signing the Crow Tribe

Treaty.

***

The holding in this case should not reduce the

meaning of the word “unoccupied” in the Crow Tribe

Treaty. The plain meaning of “occupied,” along with

the meaning contemporaneous to the signing and

ratification of the Crow Tribe Treaty, indicates that

lands where people are regularly present, and lands

that are possessed, held, and used, are occupied.

Federal permit and leaseholds exhibit all of these

indices of occupation. Even looking to the intent and

understanding of the parties over a century ago, it is

evident that both the Crow Tribe and the United

States understood grazing lands were occupied by the

settlers moving West, using those lands to support

their newly formed settlements. The United States

intended to reduce conflict between the tribes and

settlers moving West, and intentionally excluded

tribal hunting, not only from the lands where the

settlers lived, but also from where the settlers were

regularly present, exercised a particular control over

the land, and worked the land for a beneficial purpose.

♦

CONCLUSION

Regardless of if this Court determines that the

Crow Tribe’s hunting rights survived Wyoming’s

admission into the Union or whether the creation of

the Big Horn National Forest abrogates those rights,

amici curiae request that this Court make clear that

federally managed lands that are leased or permitted

to private parties are not subject to an Indian treaty

hunting right that only exists on the “unoccupied

lands of the United States.”

Respectfully submitted,

William Perry Pendley

Counsel of Record

Cody J. Wisniewski

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wppendley@mountainstateslegal.com

cody@mountainstateslegal.com

Counsel for Amici Curiae

November 20, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.