Amicus Curiae Brief — Herrera v. Wyoming, 138 S. Ct. 720 (2018) (No. 17-532)

No. 17-632

a

In the Supreme Court of the Anited States

CLAYVIN B. HERRERA, PETITIONER

v.

STATE OF WYOMING

ON WRIT OF CERTIORARI

TO THE DISTRICT COURT OF WYOMING, SHERIDAN COUNTY

BRIEF FOR WESTERN ASSOCIATION OF FISH

AND WILDLIFE AGENCIES AND CONSERVATION,

HUNTING, FISHING, AND OUTFITTER

AND GUIDE ASSOCIATIONS

AS AMICI CURIAE SUPPORTING RESPONDENT

JOHN P. SCHREINER JENNIFER A. MACLEAN

PERKINS COIE LLP Counsel of Record

131 S. Dearborn St. ODIN A. SMITH

Chicago, IL 60603 PERKINS COIE LLP

700 Thirteenth St., N.W.,

JULIE A. WILSON- Suite 600

MCNERNEY Washington, D.C. 20005

PERKINS COIE LLP (202) 654-6200

1201 Third Ave., Suite 4900 —jmaclean@perkinscoie.com

Seattle, WA 98101

TABLE OF CONTENTS

Page

Interest Of AIMiCi CUTIAL .................ssccscessessesensenesensenseenssenenenenenss 1

Summary of argument...............-.ccsssessseeeesnsensnensnssnrensnenensenensnes 4

Argument:

A. The Court’s decision in Race Horse establishes

that the treaty right to hunt has been

Riper co cnccnccssesenssssnceescnsmanerennsasesnssentensensseuseserecssseocece 5

B. The hunting right was intended to be temporary

and was terminated by the disappearance of

game and the establishment of the Bighorn

National Perit ..cccccccsccscsececessessecscsscnssencsnsesesnsccscserscssercnese 9

C. Wyoming’s game regulations are reasonable,

non-discriminatory, and necessary for

COMBE WERIG I .2.cccccccceccecccseseececesccnssossvccnesecccccccsscosonccsscocoeees 15

Cam cccccencterssenemremnsesensessensseeee sniehaeihtaieebensienhecigh 21

TABLE OF AUTHORITIES

Cases:

Antoine v. Washington, 420 U.S. 194 (1975)...........0 17

Choctaw Nation v. United States, 318 U.S. 423

CIID vecccanvescserscssnsssesesnnsnnenetensensnsssensssesensnensenensensessenssenecseses 9

Crow Tribe of Indians v. Repsis, T3 F 3d 982 (10th

Cir. 1995), cert. denied, 517 U.S. 1221 (1996)............. 6,7

Defenders of Wildlife v. Andrus, 627 F 2d 1238

CD... Clip. 1B) ancesusccceserscsececsscescsecsccscsssecccnncssezccscsessesecses 17

Fund for Animals, Inc. v. Thomas, 932 F. Supp.

368, 370 (D.D.C. 1996), aff'd, 127 F.3d 80 (D.C.

0 18

Geer v. Connecticut, 161 U.S. 519 (1896) ...........cccececeeeeee 16

(1)

II

Cases—Continued: Page

Halliburton Co. v. Erica P. John Fund, Inc., 134 3.

Ct. (2014) i

Kennedy v. Becker, 2A1 U.S. 556 (1916) 15, 16

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401

(Scie scencententneniiatnrtiiathiancninntepshijanpdimmaaiumnteibientrnenmescsnes 9

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

(1842) 16

McCready v. Virginia, 94 U.S. 391 (1877)... 16

Minnesota v. Mille Lacs Band of Chippewa Indi-

ans, 526 U.S. 172 (1999) 4, 8, 9, 16, 17

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

Ge secnccecsiccsticinsntannsntaninciineneommmnenuntanmensensmamenmnmnnsees )

Oregon Dep't of Fish and Wildlife v. Klamath

Tribe, 473 U.S. TGS (1GB5)........c.eccerecrecsessecsccecssecesesssseees 16

Parker Land and Cattle Co. v. Wyoming Game

and Fish Comm'n, 845 P.2d 1040 (Wyo. 1993) ..... 18, 19

Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S.

392 (1968) 17

Smith v. Maryland, 59 U.S. (18 How.) 71 (18595).............. 16

United States v. County of Fresno, 429 U.S. 452

i asschcnctictiininenctsintnteirnennrnnnnennsnttennsinnemeenmn 12

Volkswagenwerk AG v. Schlunk, 486 U.S. 694

(1988) 9

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

Washington v. Washington State Commercial Pas-

senger Fishing Vessel Ass'n, 443 U.S. 658 (1979) ...... 17

Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (2017)......... 9

Wilson v. Cook, 327 U.S. 474 (1946) ...........ccccccceeneeeeenenenes 11

Il

Treaties, statutes, and regulations: Page

Treaty between the United States of America and

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

649 passim

Treaty Between the United States of America and

the Eastern Band of Shoshonees and the

Bannack Tribe of Indians, July 3, 1868, 15 Stat.

FED cccsnsencsesneserenssessssemnsssemsesnsensmacnmeassasversiatenmmnaasiaanseeanessees

Act of Mar. 1, 1872, ch. 24, 17 Stat. 32

§ 2, 17 Stat. 33

Act of Mar. 3, 1891, § 24, ch. 561, 26 Stat. 1103.................

Act of June 4, 1897, ch. 2, 30 Stat. 36 (16 U.S.C. §

480) ~» 8,

ee Sea ligetcrceepmnennecsenemsesnsesensestenncemcemnniie

43 U.S.C. § 1732(b) _

Wyo. Stat. Ann. § 23-3-102(d) ......................cecceceereeneesceseess

Wyo. Stat. Ann. § 23-6-205(a) .2............eececceccesceceeseeseeeeeneees

ee E crenencensntessepsnnrnssennecnenersanesrncsuiiemanionnnatnyh

36 C.F.R. § 241.2 ~ apidnbhnineigmeamieniatemmnesiintads

Miscellaneous:

Executive Order 13,443, § 2(d), 72 Fed. Reg. 46,537

(Aug. 16, 2007)

H.R. Exec. Doc. No. 97, 40th Cong., 2d Sess. (1868) .......

Helen Hunt Jackson, Century of Dishonor: A

Sketch of the United States Government’s Deal-

ings With Some of the Indian Tribes (1881)................

Carolyn B. Meyer, et al., United States Depart-

ment of Agriculture, Forest Service, Rocky

Mountain Research Station, Historic Range of

Variability for Upland Vegetation in the Big-

horn National Forest, Wyoming (2005) ................-.

IV

Miscellaneous—Continued: Page

Ruth S. Musgrave, et al., The Status of Poaching in

the United States—Are We Protecting our Wild-

life?, 33 Nat. Resources J. 977 (1993) 20

Proclamation No. 30, 29 Stat. 909 (Feb. 22, 1897)............ 11

U.S. Dep’t of the Interior, Annual Report of the

Commissioner of Indian Affairs (1881) ...............------- 14

U.S. Dep’t of the Interior, Annual Report of the

Commissioner of Indian Affairs (1885) ...........--.----- 14

U.S. Dep’t of the Interior, Annual Report of the

Commissioner of Indian Affairs (1894) ...........-.-....--- 14

David Willms and Anne Alexander, The North

American Model of Wildlife Conservation in

Wyoming: Understanding It, Preserving It,

and Funding Its Future, 14 Wyo. L. Rev. 659

(2014) .. 19, 20

In the Supreme Court of the United States

No. 17-532

CLAYVIN B. HERRERA, PETITIONER

v.

STATE OF WYOMING

ON WRIT OF CERTIORARI

TO THE DISTRICT COURT OF WYOMING, SHERIDAN COUNTY

BRIEF FOR WESTERN ASSOCIATION OF FISH

AND WILDLIFE AGENCIES AND CONSERVATION,

HUNTING, FISHING, AND OUTFITTER AND

GUIDE ASSOCIATIONS AS AMICI CURIAE CURIAE

SUPPORTING RESPONDENT

INTEREST OF AMICI CURIAE’

The Western Association of Fish and Wildlife

Agencies (WAFWA) is an Idaho non-profit corpora-

tion whose members are 19 state fish and wildlife

* No counsel for a party authored this brief in whole or in part,

and no person other than amicus, their members, or their counse!

has made a monetary contribution intended to fund the prepara-

tion or submission of the brief. Both parties have entered blan-

ket consents to the filing of amicus briefs.

(1)

2

agencies from across the western United States, as

well the provincial fish and game agencies from three

western Canadian provinces and two Canadian terri-

tories. Altogether, WAFWA’s members oversee an

area covering nearly 3.7 million square miles of some

of North America’s most wild and scenic country.

Founded in 1922, WAFWA seeks to advance collabo-

rative, proactive science-based fish and wildlife con-

servation and management across the West.

The Boone and Crockett Club, founded in 1887 by

Theodore Roosevelt and George Bird Grinnell, is the

oldest wildlife conservation organization in North

America. It is the mission of the Boone and Crockett

Club to promote the conservation and management of

wildlife, especially big game, and its habitat. Boone

and Crockett’s efforts to establish a foundation and

framework for conservation in America includes an

emphasis on science-based professional wildlife re-

search and management, consistent with the tenets of

the North American Model for Wildlife Conservation.

Boone and Crockett, through its members, was in-

strumental in saving elk from extinction and was an

initiator and champion of the first National Parks and

the earliest science-based wildlife management efforts

and legislation.

Founded in 1984, the Rocky Mountain Elk Founda-

tion (RMEF) is the leading organization focused pri-

marily on the conservation of wild elk. The mission of

RMEF is to ensure the future of elk, other wildlife,

their habitat and America’s hunting heritage. With

over 500 volunteer chapters across the country and

more than 227,000 members, RMEF has worked to

protect and enhance more than 7.3 million acres of

3

North American wildlife habitat and has partnered

with eastern, midwestern and western States to rein-

troduce elk to historic ranges.

The Wyoming Outdoorsmen is a broad-based coali-

tion of sportsmen and sportswomen established to

promote the improvement of hunting, fishing, trap-

ping, quality habitat programs and other outdoor ex-

periences for youth and family involvement. The Wy-

oming Outdoorsmen’s over 780 active members work

closely with state and local governments and nongov-

ernmental organizations to improve wildlife habitat

and conservation through quality wildlife management

practices.

The Wyoming Outfitter and Guide Association

(WYOGA) is a trade association with a membership of

over 100 licensed outfitters. Cody Country Outfitter

and Guides Association (CCOGA) is a trade associa-

tion made up of outfitters from the area surrounding

Cody, Wyoming. Both WYOGA and CCOGA support

the current wildlife-management model that, for more

than 100 years, has helped ensure Wyoming has

healthy, sustainable wildlife populations that provide

recreational opportunities for the hunting and non-

hunting public.

Amici are keenly interested in the outcome of this

case, which threatens not only to overturn the delicate

balance of federal, state, and tribal fish and wildlife

jurisdictions that have served the public’s interests in

the western United States since the late 1800s, but al-

so to undermine the two basic principles of the North

American Model of Wildlife Conservation: that fish

and wildlife belong to all Americans, and that they

4

need to be managed in such a way that their popula-

tions will be sustained forever.

SUMMARY OF ARGUMENT

The Second Treaty of Fort Laramie reserved to the

crow Tribe “the right to hunt on 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 dis-

tricts.” Treaty between the United States of America

and the Crow Tribe of Indians (1868 Treaty), May 7,

1868, 15 Stat. 649. In 1896, this Court held that this

right was a “temporary and precarious” one that ter-

minated upon Wyoming’s admission to the Union.

Ward v. Race Horse, 163 U.S. 504, 515 (1896). Under

Race Horse, petitioner’s conviction for violating Wyo-

ming’s game laws should be affirmed.

Petitioner argues that this Court overruled Race

Horse in Minnesota v. Mille Lacs Band of Chippewa

Indiaws, 526 U.S. 172 (1999), but that is not so. Alt-

hough the Court in Mille Lacs noted that part of Race

Horse’s reasoning had been abrogated by subsequent

decisions, it expressly reaffirmed what it character-

ized as an “alternative holding” of Race Horse—that

“(t}he treaty rights at issue were not intended to sur-

vive Wyoming’s statehood.” Jd. at 206. That alterna-

tive holding resolves this case.

Even apart from the precedential value of Race

Horse, the decision reflects a correct interpretation of

the treaty in light of its historical context. The hunt-

ing right reserved in the 1868 Treaty was understood

to be temporary because the treaty contemplated that

the Crow Tribe would transition to farming from sub-

5

sistence hunting and the historical circumstances de-

manded it. In addition, the treaty extended the hunt-

ing right only to “hunting districts.” 1868 Treaty, art.

4, 15 Stat. 650. This Court previously recognized that

the creation of Yellowstone National Park removed

the park from the scope of the “hunting districts” rec-

ognized by treaty. The creation of the Bighorn Na-

tional Forest did the same.

Even if this Court were to reject the interpretation

of the treaty reflected in Race Horse, the judgment

should still be affirmed because the Wyoming law at

issue is a reasonable and nondiscriminatory conserva-

tion measure. State regulation of hunting, like the

regulation at issue here, is essential to the preserva-

tion of wildlife.

ARGUMENT

A. The Court’s decision in Race Horse establishes

that the treaty right to hunt has been

terminated

1. In Race Horse, this Court construed treaty lan-

guage materially identical to that at issue here, and it

determined that the language created only a “tempo-

rary and precarious” right to hunt. 163 U.S. at 510.

That case involved Article 4 of the Treaty Between

the United States of America and the Eastern Band of

Shoshonees and the Bannack Tribe of Indians, July 3,

1868, 15 Stat. 674-75, which guaranteed “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.” Emphasizing the

treaty language limiting the right to “unoccupied lands

6

of the United States” within “the hunting districts,”

the Court reasoned that the treaty “clearly contem-

plated the disappearance of the conditions therein

specified.” 163 U.S. at 509-10. And having determined

that the treaty right was “temporary and precarious

[in] nature,” the Court noted that Wyoming had been

admitted to the Union as “a sovereign State, a neces-

sary incident of whose authority was the complete

power to regulate the killing of game within its bor-

ders.” Id. at 510. The Court explained that the stat-

ute admitting Wyoming on an equal footing with other

States “would be in conflict with the treaty if it was so

construed as to allow the Indians to seek out every

unoccupied piece of government land and thereon dis-

regard and violate the state law.” /d. at 511. Allt-

hough the Court acknowledged that “treaties should

be so construed as to uphold the sanctity of the public

faith,” it concluded that the treaty could not be read

“to imply that it conveyed rights wholly inconsistent

with its language and in conflict with an act of Con-

gress, and also destructive of the rights of one of the

States.” Id. at 516.

2. In 1995, the Tenth Circuit addressed the same

question the Race Horse Court resolved in 1896—

whether “the right to hunt on the unoccupied lands of

the United States” reserved to the Crow Tribe the

right to hunt in violation of Wyoming laws. Crow

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

1995), cert. denied, 517 U.S. 1221 (1996). In that case,

which arose after a member of the Crow Tribe was

convicted of killing an elk in the Bighorn National

Forest in violation of state law, the Tribe argued that

Race Horse was no longer good law because, it said,

7

this Court had repudiated the propositions that states

have plenary control over game and that the equal-

footing doctrine abrogates treaty hunting rights. /d.

at 985, 988. The Tenth Circuit rejected the first ar-

gument as a mischaracterization of this Court’s deci-

sions regarding state regulation of wildlife. /d. at 990.

As to the equal-footing doctrine, the Tenth Circuit

held that while the “doctrine does not prevent the

United States from creating a right in a territory

which would be binding on the state upon its admis-

sion,” such a treaty right must be “continuing or per-

petual,” which “the right to hunt on the unoccupied

lands of the United States” was not. /d. at 991. The

court also concluded that the statute creating the Big-

horn National Forest “resulted in the ‘occupation’ of

the land,” such that the hunting right could not have

applied. Jd. at 993.

3. The Repsis decision was a final judgment with

respect to the right asserted by the Crow Tribe on be-

half of its enrolled members. As Wyoming has ex-

plained (at 21-38), principles of issue preclusion make

that judgment binding upon petitioner, a member of

the Crow Tribe. But even if the Repsis judgment did

not have preclusive effect, it would still be entitled to

respect because it correctly applied Race Horse, which

resolves the question presented here.

Petitioner argues (at 28) that this Court “thorough-

ly repudiated Race Horse’s reasoning” in Mille Lacs.

That is incorrect. While the Court in Mille Lacs re-

jected the equal-footing doctrine as a basis for abro-

gating treaty rights, it did not disturb Race Horse's

conclusion that “the right to hunt on the unoccupied

lands of the United States” was intended to be tempo-

8

rary and was terminated upon Wyoming’s admission

to the Union. As the Mille Lacs Court explained:

“Race Horse rested on the premise that treaty rights

are irreconcilable with state sovereignty. It is this

conclusion—the conclusion undergirding the Race

Horse Court’s equal footing holding—that we have

consistently rejected over the years.” 526 U.S. at 205

(emphasis added).

Significantly, the Court in Mille Lacs went on to

emphasize that “{t}he equal footing doctrine was only

part of the holding in Race Horse,” and that Race

Horse also “announced an alternative holding: The

treaty rights at issue were not intended to survive

Wyoming’s statehood.” 526 U.S. at 206. The Court

explained that the 1837 treaty with the Chippewa, the

treaty at issue in Mille Lacs, was different from the

treaty at issue in Race Horse because “unlike the

rights at issue in Race Horse, there is no fixed termi-

nation point to the 1837 Treaty rights.” Jd. at 207

(emphasis added). As the Court observed, “(t]he

Treaty in Race Horse contemplated that the rights

would continue only so long as the hunting grounds

remained unoccupied and owned by the United States;

the happening of these conditions was ‘clearly contem-

plated’ when the Treaty was ratified.” /d. (quoting

Race Horse, 163 U.S. at 509). Contrary to petitioner's

argument, Mille Lacs thus reaffirmed the key holding

of Race Horse with respect to the Wyoming treaty.

That holding controls this case.

9

B. The hunting right was intended to be temporary

and was terminated by the disappearance of

game and the establishment of the Bighorn

National Forest

This Court has explained that departing from prec-

edent requires “‘special justification’—over and above

the belief ‘that the precedent was wrongly decided.’”

Kimble v. Marvel Entm’t, LLC, 135 8. Ct. 2401, 2409

(2015) (quoting Halliburton Co. v. Erica P. John

Fund, Inc., 134 S. Ct. 2398, 2407 (2014)). Petitioner

has provided no “special justification” for departing

from Race Horse, and he has not shown that it was

wrongly decided. To the contrary, the interpretation

adopted in Race Horse is compelled by the text and

historical context of the treaty.

To interpret treaty language, the Court must

“begin with the text of the treaty,” but it must also

consider “the context in which the written words are

used.” Water Splash, Inc. v. Menon, 137 S. Ct. 1504,

1508-09 (2017) (quoting Volkswagenwerk AG v.

Schlunk, 486 U.S. 694, 699 (1988)); accord Mille Lacs,

526 U.S. at 196 (Courts must “look beyond the written

words to the larger context that frames the Treaty,

including ‘the history of the treaty, the negotiations,

and the practical construction adopted by the par-

ties.’”) (quoting Choctaw Nation v. United States, 318

U.S. 423, 432 (1943)). And interpretation must take

into account “the common notions of the day.” Oli-

phant v. Suquamish Indian Tribe, 435 US. 191, 206

(1978).

Like the treaty at issue in Race Horse, the 1868

Treaty reserved “the right to hunt on the unoccupied

10

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.” Art. 4, 15 Stat. 650. Understood in histori-

cal context, that language created an “essentially per-

ishable” interest, an interest that no longer exists

within the Bighorn National Forest in Wyoming.

Race Horse, 163 U.S. at 515.

1. As this Court noted in Race Horse, the treaty

language contains an important limitation: the right

to hunt extends only to “unoccupied lands of the Unit-

ed States,” and only to “lands of that character em-

braced within what the treaty denominates as hunting

districts.” 163 U.S. at 508. Wyoming has explained (at

55-62) that the creation of the Bighorn National For-

est rendered that land “occupied” in the sense con-

templated by the treaty. The creation of the Bighorn

National Forest was also significant for the independ-

ent reason that it removed the land from the “hunting

districts.”

The Court in Race Horse explained the meaning of

the treaty’s reference to “hunting districts” by exam-

ining the statutes creating Yellowstone National Park

in 1872, just four years after the treaty at issue here

was ratified. 163 U.S. at 510; see Act of Mar. 1, 1872,

ch. 24, 17 Stat. 32. In creating the park, Congress di-

rected the Secretary of the Interior to remove tres-

passers and to promulgate regulations to prevent “the

wanton destruction of the fish and game” found in the

park. /d. § 2, 17 Stat. 33. This Court viewed Con-

gress’ decision to remove Yellowstone from the “hunt-

ing districts” so soon after executing treaties with the

Plains Tribes as “a clear indication of the sense of

11

Congress on the subject.” Race Horse, 163 U.S. at

510. As the Court explained, “(the construction which

would affix to the language of the treaty any other

meaning than that [of a temporary right] would neces-

sarily imply that Congress had violated the faith of

government and defrauded the Indians by proceeding

immediately to forbid hunting in a large portion of the

territory where it is now asserted there was a contract

right to kill game created by the treaty in favor of the

Indians.” /d.

The creation of the Bighorn National Forest had a

similar effect because it, like Yellowstone National

Park, was carved out of the “hunting districts” in

which the Crow Tribe could previously hunt. In 1897,

President Cleveland exercised authority granted by

Congress to establish what would eventually be

named the Bighorn National Forest. Proclamation

No. 30, 29 Stat. 909 (Feb. 22, 1897); see Act of Mar. 3,

1891, § 24, ch. 561, 26 Stat. 1103. The proclamation re-

served the land “from entry or settlement” and

warned “all persons not to enter or to make settlement

upon the tract of land reserved by this proclamation,”

thereby closing public land to settlement on the forest.

29 Stat. 910. Later that year, Congress provided that

the “jurisdiction, both civil and criminal, over persons

within such [forest] reservations shall not be affected

or changed by reason of the existence of such reserva-

tions, except so far as the punishment of offenses

against the United States therein is concerned.” Act

of June 4, 1897, ch. 2, 30 Stat. 36 (16 U.S.C. § 480).

That statute ensured that the State of Wyoming would

retain concurrent jurisdiction, with the federal gov-

ernment, over the forest. See Wilson v. Cook, 327 U.S.

12

474, 487 (1946) (“Congress in effect has declined to ac-

cept exclusive legislative jurisdiction over forest re-

serve lands.”); United States v. County of Fresno, 429

U.S. 452, 455 (1977) (“Pursuant to 16 U.S.C. § 480, the

States retain civil and criminal jurisdiction over the

national forests notwithstanding the fact that the na-

tional forests are owned by the Federal Govern-

ment.”). If the restrictions on hunting contemplated

by the statute creating Yellowstone National Park

were sufficient to show that the park had been “carved

out of what constituted the hunting districts,” Race

Horse, 163 U.S. at 510, then the restrictions on hunt-

ing provided by Wyoming law, which Congress and

the President made applicable to the Bighorn National

Forest when they set it aside, must have a similar ef-

fect.

2. The limited availability of game and the assump-

tion that game would disappear also support the

Yourt’s conclusion in Race Horse. Article 4 of the 1868

Treaty provides that the “right to hunt” applies only

“so long as game may be found” within the “unoccu-

pied lands of the United States.” 15 Stat. 650. At the

time the treaty was signed, it was understood by all

that game would not continue to “be found” indefinite-

ly. The recommendations of the Indian Peace Com-

missioners, which President Johnson submitted to

Congress, made that understanding clear: “When the

buffalo is gone the Indians will cease to hunt. A few

years of peace and the game will have disappeared. In

the meantime by the plan suggested we will have

formed a nucleus of civilization around the young that

will restrain the old and furnish them a home and sub-

sistence when the game is gone.” H.R. Exec. Doc. No.

13

97, 40th Cong., 2d Sess. 18 (1868). And the tribes had

a similar understanding. See Helen Hunt Jackson,

Century of Dishonor: A Sketch of the United States

Government’s Dealings With Some of the Indian

Tribes 71 (1881) (describing the desire of the Plains

Indians to establish friendly relations with the United

States Government because with thinning of buffalo

herds, “starvation stared them in the face, and they

knew it”).

Other provisions of the 1868 Treaty reflect the un-

derstanding that the Crow Tribe would convert from

subsistence hunting to farming. Article 6 grants Indi-

ans who wish to farm the right to select up to 320

acres for their exclusive possession and occupation, on

the condition that they cultivate the land. 15 Stat.

650-51. The government promised to provide “seeds

and agricultural implements,” as well as “one good

American cow and one good, well-broken pair of

American oxen” to those Indians who began to farm.

Arts. 8, 9, 15 Stat. 651-52. The government also prom-

ised annual appropriations “for the purpose of such ar-

ticles as, from time to time, the condition and necessi-

ties of the Indians may indicate to be proper,” with the

specified appropriation being twice as large for “each

Indian engaged in agriculture” as for “each Indian

roaming.” Art. 9, 15 Stat. 652. The government even

promised a bonus to the ten tribal members who

“grow the most valuable crops.” Art. 12, 15 Stat. 652.

Those provisions demonstrate that the hunting right—

like the need for subsistence hunting—‘“was to cease.”

Race Horse, 163 U.S. at 515.

3. The prospect that game would disappear was not

merely contemplated by the treaty negotiators; it ac-

14

tually came to pass. Just over a decade after the trea-

ty was signed, the Commissioner of Indian Affairs re-

ported that it was “but a question of short time when

the rapid settlement of the country and the disappear-

ance of the buffalo will necessitate the confinement of

the Crows to their reservation.” U.S. Dep’t of the In-

terior, Annual Report of the Commissioner of Indian

Affairs XXIII (1881). By the early to mid-1880s, the

buffalo were largely gone in the region, elk were

scarce, and deer and antelope could be found only “af-

ter miles of hard travel.” U.S. Dep’t of the Interior,

Annual Report of the Commissioner of Indian Affairs

212 (1885).

In 1889, the Department of the Interior issued a

circular stating, “{iJn view of the settlement of the

country and the consequent disappearance of the

game, the time has long since gone by when the Indi-

ans can live by the chase.” U.S. Dep’t of the Interior,

Annual Report of the Commissioner of Indian Affairs

67 (1894). And soon thereafter, the elk population was

greatly diminished throughout Wyoming and had dis-

appeared from the Bighorn National Forest. Carolyn

B. Meyer, et al., United States Department of Agricul-

ture, Forest Service, Rocky Mountain Research Sta-

tion, Historic Range of Variability for Upland Vegeta-

tion in the Bighorn National Forest, Wyoming 15

(2005) (Historic Range).

By the early 20th century, the period of time in

which “game may be found” had come to an end. Sig-

nificantly, the elk that petitioner shot were present in

the Bighorn National Forest because elk were re-

introduced to the forest in 1909. Historic Range 15-16.

15

C. Wyoming’s g2e regulations are reasonable,

n , and necessary for

conservation

Since 1896, Wyoming has acted in reliance on this

Court’s decision in Race Horse to rebuild game popu-

lations and develop conservation strategies to protect

wildlife. Even if this Court were to conclude that

Race Horse misinterpreted the treaty language, and

even if, notwithstanding the State’s reliance interests,

the Court were to conclude that Race Horse should be

overruled, the Wyoming law at issue here should nev-

ertheless be upheld because it is a reasonable, nondis-

criminatory regulation that is necessary for the con-

servation of wildlife.

1. This Court has recognized the important role of

States in regulating wildlife, even when treaty hunt-

ing and fishing rights are at issue, and the challenges

of joint management. In Kennedy v. Becker, 2A1 U.S.

556 (1916), for example, the Court upheld the convic-

tion of three Seneca Indians charged with spearing

fish in violation of New York law. Construing treaty

language conveying “the privilege of fishing and hunt-

ing on the said tract of land,” the Court explained that

“(t}he right thus reserved was not an exclusive right”

that could be managed by both the State and the tribe.

Id. at 562. “Such a duality of sovereignty, instead of

maintaining in each the essential power of preserva-

tion, would in fact deny it to both.” J/d. at 563. The

Court observed that “it can hardly be supposed that

the thought of the Indians was concerned with the

necessary exercise of inherent power under modern

conditions for the preservation of wild life.” Id.

16

“(T}he existence of the sovereignty of the state,” by

contrast, “was well understood, and this conception

involved all that was necessarily implied in that suver-

. eignty, whether fully appreciated or not.” /d.

That holding reflects the understanding of all trea-

ty parties during the 19th century that States would

ultimately regulate the wildlife within their borders

because they had the exclusive power to do so. See

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 411-

18 (1842) (fisheries within exclusive control of States);

Smith v. Maryland, 59 U.S. (18 How.) 71, 75 (1855)

(public right in fishery includes “the legislative pow-

er . . . to interrupt the voyage and inflict the forfei-

ture of a vessel enrolled and licensed under the laws of

the United States for a disobedience . . . of the com-

mands of such a law”); McCready v. Virginia, 94 U.S.

391 (1877) (State could prohibit residents of other

States from planting or taking oysters in tidewaters);

Geer v. Connecticut, 161 U.S. 519, 580 (1896) (“[S]tate

has an absolute right to control and regulate the kill-

ing of game as its judgment deems best in the interest

of its people.”).

To be sure, this Court observed in Mille Lacs that

“an Indian tribe’s treaty rights to hunt, fish, and gath-

er on state land are not irreconcilable with a State’s

sovereignty over the natural resources in the State.”

526 U.S. at 204. But that modern view does not alter

the understanding that prevailed when the treaty was

negotiated in the 19th century. And in any event, the

Court recognized in Mille Lacs “that Indian treaty-

based usufructuary rights do not guarantee the Indi-

ans ‘absolute freedom’ from state regulation.” Jd. at

204 (quoting Oregon Dep’t of Fish and Wildlife v.

17

Klamath Tribe, 473 U.S. 753, 765 n.16 (1985)). To the

contrary, the Court has “repeatedly reaffirmed state

authority to impose reasonable and necessary nondis-

criminatory regulations on Indian hunting, fishing, and

gathering rights in the interest of conservation.” /d.

at 205; accord Washington v. Washington State Com-

mercial Passenger Fishing Vessel Ass’n, 443 U.S. 658

(1979); Antoine v. Washington, 420 U.S. 194 (1975);

Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S.

392 (1968).

2. Congress has recognized the important role of

States in regulating hunting, including hunting on fed-

eral lands. Thus, “[djespite its ability to take control

into its own hands, Congress has traditionally allotted

the authority to manage wildlife to the states.” De-

fenders of Wildlife v. Andrus, 627 F.2d 1238, 1248

(D.C. Cir. 1980). With respect to the National Forests,

Congress has expressly preserved and reaffirmed ex-

isting state jurisdiction. See, e.g., 16 U.S.C. § 528

(“Nothing herein shall be construed as affecting the

jurisdiction or responsibilities of the several States

with respect to wildlife and fish on the national for-

ests.”); 43 U.S.C. § 1732(b) (“[N Jothing in this Act shall

be construed as authorizing the Secretary concerned

to require Federal permits to hunt and fish on public

lands or on lands in the National Forest System and

adjacent waters or as enlarging or diminishing the re-

sponsibility and authority of the States for manage-

ment of fish and resident wildlife.”). Indeed, “each

successive statute enacted since [the creation of the

National Forest System] purporting to govern the

management of the national forests has acknowledged

and confirmed the situs states’ continuing authority to

18

regulate hunting and fishing thereon generally.”

Fund for Animals, Inc. v. Thomas, 932 F. Supp. 368,

370 (D.D.C. 1996), aff'd, 127 F.3d 80 (D.C. Cir. 1997).

This traditional allocation of authority over hunting

is also reflected in Forest Service regulations. Hunt-

ing in violation of state law is prohibited in the Na-

tional Forests, 36 C.F.R. § 261.8(a), and under 36

C.F.R. § 241.2, “(o}fficials of the Forest Service will

cooperate with State game officials in the planned and

orderly removal in accordance with the requirements

of State laws of the crop of game, fish, fur-bearers, and

other wildlife on national forest lands.” Executive Or-

der 13,443, § 2(d), 72 Fed. Reg. 46,537 (Aug. 16, 2007)

likewise directs the Department of Agriculture to

“twjork collaboratively with State governments to

manage and conserve game species and their habitats

in a manner that respects private property rights and

State management authority over wildlife resources.”

3. State regulation remains necessary to the con-

servation of wildlife. Westward expansion into the ar-

ea that is now the State of Wyoming brought with it

the over-exploitation of important species by commer-

cial hunting and overharvest. Parker Land and Cattle

Co. v. Wyoming Game and Fish Comm'n, 845 P.2d

1040, 1053 (Wyo. 1993). As noted above, elk had large-

ly disappeared before their reintroduction in the early

20th century.

Wyoming’s long history of wildlife management

demonstrates that the State’s exercise of jurisdiction

over game and fish has been essential to ending and

preventing the over-exploitation of wildlife resources

by unregulated hunting. See generally Parker, 845

P.2d at 1052-1056 (describing early history of state

19

regulation of hunting in Wyoming); see also David

Willms and Anne Alexander, The North American

Model of Wildlife Conservation in Wyoming: Under-

standing It, Preserving It, and Funding Its Future, 14

Wyo. L. Rev. 659 (2014) (North American Model). As

early as 1869, Wyoming’s first Territorial Legislature

enacted a statute regulating the sale of fish and game,

but the law set no harvest limits and contained no en-

forcement provisions for the taking of wildlife, and it

proved ineffective. Parker, 845 P.2d at 1054; see also

Willms and Alexander, North American Model 673.

Throughout the 1870s and 1880s, the Territory “slowly

and haltingly passed laws in feeble efforts to provide

some semblance of protection for game and fish.”

Parker, 845 P.2d at 1054. Slow progress continued at

the turn of the 20th century, with the establishment of

hunting seasons and the creation of the office of the

State Game Warden. /d. at 1055-56.

After the turn of the 20th century, Wyoming con-

tinued to enact laws requiring hunting licenses, estab-

lishing a state game commission, and providing fund-

ing for wildlife management activities. Willms and Al-

exander, North American Model 674-675. Since 1929,

the Wyoming Game Commission has had the authority

to open and close hunting seasons and to set bag lim-

its. Id. at 675. Wyoming also adopted a comprehen-

sive set of laws addressing its responsibility to man-

age wildlife. Jd.

It is essential to the conservation of wildlife within

the State that Wyoming continue its comprehensive

management of hunting, including by members of In-

dian tribes on National Forests lands. Unauthorized

hunting continues to pose a direct threat to wildlife

20

populations in the United States. See Ruth S. Mus-

grave, et al., The Status of Poaching in the United

States—Are We Protecting our Wildlife?, 33 Nat. Re-

sources J. 977 (1993). In addition, unlicensed hunting

indirectly undermines state wildlife management ef-

forts—for all wildlife resources, not just game ani-

mals—by reducing a principal funding stream for state

wildlife agencies. See Willms and Alexander, North

American Model 670-73. Wyoming’s wildlife man-

agement efforts, as in nearly every State, are funded

primarily through the sale of state hunting licenses

and through excise taxes on firearms, ammunition, and

archery and fishing equipment. /d.

Wyoming’s hunting laws apply equally to non-

Indians and Indians and therefore do not discriminate.

Wyo. Stat. Ann. §§ 23-3-102(d), 23-6-205(a). The law at

issue here should therefore be upheld as a reasonable,

nondiscriminatory regulation that is necessary to the

conservation of wildlife.

21

CONCLUSION

The judgment of the Wyoming district court should

be affirmed.

Respectfully submitted.

JOHN P. SCHREINER JENNIFER A. MACLEAN

PERKINS COIE LLP Counsel of Record

131 S. Dearborn St., ODIN A. SMITH

Suite 1700 PERKINS COIE LLP

Chicago, IL, 60603 700 Thirteenth St., N.W.,

(312) 324-8400 Suite 600

Washington, D.C. 20005

JULIE A. WILSON- (202) 654-6200

MCNERNEY jmaclean@perkinscove.com

PERKINS COIE LLP

1201 Third Ave.,

Suite 4900

Seattle, WA 98101

(206-359-8000

NOVEMBER 2018