DENVER (CN) — A federal judge in the District Wyoming will review a man’s request to enforce a century-old Native American treaty and vacate his decade’s old criminal conviction for hunting without a state permit, as the 10th Circuit decreed in an opinion published Monday.
“We conclude that the district court abused its discretion when it held that it lacked the authority to review the Tribe’s motion for post-judgment relief,” wrote Circuit Judge Jerome Holmes in an 29-page opinion. Holmes, a George W. Bush appointee, noted the lower court is “better positioned” to rule on the merits of the petition.
November will mark 34 years since Tom Ten Bear killed an elk over the Wyoming state line in the Bighorn National Forest. At the time, the Crow Tribe argued against Ten Bear’s prosecution, citing an 1868 Fort Laramie Treaty that granted tribal members the right to hunt beyond their reservation.
The tribe took the case to the 10th Circuit, which in 1995 found Wyoming law “reasonable and necessary for conservation,” based on the 1896 Supreme Court case Ward v. Race Horse, which decided treaty rights were extinguished when Wyoming became a state.
Up until recently, the state of Wyoming used the findings in Crow v. Repsis to prosecute tribal members caught hunting without state permits outside the reservation. In the 2019 Herrera decision however, the Supreme Court threw out the outdated rationale used to prop up Repsis and remanded the former case to state court.
In response, the Crow Tribe sought to bring back Repsis in order to bury it once and for all. Judge Alan B. Johnson, appointed by Ronald Reagan to preside in the District of Wyoming, initially denied the tribe’s corrective Rule 60 motion in June 2021 after finding he did not have the authority to overturn the 10th Circuit’s ruling.
When a judgment is reversed, a Rule 60 motion can be used to review other rulings that had relied on it. The tribe therefore appealed to the 10th Circuit.
“The Tribe claims that while a district court may not grant Rule 60(b) relief because it believes an appellate court’s decision was erroneous, it need not seek the permission of an appellate court to find that there has been a change in legal or factual circumstances — regardless of the appellate court’s grounds for the prior decision,” Holmes wrote. “We agree with the Tribe.”
Holmes was joined on the opinion by Bill Clinton-appointed Senior Circuit Judge Mary Beck Briscoe and Barack Obama-appointed Circuit Judge Nancy Moritz. The panel declined to simply grant the Crow Tribe’s request reasoning that it may have been missing other important pieces of the case.
“On remand, the district court will be able to more thoroughly consider the parties’ arguments concerning the Occupation and Conservation Necessity Rationales, including the recent issue preclusion holdings in the Herrera state court proceedings and the import of the Conservation Necessity Rationale in Bighorn National Forest,” Holmes wrote.
Additionally, further proceedings in the district court would give the 10th Circuit “a crystalized record of the district court decision so we may be better situated to evaluate it in the event of future appeals,” Holmes explained.
Native American Rights Fund attorneys representing the Crow Tribe consider the decision a victory.
“The Crow Tribe negotiated a treaty with the United States that reserved for its citizens a right to continue to hunt off its reservation,” said attorney Wesley James Furlong in a statement. “Today, the Tenth Circuit allowed the Crow Tribe its day in court to assert its treaty right against the State of Wyoming’s attempts to restrict that right, in clear violation of Wyoming v. Herrera.”
The Wyoming Attorney General’s Office did not immediately respond to a request for comment.
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