Wyoming can no longer use a 30-year-old case to prosecute tribal hunters, judge finds

(CN) — After finding a 30-year-old case used by Wyoming to prosecute tribal hunters who hunted off their reservation had been sufficiently defanged, a federal judge on Thursday declined to grant a motion in its entirety to correct the record on behalf of the Crow Tribe.

"A judgment may be modified or vacated if a significant change in fact or law ‘renders continued enforcement 'detrimental to the public interest," wrote U.S. District Judge Alan Johnson in a 27-page-opinion. "And the changed circumstances in question must produce a ‘hardship so extreme and unexpected as to make the decree oppressive.’

A court may also grant relief in instances “'when it offends justice to deny such relief,’” Johnson added.

In Thursday’s opinion, Johnson, a Ronald Reagan appointee, found the corrective motion only appropriate in one of three arguments raised in the decades-old ruling.

November marked 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 found in 1995 that Wyoming law regulating hunting was “reasonable and necessary for conservation,” and that the 1896 Supreme Court case Ward v. Race Horse backed the concept of treaty rights being extinguished when Wyoming became a state.

Up until recently, the state of Wyoming used the findings in the original Crow v. Repsis from 1992 to prosecute other 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 In the 2019 Herrera decision, however, the Supreme Court threw out the outdated rationale used to prop up Repsis and remanded the former case to state court.

The Herrera decision also prompted the Crow Tribe bring Repsis back to court in order to bury it once and for all. Johnson initially denied the tribe’s Rule 60 motion in June 2021, believing 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, which ordered Johnson to review the request. After holding an evidentiary hearing last year, Johnson penned a split decision, adding, “another chapter in our disharmonious history — a history where courts have struggled to parse the seemingly incongruous nature of usufructuary rights and state sovereignty.”

Since Herrera knocked out Race Horse, which had propped up Repsis, Johnson found the Crow Tribe didn’t need a Rule 60 motion to block further use of Repsis, since it had already fallen out of reach.

In the 1995 ruling, the 10th Circuit also raised two other court-created instances in which tribes could likely be denied hunting access: conversation and occupation.

Johnson declined to vacate Repsis under the 10th Circuit’s conservation necessity rationale, since this was not a consideration in Ten Bear’s original prosecution, and may still be a reason to curb tribal hunting in the future.  

Only on the occupation rationale did Johnson find grounds to grant the Crow Tribe relief.

The original treaty granted tribal members the right hunt on unoccupied land, but Wyoming had argued that the founding of the Bighorn National Forest rendered it occupied.

While portions of the national forest may be occupied, Johnson found that declaring the entire space occupied would be “detrimental to public interest and oppressive to the tribe.”

"Because Herrera repudiated Repsis’ occupation rationale, and allowing that judgment to stand is inequitable, vacatur is proper,” Johnson wrote. “And now, we affirmatively state the occupation rationale, as articulated in Repsis cannot serve as a bar to the Tribe's 1868 Treaty hunting rights."

The Wyoming attorney general’s office did not immediately return a request for comment, or did the Native American Rights Fund which represented the Crow Tribe.

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