(CN) — The Crow Tribe on Monday asked a 10th Circuit panel to exhume and correct a 27-year-old judgment that has been used to prosecute tribal members for hunting beyond the borders of their reservation ever since.
November will mark the 33rd year since Tom Ten Bear killed an elk 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 up to the 10th Circuit, which in 1995 found Wyoming law “reasonable and necessary for conservation.”
Up until recently, 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 logic used to prop up Repsis and remanded the former case to the state court where it is currently pending.
In response, the Crow Tribe attempted bring back Repsis in order to bury it once and for all. The lower court denied the tribe's corrective Rule 60 motion in June 2021, and the tribe appealed.
At oral arguments Monday, Senior U.S. Circuit Judge Mary Beck Briscoe, a Bill Clinton appointee, asked why future arguments wouldn’t simply reinforce the Supreme Court decision.
Dan Lewerenz, an attorney with the Native American Rights Fund, said the state had recently tried to reincarnate Repsis in the remanded Herrera proceedings.
“The fact that they continue to oppose relief shows they must see some value that they can milk out of the Supreme Court decision,” Lewerenz said. “It still chills the hunting rights of tribal members.”
On behalf of Wyoming, deputy attorney general James Kaste declared the state had no intention of reviving Repsis again.
“To be sure and completely candid, the state of Wyoming did attempt to apply the judgment prospectively in Herrera on the reasoning of the dissent in that case, but the state lost and the state accepts that loss,” Kaste said.
Kaste then declared what the Crow Tribe had initially argued in the 1990s: “State tribal members do not have to follow state hunting regulations in the Big Horn National Forest except in specified occupied areas, or if the rules in that area are necessary for conservation.”
Briscoe offered to let the parties settle the case right then and there.
“Wouldn’t that be the perfect thing?” Briscoe said. “Word it just like you just put it.”
U.S. Circuit Judge Jerome Holmes, appointed by George W. Bush, suggested declaring the question moot, but Kaste would not close the casket on the issue. The court had every ability to rule on the motion, Kaste said, even if the outcome made no difference to either the state or the tribe.
“Even if you tear up the piece of paper, nothing you can do today will make any difference in the rights of tribal hunters,” Kaste said.
He continued: “We don’t tear up old judgments without good reason, unless they are causing real and substantial problems today. The way we deal with old judgments that are no longer relevant due to the passage of time is through issue preclusion.”
Kaste opposed Holmes’ suggestion to remand, since the panel had all the facts needed to reach a decision. Kaste also opposed the suggestion from Barack Obama appointee U.S. Circuit Judge Nancy Moritz to simply grant the relief sought by the Crow Tribe.
“The standard for doing that is, and should be, high,” Kaste said. “There are probably thousands of judgments in this court from time memorial that are no longer relevant, but we don’t go back and rewrite all of them.”
In rebuttal, Lewerenz expressed surprise at Wyoming’s change of heart, since the state had seemed intent on preserving Repsis at their last court hearing.
“Just because Wyoming chooses not to use Repsis doesn’t mean another court or prosecutor won’t,” Lewerenz warned in closing.
The case was originally put before U.S. Circuit Judge Paul Joseph Kelly, a 1992 George H.W. Bush appointee who remains on the bench as a senior judge. The panel also included two Nixon appointees: U.S. Circuit Judge James Barrett, who died in 2011 and Senior U.S. Circuit Judge Earl E. O’Connor, who died in 1998.
The present panel did not indicate when or how it would decide the case.
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