10th Circuit Says Treaty Claim Made to Overturn Hunting Conviction Must Be Considered

WYOMING - According to a ruling made by the 10th Circuit in an opinion released on Monday, a federal judge in the District of Wyoming will consider a man’s plea to enforce a century-old Native American treaty and overturn his felony conviction for hunting without a state permit.

“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,” Circuit Judge Jerome Holmes wrote in a 29-page opinion on the matter. The lower court is “better positioned” to decide the merits of the petition, according to George W. Bush appointee Holmes.

This November will commemorate the 34th anniversary of Tom Ten Bear’s elk hunt across the Wyoming border in the Bighorn National Forest. The Crow Tribe, at the time, countered Ten Bear’s legal charges by referencing the 1868 Fort Laramie Treaty, which provided tribal members the liberty to hunt beyond their reservation limits.

The tribe escalated the matter to the 10th Circuit. In 1995, the court found the Wyoming law to be “reasonable and necessary for conservation,” grounded in the 1896 Supreme Court case of Ward v. Race Horse. This case ruled that treaty rights were annulled when Wyoming achieved statehood.

Until recent times, Wyoming state leveraged the conclusions in Crow v. Repsis to press charges against tribal members found hunting without state permits outside of the reservation. However, the Supreme Court in the 2019 Herrera decision, discarded the obsolete logic sustaining Repsis and referred the earlier case back to the state court.

In response, the Crow Tribe endeavored to resurrect the Repsis case with the intent to conclusively lay it to rest. Judge Alan B. Johnson, whom Ronald Regan nominated to serve in the District of Wyoming, initially turned down the tribe’s corrective Rule 60 motion in June 2021, based on his conclusion that he lacked the authority to revoke the 10th Circuit’s decision.

In instances where a verdict is overturned, a Rule 60 motion can serve as a tool to scrutinize other rulings that depended on the original verdict. Consequently, the tribe pursued an appeal 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.”

Senior Circuit Judge Mary Beck Briscoe, a nominee of Bill Clinton, and Circuit Judge Nancy Moritz, a nominee of Barack Obama, joined Holmes in the ruling. The panel argued that it might have been lacking other crucial evidence in the case and declined to simply approve the Crow Tribe’s request.

“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.

Furthermore, any additional litigation in the district court would provide 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 described.

The ruling is seen as a triumph by the Crow Tribe’s legal counsel, Native American Rights Fund.

“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.”