Could a recent U.S. Supreme Court ruling allow Native Americans to hunt in portions of Yellowstone National Park?/NPS

Editor's note: The following column comes from Frank Buono, a former National Park Service assistant superintendent who has kept atop issues involving the national parks.

In 1872, Congress designated the northwestern corner of the Wyoming Territory as Yellowstone National Park.  We have celebrated the nation’s first nature preserve ever since.  Twenty-two years later, Congress imprinted an indelible characteristic upon that park – a place where all animals and birds would be protected. 

The Yellowstone Hunting Act of 1894 provided that “…all hunting, or the killing, wounding, or capturing at any time of any bird or wild animal…is prohibited within the said park.” Hunters were excluded from the park. So, too, were the indigenous peoples of the Shoshone-Bannock tribe, who formerly visited the high plateau in the warmer months to harvest some of its bounty of animals. No longer could the Indians pursue the game in the vast park.  

When a Shoshone-Bannock by the name of Race Horse killed seven elk in Uintah County, Wyoming (not within Yellowstone), he was arrested by the county sheriff and convicted of violating Wyoming state laws. In 1896, the U.S. Supreme Court upheld the conviction in Ward v. Race Horse. The high court reviewed an 1868 treaty between the United States and the Bannock Indian Tribe in Idaho. Article 4 of that treaty provided that, “…they (the Tribe) shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon and so long as peace subsists among the whites and Indians on the borders of the hunting districts.” -- Treaty of Fort Bridger. (Emphasis added.)   

The 1896 decision held that the treaty hunting rights outside of the reservation ended when Congress granted statehood to Wyoming in 1890. The court also found that “in construing these words (“unoccupied lands of the United States”) in the treaty they…must be construed with reference to the context in which they are found.” The court continued that “…the unoccupied lands contemplated were not all such lands of the United States but were only lands…as hunting districts.” The Supreme Court cited Yellowstone as an example, stating that the park was “…carved out of what constituted hunting districts at the time of the adoption of the (Bannock) treaty, and is a clear indication of the sense of Congress on the subject.” 

The Supreme Court found that the Yellowstone Act of 1872 and the Yellowstone Hunting Act in 1894 meant that the lands were no longer “unoccupied” lands of the United States in “hunting districts.” The Indians’ right to hunt in Yellowstone under the 1868 treaty ended. This is not abrogation of a treaty. Rather, the Court found that the lands in Yellowstone were simply no longer “hunting districts” and the “temporary and precarious nature” of the Bannock’s hunting right evaporated.

That Was Then. This Is Now

On May 20, 2019, the Supreme Court effectively overturned its 1896 Ward decision in a case entitled Herrera v. Wyoming. The facts concern a member of the Crow tribe who hunted in violation of State of Wyoming game laws, on lands in the federally-owned and managed Bighorn National Forest. Wyoming charged the tribal member. His defense was that the 1868 treaty between the United States and the Crow Tribe (Treaty of Fort Laramie 1868) protected his right to hunt on the lands in federal national forests without regard to Wyoming law because, in that treaty, the Tribe retained “…the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon and so long as peace subsists among the whites and Indians on the borders of the hunting districts.” The Crow Treaty language is identical to the words of the Treaty of Fort Bridger, adjudicated in Ward.

The Herrera decision ruled that the 1896 decision in Ward retained no vitality “and is repudiated to the extent it (Ward) held that treaty rights can be impliedly extinguished at statehood.” Herrera found that statehood for Wyoming in 1880 did not explicitly or impliedly end the hunting rights of the Crow in the 1868 treaty. The court then noted that the treaty’s hunting rights are confined to “unoccupied lands of the United States.”

“…it is clear that the tribe would have understood the word 'unoccupied' to denote an area free of residence or settlement by non-Indians," wrote Justice Sonia Sotomayor for the court's majority in the 5-4 ruling.

The Herrera court ruled that the federal decision to reserve the lands as a national forest reserve did not “occupy” the lands. To the contrary. The lands of the Bighorn National Forest, set aside in 1897 by President Grover Cleveland, remain almost entirely free of human residence and settlement and are thus “unoccupied” and subject to the exercise of hunting rights from the 1868 treaty.  

Thus, the Crow treaty right to hunt survived both Wyoming Statehood and, more importantly for parks and reservations, the establishment of a federal forest reserve.   

Justice Sotomayor found that the establishment of a federal land reservation as national forest itself did not constitute occupancy, although she did allow that some portions of the forest reserve could be deemed as occupied – for example, areas in the national forest with structures or dwellings upon them.  

In a curious twist, the majority opinion found that the declaration of a federal reservation, precluding “entry or settlement,” effectively cemented the definition of the forest reserve as “unoccupied lands” for the purposes of the 1868 Treaty with the Crow Tribe. In other words, withdrawal and reservation language, meant by the president to safeguard the forest reservation, in this case, resulted in less protection of wildlife, not more.

But Is It Good for Yellowstone?

The implications of Herrera for Yellowstone (and other national parks) is obvious. In 1872, Congress “set apart” the lands in Yellowstone National Park from location (under the mining laws) and settlement under the public land laws. Thus the statute making Yellowstone Park, in Sotomayor’s view, while protecting the lands of Yellowstone from settlement, also defines the lands as “unoccupied.” As such, lands in Yellowstone could potentially be liable to the Shoshone-Bannock 1868 hunting rights.  

To Justice Sotomayor, only human settlement or dwellings count as “occupancy.”  According to the logic of the majority in Herrera, (Sotomayor, Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg and Neil Gorsuch), the Treaty of Fort Bridger would theoretically disallow the Shoshone-Bannock from hunting only amongst the buildings of the Old Faithful District and the other developments that “occupy” 1 percent of Yellowstone’s lands. Small comfort indeed. It is doubtful whether the five justices writing for the majority realized the implications of their decision for Yellowstone. Decisions, like Herrera (and most others), have consequences that are both unintended and inexorable.          

Sotomayor’s logic regarding the Bighorn National Forest leads to the conclusion that the 1872 act reserving and setting aside Yellowstone as a national park does not characterize the park as categorically “unoccupied” in the meaning of the 1868 Treaty of Fort Bridger.

Before I raise undue alarm, perhaps the wording of the Yellowstone Hunting Act may preclude the exercise of any 1868 putative hunting rights for the Shoshone-Bannock.  

Congress bestowed on the Yellowstone Park reservation two features that distinguish it from the Bighorn Forest reservation. The first was that Congress granted exclusive control to the park to the Secretary of the Interior. The laws of the yet-to-be created State of Wyoming do not govern public, or any other, conduct in the park. The exercise of Shoshone-Bannock hunting rights, if any remain in the park, would be in conflict with federal law and not state law. Both Ward (1896) and Herrera (2019) dealt with conflict of treaty hunting rights with state law, not federal law.

Second, Congress specifically proscribed hunting in the all of the Yellowstone Park reservation, whether the lands may be classified as “occupied” or “unoccupied.” Unexamined by the Supreme Court in Herrera is an act of Congress that explicitly forbids hunting by all persons on the lands in a Federal Reservation. There is no equivalent law banning hunting that governs the Bighorn National Forest, administered by the Department of Agriculture.  

Under Herrera, the lands of the Yellowstone reservation may no longer be deemed categorically occupied simply on their status as a federal reservation, but this does not mean that the Shoshone-Bannock can hunt there. After all, Congress outlawed hunting in Yellowstone in 1894. Perhaps the Supreme Court would regard the federal law as having more weight than the regulations of Wyoming. Then again, perhaps not.

The court could consider that the park lands, occupied or not, no longer remain as part of the so-called “hunting districts” cited in the 1868 treaty. That dicta in Ward about Yellowstone was unaddressed in Herrera. 

Defenders of Yellowstone must argue that the Yellowstone Hunting Act placed the animals in the park beyond the reach of the Native American arrows and firearms precisely because of the very wording of the Treaty of Fort Bridger. The park lands are not in or on “the edge of hunting districts.” In Herrera, there is one small hint that this may be so. The Supreme Court points out that the 1868 treaty with the Crow contrasts “unoccupied hunting districts with areas of white settlement.” This is how the Indians understood the Treaty of Fort Bridger. Yellowstone is free of white settlement and almost entirely “unoccupied” (in the sense of Sotomayor’s newly-minted doctrine of “occupancy”), but is no longer in, or part of, a “hunting district.” 

Would the majority in Herrera or other Justices conclude that the Shoshone-Bannock possess a treaty hunting right in America’s flagship national park? We do not know the answer to a question that has not yet arisen. I can assure you that the question will arise. The answer could fundamentally alter our National Park System. Apologists for the Herrera decision would argue correctly that the Supreme Court might still allow the National Park Service to regulate Native American hunting rights “in the interest of conservation.”  Little comfort there. 

Conclusion

In the words of Wallace Stegner in 1983, "National parks are the best idea we ever had. Absolutely American, absolutely democratic, they reflect us at our best rather than our worst." To an increasing number of academics and activists, the national parks are instead emblematic of the national dispossession of indigenous peoples. Even an official of the National Parks and Conservation Association wrote in 2016 that there is a great “arrogance” at the heart of this sentiment by Wallace Stegner. Perhaps there is.   

We can paraphrase what national park historian Al Runte wrote when talking about wilderness in a 2014 article, that some scholars say “…the contrivance of wilderness is supported by a sinful history.” The same can be said of our parks. 

Some, and not only the Native Americans, would be happy to see indigenous peoples once again pursuing the hunt in Yellowstone. Likely, the vast majority of Americans would not. But, the louder voices of the few have a growing influence over the opinions of the many 

Nonetheless, America’s best idea may be fundamentally altered by this Supreme Court decision. America needs to reflect on this soberly before we go further down this path.