Allowing Indian tribes to hunt on public lands without a license "undermines" states' authority to regulate and protect wildlife, Wyoming's attorney general argued.
Bill Hill, speaking Monday before a three-judge panel of the 10th U.S. Circuit Court of Appeals, said a 127-year-old treaty does not give the Crow Indian Tribe of Montana unrestricted privileges to hunt in the Bighorn National Forest.The Crow are appealing a U.S. District Court ruling in favor of Wyoming after the state's game warden issued a citation to Thomas Ten Bear in 1989 for shooting and killing an elk in the Bighorn, which is immediately south of the Crow tribe's 8 million-acre reservation.
Montana, New Mexico, Utah, Colorado and Idaho have filed briefs in support of Wyoming. The Crow are supported by the Northern Cheyenne in Montana, the Northern Arapaho and Shoshone in Wyoming, the Shoshone-Bannock of Idaho and the Oglala Sioux of South Dakota.
The Crow argue that the 1868 Fort Laramie Treaty gave them the unfettered right to hunt on all "unoccupied lands of the United States." The district court dismissed the argument, citing a U.S. Supreme Court ruling that, in effect, said such treaties are "temporary and precarious."
Hill went a step further Monday, saying 100 percent of Wyoming's licensing fees go toward protecting and preserving fish and wildlife, and that an exemption for the Crow "undermines sound game management."
"I don't understand how you can have regulatory fees for some and exclude others," Hill told the court.
Dale White, representing Ten Bear and the Crow tribe, said the lower court erred by comparing the Crow case with the U.S. Supreme Court's ruling in the 1896 Ward vs. Race Horse case.
The Race Horse case dealt with a separate treaty with different circumstances, White said, adding that the Fort Laramie Treaty required states to prove a need for conservation when restricting the Crow from hunting on unoccupied public lands.
"This is an interpretation of a treaty that existed," White argued. There is no power to "regulate unless (states) establish a conservation burden" upon them.
A brief submitted before the hearing said Wyoming increased the number of elk licenses from 1986 to 1991, and White said the state has failed to prove that unlicensed hunting by the Crow has a profound effect on wildlife populations in the Bighorn National Forest.
White acknowledged that by their nature, hunting licenses have conservation in mind, but he said Wyoming should restrict licenses for non-Indian sportsmen before limiting Indian hunting privileges.