Sheridan County and Prosecuting Attorney’s Office seeks state resources in Herrera case
Sheridan County and Prosecuting Attorney’s Office seeks state resources in Herrera case
By Margaret O’Hara
The Sheridan Press
Via Wyoming News Exchange
SHERIDAN — The Sheridan County and Prosecuting Attorney’s Office has requested assistance from the Wyoming attorney general in managing the case of Clayvin Herrera, an enrolled member of the Crow Tribe of Indians charged with violating Game and Fish Department hunting guidelines.
The case, Deputy Sheridan County and Prosecuting Attorney Christopher LaRosa said, has grown to impact issues far beyond the scope of local prosecutors’ purview, including issues of state sovereignty. These issues, LaRosa argued, should be handled by the Wyoming Attorney General.
“We’re not the appropriate entity to, moving forward, litigate this issue of what are the sovereign powers of the state of Wyoming,” LaRosa said.
Herrera’s legal case began in 2014, when he and other tribe members pursued a group of elk into the Bighorn National Forest from the Crow reservation. Herrera was cited for hunting elk off-season or without a state hunting license and for being an accessory to the same offense.
Herrera moved to dismiss the case under the Fort Laramie Treaty of 1868.
In addition to establishing the Crow reservation and requiring the Crow Tribe to make it their “permanent home,” the treaty explicitly allowed members of the tribe to hunt on unoccupied land in U.S. territory.
“The Indians herein named…shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts,” the treaty states.
While Herrera argued these treaty rights allowed him to hunt in the Bighorn National Forest freely, the state argued Herrera’s treaty right expired at Wyoming statehood in 1890 and BNF land was occupied, LaRosa said.
Prosecutors have also argued the state has a legitimate conservation interest in establishing a hunting season and requiring hunters to obtain proper documentation.
Sheridan County Circuit Court Judge Shelley Cundiff initially accepted the state’s argument, and Herrera was found guilty in a jury trial of hunting elk off-season.
Herrera appealed that decision, and ever since the case has pin-balled through local and national courts, eventually finding its way to the U.S. Supreme Court in 2019. In a 5-4 decision, the Supreme Court sided with Herrera.
“The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve,” wrote Justice Sonia Sotomayor in the 5-4 majority opinion, remanding the case for further proceedings in Sheridan County.
After the Supreme Court’s decision, the case again moved through circuit court and an appeal in district court.
On Dec. 3, 2021, then 4th Judicial District Court Judge John Fenn issued a ruling remanding the case back to circuit court for further proceedings. An evidentiary hearing must be held, Fenn wrote in his decision, to determine the answers of two questions central to the case. First, is the Bighorn National Forest occupied U.S. territory such that the Fort Laramie Treaty of 1868 does not apply? Second, does the state have a legitimate conservation necessity in barring off-season hunting and hunting without proper licenses?
Because the Wyoming Supreme Court declined to review Fenn’s decision earlier this month, the next step in the case is an evidentiary hearing in Sheridan County Circuit Court to answer these two questions.
LaRosa said the Sheridan County and Prosecuting Attorney’s Office is requesting the Wyoming attorney general take ownership of the evidentiary hearing — and all additional hearings in the case — due to the statewide and national implications of the Herrera case and the strain the case has placed on local prosecutors.
First, LaRosa argued, the implications of the case have expanded far beyond the purview of any one county prosecutor. By potentially allowing members of the Crow Tribe to ignore local hunting guidelines, LaRosa said the case undermines Wyoming’s sovereignty and the state’s authority to enforce any law, on anyone.
“The sovereign powers of the State of Wyoming have been appreciably diminished from what they were before this case started,” LaRosa said.
Because of the broad effects for Wyoming, LaRosa asserted state officials — like Wyoming’s attorney general — should be responsible for representing the state in future hearings. The county attorney’s office is not the appropriate entity to engage in negotiations with tribal governments or state and federal conservation authorities, LaRosa said.
“This [case] needs to be decided at a bigger level,” Sheridan County and Prosecuting Attorney Dianna Bennett said.
Second, LaRosa argued the case has placed considerable strain on the local county and prosecuting attorney’s office.
2022 marks the case’s eighth year of ongoing proceedings in the Herrera case, and there’s no end in sight. Even getting the proper data and expert testimony necessary for the upcoming evidentiary hearing in circuit court will require considerable effort from local prosecutors, LaRosa said.
The attorney general’s office has the resources and governmental power required to continue to litigate the matter, Bennett and LaRosa agreed.
Bennett said local prosecutors have expressed their concerns to the Wyoming Attorney General’s Office and plan to meet in February to discuss how state officials might be able to intervene in the case.
Although it was originally set for January, Herrera’s upcoming evidentiary hearing in circuit court has been continued indefinitely. LaRosa said the parties will likely gather for a status conference after the Sheridan County and Prosecuting Attorney’s Office has received an answer from the attorney general.
This story was published on Feb. 1, 2022.