May 27, 2013

Crow tribe asserts hunting and other treaty rights granted by the Fort Laramie Treaty of 1868


The Crow tribal government has asserted tribal rights on key issues that include off-reservation hunting and road access to the Bighorn Canyon National Recreation Area.

Crow Chairman Darrin Old Coyote introduced a series of five joint resolutions that the Crow Legislature approved in a special session May 7.  Old Coyote signed them on May 14. The session was timed to coincide with the 145th anniversary of the signing of the 1868 Fort Laramie Treaty.


Fort Laramie Treaty of 1868

The Fort Laramie Treaty of 1868, which established the Crow Reservation, also outlined the tribe’s right to hunt on the unoccupied lands of the United States. Tribal Chairman Old Coyote recently viewed the original treaty, as well as the Fort Laramie Treaty of 1851, at the National Archives in Washington, D.C.

Other resolutions focused on other treaty matters: a new survey of the exterior boundaries of the reservation and all islands of the Yellowstone River upstream of the 107th meridian; establishing Crow national days of commemoration for three treaties; and asserting treaty rights and privileges, including sovereign rights to land, water, air and other tribal property on the reservation.

Crow tribe hunting rights established by Fort Laramie Treaty of 1868

The resolution calls for the tribe to “exercise fully its treaty right to hunt on all unoccupied lands of the United States which are located within the traditional Crow homeland.”

The resolution defines that homeland as those lands identified in the 1851 Fort Laramie Treaty and “all such lands as located in traditional Crow territory according to tribal oral history.”

That’s a lot of territory. Oral history describes Crow land as situated within four tepee poles: the north at the Bear’s Paw Mountains in northern Montana, the west at the Absaroka and Beartooth Mountains, the south at the Wind River Range in Wyoming and the east at the Black Hills of western South Dakota and northeastern Wyoming.

Although the size of the reservation decreased from its original 38 million acres to the present 2.3 million acres, the tribe retained the right to hunt beyond those borders, Old Coyote said. The resolution calls for hunting on state and federal lands managed by a variety of agencies, including forests, national parks and national recreation areas.

The resolution acknowledged the Ten Bear decision, decided by the 10th Circuit Court of Appeals in 1995. The court ruled that the Crow treaty right to hunt in the Bighorn National Forest in Wyoming was abrogated in 1890, when Wyoming became a state.

But it pointed to the 1999 decision by the U.S. Supreme Court in Minnesota v. Mille Lacs Band of Chippewa that reversed the case law on which the 10th Circuit based its decision.

The tribe will have to develop regulations for off-reservation hunting, Old Coyote said, including a licensing process. And it will work with federal agencies and the states of Montana, Wyoming and South Dakota to draw up agreements.

“It’s not just guys going and hunting and shooting everything in sight,” Old Coyote said. “It’s having that right, but doing it legitimately.”

Sen. Conrad J. Stewart, chairman of the Crow Legislature’s Natural Resources Committee and co-sponsor of the resolution, said that in setting up hunting seasons, the tribe will emphasize conservation.

“That’s not coming out in the spring killing a cow or a doe,” Stewart said. “We don’t want to stymie any herds, we want to harvest them. Whether it’s buffalo, elk or deer, we want to use best possible practices.”

Tribal hunters are not trophy hunters, he said.

“We take the meat and we still utilize the hides,” Stewart said.

The tribe has already met with officials of Montana Fish, Wildlife and Parks to begin talks about off-reservation hunting. Becky Docktor, FWP chief legal counsel, said initial talks focused on the tribe joining other tribes in hunting bison that migrate out of Yellowstone Park.

Two Idaho tribes, one Oregon tribe and the Confederated Salish and Kootenai Tribes of northwestern Montana already exercise their treaty rights to hunt bison. The tribes coordinate bison hunts outside the park, with the season typically running from January to mid or late March.

Docktor expects talks with the Crow Tribe to continue.

“Their resolution does go beyond that hunt in asserting rights other than bison and other areas,” she said. “I would bet we will have other talks on other areas and other species.”

The Salish and Kootenai already have established a precedent in the state for hunting off-reservation. Under the Hellgate treaty of 1855, the hunting privileges extend to national forest lands in northwest Montana, and possibly beyond, said Jim Williams, who is Fish, Wildlife and Parks regional wildlife manager for Region 1.

“We have a real close relationship with the tribal wildlife program,” Williams said. “We communicate game harvest information annually, so we can work on any conservation issues that come up, and none have. It’s worked really well.”

Old Coyote compares the Crow Tribe’s hunting rights to an agreement the tribe has with the U.S. Forest Service for tribal members to annually harvest tepee poles in national forests. Each permit issued by the tribe is signed by the Forest Service and tribal officials and contains the member’s tribal enrollment number.  

“It’s nothing new. They recognize the treaty right,” he said. “This is going to be the same type of agreement.”

Ok-A-Beh Access road leading to Bighorn Canyon National Recreation Area owned by Crow Tribe, which may charge a toll

The Crow Legislature’s joint resolution concerning the Ok-A-Beh access road leading into Bighorn Canyon National Recreation Area is just the latest salvo in a longstanding disagreement between the tribe and the National Park Service.

The resolution “seeks to provide official notice to the United States Department of the Interior of tribal policy asserting absolute ownership and control of the Ok-A-Beh access road.”

How Crow officials plan to assert their control over the road is still under discussion.

The National Park Service owns about the first half-mile of the 10-mile road to the boat launching area. The federal agency bought the next 4-1/2 to 5-1/2 miles from a landowner, said Jerry Case, superintendent of the recreation area.

“The last three miles we believe are covered under the agreement signed in ’67,” he said. “There was also a (Crow tribal) council resolution, 67-59, which approved the agreement in 1967.”

But from the tribe’s perspective, the revised 1967 memorandum of understanding is invalid because the Crow Tribal General Council never approved it, the three miles of road are solely under the control of the tribe, and it should be compensated for the road’s use.

Congress established the Bighorn Canyon National Recreation Area in 1966. The tribal council passed Resolution 67-59 in May 1967, which approved a draft memorandum of understanding that included 56,000 acres of tribal lands in the recreation area.

In December 1967, tribal Chairman Edison Real Bird signed a modified 50-year agreement with Secretary of the Interior Stewart Udall and the director of the National Park Service.

The tribe maintains that the tribal council never ratified the revised agreement, while the federal government believes it did. In 1976, the council passed a resolution saying the modified agreement was invalid and that all Crow tribal lands were withdrawn from the recreation area.

In 1979, Secretary of the Interior Cecil Andrus rejected the resolution and reasserted the agreement’s legality. At the same time, Andrus issued a moratorium on further development of Crow tribal lands in the recreation area.

“For us that has always been tribal land, and we have not taken any action on it,” Case said. “We haven’t done any planning or development.”

One suggested proposal would have permanently withdrawn the Crow tribal lands from the recreation area, which would terminate the 1967 agreement. In the mid-2000s, the National Park Service also proposed a land transfer with the Crow Tribe, which would have granted the National Park Service a 200-foot right of way across tribal lands on that three-mile stretch of road.

To date, no agreement has been reached. Case said that in his five-year tenure as superintendent, he hasn’t seen much interest on the tribe’s part to negotiate.

Old Coyote said the tribe would like the Park Service to compensate it for the long use of the road. If no agreement can be reached, he said, the tribe might consider setting up a toll booth that drivers would have to pass to get to the recreation area.

“We’re just trying to assert our right,” Old Coyote said. “We own the right of way and we own the land. We just want to be respected. That’s the bottom line.”


AUTHOR: This article first appeared in the Billings Gazette. Reprinted under fair use.

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