ANALYZING THE IMPLICATIONS OF THE SUPREME COURT’S HOLDING IN HERRERA v. WYOMING

Introduction The Crow Tribe has inhabited southern Montana and northern Wyoming for more than three centuries;1 Wyoming officially became a state in 1890, long after the Crow Tribe settled in the area.2 The Tribe's settlement encompassed what is now known as the Bighorn National Forest, which is partly located in present-day Wyoming.3 Various territories officially declared statehood, and a recurring question became whether tribal treaty rights relating to the lands-now a part of the state-were preempted by the declaration of statehood.4 A common analysis in any treaty-rights case involves looking to congressional intent, as the legislature has the right to abrogate treaty rights in toto.5 Statehood preemption questions have arisen frequently in usufructuary rights cases-ones involving hunting and fishing rights.6 But that is not to say that the Supreme Court's analysis in usufructuary rights cases cannot be applied to other, more significant treaty rights. [...]Part IV will conclude this Note and extrapolate on the broad reach of Herrera in other contexts based on the present makeup of the Supreme Court. "15 The crux of this case was whether Wyoming's statehood preempted the Bannock Tribe's treaty right to hunt on the "unoccupied lands of the United States," which included the Bighorn National Forest.16 Race Horse, a member of the Bannock Tribe, was arrested for violating a state gaming law after killing seven elk in Wyoming; he argued that he was entitled to hunt, notwithstanding the law, as a member of the Tribe and in light of the clear treaty language.17 The State of Wyoming countered that its admittance as a state to the Union abrogated the Shoshone-Bannock Treaty's provision to hunt freely on said lands.18 The Supreme Court thus had to analyze whether the treaty remained valid. "27 In his final remarks, Justice Brown expressed his uneasiness toward the majority's holding that the mere admission of a state to the union can constructively occupy land which is, in fact, unoccupied, for the purposes of tribal treaty rights.28 In the case of Herrera v. Wyoming, the State of Wyoming relied heavily on the case of Race Horse, presumably because the facts before the Herrera Court were, for all intents and purposes, exactly the same as the facts in Race Horse29 Additionally, the State of Wyoming pointed to the holding and reasoning of the Tenth Circuit in Crow Tribe of Indians v. Repsis in Herrera20 B. Crow Tribe of Indians v. Repsis and the Tenth Circuit's C