Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/31

6 District Court that, under Race Horse, “[t]he Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 992 (1995). Second, as an independent alternative ground for affirmance, the Tenth Circuit held that the Tribe’s hunting right had expired because “the treaty reserved an offreservation hunting right on ‘unoccupied’ lands and the lands of the Big Horn National Forest are ‘occupied.’ ” Id., at 993. The Tenth Circuit reasoned that “unoccupied” land within the meaning of the treaty meant land that was open for commercial or residential use, and since the creation of the national forest precluded those activities, it followed that the land was no longer “unoccupied” in the relevant sense. Ibid.

The events giving rise to the present case are essentially the same as those in Race Horse and Repsis. During the winter of 2013, Herrera, who was an officer in the Crow Tribe’s fish and game department, contacted Wyoming game officials to offer assistance investigating a number of poaching incidents along the border between Bighorn and the Crow Reservation. After a lengthy discussion in which Herrera asked detailed questions about the State’s investigative capabilities, the Wyoming officials became suspicious of Herrera’s motives. The officials conducted a web search for Herrera’s name and found photographs posted on trophy-hunting and social media websites that showed him posing with bull elk. The officers recognized from the scenery in the pictures that the elk had been