ALITO, J., dissenting
hunting right reserved under the treaty. This right, the Court observed, was not “of such a nature as to imply [its] perpetuity” but was instead “temporary and precarious,” since it depended on the continuation of several conditions, including at least one condition wholly within the control of the Government—continued federal ownership of the land. Ibid.
Race Horse did not mark a final resolution of the conflict between Wyoming’s regulatory power and tribal hunting rights. Nearly a century later, Thomas Ten Bear, a member of the Crow Tribe, crossed into Wyoming to hunt elk in the Bighorn National Forest, just as Herrera did in this case. Wyoming game officials cited Ten Bear, and he was ultimately convicted of hunting elk without the requisite license.[1] Ten Bear, like Race Horse before him, filed a lawsuit in federal court disputing Wyoming’s authority to regulate hunting by members of his Tribe. Crow Tribe of Indians v. Repsis, 866 F. Supp. 520, 521 (Wyo. 1994). Joined by the Crow Tribe, he argued that the 1868 Treaty— the same treaty at issue here—gave him the right to take elk in the national forest.
The District Court found that challenge indistinguishable from the one addressed in Race Horse. The District Court noted that Race Horse had pointed to “identical treaty language” and had “advanced the identical contention now made by” Ten Bear and the Tribe. Repsis, 866 F. Supp., at 522. Because Race Horse “remain[ed] controlling,” the District Court granted summary judgment to the State. 866 F. Supp., at 524.
The Tenth Circuit affirmed that judgment on two independent grounds. First, the Tenth Circuit agreed with the
- ↑ Wyoming officials enforce the State’s hunting laws on national forest lands pursuant to a memorandum of understanding between the State and Federal Governments. Crow Tribe of Indians v. Repsis, 866 F. Supp. 520, 521, n. 1 (Wyo. 1994).
