Susquehanna water Issue topic of UW Law event

The University of Wyoming College of Law. Wyotoday photo by Ernie Over

The University of Wyoming College of Law is set to host two public events this month focusing on the timely American Indian topics of water contamination on the Wind River Indian Reservation and a Crow hunting rights case recently decided by the U.S. Supreme Court.

“At the College of Law, we strive to serve our students and the state with relevant legal information that will help them understand current events,” says Professor Jason Robison. “This knowledge helps to create an educated population that can better engage with the legal system.”

Water contamination on WRIR

On Tuesday, Oct. 15, Itzchak Kornfeld, of the Hebrew University of Jerusalem, will deliver a presentation, titled “The Human Right to Water on the Wind River Indian Reservation.” He will discuss the legacy of contaminated groundwater left by the Susquehanna-Western uranium mill near Riverton, and ask whether Eastern Shoshone and Northern Arapaho American citizens have a right to uncontaminated water. The panel takes place from 7-9 p.m. in Room 178 of the College of Law Building.

Starting in 1958, the Susquehanna-Western company processed uranium to make yellowcake near the Wind River Indian Reservation towns of Arapahoe and St. Stephens. When the mine closed in 1963, it left piles of radioactive tailings on the site until 1988, when the U.S. Department of Energy removed the hazardous materials for burial in the Gas Hills. By that time, however, some of the radioactive tailings had leached into the groundwater, creating a contamination plume that continues to be present in monitoring wells, causing reports of thyroid problems and higher cancer rates among residents. The site of the former uranium mill was later occupied by the Chemtrade sulfuric acid plant.

Kornfeld has a background in geology and works as a legal scholar focusing on environmental issues and water security, particularly on how courts adjudicate issues related to natural resources and water law.

Herrera v. Wyoming

On Thursday, Oct. 17, the College of Law will host a panel discussion, “Herrera v. Wyoming: The Way Forward on American Indian Treaty Rights,” at 6 p.m. in the College of Law’s large moot courtroom. The discussion also will be broadcast via livestream on the Wyoming State Bar website. Registration is required; see details here and below.

The U.S. Supreme Court’s May 2019 decision in Herrera v. Wyoming confirmed that Crow hunting rights enumerated in the 1868 Treaty of Fort Laramie remain in force, allowing members of the tribe to hunt on unoccupied lands of Wyoming and Montana. Specifically, the decision overturned Wyoming’s previous ruling that convicted Crow tribal game warden Clayvin Herrera of shooting elk on the Bighorn National Forest out of season and without a license in 2015.

Herrera was cited after an investigation by the Wyoming Game and Fish Department. Wyoming courts ordered him to pay $8,000 in fines and revoked his hunting privileges. On appeal, the U.S. Supreme Court overturned the findings of the lower courts. According to the decision, neither Wyoming statehood in 1890 nor the creation of the Bighorn National Forest in 1897 abrogated the treaty. The Supreme Court’s decision further remanded the case back to Wyoming to resolve outstanding legal questions — for example, how Crow hunting rights might be regulated for conservation purposes. 

Public concern over the conservation implications of the decision has led Crow leaders to call for patience from their Wyoming neighbors, as reported in The Sheridan Press. It’s unclear how long it may take Wyoming to honor the treaty by creating policies to sustainably share wildlife resources with Crow tribal members.

What did the decision mean?

The College of Law panel will discuss the meaning of the court’s decision, along with outstanding legal and factual questions surrounding the case. Further, panelists will discuss the implications of the case for the Crow and other tribes with similar treaty rights, and how other states have handled related situations. Finally, they will discuss potential further litigation and cooperative paths forward for Wyoming and the Crow Tribe to address wildlife resources of concern to all.

Herrera v. Wyoming has sparked significant discussion in Wyoming, in part, because treaty rights are seldom discussed or considered by the general public. The Crow treaty rights date back more than 150 years. Under the 1868 Treaty of Fort Laramie, the United States negotiated with the Crow Tribe as a sovereign nation. The resulting agreement ceded millions of acres of Crow territory with certain stipulations, including that tribal members would still be able to hunt on unoccupied lands outside their reservation so long as game persisted.

The Crow cession encompasses a large part of what is now northern Wyoming, an area roughly between Sheridan, Buffalo, Lander and Cody. That includes the Big Horn Mountains, Tongue River Valley, the western portion of the Powder River Basin, the Wind River Basin, Big Horn Basin and parts of the Absaroka Range and Yellowstone National Park. The Crow Tribe further ceded much of Montana below the Musselshell River, including the Yellowstone River Valley between today’s Miles City and Big Timber and the location of Billings, Mont.

Crow Nation Treaty

In a September 2018 statement, Crow Tribal Chairman A.J. Not Afraid said the treaty remains important to members of the Crow/Apsaalooke Nation.

“Our ancestors gave up a lot to ensure the survival of our people, and they reserved for us the right to hunt on the lands we ceded, as long as they were not occupied by settlers,” Not Afraid said. “We want to see these promises and the sacrifices of our ancestors honored.”

Panel participants include accomplished legal practitioners Kyle Gray, an attorney with the law firm Holland and Hart, who represented Herrera before the U.S. Supreme Court; John Knepper, chief deputy for the Wyoming attorney general, who represented Wyoming before the U.S. Supreme Court; Kelly Rudd, a managing partner at the law firm Baldwin, Crocker and Rudd in Lander, which specializes in American Indian law; and Daniel Stone, an attorney and enrolled member of the Shoshone-Bannock Tribe in Idaho, where he works as a policy analyst for the tribe’s Fish and Wildlife Department.

The panel is free to students and non-bar members, though registration is required. There is an admission fee of $30 for members of the bar and $15 for members of the Federal Indian and Tribal Law Section. Learn more and register at www.wyomingbar.org.

In the 1868 Treaty of Fort Laramie, the Crow Tribe ceded vast areas of Wyoming and Montana to the United States, shown in yellow and labeled 517, while reserving hunting rights on those lands so long as they remained unoccupied. An upcoming panel at the UW College of Law will discuss the recent U.S. Supreme Court decision in Herrera v. Wyoming, which cited the 1868 treaty to overturn a conviction of Crow tribal member Clayvin Herrera, who was cited and fined for killing elk in Wyoming out of season and without a license.