Gray also called the assertion that Wyoming is somehow “occupying” a federal national forest “simply wrong” and that the state’s new “'conservation necessity’ arguments cannot withstand scrutiny” since there is no shortage of elk in Wyoming and therefore no threat to the animals’ existence if Crow treaty rights are recognized.

“There is no support at all for the State’s thoroughly debunked and discredited ‘state-created resource’ argument, and this Court must reject it,” Gray wrote.

She pointed to a 1975 case regarding tribal treaty fishing rights in Washington as the basis for case law that says “the state must pursue its goals as best it can by regulation of its own non-treaty citizens” rather than by enforcing limits on tribal members.

Joining in

Three Indian law professors — Debra Donohue from the University of Wyoming and University of Montana professors Maylinn Smith and Monte Mills — have asked the District Court for leave to file a brief in support of Herrera.

“The issues raised in this appeal have impact well beyond the confines of this case, as the interpretation of Indian treaties, and the rights reserved therein, are matters of constitutional import central to federal Indian law,” the motion stated.