Herrera and the tribe argue that the hunt was legal, because the 1868 Treaty of Fort Laramie guarantees the Crow “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” When Herrera was brought to trial, however, the state court refused to hear his argument. The treaty, the court said, was invalid under a 120-year-old Supreme Court case. He received a one-year suspended sentence, and three years’ suspension of all hunting privileges in Wyoming.

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Who’s right about the treaty? Let’s take a quick look at the erratic history of federal Indian policy.

In the early republic, the federal government made treaties of friendship with Indian tribes east of the Mississippi. In the 1830s, it stopped feeling friendly and removed the eastern Indians to the West. It set up reservations for eastern and western tribes and solemnly promised in treaties that the land would be theirs forever. In 1871, Congress decided there would be no more treaties, because Indian nations were no longer sovereigns; the courts soon confirmed that Congress could void any treaty without the consent of the tribes that had signed it. Next, from the 1880s until the 1930s, came the “allotment era.” The government decided to break up the reservations and “allot” much of the land to individuals, who could sell them. By the 1930s tribes had lost 60 percent of their previous land base. The New Deal was a brief respite: Allotment ended and tribes were allowed to re-form their governments. Then in 1953 came the “termination era,” when Congress decided that the federal government would no longer provide services to tribes, or deal with their governments. It sold off some tribes’ reservation lands and proclaimed that those tribes no longer existed.

Not until the Nixon administration did Congress and the executive branch decide to deal again with tribes as genuine governments. (The famed Native writer Vine Deloria Jr. in 1971 hailed Nixon’s as “the best administration in American history” for its responsiveness to tribal concerns.) Since then, tribal governments have gained in strength and organization. In 1978, the high court made explicit the rule that tribal rights can’t disappear without “clear indications of legislative intent.”

State governments and tribes, however, have been ceaselessly at one another’s throats since the 19th century, fighting bitterly over issues of natural resources, fish, game, and wildlife management, taxation, and law enforcement.

Here’s how that history shook out in the case of the Crow. In 1890, Wyoming became a state. By 1896, in Ward v. Race Horse, the new state was asking the Supreme Court to void Indian treaty rights. Race Horse involved the elk-hunting rights of a member of the Bannock tribe of Idaho, under a treaty whose language was almost identical to that of the Crow. The high court held, 7–1, that the admission of Wyoming had silently voided all tribal hunting rights there. Because Wyoming had been admitted on an “equal footing” with other states, its powers over fish, game, and wildlife couldn’t be limited by the Bannock treaty.