Tuesday, May 21, 2019
The Supreme Court ruled on Monday that Crow Tribe off-reservation hunting rights, established pursuant to a 1868 treaty with the United States, didn't expire when Wyoming became a state. The ruling affirms a more recent approach to determining when Native American treaty rights end (or not) upon a territory's statehood. It's also a victory for Tribe member Clayvin Herrera, who was charged and convicted by Wyoming state authorities for hunting in Bighorn National Forest (outside the Crow reservation) in the off-season and without a license.
The case, Herrera v. Wyoming, tested the durability of Crow Tribe members' off-reservation hunting rights (established pursuant to a 1868 treaty with the Untied States) in the wake of Wyoming's statehood. The state claimed that Tribe members no longer had off-reservation hunting rights (and therefore that it could prosecute Herrera for hunting in Bighorn, in Wyoming), because the treaty expired when Wyoming became a state. The Court disagreed.
Justice Sotomayor, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, held that the treaty did not expire upon Wyoming's statehood. The Court rejected its approach to the question in Ward v. Race Horse (1896) in favor of a later approach in Minnesota v. Mille Lacs Band of Chippewa Indians (1999). Race Horse held that treaty-based rights did not survive statehood, because (1) treaty-based hunting rights would mean that the state was not admitted on "equal footing" with existing states (because the state couldn't enforce hunting restrictions within its territory) and (2) there was no evidence in the treaty in that case that Congress intended the treaty right to continue in "perpetuity."
The Court said that Mille Lacs correctly determined that both of those reasons lacked merit. As to the first, "[l]ater decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe's treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation." Instead of drawing on equal footing, Mille Lacs said that Congress "must clearly express" its intent to abrogate Native American treaty rights. As to the second, Mille Lacs said that the Race Horse standard was too broad, "given that almost any treaty rights--which Congress may unilaterally repudiate--could be described in those terms." While Mille Lacs didn't overturn Race Horse, it severely undermined it.
In short, Mille Lacs
established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress' clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty.
Applying the Mille Lacs standard, the Court ruled that nothing in Wyoming's statehood act showed that Congress intended to end the treaty's hunting rights, or that the Crow Tribe would have understood it this way. The Court rejected Wyoming's argument that such intent was implied ("something that Mille Lacs forbids").
Finally, the Court ruled that Bighorn wasn't "occupied" for the purpose of the treaty (which allows off-reservation hunting only in "unoccupied" lands), because it's "free of residence or settlement by non-Indians." (According to the Court, this is how the Tribe would've understood "occupied" when it signed the treaty.)
The Court also rejected Wyoming's argument that Herrera was precluded from making this argument, because a Crow Tribe member made a similar argument, and lost, in an earlier Tenth Circuit case. The Court held that the law changed (because Mille Lacs came down since that Tenth Circuit ruling), and therefore Herrera's argument wasn't "issue precluded."
Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, dissented. Justice Alito wrote that the Court's "interpretation of the treaty is debatable and is plainly contrary to [Race Horse], which construed identical language in a closely related treaty." He also argued that Herrera was issued-precluded from raising his argument, because the Tenth Circuit already ruled in the case referenced above.