There was a major win for treaty rights in the U.S. Supreme Court on Monday, as the court ruled in favor of the Crow tribe hunting case, Herrera v. Wyoming with a vote of 5-4.
Crow tribal citizen Clayvin Herrera was off-season hunting in January 2014 when he followed and killed an elk in Bighorn National Forest in Wyoming. It's off the tribe's reservation in unceded territory. State officials charged Herrera for hunting without a state license.
Herrera argued that he was protected by the 1868 Treaty of Fort Laramie which states hunters can “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.”
Wyoming courts argued that the treaty expired at statehood in 1890 and that the land became “occupied” when the Bighorn National Forest was established in 1897. But associate justices said no.
Associate Justice Sonia Sotomayor wrote in the opinion: “The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically “occupied” when setting aside as a national reserve … The Treaty of Fort Laramie specified that “the tribes did not ‘surrender the privilege of hunting, fishing, or passing over’ any of the lands in dispute” by entering the treaty.”
Attorney George Hicks, Jr., a partner of Kirkland & Ellis LLP, worked on (and won) the case pro bono which happened to be his first Supreme Court argument.
“We are gratified that the Supreme Court held that the treaty hunting right guaranteed to the Crow Tribe and Mr. Herrera was not abrogated by Wyoming’s admission to the Union or the creation of the Bighorn National Forest,” he said.
Dorsey & Whitney, an international law firm that specializes in tribal and non-tribal business in Indian Country, did not work on the case but have said this decision will affect their clients.
Forrest Tahdooahnippah, a partner at the law firm, read the decision by the Supreme Court Monday morning and commented to Indian Country Today via email.
"Herrera, along with the Court’s earlier case in Cougar Den, marks a reinvigorated willingness of the Court to give meaning and life to the treaty rights of American Indians," Tahdooahnippah wrote.
The Herrera v. Wyoming decision overruled a previous case, Ward v. Race Horse, which involved the Shoshone-Bannock Tribes and a condition within the Treaty of February 24, 1869. That case was overruled before in the Minnesota v. Mille Lacs Band of Chippewa Indians case.
"The Court expressly overruled its prior precedent in Race Horse, solidifying its 1999 decision in Mille Lacs as the controlling case concerning the effect of statehood on pre-existing treaty rights," Tahdooahnippah says.
This Wyoming case adds to the treaty rights record for Associate Justice Neil Gorsuch, who tipped the 5-4 vote. He was appointed by President Donald J. Trump after Antonin Scalia died.
Gorsuch voted in favor of the Yakama Nation treaty rights in Washington State Department of Licensing v. Cougar Den, Inc. in March.
He wrote the concurring opinion with Justice Ruth Bader Ginsberg.
"Herrera (along with Cougar Den) are also remarkable in the willingness of Gorsuch and Ginsberg to join the majority opinions upholding treaty rights. Gorsuch, Trump’s appointee to fill the late Justice Scalia’s seat, has marked himself as a friend and ally of American Indian tribes, a label that would unlikely have been applied to his predecessor. Ginsberg has often been skeptical of applying some attributes of sovereignty to tries, such as sovereign immunity, but appears more sympathetic to upholding the promises made in treaties with tribes. Also, Justice Sotomayor continues to be a strong voice on the Court for American Indian rights.," said Tahdooahnippah.
Lillian Alvernaz, Indigenous justice legal fellow with the ACLU of Montana, released a statement on the court’s ruling.
“This ruling is a huge win for Clayvin Herrera, the Crow Tribe and tribes across the country that entered into treaties with the federal government,” Alvernaz said. “On a practical level, this means that members of the Crow Tribe can continue to hunt on unoccupied lands like the Bighorn National Forest to provide sustenance for their families and children. This is especially important for the well-being and health of the Tribe because access to healthy food on the reservation is limited.”
“More broadly, through this decision, the Supreme Court held the federal government accountable to its treaty obligations and affirmed tribal sovereignty. Throughout the history of colonization, tribes have upheld their end of treaties while the federal government has consistently fallen short of its obligations,” Alvernaz said. “We’re hopeful that this ruling marks a new day, one where the federal government lives up to its treaty obligations and recommits to the important principles of tribal sovereignty and self-determination of tribes in the United States.”
The National Congress of American Indians applauded the decision.
“Once again, the Supreme Court has affirmed that treaty rights are the supreme law of the land, and they continue in perpetuity unless expressly repealed by an act of Congress,” said President Jefferson Keel.
Crow Nation said they will release a statement soon.
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