SCOTUS and the Future : Herrera v. Wyoming and the Scope of Tribal Treaty Rights Monte Mills Associate Professor and Co-Director, Margery Hunter Brown Indian Law Clinic Alexander Blewett III School of Law University of Montana monte.mills@umontana.edu Colette Routel Director, Indian Law Program and Professor of Law Mitchell Hamline School of Law colette.routel@mitchellhamline.edu
Herrera v. Wyoming, 17-532 Petition for Cert filed October 25, 2017 Cert Granted June 28, 2018 Question Presented: Whether Wyoming s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians 1868 federal treaty right to hunt on the unoccupied lands of the United States, thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. Argued January 8, 2019 Decided.?
Understanding Herrera and its (potential) import Treaties of the Great Peace Commission Race Horse and its context Repsis and its shortcomings Mille Lacs and its ambiguities Wyoming s prosecution of Mr. Herrera History of the Bighorn National Forest
Treaties of the Great Peace Commission: Treaty with the Crows (May 7, 1868) Council at Ft. Laramie, November 12, 1867: We desire to set apart a tract of your country as a home for yourselves and children forever, upon which your great Father will not permit the white man to trespass. We wish you to make out a section of country that will suit you for this purpose. When that is set apart, we desire to buy of you the right to use and settle the rest, leaving to you however, the right to hunt upon it as long as the game lasts. -Commissioner Taylor
Treaty with the Crows (May 7, 1868) Council at Ft. Laramie, November 13, 1867: There is plenty of buffalo, deer, elk, and antelope in my country. There is plenty of beaver in all the streams. There is plenty of fish too. I never yet heard of any of the Crow Nation dying of starvation. I know that the game is fast decreasing, and whenever it gets scarce, I will tell my Great Father. That will be time enough to go farming. - Chief Blackfoot
Treaty with the Crows (May 7, 1868) ARTICLE 4. The Indians herein named agree, when the agency-house and other buildings shall be constructed on the reservation named, they will make said reservation their permanent home, and they will make no permanent settlement elsewhere, but they shall have 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.
Treaty with the Crows (May 7, 1868) Courtesy: Little Big Horn College Library
Treaty with the Eastern Band Shoshoni and Bannock, July 3, 1868 Upon this reservation [the great father in Washington ] wishes you to go with all your people as soon as possible, and to make it your permanent home, but with permission to hunt wherever you can find game. In a few years the game will become scarce and you will not find sufficient to support your people. You will then have to live in some other way than by hunting and fishing. -General Augur, Fort Bridger, July 3, 1868
Treaty with the Eastern Band Shoshoni and Bannock, July 3, 1868 ARTICLE 4. The Indians herein named agree, when the agency house and other buildings shall be constructed on the reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have 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.
Disturbances in Jackson Hole Country, Wyoming 1895 Their treaty must be construed therefore as to mean that these Indians should have the right to hunt on unoccupied lands of the United States where game may be found and at any and all times of the year. The laws of the State of Wyoming which prohibit hunting within that State for certain kinds of game during certain months must be construed in the light of the treaty granting rights to these Indians to hunt on the unoccupied lands within the State, so far as they apply to the Shoshone and Bannock Indians. It is not competent for the State to pass any law which would modify, limit, or in any way abridge the right of the Indians to hunt as guaranteed by the treaty. - 1895 Report of the Commissioner of Indian Affairs, at 73
Disturbances in Jackson Hole Country, Wyoming 1895 Race Horse did not arise from the killing of elk by Indians; but from the actions of settlers who got away with murder. Non-Indian settlers determined to deny the Indians their federal rights killed Bannock Indians to get their opposition to those rights to court. - Brief of Amicus Curiae Shoshone-Bannock Tribes of the Fort Hall Reservation in Support of Petitioner, 7-8, Herrera v. Wyoming, 17-532 (filed Sept. 11, 2018).
Ward v. Race Horse, 163 U.S. 504, 509-10 (1896) The right to hunt, given by the treaty, clearly contemplated the disappearance of the conditions therein specified. Indeed, it made the right depend on whether the land in the hunting districts was unoccupied public land of the United States. Here the nature of the right created gives rise to no such implication of continuance, since, by its terms, it shows that the burden imposed on the territory was essentially perishable, and intended to be of a limited duration.
Ward v. Race Horse, 163 U.S. 504, 514 (1896) the question whether the provision of the treaty giving the right to hunt on unoccupied lands of the United States in the hunting districts is repealed, in so far as the lands in such districts are now embraced within the limits of the state of Wyoming, it becomes plain that the repeal results from the conflict between the treaty and the act admitting that state into the Union. The two facts, the privilege conferred and the act of admission, are irreconcilable, in the sense that the two, under no reasonable hypothesis, can be construed as co-existing.
The Ten Bear Affair Race Horse did not address the Crow Treaty of 1868 Crow tribal members continued to hunt in Wyoming Federal officials recognized and respected those rights In 1989, Thomas Ten Bear charged with violating Wyoming game laws for killing an elk in the Bighorn National Forest The Crow Tribe and Ten Bear sought a declaration that the Tribe s treaty rights remained and prohibited Ten Bear s prosecution
Crow Tribe v. Repsis, 866 F.Supp. 520, 524 (D. Wyo. 1994) Race Horse rides again : Where the United States Supreme Court has already determined the legal issue before this court in Race Horse, where the underlying fact pattern, including the treaty language at issue, precisely matches that present in the instant case, and where Race Horse has not been expressly rejected or overruled, this court must follow the controlling decision.
Crow Tribe v. Repsis, 73 F.3d 982, 992 (10th Cir. 1995) and again: The Tribe's right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.
Crow Tribe v. Repsis, 73 F.3d 982, 992, 993 (10th Cir. 1995) Belt, suspenders, and another belt?: In addition, if the Treaty with the Crows, 1868, had reserved a continuing right which had survived Wyoming's admission, we hold there is ample evidence in the record to support the State's contention that its regulations were reasonable and necessary for conservation [and, after creation of the Big Horn National Forest, t]hese lands were no longer available for settlement. No longer could anyone timber, mine, log, graze cattle, or homestead on these lands without federal permission. Thus, the creation of the Big Horn National Forest resulted in the occupation of the land.
Minnesota v. Mille Lacs Band, 526 U.S. 172 (1999) Petitioner s question presented: Was a hunting, fishing and gathering privilege, reserved only during the pleasure of the President, temporary and precarious and therefore extinguished under [Race Horse] when Minnesota was admitted to the Union on an equal footing with the original thirteen states?
Minnesota v. Mille Lacs Band, 526 U.S. 172 (1999) Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so. [Race Horse] has been qualified by later decisions of this Court. The equal footing doctrine was only part of the holding in Race Horse, however. We also announced an alternative holding: The treaty rights at issue were not intended to survive Wyoming's statehood. The Treaty in Race Horse contemplated that the rights would continue only so long as the hunting grounds remained unoccupied and owned by the United States; the happening of these conditions was clearly contemplated when the Treaty was ratified.
Minnesota v. Mille Lacs Band, 526 U.S. 172 (1999) Rehnquist, C.J., dissenting: Today the Court appears to invalidate (or at least substantially limit) Race Horse, without offering any principled reason to do so.
Herrera v. Wyoming, No. 17-532
Herrera v. Wyoming, No. 17-532 Criminal procedure? Pre-Trial determination regarding treaty and evidentiary hearings Initial appeal and emergency petition for stay to Justice Sotomayor Any mention of treaty excluded from trial On appeal, District Court sua sponte raised preclusion and requested additional briefing Wyoming Supreme Court ducked review entirely
Herrera v. Wyoming, No. 17-532 QUESTION PRESENTED Whether Wyoming s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians 1868 federal treaty right to hunt on the unoccupied lands of the United States, thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.
Herrera v. Wyoming, No. 17-532 Choice words from Wyoming: Statehood was the moment when civilization arrived. The members of the Race Horse Court, having lived through the three decades of western expansion after the Civil War, were well-positioned to interpret the language of Article 4. This Court should adopt their conclusion that Article 4 s temporary and precarious off-reservation hunting right has expired, because their analysis was informed by more legal and historical context than the parties here could ever present.
Herrera and the future The Real Questions Presented: What s up with Wyoming? Can Race Horse still ride? When is a forest occupied? Conservation necessity?
Thoughts? Questions? Discussion? Thank you! Monte & Colette