FIVE-OF-FOUR decisions usually indicate that the Supreme Court is divided along ideological lines. In the term that ended last June, 14 of the 19 cases resolved by a 5-4 vote pitted the five Republican-appointed justices against the four Democratic picks. Sometimes there are unexpected sequences. Last year, Judge Neil Gorsuch joined the liberal justices against his fellow conservatives in an immigrant rights case. He did the same two months ago in a decision that favored the Yakama Nation in Washington state. On May 20, Judge Gorsuch went left again to stand up for Native American rights. The decision, Herrera v. Wyoming, honoring the 1868 treaty between the Crow Tribe (the Apsáalooke in their language) and the federal government.
The story behind the case began in the winter of 2013, when Clayvin Herrera and a group of Crow hunters found a small herd of elk from Montana across the Wyoming state line into the Bighorn National Forest. After killing three animals, Mr. Herrera and his fellow hunters carried the meat back to the reservation in Montana to feed their families and other members of the tribe. Wyoming soon accused and convicted Mr. Herrera of illegal hunting, but the crow member believed he was well within his rights under the Fort Laramie Treaty at the time of the Rev. – construction. In exchange for ceding 30m acres of land to the United States, the Crow would enjoy “the right to hunt on the vacant lands of the United States as long as game is found thereon, and as long as that there may be peace between the white people and the Indians. on the boundaries of the hunting grounds.”
The lower courts accepted this argument, telling Mr. Herrera that the treaty was invalid. Ward v Race Horse, Supreme Court ruling since 1896. Race Horse argued that Idaho’s Bannock tribe had lost its hunting rights on federal land when Wyoming gained statehood. Part of being a sovereign state, the Supreme Court reasoned, is that it has control over wildlife and game within the state’s borders. But a hundred years later, the Supreme Court walked away from Race Horse. In Minnesota v Mille Lacs Band of Chippewa Indians (1999), a 5-4 liberal majority, concluded that Aboriginal treaty rights are not “terminated by statehood” after all.
In a majority opinion by Justice Sonia Sotomayor, the Supreme Court was responsible Mille Lacs to the crow’s right to pursue game on federal land. Herrera it started with a little history. “The Crow Tribe lived in what is now present-day Montana more than three centuries ago,” Justice Sotomayor wrote. “The tribe was nomadic, and its members hunted game for a living”. After the treaty of 1868, when the Wyoming Territory was established, Congress promised that the new designation would not “impair the rights of person or property now belonging to the Indians in that territory, provided” and that these rights would not be extinguished by contract”. The Herrera the majority had to face it too Crow Tribe of Indians v Repsis, a 1996 ruling by the Tenth Circuit Court of Appeals held that because Bighorn National Park was not “vacant” within the meaning of the 1868 treaty, the Crow had no right to take their hunting rifles there.
Justice Sotomayor dismissed Repsis by clarifying it Race Horse replaced Mille Lacs. The 1999 ruling had “consumed both lines of reasoning in race horse”, the court held, and “The critical inquiry for the treaty termination analysis is whether Congress has specifically abrogated an Indian treaty right or whether a point of termination stated in the treaty itself has been satisfied”. The court’s decision in Herrera Is this, then: Without both a clear word from Congress and a clause in the treaty that explains the terms of its own dissolution, the promise of 1868 to the Crow tribe must be kept. In case of any future uncertainty, race horseThe idea that statehood means the loss of Indian rights is “abandoned,” Justice Sotomayor wrote.
Regarding the claim that the Bighorn is “no man” and therefore closed to Native American hunting, Justice Sotomayor called for more common sense. “Treaty analysis begins with the text”, she wrote, “and the terms of the treaty are interpreted as ‘the Indians would naturally understand them’.” There is no doubt that the crow “would have understood the word ‘vacant’ to denote a place uninhabited or settled by non-Indians”. Since white men were not (and are not) moving into homes in the park, the Crow would have no reason to describe it as inhabited land.
A blunt dissent from Justice Samuel Alito called the majority’s opinion “unusual.” How, he asked, could the court “plough ahead” with its interpretation of the 1868 treaty without adequately addressing the reasons for the decision in Repsis? In any case, the park is not “empty”, wrote Justice Alito, so Mr. Herrera and his fellow tribal members must hold out. The tone of the dissent strikes a note of incongruity with the plain reading of most of the treaty. Justice Gorsuch’s concurrence on the liberal interpretation provides Herrera added weight and no surprise: a Coloradan, he came to the Supreme Court from the Tenth Circuit, where he was attentive to questions of tribal jurisdiction.
