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Gorsuch Joins Liberals in Win for Indian Tribe (2)

May 20, 2019, 2:19 PMUpdated: May 20, 2019, 7:02 PM

A member of an American Indian tribe won his U.S. Supreme Court case May 20 that was closely watched by tribes and states across the country as well as hunting, ranching, and wildlife groups.

Justice Neil M. Gorsuch joined the four Democratic-appointees in the 5-4 decision by Justice Sonia Sotomayor, finding the Crow tribe’s treaty hunting right that pre-dated Wyoming statehood still allows the tribe to hunt there today.

This is the second time this term Gorsuch has joined the more liberal bloc of the court in a win for an Indian tribe. His nomination to the high court was supported by tribal groups.

The win for Clayvin Herrera, “along with the Court’s earlier case in Cougar Den, mark a reinvigorated willingness of the Court to give meaning and life to the treaty rights of American Indians,” said Dorsey & Whitney partner Forrest Tahdooahnippah, referring to the other American Indian case this term where Gorsuch joined the liberals.

Fighting his Wyoming state convictions for hunting violations, Herrera argued that a 19th century treaty between the tribe and the federal government allowed him to hunt there.

When the tribe signed the treaty, it had land in present-day Montana and Wyoming. It gave up over 30 million acres in exchange for certain promises from the federal government, including “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts,” Sotomayor noted.

The Jan. 8 argument at the high court was over whether that hunting right still exists today. Backed by the Trump administration, Herrera argued it does.

The majority of the Supreme Court agreed, rejecting Wyoming’s argument that the state’s admission to the U.S., which happened after the treaty was signed, knocked out the tribe’s hunting right found in the treaty.

In ruling for Herrera, the high court said that an 1896 case that the state relied on for that argument, Ward v. Race Horse, is no longer good law “to the extent it held that treaty rights can be impliedly extinguished at statehood.”

The dispute arose in 2014, when Herrera and fellow Crow tribe members were hunting on their reservation in Montana. They followed elk that crossed into the Bighorn National Forest in neighboring Wyoming, shot the elk there, and took the meat back home.

The decision is a “huge win for Clayvin Herrera, the Crow Tribe and tribes across the country that entered into treaties with the federal government,” said Lillian Alvernaz, Indigenous Justice Legal Fellow with the ACLU of Montana.

“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,” Alvernaz said. “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, she said, “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,” she 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.”

Herrera’s lawyer who argued the case, Kirkland & Ellis partner George W. Hicks Jr., said they’re “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.”

The Wyoming attorney general’s office and the Justice Department didn’t immediately respond to requests for comment on the decision.

State Could Still Win

Sotomayor noted two ways in which the win for Herrera is limited.

First, she wrote, the ruling that the Bighorn National Forest isn’t categorically “occupied” doesn’t mean that all areas within the forest are unoccupied. So Wyoming can still argue that the place where Herrera hunted “was used in such a way that it was ‘occupied’ within the meaning of the 1868 Treaty,” Sotomayor wrote.

The justice also observed that Wyoming can still press the argument that “the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation.” The high court sent the case back to Wyoming state court for further litigation which could resolve these issues.

‘Wasted Ink': Dissent

But Sotomayor’s opinion “takes a puzzling course,” Justice Samuel A. Alito Jr. wrote in a lengthy dissent. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Brett M. Kavanaugh.

He said Crow tribe members could still be precluded from asserting the treaty right for reasons Sotomayor’s opinion didn’t address.

So the majority’s decision to “plow ahead” on the treaty interpretation issue, Alito wrote, “is hard to understand, and its discourse on that issue is likely, in the end, to be so much wasted ink.”

The case is Herrera v. Wyoming, U.S., 17-532, vacated, remanded 5/20/19.

(Adds snapshot, detail on majority opinion, dissent, comment from Tahdooahnippah, Hicks, Alvernaz.)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at