Bloomberg Law
Jan. 8, 2019, 4:56 PMUpdated: Jan. 8, 2019, 8:23 PM

Hunting Rights Hang in Balance in High Court Tribal Treaty Case (1)

Jordan S. Rubin
Jordan S. Rubin

American Indian rights are up in the air once again after U.S. Supreme Court arguments Jan. 8, where the justices tried to figure out if tribal hunting rights from a 19th century treaty still exist.

It was the high court’s latest tangle with American Indian treaty rights this term, in a case that has tribes and states across the country bracing for its potential impact.

During the argument, several avenues and off-ramps arose for the court to latch onto in its decision, including the state’s argument that Crow tribe member Clayvin Herrera is barred from even pressing his claim in the first place.

The session also marked the second day in a row that Justice Ruth Bader Ginsburg missed an argument to recover from cancer surgery. Before this week, the 85-year-old Clinton-appointee hadn’t missed one in decades.

She’ll still participate in the decision after reading the briefs and the argument transcript, Chief Justice John G. Roberts Jr. said in court before the argument. A ruling is expected by late June.

Trump, Land

Earlier this term, the Trump administration sided with state governments in other high court disputes from Oklahoma and Washington state.

It took Herrera’s side here, with assistant to the U.S. solicitor general Frederick Liu arguing alongside Herrera’s lawyer, George W. Hicks Jr.

The dispute arose in 2014, when Herrera and fellow Crow tribe members went 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.

Herrera was convicted in Wyoming state court of two misdemeanors for hunting violations.

Challenging his convictions on appeal, he says the tribe’s 1868 treaty with the federal government gave him the right to hunt in the Wyoming forest.

The treaty created the Crow reservation in Montana, with the tribe giving up its Wyoming land in exchange for payments, goods, and protection.

But the treaty gave the tribe hunting rights on the “unoccupied lands of the United States” that the tribe gave up “so long as game may be found thereon.”

Some of the justices questioned what it means for land to be “occupied,” but at any rate Hicks told the justices that this treaty language means Herrera should win.

But those hunting rights have since been eliminated, either when Wyoming became a state in 1890 or when the Bighorn National Forest was established in 1897, Wyoming chief deputy attorney general John G. Knepper argued.

No Preclusion: Herrera

Knepper also argued that a prior appeals court decision that already dealt with the issue bars Herrera from pressing his claim.

He pointed to a 1995 case from the U.S. Court of Appeals for the Tenth Circuit, the appeals court that covers Wyoming and other states in the region. In that case, Crow Tribe of Indians v. Repsis, the Tenth Circuit said that the tribe’s hunting rights no longer exist.

Because Repsis already decided the treaty rights issue, Herrera should be precluded from raising it now, Knepper said. “Mr. Herrera’s claims are identical to those presented 25 years ago by his sovereign on his behalf,” he said.

The state’s argument had some traction at least with Justice Samuel A. Alito Jr., who spent a fair amount of time pressing Hicks on the preclusion issue at the beginning of the hour-long session.

He asked Hicks: “Why isn’t your client bound by the judgment of the Tenth Circuit in Repsis and, in particular, its disposition of the question whether the land is occupied?”

Hicks said the state didn’t raise the issue properly here.

But after some technical volleys back and forth between Hicks and Alito, it became clear that not all of Alito’s colleagues were preoccupied with preclusion.

“Do we have to get into any of this issue preclusion stuff at all?” Justice Neil M. Gorsuch asked, suggesting sidestepping implications of the decision from the appeals court he sat on before his Supreme Court appointment.

Race Horse Remains?

Discussion turned to one of the cases Repsis relied on: an older Supreme Court case called Ward v. Race Horse, decided in 1896.

Wyoming’s admission to the union undid hunting rights for another tribe with a similar treaty, the justices said in that older case.

But Race Horse has since been called into question, Hicks said, pointing to 1999 Supreme Court case Minnesota v. Mille Lacs Band of Chippewa Indians.

Yet the Supreme Court technically didn’t overrule Race Horse in the newer case, Justice Brett M. Kavanaugh said. “And the language in the Race Horse treaty is the exact same language at issue in this treaty,” he said.

“So why shouldn’t we have the same result here that we had in Race Horse?” he asked Hicks.

Justice Sonia Sotomayor shared Kavanaugh’s question. “The language is nearly identical” in the two treaties, she said. “Wouldn’t we have to say that Race Horse is overruled to come to a different conclusion?”

Hicks said the court just needs to “apply the reasoning that you set forth, the new reasoning in Mille Lacs, to this Crow Tribe treaty, which has never been before the Court.”

Gorsuch offered a seemingly simple solution. “What do you say to the suggestion that we just be done with Race Horse and overrule it?” he asked Liu.

“The government would be fine with that,” Liu said.

The case is Herrera v. Wyoming, U.S., 17-532, argued 1/8/19.

(additional reporting, background, links throughout )

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