Supreme Court Decision Cements Treaty rights


On May 20, the Supreme Court issued its decision in Herrera v. Wyoming. Relying on its decision in Minnesota v. Mille Lacs Band, the Court held that an Indian hunting right secured in an 1868 treaty with the Crow Tribe was not revoked by Wyoming’s admission to the Union or by the creation of the Big Horn National Forest.
The Mille Lacs Band prepared and filed an amicus brief in the case on behalf of 13 tribes in Minnesota and Wisconsin and the Great Lakes Indian Fish and Wildlife Commission. The Court’s decision further cements the Court’s 1999 decision in the Mille Lacs case as the law of the land.

Clayvin Herrera, a member of the Crow Tribe, was cited in 2014 for hunting out of season in Bighorn National Forest when his hunting party followed elk that crossed from their Montana reservation into the national forest in Wyoming. He received a suspended prison sentence, a fine, and a three-year hunting ban. A Wyoming appeals court upheld the conviction, and the state's Supreme Court left the ruling in place.

Justice Sotomayor wrote the majority opinion in which Justices Ginsburg, Breyer, Kagan, and Gorsuch joined.
The Crow Tribe 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."

"[D]espite the apparent importance of the hunting right to the negotiations," Sotomayor wrote, "Wyoming points to no evidence that federal negotiators ever proposed that the right would end at statehood. This silence is especially telling.”

Herrera’s lawyer, George Hicks, said, "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."

The Supreme Court heard the case in January.
Justice Alito wrote a dissenting opinion in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined. The dissenting justices did not question the result in the Mille Lacs case but read it somewhat more narrowly than the majority.