The question before the Supreme Court Tuesday is an old one. And a simple one. It basically boils down to this: Does a treaty really mean what it says?
The case, Herrera v. Wyoming, involves Clayvin Herrera, Crow Nation, who was exercising his rights under the Fort Laramie Treaty of 1868 to hunt on “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.”
Herrera had been hunting in January 2014 in the Crow Nation when they followed a herd of elk and crossed into the Big Horn National Forest in Wyoming. They killed three elk and returned home. Then Wyoming officials traveled to the reservation and cited Herrera for taking an elk without a state license and during hunting season. Herrera argued the hunt was legal under the 1868 Treaty of Fort Laramie.
One unusual twist in this case is that the lower courts adopted the state’s position without even considering the merits of the treaty. As the brief for the United States put it: “The courts below simply adopted that analysis, without considering the circumstances of this particular case or the view of the Forest Service. Indeed, the trial court had originally scheduled an evidentiary hearing “to address the meaning of the Crow Treaty and its application to the site where the elk were killed, but the court canceled that hearing after concluding that petitioner had no right to hunt under the treaty as a matter of ‘law.’ The United States had a different conclusion and is supporting the hunting rights as spelled out in the treaty.
This is where the old question gets complicated. Is a National Forest “unoccupied lands of the United States?” The Crow Tribe says yes. The United States agrees. And Wyoming says, no, not really. The state argues that the treaty rights “expired” at statehood in 1890 (Nothing like a one-way negotiation, right?)
Wyoming says the Supreme Court has already figured this out in the 1896 case, Ward v. Race Horse, involving off-reservation hunting by members of the Shoshone-Bannock Tribes. “The Crow Treaty is identical to the Shoshone-Bannock Treaty construed in Race Horse, and because Race Horse held the hunting right expired when the hunting districts disappeared at Wyoming statehood, the Crow Tribe’s off-reservation hunting right also had expired,” the state said.
But the problem is that the idea of an expiration date on treaties has another defender, the Supreme Court itself. The court ruled for the Mille Lacs Band of Ojibwe in 1999 saying that the treaties of 1850 and 1858 affirmed the right to hunt and fish on 13 million acres of public lands. This case was interesting because the dissent from Associate Justice William Rehnquist called the ruling an “apparent overruling” of the Race Horse decision. In his view, “Indians on the borders of the hunting districts” did not survive the admission of Wyoming to the Union since the Treaty right was ‘temporary and precarious.’”
During the oral arguments, Associate Justice Stephen G. Breyer asked about that very logic. "... what you have is, look, Race Horse, it says, your side, for two or three reasons, reason 1, the equal footing doctrine. Reason 2, they became a state. And if there is a reason 3, it's related to the second. Along comes Mille Lacs and it says reason 1 is no good. We think the opposite. Reason 2 is no good. We think the opposite. Reason 3, we think isn't any good either. We think the opposite. And, therefore, Race Horse doesn't bind us. Now there's -- possibly they should have added a fourth thing, and, therefore, the words Race Horse is overruled, but the Court didn't."
The court did not go that far, only what Rehnquist called a “sub silentio,” or silent reversal.
Associate Justice Brett Kavanaugh said it was the same treaty language yet “with two different results.”
Frederick Liu, assistant to the Solicitor General, argued on behalf of the United States. "We just think Race Horse itself was wrong," he said.
The government’s argument cited Rehnquist’s dissent and said “since Mille Lacs—indeed, since even Race Horse — this Court has not found a tribe’s off-reservation treaty right extinguished by a State’s admission to the Union. The Court may therefore wish to take this opportunity to overrule Race Horse explicitly.”
But the state of Wyoming argued no. “Herrera cannot avoid preclusion by arguing that the law has changed,” the state said. “Mille Lacs did not overrule Race Horse; it affirmed that “the right to hunt on the unoccupied lands of the United States”
But there are a lot of reasons to overturn Race Horse. That ruling comes from a past when the murder of American Indians was public policy. In fact the case did not come from a hunting rights dispute but one involving the murder of Bannock Indians by a mob of non-Indians from Jackson Hole. Their motivation: Protect the business interests of local hunting guides in Yellowstone Park. In a brief from the Shoshone-Bannock Tribes, it said “federal officials later found, the non-Indians had “a premeditated and pre-arranged plan to kill some Indians and thus stir up sufficient trouble to subsequently get United States troops into the region and ultimately have the Indians shut out from Jackson Hole.”
The state makes the same case today, albeit sanitized. It said that campers in the forest might be afraid because of tribal members hunting out of season. Or that only the state can manage wildlife for conservation. (Yet tribes spend a far higher percentage of tribal dollars on fish and game management than do most state governments.)
Finally, the state said the concept of “unoccupied lands” no longer fits because the court has already ruled on this issue. “Under the doctrine of stare decisis, once this Court has fully considered and decided an issue, it is not reexamined again and again,” the state maintains. Yet several justices asked what if the facts had changed? And, further, that Mille Lacs represented that change.
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports