Are members of Native American Tribes permitted to hunt off of a reservation? What considerations must states make?
At the start of this week, the Supreme Court published an
opinion in the case Herrera v. Wyoming. Gabby Hoffman’s District
of Conservation podcast featured this case and a brief discussion regarding
the facts of the case as well as some of the implications it may have for
hunting and other states.
Some Supreme Court cases are fairly straightforward. They present constitutional questions like
this, “is this expressive conduct a type of speech protected by the first
amendment.” It is also fairly easy to answer that question through history,
case law, and legal reasoning.
Herrera v. Wyoming is multifaceted, but all of it is worth our time.
Here is a summary from SCOTUSblog,
Wyoming convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on “unoccupied” lands. The lower courts had reasoned that an earlier decision of the U.S. Court of Appeals for the 10th Circuit, Crow Tribe of Indians v. Repsis, which held that the tribe’s treaty right was abrogated when Wyoming became a state, precluded Herrera from arguing that the treaty right was still valid. In an opinion by Justice Sonia Sotomayor, the Supreme Court disagreed.
Here are some of the issues in this case:
What is the status of
the treaty rights in relation to Wyoming statehood?
One of the more interesting aspects of this case is what’s
known as the Equal Footing Doctrine. Any state that is admitted into the Union
is granted the same rights and authority that the original thirteen colonies
had. Alito’s dissent says the following
regarding prior case law Ward v. Racehorse:
The Court held that Wyoming’s admission necessarily ended the Tribe’s hunting right because otherwise the State would lack the power, possessed by every other State, “to regulate the killing of game within [its] borders.” Ibid. Limiting Wyoming’s power in this way, the Court reasoned, would contravene the equal-footing doctrine, which dictates that all States enter the Union with the full panoply of powers enjoyed by the original 13 States at the adoption of the Constitution. Ibid. Under this rationale, the Act of Congress admitting Wyoming could not have preserved the hunting right even if that had been Congress’s wish.
As we will see later, that is constrained by the new
reasoning in another case that the majority opinion relies on.
Was the land occupied
In case law, sometimes the court has to quibble over the
definitions of simple words like “use.” Here, the treaty language, and the
right associated with it, hinges on the understanding of whether the land is
occupied or not. If the land is
occupied, then the right ends. If the
land is unoccupied then the right remains.
There is an interesting exchange between Chief Justice Roberts and the
John G. Roberts, Jr. Counsel, you are — for the government, you are walking a really thin tightrope here.
You’re saying that in terms of whether the land is occupied, it depends on the real question whether there are settlers there, whether there are people there. And yet you say when it comes to the Bighorn National Forest or park, you say, well, maybe it’s occupied if we, the government, say we don’t want people coming on here. It seems to me that the test has to be the same for the United States’ property at Bighorn and for the other property in Wyoming.
Frederick Liu I — I think that’s right, Mr. Chief Justice.
We’re not asking that a different test be applied to the federal government.
Our test for whether land is occupied is whether that land has been settled. Now it can be settled —
John G. Roberts, Jr. Has been settled?
Frederick Liu It can be settled —
John G. Roberts, Jr. The whole point of Bighorn is that you don’t want that land settled.
Frederick Liu And — and — and that — that’s true.
The — the — by designating the land as a national forest, the federal government has prevented private settlement. What we’re saying is that there are things the federal government can do, just like private settlers can do, that can result in the land being occupied.
We too can build buildings, roads, campsites, recreation areas.
John G. Roberts, Jr. Well, how much is enough? I mean, if you have the little — you know, a little shed for the ranger, does that allow you to say, well, these, you know, 100,000 acres are occupied?
Frederick Liu No, we wouldn’t — we wouldn’t say that — that putting a shed in one place occupies that much land.
I think a — a good piece of guidance is our regulation, which we cite in our brief, which prohibits discharge of a firearm within 150 yards of a building or a home.
And so we — we would consider the area —
John G. Roberts, Jr. So you occupy the land if nobody can fire a gun in it?
Frederick Liu No, it’s — it’s 150 yards around a — a campsite, a building, a residence, or other occupied area.
So we would — we would take the — the development of the land as sort of the anchor point and then look around 150 yards, and that would be the land —
John G. Roberts, Jr. Just so I understand, so at 151 yards, Mr. Herrera could take an elk?
Frederick Liu At a hundred and — correct. I mean, there has to be some line that we draw between land that’s occupied and unoccupied.
I — I think there is some burden on the hunter to know where he or she can hunt.
And I think seeing a building 150 yards away is not too much to ask.
Roberts’ hypothetical is funny because this is the problem with deciding these types of cases. The treaty language provides no meaning to the term “occupied.” It’s like Scalia’s conundrum of defining “undue burden. ” A lawyer’s job is to understand the law, but the law does not always define terms. That is why many decisions ought to be left to the political realm.
Yet even when one judge is unable to find a meaning, another
can assemble a convincing historical argument to support a certain reading of a
term. Which is why Sotomayor’s opinion
does conclude that the land is in fact unoccupied.
Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created. Construing the treaty’s terms as “‘they would naturally be understood by the Indians,’ ” Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676, it is clear that the Tribe would have understood the word “unoccupied” to de-note an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty’s text. For example, the treaty made the hunting right contingent on peace “among the whites and Indians on the borders of the hunting districts,” 15 Stat. 650, thus contrasting the unoccupied hunting districts with areas of white settlement. Historical evidence confirms this reading of “unoccupied.” Wyoming’s counterarguments are unavailing.
But it is also interesting unoccupied land is still subject
to state law. The solicitor general said
this, “So, here, we’re talking about a
national forest land. And, by statute, the state returns — retains
jurisdiction over persons in this particular national forest.“
This furthers the position of Wyoming in future litigation
if they have to address the extent of their power in regulating wildlife among tribal
Was the first issue
decided previously in lower court?
arguments, Justice Alito repeatedly raised questions regarding the ability
of Herrera to even file suit. The idea
was that the 10th circuit had previously addressed the issue of Crow
Tribe treaty rights in Crow Tribe v.
Repsis. Alito pressed that the
doctrine of issue preclusion would prohibit Herrera from relitigating an issue
that had already been decided.
Essentially, a ruling that decided an issue for the Crow Tribe bound
Herrera as well as a member of the Tribe.
Sotomayor says this,
Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming’s statehood. Even when the elements of issue preclusion are met, an exception may be warranted if there has been an intervening “ ‘change in [the] applicable legal context.’ ” Bobby v. Bies, 556 U. S. 825, 834. Here, Mille Lacs’ repudiation of Race Horse’s reasoning—on which Repsis relied—justifies such an exception
What implications are
there for state hunting regulations?
When I discussed this with Gabby, the main concern that she raised was that this case might affect hunting, conservation, and the ability of states to effectively regulate wildlife. While the description of what Herrera did is certainly unsettling, I think that the court’s reliance on Minnesota v. Mille Lacs (pdf page 316) actually assuages the fears that Herrera v. Wyoming may lead to rampant poaching, enshrined by this new case law. Here’s why… In Mille Lacs, the court decided whether the Chippewa Indians could fish on the Great Lakes, presumably on Lake Superior since the case implicated Minnesota, Wisconsin, and Michigan. Justice O’Connor’s majority opinion in Mille Lacs said this,
But this Court’s cases have also recognized that Indian treaty-based usufructuary [land use] rights do not guarantee the Indians “absolute freedom” from state regulation. Oregon Dept. of Fish and Wildlife v. Klamath
We have repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation. See Puyallup Tribe v. Department of Game of Wash.,391 U. S. 392,398 (1968);Washington v. Washington State Commercial Passenger Fishing Vessel Assn.,443 U. S., at 682;Antoinev.Washington, supra,at 207–208. This “conservation necessity” standard accommodates both the State’s interest in management of its natural resources and the Chippewa’s federally guaranteed treaty rights. Thus, because treaty rights are reconcilable with state sovereignty over natural resources, statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.
This section provides the clearest picture of how cases may
go forward. The Court in Herrera opted against addressing this
Justice Sotomayor’s opinion says this,
Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation,” an issue not reached by the appellate court. The Court also does not address the viability of the State’s arguments on this issue.
But it’s reliance on Mille
Lacs seems to indicate that lower courts will be bound to permit many
regulations imposed by states. When we
look at Justice Alito’s dissent, we get an idea of what Herrera did and we see
why the state of Wyoming and conservationists are justifiably concerned. Gabby’s podcast only mentions that Herrera
killed a bull elk out of season, but that is simply what he was cited for.
During the winter of 2013, Herrera, who was an officer in the Crow Tribe’s fish and game department, contacted Wyoming game officials to offer assistance investigating a number of poaching incidents along the border between Bighorn and the Crow Reservation.3 After a lengthy discussion in which Herrera asked detailed questions about the State’s investigative capabilities, the Wyoming officials became suspicious of Herrera’s motives. The officials conducted a web search for Herrera’s name and found photographs posted on trophy-hunting and social media websites that showed him posing with bull elk. The officers recognized from the scenery in the pictures that the elk had been. Such cooperative law enforcement is valuable because the Crow Reservation and Bighorn National Forest face one another along the border between Montana, where the Crow Reservation is located, and Wyoming, where Bighorn is located. Supra, at 3. The border is delineated by a high fence intermittently posted with markers.
7 Cite as: 587 U. S. ____ (2019) ALITO, J., dissenting killed in Bighorn and were able to locate the sites where the pictures had been taken. At those sites, about a mile south of the fence running along the Bighorn National Forest boundary, state officials discovered elk carcasses. The heads had been taken from the carcasses but much of the meat was abandoned in the field. State officials con-fronted Herrera, who confessed to the shootings and turned over the heads that he and his companions had taken as trophies. The Wyoming officials cited Herrera for hunting out of season.
The majority opinion claims that the hunting right must
remain since the Crow tribe subsistence hunts, meaning they live off of what
they hunt. That sounds like a far cry
from a game warden killing multiple elk, taking the heads, and leaving the
Since Wyoming simply asserted that the treaty rights
expired, this new ruling will require further adjudication in lower courts as
Wyoming attempts to regulate hunting pursuant to the renewed treaty
rights. My guess is that Herrera may
still be liable because of the reasoning in Mille
Lacs. I doubt it will result in rampant poaching by Native Americans.
The news about this case right now is that a conservative justice sided with the liberal wing of the court. Both Gorsuch and Kavanaugh have had several cases where they ended up on opposite sides. This is an instance where Gorsuch sided with the liberals. But it should be no surprise since this is Gorsuch’s former circuit. He may actually be more knowledgeable in this arena then other justices. I also think that this case is not particularly partisan. The traditional 5-4 split may just be a coincidence.
I’ve defended Kavanaugh’s incidental agreement with the
liberals before and I’ll defend Gorsuch here.
When I first heard about the case, my first thought was that it seemed
sketchy for the treaty right to terminate upon statehood. It seemed like a bait and switch where the
federal government says “here is this land you can hunt on” and then decides
that the right will end, without warning, without discussion or agreement from
the tribe, when a territory becomes a state.
It makes sense to want an explicit termination of the treaty right if
that was congress’ intent.
Gabby’s podcast brought up two more points. The first is that the tribes regulate hunting
on the reservations. It would follow
logically that if one were to violate hunting regulations, one would seek to do
it where there is some plausible legal defense.
So Native American poachers would prefer to poach on US land where there
is the possibility of a treaty exemption.
She also notes that many agencies supported Wyoming in this case. She points out that hunting regulations are
complicated enough as it is when dealing with the balance between state and
federal land. To throw in tribal rights
increases the difficulty with which state conservation authorities must carry
out their job.
And just as Gabby concluded her talk on the subject, we really don’t know how this changes hunting out west. There are bound to be more cases on similar issues. We may get cases that diverge significantly from Herrera. As SCOTUSblog points out, this case “may signal an emerging coalition in favor of the rights of Native nations.”