Another tribal treaty rights dispute looms on the Supreme Court's docket

Tuesday, January 16, 2018

The U.S. Supreme Court could soon be delivering another jolt to Indian Country, as another treaty rights case is looming on the horizon.

Clayvin Herrera, a citizen of the Crow Tribe, was prosecuted by Wyoming for a hunt that took place in the Bighorn Mountains. He argues that the state lacked jurisdiction because the area, despite being off the reservation, is covered by an 1868 treaty with the federal government.

"This case presents an important question of federal law that has divided the lower courts and affects the livelihoods of thousands of Native Americans," Herrera's attorney wrote in petition to the Supreme Court last October.

The petition in Herrera v. Wyoming has indeed attracted significant attention. The Crow Tribe is supporting the appeal and so are a group of Indian law professors, along with Crow citizens and experts in Montana.

The case is being closely watched elsewhere in Indian Country too. The Shoshone-Bannock Tribes, based in neighboring Idaho, are a signatory to a treaty that contains similar provisions for hunting off the reservation, Chairman Nathan Small pointed out.

“It doesn’t just include the Crow Tribe," Small said last October, during the annual convention of the National Congress of American Indians.

"We're very concerned that this case could have a detrimental effect not only with the Shoshone-Bannock Tribes, but I think with a lot of other tribes," Small said, adding that he was fearful the Supreme Court could hand down a "bad decision."

But even though the Supreme Court has heard from interests on both sides of the matter, the justices want more information. In a January 8 order, they asked the Department of Justice for its views, thus delaying resolution of Herrera's petition for at least a couple more months.

"Certainly a lot of tribes have off-reservation hunting and fishing rights,” observed attorney Joel Williams of the Native American Rights Fund during NCAI's meeting last year.

NARF co-authored the brief submitted by the Crow Tribe and Williams said NARF expects to work with other advocates to ensure the Supreme Court gets a "full presentation" about off-reservation treaty rights if the case ends up being accepted.

"We’re all in the same boat so we've got to work together to get the best results we can," John Echohawk, NARF's longtime executive director, said at the NCAI convention.

Historically, off-reservation treaty rights have posed problems for the nation's highest court. The last major case on the issue was Minnesota v. Mille Lacs Band of Chippewa Indians.

In the 1999 decision, the court affirmed the off-reservation fishing rights of the Mille Lacs Band of Ojibwe in Minnesota. But the vote was 5 to 4, indicating there is some resistance to the premise that tribes can exercise off-reservation treaty rights, independent of state jurisdiction.

"To be sure, Indians do not have absolute freedom from state regulation of their off-reservation activities," Justice Clarence Thomas wrote in his dissent. "Indeed, the general rule is that the off-reservation activities of Indians are subject to a State's nondiscriminatory laws, absent express federal law to the contrary."

The court's makeup has changed significantly since the 1999 decision. William Rehnquist, the chief justice at the time, and Antonin Scalia, who also went against the tribe, have since passed on.

But Justice Thomas and Justice Anthony Kennedy, who was also part of the 1999 bloc against the tribe, remain on the court. They have been joined by two conservative-leaning allies -- Chief Justice John G. Roberts Jr. and Justice Samuel Alito.

Since Roberts replaced Rehnquist on the court in 2005, tribal interests hit a remarkable losing streak. Between 2006 and 2016, they lost nine out of 11 cases.

Of the five justices who sided with the Mille Lacs Band, only Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer remain on board. They have been joined by two liberal-leaning allies -- Justice Sonia Sotomayor and Justice Elena Kagan.

That leaves the court at a theoretical deadlock should the Herrera case be accepted. A big unknown is Justice Neil Gorsuch, who is the newest member of the court.

Gorsuch boasts an extensive -- and largely favorable -- record in Indian law, and his experience as a judge on a federal appeals court earned him praise from tribes and their advocates. He joined the court last April, when no Indian law cases were on the docket.

A month later, the court accepted Patchak v. Zinke. Oral arguments took place last November, and the outcome will determine whether Congress can protect tribes from certain kinds of litigation.

The court has since agreed to hear Upper Skagit Indian Tribe v. Lundgren, whose outcome will determine whether a property dispute can proceed without the involvement of the Upper Skagit Indian Tribe. A date for arguments has not yet been set.

And just last week, the court granted a petition in Washington v. U.S., a closely-watched treaty case from Washington. Tribes fear the outcome could end up limiting the state's role in protecting salmon runs. A date for arguments has not been set either.