Wild ride continues as Supreme Court agrees to hear another treaty case

Thursday, June 28, 2018  

Indian Country is preparing for yet another busy season at the U.S. Supreme Court, where a political firestorm has erupted due to the retirement of Justice Anthony Kennedy.

As Republicans and Democrats battle over the next member of the court, tribes will be drafting and submitting briefs in not just one or two but three Indian law cases. The newest one was added to the docket on Thursday, a day after Kennedy stunned the political and legal establishment with his resignation announcement.

The acceptance of Herrera v. Wyoming marks the third time since October that the justices have agreed to hear a treaty dispute. But unlike the prior two cases, the Supreme Court's action, which came in an order list in the morning, might actually be beneficial for Indian Country.

That's because the justices are scrutinizing a decision that went against tribal interests. In the other two instances, one of which has already been resolved, favorable victories have been put at risk by the nation's highest court.

But that doesn't mean tribes and their advocates are in the clear. It's anyone's guess how the justices will decide Herrera because it deals with off-reservation treaty rights, an issue that has been historically troublesome for the court.

And whether or not the court has a full slate of nine members by the time it hears Herrera is an even bigger question. Though President Donald Trump and Republicans are jumping at the chance to put another conservative on the bench, Democrats are balking.

“Given the president’s attacks on due process and rule of law, we should let the people speak before we consider his next Supreme Court nominee,” Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said on Wednesday, arguing that the Senate should wait until after the November election to take action.

Regardless of the political drama, the legal wheels will keep turning. The Supreme Court's next term starts in October and that's when Herrera and the other two Indian cases currently on the docket will be argued.

At issue in Herrera is whether citizens of the Crow Tribe can exercise rights promised to them 150 years ago. A provision in their treaty, signed in May 1868, states that they "shall have the right to hunt on unoccupied lands or 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."

Clayvin Herrera, like his ancestors before him, indeed found game on unoccupied lands within the Bighorn Mountains, where he killed a trophy elk. But this being the digital age, he shared photos of his take online.

“It was a good year on the Crow Reservation in Montana,” an early 2014 post on MonsterMuleys.Com read.

The cache, which also included photos of animals taken by others in Herrera's hunting party, proved to be his downfall. Game officials in Wyoming, believing the incident did not actually take place on the reservation, started investigating.

They eventually recovered the elk head from Herrera and, this being the digital age, they tested its DNA against elk carcasses from the Wyoming portion of the Bighorns. They found an exact match, a determination which led the state to file charges against four members of the fateful Crow hunting party.

Three cases, including one against Herrera's brother, were resolved with guilty pleas. But in a test of the treaty, he went to trial and asserted that the state lacked jurisdiction because the hunt, despite being off the reservation, took place in those "unoccupied lands."

The argument was not successful. In a ruling now being reviewed by the justices, a district court in Wyoming ruled that the tribe's treaty rights did not survive the state's admission to the Union.

But since his petition has been granted, Herrera has a shot at getting the Supreme Court to overturn that decision and resolve an issue that he says "affects the livelihoods of thousands of Native Americans." And he has a powerful advocate in his corner -- the Trump administration.

At the invitation of the court, the Department of Justice submitted a brief in the case last month. Government attorneys wholeheartedly backed Herrera's interpretation of the treaty.

"The 1868 treaty did not provide for the termination of the tribe’s hunting right upon the admission of a state," the 27-page document reads. "Nor was that right repealed by Wyoming’s statehood act."

But Herrera isn't alone in his quest. His tribal government, where he has served as a game warden, is supporting the appeal and so are a group of Indian law professors, along with Crow citizens and experts in Montana.

Other interests in Indian Country are closely watching too. The Shoshone-Bannock Tribes, based in neighboring Idaho, are a signatory to a treaty that contains similar provisions for off-reservation hunting. There are other examples too.

"Certainly a lot of tribes have off-reservation hunting and fishing rights,” attorney Joel Williams of the Native American Rights Fund said last October during the annual convention of the National Congress of American Indians, where the case was discussed.

The Trump administration's stance in fact advanced an argument with huge ramifications for a lot of tribes. In their brief, government attorneys took aim at a two-decades old decision known as Crow Tribe of Indians v. Repsis.

In the 1995 ruling, the 10th Circuit Court of Appeals described the Crow Tribe's off-reservation rights as "temporary." They expired when Wyoming became a state, the decision read.

The court went further and held that "unoccupied lands" mentioned in the 1868 treaty are no longer "unoccupied" due to the creation of the Bighorn National Forest by the federal government. Herrera's hunt took place in the national forest, as did the hunt at issue in Repsis.

"In addition, although the Treaty with the Crows, 1868, reserved a right to hunt on 'unoccupied lands;' the lands of the Big Horn National Forest have been 'occupied' since the creation of the national forest in 1887," the 10th Circuit concluded. "Therefore, we hold that the tribe and its members are subject to the game laws of Wyoming."

#WayBackWednesday to May when @VP @SteveDaines & I visited Crow Nation's Absaloka mine in #Montana. #Tribal #EnergyWeek @USIndianAffairs pic.twitter.com/cvUFv1RUCl

— Secretary Ryan Zinke (@SecretaryZinke) June 28, 2017

More than 20 years after Repsis hit the books, the government's brief calls it wrongly decided because it is based on a faulty premise -- that tribal treaty rights are "irreconcilable" with state rights. And since the Wyoming district court accepted Repsis as valid in Herrera's case, that decision is "incorrect" too, Solicitor General Noel J. Francisco, an appointee of President Trump, wrote.

"The 'starting point' for interpreting a treaty 'is the treaty language itself," the brief asserts, quoting from a 1999 Supreme Court decision which upheld the off-reservation treaty rights of the Mille Lacs Band of Ojibwe.

“The treaty must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians," it continues, again quoting from Minnesota v. Mille Lacs Band of Chippewa Indians.

The nods to Mille Lacs Band are significant because it was the high court's last major foray into off-reservation treaty rights.

In the ruling, the court affirmed the off-reservation fishing rights of the Mille Lacs Band of Ojibwe in Minnesota. But the vote was 5-4, indicating 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 1999. William Rehnquist, who was the chief justice at the time, and Antonin Scalia, both of whom joined the dissent, have since passed on.

In addition to Thomas, a key player joined the dissent against the tribe. That was Kennedy, who will not be participating in Herrera because his resignation is effective July 31.

So that leaves Thomas with two reliable conservative-leaning allies -- John G. Roberts Jr., who serves as the chief justice of the court, and Samuel Alito. Both were named by Republican former president George W. Bush.

Since Roberts joined the court in 2005, tribal interests hit a remarkable losing streak. Between 2006 and 2016, they lost nine out of 11 cases, according to NARF, which which maintains the Tribal Supreme Court Project along with NCAI.

Of the five justices who sided with the Mille Lacs Band back in 1999, only Ruth Bader Ginsburg and Stephen G. Breyer remain on board. They have been joined by two liberal-leaning allies -- Sonia Sotomayor and Elena Kagan.

That leaves Neil Gorsuch, who is the newest member of the court, as the big unknown.

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 in April 2017, when no Indian law cases were on the docket.

Then the wild ride started as the court began adding Indian law cases to the docket. Gorsuch's record has been mixed so far.

In Patchak v. Zinke, Gorsuch went against tribes as the majority held that Congress can protect tribal homelands from litigation. The split was 6-3, with Kennedy also going against Indian Country's interests in the decision, handed down on February 27.

But the outcome in Upper Skagit Indian Tribe v. Lundgren showed another side of Gorsuch. He wrote the 7-2 majority ruling and clarified that one of the court's precedents cannot be used to abrogate tribal sovereign immunity.

The unusual result of Washington v. U.S., a treaty rights case, however, shows how tribes often come perilously close to defeat at the nation's highest court.

Just a couple of weeks before oral arguments on April 18, Kennedy recused himself because he had participated in an earlier phase of the long-running dispute, which dates to the 1970s, when he served on the 9th Circuit Court of Appeals.

With Kennedy out of the picture, the remaining justices deadlocked 4-4, meaning they were unable to determine whether the state of Washington should be held responsible for failing to fix culverts that prevent salmon from returning to tribal fishing grounds. The tie, revealed on June 11, represented a victory for tribes because it affirmed a lower court victory in their favor.

But since the Supreme Court did not reveal which justices were for or wee against tribes in the case, Gorsuch's stance remains a mystery.

With or without a ninth colleague, the Supreme Court will have a busy season once the justices return to work in October. In addition to Herrera, the Supreme Court will be hearing Washington State Department of Licensing v. Cougar Den, another closely-watched treaty rights case, as well as Royal v. Murphy, a high-profile reservation boundary dispute.

But unlike Herrera, the Trump team is not being helpful at all. His Department of Justice waited more than seven months to submit a brief in Cougar Den and it wasn't pretty.

The brief, submitted last month, argued that the state of Washington can impose a fuel tax on citizens of the Yakama Nation without violating the 1855 Yakama Treaty. The state's highest court had concluded otherwise so the Trump team went out of its way to argue that the decision was wrong.

The government's stance must have been convincing. The Supreme Court agreed to hear the case on Monday.

The Trump team also went out of its way by submitting a brief in Royal without being asked for one. Government attorneys argued that the reservation of the Muscogee (Creek) Nation has been diminished by Congress despite a ruling by the 10th Circuit of Appeals to the contrary.

Again, the brief appeared to be convincing. The Supreme Court agreed to hear the case last month.

Jam out with the justices! Listen to lawyers! No, really, these are important U.S. Supreme Court cases.

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