Clayvin Herrera, in white cap, is seen here with members of his family on the Crow Reservation in Montana. Photo: Kristy Bly / World Wildlife Fund

Environment | Law | National

Supreme Court backs off-reservation treaty rights of Crow Tribe

Monday, May 20, 2019

By Acee Agoyo

WASHINGTON, D.C. -- The nation's highest court delivered a significant victory for Indian Country on Monday, ruling that citizens of the Crow Tribe can continue to exercise their rights on off-reservation treaty territory.

By a vote of 5 to 4, the U.S. Supreme Court held that the tribe did not lose its rights under the 1868 treaty simply because Wyoming became a state some two decades later.

"The Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right, nor did the 1868 Treaty expire of its own accord at that time," Justice Sonia Sotomayor wrote for the majority.

"The treaty itself defines the circumstances in which the right will expire," Sotomayor continued. "Statehood is not one of them."

Indianz.Com on SoundCloud: U.S. Supreme Court - Herrera v. Wyoming - January 8, 2019

The ruling represents a big win for Clayvin Herrera, a citizen of the Crow Tribe. He was prosecuted by the state of Wyoming for hunting in the Bighorn National Forest, just across the border from the Crow Reservation in neighboring Montana.

Herrera, who has worked as a game warden for his tribe, was convicted by a jury for taking elk off-season or without a state hunting license and of being accessory. The hunting party included other Crow citizens who were also charged with violating state law.

But the Supreme Court vacated Herrera's conviction because he wasn't allowed to present a treaty-based defense to the charges. In addition to the statehood issue, the justices determined that the existence of the federal forest does not automatically mean the tribe lost its rights there.

"Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty," Sotomayor wrote for the court.

But the decision isn't just a victory for Crow citizens. In ruling on Herrera v. Wyoming, the Supreme Court addressed a treaty rights issue that has been lingering for more than a century.

Cloud Peak in the Bighorn Mountains. Photo: Ttharp23

The majority held that Ward v. Race Horse, a case from 1896, can no longer be used to argue against a tribe's off-reservation treaty rights. That should bring some assistance to Indian Country in future battles.

"To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood," Sotomayor wrote. The Trump administration, in siding with Herrera , had called for such an outcome.

The Shoshone-Bannock Tribes, based in Idaho, are a signatory to a treaty that contains provisions for off-reservation hunting. The Southern Ute Tribe and the Ute Mountain Ute Tribe, both based in neighboring Colorado, also have an agreement that addresses off-reservation treaty rights.

“This ruling is a huge win for Clayvin Herrera, the Crow Tribe and tribes across the country that entered into treaties with the federal government," said Lillian Alvernaz, a citizen of the Sisseton-Wahpeton Oyate who serves as the Indigenous Justice Legal Fellow with the ACLU of Montana. The organization submitted a friend of the court brief in support of treaty rights.

"On a practical level, this means that members of the Crow Tribe can continue to hunt on unoccupied lands like the Bighorn National Forest to provide sustenance for their families and children," Alvernaz continued. "This is especially important for the well-being and health of the Tribe because access to healthy food on the reservation is limited."

"More broadly, through this decision, the Supreme Court held the federal government accountable to its treaty obligations and affirmed tribal sovereignty," Alvernaz concluded. "Throughout the history of colonization, tribes have upheld their end of treaties while the federal government has consistently fallen short of its obligations. We’re hopeful that this ruling marks a new day, one where the federal government lives up to its treaty obligations and recommits to the important principles of tribal sovereignty and self-determination of tribes in the United States.”

Herrera and his legal team are also celebrating. In a statement, they told Indianz.Com that they are "gratified" by the ruling.

“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,” said attorney George W. Hicks, Jr., who argued the case in D.C. on January 9.

Joining Sotomayor in the siding with treaty rights were three of the liberal leaning members of the court: Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Elena Kagan. Justice Neil Gorsuch, who was named to the court by President Donald Trump and who has one of the most extensive records in Indian law, helped deliver the crucial fight vote in support of Herrera.

The more conservative members of the court, on the other hand, were not convinced by the treaty argument. Justice Samuel Alito wrote a dissent that was joined by Chief Justice John Roberts Jr., Justice Clarence Thomas, Justice Brett Kavanaugh, another Trump nominee.

According to the minority, Herrera should be "precluded" from presenting a treaty defense in Wyoming. They pointed to the outcome in Crow Tribe of Indians v. Repsis -- a case from a lower circuit court which itself was based on Race Horse.

Though Repsis has not been overturned by the Supreme Court, Alito said the Crow Tribe's off-reservation hunting rights are "no longer in force."

"For these reasons, Herrera is precluded by the judgment in Repsis from relitigating the continuing validity of the hunting right conferred by the 1868 Treaty," Alito wrote in the dissent.

The members of the U.S. Supreme Court sit for an official portrait. Front row, from left: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row, from left: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh. Photo: Fred Schilling, Collection of the Supreme Court of the United States

The decision in Herrera v. Wyoming marks the second treaty rights victory for Indian Country. By a vote of 5 to 4, the Supreme Court in March held that citizens of the Yakama Nation are not required to pay a fuel tax to the state of Washington under a treaty signed in 1855.

That leaves Carpenter v. Murphy as the only Indian law case still left on the docket from the current term, which began in October 2018. At issue is whether the reservation of the Muscogee (Creek) Nation -- which was set aside by a treaty signed in 1866 -- continues to exist.

The outcome will determine whether Patrick Dwayne Murphy, a Creek citizen, can be prosecuted by the state of Oklahoma for a murder that occurred on an Indian allotment. He is currently on death row after being convicted in state court.

If the reservation has not been diminished, his case would be handled in the federal system like most other Indian Country criminal matters. Due to the complex and unusual nature of the dispute, experts believe the Supreme Court won't take action until the very end of the term, likely at the end of June.

Supreme Court Decision: Herrera v. Wyoming

Syllabus | Opinion [Sotomayor] | Dissent [Alito]

Supreme Court Documents: Herrera v. Wyoming

Docket Sheet: No. 17-532 | Oral Argument Transcript | Questions Presented

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