Native Sun News Today: Supreme Court decision impacts tribal sovereignty

Monday, June 3, 2019

Supreme Court ruling important to all tribes

Herrera hunting case ongoing continues battle between state jurisdiction and tribal sovereignty

By James Giago Davies

Native Sun News Today Contributing Editor

nativesunnews.today

RAPID CITY— Five years ago the state of Wyoming fined Montana resident Clayvin Herrera, an enrolled member at Crow Agency, $8,080 for illegally hunting elk in Wyoming’s Bighorn National Forest.

On May 20, the United States Supreme Court (SCOTUS), having heard Herrera’s case earlier this year, ruled in favor of Herrera, by a vote of 5-4. Sorting out the rationale for their decision, and the implications of that decision, has not been comprehensively covered by media, but it is an important decision for all of Indian country, with a direct impact on the ongoing battle between state jurisdiction and tribal sovereignty.

Contrary to what many people believe, sovereignty is not mentioned in any treaty. It is defined and asserted through court rulings. Because future court rulings can render past court rulings invalid, sovereignty is always a court ruling away from being reduced, perhaps one day, even eliminated.

States have shown a persistent pattern of attempting to increase their jurisdiction over tribal lands, by reducing treaty rights on state controlled land mainly through state friendly court rulings, creating an adversarial relationship of mistrust, and occasionally, open conflict, with tribes and individual tribal members.

Supreme Court Audio: Herrera v. Wyoming

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

Rationale for how and why state jurisdiction takes precedence over treaty rights in the Herrera case was based upon two previous rulings, the 1896 Ward v Race Horse and the 1995 Crow Tribe of Indians v Repsis.

In Ward v Race Horse, SCOTUS held by a vote of 7-1 that the Bannock Tribe, whose reservation was within the state of Wyoming, despite having a treaty established “right to hunt upon the unoccupied lands of the United States so long as game may be found thereon… does not give them the right to exercise this privilege within the limits of that state in violation of its laws.”

Although the accepted difference between a “privilege” and a “right” is seen as a privilege being revocable, but a right being “unalienable,” the legal difference between the two is far from definitive, let alone binding. In 1989, another Crow hunter, Thomas L. Ten Bear, illegally hunted elk in Wyoming. The Tenth Circuit Court of Appeals held in 1995, the Repsis case, that Ward v Race Horse determined Ten Bear no longer had a right to hunt these state controlled lands, as they were occupied, and his right was stated explicitly in the treaty to apply to only unoccupied lands.

In 1999, SCOTUS ruled 5-4 against Minnesota in Minnesota v Mille Lacs Band of Chippewa Indians, in another hunting and fishing rights case, invalidating Race Horse, and in so doing, invalidating Repsis, because it relied on Race Horse. Because of this, Herrera had the right to hunt in the Big Horn Mountains of Wyoming, despite the lower court rulings siding with Wyoming.

Race Horse was expressly repudiated in the 1999 ruling, which logically repudiated RepsisRace Horse and Repsis nonetheless applied, ignoring the 1999 ruling.

Beyond all of this, the dissenting justices also completely ignored the 1975 ruling of Antoine v Washington. By a 7-2 vote, SCOTUS held that treaties and laws must be construed in favor of the tribe or tribal members where there is any ambiguity.

Justice Sotomayor made this very clear: “First, the Wyoming Statehood Act does not show that Congress intended to end the 1868 Treaty hunting right. Nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so.”