The NCSL Blog


By Lisa Soronen

What will invariably catch everyone’s attention about this case is the fact that it is the second 5-4 decision where Supreme Court Justice Neal Gorsuch has joined the four more liberal Justices to rule in favor of a tribe.

The sun rises over Grand Teton National Park on Aug. 21, 2017, outside Jackson, Wyo. Photographer: George Frey/Getty ImagesAnd a ruling in the court’s most interesting tribal case of the term is yet to come. But none of this should distract from the holding of this case.   

The Supreme Court answered yes to the question in Herrera v. Wyoming of whether an old treaty allowing Native Americans to hunt on federal land is still valid. According to an amicus brief filed by the Crow Tribe “[a]t least nineteen tribes, in at least a dozen treaties, reserved for themselves the right to hunt on Federal lands away from their respective reservations.”

In 1868, the Crow Tribe ceded most of its territory in what is now Montana and Wyoming to the United States in exchange for an agreement stating that the Crow could “hunt on the unoccupied lands of the United States.” Clayvin Herrera invoked this treaty to defend against a charge of off-season hunting in Bighorn National Forest in Wyoming.

In a 5-4 opinion, the Supreme Court held that the treaty’s hunting rights survived Wyoming’s statehood and that lands in the Bighorn National Forest aren’t categorically “occupied” because they are in a national reserve.

More than 100 years ago in Ward v. Race Horse (1896), the Supreme Court ruled that statehood extinguished hunting rights in an identical treaty between the Shoshone-Bannock tribes and the United States. The court in Race Horse relied on the fact that (1) new states were admitted to the union on “equal footing” with existing states and (2) there was no evidence in the treaty that Congress intended for treaty rights to continue in “perpetuity.”

In 1999, in Minnesota v. Mille Lacs Band of Chippewa Indians, the Supreme Court explicitly rejected the “equal footing” rationale of Race Horse. The court in Mille Lacs also criticized the notion that treaty rights fail to survive statehood if they are “temporary and precarious” because all treaty rights can be unilaterally repudiated by Congress.

According to the majority of the Supreme Court in Herrera v. Wyoming, “although the decision in Mille Lacs did not explicitly say that it was overruling the alternative ground in Race Horse, it is impossible to harmonize Mille Lacs’ analysis with the Court’s prior reasoning in Race Horse.”

Applying Mille Lacs rather than Race Horse, a majority of the Supreme Court, in an opinion written by Justice Sonia Sotomayor, joined by the three more liberal justices and Gorsuch, concluded Wyoming’s admission to the United States didn’t abrogate the Crow Tribe’s off-reservation treaty hunting rights. “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. The treaty itself defines the circumstances in which the right will expire. Statehood is not one of them.”

Even though the treaty rights were valid following Wyoming’s statehood the treaty does not protect hunting in “occupied” federal lands. The majority of the court concluded the Bighorn National Forest didn’t become categorically “occupied” when the national forest was created. Treaties are construed as “they would naturally be understood by the Indians.” According to the court, “[h]ere it is clear that the Crow Tribe would have understood the word ‘unoccupied’ to denote an area free of residence or settlement by non-Indians.” 

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.