Herrera v. Wyoming [SCOTUSbrief]

Herrera versus Wyoming presents a very interesting
treaty question that’s alive today and that shows the enduring effect of issues flowing
from an 1868 treaty between an Indian tribe and the United States. It’s a simple fact pattern. You have a group of hunters who are Crow tribal
members from the Crow Reservation in Montana. They’re elk hunting for their families, subsistence
hunting. When they go over a fence, they’re in Wyoming and they shoot an elk over
there, and they get arrested by the state of Wyoming and they’re charged with illegal hunting under
Wyoming state law. Herrera takes the position legally, “I’m a
Crow tribal member, I’m exercising my treaty rights, you have no jurisdiction over me,
state of Wyoming official. I can go into the areas and they’re not occupied.” Here you’re dealing with a treaty from 1868
between the United States government, on the one hand, and the Crow Tribe of Indians, on
the other. The US said, “Here is a reservation of federal
land that will be yours forever, Crow Tribe.” And then, the treaty also says that the traditional
rights that Crow people had to hunt and fish and gather, their so-called subsistence rights,
in their traditional homeland, which was bigger than the reservation, than the modern reservation,
would continue so long as those lands were unoccupied. So that’s the treaty language. So go from 1868 and then Wyoming in the late
1880s becomes a state, and then in 1897 the federal government reserves a portion of northern
Wyoming as the Bighorn National Forest. Bear in mind that treaty rights are statutes,
they’re the law of the land, they’re enacted when the US government has entered into agreements
with tribal nations. Tribal nations are recognized to the Constitution. They’re one of the four sovereigns that are
in Article I of the Constitution. You’ve got the state governments, you have
foreign nations or foreign states as they’re called in the Constitution, you’ve got the
federal power or the federal government, and then you’ve got Indian tribes. So the issue becomes, when the US enters into
a relationship, the federal government that is, with a tribe what is the state’s role
and how does the state effect that? Herrera’s best argument is that for a very
long time with many treaties in many parts of the United States, there has been a recognition
that these off-reservation rights continue to be respected, and that if something is
done differently, in this particular case it will affect all those other treaty rights
in many other cases that the US Supreme Court has adjudicated. In Mille Lacs, the Court faced the issue of
did Minnesota’s entry into the Union eliminate the Chippewa Tribe’s fishing rights in this
off-reservation area? And the Supreme Court held in that case, with
that particular treaty, the tribe still retained its off-reservation subsistence rights. Congress is the one that you ultimately have
to go to, to change something concerning a relationship with a tribe. The state of Wyoming is claiming there was
a preclusive effect. The issue had been faced before and that the
Crow Tribe had essentially given up all of its rights to hunt and fish by operation of
law when the national forest was created or, alternatively, when the state of Wyoming was
created those lands ceased to be unoccupied. The state of Wyoming is very careful
to lay out in its briefs the idea that when a purpose for even federal public land, like
a national forest, changes and there are restrictions imposed, there’s a body of law that says it’s
now become occupied for purposes of that term. It’s not about physical occupation by settlers.
So they point out, for example, that in a US national forest like Bighorn you can’t
go and build a house in it that can’t be subdivided or whatnot. I mean, that issue was resolved back in 1897
when the Congress created the National Forest System and Congress would have to change that. But that at that time, by imposing those restrictions,
the land was no longer unoccupied. There are conflicts between, on the one hand,
federal treaties with tribes, and on the other hand, states trying to administer their own affairs
and enforce their own laws. This is an area of constant friction but it’s
growing. There’s no question there’s more and more
litigation going on about this.

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