Disir
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On Monday, in Herrera v. Wyoming, the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological.
Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.
Herrera, who lives on a Crow reservation in Montana, killed elk in Bighorn National Forest in violation of Wyoming law (because elk were out of season and he lacked a license). He defended against a criminal charge by invoking the treaty. Under the treaty, the Crow agreed to relocate to a reservation but retained "the right to hunt on the unoccupied lands of 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."
Wyoming argued that when it became a state, the treaty hunting rights of the Crow were extinguished. Other states did not have to provide such an accommodation and so, Wyoming argued, neither should it, because application of the treaty would violate the principle that states are admitted to the Union on an equal footing with existing states. Prior SCOTUS precedent provided support for this position, but Justice Sotomayor's opinion overrules that precedent. There was nothing in the treaty itself that made Wyoming statehood extinguish hunting rights, she said, nor does the enforcement of the treaty in fact violate the equal footing doctrine.
That much of the opinion seems sound. The equal footing doctrine, properly conceived, does not wipe away all commitments that have gone before. It would be particularly unfair to the Crow to rule otherwise.
Dorf on Law: Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty
This is a very interesting post.
Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.
Herrera, who lives on a Crow reservation in Montana, killed elk in Bighorn National Forest in violation of Wyoming law (because elk were out of season and he lacked a license). He defended against a criminal charge by invoking the treaty. Under the treaty, the Crow agreed to relocate to a reservation but retained "the right to hunt on the unoccupied lands of 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."
Wyoming argued that when it became a state, the treaty hunting rights of the Crow were extinguished. Other states did not have to provide such an accommodation and so, Wyoming argued, neither should it, because application of the treaty would violate the principle that states are admitted to the Union on an equal footing with existing states. Prior SCOTUS precedent provided support for this position, but Justice Sotomayor's opinion overrules that precedent. There was nothing in the treaty itself that made Wyoming statehood extinguish hunting rights, she said, nor does the enforcement of the treaty in fact violate the equal footing doctrine.
That much of the opinion seems sound. The equal footing doctrine, properly conceived, does not wipe away all commitments that have gone before. It would be particularly unfair to the Crow to rule otherwise.
Dorf on Law: Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty
This is a very interesting post.
