Caseflicks

Supreme Court of the United States • 2019

Herrera v. Wyoming

587 U.S. 329 | 139 S. Ct. 1686 | 203 L. Ed. 2d 846 | 2019 U.S. LEXIS 3538

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Takeaway

In short, this case holds that Indian treaty hunting rights do not disappear merely because a territory becomes a State, and that a national forest is not automatically “occupied” land that ends such a right.

Background

In the 1868 Crow Treaty, the Crow Tribe ceded more than 30 million acres to the United States. In return, Article IV guaranteed that Tribe members could hunt on the “unoccupied lands of the United States” so long as game remained and peace persisted near the hunting districts. The Bighorn National Forest in Wyoming includes land ceded under that treaty.

In 2014, Clayvin Herrera, a Crow Tribe member, and other members pursued elk from Montana into Bighorn National Forest, killed several elk, and returned with the meat. Wyoming charged Herrera with hunting without a license and during a closed season. He invoked the treaty as a defense, but the trial court barred that defense, and a jury convicted him.

The Wyoming appellate court affirmed. Relying on Ward v. Race Horse and the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis, it held that the treaty hunting right ended when Wyoming became a State. Alternatively, it held that the Repsis judgment precluded Herrera from relitigating the right and that the national forest was categorically “occupied” land outside the treaty’s protection. The Supreme Court vacated and remanded.

Issues

Issue #1

Whether Wyoming’s admission to the Union extinguished the Crow Tribe’s 1868 treaty right to hunt on unoccupied federal lands.

Holding

No. Wyoming’s statehood did not abrogate the Crow Tribe’s treaty-protected hunting right.

Reasoning

Minnesota v. Mille Lacs Band of Chippewa Indians, rather than Ward v. Race Horse, controlled the analysis. Mille Lacs rejected the premise that treaty hunting rights necessarily conflict with a State’s sovereignty over wildlife. States may impose reasonable, nondiscriminatory conservation regulations when necessary, so a continuing treaty right is not inherently incompatible with statehood.

The Court clarified that Race Horse no longer has force insofar as it held that statehood may impliedly extinguish Indian treaty rights. Treaty rights survive unless Congress clearly expresses an intent to abrogate them or a termination condition specified in the treaty itself has occurred.

The Wyoming Statehood Act admitted Wyoming on an equal footing with other States but said nothing about Indian treaty rights. Because Congress must clearly show that it considered and chose to abrogate a treaty right, that silence could not terminate the Crow Tribe’s hunting right.

The treaty itself listed the conditions under which the hunting right would end: the land ceases to be unoccupied federal land, game disappears, or peace no longer exists at the borders of the hunting districts. Statehood is not among those conditions, and neither the treaty text nor the negotiating history suggests that the Crow Tribe would have understood statehood to end its right.

Issue #2

Whether the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis precluded Herrera from arguing that the treaty right survived statehood.

Holding

No. The intervening change in governing law justified an exception to issue preclusion as to Repsis’s conclusion that statehood had terminated the treaty right.

Reasoning

Issue preclusion ordinarily bars relitigation of an issue actually decided in a valid prior judgment. But an exception may apply when the controlling legal context has materially changed, because applying preclusion then may not serve equitable administration of the law.

Repsis held that the Crow Treaty right ended at Wyoming’s statehood by relying on Race Horse. Mille Lacs later repudiated Race Horse’s reasoning, and the Court formally clarified that Race Horse retained no vitality on implied termination at statehood. A judgment based on a repudiated legal doctrine cannot retain preclusive force on that question.

The Court did not decide whether Repsis’s separate alternative conclusion—that Bighorn National Forest was occupied—would independently preclude Herrera. The state court’s preclusion analysis was understood to concern Repsis’s statehood holding, and unresolved, fact-sensitive preclusion questions concerning the alternative ground should be addressed first by the lower courts.

Issue #3

Whether the creation of Bighorn National Forest made all forest lands categorically “occupied” and therefore outside the treaty hunting right.

Holding

No. Establishing Bighorn National Forest did not categorically render its lands “occupied” within the meaning of the 1868 treaty.

Reasoning

Treaties with Indian tribes must be interpreted as the tribal parties would naturally have understood them, with ambiguities resolved in the Indians’ favor. The treaty’s text, which contrasts hunting on unoccupied lands with settlement and refers to peace on the borders of hunting districts, indicated that “unoccupied” meant free from non-Indian residence or settlement.

The treaty negotiations and contemporary sources confirmed that the relevant contrast was between lands available for hunting and lands settled by white residents, especially farms and other permanent settlements. The term did not simply mean land over which the Federal Government exercised regulatory authority.

President Cleveland’s proclamation establishing the forest reserve expressly withdrew the land from entry and settlement. Reserving land against settlement therefore did not itself transform the forest into occupied land; if anything, it preserved the condition that the treaty’s hunting right required.

The ruling was limited. The Court held only that the forest was not categorically occupied, leaving Wyoming free on remand to show that the particular place where Herrera hunted was occupied in the treaty sense. The Court also did not resolve whether applying Wyoming’s conservation regulations to treaty hunting was necessary for conservation.

Dissents

Justice Alito

Reasoning

Justice Alito, joined by the Chief Justice and Justices Thomas and Kavanaugh, would have resolved the case on issue preclusion rather than treaty interpretation. In his view, the Crow Tribe litigated the same claimed hunting right in Repsis, and Herrera’s asserted entitlement derives solely from his membership in the Tribe. The Repsis judgment therefore bound him even though he was not personally a party.

The dissent questioned whether Mille Lacs changed the law enough to eliminate the preclusive effect of Repsis’s statehood holding. Mille Lacs plainly rejected Race Horse’s equal-footing rationale, but, in the dissent’s view, it was at least reasonably read not to have rejected Race Horse’s separate conclusion concerning the intended duration of the treaty right.

More fundamentally, Repsis rested on an independent ground: Bighorn National Forest was occupied land under the treaty. That conclusion did not depend on Race Horse or on the statehood rationale. Because the parties fully litigated the occupied-land issue in Repsis, the dissent concluded that it independently precluded Herrera from claiming a treaty right to hunt in the forest.

Justice Alito also maintained that alternative holdings in a declaratory judgment action should have preclusive effect. The purpose of Repsis was to conclusively determine the Tribe’s hunting rights, and the dissent saw no basis to let individual Tribe members relitigate an issue already decided against the Tribe.