Indian Treaty Rights Weigh in the Supreme Court’s Balance of Herrera v. Wyoming


By Joe Sexton

In January, the United States Supreme Court heard oral arguments for Herrera v. Wyoming, a Treaty hunting rights case.   Although some commentators suggest the case will lead to a narrow decision with little shift in Indian Law jurisprudence, and the High Court’s recent decision in Cougar Den certainly supports such optimism, Herrera may ripple deep into Indian Country and affect tribal Treaty rights nationwide.   

The facts of the case are generally undisputed.  In January 2014, Clayvin Herrera along with other Crow tribal members stalked elk on the Crow Reservation in Montana near Eskimo Creek.  Herrera and his fellow hunters followed the elk off the Crow Reservation into the Big Horn National Forest in the State of Wyoming.  The hunters killed three elk in the national forest and brought the meat back to the Crow Reservation in Montana to feed themselves and members of their tribe over the winter.  Herrera asserted a Treaty right to hunt on “unoccupied lands of the United States” within territory the Crow Tribe had ceded to the United States under the Fort Laramie Treaty of 1868; at the time of that particular Treaty, the lands where Herrera killed the elk were part of the Crow Tribe’s unoccupied ceded territory.  Wyoming charged and tried Herrera for two misdemeanors despite his Treaty-reserved right: taking an antlered big game animal without a license and being an accessory to such a taking.

The Wyoming trial court denied Herrera’s motion to dismiss and granted the state’s motion to exclude any mention of Herrera’s Treaty rights at his criminal trial. Barred from even mentioning his Treaty right, Herrera was convicted of both counts. A Wyoming appellate court affirmed the trial court’s decisions and the Wyoming Supreme Court denied review. Ultimately, the Wyoming appellate court held that Mr. Herrera’s Treaty claims were not only barred under the theory that Wyoming’s admission to the Union abrogated the Crow Tribe’s Treaty rights as the 10th Circuit held in Repsis, but that Herrera’s  claims were also barred by the legal doctrines of res judicata and collateral estoppel.

Herrera appealed the case to the U.S. Supreme Court, presenting the question “[w]hether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal Treaty right to hunt on the “unoccupied lands of the United States.”

Wyoming relies on Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) for its principal argument—that the Crow Tribe’s Treaty right to hunt off reservation, at least on unoccupied lands of the United States within Wyoming, was “repealed by the act admitting Wyoming into the Union.”  Id. at 994.  The Tenth Circuit in Repsis, had, in turn, rested its decision on the U.S. Supreme Court’s holding a century earlier in Ward v. Race Horse, 163 U.S. 504 (1896).  In this 19th Century decision, the Supreme Court held that legislation admitting Wyoming into the union as a state abrogated tribal Treaty rights to hunt on United States land because honoring those Treaty rights would mean Wyoming was “admitted into the Union not as an equal member, but as one shorn of a legislative power vested in all the other states of the Union.”  Id. at 514.  This was known as the “equal footing doctrine,” and is contrary to the general accepted doctrine arising in the 20th Century that states must honor tribal Treaty rights under the United States Constitution’s Supremacy Clause unless Congress has expressly abrogated those rights.  See Antoine v. Washington, 420 U.S. 194, 201-02 (1975).  

Mr. Herrera countered that the U.S. Supreme Court overturned Race Horse in 1999.  See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Consequently, he argues the portion of Repsis that relies on Race Horse to extinguish the Crow Tribe’s Treaty right to hunt off reservation is no longer good law.  In the absence of Race Horse, Mr. Herrera’s Treaty rights remain viable and state courts and governments are bound to honor them.  

During oral argument, questioning from Justice Sotomayor to the attorney for Wyoming focuses on the danger to all tribal Treaty rights if the Supreme Court issues a broad decision in Herrera in favor of Wyoming.  Justice Sotomayor wanted to know what language in the Treaty at issue in Herrera could result in cancelation of Crow members’ hunting rights throughout the state of Wyoming.  Put another way, Justice Sotomayor is drilling down on the fact that neither the terms of the Treaty, nor a subsequent Congressional act expressly limiting or changing those terms provides that the Treaty rights were “intended to expire upon [Wyoming’s] statehood” as Wyoming’s attorney argued:

JUSTICE SOTOMAYOR:  So tell me what in the treaty says [the treaty right to hunt off reservation] automatically terminates.  I saw a lot of conditions.  I saw the game disappearing, the land becoming occupied, but I don’t see on statehood or even anything approaching it.

MR. KNEPPER:                The – the –

JUSTICE SOTOMAYOR:  Where – where in – just point to something in the treaty language

MR. KNEPPER:               Sure . . . Your Honor, the – the decision rests on the conclusion that unoccupied lands must be of the character of the lands denominated as hunting districts, and that hunting districts were a specific kind of land understood, and that upon settlement, and, you know, there’s a – there’s a process, but culminating in statehood. . .  .

                                         I think that if what you’re asking is are there unoccupied lands within the meaning of the treaty anymore within the State of Wyoming, that’s – that’s what the decision both in Race Horse and in – and in Repsis concluded, that those – those lands – those lands have disappeared.  They no longer exist within the State of Wyoming.

Simply, according to Wyoming the Crow Tribe’s Treaty rights “disappeared” upon Wyoming’s admission to the union, regardless of the absence of any Treaty language indicating its rights were subject to the admission of states into the Union and in the absence of any express intent on the part of Congress in admitting Wyoming to extinguish all tribal Treaty rights within the state.  But Wyoming’s reliance on Race Horse to suggest that Treaty rights can be extinguished by implication imperils all tribal Treaty rights throughout Indian Country.  This threat arises not only from the “equal footing doctrine” Wyoming argued, should be re-embraced in the 21st Century, but—in the event an expansive shift on the law of Treaty construction that may result from Herrera—any argument a state or the federal government might make that Treaty rights are extinguished by implication through some mechanism not expressly negotiated as a condition in the Treaty.

Commentators may be right regarding Herrera and its impending outcome—the holding could be narrow.  In any event, this is a case to follow for anyone concerned with tribal Treaty rights and their future in turbulent 21st Century America. 

Joe Sexton is a partner with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and