On May 20, 2019, the Supreme Court of the United States decided Herrera v. Wyoming, No. 17-532, holding that hunting rights in modern-day Montana and Wyoming that the Crow Tribe of Indians acquired under its 1868 treaty with the United States did not expire upon Wyoming becoming a state in 1890, and that the establishment of the Bighorn National Forest did not make the lands it covers “occupied” within the meaning of the 1868 treaty.
In 1868, the Crow Tribe ceded to the United States 30 million acres of territory in what is now Montana and Wyoming in exchange for a promise that the Tribe would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists … on the borders of the hunting districts.” A few months later, Congress established the Wyoming Territory. Wyoming became a state in 1890. And in 1897, President Grover Cleveland created the Bighorn National Forest, which is made up of lands ceded by the Tribe in 1868.
The state of Wyoming charged Clayvin Herrera, a member of the Crow Tribe, for hunting elk in Bighorn National Forest out of season and without a state hunting license. In state trial court, Herrera argued that he had a right under the 1868 treaty to hunt where and when he did, but the trial court disagreed. He was later convicted of two offenses. The state appellate court affirmed, holding that the Tribe’s rights under the 1868 treaty expired when Wyoming was admitted as a state in 1890. Alternatively, the appellate court held that a 1995 decision of the Tenth Circuit holding that the Tribe’s rights expired upon Wyoming’s admission as a state had issue-preclusive effect against Herrera because he is a member of the Crow Tribe and the Tribe had litigated the 1995 case on behalf of itself and its members.
The Supreme Court reversed, relying on its analysis in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), and repudiating its 1896 decision in Ward v. Race Horse, 163 U.S. 504 (1896), to the extent it holds that treaty rights are impliedly extinguished upon statehood. As it did in Mille Lacs, the Court approached the question in two steps. First, the Court held that the Wyoming Statehood Act did not show that Congress intended to abrogate the Tribe’s 1868 treaty rights because there was not “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Second, the Court held that the 1868 treaty did not show that the parties intended the treaty right to expire at statehood. The Court then held that the Tenth Circuit’s contrary 1995 decision did not preclude Herrera’s claims because of a change in law: the Court’s 1999 decision in Mille Lacs repudiated the reasoning in Race Horse, which the Tenth Circuit relied upon in its 1995 decision.
The Court then held that the creation of Bighorn National Forest in 1898 did not categorically remove lands from the scope of the 1868 treaty. The 1868 treaty gave the Tribe hunting rights to all “unoccupied lands.” Historical evidence indicated that the Crow Tribe would have understood “unoccupied” to refer to areas free of residence or settlement by non-Indians. The Court observed that the proclamation creating the national forest expressly prohibited settlement on the lands; thus, the lands certainly were not categorically “occupied.” The Court remanded the case to the Wyoming courts to determine whether the specific site where Herrera hunted elk was “occupied” within the meaning of the treaty.
Justice Sotomayor delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, Kagan, and Gorsuch. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined.