Herrera v. Wyoming
2019 U.S. LEXIS 3538, 139 S. Ct. 1686, 587 U.S. 329 (2019)
Rule of Law:
Indian treaty hunting rights are not impliedly abrogated by a state's admission to the Union; abrogation requires Congress's clear expression of intent or satisfaction of treaty-defined termination conditions. Furthermore, the term “unoccupied lands” in the 1868 Crow Treaty refers to lands free of non-Indian settlement or residence, not categorically to national forest lands.
Facts:
- In 1868, the United States and the Crow Tribe entered into a treaty in which the Tribe ceded most of its territory in modern-day Montana and Wyoming.
- Article IV of the 1868 Treaty promised that Crow Tribe members 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.'
- During the 1867 treaty negotiations, Crow Tribe leaders emphasized the vital importance of preserving their hunting traditions, and federal negotiators assured them of continued hunting rights on ceded lands.
- In 1868, Congress established the Wyoming Territory, providing that its creation would not 'impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty.'
- In 1897, President Grover Cleveland designated an area in Wyoming, made up of lands ceded by the Crow Tribe, as a public land reservation 'reserved from entry or settlement,' which became known as the Bighorn National Forest.
- In 2014, Clayvin Herrera, a member of the Crow Tribe residing on the Crow Reservation in Montana, pursued a group of elk into Bighorn National Forest in Wyoming and shot several off-season.
Procedural Posture:
- Wyoming charged petitioner Clayvin Herrera in state trial court (District Court of Wyoming, Sheridan County) for off-season hunting in Bighorn National Forest and being an accessory to the same.
- The state trial court rejected Herrera’s argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, denying his pretrial motion to dismiss.
- Herrera unsuccessfully sought a stay of the trial court’s order from the Wyoming Supreme Court and the U.S. Supreme Court.
- A jury in the state trial court convicted Herrera on both counts.
- Herrera appealed the conviction to the state appellate court (District Court of Wyoming, Sheridan County).
- The state appellate court affirmed, relying on the reasoning of Crow Tribe of Indians v. Repsis (Tenth Circuit, 1995) which held the treaty right expired upon Wyoming’s statehood, and concluding Herrera was precluded from arguing the treaty right survived statehood due to Repsis.
- Alternatively, the state appellate court held that even if the treaty right survived, it did not permit Herrera to hunt in Bighorn National Forest because the national forest became categorically “occupied” when created.
- The Wyoming Supreme Court denied a petition for review.
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Issue:
Does the Crow Tribe’s 1868 treaty right to hunt on unoccupied lands of the United States expire upon Wyoming’s statehood, and does the creation of Bighorn National Forest categorically render those lands ‘occupied’ within the meaning of the treaty?
Opinions:
Majority - Sotomayor
No, the Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood, and Bighorn National Forest did not become categorically “occupied” within the meaning of the treaty when it was created. First, the Court concludes that its decision in Minnesota v. Mille Lacs Band of Chippewa Indians (1999) controls this case, not Ward v. Race Horse (1896). Race Horse held that a similar treaty hunting right expired at statehood based on the “equal footing” doctrine (conflict with state's game regulation power) and a lack of intent for the right to continue in “perpetuity.” However, Mille Lacs repudiated both lines of reasoning, clarifying that the “equal footing” doctrine does not automatically extinguish Indian treaty rights because such rights are reconcilable with state sovereignty (as states can impose reasonable conservation regulations). Mille Lacs established that Congress must “clearly express” an intent to abrogate Indian treaty rights, or a termination point explicitly identified in the treaty must be satisfied. The Court formally holds that Race Horse “retains no vitality” and is repudiated to the extent it held treaty rights can be impliedly extinguished at statehood. Applying Mille Lacs, the Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right because it makes no mention of Indian treaty rights and thus lacks the “clear evidence” required for abrogation. Nor does the 1868 Treaty itself suggest the right would expire at statehood; it explicitly defines four termination conditions (lands no longer unoccupied, no longer United States lands, no game, no peace), none of which are statehood. Historical context from treaty negotiations also shows no intent for statehood to terminate the right. Second, the Court concludes that Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty upon its creation. Interpreting the treaty terms as “they would naturally be understood by the Indians,” the Crow Tribe would have understood “unoccupied” to mean an area free of residence or settlement by non-Indians. This interpretation is supported by the treaty’s text, which contrasts hunting districts with “areas of white settlement,” and by historical evidence from the treaty negotiations. The Presidential Proclamation creating Bighorn National Forest “reserved” the lands “from entry or settlement,” which means the lands were not being opened for non-Indian settlement, thus preserving their “unoccupied” status for hunting purposes. The Federal Government’s exercise of control or regulations, or the presence of mining and logging, do not equate to the type of non-Indian settlement implied by the treaty’s use of “unoccupied.” Finally, the Court addresses issue preclusion. It holds that Mille Lacs's repudiation of Race Horse's reasoning, on which Crow Tribe of Indians v. Repsis (1995) relied, constitutes an intervening “change in the applicable legal context” sufficient to justify an exception to issue preclusion regarding the statehood question. The Court declines to address whether preclusion applies to Repsis's alternative holding that Bighorn was occupied, deeming it outside the primary issue addressed by the lower court and requiring further factual analysis.
Dissenting - Alito
Yes, Herrera is bound by the Tenth Circuit’s judgment in Crow Tribe of Indians v. Repsis (1995) that the Crow Tribe’s hunting rights are no longer in force, rendering the majority’s discussion of treaty interpretation ultimately pointless. The dissent first argues that the majority’s application of the “change in applicable legal context” exception to issue preclusion is problematic. While Minnesota v. Mille Lacs Band of Chippewa Indians (1999) did repudiate Ward v. Race Horse's (1896) “equal footing” rationale for extinguishing treaty rights, Mille Lacs did not clearly reject Race Horse's alternative conclusion that Congress intended the treaty rights to end at statehood. The dissent contends that Mille Lacs only factually distinguished Race Horse, rather than entirely overruling it, and that this partial shift in reasoning is not a sufficient “change in legal context” to eliminate the preclusive effect of the Repsis judgment. Second, and critically, the dissent argues that Repsis provided two independent grounds for its judgment: 1) the treaty right expired at statehood (based on Race Horse), and 2) Bighorn National Forest became “occupied.” The dissent asserts that when a judgment rests on two independently sufficient grounds, both grounds should generally be given issue-preclusive effect, aligning with the First Restatement of Judgments. Because Repsis was a declaratory judgment action specifically intended to achieve a final determination of legal issues, its conclusion that Bighorn National Forest is “occupied” should bind Herrera, regardless of the validity of the statehood ground. The dissent finds the arguments against giving alternative grounds preclusive effect unpersuasive, particularly in a declaratory judgment context where every issue litigated and resolved is necessary to the judgment. Finally, the dissent argues that Herrera, as a Crow Tribe member, is bound by a judgment against the Tribe concerning tribal rights. The dissent also rejects Herrera’s argument that a civil declaratory judgment should not have preclusive effect in a subsequent criminal prosecution, noting that declaratory judgments are designed to provide ex ante certainty and that the cautions against preclusion in criminal cases (such as those in Currier and Bravo-Fernandez) do not apply when the prior proceeding was a civil judgment that was subject to full appellate review.
Analysis:
This case marks a significant development in Indian law, formally laying to rest the 'equal footing' doctrine as a basis for implied abrogation of treaty rights upon statehood. By unequivocally repudiating Ward v. Race Horse, the Court reinforces the high bar—a 'clear expression' of congressional intent—for abrogating Indian treaty rights, consistent with principles established in Minnesota v. Mille Lacs. The decision also provides important guidance on interpreting 'unoccupied lands' in historical treaties, emphasizing the perspective of the Indian signatories over modern administrative classifications. However, the Court's divided stance on issue preclusion, particularly the majority’s refusal to address the preclusive effect of an alternative ground for a prior judgment, leaves open questions about the scope and application of the 'change in legal context' exception, potentially leading to further litigation on preclusion issues in future cases involving tribal rights and prior adverse judgments.
