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Supreme Court rules 151-year-old Indian treaty grants hunting rights

May 20, 2019

The Supreme Court ruled Monday that an 1868 treaty between with the Crow Indians is still valid and grants tribe members hunting rights on some federal lands, breathing new life into Indian-U.S. relations.

Wyoming had charged Clayvin Herrera, a member of the Crow, with offseason hunting in 2014 after state officials discovered him other tribe members hunting bull elk on the Big Horn National Forest, discarding the bodies and only taking the heads for trophies.

Mr. Herrera argued he was permitted to hunt on the land, citing the treaty which guaranteed Indians “the right to hunt on unoccupied lands of the United States so long as game may be found thereon.”

The tribe leaders signed the treaty in 1868, handing over roughly 30 million acres to settlers while retaining about eight million acres.

Wyoming, though, had said the treaty expired when it became a state in 1890.

Lower courts agreed, but the justices, in a 5-4 ruling, sided with Mr. Herrera, saying the treaty is good law.

“There simply is no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act,” wrote Justice Sonia Sotomayor in the court’s 22-page opinion.

“Nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so,” she added.

President Trump’s nominee Justice Neil M. Gorsuch, who replaced the late Justice Antonin Scalia, sided with the court’s four Democratic appointed justices against Wyoming.

The court’s four other GOP-appointed justices dissented, pointing to precedent in an identical case where courts ruled in 1895 that a tribe’s right to hunt was terminated at statehood.

The court, more than a century ago, said without ending a tribe’s hunting right, the state would lack the power to regulate the killing of game.

Justice Samuel A. Alito called the majority opinion “wasted ink.”

One major issue for the justices was the language of the treaty, which said it applied to “unoccupied lands.”

Wyoming argued that once it became a state, all of the lands were deemed occupied. And even if statehood wasn’t a critical element, the state argued that when the government designated the Big Horn National Forest, that meant the land was occupied, so Indians’ hunting rights could be regulated.

The high court rejected both arguments though it did leave room for some regulations within the forest, including where Wyoming decides it has an interest in conservation.

Forrest Tahdooahnippa, a lawyer who specializes in tribal issues, said the decision gave “life” to the rights of Native Americans by overruling the prior precedent.

“Gorsuch, Trump’s appointee to fill the late Justice Scalia’s seat, has marked himself as a friend and ally of American Indian tribes, a label that would unlikely have been applied to his predecessor,” Mr. Tahdooahnippah said.

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