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Herrera v. Wyoming

United States Supreme Court

May 20, 2019

CLAYVIN HERRERA, PETITIONER
v.
WYOMING

          Argued January 8, 2019

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

          An 1868 treaty between the United States and the Crow Tribe promised that in exchange for most of the Tribe’s territory in modern-day Montana and Wyoming, its 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.” 15 Stat. 650. In 2014, Wyoming charged petitioner Clayvin Herrera with 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, and a jury convicted him. On appeal, the state appellate court relied on the reasoning of the Tenth Circuit’s decision in Crow Tribe of Indians v. Repsis, 73 F. 3d 982— which in turn relied upon this Court’s decision in Ward v. Race Horse, 163 U. S. 504—and held that the treaty right expired upon Wyoming’s statehood. The court rejected Herrera’s argument that this Court’s subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, repudiated Race Horse and therefore undercut the logic of Repsis. In any event, the court concluded, Herrera was precluded from arguing that the treaty right survived Wyoming’s statehood because the Crow Tribe had litigated Repsis on behalf of itself and its members. Even if the 1868 Treaty right survived Wyoming’s statehood, the court added, it did not permit Herrera to hunt in Bighorn National Forest because the treaty right applies only on unoccupied lands and the national forest became categorically occupied when it was created.

         Held:

         1. The Crow Tribe's hunting rights under the 1868 Treaty did not expire upon Wyoming's statehood. Pp. 6-17.

(a)This case is controlled by Mills Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in an 1868 treaty with the Shoshone and Bannock Tribes containing language identical to that at issue here. Relying on two lines of reasoning, the Race Horse Court held that Wyoming's admission to the United States in 1890 extinguished the Shoshone-Bannock Treaty right. First, the doctrine that new States are admitted to the Union on an "equal footing" with existing States led the Court to conclude that affording the Tribes a protected hunting right lasting after statehood would conflict with the power vested in those States-and newly shared by Wyoming- "to regulate the killing of game within their borders." 163 U.S., at 514. Second, the Court found no evidence in the Shoshone-Bannock Treaty itself that Congress intended the treaty right to continue in "perpetuity." Id., at 514-515. Mille Lacs undercut both pillars of Race Horse's reasoning. Mille Lacs established that the crucial inquiry for treaty termination analysis is whether Congress has "clearly express[ed]" an intent to abrogate an Indian treaty right, 526 U.S., at 202, or whether a termination point identified in the treaty itself has been satisfied, id., at 207. Thus, while Race Horse "was not expressly overruled" in Mille Lacs, it "retain[s] no vitality," Limbach v. Hooven & Allison Co., 466 U.S. 353, 361, and is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. Pp. 6-11.
(b)Repsis does not preclude Herrera from arguing that the 1868 Treaty right survived Wyoming's statehood. Even when the elements of issue preclusion are met, an exception may be warranted if there has been an intervening" 'change in [the] applicable legal context.'" Bobby v. Bies, 556 U.S. 825, 834. Here, Mille Lacs' repudiation of Race Horse's reasoning-on which Repsis relied-justifies such an exception. Pp. 11-13.
(c)Applying Mille Lacs, Wyoming's admission into the Union did not abrogate the Crow Tribe's off-reservation treaty hunting right. First, the Wyoming Statehood Act does not show that Congress "clearly expressed" an intent to end the 1868 Treaty hunting right. See 526 U.S., at 202. There is also no 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. Nor does the historical record support such a reading of the treaty. The State counters that statehood, as a practical matter, rendered all the lands in the State occupied. Even assuming that Wyoming presents an accurate historical picture, the State, by using statehood as a proxy for occupation, subverts this Court's clear instruction that treaty-protected rights "are not impliedly terminated upon statehood." Id., at 207. To the extent that the State seeks to rely on historical evi- dence to establish that all land in Wyoming was functionally "occupied" by 1890, its arguments fall outside the question presented and are unpersuasive in any event. Pp. 13-17.
2. Bighorn National Forest did not become categorically "occupied" within the meaning of the 1868 Treaty when the national forest was created. Construing the treaty's terms as" 'they would naturally be understood by the Indians, '" Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 676, it is clear that the Tribe would have understood the word "unoccupied" to denote an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty's text. For example, the treaty made the hunting right contingent on peace "among the whites and Indians on the borders of the hunting districts," 15 Stat. 650, thus contrasting the unoccupied hunting districts with areas of white settlement. Historical evidence confirms this reading of "unoccupied." Wyoming's counterarguments are unavailing. The Federal Government's exercise of control and withdrawing of the forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would mining and logging of the forest lands prior to 1897 have caused the Tribe to view the Bighorn Mountains as occupied. Pp. 17-21.
3. This decision is limited in two ways. First, the Court holds that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right "in the interest of conservation," an issue not reached by the appellate court. The Court also does not address the viability of the State's arguments on this issue. Pp. 21-22.

         Vacated and remanded.

          SOTOMAYOR, J., delivered the opinion of the Court, in which GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

          OPINION

          SOTOMAYOR, JUSTICE

         In 1868, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States. In exchange, the United States promised that the Crow Tribe "shall 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." Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty), Art. IV, May 7, 1868, 15 Stat. 650. Petitioner Clayvin Herrera, a member of the Tribe, invoked this treaty right as a defense against charges of off-season hunting in Bighorn National Forest in Wyoming. The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not "unoccupied." We disagree. The Crow Tribe's hunting right survived Wyoming's statehood, and the lands within Bighorn National Forest did not become categorically "occupied" when set aside as a national reserve.

         I

         A

         The Crow Tribe first inhabited modern-day Montana more than three centuries ago. Montana v. United States, 450 U.S. 544, 547 (1981). The Tribe was nomadic, and its members hunted game for subsistence. J. Medicine Crow, From the Heart of the Crow Country 4-5, 8 (1992). The Bighorn Mountains of southern Montana and northern Wyoming "historically made up both the geographic and the spiritual heart" of the Tribe's territory. Brief for Crow Tribe of Indians as Amicus Curiae 5.

         The westward migration of non-Indians began a new chapter in the Tribe's history. In 1825, the Tribe signed a treaty of friendship with the United States. Treaty With the Crow Tribe, Aug. 4, 1825, 7 Stat. 266. In 1851, the Federal Government and tribal representatives entered into the Treaty of Fort Laramie, in which the Crow Tribe and other area tribes demarcated their respective lands. Montana, 450 U.S., at 547-548. The Treaty of Fort Laramie specified that "the tribes did not 'surrender the privilege of hunting, fishing, or passing over' any of the lands in dispute" by entering the treaty. Id., at 548.

         After prospectors struck gold in Idaho and western Montana, a new wave of settlement prompted Congress to initiate further negotiations. See F. Hoxie, Parading Through History 88-90 (1995). Federal negotiators, including Commissioner of Indian Affairs Nathaniel G. Taylor, met with Crow Tribe leaders for this purpose in 1867. Taylor acknowledged that "settlements ha[d] been made" upon the Crow Tribe's lands and that their "game [was] being driven away." Institute for the Development of Indian Law, Proceedings of the Great Peace Commission of 1867-1868, p. 86 (1975) (hereinafter Proceedings). He told the assembled tribal leaders that the United States wished to "set apart a tract of [Crow Tribe] country as a home" for the Tribe "forever" and to buy the rest of the Tribe's land. Ibid. Taylor emphasized that the Tribe would have "the right to hunt upon" the land it ceded to the Federal Government "as long as the game lasts." Ibid.

         At the convening, Tribe leaders stressed the vital importance of preserving their hunting traditions. See id., at 88 (Black Foot: "You speak of putting us on a reservation and teaching us to farm. . . . That talk does not please us. We want horses to run after the game, and guns and ammunition to kill it. I would like to live just as I have been raised"); id., at 89 (Wolf Bow: "You want me to go on a reservation and farm. I do not want to do that. I was not raised so"). Although Taylor responded that "[t]he game w[ould] soon entirely disappear," he also reassured tribal leaders that they would "still be free to hunt" as they did at the time even after the reservation was created. Id., at 90.

         The following spring, the Crow Tribe and the United States entered into the treaty at issue in this case: the 1868 Treaty. 15 Stat. 649. Pursuant to the 1868 Treaty, the Crow Tribe ceded over 30 million acres of territory to the United States. See Montana, 450 U.S., at 547-548; Art. II, 15 Stat. 650. The Tribe promised to make its "permanent home" a reservation of about 8 million acres in what is now Montana and to make "no permanent settlement elsewhere." Art. IV, 15 Stat. 650. In exchange, the United States made certain promises to the Tribe, such as agreeing to construct buildings on the reservation, to provide the Tribe members with seeds and implements for farming, and to furnish the Tribe with clothing and other goods. 1868 Treaty, Arts. III-XII, id., at 650-652. Article IV of the 1868 Treaty memorialized Commissioner Taylor's pledge to preserve the Tribe's right to hunt off-reservation, stating:

"The Indians . . . shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts." Id., at 650.

         A few months after the 1868 Treaty signing, Congress established the Wyoming Territory. Congress provided that the establishment of this new Territory 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." An Act to Provide a Temporary Government for the Territory of Wyoming (Wyoming Territory Act), July 25, 1868, ch. 235, 15 Stat. 178. Around two decades later, the people of the new Territory adopted a constitution and requested admission to the United States. In 1890, Congress formally admitted Wyoming "into the Union on an equal footing with the original States in all respects," in an Act that did not mention Indian treaty rights. An Act to Provide for the Admission of the State of Wyoming into the Union (Wyoming Statehood Act), July 10, 1890, ch. 664, 26 Stat. 222. Finally, in 1897, President Grover Cleveland set apart an area in Wyoming as a public land reservation and declared the land "reserved from entry or settlement." Presidential Proclamation No. 30, 29 Stat. 909. This area, made up of lands ceded by the Crow Tribe in 1868, became known as the Bighorn National Forest. See App. 234; Crow Tribe of Indians v. Repsis, 73 F.3d 982, 985 (CA10 1995).

         B

         Petitioner Clayvin Herrera is a member of the Crow Tribe who resides on the Crow Reservation in Montana. In 2014, Herrera and other Tribe members pursued a group of elk past the boundary of the reservation and into the neighboring Bighorn National Forest in Wyoming. They shot several bull elk and returned to Montana with the meat. The State of Wyoming charged Herrera for taking elk off-season or without a state hunting license and with being an accessory to the same.

         In state trial court, Herrera asserted that he had a protected right to hunt where and when he did pursuant to the 1868 Treaty. The court disagreed and denied Her-rera's pretrial motion to dismiss. See Nos. CT-2015-2687, CT-2015-2688 (4th Jud. Dist. C. C, Sheridan Cty., Wyo., Oct. 16, 2015), App. to Pet. for Cert. 37, 41. Herrera unsuccessfully sought a stay of the trial court's order from the Wyoming Supreme Court and this Court. He then went to trial, where he was not permitted to advance a treaty-based defense, and a jury convicted him on both counts. The trial court imposed a suspended jail sentence, as well as a fine and a 3-year suspension of Herrera's hunting privileges.

         Herrera appealed. The central question facing the state appellate court was whether the Crow Tribe's off-reservation hunting right was still valid. The U.S. Court of Appeals for the Tenth Circuit, reviewing the same treaty right in 1995 in Crow Tribe of Indians v. Repsis, had ruled that the right had expired when Wyoming became a State. 73 F.3d, at 992-993. The Tenth Circuit's decision in Repsis relied heavily on a 19th-century decision of this Court, Ward v. Race Horse, 163 U.S. 504, 516 (1896). Herrera argued in the state court that this Court's subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), repudiated Race Horse, and he urged the Wyoming court to follow Mille Lacs instead of the Repsis and Race Horse decisions that preceded it.

         The state appellate court saw things differently. Reasoning that Mille Lacs had not overruled Race Horse, the court held that the Crow Tribe's 1868 Treaty right expired upon Wyoming's statehood. No. 2016-242 (4th Jud. Dist., Sheridan Cty., Wyo., Apr. 25, 2017), App. to Pet. for Cert. 31-34. Alternatively, the court concluded that the Repsis Court's judgment merited issue-preclusive effect against Herrera because he is a member of the Crow Tribe, and the Tribe had litigated the Repsis suit on behalf of itself and its members. App. to Pet. for Cert. 15-17, 31; App. 258. Herrera, in other words, was not allowed to relitigate the validity of the treaty right in his own case.

         The court also held that, even if the 1868 Treaty right survived Wyoming's entry into the Union, it did not permit Herrera to hunt in Bighorn National Forest. Again following Repsis, the court concluded that the treaty right applies only on "unoccupied" lands and that the national forest became categorically "occupied" when it was created. See App. to Pet. for Cert. 33-34; Repsis, 73 F.3d, at 994. The state appellate court affirmed the trial court's judgment and sentence.

         The Wyoming Supreme Court denied a petition for review, and this Court granted certiorari. 585 U.S. (2018). For the reasons that follow, we now vacate and remand.

         II

         We first consider whether the Crow Tribe's hunting rights under the 1868 Treaty remain valid. Relying on this Court's decision in Mille Lacs, Herrera and the United States contend that those rights did not expire when Wyoming became a State in 1890. We agree.

         A

         Wyoming argues that this Court's decision in Race Horse establishes that the Crow Tribe's 1868 Treaty right expired at statehood. But this case is controlled by Mille Lacs, not Race Horse.

         Race Horse concerned a hunting right guaranteed in a treaty with the Shoshone and Bannock Tribes. The Shoshone-Bannock Treaty and the 1868 Treaty with the Crow Tribe were signed in the same year and contain identical language reserving an off-reservation hunting right. See Treaty Between the United States of America and the Eastern Band of Shoshonees [sic] and the Bannack [sic] Tribe of Indians (Shoshone-Bannock Treaty), July 3, 1868, 15 Stat. 674-675 ("[T]hey shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts"). The Race Horse Court concluded that Wyoming's admission to the United States extinguished the Shoshone-Bannock Treaty right. 163 U.S., at 505, 514-515.

         Race Horse relied on two lines of reasoning. The first turned on the doctrine that new States are admitted to the Union on an "equal footing" with existing States. Id., at 511-514 (citing, e.g., Lessee of Pollard v. Hagan, 3 How. 212 (1845)). This doctrine led the Court to conclude that the Wyoming Statehood Act repealed the Shoshone and Bannock Tribes' hunting rights, because affording the Tribes a protected hunting right lasting after statehood would be "irreconcilably in conflict" with the power- "vested in all other States of the Union" and newly shared by Wyoming-"to regulate the killing of game within their borders." 163 U.S., at 509, 514.

         Second, the Court found no evidence in the Shoshone-Bannock Treaty itself that Congress intended the treaty right to continue in "perpetuity." Id., at 514-515. To the contrary, the Court emphasized that Congress "clearly contemplated the disappearance of the conditions" specified in the treaty. Id., at 509. The Court decided that the rights at issue in the Shoshone-Bannock Treaty were "essentially perishable" and afforded the Tribes only a "temporary and precarious" privilege. Id., at 515.

         More than a century after Race Horse and four years after Repsis relied on that decision, however, Mille Lacs undercut both pillars of Race Horse's reasoning. Mille Lacs considered an 1837 Treaty that guaranteed to several bands of Chippewa Indians the privilege of hunting, fishing, and gathering in ceded lands "'during the pleasure of the President.'" 526 U.S., at 177 (quoting 1837 Treaty With the Chippewa, 7 Stat. 537). In an opinion extensively discussing and distinguishing Race Horse, the Court decided that the treaty rights of the Chippewa bands survived after Minnesota was admitted to the Union. 526 U.S., at 202-208.

         Mille Lacs approached the question before it in two stages. The Court first asked whether the Act admitting Minnesota to the Union abrogated the treaty right of the Chippewa bands. Next, the Court examined the Chippewa Treaty itself for evidence that the parties intended the treaty right to expire at statehood. These inquires roughly track the two lines of analysis in Race Horse. Despite these parallel analyses, however, the Mille Lacs Court refused Minnesota's invitation to rely on Race Horse, explaining that the case had "been qualified by later decisions." 526 U.S., at 203. Although Mille Lacs stopped short of explicitly overruling Race Horse, it methodically repudiated that decision's logic.

         To begin with, in addressing the effect of the Minnesota Statehood Act on the Chippewa Treaty right, the Mille Lacs Court entirely rejected the "equal footing" reasoning applied in Race Horse. The earlier case concluded that the Act admitting Wyoming to the Union on an equal footing "repeal[ed]" the Shoshone-Bannock Treaty right because the treaty right was "irreconcilable" with state sovereignty over natural resources. Race Horse, 163 U.S., at 514. But Mille Lacs explained that this conclusion "rested on a false premise." 526 U.S., at 204. Later decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe's treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation. Id., at 204-205 (citing Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 682 (1979); Antoine v. Washington, 420 U.S. 194, 207-208 (1975); Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 398 (1968)). "[B]ecause treaty rights are reconcilable with state sovereignty over natural resources," the Mille Lacs Court concluded, there is no reason to find statehood itself sufficient "to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries." 526 U.S., at 205.

         In lieu of adopting the equal-footing analysis, the Court instead drew on numerous decisions issued since Race Horse to explain that Congress "must clearly express" any intent to abrogate Indian treaty rights. 526 U.S., at 202 (citing United States v. Dion, 476 U.S. 734, 738-740 (1986); Fishing Vessel Assn., 443 U.S., at 690; Menominee Tribe v. United States, 391 U.S. 404, 413 (1968)). The Court found no such "'clear evidence'" in the Act admitting Minnesota to the Union, which was "silent" with regard to Indian treaty rights. 526 U.S., at 203.

         The Mille Lacs Court then turned to what it referred to as Race Horses "alternative holding" that the rights in the Shoshone-Bannock Treaty "were not intended to survive Wyoming's statehood." 526 U.S., at 206. The Court observed that Race Horse could be read to suggest that treaty rights only survive statehood if the rights are "'"of such a nature as to imply their perpetuity, "'" rather than "'temporary and precarious.'" 526 U.S., at 206. The Court rejected such an approach. The Court found the "'temporary and precarious'" language "too broad to be useful," given that almost any treaty rights-which Congress may unilaterally repudiate, see Dion, 476 U.S., at 738-could be described in those terms. 526 U.S., at 206-207. Instead, Mille Lacs framed Race Horse as inquiring into whether the Senate "intended the rights secured by the . . . Treaty to survive statehood." 526 U.S., at 207. Applying this test, Mille Lacs concluded that statehood did not extinguish the Chippewa bands' treaty rights. The Chippewa Treaty itself defined the specific "circumstances under which the rights would terminate," and there was no suggestion that statehood would satisfy those circumstances. Ibid.

         Maintaining its focus on the treaty's language, Mille Lacs distinguished the Chippewa Treaty before it from the Shoshone-Bannock Treaty at issue in Race Horse. Specifically, the Court noted that the Shoshone-Bannock Treaty, unlike the Chippewa Treaty, "tie[d] the duration of the rights to the occurrence of some clearly contemplated event[s]"-i.e., to whenever the hunting grounds would cease to "remai[n] unoccupied and owned by the United States." 526 U.S., at 207. In drawing that distinction, however, the Court took care to emphasize that the treaty termination analysis turns on the events enumerated in the "Treaty itself." Ibid. Insofar as the Race Horse Court determined that the Shoshone-Bannock Treaty was "impliedly repealed," Mille Lacs disavowed that earlier holding. 526 U.S., at 207. "Treaty rights," the Court clarified, "are not impliedly terminated upon statehood." Ibid. The Court further explained that "[t]he Race Horse Court's decision to the contrary"-that Wyoming's statehood did imply repeal of Indian treaty rights-"was informed by" that Court's erroneous conclusion "that the Indian treaty rights were inconsistent with state sovereignty over natural resources." Id., at 207-208.

         In sum, Mille Lacs upended both lines of reasoning in Race Horse. The case established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress' clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty. See 526 U.S., at 207. "[T]here ...


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