January 8, 2019
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
1868 treaty between the United States and the Crow Tribe
promised that in exchange for most of the Tribeâs territory
in modern-day Montana and Wyoming, its members would âhave
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.â 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 Herreraâs 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 Circuitâs decision in Crow
Tribe of Indians v. Repsis, 73 F. 3d 982â which in turn
relied upon this Courtâs decision in Ward v. Race
Horse, 163 U. S. 504âand held that the treaty right
expired upon Wyomingâs statehood. The court rejected
Herreraâs argument that this Courtâs 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 Wyomingâs statehood because the Crow Tribe had
litigated Repsis on behalf of itself and its members. Even if
the 1868 Treaty right survived Wyomingâs 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.
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.
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.
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.
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.
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.
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
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.
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
"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.
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).
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.
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
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.
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
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.
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.
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.
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.
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.
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,
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.
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.
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
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
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.
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.
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.
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.