587 U.S. 329
SCOTUS2019Background
- 1868 Treaty: Crow Tribe ceded ~30 million acres and retained a 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.”
- Wyoming history: Wyoming Territory created 1868; Wyoming admitted as a State in 1890 by an Act silent on Indian treaty rights; Bighorn National Forest designated by proclamation in 1897.
- Facts: Crow member Clayvin Herrera hunted elk off-reservation in Bighorn National Forest (Wyoming) and was charged with off-season hunting and accessory; he asserted the 1868 Treaty as a defense.
- Lower courts: Tenth Circuit in Crow Tribe of Indians v. Repsis held the identical treaty right expired at Wyoming statehood (relying on Race Horse) and alternatively held Bighorn NF was “occupied”; Wyoming appellate court applied Repsis and denied Herrera’s treaty defense.
- Supreme Court grant: Presented questions whether the treaty right survived statehood, whether Repsis precluded Herrera from relitigating that question, and whether Bighorn NF is “occupied.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Crow Tribe’s 1868 treaty hunting right was extinguished by Wyoming statehood | Herrera: Mille Lacs controls; Congress must clearly abrogate treaty rights; statehood did not clearly abrogate the 1868 right | Wyoming: Race Horse controls; identical language was held to expire at statehood because of equal-footing and treaty context | Held: Treaty right did not expire at statehood; Race Horse repudiated to extent it allowed implied extinguishment at statehood (Mille Lacs controls) |
| Whether the prior decision in Repsis precludes Herrera from litigating survival of the treaty right | Herrera: Mille Lacs changed controlling law so preclusion exception applies | Wyoming: Repsis is binding on Tribe members; Herrera is precluded | Held: Repsis does not preclude Herrera because Mille Lacs repudiated Race Horse reasoning and change-in-law exception applies |
| Whether creation of Bighorn National Forest rendered the land categorically "occupied" (so treaty hunting right no longer applies) | Herrera: “Unoccupied” means lack of non‑Indian settlement/residence; proclamation reserved land from settlement so it remained unoccupied | Wyoming: Federal control, resource use, mining/logging and reserve status made the lands occupied | Held: Bighorn National Forest was not categorically “occupied” for treaty purposes; “unoccupied” understood as absence of non‑Indian settlement |
| Whether State conservation regulations can limit treaty hunting right (left open) | Herrera: Treaty protects right subject to reasonable conservation regulations | Wyoming: State may regulate under conservation interest to protect wildlife and settled expectations | Held: Court did not decide; remanded for consideration of conservation-regulation arguments on remand |
Key Cases Cited
- Ward v. Race Horse, 163 U.S. 504 (1896) (earlier decision holding identical treaty language expired at Wyoming statehood)
- Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (held Congress must clearly abrogate treaty rights; rejected implied extinguishment at statehood)
- Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) (Tenth Circuit decision holding the identical Crow treaty right ended at statehood and alternatively holding Bighorn NF was occupied)
- Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984) (repudiated precedent may lose preclusive force)
- Bobby v. Bies, 556 U.S. 825 (2009) (discusses change-in-law exception to issue preclusion)
- Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979) (treaty rights can coexist with state conservation regulation)