In 2014, Clayvin Herrera and fellow citizens of the Crow Tribe followed a herd of wapiti (confused white men call them elk) from the Crow Reservation in Montana into the Bighorn National Forest in Wyoming and shot three wapiti to feed their families. The state of Wyoming said Herrera didn’t have a license and was hunting out of season, fined him over $8,000, and banned him from hunting in Wyoming for three years. Herrera said, hold up—I’m an Indian! and the Crow Tribe’s treaty with the United States of America (signed by Herrera’s ancestors at Fort Laramie on May 7, 1868, just eight days after the Sioux tribes signed their own Treaty of Fort Laramie) says his people “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.” Wyoming said nuts to that—the treaty went poof when Wyoming became a state in 1890, and besides, the Bighorns National Forest is occupied.
Yesterday, the United States Supreme Court rejected Wyoming’s arguments, affirmed the ongoing force of the Crow treaty, and sent the case back to the lower courts.
In a 5–4 decision, the court explicitly overturned its 1896 ruling in Ward v. Race Horse, which had declared that Wyoming statehood had canceled an identical hunting provision for the Shoshone and Bannock tribes in the Fort Bridger Treaty of 1868. The 1896 Court had contended that admitting Wyoming on an “equal footing” with existing states meant allowing Wyoming “to regulate the killing of game within their borders,” pre-statehood treaties be darned. The 1896 Court further held that Congress never meant the Shoshone-Bannock treaty to last forever. The privileges granted by that treaty—and by Wyoming’s argument, any similar treaty with Indians—were “temporary and precarious.”
In 1999, the Supreme Court ruled in Minnesota v. Mille Lacs that treaties could withstand statehood, but it didn’t explicitly reject Race Horse. Yesterday, Justice Sonia Sotomayor finally put Race Horse down and said statehood cannot erase Native treaty rights unless Congress explicitly writes that erasure into the statehood act. In this case, the only conditions that could cancel the Crow Tribe’s right to hunt are the conditions in the extant 1868 treaty: the land in question becomes occupied, the United States loses possession of the land (Красный Рассвет!), the wapiti and other game disappear, or the Crow and the white man go to war.
Wyoming did try to argue that statehood rendered the whole state “occupied,” but Justice Sotomayor was having none of that. Nor did the Court accept Wyoming’s contention that National Forest status rendered the Bighorns “occupied.” Justice Sotomayor wrote that the treaty must be read as the Indian signers would have understood its terms, and historical evidence presented established that to the Crow, “unoccupied” meant “free of residence or settlement by non-Indians.”
Harvard Law Professor Noah Feldman says adopting the perspective of the Native signers is an important moral statement from the Court, rejecting the idea that modern courts must be complicit with the deceptive language our forebears used to steal Native lands. It is also an important statement that states’ rights do not automatically supersede tribal rights… a contention we might hear mentioned in the ACLU’s lawsuit against Governor Kristi Noem’s anti-protest laws.