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Wapiti Uneasy as SCOTUS Affirms 1868 Tribal Treaty Hunting Rights

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.

Wapiti
Not among the amici curiae…

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.

13 Comments

  1. Ariel 2019-05-21

    At least you picked the Swayze version. ;)

  2. Cory Allen Heidelberger Post author | 2019-05-21

    (Ariel, I refuse to acknowledge the existence of any other version.)

  3. cibvet 2019-05-21

    Finally, 5 justices said the US must show some honor and back the treaties the government signed.That appears to me there are 4 without honor, but not a surprise.

  4. John Dale 2019-05-21

    This is a shockwave into the Native American property rights debate.

  5. Cory Allen Heidelberger Post author | 2019-05-21

    I’m very curious to see what litigation, either pending or potential, this ruling could affect. Can anyone think of current cases in which our Lakota neighbors may be challenging certain actions on the basis of treaty rights that the state has declared no longer apply?

  6. Debbo 2019-05-21

    “Justice Sonia Sotomayor finally put Race Horse down.”

    Shades of Santa Anita race track.

  7. Debbo 2019-05-21

    Whoa! This is big. I’m looking forward to hearing from our tribal expert, Roger, and our legal expert, BCB.

  8. leslie 2019-05-22

    Your exceptional cite to SLATE: Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights…provides background on Justice Gorsuch, inheritor of the stolen SCOTUS seat left vacant when Scalia died and MCCONNELL broke the justice system in half. FRONTLINE, pbs last night painted this dire judicial predicament the repubs have treasonously left the country in with its war on the constitution.

  9. John 2019-05-22

    Let’s hope the Treaty of Laramie applied to the Dakota had a hunting provision. It’s long past the time for a full and complete exercise of tribal hunting and fishing rights in South Dakota. The white racists heads, in and outside of government, will explode.

  10. leslie 2019-05-23

    The City of Rapid City, even today, brands the founders fiction with new signage that fails to mention early February 1876 prospectors Brennan et al, who plotted downtown Rapid City, were tresspassing in violation of the 1851/1876 Laramie treaties (which contain hunting provisions as long as the grass grows, water flows and buffalo and game roam.) In true genocidal fashion the military declared war and attacked the Indians at the battles of the Rosebud and Little Big Horn in June 1876. After Crazy horse and Sitting Bull were starved into surrender they were murdered.

    Instead Rapid City prominent movers and shakers today are elevating SDSMT surgeon Valentine Magillicudy as a “friend” of Crazy Horse. His 1890s Mt Rushmore Road home is being remodeled for tourism, a few blocks from the misleading founders signage on the Rapid Creek bike path. The City owns The Journey Cowboy/Indian/Dinosaur Museum and has access to correct historical research but consistently refuses to install world class management that would legitimately tell the history as it deserves to be told.

  11. leslie 2019-05-23

    Sorry, “1868” Laramie treaty.

  12. bearcreekbat 2019-05-23

    According to Wikopedia the U.S. was playing fast and loose in the 1868 Fort Laramie treaty as it pertained to hunting rights. The treaty is reported to have:

    . . . guaranteed the tribes access to the area to the north and west of the Black Hills[k] as hunting grounds, “so long as the buffalo may range thereon in such numbers as to justify the chase.”

    Apparently,

    the tribes considered this language [“so long as the buffalo may range”,] to be a perpetual guarantee, because “they could not envision a day when buffalo would not roam the plains”;

    The U.S. representatives knew this but had different ideas:

    The concept was clear enough to the commissioners … [who] well knew that hide hunters, with Sherman’s blessing, were already beginning the slaughter that would eventually drive the Indians to complete dependence on the government for their existence.[1]

    https://en.wikipedia.org/wiki/Treaty_of_Fort_Laramie_(1868)#Articles

    That brings us to the Herrera v. Wyoming decision and Justice Gorsuch’s viewpoint, which is reportedly shared by the liberal block on the Court. According to Mark Joseph Stern in the Slate report mentioned in a previous comment by leslie, Gorsuch made it clear in an earlier case

    . . . that when the court is “dealing with a tribal treaty,” it must “give effect to the terms as the Indians themselves would have understood them.” He pointed out that the federal government “drew up this contract” and employed its “power of the pen” to “its advantage.” Citing findings in an earlier case, he wrote:

    During the negotiations “English words were translated into Chinook jargon … although that was not the primary language” of the Tribe. After the parties reached agreement, the U. S. negotiators wrote the treaty in English—a language that the Yakamas couldn’t read or write. And like many such treaties, this one was by all accounts more nearly imposed on the Tribe than a product of its free choice.

    Gorsuch explained that in the Yakama language, the phrase “in common with” actually meant “[for] general use without restriction.” Thus, they believed the treaty gave them “the right to travel on all public highways” without being taxed “while engaged in the transportation of tribal goods.” As a result, Washington may not tax gas that Yakamas import onto tribal land via highways. Gorsuch concluded:

    https://slate.com/news-and-politics/2019/05/neil-gorsuch-supreme-court-tribal-rights-sonia-sotomayor.html

    Applying Gorsuch’s reasoning to the 1868 Fort Laramie Treaty and the understanding that the Sioux had regarding the protection guaranteed to their hunting rights, current law excluding Natives or limiting Native hunting rights in S.D. and other states is plainly subject to a successful challenge despite supporting contrary case law.

  13. leslie 2019-05-23

    from the 1851 treaty: the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.

    there are many related treaties in this context and “the grass grows, waters flow and buffalo roam” language was used in various of these. Thus the helpful decision applies “…the terms as the Indians themselves would have understood them.”

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