Courthouse Steps Decision: Herrera v. Wyoming

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On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable.  In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “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.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.

Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.

Join this teleforum to hear a reaction to the Herrera decision from A.J. Ferate with the Oklahoma City office of Spencer Fane. Mr. Ferate, a tribal law and appellate practitioner, represented Oklahoma oil and gas producers as amicus in the Carpenter v. Murphy case currently before the U.S. Supreme Court. He also serves as a member of the Executive Board of the Federalist Society's Environmental Law and Property Rights Practice Group. 


A.J. Ferate, Of Counsel, Spencer Fane LLP



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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Friday, May 24, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision discussion on Herrera v. Wyoming. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.


      Today we are very fortunate to have with us Mr. A.J. Ferate, who is Of Counsel for Spencer Fane LLP. After our speaker gives his remarks, we will have a Q&A by the audience, so please keep in mind what questions you have from his remarks, from the case, or for our speaker himself. Thank you very much for sharing with us today, A.J. The floor is yours for your remarks.


A.J. Ferate:  Thank you very much. I really appreciate it and appreciate being on today. I'd be remiss if I didn't start out by saying that as we head into the Memorial Day weekend, I wanted to note my appreciation for my shipmates in the Navy, as well as those in all the other branches of our nation's military service that have lost their lives in defense of the nation. Very likely we wouldn't be holding teleforum calls with a free exchange of ideas like we are right now if it weren't for those sacrifices. So I appreciate those of you who have had people go before us in defense of our country.


      Let's move into the case a little bit. And this case is certainly about Herrera v. Wyoming, as was highlighted and advertised, but I want to start out going back a couple hundred years and focusing on the history of the Crow tribe a little bit to kind of set the context and set where we are. Historically, the Crows were a nomadic hunting people. They lived in the Northern Plains area, including North Dakota, Wyoming, Montana. Today, the tribe has roughly about 12,000 members.


      In 1851, the Treaty of Fort Laramie was signed. It really outlined the specific lands the Crows would receive in trust. In the treaty, the tribes entering the agreement did not surrender the rights of hunting or fishing. Generally, the assigned lands were west of the Powder River but included lands that are today in the Bighorn National Forest, for those of you that are familiar with Wyoming.


      Unfortunately, due to westward expansion, the search for gold, regular invasion by the Lakota and Sioux, there were territory disputes, fairly significant territory disputes that continued and that really led to the need to negotiate a new Treaty of Fort Laramie. And that was signed by the Crows in 1868. Under the treaty, the reserved land of the Crows was reduced to about 8 million acres in modern day Montana, really kind of in that southwestern portion of Montana, if you don't have a map that you've looked at on this issue before. And in exchange for or agreeing to that reservation, the Crow received payment in cash, farming equipment and feed, construction of some buildings on site, and other items that the federal government would provide.


      Throughout the negotiations, the Crow representatives made very clear that they did not want to be a farming people. They truly desired their continued ability to hunt and fish. During those great peace commission discussions, Commissioner Taylor, on behalf of the United States government, acknowledged their right to hunt the land. Specifically, the leader of the Crow, Blackfoot, was known to have said, "You speak of putting us on a reservation and teaching us to farm. That 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." It was known that Commissioner Taylor responded that the game will soon entirely disappear, but he agreed to respect their right to hunt.


      The treaty included specific language stating, and I quote, "The Indians shall have the right to hunt on the unoccupied lands of the United States so long as the game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts." Just months after signing this treaty, Congress established the State of Wyoming. Twenty-nine years after signing the treaty, President Cleveland set aside significant portions of the former Crow lands in Wyoming as the Bighorn National Forest.

      Moving forward to modern day, we encounter Crow tribal member Clayvin Herrera. Herrera and other tribal members crossed from their Montana reservation into the Bighorn National Forest and hunted for elk, successfully capturing several. The State of Wyoming investigated the taking of the elk and charged Mr. Herrera with misdemeanors for taking elk out of season and without a state license. Herrera cited the hunting privilege of the Fort Laramie Treaty in 1868 in defense of his hunt. In response, the State of Wyoming claimed in the district court 1) that under the Tenth Circuit decision in Repsis, the claim was precluded, and 2) Wyoming statehood invalidated the hunting privileges outlined in the treaty of 1868.

      Since we're getting into some case law here, I want to pause, and I kind of want to highlight the three particular cases that are really at issue at the Supreme Court and really pertinent to the discussion that the Court had in their recent decision. And the first one is the 1896 decision in Ward v. Race Horse, or anecdotally know as Race Horse. This case also came from Wyoming but involved the Bannock tribe. The Bannock treaty was actually signed in 1869, just months after the Crow treaty was signed in 1868. The language of that treaty, particularly related to hunting rights, is remarkably the same. Again, it says that they "shall have the right to hunt upon 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 border of the hunting districts."

      In that case, the Supreme Court ruled that 1) the act of establishing Wyoming invalidated the hunting right of the Crows, and 2) that the equal footing doctrine invalidated that hunting right as well. The equal footing doctrine, as applied here in this case, really focused on this concept that every state enters into the Union in the same way as every other state prior to it. Here, in the Race Horse decision, what the Court said was that equal footing would require the invalidation of the treaty with the Crow and its hunting right, really kind of coming to that conclusion that allegedly no other state had a treaty held against it as it entered the Union. There was some issue in dissent, I think, in that case where the Justice in dissent highlighted that Kansas was subject to the inability to tax on the reservation at that point, so there may have been some question as to whether that equal footing doctrine actually applied in Race Horse, but that was the decision as we face it in the present case today.

      In 1995, the Tenth Circuit took up the Crow Tribe of Indians v. Repsis. Repsis is a very significant discussion point within this case for a couple of reasons. It's similar facts to the Herrera case. It's similar facts, in fact, to the Race Horse case. In that case, a tribal member named Ten Bear hunted federal lands in the Bighorn National Forest and took seven elk during that hunt. In that case, the Tenth Circuit applied Race Horse, as you might presume, stating that the 1868 treaty only provided a temporary right to hunt that was negated by Wyoming statehood.

      As a second reason, the Tenth Circuit stated that the establishment of the Bighorn National Forest actually rendered the land as occupied under the treaty, revoking the tribal hunting right. That second issue of the federal lands being occupied was not at issue in the Race Horse case, in part because the Bighorn National Forest had not been established to that point.

      Five years later, after the Tenth Circuit's decision in Repsis, Minnesota v. Mille Lacs Band of Chippewa Indians was actually decided by the U.S. Supreme Court. Again, similar facts to the Herrera case, but in this case, it involved the Chippewa treaty of 1837, really focusing on land in Minnesota. Chippewas had also had native lands in Wisconsin and other areas of the upper Midwest. This issue focused specifically on Minnesota. The language from the treaty is not exact, but it's similar, and it allowed for "the hunting, fishing, and gathering of wild rice upon the lands, the rivers, and the lakes included in the territories seated."

      Justice O'Connor, writing for the majority, abrogated Race Horse. Her writing in that one—and that was a 5-4 decision of the Court as well—she wrote, "But Race Horse rested on a false premise. As this Court's subsequent cases have made clear, an Indian tribe's right to hunt, fish, and gather on state lands are not irreconcilable with the state sovereignty over the state's natural resources."

      In dissent, Rehnquist, joined by four Justices including Thomas and Scalia, stated that the majority decision had the effect of overturning Race Horse. The majority in that did not say that. They did say that they abrogated Race Horse, but in dissent, Rehnquist and the other three Justices did say that it had the effect of overturning Race Horse. Worthy of note, in oral argument here in the Herrera case, Justice Breyer actually said that "We should have simply stated that we overturned Race Horse because it appears we overturned Race Horse."

      Coming back to the Mille Lacs case, Justice Thomas actually wrote a dissent in that case. He did not write in dissent in the Herrera case, and so I'll highlight his comments as I come to the reasoning here in the Herrera case.

      Issues of the parties -- Wyoming, of course, put first and foremost in their claim that issue preclusion needed to be addressed and rendered the case essentially unrecognizable by the courts. And that was based on the Repsis decision and the fact that, procedurally, it halts any claim that Herrera can bring because the Crow tribe in Repsis brought suit on behalf of the tribe and its members in that case. Furthermore, the State of Wyoming claimed that the treaty indicates that off-reservation right to hunt ended at the time of Wyoming statehood, similar to the Race Horse decision, and then again, following the Repsis argument that the national forest is occupied for the purposes of the treaty.

      Herrera took a little bit different approach, but immediately, of course, responded to each of these, first of all saying that the hunting right had not been lost to statehood. I think there's a plain text argument that can be found there. The national forest is not occupied for the purposes of Repsis. And third, that issue preclusion is not at play here, and this was an important discussion back and forth in the case because Mille Lacs created a change in the applicable legal context that opened the issue for reconsideration. The U.S. Solicitor General participated in the case as well, saying that -- essentially amplifying the positions of Herrera, complementing those views, but also stating very clearly that the U.S. government does not view the national forest as occupied.

      In a 5-4 decision, Justice Sotomayor was joined by Justices Ginsburg, Breyer, Kagan, and Gorsuch. And of course, in dissent, Justice Alito wrote, joined by Justices Roberts, Thomas, and Kavanaugh. Really, Justice Sotomayor really went to the point right away of addressing Mille Lacs. And that spelled for those of you, if anybody's taking notes out there, M-I-L-L-E space L-A-C-S, if you're trying to pull that up later, if you're trying to understand the decision or read it for yourself.

      But Mille Lacs undercut both pillars of the reasoning in Race Horse, both the establishment of the State of Wyoming and the equal footing, and so essentially rendered -- they do not go this far, but they have essentially said that Mille Lacs overruled Race Horse. Second, Repsis did not preclude Herrera from arguing statehood did not end at the treaty because there was a change in applicable legal context. So she agreed with Herrera's claim that there was a change in applicable legal context, and that is that Mille Lacs repudiation of Race Horse justifies the allowance here.

      Third, she said that, applying Mille Lacs, Wyoming statehood did not end the hunting right. And in finding that, she again went, just like Mr. Herrera did, went to the text. And she found that there were four circumstances that would expire the hunting right, first being that the lands are no longer unoccupied; second, that the lands no longer belong to the U.S.; third, that game cannot be found thereon; and fourth, that tribe and non-Indians are no longer at peace on the borders of the hunting districts. And she finally summed up with the fact that Bighorn National Forest is not occupied when the national forest was created.

      She did do a little footnote on this one in response to Justice Alito, and we'll get into his comments in a second. But she said that the Court did not address issue preclusion on that final note as to whether the Bighorn National Forest is not occupied. So that point of Repsis really kind of stands as still an issue, according to the majority opinion, that can be decided down in the Wyoming district courts still. But she did note that the national forest is not occupied, but whether that is precluded or not from argument for Mr. Herrera, that is for another day. That wasn't actually approved for consideration by the Court.

      In dissent, Justice Alito very strongly advocated for the fact that Race Horse and Repsis are on point, and issue preclusion should have applied. He mentioned that the Court has never held that a prior judgement lacks preclusive effect under these circumstances. There was one case discussed by the majority in this, and he doesn't necessarily -- he's, frankly, willing to accept an argument on the other side that it should. He notes the second restatement that talks about issue preclusion on these sorts of issues, and I guess in response to the majority, also highlights a number of circuit opinions that agree that there should be an application that a change in circumstances should allow for the preclusive effect to expire.

      He asks how relevant must the legal context change? He's immediately trying to determine what that test should be, how significant must the legal context must change. Is it a little, is it a lot? He doesn't get an answer in this case, but he is already thinking to that next step. The majority, of course, states that according to Alito, that Mille Lacs overrules Race Horse on the equal footing doctrine, but did Mille Lacs actually reject statehood itself? He doesn't seem to think so, and he goes into some great lengths to kind of discuss that issue.

      Next, he wonders if issue preclusion applies to the question of whether the national forest is unoccupied. And I mentioned that the majority says, "We're not considering that. That's for a later day." In fairly strong language, he said that this decision is actually worthless unless we actually answer that decision because the courts down there can just simply say that issue preclusion stops the argument on that topic.

      As I mentioned, Justice Thomas did not write a concurring dissent in this, but I did also want to highlight what he did say in Mille Lacs. He agreed, of course, with Justice Rehnquist's decision there, but really, his focus on his separate dissent in Mille Lacs focused on the conservation necessity. And I raise that because within the oral argument, there were a number of conversations about that conservation necessity, and did it exist, and would it apply? And I think that I didn't hear anything in the oral argument that would suggest that either side or any side believed that the conservation requirement necessity wouldn't apply, and that Wyoming couldn't apply its conservation rules within the national forests, and specifically against the Crow.

      But one of the things I wanted to highlight, too, is that Justice Thomas should not have had his concern and those at oral argument should not have had their concern because Puyallup Tribe v. Washington Department of Game really more than sufficiently answers that question, which is that a generally neutral conservation rule, it must be followed by tribes asserting their treaty rights. And yes, I did say "Puyallup" correctly because I grew up in the Northwest, and only Northwesterners know how to properly say Puyallup.

      Just a few comments of my own on this case. Justice Alito's dissent really kind of gave me a lot of pause about where this went. I thought I had a fairly strong position on this, and Justice Alito really did do justice to the argument here, really made me kind of think, and pause, and analyze this maybe from a little bit different direction than I originally started, and really focus specifically around the second point of Repsis that has been left outstanding. But I guess even if the majority is applying a new exception to issue preclusion here, this case really isn't a close call. And how to apply it going forward certainly needs to be discussed, but I think that can be left for another day.

      I do believe that this case was decided correctly, just as I thought Cougar Den was correctly decided earlier in the term. It would make really no sense, particularly since Commissioner Taylor at the time of the great peace treaty thought that the game soon would disappear, for statehood to have been brought to an end to the treaty right when they could have simply waited for the game to disappear. Now, the game has certainly not disappeared for a number of reasons, including Wyoming's conservation rules and regulations. But that game has not disappeared, and so the treaty does exist going forward today, in my opinion. Mille Lacs, decided after Repsis, cannot be ignored and should overcome issue preclusion.

      I didn't really expect this case to be as close as it was after reading the briefing and listening to the oral argument. After reading the opinion and going back and relistening to the oral argument, I can see where this went. Frankly, I thought Justice Roberts originally may have actually been on the majority's side and made more of a 6-3 decision, but I definitely see after relistening how this arrived at a 5-4 decision.

      I really would have liked to have read a concurring from Justice Gorsuch on this, but his concurrence in the Cougar Den case earlier in the term where he applied Mille Lacs there, combined with his line of questioning at oral argument, it really does kind of shed some light on his views in this case. And I do believe his views are likely consistent between the Cougar Den case and this Herrera decision.

      I know that some of my fellow FedSoc friends have raised serious concerns in some of the articles they've written and in some of the tweets that I've read from some of the professors out there. One professor suggested that the Court overturned a 123-year-old decision here. I think this ignores Mille Lacs to a great extent. It was decided in '99, and frankly, would ignore that the Court left the issue of issue preclusion out there in the Repsis case.

      A question that I have received several times this week here in Oklahoma is does this decision forecast any decision or have an impact on how the Murphy decision might come later in the next few weeks? For those of you that aren't familiar with the Murphy case—I think most Oklahomans are—but the Murphy case involves a disestablishment question as to whether the Creeks in this particular case were disestablished or diminished, had their lands disestablished or diminished at any point. And it revolves around a Mr. Murphy who committed a horrendous crime and did not deny the crime, but simply claims that he should not have been tried by state courts, he should have been tried by the federal courts. We can get into that decision a little bit further in questions if anybody has any.

      But essentially, the issue here in Herrera is unrelated to the issues in Murphy. But I think you could arguably see Justice Gorsuch's recusing himself from that case. I can see -- you can certainly find that there is a 4-4, if you take Justice Gorsuch out of the equation, if you base it on Herrera's decision lines. But if you listen to oral argument and you look at even some of the supplemental briefing in the Murphy case, I see this possibly being a 4-4 decision in Murphy. But more likely, because of how I saw Justice Breyer struggling with that case, I think it's more likely to be a 5-3 in support of the State of Oklahoma.

      Finally, before we open it up for questions and answers, I think it's worth noting that those of you listening that follow tribal law regularly, you might want to pay attention to what's going on in the Cherokee Supreme Court. This morning, they heard oral argument on whether Citizens United applies to tribal elections or whether the tribe's in-kind contributions can impact the rights of a candidate to run for office when an independent expenditure occurs. Federalist Society member Jason Reese argued that case this morning on behalf of David Walkingstick, the candidate the Cherokee Election Board threw off of the ballot last Friday.

      With that, I appreciate your ear, and I open it up for questions.

Wesley Hodges:  Well, thank you so much, A.J. I'm happy to share that we do have quite an audience on a Friday afternoon before a holiday weekend.

A.J. Ferate:  Great.

Wesley Hodges:  So I want to thank you all for tuning in and, A.J., thank you so much for your remarks. A.J., I do have a question for you. You may have referenced this in your remarks already, but I would appreciate if you could go into more detail. How does this affect the Murphy case? Do you have any more details on that?

A.J. Ferate:  Well, sure. And I can discuss that a little more. And as you did say, I don't think, immediately, it impacts any decision that we could foresee from the Court. I think that they really are separate issues, whereas in Murphy, we're dealing with a ruling under the Solem analysis, perhaps, as to the disestablishment question. And I think that, really, what we -- to summarize Solem for you quickly, when you're dealing with whether a reservation was disestablished or diminished, you have to go through a litany of questions. No particular one is preclusive. It's really more of an analysis to figure out what really happened with the courts. And so, really, what we are -- I guess I'll highlight here. I already mentioned that it's possible we're looking at a 4-4 or 5-3 decision from the Court on that one.

      But really, I want to specifically refer to Lisa Blatt's argument at the conclusion, I guess, during her rebuttal time that I think really captured and encapsulated some of the difficulty that I think Justice Breyer was having during oral argument. She said there are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identify as Native American; 155 murders, 113 rapists, and over 200 felons who committed crimes against children. It's not clear that the federal court could retry any of these cases because the evidence is too stale or the statute of limitations is expired, which appears to be the case in about half of them.

      She goes on to highlight the Indian Child Welfare Act, that any parent and any child can undo any prior Indian Child Welfare custody proceeding if the state court lacked jurisdiction because the Indian child lived on a reservation. I think that those sort of dynamics seemed to bother Breyer. I think that, more than likely, it appeared he may have been wanting to decide on behalf of Mr. Murphy, but I think he's trying to think though these dynamics. And we'll certainly find out here in the coming weeks.

Micah Wallen:  Excellent. Well, thank you so much, A.J. Well, seeing no immediate questions from the audience, A.J., do you have any further thoughts you want to jump into?

A.J. Ferate:  Again, I go back to kind of one of -- the original basis that I said when I shared my thoughts, and that really is that I don't believe that this decision was as close as the 5-4 decision. Certainly, if we were to not have had a universe where Race Horse existed, I think that this is probably a larger decision and an easier decision by the Court. Obviously, issue preclusion was kind of the dynamic, more of a procedural view on this, but I believe that it's pretty evident that the tribal treaty right does exist and should exist still.

Micah Wallen:  Wonderful. Well, thank you, A.J. Any closing thoughts?

A.J. Ferate:  No. I just really enjoyed being on the call. I hope everybody has a restful Memorial Day weekend, and again, thank those of you who have had family members go before us in service of our country for their service. So thank you.

Micah Wallen:  Absolutely. We wholeheartedly agree with you, A.J. On behalf of The Federalist Society, I would like to thank you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining. We are now adjourned.


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