Vynateya Purimetla
In recent years, the Supreme Court of the United States has become increasingly embroiled in Native American disputes.
In 2016, the Court heard arguments in Dollar General Corp v. Mississippi Band of Choctaw Indians, which posed the question of whether a tribal court had jurisdiction to hear a non-tribal matter. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016). The Justices were equally divided (4-4) on the outcome, with Justice Gorsuch recused due to his previous involvement in the case at the circuit level. Such indecision and conflicting opinions regarding Native American issues have long been commonplace at the Supreme Court level, with numerous decisions in similar cases being decided in contentious 5-4 splits. However, the Court continues to take up Native American cases, perhaps in recognition of the increased violence aimed towards Native American women, the growing tensions over pipelines and other environmental concerns affecting indigenous communities, and the dwindling number of territories set aside solely for indigenous people.
Last year, the Court heard arguments in two cases related to Native American rights. First, the Court agreed to take up an appeal from Jimcy McGirt, a member of the Muscogee Nation. McGirt’s case is highly analogous to Dollar Gen. Corp., with both cases addressing the grey areas around tribal court jurisdiction. Dollar Gen. Corp., 136 S. Ct. 2159; McGirt v. Oklahoma, 18 S. Ct. 9526 (2020). This suggests that the Court would like to reach a decisive outcome on this issue, possibly due to an elevating number of Native American conflicts across the nation.
It was in this greater context that the nine Justices heard the second and most recent case regarding Native American rights, Herrera v. Wyoming. 139 S. Ct. 1686 (2019). Ultimately, the Court issued a tendentious decision in the case, which revolved around the rights of Native Americans to hunt on lands within areas now designated as National Parks. The case is demonstrative of states’ continued tumultuous relations with indigenous communities.
The case began with Clayvin Herrera and two other members of the Crow Tribe of Indians, all of whom were Native American subsistence hunters living on the Crow Reservation in Montana. Herrera, 139 S. Ct. at 1693. While on a hunting expedition in January 2014, the three followed a group of mountain elk from the Crow Reservation into the Bighorn National Forest in Wyoming. Id. The group shot several elk and returned to Montana with the meat. Id. Wyoming officials then cited Herrera and the other Tribe members for hunting out of season, a violation of Wyoming state law. Id.
Although Herrera’s hunting mates pleaded guilty and paid the accompanying fine for the charge, Herrera refused. He argued that the Treaty of Fort Laramie permitted Native Americans to hunt on any “unoccupied lands.” Id. at 1694. In response, Wyoming claimed the rights granted by the treaty were invalidated in Ward v. Race Horse, which found that an identical hunting treaty signed with the Shoshone and Bannock Tribes expired when Wyoming became a state. Id.; Ward v. Race Horse, 163 U.S. 504, 514-15 (1896). Herrera was unsatisfied by this claim and filed for certiorari to bring the case in front of the Court, where it was heard in January 2019. Herrera, 139 S. Ct. 1686. After hearing oral arguments, the Court ultimately came to the decision that: “The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within the Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve.” Id. at 1691-92. This decision was a significant victory for Native American’s rights, overturning century-old precedent.
The Justices were split 5-4 in the decision—an unsurprisingly close outcome for a controversial Native American case. Perhaps the only surprise was the composition of the majority bloc, which consisted of the four liberal justices (Justices Sotomayor, Ginsburg, Breyer, and Kagan) along with Justice Gorsuch. This unlikely majority found that the lower court had erroneously predicated its decision on Ward v. Race Horse. Id. at 1694. The Court noted that the proper controlling decision was that of Minnesota v. Mille Lacs Band of Chippewa Indians, which found that a treaty signed with the Chippewa Tribe granting the right to hunt, fish, and gather on ceded lands survived even after Minnesota became a state around the Chippewa Reservation. Id. at 1695; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-08 (1999). This decision, made nearly a century after Race Horse, provided a much more recent and helpful baseline for Herrera’s outcome.
However, the point of interest in this case does not lie in its premise—or even in its decision. What is most fascinating is why the Court opted to hear this case, as well as its broader implications for setting future precedent and establishing Native American rights at the federal level. Recently, there have been increasing discrepancies between Native American tribes and the states in which they live, predicated on rights ensured to them in treaties. Just this past November, the Makah tribe of Washington attempted to exercise its right to hunt whales, granted to the Tribe in the Treaty of Olympia in 1859. John Eligon, A Native Tribe Wants to Resume Whaling. Whale Defenders Are Divided, Ny Times (Nov. 14, 2019). However, state environmental activist groups raised concern over the practice, leading to a bitter disagreement between tribal leaders and environmental organizations. Id. One possible reason that the Court acceded to hear Herrera in 2016 was to set a clear precedent for precisely these types of situations.
However, the jurisprudence remains on shaky ground, as states continue to oppose Native American treaty rights and activist groups partake in incendiary exchanges with tribes. Native Americans must continue to actively enforce their treaty rights in the face of abuses backed by state power. In Herrera, the Court indicated that it is willing, at times, to protect these rights.