Last Updated May 28, 2019 at 9:45 a.m. ET
The U.S. Supreme Court handed the Crow Tribe a major victory this week in a long-running hunting rights dispute between the tribe and the state of Wyoming. This is the second time that the justices have ruled to enforce tribal treaty rights this year, and a third, perhaps more far-reaching, case is still before the justices.
Until recently, the Supreme Court was seen as unsympathetic to Native American causes.
“Every Indian lawyer, expert, close observer cringes every time [the Supreme Court] takes a case,” Joe Valandra, an attorney and member of the Rosebud Sioux Tribe of South Dakota once told Politico.
But in both of this year's cases, Justice Neil Gorsuch, a conservative appointed by President Donald Trump, joined the court’s four liberals in favor of Native Americans. He comes to the court from Colorado, where he often encountered tribal claims as an appeals court judge.
“It all seems to boil down to Justice Gorsuch and his view of treaty interpretation, in particular reading treaties as they would have been understood,” says Forrest Tahdooahnippah, an attorney for the Minneapolis firm of Dorsey & Whitney. “Gorscuch’s willingness to look into the historical record ... has been what has tipped the scales in these cases.”
The cases “are incredibly significant both in terms of tribal sovereignty and jurisdiction,” Valandra tells Governing now. “Putting tribes in the same context generally as a state or as another sovereign is a major step forward. And I hope that's what we're seeing here. But I don't know that for sure.”
But both of the cases the court ruled on this year deal with treaty interpretation. The court may not be as sympathetic in other types of cases, says Valandra, a former chief of staff of the National Indian Gaming Commission and now the managing director of VAdvisors, a consulting firm. And Gorsuch has recused himself from the third case, adding further uncertainty to its outcome.
Herrera v. Wyoming
In Herrera v. Wyoming, the court ruled that the Crow Tribe’s off-reservation hunting rights that it negotiated with the United States in an 1868 treaty were still in effect. The state of Wyoming, which now covers some of the land that the Crow tribe was given access to, argued unsuccessfully that the tribe’s right to hunt on Wyoming lands ended when Wyoming became a state in 1890.
“The Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right nor did the 1868 Treaty expire of its own accord at that time. The treaty itself defines the circumstances in which the right will expire. Statehood is not one of them,” Justice Sonia Sotomayor wrote for the court.
The ruling is a victory for Clayvin Herrera, a member of the Crow Tribe who was charged with hunting elk off-season and without a license in the Bighorn National Forest in Wyoming, which is adjacent to the Crow Reservation.
“The Crow Tribe is very, very gratified to see the Supreme Court upheld its … 1868 treaty rights that remains of vital importance to the survival of the tribe to this day,” says Heather Whiteman Runs Him, an attorney for the Native American Rights Fund who filed a friend-of-the court brief on behalf of the Crow Tribe in the Supreme Court case. “There are resources we depend on. … This is about people’s ability to feed their children in a very impoverished and economically challenged environment.”
The ruling could have an even broader impact -- 19 tribes negotiated hunting rights with the federal government in 12 treaties, according to Lisa Soronen, executive director of the State and Local Legal Center.
The high court’s decision is not the end, though. The judges returned the case to lower courts to sort out further details.
Under the treaty, for example, the Crow Tribe can enjoy hunting rights in areas that are not “occupied.” The high court determined that Wyoming becoming a state did not automatically mean the entire state was “occupied,” but it left it up to lower courts to decide whether the site where Herrera was hunting was “occupied.”
Washington v. Cougar Den
The Crow Tribe ruling comes just two months after the Supreme Court took the side of the Yakama Nation in that tribe's gas tax dispute with the state of Washington.
The Yakama argued that the state’s fuel taxes violate a provision of their 1855 treaty that guarantees them the right to travel freely on public highways. A five-justice majority agreed in the case of Washington State Department of Licensing v. Cougar Den, Inc.
Gorsuch wrote a special concurrence in that decision, in which he expressed sympathy for the Yakama Nation's situation.
“Really, this case just tells an old and familiar story,” Gorsuch wrote. “The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the court holds the parties to the terms of their deal. It is the least we can do.”
The Supreme Court's rulings establish precedents, and the court's new approach toward tribes is likely to be noticed by trial judges and appeals courts across the country. But the Native American treaty case that the justices are currently reviewing could potentially have an even bigger impact.
Carpenter v. Murphy
At issue in this case is whether the eastern half of Oklahoma (including Tulsa) is, in effect, still a reservation of the Creek (Muskogee) Tribe.
Patrick Murphy, a Creek member, is challenging his murder conviction because, he says, he was wrongfully tried in state court instead of federal court. Federal law requires crimes committed on reservations to be tried in federal court.
The Creek, once a powerful tribe in the southeastern United States, were forcibly moved during the 1830s from Alabama and Georgia to what is now Oklahoma. In exchange, the federal government granted the tribe reservation lands in Oklahoma.
Murphy claims the federal government never abolished the reservation, even when Oklahoma became a state in 1907. Much of the land, though, eventually did pass from control of Native Americans to whites, often through violence.
Gorsuch recused himself from the case, which comes out of the same appeals court where he once served. But many of the justices, including liberal ones, seemed disturbed by the prospect of upending state control over the land.
“There are 1.8 million people living in this area,” said Justice Stephen Breyer, a liberal. “They’ve built their lives not necessarily on criminal law but on municipal regulations, property law, dog-related law. And now if we say this land belongs to the tribe, what happens to all those people, all those laws?”
A week after the oral arguments, the Supreme Court directed the parties in the case to file further briefs. The questions they wanted answered suggested that “they are looking for creative ways to resolve the dispute,” wrote Ronald Mann, a Columbia University law professor, for SCOTUSblog.
If the remaining eight justices on the court split along the same lines they did in the previous two cases, it would end with a 4-4 tie and the lower court's decision -- which held that eastern Oklahoma is still a reservation -- would stand.
The court is expected to issue a decision by the end of June.
'Treaties Do Matter'
However the court rules in the Oklahoma case, the two victories for Native American tribes this year are significant, says Tahdooahnippah, the Minneapolis lawyer.
The Supreme Court under Chief Justice John Roberts was so unsympathetic to Native American causes that advocacy groups urged tribes not to pursue appeals to the high court, to limit the potential for adverse rulings, says Tahdooahnippah.
The Roberts court, for example, ruled against a Cherokee father in his bid to block the adoption of his daughter by a non-Native American couple. It also ruled against tribes in disputes over treaties and land claims.
Outcomes in future cases might be different with Gorsuch on the court, says Tahdooahnippah. But Tahdooahnippah also thinks it is significant that Justice Ruth Bader Ginsburg, a liberal stalwart who has voted against tribal claims in the past, has joined the majorities in the last two tribal cases.
“The clear message from the last couple of cases is that the treaties do matter,” he adds. “They are obviously sometimes pretty old. They can be written in arcane language. But ... they do bestow rights upon people that are citizens of both the states they live in and their tribes.”
*CORRECTION: An earlier version of this story failed to mention that Justice Neil Gorsuch recused himself from Carpenter v. Murphy, the Oklahoma death penalty case.