Oklahoma Bar Journal

Keepers of the Word

The Supreme Court Upholds Tribal Treaty Rights in Herrera v. Wyoming

By Jennifer N. Lamirand

#10707377 | © Foto-Biene | adobestock.com

At the time of the founding of the United States, the government approached negotiations with the indigenous people residing in this land as government-to-government negotiations, the very same as their negotiations with foreign nations. Over the first century of the official existence of the United States government, these negotiations resulted in the creation of hundreds of treaties, or official documents confirming the compromises agreed to by the United States and tribal governments. Even though the United States changed its official treaty policy in 18711 in favor of formalizing decisions made in negotiations through official acts of Congress, this change in policy did not affect the validity of the treaties of old.

Nonetheless, based on either the assumption that something in the passage of time alters the force and effect of the promises memorialized in treaties, or that societal or territorial changes have such effect, parties consistently ask the courts of the United States to re-evaluate treaty promises and deny their application. The October 2018 term of the U.S. Supreme Court presented multiple such instances. It also produced a decision to uphold a particular hunting rights promise made by the United States in an 1868 treaty with the Crow tribe. While that case, Herrera v. Wyoming,2 seemingly involved only one tribal citizen’s quest to exercise his traditional hunting rights in an area of the Bighorn National Forest in Wyoming, the decision itself required an examination of the place of treaties in the United States legal system and their continuing application to today’s society. Like the analysis in Herrera, this article reviews the basic background on treaty agreements between the United States and tribal nations before looking to the decision in Herrera and any forecast it provides on the future of treaty rights.

The U.S. Constitution assigns Congress the duty to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”3 Congress exercised this diplomatic duty from the birth of the United States. This grouping of tribal nations in a list of separate, political entities with foreign nations and individual states not only reflects an intention to approach negotiations with tribal governments in a manner similar to negotiations with other governmental entities, but it also identifies the federal government as the proper government to undertake those negotiations. This clause, now referred to as the Indian commerce clause, paired with the delegation of power to the president to make treaties with the advice and consent of two-thirds of the Senate, while forbidding states from doing the same,4 firmly placed interactions with tribal governments and their people within the province of the federal government.

Courts analyzing these commerce and treaty powers tend to relate them to the powers available for regulation of commerce and agreements with foreign nations, while still finding the application to tribal nations somehow different or separate.5 Nonetheless, some international legal concepts and principles applicable to treaties with foreign nations still apply just as forcefully to treaties between the United States and tribal nations. The Constitution identifies all treaties, along with all laws of the United States made pursuant to the Constitution, as the “supreme Law of the Land.”6 Additionally, as in the context of treaties with foreign nations, treaties with tribal governments are self-executing; they do not require any subsequent acts of legislation to make them valid and enforceable.7

In 1871, Congress ended the practice of memorializing agreements with tribal governments in treaty documents in favor of using official acts of Congress.8 The congressional act making this change explicitly stated that it did not “invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”9 Thus, although it imposed a different contracting method, this change did not alter the validity of the agreements made prior to it. United States law to this day explicitly recognizes the validity of treaties made and ratified prior to 1871.10

Yet, while still the “supreme Law of the Land,” the supremacy of treaties has not always translated into supreme efforts to comply with their terms. The 1903 case of Lone Wolf v. Hitchcock11 presents just one example of the many failures to uphold the specific rights granted to Native people in their negotiated treaties with the United States government following 1871. Lone Wolf involved a challenge by a traditional leader and member of the Kiowa tribe to the allotment of lands within the reservation established for the Kiowa, Comanche and Apache tribes over a succession of treaties in the mid- to late-1800s. The Medicine Lodge Treaty of 1867 provided that each head of a family of the Kiowa tribe would choose 320 acres of land for the exclusive possession of that individual so long as he or his family continued to cultivate the land and then stated that no “treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians occupying the same...”12 In 1892, the Jerome Commission came to the Kiowa, Comanche and Apache tribes to negotiate the further allotment and cession of reservation lands to open them for settlement by nontribal members.13 The commission failed to obtain the necessary signatures from three-fourths of the adult, male tribal citizens for the allotment and cession agreement, through either legitimate negotiations or fraudulent means, such as misrepresentations to citizens about the purchase price for the lands.14 Tribal citizens presented objections to the resulting agreement due to these deficiencies to Congress, but Congress still considered bills to effectuate the agreement and eventually passed a bill in 1900 doing just that, with some changes to the terms.15 Additional bills in 1901 addressed the specifics of the allotments and opening of the lands for settlement.16

Lone Wolf, on behalf of himself as well as other members of the Kiowa, Comanche and Apache tribes, filed a lawsuit challenging the 1892 agreement and subsequent congressional acts executing it.17 He claimed the agreement violated the treaty rights of the Kiowa, Comanche and Apache tribes as well as the U.S. Constitution as it deprived these tribes and their members of their property without due process of law.18 For relief in this case, Lone Wolf asked for a temporary and permanent injunction to stop the execution of the terms of the agreement, although the allotment of lands had already started.19 The Supreme Court of the District of Columbia denied the request for a temporary injunction and sustained a demurrer to the cause as a whole.20 The case then went to the Court of Appeals for the District of Columbia, which affirmed the trial court decision, and then the U.S. Supreme Court.21 Shortly after the trial court decision, the president issued a proclamation ordering the opening of the surplus lands of the reservation for settlement despite the appeal.22

Even when faced with evidence of the fraudulent means used to prepare the 1892 agreement, the Supreme Court affirmed the lower court decision.23 The Supreme Court justified this position by recognizing the plenary power of Congress over Indian affairs and categorizing the means used by Congress when exercising this power as a political question not subject to the Supreme Court’s judicial review.24 The Supreme Court merely presumed that Congress must have acted in
faith and exercised its best judgment in this situation.25 Of course, this let the allotment and settlement processes march on, taking lands promised to these tribal nations without meeting the treaty terms negotiated and agreed upon a few decades earlier. It also set a precedent of leaving congressional decisions relating to treaty negotiations and treaty fulfillment without checks and balances from the judicial branch of government for years to come.

The position of the courts has changed over time. Courts now recognize the duty to conduct judicial review of congressional acts relating to the fulfillment of treaty rights, as well as Constitution limitations on such acts.26 Yet, even with judicial review in place, courts still vary in their interpretations and recognition of treaty promises. For example, in Federal Power Commission v. Tuscarora Indian Nation,27 the Supreme Court faced a question concerning the ability of the New York Power Authority, as a licensee of the Federal Power Commission, to exercise federal eminent domain powers to take a portion of lands held in fee simple by the Tuscarora Indian Nation in New York for a reservoir for a hydraulic power project on the Niagara River. The Tuscarora Indian Nation purchased the lands over 150 years earlier to use as a part of its reservation land base following the removal from its traditional homelands in North Carolina.28 After their purchase, the Tuscarora Nation used these lands as a part of, what the United States government referred to in many instances, as its “reservation.” Multiple treaties between the United States and the Seneca Nation, which the Tuscarora Nation had joined as a part of the Six Nations Confederation upon settling in the north, guaranteed the Seneca Nation and the affiliated members of the other six nations, the right to free use and enjoyment of their lands until these tribal groups chose to sell them.29

If the lands in question fell within a reservation, the Federal Power Act would have required the Federal Power Commission to make a specific finding that the license provided to the New York Power Authority to handle the project and the taking of the land for the reservoir would “not interfere or be inconsistent with the purpose for which such reservation was created or required.”30 However, the act also defined “reservation” to mean “national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws...”31 The majority decision by the Supreme Court found the Tuscarora Indian Nation lands at issue fell outside of the meaning of “reservation” used in the act, as the land was not owned by the United States, and that the act allowed for the condemnation of the lands under federal eminent domain powers.32

Writing in dissent Justice Black noted the absurdity of categorizing the Tuscarora Nation’s lands as anything but a reservation encompassed by the language “tribal lands embraced within Indian reservations” in the act. Although not without its own patronizing tone, Justice Black’s dissent recalled the promises of the United States to keep faith with tribal nations and to allow them free and undisturbed enjoyment of their recognized lands for as long as they chose to keep them. It ended with a simple, oft-quoted statement that “[g]reat nations, like great men, should keep their word.”33

The Herrera case offered another opportunity for the Supreme Court to uphold the word of the United States in a treaty agreement. In Herrera, a member of the Crow tribe named Clayvin Herrera argued that the 1868 Treaty Between the United States of America and the Crow Tribe of Indians (1868 treaty)34 provided him with hunting rights in an area of the Bighorn National Forest and that these rights barred the State of Wyoming from prosecuting him for taking bull elk off-season and without a state hunting license in the national forest. The 1868 treaty provided the Crow tribe with compensation in exchange for ceding most of their territory within the present states of Montana and Wyoming, including “the right to hunt on 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 borders of the hunting districts.”35 The State of Wyoming had prosecuted Herrera in 2014 for his hunting activities in the national forest in Wyoming, which runs adjacent to the Crow tribe’s present reservation in Montana, and a jury convicted him. The trial court then imposed a suspended jail sentence, a fine and a three-year suspension of Herrera’s hunting privileges. Herrera appealed the conviction, but the state appellate court affirmed the trial court’s judgment and sentence finding the Crow tribe’s hunting rights under the 1868 treaty expired at Wyoming’s statehood based on a case from 1896 called Ward v. Race Horse36 and, alternatively, a decision in Crow Tribe of Indians v. Repsis.37 Upon the denial of his petition for review by the Wyoming Supreme Court, Herrera took his case to the U.S. Supreme Court.

The Supreme Court vacated the decision and remanded.38 Essentially, the arguments focused on two primary questions: 1) whether the Crow tribe’s off-reservation hunting rights guaranteed by the 1868 treaty expired at statehood; and 2) if they did not, whether the lands in question qualified as unoccupied lands of the United States. Much of the Supreme Court’s analysis centered on the application of Race Horse and the preclusive effect of Repsis, which relied on Race Horse. The Race Horse case involved the review of a similar hunting rights provision in a treaty between the United States and the Shoshone and Bannock tribes and found that treaty right impliedly extinguished by statehood.39 Repsis involved an analysis of the hunting rights in the 1868 treaty and held, based on the decision in Race Horse, that such rights also impliedly expired at Wyoming’s statehood.40 Despite these precedents, Herrera argued that the later case of Minnesota v. Mille Lacs Band of Chippewa Indians41 repudiated Race Horse and confirmed the analysis required to find a termination of treaty rights, i.e. that only an express statement from Congress can abrogate a treaty right.42

The Supreme Court agreed with Herrera. It declared the repudiation of Race Horse (and the concept that statehood impliedly extinguishes treaty rights), found Repsis did not preclude Herrera’s arguments that the 1868 treaty survived statehood (as that case relied on the reasoning and tests established in Race Horse and Mille Lacs established a change in the legal context), and applied the test in Mille Lacs to ultimately hold that no express statement by Congress or in the 1868 treaty extinguished the Crow tribe’s hunting rights at Wyoming’s statehood.43 As for the question of whether the Bighorn National Forest represented “occupied” lands, taking it outside of the area available for use for hunting under the treaty, the Supreme Court analyzed the word “unoccupied” in the context of the treaty and determined that the Crow tribe would have understood the term to apply to areas “free of residence or settlement by non-Indians.”44 As such, the creation of the Bighorn National Forest, which reserved it from entry or settlement, did not make it “categorically occupied” and did not exclude it from the area available for hunting under the treaty.45 The Supreme Court did limit its decision in two ways. It clarified that upon remand the state was still free to argue that the specific lands at issue did qualify as “occupied” under the meaning established in the decision and to argue that conservation concerns make state regulations on hunting in this area applicable to Crow tribe members necessary, an argument not presented or addressed by the Supreme Court.46

The dissent from Justice Alito found the decision in Repsis wholly determinative due to its preclusion of the relitigation of the survival of hunting rights in the Bighorn National Forest under the 1868 treaty.47 This conclusion arose not only from skepticism of the exception to preclusion for a change in legal context relied upon by the majority or its finding that Mille Lacs effectively overruled Race Horsebut also due to a determination that Repsis included an alternative holding that interpreted the 1868 treaty, found the lands in the Bighorn National Forest occupied, and did not rely on Race Horse.48 The dissent found this alternative ground for the judgment in Repsis independently decisive and preclusive.49

If anything, the decision in Herrera emphasizes the current division in the Supreme Court on issues relating to tribal rights and federal Indian law. Justice Sotomayor delivered the majority opinion, joined by Justices Ginsburg, Breyer, Kagan and Gorsuch. Justice Alito wrote the dissent. Chief Justice Roberts and Justices Thomas and Kavanaugh joined him. All signs point to the continuation of this treaty-doctrine division as the Supreme Court prepares again to consider treaty promises in its present term. The holding in Herrera also fails to establish with certainty the ability of tribal members to assert their hunting rights in the coming years. While the majority opinion confirms that courts must look for express statements from Congress to find a treaty right terminated, it does not conclusively state that the Bighorn National Forest qualifies as “unoccupied” land available for use for traditional hunting by the Crow tribe. This was not lost on the dissent, and it leaves the door open for further litigation on this issue to address the specific application of the meaning of “unoccupied” adopted by the Supreme Court. While Herrera advances the recognition of treaty rights, it, unfortunately, only goes so far.

The U.S. Constitution does not lose its force and effect due to the passage of time. Neither do treaties, another component of the supreme law of the land. The promises made in these documents provide a forever future for tribal nations and their citizens and ring with longevity. As confirmed by Herrera, treaties do not presuppose that the promises made within them have an end, unless clearly stated. This only makes sense, as the United States agreed to provide permanent and ongoing obligations to tribal governments in order to achieve its own permanent ends, i.e. the increase of its land base. It was not contemplated that the United States would only use the lands received in these negotiated contracts for a certain number of years and then return them. Like the Constitution, treaties involve long-term objectives and obligations, and, as observed by Justice Black, great nations keep their word.

Jennifer Lamirand is an associate at the Oklahoma City office of Crowe & Dunlevy PC. She received her J.D. from the University of Notre Dame Law School and an LL.M. with a focus in international business law from the London School of Economics and Political Science. She currently chairs the Indian Law Section.

1. Act of March 3, 1871, 16 Stat. 544, 566 (now codified at 25 U.S.C. §71).
2. Herrera v. Wyoming, 139 S.Ct. 1686 (2019).
3. U.S. Const. art. I, §8, cl. 3.
4. U.S. Const., art. II, §2; U.S. Const., art. I, §10, cl. 1.
5. See U.S. v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194, 197 (1876).
6. U.S. Const. art. VI.
7. United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876) (citing Foster and Elam v. Neilson, 27 U.S. 253, 253 (1829)).
8. Act of March 3, 1871, 16 Stat. 544, 566 (now codified at 25 U.S.C. §71).
9. Id.
10. 25 U.S.C.A. §71 (West 2019).
11. Lone Wolf v. Hitchcock, 187 U.S. 553, 567-68 (1903).
12. See Lone Wolf, 187 U.S. at 554.
13. Walter R. Echo-Hawk, In the Courts of the Conqueror 175 (2010).
14. Walter R. Echo-Hawk, In the Courts of the Conqueror 175 (2010).
15. Walter R. Echo-Hawk, In the Courts of the Conqueror 175 (2010).
16. Lone Wolf, 187 U.S. at 557-60.
17. Lone Wolf, 187 U.S. at 553.
18. Lone Wolf, 187 U.S. at 561.
19. Lone Wolf, 187 U.S. at 561-62.
20. Lone Wolf, 187 U.S. at 563.
21. Lone Wolf, 187 U.S. at 563.
22. Lone Wolf, 187 U.S. at 563.
23. Lone Wolf, 187 U.S. at 568.
24. Lone Wolf, 187 U.S. at 565-68.
25. Lone Wolf, 187 U.S. at 569.
26. See, e.g., United States v. Sioux Nation, 448 U.S. 371, 415 (1980).
27. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960).
28. Tuscarora, 362 U.S. at 106.
29. Tuscarora, 362 U.S. at 137-38.
30. Tuscarora, 362 U.S. at 110-11.
31. Tuscarora, 362 U.S. at 111.
32. Tuscarora, 362 U.S. at 111-12.
33. Tuscarora, 362 U.S. at 142.
34. Treaty of Fort Laramie Between the United States of America and the Crow Tribe of Indians, May 7, 1868, 15 Stat. 649 (1868).
35. 1868 Treaty, art. IV, 15 Stat. 649, 650.
36. Ward v. Race Horse, 163 U.S. 504 (1896).
37. Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995).
38. Herrera, 139 S.Ct. at 1703.
39. Race Horse, 163 U.S. at 515-16.
40. Repsis, 73 F.3d at 994.
41. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
42. Herrera, 139 S.Ct. at 1696.
43. Herrera, 139 S.Ct. at 1697-1700.
44. Herrera, 139 S.Ct. at 1700-01.
45. Herrera, 139 S.Ct. at 1702-03.
46. Herrera, 139 S.Ct. at 1703.
47. Herrera, 139 S.Ct. at 1709.
48. Herrera, 139 S.Ct. at 1703-13.
49. Herrera, 139 S.Ct. at 1713.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 36 (March 2020)