Author Topic: Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right  (Read 676 times)

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Online Elderberry

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SCOTUSblog by Gregory Ablavsky 5/20/2019

In Herrera v. Wyoming, the Supreme Court today overruled the Wyoming courts and held that the Apsáalooke Nation, also known as the Crow Tribe, retains its treaty-guaranteed right to hunt on unoccupied lands outside its reservation. Although the case turned on complicated questions of precedent and preclusion, the decision is perhaps most significant for what it augurs for future struggles for tribal rights before this court.

Wyoming convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on “unoccupied” lands. The lower courts had reasoned that an earlier decision of the U.S. Court of Appeals for the 10th Circuit, Crow Tribe of Indians v. Repsis, which held that the tribe’s treaty right was abrogated when Wyoming became a state, precluded Herrera from arguing that the treaty right was still valid. In an opinion by Justice Sonia Sotomayor, the Supreme Court disagreed.

Repsis did not bind Herrera, the court reasoned, because there had been a significant intervening change in the law that barred issue preclusion. Repsis had relied on an 1896 Supreme Court decision, Ward v. Race Horse, which had held an identical treaty hunting provision incompatible with statehood. But after Repsis, the Supreme Court in its 1999 decision Minnesota v. Mille Lacs Band of Chippewa Indians firmly rejected the application of Race Horse in a similar dispute. The court observed today that Mille Lacs had “methodically repudiated” the “logic” of Race Horse. Although Mille Lacs had declined to explicitly overrule Race Horse, today’s decision took that next step: “[W]e make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.”


Offline Maj. Bill Martin

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This is the kind of technical legal argument that will be lost on all those who take positions based on whether or not they like the result.