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Herrera v. Wyoming: A New Trend for Indian Law?

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11 Jun 2019
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June 11, 2019

Herrera v. Wyoming, 587 U.S. ___ (2019) (Sotomayor, J.).
Response by Monte Mills
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

Herrera v. Wyoming: A New Trend for Indian Law?

On May 20, 2019, the United States Supreme Court, by a 5–4 decision in Herrera v. Wyoming, upheld the treaty-reserved rights of Crow tribal members to hunt in Wyoming’s Bighorn National Forest—an area where the Tribe has sought sustenance for more than three centuries—despite Wyoming’s attempt to regulate those rights.1 While this outcome (and particularly Justice Gorsuch’s role in rendering it) points to the possibility of a new and improved future for tribal rights before the Supreme Court, neither Mr. Herrera nor Indian law more broadly are out of the woods yet.

Over the last quarter century (1990–2015), tribes or tribal interests lost more than 75% of the time when before the Supreme Court.2 From 1986 to 2000, Indian tribes and their allies lost more often than convicted criminals who asked the Court to overturn their sentences.3 This dismal record followed nearly 30 years in which tribal interests prevailed in almost 60% of Supreme Court matters.4

Why the drastic reversal?

Since the Rehnquist Court, the Court has more regularly ignored or dismissed the foundations of Indian law in favor of more subjective standards, especially in cases involving state interests.5 Similar biases against tribal cases influence the certiorari process, especially in cases (like Herrera) involving treaty rights, state regulation of those rights, and an extensive historical context.6 With a growing string of recent tribal victories (Cougar Den) and “not losses” (U.S. v. Washington; Dolgencorp) involving state interests, Herrera certainly offers hope that the nation’s highest Court is becoming reacquainted with its long-standing Indian law precedents.7 If that trend continues, the future promises a more predictable Court for tribal interests and claims.

But Herrera also offers reason for continued caution on the part of Indian Country. After all, the case’s central issue of treaty interpretation was, according to the majority, “not a hard case,”8 but only a single additional dissenter would have flipped the outcome, leaving the Crow (and Shoshone-Bannock) bereft of treaty rights. Therefore, despite Herrera’s promise, the decision also highlights the Court’s ongoing reluctance to unconditionally apply historic precedent supporting tribal rights in modern times.

Part of that struggle stems from the conflicting views of history offered by that precedent. In Herrera, Wyoming pressed one such view, articulated by the Court’s 1896 decision in Ward v. Race Horse,9 casting settlement of the American West by non-Indians as ushering in civilization, which arrived upon statehood.10 In that history, such progress demands that antiquated tribal treaty rights yield to state power even where neither the treaty language nor Congress expressly established such hierarchy. This view of history supported Manifest Destiny and was shaped by the need to tame the “wild frontier”11 and the “merciless Indian Savages”12 who inhabited it.

Mr. Herrera pressed a competing view of history called for by Minnesota v. Mille Lacs Band of Chippewa Indians.13 That case, rendered over a century after Race Horse, promotes judicial consideration of and respect for tribal perspectives by demanding that treaty rights remain unaffected unless and until Congress clearly says otherwise.14 By combining that commitment with the Supreme Court’s long-standing canons of treaty interpretation,15 Mille Lacs ensures that the terms of the original bargains struck by tribes with the United States are faithfully represented and respected, even centuries later.

In Herrera, the majority ultimately landed entirely on the side of the Mille Lacs view of history, identifying it as the controlling case and making clear that Race Horse is now out to pasture.16 The dissent did not accept that proposition, remarking instead that Race Horse had survived Mille Lacs to ride another day.17

But even the majority’s endorsement of Mille Lacs came with an important caveat: the possibility of a different outcome if repudiating Race Horse might have legitimately “upset[ ] the settled expectations” of Wyoming citizens.18 This alternate view of tribal rights is based not on Indian law precedent but instead on subsequently established and settled non-Indian expectations and was most (in)famously articulated by Justice Ginsburg’s majority opinion in City of Sherrill v. Oneida Indian Nation of New York.19 There, despite the historic and illegal loss of its lands and the legitimacy of the Nation’s modern claims for redress, the Court was unwilling to disrupt the “longstanding observances and settled expectations” of local non-Indians or to “dishonor ‘the historic wisdom in the value of repose.’”20 That same unwillingness, which ended the Court’s most recent unanimous opinion in favor of tribal interests on a sour note,21 also haunts Herrera.

Another part of the Court’s struggle with Herrera was its work to reconcile competing state and tribal interests. Race Horse’s suggestion that treaty rights and state sovereignty were irreconcilable began to give way in the early 1900s,22 but the Court continues to struggle to find a balance between the two.23

In Herrera, that struggle culminated with the majority’s explicit direction that, on remand, Wyoming could pursue an argument that state regulation of tribal hunters “is necessary for conservation.”24 That direction did not specify the applicable legal standards for that analysis, which include whether state regulation is needed to preserve a species and, if so, whether such regulation would discriminate against tribal members.25 Earlier this year, the Court fractured over the scope and details of those standards in Cougar Den.26 That uncertainty suggests a possible threat to the narrowly tailored conservation necessity exception that accommodates both tribal and state interests. The Herrera majority also failed to acknowledge that, without the challenge of such judicial accommodation, states and tribes across the country are already balancing and protecting their interests through intergovernmental collaboration.27 That acknowledgement might have opened the door for a new and cooperative solution without the need for further litigation.

The governments and members of the 573 federally recognized Indian tribes in the United States will continue to challenge the Supreme Court with difficult questions about history, justice, and the relationship between the three American sovereigns (states, tribes, and the federal government). The Court’s solutions will not always be perfect, but, after a generation wandering a subjective wilderness in search of answers, Herrera suggests that the Court may be returning to its own Indian law foundations for guidance.

Monte Mills is an Associate Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. Professor Mills teaches and writes on a variety of Indian law issues. Last fall, he served as counsel of record for a group of Indian law professors from across the country on an amicus brief in support of Mr. Herrera in Herrera v. Wyoming.

    1. See Herrera v. Wyoming, No. 17-532, slip op. at 1–2 (U.S. May 20, 2019).
    2. Bethany R. Berger, Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . and Beyond, 2017 Ill. L. Rev. 1901, 1906–07.
    3. David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267, 281 (2001).
    4. Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as a Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933, 935 (2009).
    5. Getches, supra note 3, at 268, 273–74; see also David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573 (1996).
    6. Fletcher, supra note 4, at 936–37.
    7. See generally Berger, supra note 2 (predicting that trend based on the Court’s 2016 term).
    8. Herrera, slip op. at 17.
    9. 163 U.S. 504 (1896).
    10. Brief for Respondent at 47, 48, Herrera (No. 17-532) (statehood marked the end of the “march of civilization” and the “moment when civilization arrived”).
    11. Herrera, slip op. at 16.
    12. The Declaration of Independence (U.S. 1776).
    13. 526 U.S. 172 (1999).
    14. Id. at 203.
    15. Id. at 196, 206 (treaties are to be understood as the tribes would have understood them and liberally construed in tribes’ favor).
    16. Herrera, slip op. at 6, 11.
    17. Id. at 9–10 (Alito, J. dissenting).
    18. Id. at 13 n.3 (majority opinion). Because Wyoming could not adequately demonstrate such concerns, the majority did “not address whether a different outcome would be justified .” Id.
    19. 544 U.S. 197 (2005).
    20. Id. at 218–19 (quoting Oneida Cnty. N.Y. v. Oneida Indian Nation of N.Y. State (Oneida II), 470 U.S. 226, 262 (1985).
    21. See Nebraska v. Parker, 136 S. Ct. 1072, 1082 (2016) (“[W]e express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands.”) (citing City of Sherrill, 544 U.S. at 217–21).
    22. See United States v. Winans, 198 U.S. 371 (1905).
    23. See, e.g., Cohen’s Handbook of Federal Indian Law §18.04(3)(b) at 1178–79 (Nell Jessup Newton ed., 2012) (the Court has reached “an uneasy accommodation of [those] principles.”).
    24. Herrera, slip op. at 22. Mr. Herrera and his treaty rights also face a second issue on remand: whether the specific area in which he was hunting could be considered “occupied” even if, as a general matter, the majority found the Bighorn National Forest to be “unoccupied” according to the treaty. Id. at 21–22.
    25. See, e.g., Dep’t of Game of Wash. v. Puyallup Tribe, 414 U.S. 44, 46–49 (1973).
    26. See, e.g., Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1026 (2019) (Roberts, C.J., dissenting) (the plurality’s potential exceptions for state regulation “may undermine rights that the Yakamas and other tribes really did reserve”).
    27. See, e.g., Brief for the National Congress of American Indians, et al. as Amici Curiae in Support of Petitioner at 19–33 (No. 17-532, Sept. 11, 2018); Brief of Amicus Curiae Shoshone-Bannock Tribes of the Fort Hall Reservation in Support of Petitioner at 26–28, Herrera (No. 17-532, Sept. 11, 2018); Brief of Amici Curiae Southern Ute Indian Tribe and Ute Mountain Ute Tribe in Support of Petitioner at 15–19, Herrera (No. 17-532, Sept. 11, 2018).

Recommended Citation
Monte Mills, Response, Herrera v. Wyoming: A New Trend for Indian Law?, Geo. Wash. L. Rev. On the Docket (June 11, 2019), https://www.gwlr.org/herrera-v-wyoming-a-new-trend-for-indian-law.

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