BuzzH
Well-known member
The treaty was signed 22 years before wyoming was a state...and the supreme court has upheld treaty rights as "high law" in past cases. Conservative judges or not, wyoming will lose this case.
Supreme Court Justice Kennedy Retiring in July
- Thread starter Topgun 30-06
- Start date
Topgun 30-06
Active member
Essentially yes, and right now tribal members are going from their reservation in southern Montana and killing elk in the NF in the northern Big Horn Mountains of Wyoming and the state of Wyoming is attempting to stop it by prosecuting those found doing it.
F
fwagner
Guest
Exactly!!! I hope they remind McConnell of those words!!
Wow! Agree! Reading Buzz's post though... has me cringing.
jryoung
Well-known member
I sure hope the Administration has used up all of it's "let see what the Utah contingent has to say" cards on this one.
https://www.outdoorlife.com/senator-mike-lee-pledges-long-term-attack-on-public-lands
https://www.outdoorlife.com/senator-mike-lee-pledges-long-term-attack-on-public-lands
BuzzH
Well-known member
Why is it a bunch of crap?
The Federal Government signed a treaty with the various tribes, granting them the right to hunt, fish, pick berries, etc. on all unoccupied lands.
Just because you don't like it, doesn't make the treaties any less binding or legal.
Read the Solicitor General opinion and also look at the Mille Lacs case...and explain how Wyoming has any chance of prevailing.
Wyoming playing Marlboro Man again...and will likely bite them in the arse...again.
Schaaf
Well-known member
Mike Lee isn’t out of this yet
Topgun 30-06
Active member
I'm guessing that Trump will pick Hardiman. He and Gorsuch were supposedly the top two for the last opening when Scalia passed and Gorsuch got the nod for the slot. IMHO if Trump picks him the Court will be in pretty good shape for years to come and will be even better if RBG ever leaves of her own accord or passes and it will probably be the latter that happens before she hangs it up.
What aboutbthe Repsis case? I think Wyomings point that statehood cancels unoccupied is sound.
Further, maybe its time to renogotiate said treaties. This isnt the late 1800's and Wyoming or MT cant support harvest methods and seasons allowed on the reservations IE no bag limits and a free for all methods wise.
MTGomer speaks the truth. The Crow reservation is basicly a dead zone for elk and deer unless one gets to the edges where animals wander in or winter from outside the rez.
D
Deleted member 28227
Guest
Maybe, but given Trumps immigration stance I don’t think Hardiman stands a chance. Hardiman’s ruling in
Valdiviezo-Galdamez v. Attorney General and the fact that he volunteered for Ayuda make me think he is out of the running.
What obligation do the tribes have to renegotiate treaties? It’s a legally binding document.
I don’t disagree with the assessment of the Crow reservation. The Cheyenne is no different. Spent plenty of time there.
I don’t like the potential impacts, but I agree with Buzz. The treaties need to be honored.
VikingsGuy
Well-known member
I haven't delved into this particular case deeply, but offer the following quick reactions.
Not enough SCOTUS track record to predict with certainty, but it will be closer than you suggest. The most recent treaty rights case was 4-4 with Kennedy recused. The conservative justices of the Milacs era strongly dissented but were an ideological minority (O'Connor was the "swing vote" in a 5-4 ruling) - an ideological balance that will likely be shifted to the right this fall. Could go 5-4 either way, but if I had to bet, I would go 5-4 WY, but depending on how the arguments play out in briefing and oral arguments the opposite outcome wouldn't be a shock.
As far as the Milacs case, not only was it 5-4 by a more liberal bench, but in my limited understand of the specifics, it did not have the "unoccuppied" limitation that could be an important element in this case.
I am not taking a position one way or the other, but as far as how WY may win -- the dissenting 4 justices in Milacs, gave you the path. In a modern legal sense "rights" and "privileges" are never absolute and are subject to reasonable state and federal regulation - as such, by granting the tribe the "right" to hunt, this treaty would prevent WY or MT from blocking the tribe from hunting these lands fully, but that non-discriminatory regulations such as seasons and quota licenses are allowed.
A second path is to find that these lands are "occupied" in a legal sense, as found by the circuit court.
FWIW - I think the statehood line of argumentation is weak, and I hope it fails - as a lot of the more aggressive reads on federal vs state lands tend to lean on this type of reasoning - one that would best be debunked sooner than later.
VikingsGuy
Well-known member
Indian rights/law is not an area I have strong opinions, but you conclusory questions seem a little too black/white. Renegotiations happen every day. For example, the federal gov could begin to outlaw indian gaming - but then trade that off in a negotiation. In a local issue, a few years back, the county just quit maintaining the county road that led to the indian casino - the tribe then negotiated on a number of issues. Another local issue, a state threat to allow non-indian casinos resulted in significant concessions. Contracts and treaties are by their very nature subject to on-going negotiations if circumstances or leverage change.
BuzzH
Well-known member
What I have seen happen in ID, WA, and MT with regard to treaty rights as well as how lower courts have ruled on lots of these issues...leads me to believe Wyoming will lose.
We'll see I guess, and I've been wrong before.
IMO, Wyoming took an unnecessary risk pushing the issue. If it doesn't go their way, the risk is a huge increase in tribal hunting. That's the trouble with taking this stuff to court...the court is forced to choose a winner and a loser. Again, IMO, there are better ways to go about things.
VikingsGuy
Well-known member
We see similar outcomes in MN, so I was surprised when I saw a Indian law blog that said that Indian treaty SCOTUS cases in the Roberts-court era are 2 wins for the tribes against 9 losses (and 1 of the wins was the Wash case that they would have lost if Kennedy wouldn't have been recused, as he was in the Milacs dissent). Given that disparity, maybe WY was wise to push? But I agree a loss could open up pandoras box for western public land hunters.
antlerradar
Well-known member
I am not taking a position one way or the other, but as far as how WY may win -- the dissenting 4 justices in Milacs, gave you the path. In a modern legal sense "rights" and "privileges" are never absolute and are subject to reasonable state and federal regulation - as such, by granting the tribe the "right" to hunt, this treaty would prevent WY or MT from blocking the tribe from hunting these lands fully, but that non-discriminatory regulations such as seasons and quota licenses are allowed.
So true. Just look at the second amendment.
There are all kinds of regulations on the right to keep and bare arms. There are lot of gun free zones. Many Big city's require that you have a permit to have a fire arm. If there can be reasonable regulations put on the second amendment than there can certainly be regulations put on this treaty. Wyo is not denying tribal members the ability to hunt. I am sure WY would be happy to sell tribal members licenses and as long as they hunted during season they can hunt any public land they can access.
So true. Just look at the second amendment.
There are all kinds of regulations on the right to keep and bare arms. There are lot of gun free zones. Many Big city's require that you have a permit to have a fire arm. If there can be reasonable regulations put on the second amendment than there can certainly be regulations put on this treaty. Wyo is not denying tribal members the ability to hunt. I am sure WY would be happy to sell tribal members licenses and as long as they hunted during season they can hunt any public land they can access.
