U.S. supreme Court case - Big decision ahead

[sdkhunter]

In case anyone is in for some 'light legal reading' here is a link to the Supreme Court Case: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-532.html

Amazing how many parties actually filed a brief in this case. I was pleasantly surprised that my home state joined with several others including Nebraska, Kansas, Louisiana, Texas, North Dakota and Kansas to voice their concerns of the potential impact.

"Despite the quintessentially local nature of the underlying facts, Petitioner’s arguments in resistance to the issue preclusion doctrine as a bar to his affirm-ative criminal defense would have consequences far beyond tribal hunting rights in northern Wyoming. Pe-titioner invites the Court to import into the federal common law a broad—and heretofore unrecognized—automatic exception to issue preclusion where there has been “a change in the applicable legal context.” This ill-defined, manipulable standard would incentivize losing parties to continually innovate new means of relitigating settled issues, even where, as here, the intervening “change” is dubious at best. "

"States and Tribes must be able to rely on past de-cisions and have finality between each other, particularly when such decisions directly implicate public safety considerations by delineating which sovereign may exercise law enforcement over a certain area, and the scope of the same. The alternative would breed jurisdictional chaos. "

 

[VikingsGuy]

While I was disappointed to realize that the Washington State Dept. of Licensing v. Cougar Den, Inc., was not a case about licensing strip clubs focused on older ladies for younger men, it could be a good indicator of where the SCOTUS might land on Herrera. The SCOTUS Blog has a good summary for those of us who are time constrained. https://www.scotusblog.com/case-files/cases/washington-department-licensing-v-cougar-den-inc/

A very fragmented ruling, but in the end I have to agree that there are themes that will likely show up again in the WY case. One issue that comes up in these types of cases is the general question of whether the Indian tribes just negotiated for treatment that is merely on par with that of non-Indians or if they bargained for and received particular rights/privileges that might be greater than other citizens. Common sense seems to lead many to the approach of the first approach, that as long as Indian are not more negatively/harshly treated, then that is all the treaty should provide. That view has been losing in the Supreme Court for years and did again this week. While the details may vary by treaty, Indian tribes do in fact have rights/privileges that may be greater than those of their non-Indian peers - and they “bought” these privileges by surrendering hundreds of millions of acres of land, as well as their own sovereignty. For good or for bad, Indian tribes will continue to have greater hunting and fishing rights than non-Indians - such is the nature of “bargained agreements”.

 

[ScottP]

The Supreme Court has technically defined Tribes as domestic dependent nations - which is in part why the United States "looks after" Tribes. So the Canada comparison isn't a good analogy, despite the sovereignty Tribes have over many of their affairs.

As far as who killed whose ancestors...not at play here...this isn't seeking justice for some past wrong. This particular case centers on a Treaty between the Crow and the United States.

As mentioned earlier, SCOTUS seems to have a way of keeping rulings narrow and/or on technicalities that limit application of their decisions...but if that doesn't happen here I see two broad potential outcomes:

1. Wyoming prevails and off reservation hunting rights become very limited...this would likely have a negative impact on treaty tribes in Idaho, Washington, and Oregon where substantial off reservation hunting occurs.

2. Herrera prevails and Treaty Tribes in Montana and Wyoming have substantially greater off reservation hunting and harvest than what they currently enjoy.

I know in Idaho it has been frustrating to draw a good bull tag - only to have Tribal hunters show up the week before the State season opens and they hunt the heck out of it. While it's frustrating, I understand they have a treaty right. My guess is Wyoming's limited entry units would be the most impacted by off reservation tribal hunting if Herrera prevails.

Or neither of those, depending on how narrow the ruling is. If I've paid enough attention, they are deciding if by becoming a state, Wyoming "occupied" the land within it's boundary, and hence made the entire state off-limits to exercise of treaty rights by the Crow under their specific treaty with the U.S. Government, regardless of who held the land title. Other treaty tribes with off-reservation rights in the NW do not have identical language to the Crow treaty - i.e. "unoccupied lands" is not used in others (I haven't read them all). But the language is similar in some cases.

 

[Irrelevant]

Ruling is out. The way I read it, they said the treaty rights are still valid, but they did not rule on whether or not the State is allowed to restrict those rights in the name of conservation. Gorsuch sided with the left.
https://casetext.com/case/herrera-v-wyoming-2

 

[VikingsGuy]

Ruling is out. The way I read it, they said the treaty rights are still valid, but did rule on whether or not the State is allowed to restrict those rights in the name of conservation. Gorsuch sided with the left.
https://casetext.com/case/herrera-v-wyoming-2

And Alito’s dissent painted an alternative (but likely futile) path for the state to pursue by saying there is still an unresolved argument about one of the two grounds for finding issue preclusion under Repsis. While possibly technically correct, this is likely futile because if a 5th justice had bought the argument they could have sided with Alito now - seems unlikely any one of them would flip in a couple of years if WY pushed this new line of reasoning.

Between the Repsis part 2 Hail Mary, and the “conservation” angle neffa3 mentions, this case will likely be back at SCOTUS in a few years if WY still wants to push.

 

[Big Fin]

This is a very interesting read and the ruling has big ramifications in so may ways. I suspect the states will struggle to find a way to impose a "Conservation standard" that is not litigated to be an infringement on the Treaty rights.

One thing it illustrates with complete certainty; Treaty law is extremely convoluted.

 

[406LIFE]

One thing it illustrates with complete certainty; Treaty law is extremely convoluted.

Completely agree. I was hoping for something out of this that would help clarify or give direction.

 

[Jape]

Ruling is out. The way I read it, they said the treaty rights are still valid, but they did not rule on whether or not the State is allowed to restrict those rights in the name of conservation. Gorsuch sided with the left.
https://casetext.com/case/herrera-v-wyoming-2

That's how I read it too. It is common for the SCOTUS to punt on issues like that, although, to be fair, it wasn't fully litigated at the appellate level. I think Big Fin is also correct that the Wyoming legislature will have its work cut out for it trying to carve out language that is conservation based while not violating Treaty law.

I had to attend a hearing in an Indian Court a few years ago representing a skilled nursing facility regarding custody of a Native American. Let me tell you, some of their laws are a little cray cray (perhaps like some of the US gov't treaty language). I have no doubt plenty litigation will follow this decision.

 

[3855WIN]

So, essentially, an Indian could go into Wyoming and kill an elk anytime they want as long as it’s on public?

 

[Irrelevant]

So, essentially, an Indian could go into Wyoming and kill an elk anytime they want as long as it’s on public?

Pretty much. Even though the SCOTUS already ruled that (exactly) wasn't legal for another tribe.

 

[JM77]

This affects "unoccupied" lands only within the treaty in Montana and Wyoming. This is a long way from being solved the way I read it.

 

[3855WIN]

This affects "unoccupied" lands only within the treaty in Montana and Wyoming. This is a long way from being solved the way I read it.

What is “unoccupied lands”?

 

[375H&H]

This affects "unoccupied" lands only within the treaty in Montana and Wyoming. This is a long way from being solved the way I read it.

Did they determine if Yellowstone was considered “unoccupied”?

 

[Big Fin]

What is “unoccupied lands”?

The case goes into great explanation of what is NOT unoccupied lands, both legally and in the context of what it meant when the treaty was signed. WY plead that when the Bighorn NF was created it was no longer occupied. The majority opinion shot that down without much consideration, leaving me with the feeling they were not impressed with Wyoming's legal rationale.

 

[rmauch20]

What a bunch of shit. Those poor poor Indians . They have it so rough. I guess they will just have to go back to their government subsidize land and live in their government subsidize houses and those poor poor people will just have to go shoot elk, because the government subsidize food program just doesn’t provide enough. Meanwhile the only thing they take is the back straps and head.

 

[Deleted member 28227]

What a bunch of shit. Those poor poor Indians . They have it so rough. I guess they will just have to go back to their government subsidize land and live in their government subsidize houses and those poor poor people will just have to go shoot elk, because the government subsidize food program just doesn’t provide enough. Meanwhile the only thing they take is the back straps and head.

You might want to pick up a history book.

Humans are humans, good and bad actors in every group. Conversations about allocation of scarce resources between users groups is one thing, but allowing any group to operated outside state run wildlife management is antithetical to the North American model and conservation in general.

I'm interested to see what effect if any this ruling will have on tribal hunting, and future law enforcement.

Part of me also wonder what the ruling would have been if it was a grizzly or wolf instead of an elk.

 

[Brian in Montana]

I'm going to have to read more about this later. I was sort of following this case because I thought it was interesting in a historical context, but I really would not have guessed it would go this way. It is surprising. I really would have figured a NF designation would make the land "occupied". Considering the context of the time in which the treaty was signed, and what likely would have constituted as "unoccupied", there really is no land at present that could possibly be defined in the same way. That's really something.

 

[mtguy]

The case goes into great explanation of what is NOT unoccupied lands, both legally and in the context of what it meant when the treaty was signed. WY plead that when the Bighorn NF was created it was no longer occupied. The majority opinion shot that down without much consideration, leaving me with the feeling they were not impressed with Wyoming's legal rationale.

I'm assuming you meant to say "WY Plead that when the Bighorn NF was created it was no long UNOCCUPIED land"?

 

[rmauch20]

You might want to pick up a history book.
LOL. I’ve read plenty. Sorry if I don’t buy into the whole Indian people noble and honest white people bad mentality.

Humans are humans, good and bad actors in every group. Conversations about allocation of scarce resources between users groups is one thing, but allowing any group to operated outside state run wildlife management is antithetical to the North American model and conservation in general.

I'm interested to see what effect if any this ruling will have on tribal hunting, and future law enforcement.
It sure in the hell isn't going to slow it down any. I’m sure they all feel rather embolden currently. Wyoming better Get their argument together that they are still subject to conservation laws.


Part of me also wonder what the ruling would have been if it was a grizzly or wolf instead of an elk.

 

[rmauch20]

They just got the green light to poach. Tags don’t apply, seasons don’t apply, waton waste doesn’t apply.
I am sure this will turn out great.