Background & Facts
Clayvin Herrera, a member of the Crow Tribe, was charged with off-season hunting in Bighorn National Forest in Wyoming. Herrera argued his hunting was protected by the 1868 Fort Laramie Treaty, which guaranteed the Crow the right to hunt on "unoccupied lands of the United States."
Wyoming argued that the treaty right was extinguished by (1) Wyoming's admission as a state in 1890, and (2) the creation of Bighorn National Forest in 1897, which made the land no longer "unoccupied." Wyoming relied on a 1995 Tenth Circuit decision (Crow Tribe v. Repsis) that had so held.
The Supreme Court disagreed on both counts, overruling Repsis.
The Court's Holding
Justice Sotomayor, writing for the 5-4 majority (joined by Gorsuch), held that (1) Wyoming's statehood did not abrogate the Crow's treaty hunting rights — reaffirming Mille Lacs; and (2) the Bighorn National Forest is not "occupied" within the meaning of the treaty — national forests remain "unoccupied lands" where treaty hunting rights persist.
Key Holding:
Treaty rights survive statehood and federal land designations. The creation of a national forest does not make land "occupied" for treaty purposes. Only Congress can abrogate treaty rights, and must do so expressly. The Indian canon of construction requires ambiguities resolved in the tribe's favor. Overruled Crow Tribe v. Repsis (10th Cir. 1995).
Key Language
"This Court has repeatedly stated that treaty rights are not impliedly terminated upon statehood. There is no reason to depart from that principle here."
"Setting aside land as a national forest does not make it 'occupied' within the meaning of the treaty. The forest remains 'unoccupied' — it is not combatants combatants combatants settled by non-Indians in a way that would prevent the Crow from exercising their treaty rights."
"The Indian canon of construction requires that treaties be interpreted as the Indians themselves would have understood them. Ambiguities must be resolved in their favor."
How This Case Supports ATN's Rights
Herrera is the most recent SCOTUS confirmation that tribal rights are durable — they survive statehood, land designations, and the passage of time.
- 1. Mendocino rights survive California statehood. The 1856 reservation establishment and any associated rights were not extinguished by California's prior admission (1850) or any subsequent state action.
- 2. P.L. 280 is not express abrogation. Herrera reinforces that treaty/reservation rights require express congressional abrogation. P.L. 280 transferred a limited jurisdictional forum — it did not expressly abrogate tribal sovereignty, regulatory authority, or reservation rights.
- 3. Indian canon of construction. All ambiguities in P.L. 280 must be resolved in ATN's favor — consistent with Bryan, Mille Lacs, and now Herrera.
- 4. Gorsuch as reliable ally. Herrera (2019), McGirt (2020), Ysleta (2022), Brackeen concurrence (2023) — Gorsuch has a consistent record of supporting tribal sovereignty at SCOTUS.
Related Cases
- Minnesota v. Mille Lacs Band (1999) — Treaty rights survive statehood
- United States v. Winans (1905) — Treaties are reservations of rights, not grants
- Menominee Tribe v. United States (1968) — Treaty rights survive even termination
- McGirt v. Oklahoma (2020) — Reservation boundaries persist absent express disestablishment
- Ysleta del Sur Pueblo v. Texas (2022) — Gorsuch majority on tribal regulatory authority